This Gazette may contains Multiple Subjects

रजिस्ट्री सं० डी० एल० ( एन ) 04/ 0007/2003-05

धादये जाने

REGD, NO. D. L. (N ) (04/0007/2003-05 भारत राजपत्र The Gazette of India

प्राधिकार से प्रकाशित

PUBLISHED BY AUTHORITY

साप्ताहिक

WEEKLY

सं. 40 ]

नई दिल्ली, सितम्बर 28-अक्तूबर 4 , 2008 , शनिवार/आश्विन 6-आश्विन 12 , 1930

No.401 NEW DELHI , SEPTEMBER 28-OCTOBER 4, 2008 , SATURDAY / ASVINA 6- ASVINA 12, 1930 इस भाग में भिन पृष्ठ संख्या दी जाती है जिससे कि यह पृथक संकलन के रूप में रखा जा सके Separate Paging is given to this Part in order that it may be filed as a separate compilation

भाग ।। - खण्ड ३ - उप- खण्ड (il) PART 11-Section 3 Sub- section ( ii )

भारत सरकार के मंत्रालयों ( रक्षा मंत्रालय को छोड़कर ) द्वारा जारी किए गए सांविधिक आदेश और अधिसूचनाएं StatutoryOrders and Notifications Issued by the Ministries of the Government of India (Other than the Ministry of Defence)

विधि और न्याय मंत्रालय

( विधि कार्य विभाग )

नई दिल्ली , 23 सितम्बर , 2008

का. आ. 2747.- केन्द्रीय सरकार , दंड प्रक्रिया संहिता , 1973 (1974 का 2 ) की धारा 25 की उपधारा ( । क ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए, बृहत्तर मुंबई में महानगर मजिस्ट्रेट के न्यायालयों और विशेष न्यायालयों में भारत संघ या केन्द्रीय सरकार के किसी विभाग या कार्यालय या अपनी सरकारी हैसियत में कार्य कर रहे केन्द्रीय सरकार के विभाग के किसी अधिकारी द्वारा या उसके विरुद्ध सभी दांडिक मामलों का संचालन करने के प्रयोजन के लिए श्री अजीत एस. ईनामदार , अधिवक्ता, मुंबई और श्री आर. के. पाठक, अधिवक्ता, मुंबई की सहायक लोक अभियोजकों के रूप में नियुक्ति की अवधि को राजपत्र में इस अधिसूचना के प्रकाशन की तारीख से एक वर्ष की अवधि के लिए या अगले आदेश तक , इनमें से जो भी पूर्वत्तर हो , इस शर्त के अधीन रहते हुए विस्तारित करती है कि ऊपर 3631G1/08

(5451 )

उल्लिखित अधिवक्ता किसी दांडिक मामले में केन्द्रीय सरकार या केन्द्रीय सरकार के किसी अधिकारी अथवा केन्द्रीय सरकार के किसी विभाग के विरुद्ध बृहत्तर मुंबई में किसी महानगर मजिस्ट्रेट के न्यायालयों और विशेष न्यायालयों में उपसंजात नहीं होंगे ।

(फा. सं. 23 ( 3 )/2008 - न्या. ) एम. ए, खान युसुफी, संयुक्त सचिव और विधि सलाहकार MINISTRY OF LAW AND JUSTICE (Department of Legal Affairs ) New Dolli , the 23rd September , 2008 S.O. 2747. In exercise of the powers conferred hy sub - section ( 1A ) of Section 25 of the Code of Cri า ข่ายเงิ Procedure , 1973 ( 2 of 1974 ) , the Central Government hereby extends the term of appointment of Shri Ajit S. Inamdar , Advocate, Mumbai and Shri R. K. Pathak, Advocate , Mumbai as Assistant Public Prosecutors for the purpose ofconducting all criminal cases by or against the Union of t 3452

THE GAZETTE OF INDIA : OCTOBER 4, 2008 / ASVINA 12 , 1930

[PART 11--SEC. 3 ( ii) ]

S/Shri

1. K. Ram Murthy ,

4. B. Raghavendra ,

2. Gopala Krishna Murthy, 5. B. Kalyan Kumar .

3. Y. Aruna Gamini ,

[ F. No. 225/20/2005 -AVD- II ] CHANDRA PRAKASH , Under Secy.

नईदिल्ली , 23 सितम्बर , 2008

India or any Department or Office of the Central Government or any officer of the Central Government Department acting in his official capacity in the Metropolitan Magistrate Courts and Special Courts in Greater Mumbai , with effect from the date ofpublication of this notification in the Official Gazette, for a period of one year or until further orders, whichever is earlier , subject to the condition that the above mentioned advocates shall not appear in any criminal case in any Metropolitan Magistrate Court and Spical Court in Greater Mumbai against the Central Government or any officer of the Central Government or against any Department of the Central Government.

[F. No. 23 (3 )/2008 -Judl . ]

M.A. KHAN YUSUFI , Jr. Secy , and Legal Adviser

4 कार्मिक , लोक शिकायत तथा पेंशन मंत्रालय (कार्मिक और प्रशिक्षण विभाग ) नई दिल्ली, 23 सितम्बर , 2008

का. अर. 2749.- कंन्द्रीय सरकार एतद्‌द्वारा दंड प्रक्रिया संहिता, 1973 ( 1974 का अधिनियम सं. 2 ) की धारा 24 को उपध ारा (8 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए , डा. के.पी. साथीसन अधिवक्ता को कोचीन , केरल राज्य के विचारण न्यायालयों में दिल्ली विशेष पुलिस स्थापना ( के.अ. ब्यूरो ) द्वारा संस्थित और केन्द्रीय अन्वेषण ब्यूरो द्वारा उन्हें सौंपे गए मामलों के अभियोजन और पुनरीक्षण अथवा अपील न्यायालयों में इन मामलों से उद्भूत अन्य विषयों का संचालन करने के लिए विशेष लोक अभियोजक के रूप में नियुक्त करती है ।

[ फा. सं. 225 /31 /2007- एवीडी-11 ( पार्ट -1 ]

चंद्र प्रकाश , अवर सचिव

New Delhi , the 23rd September, 2008 का. आ. 2748.- केन्द्रीय सरकार एतद्द्वारा , दंड प्रक्रिया संहिता, 1973 ( 1974 का अधिनियम सं. 2 ) को धारा 24 को उपधारा (8 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए , निम्नलिखित अधि वक्ताओं को आन्ध्र प्रदेश राज्य हैदराबाद में केन्द्रीय अन्वेषण ब्यूरो द्वारा उन्हें सौंपे गए परीक्षण न्यायालयों और अपीलों और इनसे उद्‌भूत अपीली न्यायालयों में दिल्ली विशेष पुलिस स्थापना ( के.अ. ब्यूरो ) द्वारा संस्थित मामलों का संचालन करने के लिए सहायक लोक अभियोजक के रूप में नियुक्त करती है :一

सर्वश्री

4. बी. रागवेन्द्र

1. के. राम मूर्ति

2. गोपाल कृष्णा मूर्ति 5. बी. कल्याण कुमार

3. वाई. अरुणा गामिनी

S.O. 2749. In exercise of the powers conferted by sub- section (8 ) of Section 24 of the Code of Criminal Procedure, 1973 (Act No. 2 of 1974 ) , the Central Government hereby appoints Dr. K P. Satheesan , Advocate as Special Public Prosecutor for conducting prosecution of cases instituted by the Delhi Special Police Establishment (CBI ) inthe State of Kerala at Cochin as entrusted to him by the Central Bureau of Investigation in the trial courts and appeals / revisions or other matter arising out of these cases in revisional or appellate courts established by law.

[फा. सं . 225/20/2005/एवीडी -11 ]

[F. No. 225/31/2007 -AVD- II ( Pt - 1 )] CHANDRA PRAKASH , Under Secy.

चंद्र प्रकाश , अवर सचिव

नई दिल्ली , 23 सितम्बर , 2008

MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS

* (Department of Personnel and Training) New Delhi , the 23rd September , 2008

S.O.2748.- ill exercise of the powers conferredby sub-section ( 8) of Section 24 of the Code of Criminal Procedure, 1973 (Act No. 2 of 1974 ), the Central Government hereby appoints following Advocates as Special Public Prosecutor for conducting prosecution of cases instituted bythe Delhi Sepcial Police Establishment (CBI ) in the State ofAndhra Pradesh at Hyderabad as entrusted to them by the Central Bureau of Investigation in the trial courts and appeals/revisions or other matter arising out of these cases in revisional or appellate courts established by law!

का. आ. 2750.- केन्द्रीय सरकार एतद्‌द्वारा दिल्ली विशेष पुलिस स्थापना अधिनियम , 1946 ( 1946 का अधिनियम सं. 25 ) की धारा 6 के साथ पतित धारा 5 की उपधारा ( 1 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए , आंध्र प्रदेश राज्य सरकार , गृह ( एस.सी.ए. ) विभाग की अधिसूचना सं. जीओएमएस सं. 58 दिनांक 24 मार्च, 2008 द्वारा प्राप्त सहमति से श्रीमती अंशु वर्गीस की हत्या के मामले में अन्वेषण हेतु बंजारा हिल्स, हैदराबाद पुलिस थाना में दर्ज मामला सं. 464/2006 से उद्भूत भारतीय दंड संहिता 1860 ( 1860 का अधिनियम सं. 45 ) की धाग 304- बी और 201 तथा दहेज प्रतिषेध अधिनियम , 1961 ( 1961 के अधिनियम सं. 28 ) की धारा 3 और 4 के अधीन दंडनीय अपराध तथा उक्त अपराध से संबंधित अथवा संसक्त प्रयत्नों, दुष्प्रेरणों और पड़यंत्रों और उसी संव्यवहार के अनुक्रम * ( भाग 11 खण्ड 3 (ii) ]

5453

भारत का राजपत्र : अक्तूबर 4, 2008/ आश्विन 12, 1930

में किए गए अथवा उन्हीं तथ्यों से उद्भूत किन्हीं अन्य अपराधों का अन्वेषण करने के लिए दिल्ली विशेष पुलिस स्थापना के सदस्योंकी शक्तियों और अधिकारिवा का विस्तार सम्पूर्ण आंध्र प्रदेश राज्य पर करती है ।

[फा. सं. 228/35 /2008- एवीडी- II ] चंद्र प्रकाश , अवर सचिव NewDelhi, the23rd September, 2008 S.O. 2750. In exercise of the powers conferredby sub-section (1 ) of Section 5 read with Section 6 ofthe Delhi Special PoliceEstablishment Act, 1946 (Act No.25 of1946), the Central Government with the consent of the State Government ofAndhra Pradesh , Home (SCA ) Department vide notification G.O. Ms. No. 58 dated 24th March , 2008, hereby extends the powers and jurisdiction ofthe members ofthe Delhi Special Police Establishment to the whole ofthe State ofAndhra Pradesh for investigation into the murder of Mrs. Ansu Varughis at Hyderabad vide crime No. 464/06 under Sections 304-B and 201 ofthe Indian Penal Code, 1860 (Act No. 45 of 1860) and Sections 3 and 4 of the Dowry ProhibitionAct , 1961 ( Act No. 28 of 1961 ) registered at Police Station Banjara Hills , Hyderabad and attempts , abetments and conspiracies in relation to or in connection with the offence or offences committed in the course of the same transaction , or arising out of the same facts .

[F. No. 228/35 /2008 -AVD- II ] CHANDRA PRAKASH, Under Secy.

नई दिल्ली, 23 सितम्बर, 2008

का. आ. 2751 , केन्द्रीय सरकार एत‌द्वारा दिल्ली विशेष पुलिस स्थापना अधिनियम, 1946 ( 1946 का अधिनियम सं. 25 ) की धारा 6 के साथ पठित धारा 5 की उपधारा ( 1 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए गोवा राज्य सरकार , गृह विभाग ( सामान्य) सचिवालय पोरवोरिम गोवा की अधिसूचना सं. 16/7/2008- एचडी (जी ) दिनांक 6 मई , 2008 द्वारा गोवा विधानसभा के सदस्य श्री एट्यनासियो उर्फ बाबूश मोनसरेट के नेतृत्व में एक मोर्चे द्वारा पणजी पुलिस स्टेशन पर हिंसक हमले के मामले के संबंध में पुलिस स्टेशन पणजी में भारतीय दंड संहिता, 1860 ( 1860काअधिनियम सं. 45 ) की धारा 147 , 332 , 323 , 324 , 435 , 325 , 427 , 307 सपतित धारा 120-बी, 148 और 34 के तहत दर्ज ( 1 ) एफआईआर सं. 57/2008, भारतीय दंड संहिता , 1860 ( 1860 का अधिनियम सं. 45 ) की धारा 143, 147 , 148 , 332 , 323 सर्पठित धारा 149 के तहत दर्ज ( 2 ) एफआईआर सं. 58/2008 और भारतीय दंड संहिता, 1860 ( 1860 का अधिनियम सं. 45 ) की धारा 143 , 147 , 148 , 341 , 332 , 427 सपठित धारा 149 के तहत दर्ज ( 3 ) एफआईआर सं. 59/2008 के अधीन अपराधों और उपर्युक्त अपराधों में से एक अथवा अधिक से संबंधित अथवा संसक्त प्रयत्नों, दुष्प्रेरणों और षडयंत्र तथा उसी संव्यवहार के अनुक्रम में किए गए अथवा उन्हीं तथ्यों से उद्द्भूत किसी अन्य अपराध अथवा अपराधों तथा उक्त घटना या इसके संव्यवहार के संदर्भ में अनुबंध । के अनुसार विभिन्न व्यक्तियों द्वारा दायर शिकायतों का भी अन्वेषण करने के लिए दिल्ली विशेष पुलिस स्थापना के सदस्योंकी शक्तियों और अधिकारिता का विस्तर सम्पूर्ण गोवा राज्य पर करती है ।

[फा. सं. 228/34/2008- एवीडी-11 ]

चंद्र प्रकाश , अवर सचिव New Delhi , the 23rd September, 2008 S.O. 2751. In exercise of the powers conferred by sub-section ( 1 ) ofSection 5 read with Section 6 of the Delhi Special Police EstablishmentAct, 1946 (Act No. 25 of1946) , the Central Government with the consent of the State Goverrument ofGoa, Home Department ( General ) Secretariat PorvorimGoa vide Notification No. 16/7/2008 -HD(G)dated 6th May,2008, hereby extends the powers and jurisdiction of the members of the Delhi Special Police Establishment to the whole ofthe State of Goa of investigation of ( 1 ) FIR No.57/2008 under Sections 147, 332, 323 , 324, 435,325,427, 307 readwith 120-B, 148 and 34 ofthe Indian Penal Code, 1860 (Act No. 45 of 1860 ), (2) FIRNo. 58/2008 under Sections 143, 147, 148, 332, 323 read with 149 of the Indian Penal Code, 1860 (Act No. 45 of 1860) and (3 ) FIR No. 59/2008 under Sections 143, 147, 148 , 341 , 332, 427 read with 149 of the Indian Penal Code, 1860 (Act No. 45 of 1860) registered at Police Station Panaji relating to the matter of violent attack of Panaji Police Station by a morcha led by Shri Atanacio alias Babush Monserratte, Member ofLegislative Assembly of Goa and attempts , abetments and conspiracies in relation to or in connection with the offence mentioned above and any other offence or offences committed in the course of the same transaction or arising out ofthe same facts and also the complaints filed by different persons in respect of the same incident or transaction consequent to same incident as perAnnexure- 1 .

[F. No. 228/34/2008 -AVD-II ] CHANDRA PRAKASH, Under Secy.

नई दिल्ली , 26 सितम्बर, 2008

का, आ. 2752.- केन्द्रीय सरकार एतद्‌द्वारा दिल्ली विशेष पुलिस स्थापना अधिनियम, 1946 ( 1946 का अधिनियम सं. 25 ) की धारा 6 के साथ पठित धारा 5 की उपधारा ( 1 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए कर्नाटक राज्य सरकार की अधिसूचना में एचडी 119 सीओडी 2007 दिनांक 10-7-2008 द्वारा प्राप्त सहमति से पुलिस स्टेशन , जालाहली , बंगलौर शहर में भारतीय दंड संहिता की धारा 471 , 420 सपठित धारा 511 के अंतर्गत दर्ज मामला सी.आर. सं. 189/2006 तथा किसी भी अन्य लोकसेवक या उपर्युक्त अपराधों से संबंधित तथा उसी संव्यवहार के अनुक्रम में अथवा उन्हीं तच्चों से उ‌द्भूत किसी अन्य अपराध अथवा अपराधों का अन्वेषण करने के लिए दिल्ली विशेष पुलिस स्थापना के सदस्यों की शक्तियों और अधिकारिता का विस्तार सम्पूर्ण कर्नाटक राज्य पर करती है ।

[फा. सं. 228/65/2008- एकडी-13!

चंद्र प्रकाश, अवर सचिव 5454

THE GAZETTE OF INDIA : OCTOBER 4, 2008 /ASVINA 12, 1930

New Delhi , the 26th September , 2008 S.O. 2752.-- In exercise of the powers conferredby sub - section ( 1 ) of Section 5 read with Section 6 of the Delhi Special Police Establishment Act, 1946 (Ac: No. 25 of 1946), the Central Government with the consent of the State Government of Karnataka , Notification No. HD 119 COD 2007 dated 10-7-2008 hereby extends the powers and jurisdiction of the members of the Delhi Special Establishment for the registration and investigation of case C.R. No. 189/2006 registered in P.S. Jalahalli . Bangalore City U /s . 471, 420 r'w $ 11 IPC against any person in relation to or in connection with said offence or any other offences. committed in the course of same transaction or arising out of the same facts in regard to this case , within the whole State ofKarnataka .

[ F. No. 228/65 /2008 - AVD - II ] CHANDRA PRAKASH, Under Secy.

वित्त मंत्रालय ( वित्तीय सेवाएं विभाग ) नई दिल्ली, 26 सितम्बर , 2008

का. आ. 2753. बैंककारी विनियमन अधिनियम , 1949 (1949का 10 ) की धारा 53 द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए , भारत सरकार, भारतीय रिजर्व बैंक की सिफारिश पर , एतद्वारा घोषणा करती है कि उक्त अधिनियम की धारा 10 की उपधारा ( 1 ) के खण्ड ( ग ) के उपखण्ड ( झ ) के उपबंध पंजाब नैशनल बैंक पर लागू नहीं होंगे , जहां तक उनका संबंध पंजाब नैशनल बैंक के अध्यक्ष एवं प्रबंध निदेशक श्री के. सी . चक्रवर्ती का कृषि वित्त निगम लि. ( एएफसीएल ) के निदेशक मंडल में निदेशक का पदभार ग्रहण करने से हैं ।

[फा. सं. 20/5/2004- बीओ -1 ] जी. बी. सिंह , उप सचिव MINISTRY OF FINANCE (Department of Financial Services) New Delhi, the 20th September , 2008

S.O. 2753. In exercise of the powers conferred by Section 53 ofthe Banking Regulation Act , 1949 ( 10 of 1949 ), the Government of India on the recommendation of the Reserve Bank of India, hereby declare that the provisions of sub -clause ( i ) of clause ( c) of sub- section ( 1 ) of Section 10 of the said Act shall not apply to Punjab National Bank in so far as it relates to taking up directorship of Dr. K.C. Chakraborty, Chairman and Managing Director , Punjab National Bank on the Board of Agricultural Finance Corporation Ltd. (AFCI .) .

[ F. No. 20/5 /2004 - BO - 1 G.. B. SINGH . Dy Secy .

[PART II- SEC. 3 ( ii) ]

विदेश मंत्रालय ( सीपी वी प्रभाग ) नई दिल्ली, ।४ सितम्बर , 2008

का. आ. 2754.-राजनयिक कौसली अधिकारी ( शपथ एवं शुल्क ) अधिनियम , 1948 ( 1948 वा 49 वां ) 2 के अंक ( क ) के अनुसरण में केन्द्रीय सरकार एतद् द्वारा भारत का प्रधान कौंसलावास , बभिन्गहाम में श्री बी. प्रसाद सहायक को 18-9-2008 से सहायक कौंसली अधिकारी कार्य करने हेतु प्राधिकृत करती है ।

[सं. टी -4330/1/2006] प्रीतम लाल , अवर सचिव ( कौंसुलर ) MINISTRY OF EXTERNAL AFFAIRS (CPV Division ) New Delhi , the 18th September , 2008 S.O. 2754. In pursuance of the clause ( ii) of the Section 2 of the diplomatic and Consular Officers ( Oaths and fees) Act, 1948, the Central Government hereby authorize Shri B. Prasad , Assistant to perform the duties of Assistant Consular Officer in the Consulate General of India, Birmingham.

[No.T-4330/ 1/2006] PRITAM LAL, Under Secy. ( Consular) स्वास्थ्य और परिवार कल्याण मंत्रालय नई दिल्ली , 26 सितम्बर , 2008

का.आ. 2755.- केन्द्रीय सरकार राजभाषा ( संघ के शासकीय प्रयोजनों के लिए प्रयोग ) नियम , 1976 के नियम 10 के उपनियम (4 ) के अनुसारण में स्वास्थ्य और परिवार कल्याण मंत्रालय के अन्तर्गत आने वाले निम्नलिखित कार्यालयों को जिसके 80 प्रतिशत से अधिक कर्मचारीवृन्द ने हिन्दी का कार्यसाधक ज्ञान प्राप्त कर लिया है , अधिसूचित करती है :-

1. केन्द्रीय योग एवं प्राकृतिक चिकित्सा अनुसंधान परिषद्, जनकपूरी , नई दिल्ली

2. अखिल भारतीय वाक् श्रवण संसथान , मैसूर

3. क्षेत्रीय स्वास्थ्य एवं परिवार कल्याण कार्यालय , कोलकाता 4. केन्द्रीय यूनानी चिकित्सा अनुसंधान परिषद्, नई दिल्ली 5. क्षेत्रीय अनुसंधान संस्थान ( आयुर्वेद ) , झांसी-284002 6. विमान पत्तन स्वास्थ्य संगठन दिल्ली हवाई अड्‌डा, नई दिल्ली 7. भारतीय उपचर्या परिषद्, कोटला रोड , नई दिल्ली [सं. ई. 11012/1 /94-रा. भा. कार्या. ( हिन्दी -1) ] दोना नाथ पाठक, मुख्य लेखा नियंत्रक 5455

भारत का राजपत्र: अक्तूबर 4 , 2008/आश्विन 12 , 1930

[भाग II- खण्ड 3 ( ii) ]

MINISTRY OF HEALTH AND FAMILY WELFARE New Delhi , the 26th September, 2008 8.O.2755.-In pursuance of sub rule (4) ofRule 10 oftheOfficial Language ( Use of official purposes ofUnion) Rules, 1976, the Central Government hereby notifies the following offices under the Ministry ofHealth and Family Welfare, whereof 80 per cent staff have acquired working knowledge ofHindi :-

1. Central Council of Research in India Yoga & Naturopathy, Janakpuri , New Delhi .

2. All India Institute ofSpeech & Hearing , Mysore.

3. Regional Office of Helath and Family Welfare, Kolkata.

4. Central Council of Research in Unani Medicine, Janakpuri , New Delhi .

5. Regional Institute of Research (Ayurved) , Jhansi -284003 .

6. Airport Health Organisation Delhi Air Port , NewDelhi.

7. IndiaNursing Council , Kotla Road, New Delhi . [No. E. 11012/ 1 /94-O.L.1 . (Hindi -1 ) ] D.N. PATHAK , Chief Controller ofAccounts संचार एवं सूचना प्रौद्योगिकी मंत्रालय

( दूरसंचार विभाग )

नई दिल्ली, 2 सितम्बर , 2008

का.आ. 2756 , जबकि केन्द्र सरकार का यह मत है कि श्री सुभाष गुप्ता, जेटीओ ( सेवानिवृत्त ) , हरियाणा दूरसंचार सर्किल, अम्बाला से संबंधित विभागीय जांच के प्रयोजनार्थ श्री रविन्दर कौशिक, निवासी 128/11 , दमदमा मोहल्ला, कौशिक चौक, झज्जर , हरियाणा को साक्षी के रूप में बुलाना उनसे कोई दस्तावेज मांगना जरूरी है ।

अत. अब केंद्र सरकार एतद्‌द्वारा विभागीय जांच (साक्षी की उपस्थिति और दस्तावेज प्रस्तुत करने संबंधी अनिवार्यता ) अधिनियम, 1972 ( 1972 का 18 ) , की धारा-4 , उप- धारा ( 1 ) के तहत प्रदत्त शक्तियों के प्रयोग में श्री सुन्दरलाल, एजीएम ( पीजीएण्डआई ) - सह- जांच अधिकारी , सीजीएमटी हरियाणा सर्किल का कार्यालय, अंबाला को साक्षी को उपस्थित होने का निर्देश देने संबंधी उक्त अधिनियम की धारा 5 में विनिर्दिष्ट शक्तियों का प्रयोग करने के लिए प्राधिकृत करती है ।

राष्ट्रपति के आदेश से और उनकी ओर से ।

[सं. 8-4/2005- सतर्कता- [ I ] के. के. मिगलानी , उप सचिव ( वीबी ) MINISTRY OF COMMUNICATIONS AND 1.T.

(Department of Telecommunications ) New Delhi , the 2nd September, 2008 S.O.2756.- Whereas the Central Government is of opinion that for the purpose of the Departmental Inquiry relating to Shri Subhash Gupta , JTO, ( Retired) , Haryana Telecom Circle, Ambala it is necessary to summon as witnesses / call for any document from Shri Ravinder Kaushik, Rio 128/11 , Damdma Mohalla, Kaushik Chauk, Jhajjar,Haryana.

Now therefore, in exercise of the powers conferred by sub-section ( 1 ) of Section 4 ofthe Departmental Inquiries (Enforcement of Attendance of Witnesses and Production of Documents ) Act, 1972 (18 of 1972), the Central Government hereby authorizes Shri Sunder Lal , A.G.M. (PG&1) cum - Inquiry Officer , O/o CGMT Haryana Circle, Ambala to exercise the powers specified in Section 5 ofthe said Act in relation to summon a witness .

ByOrder and in the Name ofthe President.

[No. 8-4/2005-Vig. [ I ]

K. K. MIGLANI ,Dy. Secy. (VB) पोत परिवहन , सड़क परिवहन और राजमार्ग मंत्रालय (पोत परिवहन विभाग )

नई दिल्ली, 24 सितम्बर, 2008

का.आ. 2757.-केन्द्रीय सरकार राजभाषा ( संघ के शासकीय प्रयोजनों के लिए प्रयोग ) नियम, 1976 ( यथा संशोधित 1987 ) के नियम 10 के उप- नियम 4 के अनुसरण में पोत परिवहन, सड़क परिवहन और राजमार्ग मंत्रालय , पोत परिवहन विभाग के प्रशासनिक नियंत्रण के अधीन निम्नलिखित कार्यालय में 80 % से अधिक कर्मचारियों द्वारा हिन्दी का कार्यसाधक ज्ञान प्राप्त कर लेने पर उसे एत‌द्धारा अधिसूचित करती है :-

भारतीय अन्तर्देशीय जलमार्ग प्राधिकरण ,

पो-78 , गार्डेन रीच रोड,

कोलकाता-700043

[फा. सं ई -11011/1 /2000 -हिन्दी]

राकेश श्रीवास्तव , संयुक्त सचिव 5456

THE GAZETTE OF INDIA: OCTOBER 4, 2008 /ASVINA 12 , 1930

MINISTRY OF SHIPPING , ROAD TRANSPORT AND HIGHWAYS

(Department ofShipping)

New Delhi , the 24th September, 2008 S.O. 2757. In pursuance of sub rule (4) of the Rule 10 of the Official Language ( Use for the purpose of the Union) Rules , 1976 , ( as amended 1987 ) , the Central Government hereby notifies the following office under the administrative control of the Ministry of Shipping, Road Transport and Highways , Department of Shipping, more than 80% of the staff of which have acquired working knowledge of Hindi :-

Inland Waterways Authority of India, P-78, Garden Reach Road, Kolkata -700043.

[F. No. E- 11011/1 /2000-Hindi ) RAKESH SRIVASTAVA , Jt. Secy.

संस्कृति मंत्रालय

नई दिल्ली, 19 सितम्बर , 2008

का.आ. 2758.-केन्द्रीय सरकार राजभाषा ( संघ के शासकीय प्रयोजनों के लिए प्रयोग ) नियम, 1976 के नियम 10 के उप- नियम (4) के अनुसरण में संस्कृति मंत्रालय के प्रशासनिक नियंत्रणाधीन भारतीय मानव विज्ञान सर्वेक्षण , 27 , जवाहर लाल नेहरू रोड , कोलकाता-700016 के निम्नलिखित कार्यालयों , जिनके ४० प्रतिशत से अधिक कर्मचारीवृन्द ने हिन्दी का कार्यसाधक ज्ञान प्राप्त कर लिया है, को अधिसूचित करती है :-

1. भारतीय मानव विज्ञान सर्वेक्षण , अण्डमान निकोबार क्षेत्रीय केन्द्र, पोर्ट- ब्लेयर-744101

2. भारतीय मानव विज्ञान सर्वेक्षण , पूर्वी क्षेत्रीय केन्द्र, बिल्डिंग नं. 79, सेक्टर-5 , ई. एन. - 9, साल्टलेक सिटी , कोलकाता -700091 |

[सं. 1-1/2008 - हिन्दी ] लव वर्मा, संयुक्त सचिव MINISTRY OF CULTURE

New Delhi , the 19th September , 2008 S.O. 2758.-In pursuance of sub rule (4) ofthe Rule 10 of the Official Language ( Use for official purpose of the Union) Rules , 1976 , the Central Government hereby notifies the following offices of Anthropological Survey of India, 27 , Jawaharlal Nehru Road , Kolkata-700016 under the administrative control ofthe Ministry of Culture , where of more than 80% of the staff have acquired working knowledge ofHindi :

[ PART II-SEC . 3( ii) ] 1. Anthropological Survey of India , Andaman & Nicobar, Regional Office, Port-Blair-744101 .

2. Anthropological Survey of India, Eastern Regional Centre, Bldg. No. 79, Sector - V, FN-9 , SaltlakeCity , Kolkata.

[No. 1-1 /2008-Hindi ] LOV VERMA , JI . Secy.

कृषि मंत्रालय

( कृषि एवं सहकारिता विभाग )

नईदिल्ली , 23 सितम्बर , 2008

का.आ. 2759.-केन्द्रीय सरकार , राजभाषा ( संघ के शासकीय प्रयोजनों के लिए प्रयोग ) नियम, 1976 के नियम 10 के उप-नियम (4) के अनुसरण में कृषि एवं सहकारिता विभाग , कृषि मंत्रालय के संबद्ध कार्यालय वनस्पति संरक्षण , संगरोध एवं संग्रह निदेशालय, फरीदाबाद के निम्नलिखित प्रशासनिक नियंत्रणाधन कार्यालय की जिसके 80 % कर्मचारीवृन्द ने हिन्दी का कार्यसाधक ज्ञान प्राप्त कर लिया है , अधिसूचित करती है :-

केन्द्रीय एकीकृत नाशीजीव प्रबंधन कंन्द्र, "जैविक भवन ", जी.डी. मेटला विलेज , कुतुबुल्लापुर मंडल , हैदराबाद-500055 ।

[सं. 3-6:2004-हिन्दी नीति । उमा गोयल , संयुक्त सचिव MINISTRY OF AGRICULTURE

(Department ofAgriculture and Cooperation) New Delhi , the 23rd September, 2008 S.O. 2759.-In pursuance of sub rule ( 4 ) of Rule 10 of theOfficial Language ( Use for purposes of the Union ) Rules , 1976 , the Central Governinent hereby notifies the following office which is under the administrative control of the Directorate of Plant Protection , Quarantine and Storage, Faridabad , an attached office of the Department ofAgriculture and Cooperation . Ministry of Agriculture . whereof 80% staff have acquired working knowledge of Hindi:

Central Integrated Pest Management Centre, "Jaivik Bhawan " , G.D. Metla Village, Qutubullapur Mandal , Hyderabad-500055.

[No. 3-6/2004- Hindi Neeti| UMA GOEL, Jt. Secy.

[ भाग [ ]- खण्ड 3(ii) ]

5437

भारत का राजपत्र: अक्तूबर 4, 2008/आश्विन 12 , 1930

अन्तरिक्ष विभाग

बेंगलूर , । सितम्बर, 2008

का.आ. 2760,- राष्ट्रपति , संविधान के अनुच्छेद 309 के परन्तुक द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए, और आगे अन्तरिक्ष विभाग कर्मचारी ( वर्गीकरण, नियंत्रण और अपील ) नियम, 1976 में संशोधन करने हेतु निम्नलिखित नियम बनाते हैं-

( 1 ) इन नियमों का संक्षिप्त नाम अन्तरिक्ष विभाग कर्मचारी ( वर्गीकरण, नियंत्रण और अपील ) संशोधन नियम, 2008 है । (2 ) ये तत्काल से प्रवृत्त होंगे ।

2. अन्तरिक्ष विभाग कर्मचारी ( वर्गीकरण , नियंत्रण और अपील ) नियम 1976 में संलग्न विद्यमान अनुसूची में निम्नलिखित विवरण अंत में शामिल किया जाये :-

प्रादेशिक सुदूर संवेदन केन्द्र ( एन.आर.एस.सी. )

पदोंका विवरण

नियुक्ति प्राधिकारी (1)

(2) समूह ख

निदेशक ( i ) वैज्ञानिक व तकनीकी पद

नियंत्रक

( ii ) प्रशासन व अन्य पद

अपीलीय प्राधिकारी शास्ती लगाने वाला सक्षम प्राधिकारी और उसके द्वारा लगाये जाने वाली शास्तियाँ ( नियम 8 के संदर्भ पें)

(4)

(5) (3)

निदेशक

सभी

अध्यक्ष नियंत्रक

निदेशक

सभी

नियंत्रक

(i ) से ( iv)

प्रधान , कार्मिक व

सामान्य प्रशासन

नियंत्रक

सभी

"धान , कार्मिक व

समूह ग

प्रधान , कार्मिक व

सामान्य प्रशासन सामान्य प्रशासन

व. प्रशा. अधिकारी

(i ) से ( iv)

प्रधान, कार्मिक व सामान्य प्रशासन

सभी

व. प्रशा. अधिकारी

व. प्रशा. अधिकारी समूह घ

प्रधान , कार्मिक व सामान्य प्रशासन

[सं. 4/5/2004- IV]

मनोहर एल. वाणियर , उप सचिव टिप्पणी: प्रधान नियम दिनांक 1-4-1976 को भारत के राजपत्र ( असाधारण ) के भाग-11 , खण्ड 3 , उप- खण्ड ( ii ) में सं.का.आ. 270 ( ई ) दि. 1-4-1976 द्वारा प्रकाशित किया गया है और निम्नलिखित द्वारा संशोधन किया गया है

अधिसूचना सं.

क्रम सं.

32. 2/10 ( 32)/76-1

33. 2/10( 32)/76-1

2/10 (27)/76-1

34.

35. 2/7 (5)177-1

का.आ.सं.

दिनांक

780

12-03-1977 10-02-1977

2127

25-06-1977 16-05-1977

2709

27-08-1977 01-08-1977

25-02-1978

585

15-02-1978

1780

17-06-1978 27-05-1978

36 2/7(5)/77-1

2/9 (12)/74-111

37.

07-04-1979

1178

16-03-1979 5458

THE GAZETTE OF INDIA : OCTOBER 4, 2008 /ASVINA 12, 1930

38 9/4 ( 1 )/80-1

[PART II-SEC. 3( ii)] 3

1684

26-05-1980

39. 9/4 ( 1 ) /80- III

21-06-1980

2586

05-09-1980

40. 9/4(1)/80-III

41. 9/4( 1 )/80-1JI

42. 9/4( 1 )/80-111

43. 2/8 ( 1 )/81-1

44. 2/8( 1 )781-1

45. 2/9( 1 )/83-(V)

46. 2/5( 1 )/85-V

27-09-1980

13-10-1980

3299

29-11-1980

3300

29-11-1980

13-10-1980

215

20-12-1980

17-01-1981

28-08-1981

2592

03-10-1981

16-07-1982

3113

04-09-1982

29-07-1985

4280

14-09-1985

510

02-01-1986

47. 2/9 ( 1 ) /83-1 (V)

08-02-1986

511

02-01-1986

48. 2/5 ( 1 )/86 - V

49. 2/5 ( 2)/86-V

08-02-1986

1309

17-03-1986

29-03-1986

20-10-1986

50. 2/5 ( 1 )/90- VI

51. 2/5 (2 )/86 -V ( VI ) (वाल्यू 111.) 52. 2/5 ( 1 ) /91 -VI

53. 2/5( 1 )/95 - V

3874

15-11-1986

01-01-1991

09-02-1991

334

15-11-1991

01-02-1991

23-10-1992

2891

21-11-1992

24-03-1995

54.

55. 2/5 ( 1 )/91 - V

1029

15-04-1995

2856

12-10-1995

28-10-1995

1241

27-03-1995

56. 2/5( 1 )195 -V

20-04-1996

23-12-1997

57. 2/5 ( 1 )/98- V

58. 2/5 ( 1) /98-V

59. 2/5 ( 1 )/98 - V

60. 2/5 ( 1 )/98- V

61. 4/5/1 /20K14 -V

10-01-1998

30-06-2000

1763

05-08-2000

27-12-2000

13-01-2001

254

24-01-2001

10-02-2001

18-03-2004

804

28-03-2004

22-06-2005

62.

4/5/1 /2004- V

4/5/ 1 / 2004- [ V

63.

31-01-2006

20-11-2007

DEPARTMENT OF SPACE

Bangalore, the 1st September , 2008

S.O. 2760. In exercise of the powers conferred by the proviso to Article 309 of the Constitution , the President hereby makes the following rules further to amend the Department of Space Employees ' ( Classitication . Control and Appeal Rules, 1976, namely:-

( 1 ) These rules may be called the Department of Space Employees ' ( Classification , Control and Appeal ) Amendment Rules , 2008.

5459

भारत का राजपत्र : अक्तूबर 4, 2008/आश्विन 12 , 1930

[भाग -खण्ड 3(ii) ]

(2) They shall come into force with immediate effect.

2. In the existing Schedule appended to the Department ofSpace Employees ' (Classification , Control and Appeal) Rules, 1976, the following statement shall be included at the end:-

National Remote Sensing Centre (NRSC)

Description ofpost

Appointing Authority

(2)

(1)

GroupB

Director

(i) Scientific& Technical posts

Controller (ii) Administrative and other posts

Appellate Authority Authority competent to impose penalties and penalties which it may impose (with reference toRule 8)

(5)

(4)

(3)

Chairman

All

Director

Director Controller

All (i) to ( iv)

Controller

Head, Personnel

andGeneral

Administration

GroupC

Controller

All

Head, Personnel

andGeneraj

Administration

Head, Personnel and General Administration GroupD

(i) to ( iv)

Sr. Administrative Officer :

Head, Personnel andGeneral Administration Sr. Administrative All Officer

Sr. Administrative Officer

Head, Personnel and General Administration

[No.4/5 / 1 /2004-1V]

MANOHAR L. VANNIAR, Dy. Secy.

Note:The Principal rules were published vide No. S.O. 270( E ) dated 1-4-1976 in the Gazette of India (Extraordinary) Part - 11 , Section-3 Sub-Section ( ii ) dated 1-4-1976 and have been subsequently amended by:-

NotificationNo.

Sl. No.

2/10 (32)/76-1

32.

33. 2/10 (32)/76-1

34. 2/10(27)/76-1

35. 2/7(5)/77-1

2/7(5)177-1

36.

37. 2/9 (12)/74- III

9/4(1 )/80-111

38.

39. 9/4(1 )/80- Ш

40. 9/4(1 )/80- III

41. 9/4 ( 1 )/ 80 -ПІ

42. 9/4(1 )/80- III

43. 2/8(1 )/81-1

3631 G1/2008-2

Date

S.O. No.

Date

780

10-02-1977

25-06-1977

2127

16-05-1977

27-08-1977

2709

01-08-1977

25-02-978

585

15-02-1978

1780

17-06-1978 27-05-1978

1178

17-04-1979

16-03-1979

1684

21-06-1980 26-05-1980

2586

27-09-1980 05-09-1980

3299

29-11-1980 13-10-1980

3300

29-11-1980 13-10-1980

215

17-01-1981 20-12-1980

2592

03-10-1981

28-08-1981 5460

THE GAZETTE OF INDIA: OCTOBER 4, 2008 /ASVINA 12 , 1930

44, 2/8 ( 1 )/81-1

45. 2/9 ( 1 )/83- (V)

46. 2/5( 1 )/85 - IV

47. 2/9 ( 1 )/83-1 (V)

48. 2/5 ( 1 )/86 - V

49. 2/5(2)/86-V

50. 2/5 (1 ) 90 -VI

51 . 2/5 (2 )/ 86 -V (VI ) (Vol . III ) 52. 2/5( 1 )/91 -VI

53. 2/5( 1 )/95 -V

54. 2/5 ( 1 )/91 -V

55. 2/5 ( 1 )/91 -V

56. 2/5(1 )/95 -V

57. 2/5 ( 1 ) /98 -V

58. 2/5 ( 1 )/98-V

59.

2/5 ( 1 )/98 -V

60. 2/5( 1 )98 -V

61. 4/5/1/2004-V

62. 4/5/1/2004-V

63. 4/5/1/2004-TV

[ PART 1 ] -Six . 3 ( ii ) ] 3

3113

16-07-1982

04-09-1982

4280

14-09-1985

29-07-1985

02-01-1986

510

08-02-1986

511

02-01-1986

08-02-1986

1309

17-03-1986

29-03-1986

20-10-1986

3874

15-11-1986

01-01-1991

09-02-1991

334

15-11-1991

01-02-1992

23-10-1992

2891

21-11-1992

1029

24-03-1995

15-04-1995

2856

12-10-1995

28-10-1995

27-03-1996

1241

20-04-1996

23-12-1997

10-01-1998

1763

30-06-2000

05-08-2000

27-12-2000

13-01-2001

254

24-01-2001

10-02-2001

804

18-03-2004

28-03-2004

22-06-2005

31-01-2006

20-11-2007

कोयला मंत्रालय

नई दिल्ली, 25 सितम्बर , 2008

का.अ. 2761, कञ्द्रीय सरकार को यह प्रतीत होता है कि इससे उपाबद्ध अनुसूची में उल्लिखित भूमि में कोयला अभिप्राप्त किये जानं की संभावना है ।

अधः, अब , केन्द्रीत कर कोयला धारक क्षेत्र ( अर्जन और विकास ) अधिनियम, 1957 ( 1957 का 2( 1 ) ( जिसे इसमें इसके पश्चात् उक्त अधिनियम कहा गया है । की ए को उपायों का प्रयाग करते हुए लिए पूर्वेक्षण करने के अपने आशय को सूचन

इस अधिसून को अनादारीख 18 जून , 2008 का निरीक्षण , कलेक्टर , रायगढ़ ( छत्तीसगढ़ के कायमसिल ह 700001 के कार्यालय पें या साऊथ ईस्टर्न कोलफील्ड्स लिपिटे राजापुर 495006 ( नलय में किया जा सकता है ।

( 1 ) में इस अधिसूचना के अन्तर्गत নির উরুল প্রথিবিদ । की निर्दिष्ट सभी नक्शों, चारों और अन्य के प्रकाशन कनै तान्य भीतर भारसाधक अधिकारी या विभागाध्यक्ष ( राजम्व अनुभाग ) साऊथ ईस्टनं कालफील्ड्स लिमिटेड, सीपत रोड , विलासपुर -495006 ( छत्तीसगढ़ ) कां नेजेंगे । 5461 [ भाग [ 1 - खण्ड 3 ( ii ) ]

भारत का राजपत्र : अक्तूबर 4, 2008/ आश्विन 12, 1930

अनुसूची

बिजारी खुली खदान ब्लाक , रायगढ़ क्षेत्र

जिला-रायगढ़ , छत्तीसगढ़

रेखांक संख्या- एसईसीएल/ बीएसपी / जीएम ( पीएलजी )/ भूमि/319 तारीख 18 जून , 2008 ( पूर्वेक्षण के लिए अधिसूचना भूमि दर्शाते हुए) (क ) राजस्व भूमि:-

टिप्प्ण

क्षेत्र

जिला

पटवारी

तहसील

सेटेल्मेन्ट

ग्राम का नाम

हेक्टर में

नम्बर

हल्का नम्बर

क्रम संख्या

भाग 228

167.00

बिजारी

रायगढ़

घड़घोड़ा

भाग

69.00

2 पोरडा

रायगढ़

192

236.00 हेक्टर (लगभग ) या 583.156 एकड़ ( लगभग)

कुल क्षेत्र:-

(ख) वन भूमि:-

रेन्ज

खण्ड

क्षेत्र

वन का प्रकार

वन का नाम

हेक्टरमें

क्रम संख्या

भाग

11.23

बिजारी

रायगढ़

आरेन्ज फिल्ड

घड़घोड़ा

11.23 हेक्टर ( लगभग ) या 27.749 एकड़ ( लगभग ) कुल क्षेत्र:-

कुल योग ( क +ख ) 236.00 + 11.23 247.23 हेक्टर (लगभग ) या 583.156 + 27.749 610.905 एकड़ ( लगभग )

सीमा वर्णन :-

क-ख

रेखा ग्राम बिजारी और रूमकेरा की संयुक्त सीमा पर बिन्दु ' क ' से आरंभ होती है और ग्राम बिजारी से गुजरती हुई बिन्दु 'ख' पर मिलती है ।

ख-गं

रेखा ग्राम बिजारी से गुजरती हुई ग्राम बिजारी एवं पोरडा की संयुक्त सीमा में ' ग ' बिन्दु पर मिलती है । रेखा ग्राम विजारी एवं पोरडा की भागतः संयुक्त सोमा से गुजरती हुई बिन्दु ' घ ' पर मिलती है ।

घ-उ - च-छ रेखा ग्राम पोरडा, बिन्दु से गुजरती हुई ग्राम पोरडा- रूमकेरा की संयुक्त सीमा पर बिन्दु ' छ ' पर मिलती है । छ-ज

रेखा ग्राम पोरडा-- रूमकेरा की भागतः संयुक्त सीमा से गुजरती हुई ग्राथ पोरडा, रूमकेरा एवं "बेजारी की सीमा के जंक्शन पर बिन्दु ' ज ' पर मिलती है ।

ज-क

रेखा ग्राम बिजारी-- रूमकेरा की संयुक्त सीमा से गुजरती हुई आरंभिक बिन्दु ' क ' पर मिलती है ।

[फा. सं. 43015/8/2008 - पीआरआईडब्ल्यू-1 ]

एम. शहाबुद्दीन , अवर सचिव

MINISTRY OF COAL

New Delhi , the 25th September, 2008

S.O. 2761. Whereas , it appears to the Central Government that Coal is likely to be obtained from the lands- in the locality mentioned in the Schedule hereto annexed;

Now, therefore, in exercise of the powers conferred by sub- section ( i ) of Section 4 of the Coal Bearing Areas (Acquisition and Development) Act , 1957 (20 of 1957 ) , ( hereinafter referred to as the said Act ) , the Central Government herebygives notice of its intention to prospect for coal therein;

The plan bearing Number SECL/BSP/GM (Plg )/ Land/319 dated the 18th June , 2008 of the area covered by this notification canbe inspected at the office ofthe Collector, Raigarh (Chhattishgarh ) or at the office of the Coal Controller, 1.Council House Street, Kolkatta -700001 or at the office ofthe South Eastern Coalfields Limited ( Revenue Section ) , Seepat Road, Bilaspur-495006 (Chhattisgarh ) .

5462

THE GAZETTE OF INDIA : OCTOBER 4, 2008/ ASVINA 12, 1930

[PART II-SEC . 3 ( ii) ) All persons interested in the land covered by this notification shall deliver all maps , Charts and other documents referred to in sub- section ( 7) of Section 13 of the said Act to the Officer Incharge or Head of the Department (Revenue Section) , South Eastern Coalfick's mited , Seepat Road, Bilaspur-495006 (Chhattisgarh ) , within ninety days from the date ofpublication of this notificatio...ne Official Gazette .

SCHEDULE

BIJARI OCM BLOCK, RAIGARHAREA

District-Raigarh, Chhattisgarh

Plan bearing No. SECL/ BSP /CM ( P /Land/319 dated the 18th June, 2008 ( showing the land notified for prospecting) .

A. Revenue Land :

Tahsil

District

Remarks Name of village Settlement

SI. No.

No.

Patwari halka number

Area in hectares

228

167.00

Bijari

Part

Raigarh

Gharghoda

192

Porda

69.00

Part

Raigarh

Gharghoda

Total: 236.00hectares ( Approximately )

OR583.156 acres (Approxunately)

B. Forest Land:

Name of Forest

Division

Remarks Type of Forest

Range

SI . No.

Area in hectares

1 .

11.23

Part Bijari

Orange fields

Gharghoda Raigarh

Total : 11,23 hectares (Approximately) OR 27.749 астеs (Approximately)

Grant Total (A+ B ) -236.00 + 11,23-247.23 hectares (Approximately) OR583.156 + 27.749-610.905 Acres (Approximately)

BOUNDARY DESCRIPTION :-

A-B

Linc starts from point A ' on the common boundary of village Bijari-Rumkera and passes through village Bijari and meets at point 'B ' .

B-C

Line passes through village Bijari and meets at point ' C ' on the common boundary of village Bijari Porda .

C-D Line passes along the partly common boundary of village Bijari- Porda and meets at point D' .

D- E-F-G

Line passes through village Porda and meets at point 'G ' on the common boundary of villages Porda- Runkera,

Linepasses along partly common boundary of village Porda- Rumkera and meets at point 'H ' on the junction ofboundary of villages Bijari-- Rumkera- Porda

H-A

[.inc passes along common boundary of villages Bijari -- Rumkera and meets at starting point A.

[F. No. 43015/ 8/2008 -PRIW - 11

M. SHAHABUDEEN, Under Secy.

नई दिल्ली, 25 सितम्बर , 2008

1.32762 मेन्द्रीय सरकार को यह प्रतीत होता है कि इससे उपाबद्ध अनुसूची में उल्लिखित भूमि में कोयला अभिप्राप्त किये जाने की संभ्झतन्ग है

अतः , अर्थ , कंन्द्राय सरकार , कोयला धारक क्षेत्र (अर्जन और विकास ) अधिनियम , 1957 ( 1957 का 20 ) ( जिसे इसमें इसके पश्चात् उक्त अधिनियम कहा गया है ) कोभको उत्त शक्तियों का प्रयोग करते हुए , उस क्षेत्र में कोयले का पूर्वेक्षण करने के अपने आशय की सूचना देती ।

इस अधिसूचना के अन्तर्गत आनेवाले प्रभाग ) , सेन्ट्रल माइन प्लानिंग कोलकाता के कार्यालय में या जी./ 8734 तारीख 10 जून , 2008 का निरीक्षण मुख्य महाप्रबंधक ( गयेषण डिजाइन इंस्टीट्यूडलेस , कॉके रोड , रॉची या कोयला नियंत्रक , । , काउंसिल हाऊस स्ट्रीट , कलक्য়ে, সত্য মারে कार्यालय में किया जा सकता है । 5463

भारत का राजपत्र : अक्तूबर 4, 2008/ आश्विन 12, 1930

[ भाग II- खण्ड 3 (ii) )

इस अधिसूचना के अन्तर्गत आने वाली भूमि में हितबद्ध सभी व्यक्ति उक्त अधिनियम की धारा 13 की उपधारा ( 7 ) में निर्दिष्ट सभी नक्शों, घाटों और अन्य दस्तावेओं को इस अधिसूचना के प्रकाशन की तारीख से नब्बे दिन के भीतर , मुख्य महाप्रबंधक ( गवेषण प्रभाग ) , सेन्ट्रल माइन प्लानिंग एण्ड डिआइन इंस्टीट्यूट, गॉडधाना प्लेस , कॉके रोड, राँची को भेजेंगे ।

अनुसूची

भरतवाड़ा ब्लॉक , काम्पती कोयला क्षेत्र

जिला-मागपुर , महाराष्ट्र

रेखांक संख्यांक डीजी/ 8734 तारीख 10 जून , 2008

जिला ग्राम

थाना तहसील पटवारी सर्किल संख्या क्रम सं

2 1.

नागपुर

नागपुर(ग्रा. )

बेलवाड़ा

12 2.

नागपुर भरतवाड़ा

नागपुर( ग्रा. )

नागपुर 3.

नागपुर ( ग्रा. )

ब्राह्मणवाड़ा

12 चकीक्षापा

नागपुर 4.

नागपुर ( ग्रा. )

नागपुर 5.

नागपुर(ग्रा. )

भहुरजारी

12 6

नागपुर

नागपुर(ग्रा. )

पितेसुर

नागपुर गोधानी

नागपुर( ग्रा. ) 12

कुल

सीमा विवरण

क-ख

क्षेत्रफल हेक्टेयर में

क्षेत्रफल एकड़ में

132.0

पाग

326.0

भाग

376.0

929.0

भाग

44.0

109.0

217.0

88.0

भाग

415.0

168.0

613.0

माग

248.0

136.0

भाग

336.0

11920 (लगभग)

2945.00 (लगभग)

रेखा, ब्राह्मणवाड़ा ग्राम के " क " बिन्दु से आरम्भ होती है और बेलवाड़ा ग्राम के उत्तरी भाग से गुजरती हुई बिन्दु ' ख' पर मिलती है ।

ख-ग

रेखा , भरतवाड़ा ग्राम के उत्तर - पूर्व की ओर मुड़कर सीधी चकीखापा ग्राम के दक्षिणी- पश्चिमी भाग से गुजरती हुई गोधानी ग्राम . में ' ग ' पर मिलती है ।

म-घ

रेखा पितेसुर ग्राम की ओर मुड़ती है और बिन्दु ' घ ' पर मिलती है ।

घ-ङ

रेखा महुरजारी ग्राम की ओर मुड़कर बिन्दु ' ङ ' पर मिलती है ।

ङ-क

रेखा, दिल्ली- नागपुर मुख्य रेल मार्ग को पार करती हुई ब्राह्मणवाड़ा ग्राम के' क ' बिन्दु पर मिलती है ।

[फा. सं. 43015/07/2008- पीआरआईडब्ल्यू-1 ]

एम. शहाबुद्दीन , अवर सचिव

NewDelhi, the 25th September, 2008

S.O.2762-Whereas, it appears to the Central Government that Coal is likely to be obtained from the lands in the locality mentioned in the Schedule hereto annexed;

Now, therefore , in exercise of the powers conferred by sub-section ( 1 ) of Section 4 of the Coal Bearing Areas (Acquisitions and Development ) Act, 1957 (20 of 1957 ), (hereinafter referred to as the said Act ) , the Central Government hereby gives notice of its intention to prospect for coal therein,

The plan number DG/8734 dated the 10th June, 2008 of the area covered by this notification can be inspected at theOffice ofChiefGeneral Manager ( Exploration Division ), Central Mine Planning and Design Institute, Gondwana Place, Kanke Road , Ranchi or at the Office ofthe Coal Controller , 1, Council House Street, Kolkata or at the Office of the District Collector, Nagpur , Maharashtra .

All persons interested in the land covered by this notification shall deliver all maps , charts and other documents referred in sub - section (7) of Section 13 ofthe said Act to the Chief General Manager (Exploration Division ), Central Mine Planning and Design Institute , Gondwana Place, Kanke Road, Ranchi within ninety days from the date ofpublication ofthis notification.

5464

[PARI --SFC . 3 ( ii ) ]

THE GAZETTE OF INDIA : OCTOBER 4, 2008/ASVINA 12, 1930

SCHEDULE

BHARATWARA BLOCK, KAMPTEE COALFIELD,

DISTRICT NAGPUR, MAHARASHTRA

Plan bearing number DG / 8734 dated the 10th June , 2008

Tehsil

District

Village

SI . No.

Patwari CircleNumber 1 . Bailwara

Nagpur

NagpurRural

2. Bharatwara

NagpurRural

Nagpur

2 3.

Nagpur Rural

Bhraunawara

Nagpur

12 Chakikhapa Nagpur Rural .

Nagpur 5.

4 Mahurzari Nagpur Rural

Nagpur 6

12 Pitesur

Nagpur Rural

Nagpur 7. Godhani

NagpurRural 12

Nagpur

Total

BOUNDARY DESCRIPTION

Remarks

Area in Hectares

Area inAcres

326.0

132-0

Part 929.0

376-0

Part

109.0

Part

140

217.0

88-0

Part

415.0

168-0

Part

613.0

2.684 )

Part

136-0

336.0

Part 2945.00

1192-0

(approximately ) ( approximately )

A-B The Line starts at point 'A ' in village Brahmanwara and passes through Northern part of Bailwara village and meets point 'B ' .

B-C The Line turn and crossed North-Eastern part of village Bharatwara and south western part of village Chakikhapa and meets points ' C' in Goghani village.

C-D The Line turn toward Pitesur village and meets point D' .

D-E The Line turn and meets point ' E' in Mahurzari village.

E-A The Line passes through and crossed Main Railway line from Delhi to Nagpur in Mahurzari village and meets point' A' in Brahmanwara village.

आदेश

[ F. No 43015/7/2008 -PRIW - 11 M. SHAHABUDEEN . Under Secy.

नई दिल्ली, 29 सितम्बर , 2008

का.आ. 2763.-कोयला धारक क्षेत्र ( अर्जन और विकास ) अधिनियम 1957 ( 1957 का 20 ) ( जिसे इसमें इसके पश्चात् उक्त अधि नियम कहा गया है ) की धारा 9 की उप - धारा ( 1 ) के अधीन जारी भारत के राजपत्र , भाग -11 , खंड 3 , उप- खंड ( ii ) तारीख 15 सितम्बर , 2007 मेंप्रकाशित भारत सरकार के कोयला मंत्रालय को अधिसूचना संख्यांक का. आ. 2587 , तारीख 12 सितम्बर, 2007. पर उक्त अधिसूचना से संलग्न अनुसूची में वर्णित भूमि और ऐसी भूमि जिसे इसमें इसके पश्चात् उक्त भूमि कहा गया है , के प्रकाशन में था उस पर के सभी अधिकार , उक्त अधिनियम की धारा 10 की उप - धारा ( 1 ) के अधीन, सभी विल्लंगमों से मुक्त होकर , आत्यंतिक रूप से केन्द्रीय सरकार में निहित हो गए थे;

और , केन्द्रीय सरकार का यह समाधान हो गया है कि वेस्टर्न कोलफील्ड्स लिमिटेड , नागपुर ( जिसे इसमें इसके पश्चात् सरकारी कम्पनी कहा गया है ) , ऐसे निबंधनों और शर्तों का अनुपालन करने के लिए तैयार है , जो केन्द्रीय सरकार इस निमित अधिरोपित करना उचित समझे;

अतः , अब , केन्द्रीय सरकार , कोयला धारक क्षेत्र ( अर्जन और विकास ) अधिनियम, 1957 की धारा 11 की उप - धारा ( 1 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए , यह निर्देश देती है कि इस प्रकार निहित भूमि और उक्त भूमि में या उस पर के सभी अधिकार, तारीख 15 सितम्बर , 2007 से केन्द्रीय सरकार में इस प्रकार निहित बने रहने के बजाए , निम्नलिखित निबंधनों और शर्तों के अधीन रहते हुए , सरकारी कंपनी में निहित होंगे , अर्थात्:-

1. सरकारी कम्पनी , उक्त अधिनियम के उपबंधों के अधीन यथा अवधारित प्रतिकर , व्याज , नुकसानियों और वैसी ही मदों की बाबत किए गए सभी संदायों की केन्द्रीय सरकार को प्रतिपूर्ति करेगी । 2. शर्त ( 1 ) के अधीन कम्पनी द्वारा केन्द्रीय सरकार को संदेय रकमों का अवधारण करने के प्रयोजन के लिए एक अधिकरण का गठन किया जाएगा और ऐसे किसी अधिकरण और अधिकरण की सहायता के लिए नियुक्त व्यक्तियों के संबंध में उपगत सभी व्यय , सरकारी कम्पनी द्वारा वहन किए जाएंगे और इस प्रकार निहित उक्त भूमि में या उस पर के अधिकार के लिए या उसके संबंध में अपीलों आदि जैसी सभी विधिक कार्यवाहियों की बाबत उपगत , सभी व्यय भी , सरकारी कम्पनी द्वारा वहन किए जाएँगे ।

3. सरकारी कम्पनी , कंन्द्रीय सरकार या उसके पदधारियों की ऐसे किसी अन्य व्यय के संबंध में क्षतिपूर्ति करेंगी , जो इस प्रकार निहित उक्त भूमि में या उस पर कं अधिकारों के बारे में केन्द्रीय सरकार या उसके पदधारियों द्वारा या उनके विरुद्ध किन्हीं कार्यचाहियों के संबंध में आवश्यक हों । 5465 [भाग II- खण्ड ( 1) ]

भारत का राजपत्र: अक्तूबर 4, 2008/आश्विन 12, 1930

4 सरकारी कम्पनी को केन्द्रीय सरकार के पूर्व अनुमोदन के बिना उक्त भूमि और अधिकारों को किसी अन्य व्यक्ति को अंतरित करने की शक्ति नहीं होगी; और

5. सरकारी कम्पनी , ऐसे निर्देशों और शर्तों का पालन करेगी , जो केन्द्रीय सरकार द्वारा , जब कभी आवश्यक हो, उक्त भूमि के विशिष्ट क्षेत्रों के लिए दिए जाएँ या अधिरोपित किए जाएँ ।

[सं. 43015/22/2004- पीआरआईडब्ल्यू-1 (खण्ड- II ) ]

एम. शहाबुद्दीन , अवर सचिष

ORDER

New Delhi , the 29th September, 2008

S.O. 2763. Whereas, on the publication of the notification of the Government of India, in the Ministry ofCoal, number S.O.2587 dated the 12th September, 2007, published in the Gazette of India, Part- II, Section 3 , Sub-Section (ii) , dated the 15th September, 2007, issued under sub -section ( 1 ) of Section 9 ofthe Coal Bearing , Areas (Acquisition and Development ) Act, 1957 (20 of 1957) ( hereinafter referred to as the said Act) , the land and all rights in or over such land described in the Schedule appended to the said notification (hereinafter referred to as the said lands ) vested absolutely in the Central Govemment free from all encumbrances under sub- section ( 1 ) of Section 10 ofthe said Act;

And, whereas , the Central Government is satisfied that the Western Coalfields , Limited , Nagpur , (hereinafter referredto as the Government Company) is willingto comply with such terms and conditions as the Central Government thinks fit to impose in this behalf;

i Now, therefore , in exercise of the powers conferred by sub- section ( 1 ) of Section 11 of the Coal Bearing Areas (Acquisition and Development) Act, 1957 , the Central Government hereby directs that the said lands and rights in or over the said lands so vested shall with effect from the 15th September, 2007 instead of continuing to so vest in the Central Govemment, shall vest in the Government Company , subject to the following terms and conditions , namely :-

1. The Government Company shall reimburse to the Central Government all payments made in respect ofcompen- sation , interest, damages and the like , as determined under the provisions of the said Act; 2. A Tribunal shall be constituted for the purpose of determining the amounts payable to the Central Government by theGoverrunent Company under conditions ( 1 ) and all expenditure incurred in connection with any such Tribunal and persons appointed to assist the Tribunal shall be borne by the Government Company and similarly, all expenditure incurred in respect of all legal proceedings like appeals , etc. , for or in connection with the rights , in or over the said lands, so vesting , shall also be borne by the Government Company:

3. The Government Company shall indemnify the Central Government or its officials against any other expendi- ture that maybe necessary in connection with any proceedings by or against the Central Government or its officials, regarding the rights in or over the said lands so vesting;

4. The Government Company shall have no power to transfer the said lands and the rights to any other person without the previous approval ofthe Central Government ; and

5. The Govemment Company shall abide by such direction and conditions as may be given or imposed by the CentralGovernment for particular areas of the said tands , as and when necessary.

[No.43015/22/2004 -PRIW - I ( Vol. II)] M. SHAHABUDEEN, Under Secy.

नई दिल्ली , 29 सितम्बर, 2008

का.आ. 2764, केन्द्रीय सरकार को प्रतीत होता है कि इससे उपाबद्ध अनुसूची में उल्लिखित परिक्षेत्र की भूमि में कोयला अभिप्राप्त किये जाने की संभावना है ।

अतः, अब , केन्द्रीय सरकार , कोयला धारक क्षेत्र ( अर्जन और विकास ) अधिनियम , 1957 ( 1957 का 20 ) की धारा 4 की उपधारा ( 1 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए , उस भूमि में कोयले का पूर्वेक्षण करने के अपने आशय की सूचना देती है । इस अधिसूचना के अन्तर्गत आने वाले रेखांक सं. सी-1 ( ई ) III/जे आ/762-0608 तारीख 17 जून , 2008 का निरीक्षण , वेस्टर्न कोलफीड्स लिमिटेड ( राजस्व विभाग ) , कोल ईस्टेट , सिविल लाईन्स, नागपुर -440001 ( महाराष्ट्र ) के कार्यालय में या मुख्य महाप्रबंधक (एक्सप्लोरेशन विभाग ) , केन्द्रीय खान योजना और डिजाईन संस्थान , गोंडवाना पॅलेस, कॉके रोड़, राँची ( झारखंड ) के कार्यालय में या कोयला नियंत्रक , 1 , काउंसिल हाऊस स्ट्रीट , कोलकाता के कार्यालय में या जिला कलेक्टर, चंद्रपुर ( महाराष्ट्र ) के कार्यालय में किया जा सकता है । इस अधिसूचना के अन्तर्गत आने वाली भूमि में हितबद्ध सभी व्यक्ति उक्त अधिनियम की धारा 13 की उपधारा ( 7 ) में निर्दिष्ट सभी नक्शों, चाटों और अन्य दस्तावेजों को इस अधिसूचना के राजपत्र के प्रकाशन की तारीख से 90 दिनों के भीतर , वेस्टर्न कोलफीइस लिम्मिटेड (राजस्व विभाग ) , कोल ईस्टेट , सिविल लाईन्स, नागपुर-440001 ( महाराष्ट्र) को भेजेंगे । 5466

THE GAZETTE OF INDIA: OCTOBER 4 , 2008 / ASVINA 12, 1930

अनुसूची

[PART II-SEC. 3 (ii) ]

दुर्गापुर डीप एक्सटेंशन ओपत्रकास्ट ब्लॉक

चंद्रपुर क्षेत्र

जिला-चंद्रपुर ( पहाराष्ट्र )

[ योजना सं. सी- । ( ई ) 111/जे आर/762-0608 तारीख 17 जून, 2008 ]

तहमील

पटवारी सर्किल

क्रम ग्राम का नाम सं

संख्या

1. सिनाला

चंद्रपुर 2.

चंद्रपुर चंद्रपुर प्रभाग , चंद्रपुर आरक्षित वन

कुल क्षेत्र:

सीमा विवरण

क-ख

जिला

टिप्पणी

क्षेत्रफल (लगभग)

हेक्टर एकड़

730.90 भाग

चंद्रपुर

115.40 285.16 भाग

चंद्रपुर

1016.06 ( लगभग )

411.18 (लगभग)

रेखा बिन्दु" क " से आरम्भ होती है और नाले के केन्द्र बिंदु से होते हुए ग्राम सिनाला और ग्राम मसाला तुकुम की सम्मिलित ग्राम सीमा से होकर जाती है फिर ग्राम वारवर और ग्राम सिनाला की सम्मिलित ग्राम सीया के साथ- साथ होकर जाती है और बिन्दु ' ख' पर मिलती है । ख-ग रेखा ग्राम सिनाला तथा आरक्षित वन कम्पार्टमेंट संख्या 349 , 400 की सम्मिलित ग्राम सीमा से होकर जातो है और बिन्दु ' ग ' पर मिलती है । ग-घ रेखा कप्पार्टमेंट संख्या 400 , 401 से होकर जाती है और बिन्दु ' घ' पर मिलती है ।

घ-ड रेखा कम्पार्टमेंट संख्या 400 , 401 से होकर जाती है और ग्राम सिनाला तथा आरक्षित वन की सम्मिलित ग्राम सीमा को पार करती हुई ग्राम सिनाला से होकर आगे बढ़ती है और बिन्दु ' ङ' पर मिलती है ।

ङ-च रेखा ग्राम सिनाला से होकर आगे बढ़ती है और ग्राम सिनाला तथा आरक्षित वन की सम्मिलित सीमा को पार करती हैं फिर कम्पार्टमेंट संख्या 4(x) से होकर आगे बढ़ती है और ग्राम दुर्गापुर तथा आरक्षित वन की सम्मिलित सीमा पर ' च' बिन्दु पर मिलती है ।

च-क रेखा ग्राम दुर्गापुर तथा आरक्षित वन कम्पार्टमेंट संख्या 40%) की सम्मिलित सीमा से होकर आगे बढ़ती है और ग्राम दुर्गापुर तथा प्राम सिनाला की सम्मिलित सीमा को पार करती है फिर ग्राम सिनाला से होकर आगे बढ़ती है और आरंभिक बिन्दु ' क ' पर मिलती है ।

[-संख्या 4.30015/ 13/2008- पी. आर. आई. डब्ल्यू- ।।

एम, शहाबुद्दीन , अवर सचिव

New Delhi , the 29th September , 2008

S.O. 2764.-Whereas, it appears to the Central Government that Coal is likely to be obtained from the lands in the locality mentioned in the Schedule hereto annexed ;

Now, therefore, in exercise of the powers conferred by sub- section ( 1 ) of Section 4 of the Coal Bearing Areas (Acquisition) and Development ) Act, 1957 (20 of 1957 ) , the Central Government hereby gives notice of its intention to prospect for coat therein;

The plan bearing number C- 1 ( E) III / JR / 762-0608 dated the 17th June , 2008 of the area covered by this notification canbe inspected in the office of the Western Coalfields Limited ( Revenue Department ) , Coal Estate, Civil Lines , Nagpur- 440001 ( Maharashtra ) or at the office of the Chief General Manager (Exploration Division ) . Central Mine Planning and design Institute , Gondwana Place, Kanke Road, Ranchi or at the office of the Coal Controller , 1 , Council House Street , Kolkata or at the office of the District Collector, chandrapur ( Maharashtra) .

All persons interested in the lands covered by this notification shall deliver alt maps , Charts and other documents referred to in sub - section (7) of Section 13 of the said Act to the Officer on Special Duty ( IR ) , Western Coalfields Limited , Revenue Department , Coal Estate, Civil Lines , Nagpur- 440001 ( Maharashtra) within ninety days from the date of publica- tion ofthis notification in the Official Gazette.

SCHEDULE

DURGAPUR DEEP EXTENSION OPENCAST BLOCK

CHANDRAPUR AREA

DISTRICT CHANDRAPUR( MAHARASHTRA)

[Plan number C - 1 ( E ) III / JR/ 762-0608 dated the 17th June , 2008 ]

Tehsil

Patwari circle number

Sl . No.

Name of Village

בן

I. Sinhala

District

Remarks

Area in Acres

Area in hectares

Part

730.90

295.78

Chandrapur

Chandrapur { भाग II- खण्ड 3 ( ii) ]

5467

भारत का राजपत्र : अक्तूबर 4, 2008/आश्विन 12 , 1930

8 5

115.40

Part

285.16

Chandrapur

2. Chandrapur

Division Chandrapur

Reserve Forest

Boundarydescription:-

Total area

411.18hectares ( approximately) or 1016.06 acres ( approximately) A-B Line starts from point ' A' and passes through common village boundary of villages Sinhala and Masala Tukum through Center point of Nallah then proceeds along the common boundary of villages Warwat and Sinhala and meets at point 'B' .

B-C Line passes through common village boundary ofvillage Sinhala and Reserve Forest Compartment No. 399 , 400 and meets at points ' C' .

C-D Line passes through Compartment No. 400, 401 and meets at point 'D' .

DE Line passes through Compartment No. 401 , 400 and crosses the common boundaryof village Sinhala and reserve forest then passes through village Sinhala and meets at point 'E' .

EF Line passes through village Sinhala and crosses the common boundary ofvillage Sinhala and reserve forest then passes through Compartment No. 400 and meets on common boundary ofReserve Forest and village Durgapur at Point 'F' .

F-A Line passes through common boundary of village Durgapur and Reserve Forest Compartment No. 400 and crosses the common village boundary of villages Durgapur and Sinhala, then passes through village Sinhala and meets at starting Point 'A' .

[No.43015/ 13/2008- PRIW - 1 ] M. SHAHABUDEEN , Under Secy.

नई दिल्ली , 29 सितम्बर , 2008

का. आ. 2765.-केन्द्रीय सरकार को यह प्रतीत होता है कि इससे उपावद्ध अनुसूची में उल्लिखित परिक्षेत्र की भूमि में से कोयला अभिप्राप्त किये जाने की संभावना है ।

अतः , अब, केन्द्रीय सरकार , कोयला धारक क्षेत्र ( अर्जन और विकास ) अधिनियम , 1957 ( 1957 का 20 ) ( जिसे इसमें इसके पश्चात् उक्त अधिनियम कहा गया है ) की धारा 4 की उपधारा ( 1 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए; उस भूमि में कोयले का पूर्वेक्षण करने के अपने आशय की सूचना देती है ।

इस अधिसूचना के अन्तर्गत आने वाले रेखांक संख्यांक सी । ( ई ) III/एफयूआर/764-0808 तारीख 12 अगस्त , 2008 का निरीक्षण , वेस्टर्न कोलफील्ड्स लिमिटेड ( राजस्व विभाग ) , कोल ईस्टेट , सिविल लाईन्स, नागपुर-440001 ( महाराष्ट्र ) के कार्यालय में या मुख्य महाप्रबंधक ( एक्सप्लोरेशन ) , केन्द्रीय खान योजना और डिजाईन संस्थान, गोंडवाना पॅलेस , कॉके रोड, राँची के कार्यालय में या कोयला नियंत्रक, । , काउंसिल हाऊस स्ट्रीट , कोलकाता के कार्यालय में या जिला कलेक्टर, नागपुर ( महाराष्ट्र ) के कार्यालय में किया जा सकता है ।

इस अधिसूचना के अन्तर्गत आने वाली भूमि से, हितबद्ध सभी व्यक्ति उक्त अधिनियम की धारा 13 की उपधारा ( 7 ) में निर्दिष्ट सभी नक्शों, चारों और अन्य दस्तावेजों को इस अधिसूचना के राजपत्र में प्रकाशन की तारीख से 90 दिनों के भीतर , वेस्टर्न कोलफील्ड्स लिमिटेड, राजस्त्र विभाग , कोल ईस्टेट , सिविल लाईन्स , नागपुर-440001 ( महाराष्ट्र ) को भेजेंगे ।

अनुसूची

गोकुल ओपनकास्ट ब्लॉक

उमरेर एरिया

जिल्ला नागपुर ( महाराष्ट्र )

[ रेखांक संख्यांक सी-1 ( ई ) ।।। / एफयूआर/ 764-0808 तारीख 12 अगस्त, 2008 )

तहसील

परवारी सकिल

क्रम ग्राम का नाम

संख्या

सं.

40 क

पिराया

भिवापुर 1

भिवापुर बेसुर

सीमा वर्णन :-

क-ख:

क्षेत्रफल (लगभग)

हेक्टर एकड़

234.01

94.70

नागपुर

भाग भाग

9.53 23.55

नागपुर

कुल क्षेत्र: 104.23 हेक्टर ( लगभग ) या 257.56 एकड़ ( लगभग) रेखा बिन्दु " क " ग्राम चिराया तथा बेसुर की सम्मिलित ग्राम सीमा से आरंभ होती है और ग्राम पिराया से होती हुई बिन्दु ' ख' पर मिलती है ।

3631 G1/2008-3 5468

ITJE GAZETTE OF INDIA OCTOBER, 4 , 2008 / ASVINA 12 , 1930

[PART II- SEC.3 ( ii) ) ख-गः रेखा ग्राम पिराया से गुजरती हुई विन्दु ' ग ' पर मिलती है ।

ग -घः

रेखा ग्राम पिराधा से गुजरती हुई चिन्तु ' ध ' पर मिलती है ।

घ -ङ:

रेखा ग्राम पिराया से गुजरती हुई ग्राम पिराचा और ग्राम चेसुर की सम्मिलित ग्राम सीपः पर बिन्दु ' ङ' पर मिलती है । ङ-क: रेखा प्राम बेसुर से गुजरती हुई ग्राम बेसुर और ग्राम पिराया की सम्मिलित ग्राम सीमा पर आरंभिक बिन्दु ' क' पर मिलती है ।

[ फा. से. 4.30: 5/ 14/ 2008- पीआरआईडक्ल्यू-1 」

एम. शहाबुद्दीन , अवर सचिव

New Delisi , the 29th September , 2008

S.O. 2765.--Whereas , it appears to the Central Government that Coal is likely to be obtained from the lands in the locality mentioned in the Schedule hereto armexej .

Now , therefore , in exercise of the powers conferred by sub - section ( 1 ) of Section I of the Coal Bearing Areas (Acquisition and Development ) Act , 1957 ( 20 of 19571. ( hereinafter referred to as the said Act ) , the Cemral Government hereby gives notice of its intention to prospect for coal therein;

The plan bearing number C - 1 ( E ) MUR. 764-0808 dated the 12th August , 200 % of the area covered by this notification can be inspeeted in the office of the Western Coalfields Limited ( Revenue Department ) , Coal Estate . Civil Lines ,Nagpur - 440001 ( Maharashtra ) or at the once the Chief General Manager ( Exploration Division ) . Central Mine Planning and Design Institute . Gondwana Prace. Lonke Road, Ranchi or at the office of the Coal Controller , 1. Council House Street . Kuikate or at the ice of the Ollector , Nagpur ( Maharashtra).

All persons interested in the langered by this notification shall deliver all pups , charts and other documents referred to in sub - section ( 7 ) of Section 13 of the sand Act to the Officer on Special Duty Maid and Revenue ) , Western Coalfields-Lirnited , Revenue Depornment , Coal Estate. Civil lines , Nagpur - 440001 ( Maharashtran within ninety days from the date ofpublication of this cotificanon inthe fal Gazette .

SCHEDULE

COKUL OPENCAST BLOCK

UMRER AREA

DISTRICT NAGPUR( MAHARASHTRA )

764-0808 Sache 12th , 2008 ] [Plan number

District

Reourks Sl. Nafiest No. Villige

Patwari ciele number

Area in Acres

Area in hectares

40 A

1. Piraya

234.01

Bhiwapur

Nagpur

2 Besur

9.53

23.55

Part

Nagpur

Total Area: 110423 Hectures (Approximately for

27 56 Acres ( Approximately ) Boundary description:

A-B: Line Marshall ' A' on compun villete boundary of villages Piraya and Besar ther passes through village Pimthed meetspot 13

BC: Line paresthaugh village Piray send ameets at poon " C" .

C- D: Line passes through village Pitaya and mees al po כניוומ "

DR Line passes through village Piraya and meets common village boundary of villages Panya and Besurat point E-A: 1ine passes thorape village Besur and meel op common village boundary di vilages Besur and Pirnya at 5469 ( भाग II- खण्ड 3 ( u) ]

भारत का राजपत्र : अक्तूबर 4, 2008/ आश्विन 12, 1930

उपभोक्ता मामले , खाद्य और सार्वजनिक वितरण मंत्रालय

(उपभोक्ता मामले विभाग )

नई दिल्ली, 22 जुलाई , 2008

का.आ. 2766.-केन्द्रीय सरकार का, विहित प्राधिकारी द्वारा उसे प्रस्तुत रिपोर्ट पर विचार करने के पश्चात् यह समाधान हो गया है कि उक्त रिपोर्ट में वर्णित भॉडल ( नीचे दी गई आकृति देखें ) बाट और माप मानक अधिनियम , 1976 ( 1976 का 60 ) तथा बाट और माप मानक (मॉडलों का अनुमोदन ) नियम, 1987 के उपबंधों के अनुरूप है और इस बात की संभावना है कि लगातार प्रयोग की अवधि में भी उक्त मॉडल यथार्थता बनाए रखेगा और विभिन्न परिस्थितियों में उपयुक्त सेवा प्रदान करता रहेगा;

अतः अब केन्द्रीय सरकार , उक्त अधिनियम की धारा 36 की उप - धारा ( 7 ) और उप - धारा ( 8 ) द्वारा शक्तियों का प्रयोग करते हुए मैसर्स आर.ए. आर. माइक्रोसॉफ्ट इक्यूपमेंट ( प्रा. ) लिमिटिड , 23 , अष्टलक्ष्मी नगर, सुन्दरपुरम , कोयम्बतूर -641024 तमिलनाडु द्वारा विनिर्मित " एक्स एल -1000 ए" श्रृंखला के अंकक सूचन सहित " आटो फेयर मीटर " के मॉडल का , जिसके ब्रांड का नाम " एक्सल " है ( जिसे इसमें इसके पश्चात् उक्त मॉडल कहा गया है ) और जिसे अनुमोदन चिह्न आई एन डी/ 09/ 08/ 167 समनुदेशित किया गया है, अनुमोदन प्रमाण - पत्र जारी करती है ।

उक्त मॉडल " फ्लेग टाइप डिजीटल आटो फेयर मीटर ( टैक्सी मीटर ) " दूरी और समय मापने वाली इंवाइस के साथ लगे अंकक सूचन सहित टैक्सी मीटर का मॉडल है । यह मीटर लगातार योग करता जाता है ओर यात्री द्वारा देय भाड़े को यात्रा के दौरान किसी भी समय दर्शाता है । देय यात्रा भाड़ा यात्रा के दौरान एक निश्चित निर्धारित स्पीड से ऊपर एवं निर्धारित स्पीड से कम पर व्यतीत किए गए समय के दौरान तय की गई दूरी की प्रक्रिया है । मीटर की रीडिंग लाइट इमीटिंग डायोड ( एलईडी ) द्वारा दशाई जाती है । उपकरण को फेक्टर ' के ' 1400 पलसंस प्रति किलोमीटर पर चलता है ।

000

14.00元

0.0 XL1000A

आकृति-2 मॉडल को सिलिंग करने के प्रावधान का योजनाबद्ध डायलम

मीटर के पृष्ठभाग में बायीं और दायीं तरफ से दो ढिबरियों और दो पेचों , जिन्हें सत्यापन स्म्य योग सील के लिए लीड तार से त्राधः गया था , को काटकर छेद किए गए हैं । मीटर को सील से छेड़छाड़ के बिना खोला नहीं जा सकता । मॉडल के सीलिंग प्रावधान का विशिष्ट स्कीम डायग्राम ऊपर दिया गया है ।

[फा. सं. डब्ल्यू एम-21 ( 71 ) / 2008 )

आर मधूश्रम, निदेशक , विधिक माग त्रिज्ञान THE GAZEITE OF INDIA OCTOBER 4 , 2008 ASVINA 12.1430

PIS )

: .. :

MINISTRY OF CONSUMER AFFAIRS , FOOD AND PUBLIC DISTRIBUTION

(Department of Consumer Affairs )

New Delhi , the 22nd July, 2008

S.O. 2766. Whereas the Central Governament , after considering the repon submitted to it by the prescribed authority, is satislied than the modet described in the said report ( see the figure given below) is in conformity with the preas ofthe Standards of Weights and Measures Act . 1976 (60 of 1976) and the Standards of Weights and Measures (Approvel of Mutels ) Rules. 1987 and the said model is likely to maintain its accuracy over periods of sustaimed use and to render asccente service under varied conditions;

Naw. therefore , in cercise of the powers conferred by sub - sections (7) and ( 8 ) of Section 36 of the suid Act . the Central Government hereby issues and publishes the certificate of approval of the model of " Auto l'are Meter " with digital indication ( hereinafter referred to as the said model ) of " XL - 1000 A " series with brand name " XCFL " manufactured by M/ s . R. AR. Micro Equipments ( P ) Limited , 23 , Ashtalakshmi Nagar , Sundarapurara, Coimbatore - 041024 . Tamil Nadu and which is assigned the approval mark IND: 09: 08/167:

The said model of digital auto fare meter with tag type is a measuring instrument which totalizes continuously and indicate the lare , at any moment of journey, the charges payable by the passenger of a public vehicle as function of the distance traveled, and below a certain speed on the length of the time taken; this being independent of supplementary charges according to the authorized tariffs. The reading of the meter is indicated by light lututting Diode ( LPD ) display The 'K ' factor of the auto meter is 1400 pulses per kilometer .

円

14.00

DISTANCE 0.00

000

EXCEL

XL- 1000 A

しじてけ FRME METER

CTRONIC AUTO METER

Figure- 2 Sealing diagram ofthe model

On the rear left right side of the meter holes are made by cutting the two nuts and also the two threaded screws which are fastened by a leaded wire for receiving the verification stamp and seal . The ineter cannot be opened without tampering the seal . A typical schematic diagram of sealing provision of the model is given above

1. No. WM -21 (71 ) 2008 ]

R. MATHURBO01HAM . Drector of Legal Metrology 5471 भारत का राजपत्र : अक्तूबर 4, 2008/आश्विन 12 , 1930

[ भाग - खण्ड 3 ( ii ) ]

नई दिल्ली , 22 जुलाई , 2008

का.आ. 2767.-केन्द्रीय सरकार का, विहित प्राधिकारी द्वारा उसे प्रस्तुत रिपोर्ट पर विचार करने के पश्चात् यह समाधान हो गया है कि उक्त रिपोर्ट में वर्णित मॉडल ( नीचे दी गई आकृति देखें ) बाट और माप मानक अधिनियम , 1976 ( 1976 का 60 ) तथा बाट और माप मानक (मॉडलों का अनुमोदन ) नियम , 1987 के उपबंधों के अनुरूप है और इस बात की संभावना है कि लगातार प्रयोग की अवधि में भी उक्त मॉडल यथार्थता बनाए रखेगा और विभिन्न परिस्थितियों में उपयुक्त सेवा प्रदान करता रहेगा;

अतः अब केन्द्रीय सरकार , उक्त अधिनियम की धारा 36 की उप - धारा ( 7 ) और उप- धारा ( 8 ) द्वारा शक्तियों का प्रयोग करते हुए मैसर्स स्कंडा इलेक्ट्रानिक्स , नं. 6 , सिस्ट एंड कं. , इंडस्ट्रियल लेआउट , बनाशंकरी ।। स्टेज , बंगलोर-560070 द्वारा विनिर्मित " यू एन ओ " श्रृंखला के अंकक सूचन सहित " फ्लेग टाइप डिजीटल आटो फेयर मीटर ( टैक्सी मीटर ) " के मॉडल का, जिसके ब्रांड का नाम " यू एन ओ -1350 " है (जिसे इसमें इसके पश्चात् उक्त मॉडल कहा गया है ) और जिसे अनुमोदन चिह्न आई एन डी/09 /08 / 132 समनुदेशित किया गया है. अनुमोदन प्रमाण- पत्र जारी करती है ।

उक्त मॉडल " फ्लेग टाइम डिजीटल आटो फेयर मीटर ( टैक्सी मीटर ) " दूरी और समय मापने वाली इंवाइस के साथ लगे अंकक सूचन सहित टैक्सी मीटर का मॉडल है । यह मीटर लगातार योग करता जाता है और यात्री द्वारा देय भाड़े को यात्रा के दौरान किसी भी समय दर्शाता है । देय यात्रा भाड़ा यात्रा के दौरान एक निश्चित निर्धारित स्पीड से ऊपर एव निर्धारित स्पीड से कम पर व्यत्तीत किए गए समन के दौरान तय की गई दूरी को प्रक्रिया है । पीटर की रीडिंग लाइट इमीटिंग डायोड ( एलईडी ) द्वारा दर्शाई जाती है । उपकरण का फेक्टर ' के' 1350 पलसेस प्रति किलोमीटर पर चलता है ।

AUTO FARE METER

आकृत्ति-2 मॉडल को सिलिंग करने का उपबंध

आटो/टैक्सी किराया मीटर को कपटपूर्ण व्यवहारों के लिए खाले जाने से रोकने के लिए इसके पीछे की ओर ओपनिंग पेंच बोल्ट पर सील करने के तार पर सील लगाई जाएगी । किराया मीटर की सोल को तोड़े बिना खोला नहीं जा सकेगा । मॉडल को सील करने के उपबंध का एक प्ररूपी योजनाबद्ध डायग्राम उपरोक्त दिया गया है ।

[फा. सं. डब्ल्यूएम -21 ( 85 )/2008 )

आर. माथुरवूथम, निदेशक , विधिक माप विज्ञान 5472

THE GAZETTE OF INDIA : "TOBER 4,2008/ ASVINA 12 , 1930

[PART II- SH (ii ) ]

New Dihi , the 22nd July,2008

S.O. 2767, Wherens the Central Goverment , after considering the report sabnoted to it by the prescribed authority, is satisfied that the model described in ri , said report ( see the figure given below is in conformity with the provisions of the Standards of Weighis and Measures Act 1976 (60 of 1976 ) and the Standards of Weights and Measures (Approval ofModels ) Rules, 1987 and the sand rundei is likely to maintain its accuracy over periods of sustained use and to render accurate service under varied conditions ;

Now, therefore , in exercise of the powers inferned by sub - sections (7) and ( 80 of Section 36 of the said Act . the Central Government hereby issues and publishes the retificate of approval of the model of "Flag Type Digital Auto Fare Meter (Taxi Meter ) with digital indication theremaftur referred to as the said model ) of " UNO " series with brand name " LNO- 1350 " manufacturedby M's . Skanda Blechemus , No. 6 , Sist &Co. , Industrial layout , Banashankarı II Stage. Bangalore- 560070 and which is assigned the approval renk IND: 09: 08/132;

The said model is "Flag Type Digital Auto rare Meter ( Taxi Meter ) " is a measuring instrument which totalizes continuously and indicate the fare , at any momem of swurney, the charges payable by the passenger of a public vehicle as function of the distance travelled , and below a certain speed on the length of the time taken ; this being independent of supplememary charges according to the authorized roman's . The reading of the meter is indicated by Light Emitting Diode (LED ). The ' K' factor of the auto meter is 1350 paise kilometer .

AUTO FARE METER

KAMISA ELECTRO

alert

Figure ? Seading provision of the model

Sealing is done by affixing the sealing wire or the opening screw-bolt of the rear side ofthe Auto Tam Fare Meter to aovid fraudulent use The fare meter cannot be epened without tampering the seal. A spical schematie diagram of sealing provision of the model is given above

1 No. WM -21 ( 85 ) /2008 )

R. MATHURBOOTHAM. Director of legal Metrology 5473 [ भाग ।। - खण्ड 3 (ii ) ]

भारत का राजपत्र : अक्तूबर 4, 2008/आश्विन 12, 1930

नई दिल्ली , 22 जुलाई, 2008

का.आ. 2768.- केन्द्रीय सरकार का, विहित प्राधिकारी द्वारा उसे प्रस्तुत रिपोर्ट पर विचार करने के पश्चात् यह समाधान हो गया है कि उक्त रिपोर्ट में धर्णित मॉडल ( नीचे दी गई आकृति देखें ) बाट और माप मानक अधिनियम , 1976 ( 1976 का 60 ) तथा बाट और माथ मानक (मॉडलों का अनुमोदन ) नियम, 1987 के उपबंधों के अनुरूप है और इस बात की संभावना है कि लगातार प्रयोग की अवधि में भी उक्त मॉडल यथार्थता बनाए रखेगा और विभिन्न परिस्थितियों में उपयुक्त सेवा प्रदान करता रहेगा;

अतः अब केन्द्रीय सरकार , उक्त अधिनियम की धारा 36 की उप- धारा ( 7 ) और उप - धारा ( 8 ) द्वारा प्रदत्त शक्तियों को प्रयोग करते हुए मैसर्स रमीन्दर सिंह एंड कम्पनी , दीप नगर, गिल रोड, लुधियाना-141003 , पंजाब द्वारा विनिर्मित मध्यम यथार्थता ( यथार्थता वर्ग -111 ) वाले " ए टी एस" श्रृंखला के अंकक सूचन सहित अस्वचालित तोलन उपकरण ( प्लेटफार्म प्रकार ) के मॉडल का, जिसके ब्रांड का नाम " एशिया- टैक " है ( जिसे इसमें इसके पश्चात् उक्त मॉडल कहा गया है ) और जिसे अनुमोदन चिह्न आई एन डी /09/08/ 139 समनुदेशित किया गया है , अनुमोदन प्रमाण- पत्र जारी करती है ।

उक्त मॉडल एक विकृत्त गेज प्रकार का भार सेल आधारित अस्वचालित तोलन उपकरण ( प्लेटफार्म प्रकार ) है । इसकी अधिकतम क्षमता 200 कि.ग्रा. और न्यूनतम क्षमता । कि.ग्रा. है । सत्यापन मापमान अंतराल ( ई) 50 ग्रा. है । इसमें एक आधेयतुलन युक्ति है जिसका शत प्रतिशत व्यकलनात्मक धारित आधेयतुलन प्रभाव है । प्रकाश उत्सर्जक डायोड ( एल ई डी ) प्रदर्श तोलन परिणाम उपद‌र्शित करता है । उपकरण 230 वोल्ट और 50 हर्ज प्रत्यावर्ती धारा विद्युत पर कार्य करता है ।

मॉडल को सीलिंग करने के प्रावधान का योजनावद्ध डायग्राम

सील करने के लिए सूचक के आधार और कवर को सूचक के सभी चार कोनों पर हेड होल के साथ कनेक्ट किया जायेगा तथा इन हेड होल पेंचों को विशेष गुणता तार के साथ कनेक्ट किया जायेगा जिसे लीड सील के साथ जोड़ा जायेगा । सूचक की सोल को तोड़े बिना खोला नहीं जा सकेगा । मॉडल को सीलबंद करने का एक प्रारूपी योजनाबद्ध डायग्राम उपरोक्त दिया गया है ।

और केन्द्रीय सरकार उक्त अधिनियम की धारा 36 की उप- धारा ( 12 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए यह घोषणा करती है कि उक्त मॉडल के अनुमोदन के इस प्रमाण- पत्र के अंतर्गत उसी विनिर्माता द्वारा उसी सिद्धांत , डिजाइन के अनुसार और उसी सामग्री से जिससे उक्त अनुमोदित मॉडल का विनिर्माण किया गया है, विनिर्मित उसी श्रृंखला के वैसे ही मेक , यथार्थता और कार्यपालन के तोलन उपकरण भी होंगे जो 5 ग्रा. या उससे अधिक के " ई " मान के लिए 500 से 10,000 तक के रेंज में सत्यापन मापमान अंतराल ( एन ) सहित 50 कि.ग्रा. से अधिक और 5000 कि.ग्रा . तक की अधिकतम क्षमता वाले हैं और " ई " मान 1 × 10 , 2× 10*, 5× 10% , के हैं, जो धनात्मक या ऋणात्मक पूर्णांक या शून्य केसमतुल्य हैं ।

[फा. सं. डब्ल्यू एम-21 (66)/2008 ] आर. माथुरबूथम, निदेशक , विधिक माप विज्ञान 5474

S.O. 2748 Wireres the Centreti

tot de andel descri authority, is satici

this and provisions of

(Approval ofMo

render accura

Central Goven and pet ...

instrument ( Plattom taperwith digital mhd.

name "ASIA - TEC ] bereizulher referred

Nagar , Gi !! Road , Fadas Pangar

The said seira

тахітит сарасity 2001 and not

a 100 per cent subtractive retained tare etriert il instrument operates on 230 Volts and 50 Henz ...

indicator and there !

canner be upened

Furihito of the power Government her ,

similar make , ac

verification scal

5x10% where ::

narinfactured

2008 ASVINA 12. 1031

PAA II S S 22nd July, 2008

tter considering the reponed to it by the prescribed see the figure given !

fornits with the 26154 of 1976 and the S

hes and Measures arainits accuracy

stained use and th h -sections ( 7 ) and 18.

the said Act, th

......

cate of approval of the

unrestomatic weighing renracy ( Accuracy class-

ATS" and with bran

Singh de Cormpany, Deep mufactured by Ms. Ki red the approval mark

tomatic weighing .Platon type ) with a verification scaleantervalsa tare device within mining Diode ( LED ) in the weighing results . The rent power supply.

d with head bole

a corners of be wla wire which is lead sea ! Indicator tam of scaling promodel is given above .

( [ ) of Section :

said Act , the Uemral modelshati alin . Petting instruments of par ity ubos

dar to sout ky with

12-10 el Sg or more and

zero manufac

... me manufacturer in

madel lias been MATIE EROOT

' IegalMetrology 5475 भारत का राजपत्र : अक्तूबर 4, 2008/आश्विन 12, 1930

[ भाग - खण्ड 3 (ii) ]

नई दिल्ली, 22 जुलाई, 2008

का.आ. 2769.- केन्द्रीय सरकार का, विहित प्राधिकारी द्वारा उसे प्रस्तुत रिपोर्ट पर विचार करने के पश्चात् यह समाधान हो गया है कि उक्त रिपोर्ट में वर्णित मॉडल ( नीचे दी गई आकृति देखें ) बाट और माप मानक अधिनियम, 1976 (1976 का 60 ) तथा बाट और माथ मानक (मॉडलों का अनुमोदन ) नियम , 1987 के उपबंधों के अनुरूप है और इस बात की संभावना है कि लगातार प्रथोग की अवधि में भी उक्त मॉडल यथार्थता बनाए रखेगा और विभिन्न परिस्थितियों में उपयुक्त सेवा प्रदान करता रहेगा;

अतः , अब, केन्द्रीय सरकार , उक्त अधिनियम की धारा 36 की उप - धारा ( 7 ) और उप- धारा ( 8 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए मैसर्स रमीन्दर सिंह एंड कम्पनी, दीप नगर , गिल रोड, लुधियाना -141 003 , पंजाब द्वारा विनिर्मित मध्यम यथार्थता ( यथार्थता अर्ग- III ) काले " ए- टी डब्ल्यू" श्रृंखला के अंकक सूचन सहित अस्वचालित तोलन उपकरण ( वेब्रिज प्रकार ) के माडल का, जिसके ब्रांड का नाम " एशिया- टैक " है ( जिसे इसमें इसके पश्चात् उक्त मॉडल कहा गया है ) और जिसे अनुमोदन चिह्न आई एन डी/09/08/ 140 समनुदेशित किया गया है , अनुमोदन प्रमाण- पत्र जारी करती है ।

उक्त मॉडल एक विकृत गेज प्रकार का भार सेल आधारित अस्वचालित तोलन उपकरण ( वेब्रिज प्रकार ) है । इसको अधिकत्तम क्षमता 50 टन है और न्यूनतम क्षमता 100 कि.ग्रा. है । सत्यापन मापमान अंतराल ( ई ) 5 कि.ग्रा. है । इसमें एक आधेयतुलन युक्ति है जिसका शत प्रतिशत व्यकलनात्मक धारित आधेयतुलन प्रभाष है । प्रकाश उत्सर्जक डायोड ( एल ई डी ) प्रदर्श तोलन परिणाम उपदर्शित करता है । उपकरण 230 बोल्ट और 50 हर्ट्ज प्रत्यावर्ती धारा विद्युत पर कार्य करता है ।

माडल को सीलिंग करने के प्रावधान का योजनाबद्ध डायग्राम ।

सील करने के लिए सूचक के आधार और कवर को सूचक के सभी चार कोनों पर हंड होल के साथ कनेक्ट किया जायेगा तथा इन हेड होल पेंचों को विशेष गुणता तार के साथ कनेक्ट किया जायेगा जिसे लीड सील के साथ जोड़ा जायेगा । सूचक की सील को तोड़े बिना खोला नहीं जा सकेगा । माडल को सीलबंद करने का एक प्रारूपी योजनाबद्ध डायग्राम उपरोक्त दिया गया है ।

और केन्द्रीय सरकार उक्त अधिनियम की धारा 36 की उप - धारा ( 12 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए यह घोषणा करती है कि उक्त मॉडल के अनुमोदन के इस प्रमाण- पत्र के अंतर्गत उसी विनिर्माता द्वारा उसी सिद्धांत , डिजाइन के अनुसार और उसी सामग्री से जिससे उक्त अनुमोदित मॉडल विनिर्माण किया गया है , विनिर्मित उसी श्रृंखला के वैसे ही मेक, यथार्थता और कार्यपालन के तोलन उपकरण भी होंगे जो 5 ग्रा. या उससे अधिक के " ई " मान के लिए 500 से 10,000 तक के रेंज में सत्यापन मापमान अंतराल ( एन ) सहित 5 टन से अधिक और 200 टन तक की अधिकतम् क्षमता वाले हैं और " ई " मान 1 × 10*, 2× 10* , 5× 10 , के हैं, जो धनात्मक या ऋणात्मक पूर्णांक या शून्य के समतुल्य हैं। 363171/081 / 08-4

[फा. सं. डब्ल्यूएम-21 (66)/2008 ] आर. माधुरबूधम, निदेशक , विधिक माप विज्ञान 5476

THE GAZETTE OF INDIA : OCTOBER 4, 2008/ ASVINA 12 , 1930

[PART 1 Stk .3 (ii ) ]

New Delhi , the 22nd July,2008

S.O.2769. Whereas the Central Government, after considering the report submitted to it by prescribed authority , is satisfied that the model described in the said report ( see the figure given below ) is in conformity with the provisions of the Standards of Weights and Measures Act , 1976 (60 of 1976) and the Standards of Wergiits and Measures (Approval of Models) Rules, 1987 and the said model is likely to maintain its accuracy over periods of sustained use and to render accurate service under varied conditions;

Now, therefore, in exercise of the powers conferred by sub - sections ( 7 ) and ( 8h of Section 36 of the said Act , the Central Government hereby issues and publishes the certificate of approval of the mosiet of non- autornatic weighing instrument (Weighbridge type ) with digital indication of medium accuracy (Accuracy class - ill) of series "A TW " and with brand name"ASIA- TECH " ( hereinafter referred to as the said Model ) , manufactured by Ms. Raminder Singh & Company. Deep Nagar . Gill Road , Ludhiana - 141003 , Punjab and which is assigned the approval mark IND 09 :08: 140 :

The said model is a strain gauge type load cell based non - automatic weighing instrument ( Weighbridge type ) with amaximum capacity of 50 tonne and minimum capacity of 100 kg. The verification scale ustervai ( e ) is 5kg . It has a tare device with a 100 per cent subtractive retained tare effect. The Light Emittingg Diode (LED ) indicates the weighing results . The instrument operates on 230 Volts and 50 Hertz alternative current power supply.

WEIGHT

ASIA-TECH

BATTAFT

Figure 2- Sealing Diagram

For sealing , base and cover of the indicator are connected with head hole screw at all the four corners of the indicator and these head hole screws are connected with special quality wire which is joined with lead seal. Indicator cannot be opened without tampering the seal . A typical schematic diagram of sealing provision of the inodel is given above.

Furiner, it excise of the powers conferred by sub - section ( 12 ) of Section 36 of the said Act, the Central Government hereby declares that this certificate of approval of the said model shall also cover the weighing instruments of similar make , accuracy and performance of same series with maximum capacity above 5 tonne and up to 200 tonne with verification scale interval (n ) in the range of 500 to 10,000 for' e' value of Sg or more and with' e' value of 1 × 10 , 2410 or 5x10 " , where is a positive or negative whole number or equal to zero manufactured by the same manufacturer in accordance with the same principle , design and with the same materials with which , the waid approved model has been manufactured .

1 No WM -21 ( 66 ) 2008 ]

R. MATHURBOOT LAVI , IDirector of legal Metrology 5477 भारत का राजपत्र: अक्तूबर 4, 2008/आश्विन 12, 1930

[ भाग - खण्ड 3(ii ) ]

नई दिल्ली, 22 जुलाई , 2008

का.आ. 2770.-केन्द्रीय सरकार का, विहित प्राधिकारी द्वारा उसे प्रस्तुत रिपोर्ट पर विचार करने के पश्चात् यह समाधान हा गया है कि उक्त रिपोर्ट में वर्णित मॉडल ( नीचे दी गई आकृति देखें ) बाट और माप मानक अधिनियम, 1976 ( 1976 का 60 ) तथा बाट और माए मानक (मॉडलों का अनुमोदन ) नियम, 1987 के उपबंधों के अनुरूप है और इस बात की संभावना है कि लगातार प्रयोग की अवधि में भी उक्त मॉडल यथार्थता बनाए रखेगा और विभिन्न परिस्थितियों में उपयुक्त सेवा प्रदान करता रहेगा;

अतः अब केन्द्रीय सरकार, उक्त अधिनियम की धारा 36 की उप- धारा ( 7 ) और उप - धारा ( 8 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए मैसर्स सतनाम व्हे इंडस्ट्रीज, प्लाट नं. 1185 , स्ट्रीट नं. 8 , धुरी लाइन के पास लुधियाना-141003 , द्वारा विनिर्मित मध्यम यधार्थगा ( यथार्थता वर्ग- III ) वाले " एस के डक्ल्यू-4 " श्रृंखला के अंकक सूचन सहित अस्वचालित तोलन उपकरण ( वेब्रिज प्रकार ) के माडल का , जिसके ब्रांड का नाम " स्काईटैक " है ( जिसे इसमें इसके पश्चात् उक्त मॉडल कहा गया है ) और जिसे अनुमोदन चिह्न आई एन डी /09/08/ 179 समनुदेशित किया गया है, अनुमोदन प्रमाण- पत्र जारी करती है ।

उक्त मॉडल एक विकृत गेज प्रकार का भार सेल आधारित अस्वचालित तोलन उपकरण ( वेब्रिज प्रकार ) है । इसकी अधिकतम क्षमता 30 टन है और न्यूनतम क्षमता 100 कि.ग्रा. है । सत्यापन भापमान अंतराल ( ई ) 5 कि.ग्रा. है । इसमें एक आधेयतुलन युक्ति है जिसका शंत प्रतिशत व्यवकलनात्मक धारित आधेयतुलन प्रभाव है। प्रकाश उत्सर्जक डायोड ( एल ई डी ) प्रदर्श तोलन परिणाम उपदर्शित करता है । उपकरण 230 वोल्ट और 50 हर्ट्ज प्रत्यावर्ती धारा विद्युत प्रदाय पर कार्य करता है ।

माडल को सीलिंग करने के प्रावधान का योजनाबद्ध डायग्राम ।

सीलिंग के लिए, इंडिकेटर के ऊपरी कवर और बेस प्लेट में छिद्र किया जाएगा और तब इन छिद्रों में से सो को निकाला जाएगा और लीड सील के साथ जोड़ा जायेगा । सील को तोड़े बिना इंडिकेटर को नहीं खोला जा सकता । मॉडल को सीलबंद करने का एक प्रारूपी योजनाबद्ध डायग्राम उपरोक्त दिया गया है ।

और केन्द्रीय सरकार उक्त अधिनियम की धारा 36 की उप- धारा ( 12 ) द्वारा प्रदत्त शक्तियों कः प्रयोग करते हुए यह घोषणा करती है किउक्त मॉडल के अनुमोदन के इस प्रमाण - पत्र के अंतर्गत उसी विनिर्माता द्वारा उसी सिद्धांत , डिजाइन के अनुसार और उसी सामग्री से जिससे उक्त अनुमोदित मॉडल विनिर्माण किया गया है, विनिर्मित उसी श्रृंखला के वैसे ही मेक , यधार्थता और कार्यपालन के तोलन उपकरण भी होंगे जो 5 ग्रा . या उससे अधिक के " ई " मान के लिए 500 से 10,000 तक के रेंज में सत्यापन मापमान अंतराल ( एन ) सहित 5 टन से अधिक और 100 टन तक की अधिकतम क्षमता वाले हैं और " ई " मान 1 × 10*, 2 × 10 * , 5 × 10 , कोहैं , जो धनात्मक या ऋणात्मक पूर्णाक या शून्य के समतुल्य हैं ।

[ -21 ( 86) (2008) 5478

THE GAZETTE OF INDIA : OCTOBER 4, 2008/ASVINA 12, 1930

[PART II-SEC. 3( ii ) ]

New Delhi . the 22nd July, 2008

S.O. 2770. Whereas the Central Government, after considering the repart submitted to it by the prescribed authority, is satisfied that the model described in the said report ( see the figure given below ) is in conformity with the provisions ofthe Standards of Weights and Measures Act , 1976 (60 of 1976 ) and the Standards of Weights and Measures (Approval ofModels ) Rutes , 1987 and the said model is likely to maintain its accuracy over periods of sustained use and to render accurate service under varied conditions ;

Now, therefore, in exercise of the powers conferred by sub -sections (7) and ( 8 ) of Section 36 of the said Act , the Central Government hereby issues and publishes the certificate of approval of the model of non- automatic weighing instrument ( Weighbrige type ) with digital indication of medium accuracy ( accuracy class - III ) of series " SK W - 4 " and with brand name "SKYTECH " ( hereinafter referred to as the said Model ), manufactured by M's . Sainam Weigh Industries . Plon No. 1185 , Street No. 8, Nr. Dhuri Line, Ludhiana - 141003 and which is assigned the approval mark IND 09/08/179;

The said model is a strain gauge type load cell based non -automatic weighing instrument ( Weighbrige type ) with amaximum capacity of 30 tonne and minimum capacity of 100 kg. The verification scale imerval ( e) is 5 kg . It has a tare device with a 100 per cent subtractive retained tare effect. The Light Emitting Diode (LED ) indicates the weighing results . The instrument operates on 230 Volts and 50 Hertz alternative current power supply.

A3079

Figure 2 Sealing Arrangement

For sealing , a hole is made in the base plate and top cover of the indicator body , and then a seal wire is passed through these holes and attached with the lead seal . The indicator can not be opened unless the seal is broken. A typical schematic diagram of sealing provision of the model is given above .

Further , in exercise of the powers conferredby sub - section ( 12 ) of Section 36 of the said Act , the Central Government hereby declares that this certificate of approval of the said model shall also cover the weighing instruments of similar make, accuracy and performance of same series with maximum capacity above 5 tonine and ap 10 100 tonne with verification scate interval ( n ) in the range of 500 to 10.000 for ' e ' value of 5g . or more and with e value of 1 × 10k, 2x10 or 5x10 , where k is a positive or negative whole muniber or equal to zero manufactured by the same manufacturer in accordance with the same principle , design and with the same materials with which . the said approved model has been manufactured .

[ F. No. WM -21 ( 86 ) -2008 ]

R. MATHURBOOT HAM, Director of Legal Metrology 5479 3631-2(Mss No. 56 to 79) [भाग II- खण्ड 3 ( B ) ]

भारत का राजपत्र: अक्तूबर 4, 2008/ आश्विन 12,1930

नई दिल्ली , 25 जुलाई , 2008

का,आ. 2771.- केन्द्रीय सरकार का , विहित प्राधिकारी द्वारा उसे प्रस्तुत रिपोर्ट पर विचार करने के पश्चात् यह समाधान हो गया है कि उक्त रिपोर्ट में वर्णित मॉडल ( नीचे दी गई आकृति देखें ) बाट और माप मानक अधिनियम , 1976 ( 1976 का 60 ) तथा बाट और माप मानक (मॉडलों का अनुमोदन ) नियम , 1987 के उपबंधों के अनुरूप है और इस बात की संभावना है कि लगातार प्रयोग की अवधि में भी उक्त मॉडल यथार्थता बनाए रखेगा और विभिन्न परिस्थितियों में उपयुक्त सेवा प्रदान करता रहेगा;

अतः अब केन्द्रीय सरकार , उक्त अधिनियम की धारा 36 की उप-ध्गरा ( 7 ) और उप- धारा ( 8 ) द्वारा प्रदत्त शक्तियों को प्रयोग करते हुए मैसर्स वोढा स्केल इंडिया , 32-33 /ए, न्यू ब्रिजपुरी , नीयर पुलिस स्टेशन , प्रीत विहार, दिल्ली -110051 द्वारा विनिर्मित मध्यम यथार्थता ( यथार्थता वर्ग- III ) वाले " वी एस पी " श्रृंखला के अस्वचालित , अंकक सूचन सहित ( प्लेटफार्म प्रकार ) और जिसके ब्रांड का नाम " वोडा " है ( जिसे इसमें इसके पश्चात् उका मॉडल कहा गया है ) जिसे अनुमोदन चिह्न आई एन डी /09/ 08/84 समनुदेशित किया गया है, अनुमोदन प्रमाण- पत्र जारी करती है ।

उक्त मॉडल एक विकृत गेज प्रकार का भार सेल आधारित अस्वचालित ( प्लेटफार्म प्रकार ) तोलन उपकरण है । इसकी अधिकत्तम क्षमता 300 कि.ग्रा. है और न्यूनतम क्षमता । कि.ग्रा. है । सत्यापन मापमान अंतराल ( ई ) 50 ग्रा. है । इसमें एक आधेयतुलन युक्ति है जिसका शत प्रतिशत व्यवकलनात्मक धारित आधेयतुलन प्रभाव है । प्रकाश उत्सर्जक डायोड ( एल ई डी ) प्रदर्श तोलन परिणाम उपदर्शित करता है । उपकरण 230 वोल्ट और 50 हर्ट्ज प्रत्यावर्ती धारा विद्युत पर कार्य करता है ।

माडल को सीलिंग करने के प्रावधान का योजनाबद्ध डायग्राम ।

तुला स्केल के दाईं ओर कपटपूर्ण व्यवहारों के लिए खाले जाने से रोकने के लिए स्टाम्पिंग प्लैट पर सील बंद करने का पाइंट लगाया जायेगा । सील करने के तार को तुला स्केल के आधार प्लेट और ऊपरी कबर के साथ जुड़े तुला स्केल के बाईं और से दाईं और शीर्ष पूर्ण पेंच में डालते हुए सीसा सील की जायेगी । सीलों को तोड़े बिना उपकरण को खोला नहीं जा सकता । माडल को सीलबंद करने के उपबंध का एक प्रारूपी योजनाबद्ध डायग्राम उपरोक्त दिया गया है ।

और केन्द्रीय सरकार उक्त अधिनियम की धारा 36 की उप - धारा ( 12 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए यह घोषणा करती है कि उक्त मॉडल के अनुमोदन के इस प्रमाण- पत्र के अंतर्गत उसी विनिर्माता द्वारा उसी सिद्धांत , डिजाइन के अनुसार और उसी सामग्री से जिससे उक्त अनुमोदित मॉडल विनिर्माण किया गया है , विनिर्मित उसी श्रृंखला के वैसे ही पेक, यथार्थता और कार्यपालन के तोलन उपकरण भी होंगे जो 5 ग्रा. या उससे अधिक के " ई " पान के लिए 500 से 10,000 तक के रेंज में सत्यापन मापमान अंतराल ( एन ) सहित 50 कि.ग्रा. से अधिक और 5000 कि.ग्रा. तक की अधिकतम क्षमता वाले हैं और " ई " मान 1 × 10 * , 2 ×10 , 5 ×10 %, के हैं , जो धनात्मक या ऋणात्मक पूर्णांक या शून्य के समतुल्य हैं ।

[फा. सं. डब्ल्यू एम -21 ( 36 )/2008 ] आर. माथुरबूथम , निदेशक, विधिक माप विज्ञान 5480

THE GAZE

1,2008 ASVINA 12.1931:

[PAR: 11- S.30 ] 25th July, 2008

S.O. 2771. Wheresse Coa

authority , is satisfied that the anodel dever .

provisions of the Standardsof Wegulsarl

(Approval ofModels ) Rule 18 ad med render accurate service mu

成品,

Now, therefore, inexers

Central Government hereny issatishes te .

instrument ( Platform type ) with di

name "VODA " ( hereinaster redt

Dah

Near Police Station , Preet Vin

The said nous

considering the reported to it by the prescribed rerort ( see the ligure given viisin conformity with the 1976 (60 of 1976 ) and the Star of Weights and Measures is to mautain its accuracy ovide of sustained use and to by sub - sections ( 7 ) and ( 8 ) Sector 56 of the said Act . the ficate of approval of the root - atomatic weighing accuracy ( accuracy class - lit

VSP " and with brand nuufactured by Mrs. Voda SenG 233 -A. New Brijpuri .

8.4 .

ssigned the approval mark

wed - automatic

maximum capacity of 300 kg . anaaminim

a 100 per cent subtractive remed and instrument operates on 230 Volts and S

1.1

VODA

weighingam type ) with a

samare device with The verification scale interval

weiglung results . The

emittingg Diode ( LED ) and

...reat power supply.

Figure 2 Sealing provision of indicator of model

Sealing point is affixed on the stamping, plate ne avoid fraudulent use at the right side of the indicator Sealingwire is passing through the head whole screw right to teft side of the indicator connected with the base plate and upper cover of the indicator and then lead seal is appl.ed. The indicior can not be opened without breaking the seals . A typical chematic diagram of sealing provision of the model given above.

Further, in exercise of the power conferred ta sub- section ( 12 ) of Section 36 of the said Act , the Central Government hereby declares that this certitude of aproval of the said model shalt also cover the weighing instruments el similar make, accuracy and performance of same series with maximum capacity above Sit kg and up to 5000 kg . with verification scale interval ( n ) in the range of 5110 to 10,000 for ' e ' value of 5g , or more and withre value of 1 > 10 , 2x10 or 5× 10k, where ' k ' is a positive or negative whole number or equal to zero manufactured by the sante manufacturer in accordance with the same principle, design and with the same materials with which , the said approved model has beco manufactured.

[ F] No. WM - 21 ( 36 ) 2008 ) R. MATHURBOOTHAM . Director of Legal Metrology 5481 [भाग II- खण्ड 3 (ii) ]

भारत का राजपत्र : अक्तूबर 4, 2008/आश्विन 12, 1930

नई दिल्ली, 25 जुलाई , 2008

का.आ. 2772.-केन्द्रीय सरकार का, विहित प्राधिकारी द्वारा उसे प्रस्तुत रिपोर्ट पर विचार करने के पश्चात् यह समाधान हो गया है कि उक्त रिपोर्ट में वर्णित मॉडल ( नीचे दी गई आकृति देखें ) बाट और माप मानक अधिनियम, 1976 ( 1976 का 60 ) तथा बाट और माप मानक (मॉडलों का अनुमोदन ) नियम , 1987 के उपबंधों के अनुरूप है और इस बात की संभावना है कि लगातार प्रयोग की अवधि में भी उक्त मॉडल यथार्थता बनाए रखेगा और विभिन्न परिस्थितियों में उपयुक्त सेवा प्रदान करता रहेगा;

अतः अब केन्द्रीय सरकार , उक्त अधिनियम की धारा 36 को उप - धारा ( 7 ) और उप - धारा ( 8 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए मैसर्स बोडा स्केल इंडिया , 32-33/ए, न्यू ब्रिजपुरी , नीयर पुलिस स्टेशन , प्रीत विहार, दिल्ली -110051 द्वारा विनिर्मित उच्च यथार्थता ( यथार्थता वर्ग -11 ) के " वी एस जे " श्रृंखला के अस्वचालित , अंकक सूचन सहित ( टेबलटाप प्रकार ) और जिसके ब्रांड का नाम " बोड़ा " है ( जिसे इसमें इसके पश्चात् उक्त मॉडल कहा गया है ) जिसे अनुमोदन चिह्न आई एन डी/09/08/82 समनुदेशित किया गया है , अनुमोदन प्रमाण -पत्र जारी करती है ।

उक्त मॉडल एक विकृत गेज प्रकार का भार सेल आधारित अस्वचालित तोलन उपकरण है । इसकी अधिकतम क्षमता 30 कि.ग्रा. है और न्यूनतम क्षमता 250 ग्रा. है । सत्यापन मापभान अंतराल ( ई ) 5 ग्रा. है । इसमें एक आधेयतुलन युक्ति है जिसका शत प्रतिशत व्यवकलनात्मक धारित आधेयतुलन प्रभाव है । प्रकाश उत्सर्जक डायोड ( एल ई डी ) प्रदर्श तोलन परिणाम उपदर्शित करता है । उपकरण 230 वोल्ट और 50 ह‌र्ट्ज प्रत्यावर्ती धारा विद्युत पर कार्य करता है ।

VODA

मॉडल को सीलिंग करने के प्रावधान का योजनाबद्ध डायग्राम

तुला स्केल के दाईं ओर कपटपूर्ण व्यवहारों के लिए खोले जाने से रोकने के लिए स्टाम्पिंग प्लेट पर सील बंद करने का पाइंट लगाया जाएगा । सोल करने के तार को तुला स्केल के आधार प्लेट और ऊपरी कवर के साथ जुड़े तुला स्केल के बाईं ओर से दाईं ओर शीर्ष पूर्ण पेंच में डालते हुए सीसा सील का जायेगी । सीलों को तोड़े बिना उपकरण को खोला नहीं जा सकेगा । माडल को सीलबंद करने के उपबंध का एक प्ररूपी योजनाबद्ध डायग्राम उपरोक्त दिया गया है ।

और केन्द्रीय सरकार उक्त अधिनियम की धारा 36 की उप - धारा ( 12 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए यह घोषणा करती है कि उक्त मॉडल के अनुमोदन के इस प्रमाण - पत्र के अंतर्गत उसी विनिर्माता द्वारा उसी सिद्धांत , डिजाइन के अनुसार और उसी सामग्री से जिससे उक्त अनुमोदित मॉडल का विनिर्माण किया गया है , विनिर्मित उसी श्रृंखला के वैसे ही मेक, यथार्थता और कार्यपालन के तोलन उपकरण भी होंगे जो 1 मि.ग्रा. से 50 मि.ग्रा. तक के " ई " मान के लिए 100 से 50,000 तक के रेंज में सत्यापन मापमान अंतराल ( एन ) और 100 मि.ग्रा. या उससे अधिक के " ई " मान के लिए 5000 से 50,000 तक की रॉज में सत्यापन मापमान अंतराल ( एन ) सहित 500 कि.ग्रा. तक की अधिकतम क्षमता वाले हैं और " ई " मान । × 10 , 2 × 10 %, 5 × 10 , के हैं , जो धनात्मक या ऋणात्मक पूर्णांक या शून्य के समतुल्य हैं ।

[फा. सं. डब्ल्यू एम-21 (36 )/2008 ] आर. माथुरबूथम, निदेशक , विधिक माप विज्ञान 5482

THE GAZETTE OF INDIA OFOBER 4 , 2008/ASVINA 12130

[PART I-SEC . 3 ( ii ) ]

New Delhi , the 25th July, 2008

5.0. 2772.--Whereas the Central Governarent , after considering the report submitted to it by the prescribed authority, is satístied that the modet described in the ad report (see the figure given below ) is in conformity with the provisions of the Standards of Weights and Measures Act . 1976 (60 of 1976) and the Standards of Weights and Measures (Approval of Models ) Rutes , 1987 and the said nedelis likely to maintain its accuracy ser pertods of sustained use and to render accurate service under varied conditions :

Now, therefore, in exercise of the powers conferred by sub - sections (7) and ( X : Section 50 of the said Act , the Central Goverumem hereby issues and publishes the certificate of approval of the model of non -automatic weighing instrument ( 1 able top type ) with digital indication of ingh accuracy (Accuracy class - 11 ) ories "VSJ " and with brand name "VODA" ( hereinafter referred to as the said Mudeli , manufactured by Mis. Voda Scale india 32 13 - A. New Hrijpuri .Near Police Station, Preet Vihar . Delhi - 11005 | and which signed the approval mark INDOS

The said model is a strain gauge type kad selt lased non- automatic weighing instrument with a maximum capacity of30kg. and minimum capacity of 250g. The veritk on scale interval ( e ) is 5g. 11 hasare device with a 100 per cent subtractive retained tare effect . The light Emitting Diode (JED ) display indicates the weiging results The instrument operates on 230 Volts atid 50 Hertz alternative currea power supply.

VODA

Schen did grain of the sealing provision

Sealing point is aflixed on the stompong ples, avoid fraudulent use at the tight side of the weighing scale . Sealing wire is passing theattghthe head whole sessient to left side of the weighing scanceled with the base plate and upper cover of the weighing, swale and then lead.apphed The instrument cant be opened without breaking the seals . A typical sciremane diagrain of sealing pros sonat the model is given above

Furio , in exercise of the powers confere sub -section ( 12 ) of Secto the sard Act, the Central Government hereby declares that this certificate of pol the said model shall also ever the seiglang instruments of similar make , accuracy and performance of same seres stiumaximam capacity upto 50kg . ad verification scale interval ( n ) in the range of 100 to 50.000 for me vahie of Trag to Strong wal with verification scale interval the range of 5000 to 50.000 for' e' value of litteg or more and withresults , 2-10 ur 510, wherek is a positive or negative whole nuniber or equal to zern memufactured by the same Pordance with the same pripl ... sign and with the same materials with which, the said approved model has beca imanufactured .

jl No. WM -21 (36 ) 2008

R. MAIHURBOOTHAM Director of legal Merologs 5483 [ भाग II- खण्ड 3 (ii) ]

भारत का राजपत्र : अक्तूबर 4, 2008/आश्विन 12, 1930

नई दिल्ली, 25 जुलाई, 2008

का.आ. 2773.-केन्द्रीय सरकार का, विहित प्राधिकारी द्वारा उसे प्रस्तुत रिपोर्ट पर विचार करने के पश्चात् यह समाधान हो गया है कि उक्त रिपोर्ट में वर्णित मॉडल ( नीचे दी गई आकृति देखें ) बाट और माप मानक अधिनियम, 1976 ( 1976 का 60 ) तथा बाट और भाप मानक ( मॉडलों का अनुमोदन ) नियम , 1987 के उपबंधों के अनुरूप है और इस बात की संभावना है कि लगातार प्रयोग की अवधि में भी उक्त मॉडल यथार्थता बनाए रखेगा और विभिन्न परिस्थितियों में उपयुक्त सेवा प्रदान करता रहेगा;

अतः अब , केन्द्रीय सरकार , उक्त अधिनियम की धारा 36 की उप - धारा ( 7 ) और उप- धारा ( 8 ) द्वारा प्रदत्त शक्तियों को प्रयोग करते हुए मैसर्स ओमेगा इलैक्ट्रॉनिक स्केल कं. लि. , 29- बी , इलैक्ट्रॉनिक्स काम्पलैक्स , चम्बाघाट तहसील , जिला सोलन , हिमाचल प्रदेश द्वारा विनिर्मित मध्यम यथार्थता ( यथार्थता वर्ग- III ) वाले " ओ पी डब्ल्यू" श्रृंखला के अस्वचालित , अंकक सूचन सहित अस्वाचालित तोलन उपकरण( प्लेटफार्म प्रकार ) के माडल का, जिसके ब्रांड का नाम " ओमेगा " है ( जिसे इसमें इसके पश्चात् उक्त मॉडल कहा गया है ) जिसे अनुमोदन चिह्न आई एम डी/09/ 08/176 समनुदेशित किया गया है, अनुमोदन प्रमाण- पत्र जारी करती है ।

उक्त मॉडल एक विकृत गेज प्रकार का भार सेल आधारित अस्वचालित तोलन उपकरण ( प्लेटफार्म प्रकार ) है । इसकी अधिकतम क्षमता 1000 किग्रा है और न्यूनतम क्षमता 4 कि.ग्रा. है । सत्यापन मापमान अंतराल (ई ) 200 प्रा. है । इसमें एक आधेयतुलन युक्ति है जिसका शत प्रतिशत व्यवकलनात्मक धारित आधेयतुलन प्रभाव है। प्रकाश उत्सर्जक डायोड ( एल ई डी ) प्रदर्श तोलन परिणाम उपदर्शित करता है । उपकरण 230 बोल्ट और 50 हर्ट्ज प्रत्यावर्ती धारा विद्युत पर कार्य करता है ।

मॉडल को सीलिंग करने के प्रावधान का योजनाबद्ध डायग्राम

तुला को सील करने के लिए , बाईं ओर से बाहरी कवर और तल प्लेट को काटते हुए दो छेद किए जायेंगे तथा स्टाम्प सील का सत्त्यापन प्राप्त करने के लिए इन्हें सीसेदार तार से कसा जायेगा । उपकरण की सील को तोड़े बिना खोला नहीं जा सकेगा। मॉडल को सीलबंद करने का एक प्रारूपी योजनाबद्ध डायग्राम उपरोक्त दिया गया है ।

और केन्द्रीय सरकार उक्त अधिनियम की धारा 36 की उप- धारा ( 12 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए यह घोषणा करती है किउक्त मॉडल के अनुमोदन के इस प्रमाण - पत्र के अंतर्गत उसी विनिर्माता द्वारा उसी सिद्धांत , डिजाइन के अनुसार और उसी सामग्री से जिससे उक्तअनुमोदित मॉडल विनिर्माण किया गया है , विनिर्मित उसी श्रृंखला के वैसे ही मेक, यथार्थता और कार्यपालन के तोलन उपकरण भी होंगे जो 5 ग्रा. या उससे अधिक के " ई " पान के लिए 500 से 10,000 तक के रेंज में सत्यापन मापमान अंतराल ( एन ) सहित 50 कि.ग्रा. से अधिक और 5000 किग्रा. तक की अधिकतम क्षमता वाले हैं और " ई " मान 1 × 10 *. 2×10 %, 5 × 10 *, के हैं, जो धनात्मक या ऋणात्मक पूर्णांक या शून्य के समतुल्य हैं ।

[फा. सं. डब्ल्यूएम-21 (47)/2008 ]

आर. माथुरखूथम, निदेशक , विधिक भाप विज्ञान 3631 G1/2008-5 5484

PART --SA 3( 1) ) THE GAZETTE OF INDIA : OCTOBER 4.2008 /ASVINA 12.1930

...

New Delhi , the 25th July, 2008

S.O. 2773.-Whereas the Central Government, after considering the report submitted to it by the prescribed authority, is satisfied that the model described in the said report ( see the figure given below) is in conformity with the provisions of the Standards of Weights and Measures Act , 1976 ( 60 of 1976 ) and the Standards of Weights and Measures (Approval of Models ) Rules , 1987 and the said model is likely to maintain its accuracy over periods of sustained use and to render accurate service under varied conditions :

Now, therefore , in exercise of the powers conferred by sub - sections (7 ) and ( 8 ) of Section 36 of the said Act, the Central Government hereby issues and publishes the certificate of approval of the model of non - automatic weighing instrument ( Platform type ) with digital indication of medium accuracy ( accuracy class - 111j of series "OPW" and with brand name " OMEGA " ( hereinafter referred to as the said Model ) , manufactured by Mis . Omega Ilectronic Scale Co Ltd. , 29-13 , Elecronics Complex, Chambaghat Tehsil , Dist . Solan , H.P. and which is assigned the approval mark IND - 09-08-176:

The said model is a strain gauge type load cell based non - automatic weighing instrument ( Platform type ) with a maximum capacity of 1000 kg . and minimum capacity of 4 kg . The verification scale intervalte ) is 200g . It has a tare device with a 100 per cent subtractive retained tare effect . The Light Emitting Diode (LED ) indieares the weighing results . The instrument operates on 230 Volts and 50 Hertz alternative current power supply.

Sealing provision of the indicator of the model

For sealing the indicator. from lett side two holes are made by cutting the outer cover and bottom plate and fastened by a leaded wire fer receiving the verification stump seal . The instruinent can not be opend without tampring the seal . A typical schematie diagram of sealing provision of the model is given above.

Further , in exercise of the powers conferred by sub - section ( 12 ) of Section 3h of the sand Act , the Centraf Government hereby declares that this certificate of approval of the said model shall also cover the weighing instruments of similar make , accuracy and performance of same series with maximum capacity above 50 kg . and upto 5000 kg . with verification scafe interval ( n ) in the range of 500 to 10.000 for' e ' value of 5g or more and with e salue of 1102-10 or 5x10 , where k is a positive or negative whole number or equal to zero manufactured in the same manufacturer accordance with the same principle , design and with the same materials with which , the seed approved model has been manufactured

1 No. WM -21147 ) 2008

R. MATHURBOOTHAM Director of Legal Metrology 5485 [भाग ] 1- खण्ड 3 (ii) )

भारत का राजपत्र : अक्तूबर 4, 2008/आश्विन 12 , 1930

नई दिल्ली, 25 जुलाई , 2008

का.आ . 2774.-केन्द्रीय सरकार का, विहित प्राधिकारी द्वारा उसे प्रस्तुत रिपोर्ट पर विचार करने के पश्चात् यह समाधान हो गया है कि उक्त रिपोर्ट में वर्णित मॉडल ( नीचे दी गई आकृति देखें ) बाट और माष मानक अधिनियम , 1976 ( 1976 का 60 ) तथा बाट और माप मानक ( मॉडलों का अनुमोदन ) नियम , 1987 के उपबंधों के अनुरूप है और इस बात की संभावना है कि लगातार प्रयोग की अवधि में भी उक्त मॉडल यथार्थता बनाए रखेगा और विभिन्न परिस्थितियों में उपयुक्त सेवा प्रदान करता रहेगा;

अतः , अब , केन्द्रीय सरकार, उक्त अधिनियम की धारा 36 को उप - धारा ( 7 ) और उप - धारा ( 8 ) द्वारा शक्तियों को प्रयोग करते हुए मैसर्स ओमेगा इलैक्ट्रानिक स्केल कं. लि. , 29 - बी, इलैक्ट्रोनिक्स काम्पलैक्स , चम्बाघाट तहसील , जिला सोलन , हिमाचल प्रदेश द्वारा विनिर्मित मध्यम यथार्थता ( यथार्थता वर्ग- III ) वाले " ओ टी डब्ल्यू" श्रृंखला के अंकक सूचन सहित अस्वचालित तोलन उपकरण ( टेबल टाप प्रकार ) के मॉडल का, जिसके ब्रांड का नाम " ओयेगा " है ( जिसे इसमें इसके पश्चात् उक्त मॉडल कहा गया है ) जिसे अनुमोदन चिह्न आई एन डी/09/08/ 175 समनुदेशित किया गया है , अनुमोदन प्रमाण- पत्र जारी करती है ।

उक्त मॉडल एक विकृत गेज प्रकार का भार खेल आधारित अस्वचालित तोलन उपकरण ( टेबलटाप प्रकार ) है । इसकी अधिकतम क्षमता 10 कि.प्रा. है और न्यूनतम क्षमता 40 प्रा. है । सत्यापन मापमान अंतराल ( ई ) 2 ग्रा. है । इसमें एक आधेयतुलन युक्ति है जिसका शत प्रतिशत व्यवकलनात्मक धारित आधेयतुलन प्रभाव है । प्रकाश उत्सर्जक डायोड ( एल ई डी ) प्रदर्श तोलन परिणाम उपदर्शित करता है । उपकरण 230 वोल्ट और 50 हर्ट्ज प्रत्यावर्ती धारा विद्युत प्रदाय पर कार्य करता है ।

0000

मॉडल को सीलिंग करने के प्रावधान का योजनाबद्ध डायग्राम

तुला को सील करने के लिए , बाईं ओर से चाहरी कवर और तल प्लेट को काटते हुए दो छेद किए जायेंगे तथा स्टाम्प सोल का सत्यापन प्राप्त करने के लिए इन्हें सीसेदार तार से कसा जायेगा । उपकरण की सील की तोड़े बिना खोला नहीं जा सकेगा । मॉड को सीलबंद करने का एक प्रारूपी योजनाबद्ध डायग्राम उपरोक्त दिया गया है ।

और केन्द्रीय सरकार उक्त अधिनियम की धारा 36 की उप - धारा ( 12 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते और यह घोषणा करती है कि उक्त मॉडल के अनुमोदन के इस प्रमाण- पत्र के अंतर्गत उसी विनिर्माता द्वारा उसी सिद्धांत , डिजाइन के अनुसार और उसी सामग्री से जिसस उक्त अनुमोदित मॉडल विनिर्माण किया गया है , विनिर्मित उसी श्रृंखला के वैसे ही मेक, यथार्थता और कार्यपालन के तांलन उपकरण भी होंग 100 मि.ग्रा. से 2 ग्रा. तक के " ई " मान के लिए 100 से 10,000 तक की रेंज में सत्यापन मापमान अंतराल ( एन ) और 5 ग्रा. या उससे अधिक के " ई" मान के लिए 500 से 10,000 तक के रेंज में सत्यापन मापमान अंतराल ( एन ) सहित 50 कि.ग्रा. की अधिकतम क्षमता वाले हैं और "ई" मान 1 × 10* , 2× 10*, 5 × 10*, के हैं, जो धनात्मक या ऋणात्मक पूर्णांक या शून्य के समतुल्य हैं ।

[फा.. हब्ल्यू एम -21 ( 47 )/2008 ] आर. पाथुरबूथम निर्देशक, विधिक पाःनि 5486

THE GAZETTE OF INDIA OCTOBER 4 , 2008 /ASVINA 12, 1930 [PART II- SEC . 3 ( ii ) ]

New Delhi , the 25th July, 2008

5.O. 2774. Whereas the Central Government , after considering the report submitted to it by the prescribed authority, is satisfied that the model described in the said report ( see the figure given below ) is in conformity with the provisions of the Standards of Weights and Measures Act , 1976 (60 of 1976) and the Standards of Weights and Measures (Approval ofModels) Rules, 1987 and the said model is likely to maintain its accuracy over periods of sustained use and to render accurate service under varied conditions:

Now, therefore, in exercise of the powers conferred by sub- sections (7) and ( 8 ) of Section 36 of the said Act , the Central Government hereby issues and publishes the certificate of approval of the model of non -automatic weighing instrument (Table top type) with digital indication of medium accuracy (Accuracy class - ill) of series " OT'W " and with brand name"OMEGA" (hereinafter referred to as the said Model ) , manufactured by Ms. Omega Electronic Scale Co. Ltd. , 29-B , Electronics Complex , Chambaghat Tehsil , Dist . Solan , H.P. and which is assigned the approval mark IND/ 09-08: 175;

The said model is a strain gauge type load cell based non - automatic weighing instrument ( Table top type ) with a maximum capacity of 10kg and minimum capacity of 40g. The verification scale interval ( e ) is 2g. It has a tare device with a 100 per cent subtractive retained ture effect. The Light Emitting Diode ( LED ) display indicates the weighing results The instrument operates on 230 Volts and 50 Hertz alternative current power supply.

0000

Sealing provision of the indicator of model .

For seating the balance, from left side two holes are made by cutting the outer cover and bottom plate and fastened by a leaded wire for receiving the verificajon stamp seal . The instrument can not be open without tampering the seal . A typical schematic diagram of sealing provision of the model is given above.

Further, in exercise of the powers contented by sub - section ( 12 ) of Section 36 of the said Act, the Central Government hereby declares that this certificate of approval of the said model shall also cover the weighing instruments of similar make , accuracy and performance of saime series with maximum capacity up to 50 kg . with verification scale interval (n) in the range of 100 to 10,000 for ' e ' value of 100mg . to 2g , or with verification scale interval ( n ) in the range of 500 to 10,000 for ' e' value of 5g. or more and with ' e' value of 1 × 10 , 2 × 10k or 5x10 , where k is a positive or negative whole number or equal to zero imanufactured by the same manufacturer in accordance with the same principle , design and with the same materials with which , the said approved model has been manufactured.

[ F. No. WM -21 (47)/2008 )

R. MATHURBOOTHAM , Director of Legal Metrology 5487 [भाग II- खण्ड 3 (ii) )

भारत का राजपत्र: अक्तूबर 4, 2008/आश्विन 12 , 1930

भारतीय मानक ब्यूरो

नई दिल्ली, 23 सितम्बर , 2008

का.आ. 2775.-भारतीय मानक ब्यूरो नियम , 1987 के नियम 7 के उप - नियम ( 1 ) के खंड ( ख ) के अनुसरण में भारतीय मानक ब्यूरो एतद्द्वारा अधिसूचित करता है कि जिन भारतीय पानकों के विवरण नीचे अनुसूची में दिए गए हैं वे स्थापित हो गए हैं :-

अनुसूची

स्थापित्त तिथि स्थापित भारतीय मानक ( कों ) की संख्या , वर्ष और शीर्षक

क्रम संख्या

नये भारतीय मानक द्वारा अतिक्रमित भारतीय मानक अथवा मानकों, यदि कोई हो, की संख्या और वर्ष

(1)

(2)

(3)

(4) 1.

मई 2008 आई एस 14700 ( भाग 4/अनुभाग 9 ): 2008 आई ई सी 61000-4-9 :2001 विद्युत चुम्बकीय संगतता (ई एम सी) भाग 4 परीक्षण और मापन तकनीकें अनुभाग 9 पल्स चुम्बकीय क्षेत्र प्रतिरक्षा परीक्षण (पहला पुनरीक्षण)

मई 2008 आई एस 14700 ( भाग 4/अनुभाग 1 ): 2008 आई ई सी 61000-4-1:2006 विद्युत चुम्बकीय संगतत्ता ( ई एम सी ) भाग 4 परीक्षण और मापन तकनीक अनुभागं 1 आई ई सी 61000-4 सीरीज का अतिक्रमण (पहला पुनरीक्षण)

मई 2008 3. आई एस 14700 ( भाग 6/अनुभाग 1 ): 2008 आई ई सी 61000-6-1:2005 विद्युत चुम्बकीय संगतत्ता (ई एम सी ) भाग 6 सामान्य मानक अनुभाग । आवासीय , व्यापारिक और सरल औद्योगिक वातावरण के लिए प्रतिरक्षा

मई 2008 4. आई एस 14700 ( भाग 4/अनुभाग 15 ): 2008 आई ई सी 61000-4-15:2003 विद्युत चुम्बकीय संगतता ( ई एम सी) भाग 4 परीक्षण और मापन तकनीकें अनुभाग 15 फ्लिकरमीटर - कार्यात्मक एवं डिजाइन विशिष्टियाँ (पहला पुनरीक्षण )

मई 2008 आई एस 14700 ( भाग 4/ अनुभाग 2 ): 2008 आई ई सी 61000-4-2:2001 विद्युत चुम्बकीय संगतता ( ई एम सी ) भाग 4 परीक्षण और मापन तकनीकें अनुभाग 2 वैद्युत- स्थैतिक उत्सर्जन प्रतिरक्षा परीक्षण (पहला पुनरीक्षण)

मई2008 आई एस 14700 ( भाग 3/अनुभाग 2 ): 2008 आई ई सी 61000-3-2:2005 विद्युत चुम्बकीय संगतता ( ई एम सी ) भाग 3 सीमाएँ, अनुभाग 2 संसगत धारा उत्सर्जन की सीमा ( उपस्कर निवेश धारा ≤ 16 ए प्रति फेज) (पहला पुनरीक्षण)

जुलाई 2008 7. आई एस 4545: ( भाग 1 ) :2008 टेलिविजन प्रसारण ट्रांसमिशन के लिये रिसीवर मापन की पद्धतियां भाग । सामान्य प्रयोजन ( दूसरा पुनरीक्षण) 5488

THE GAZETTE OF INDIA: OCTOBER 4 , 2008 / ASVINA 12 , 19.30

PART II-SEC. 3 ( ii) ]

(3)

(4) (2)

( 1)

जुलाई 2008 आई एस 4545 : ( भाग 2 ) :2008 टेलिविजन प्रसारण ट्रांसमिशन के लिये रिसीवर मापन की पद्धतियां भाग : ट्यूनिंग के गुणधर्म और सामान्य अपेक्षाएं ( दूसरा पुनरीक्षण )

जुलाई 2008 9. आई एस 14700 ( भाग 3/ अनुभाग 3 ) : 2008 आई ई सी 61000-3-3 : 2005 विद्युत चुम्बकीय संगतता ( ई एम सी ) भाग 3 सीमाएँ अनुभाग 3 प्रति फेज़ 16 ए या इससे कम रेटित धारा के उपस्कर के लिए तथा सशर्त कनेक्शन पर लागू नहीं होने वाले उपस्कर के लिए निम्न बोल्टता आपूर्ति तंत्र में साल्टंज में बदलाव , वोल्टेज में उतार चढ़ाव और सार्वजनिक निम्न बोल्टता प्रणाली में फ्लिकर की सीमा ( प्रथम पुनरीक्षण )

इस भारतीय मानक की प्रतियाँ भारतीय मानक ब्यूरो , मानक भवन , १ , बहादुरशाह जफर मार्ग, नई दिल्ली 110002 , क्षेत्रीय कार्यालयों: नई दिल्ली , कोलकाता , चण्डीगढ़ , चेन्नई , मुम्बई तथ्य शाखा कार्यालयों : अहमदाबाद , बादल? भोपाल, भुत्रनेश्वर , कांयम्बतूर , गुवाहटो, हैदराबाद, जयपुर, कानपुर, नागपुर , पटना , पुणे तथा तिरूवनन्तापुरम में बिक्री हेतु उपलब्ध हैं।

[ संदर्भ एल टो डो/जी 75 |

लक्ष्मण स्वरूप , कृतं प्रमुख ( एन आई टी डी )

BUREAU OF INDIAN STANDARDS

New Delhi , the 23rd September , 2008

S.O. 2775 .-... In pursuance of clause ( b ) of sub - rule ( 1 ) of Rule 7 of the Bureau of Indian Standards Rules , 1987 , the Bureau of Indian Standards hereby notifies that the Indian Standards , particulars of which are given in the Schedule hereto annexed have been established on the date indicated against each :

SCHEDULE

No. and Year of the Indian Standards Established

Date of Established SI . No.

No. and year of Indian Standards . if any , Superseded by the New

Indian Standard

( 1 )

(2)

(3)

(4) 1 . IS 14700 ( Part 4 Sec 9 ) : 2008

May. 2008 TEC 61000-4-9 : 2001 Electromagnetic Compatibility ( EMC) Part 4 : Testing and Measurement Techniques Seciton : Pulse Magnetic Field lemmunity Test (First Revision )

May. 2008 15 11700 (Part 1. See 11 : 2008 IEC 61000-4-1.2006 Electromagnetic Compatibility ( EMC ) Part 4: Testing and Measurement Techniques Secitonthers jew of IEC 6100-4 Series ( First Revision )

3. IS 14700 ( Part 6 Sec 1 ) :2008

May, 2008 IEC 61000-6-1.2005 Electromagnetic Compatibility (EMC ) -- Part 6 : Generic Standards Section | Immunity For Residential . Commercial and Light - Industrial Environments 5489 भारत का राजपत्र: अक्तूबर 4, 2008/आश्विन 12. 1930

[ भाग ।। - खण्ड 3 ( ii) ]

(4)

(3)

(1)

(2)

May,2008 IS 14700 (Part4/Sec 15) :2008 IEC 61000-4-15:2003 Electromagnetic Compatibility (EMC) Part 4: Testing and Measurement Techniques Seciton 15: Flickermeter-Functional and Design Specifications ( First Revision)

May,2008 (EMC) Part 4 : Testing and Measurement Techniques

IS14700 (Part 4/Sec (2):2008 IEC 61000-4-2:2001 Electromagnetic Compatibility Seciton 2: Electrostatic Discharge Immunity Test (First Revision)

May, 2008 6. IS 14700 (Part 3/ Sec 2):2008 IEC61000-3-2: 2005 Electromagnetic Compatibility (EMC) Part 3: Limits Section 2: Limits for Harmonic Current Emissions (Equipment Input Current ≤ 16 A per Phase) (First Revision)

July,2008 IS4545 (Part 1 ):2008

Methods ofMeasurement on Receivers for Television Broadcast Transmissions Part 1 General considerations (Second Revision)

July,2008 8. IS4545 ( Part 2):2008 Methods ofMeasurement on Receivers for Television Broadcast Transmissions Part 2 Tuning Properties and General Meaurements ( Second Revision)

9. IS 14700 ( Part 3 /Sec 3 ):2008

July, 2008 IEC61000-3-3:2005 Electromagnetic Compatibility (EMC) Part 3 : Limits Section 3 Limitation ofVoltage Changes, Voltage Fluctuations and Flicker in Public Low-Voltage Supply Systems for Equipment with Rated current ≤ 16 A per Phase and not subject to Conditional Connection ( First Revision )

Copy of this Standard is available for sale with the Bureau of Indian Standards , Manak Bhavan , 9 Bahadur Shah Zafar marg, New Delhi - 110002 and Regional Offices: New Delhi , Kolkata , Chandigarh , Chennai , Mumbai and also Branch Offices: Ahmedabad, Bangalore , Bhopal , Bhubaneshwar, Coimbatore, Guwahati , Hyderabad, Jaipur , Kanpur , Nagpur , Patna , Pune , Thiruvananthapuram.

[Ref: LTD/G -75 )

LAXMAN SWAROOP , Head ( LITD)

नई दिल्ली, 24 सितम्बर, 2008

का.आ. 2776.--भारतीय मानक ब्यूरो प्रमाणन विनियम 1988 के नियम 5 के उपनियम 6 के अनुसरण में भारतीय मानक ब्यूरो एत‌द्वारा अधिसूचित करता है कि निम्न विवरण वाले लाइसेंसों को उनके आगे दर्शायी गई तारीख से रद्द कर दिया गया है :-26-6-2008 से 25-7-2008

अनुसूची

रद्द करने की तिथि लाइसेंसधारी का नाम व पता

लाइसेंस संख्या

क्रम संख्या

लाइसेंस के अंतर्गत वस्तु/ प्रक्रम सम्बद्ध भारतीय मानक काशीर्षक

2-7-2008 1 .

भा. मा. 2878 :2004

7264473 एव्हरेक्स फायर प्रोटेक्शन इंडस्ट्रिज यूनिट नं 18. शरद इंडस्ट्रियल इस्टेट , लेक रोआ , भांडुप पश्चिम मुंबई -400078

[सं. सीएमडी/ 13 : 13 ] 5490

THE GAZETTE OF INDIA OCTOBER 4. 2008 / ASVINA 12, 1930

PAR: 11- SE 3 (

New Delhi , the 24th September , 2008

S.O.2776. In pursuance of sub- regulation ( 6 ) of regulation 5 of the Bureau of Indian Standards ( Certification ! Regulations, 1988 , the Bureau of Indian Standards herehs notifies that the licences particulars, of which tre given in the follwing schedule have been cancelled with effect from the date indicated against each : 126-1-2008 10 25-07-2008 )

SCHEDULE

Name and Address of the licensee

Dine of Cancellation SI No.

Licence No.

Article Process with relevan Indian Standard covered by the licence cancelled

7264473

IS2878: 2004

2-7-2008 Everex( Fire Protection ) Industries

Unit No. 18 , Sharad Industrial Estate. Lake Roa , Greater Bombay, Bhandup (W) Maharashtra 400078

[No. CMD13.13 ]

P. K. GAMBELIR, Dr. Director General ( Marksi

नई दिल्ली, 24 सितम्बर , 2008

का.आ. 2777.-भारतीय मानक ब्यूरो ( प्रमाणन ) विनियम, 1988 के नियम 4 के उर्पानधम वः अनुसरण में भारतीय मानक ब्यूरो एत‌द्वारा अधिसूचित करता है कि जिन लाइसेंसों के विवरण नीचं अनुसूची में दिए गए हैं, वे स्वीकृत कर दिए गए हैं :

अनुसूची

उत्पादन

वैश्रता दिनांक लाइसेंस धारकों का नाम और पता

भा. याः भागःविभागः वर्ष क्रम सं.

लाइसेंस सं

14543 :2004

पैकेजबंद पेयजल

1 7853997 26-06-2009 परफेक्ट ड्रिकिंग वॉटर हाऊस संख्या 38 , पौला टिप , गांवा-बेल्हा, गोवा-403108

पैकेजबंद पेयजल

14543 :2014 2 7844693 10-6-2009 पाटिल एन्टरप्राइझंस एस आर संख्या-3-91/1 और 92/2 , कोलके गाँव , रायगढ़ , पनवेल , महाराष्ट्र राज्य ।

[सं. सीएमडी/ 13:11

पी. गम्भीर , उप महानिदेशक

NewDelhi , the 24th September, 2008

S.O. 2777. In pursuance ofsub- regulation (5 ) of Regulation 4 of the Bureau of Indan Standards ( Certification ) Regulations 1988 , the Bureau of Indian Standards, hereby notifies the grant of licences particulars of which are given below in the following schedule. :

SCHEDULE

Product

IS No.. Part Sec.Year Date Validity

Licence No.

Sl No.

Name andAddress ( factory ) oftheParty

6 26-06-2009

17853997

14543.2004 Perfect Drinking Water HouseNo. 38 , Moula-Batı Gua-Velha Goa 403108

Packaged Drinking Water (other than Packaged Natural Mineral Water) [भाग - खण्ड 3 (i ) )

1 2

10-05-2009

2 7844693

Patil Enterprises Sr. No. 3-9/ 1 & 92/2, Village Kolkhe Panvel , Disı . Raigad

5491

भारत का राजपत्र : उत्क्तूबर 4 , 2008/आश्विन 12 , 1930

14543:2004 PackagedDrinking Water (other than Packaged Natural Mineral Water)

[No.CMD/13: 11 ] P. K. GAMBHIR, Dy. Director General

नई दिल्ली , 25 सितम्बर , 2008

का.आ. 2778. भारतीय मानक ब्यूरो नियम , 1987 के नियम ? के उपनियम ( 1 ) के खंड ( ख ) के अनुसरण में भारतीय मानक ब्यूरो एतद्‌द्वारा अधिसूचित करता है कि जिन भारतीय मानकों के विवरण नीचे अनुसूची में दिए गए हैं वे स्थापित हो गए हैं :-

क्रम संख्या

स्थापित भारतीय मानक( कों) की संख्या, वर्ष और शीर्षक

(2)

(1)

1. संशोधन संख्या । -आई एस 7884 :2008 शैम्पूपृष्ठ सक्रियक से बना-विशिष्टि (तीसरा पुनरीक्षण)

अनुसूधी

स्थापित तिथि नये भारतीय मानक द्वारा अतिक्रमित भारतीय भानक अथवा मानकों, यदि कोई हो , की संख्या और वर्ष

(4) (3)

सितम्बर 2008 कुछ नहीं

इस भारतीय मामक की प्रतियाँ भारतीय मानक ब्यूरो , मानक भवन , 9. बहादुरशाह अफर मार्ग , नई दिल्ली -110002 , क्षेत्रीय कार्यालयों नई दिल्ली , कोलकाता , चण्डीगढ़ , चेन्नई , मुम्बई तथा शाखा कार्यालयों अहमदाबाद , बंगलौर , भोपाल , भुवनेश्वर , कोयम्बतूर , गुवाहाटी, हैदराबाद , जयपुर, कानपुर , नागपुर, पटना, पुणे तथा तिरूवनन्तापुरंभ में बिक्री हेतु उपलब्ध हैं।

[संदर्भ: पीसीडी/जी -7 ( गजट) ] डॉ. ( श्रीमती ) विजय मलिक , निदेशक एवं प्रमुख ( पीसीडी)

New Delhi , the 25th September, 2008

S.O. 2778.-In pursuance of clause (b) of sub- rule ( 1 ) of Rule 7 ofthe Bureau of Indian Standards Rules, 1987, the Bureau of Indian Standards hereby notifies that the Indian Standards, particulars of which are given in the Schedule hereto annexed have been established on the date indicated against each:

SCHEDULE

SL No.

No. & Year and title of the Indian Standards Established

(2)

(1)

1. Amendment No. 1 to IS 7884 :2008 Shampoo , surfactant based Specification (Third Revision)

Date of Established No. &Year of Indian Standards , if any, superseded by the New Indian Standard

(3)

(4)

None

September 2008 Copyofthis Standard are available for sale with the Bureau of Indian Standards, Manak Bhavan , 9, Bahadur Shah Zafar Marg, New Delhi - 110002 and Regional Offices: New Delhi , Kolkata, Chandigarh , Chennai , Mumbai and also Branch Offices: Ahmedabad, Bangalore , Bhopal , Bhubaneshwar , Coimbatore , Guwahati , Hyderabad, Jaipur , Kanpur, Nagpur, Patna, Pune, Thiruvananthapuran.

3631 G1/2008-6

[Ref: PCD/G-7 (Gazette) ] Dr. (Mrs.) VIJAY MALIK, Director and Head (PCD) 5492

THE GAZETTE OF INDIA: OCTOBER 4, 2008/ASVINA 12, 1930

श्रम एवं रोजगार मंत्रालय नई दिल्ली , 8 सितम्बर , 2008

का. आ. 2779. औद्योगिक विवाद अधिनियम, 1947 (1947 का 14 ) की धारा 17 के अनुसरण में केन्द्रीय सरकार भारतीय खाद्य निगम के प्रबंधत्तंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच अनुबन्ध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ श्रम न्यायलय नं. -1 , चण्डीगढ़ के पंचाट ( संदर्भ सं. 7/2004) को प्रकाशित करती है, जो केन्द्रीय सरकार को 8-9-2008 को प्राप्त हुआ था ।

(सं. एल-22012/74/2003-आईआर( सीएम -11 ) ] अजय कुमार गौड़ , डेस्क अधिकारी MINISTRY OF LABOURAND EMPLOYMENT New Delhi , the 8th September , 2008 S.O. 2779.- In pursuancersuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ), the Central Government hereby publishes the award ( Ref. 7/2004 ) of the Central Government Industrial Tribunal - cum-Labour Court No.1 , Chandigarh as shown in the Annexure , in the industrial dispute between the management of Food Corporation of India , and their workmen which was , received by the Central Government on 8-9-2008.

[No. L-22012/ 74/2003 - IR( CM - II ) ] AJAY KUMAR GAUR , Desk Officer

ANNEXURE

BEFORE SERIG TANENDRA KUMARSHARMA, PRESIDINGOFFICER, CENTRAL GOVERNMENT INDUSTRIALTRIBUNAL CUM - LABOUR COURT- 1 , CHANDIGARH

Case No I.D./20

Sh . Raj Kumar SeShrimat Rai R/ o Janta Preet Nagar , NearNew Grain Market.Ferozepur City, Ferozepur.

[PART I- SEC. 3( ii) ) .2. The present reference was made by the Central Govt. on the failure of conciliation proceedings for adjudication of the matter referred in the schedule referred above and the workman prayed for declaring the action of the management as illegal and invalid and for reinstatement in service with full back wages and all consequential benefits inthe interest of justice , equity and fair play.

The management turned up and opposes this application.

As per office memorandum dated 30-4-2008 this case was fixed in pre lok adalat meeting on 25-8-2008 for its disposal by adopting the mediation and conciliation mechanism . The representative of the workman Shri B. N. Sehgal made a statement that the workman does not want to pursue with the present reference and the same may be dismissed as withdrawn . It is propose to dispose off this reference in Lok Adalat Accordingly the reference is returned to the Central Govt , as withdrawn in Lok Adalat Central Govt .be informed. File be consigned to record. Chandigarh G.K.SHARMA , PresidingOfficer 25-8-08

नई दिल्ली. 8 सितम्बर , 2008

का, आ. 2780. औद्योगिक विवाद अधिनियम , 1947 (1947 का 14 ) की धारा 17 के अनुसरण में केन्द्रीय सरकार इलेक्ट्रॉनिक्स टेस्ट एण्ड डवलपमेन्ट संन्टर के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच अनुबन्ध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ श्रम न्यायलय नं. - 1, चण्डीगढ़ के पंचाट ( संदर्भ सं. 217/ 2K2 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 8-9-2008 को प्राप्त हुआ था । [सं. एल-42012133 / 2002- आई आर (सीएम- [ [ ] ] अजय कुमार गौड़, डेस्क अधिकारी NewDelhi , the 8th September, 2008

Applicant

Versus

The Distt . Manager , Food Corporation of India , Bus Stand Road , Ferozepur Cantt . , Ferozepur.

The Senior Regional Manager . Food Corporation of India . SCO 356-59 , Sector 3-4 -A. Chandigarh

..... Respondent APPEARANCES

For the workinan: Shri B.N. Seligal Advocate . For the management : Shri N.K. Zakhmi Advocate .

AWARD Passed on 15-8-2008

Central Govt vide notification No. L -22012/ 74:2003 IR ( CM - II ) dated 30-1-2094 , has referred the following dispute to this Tribunal for adjudication:

"Whether the action of the management of Food Corporation of India , Ferozepur Cantt . , in terminating the services ofSh . Raj Kumar, ancillary labour w.e.l. 30-6-1999 is legal andjustified ? Ifnot, to what relief the workman is entitled to and from which date? " S.O. 2780.-In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ), the Central Government hereby publishes the award ( Ref. No. 217/ 2K2) of the Central Government industrial Tribunal - cum- Labour Court No.1 , Chandigarh as shown in the Annexure. in the Industrial dispute between the management of Electronics Test and Development Centre and their workmen, which was received by the Central Govemment оп 8-9-2008.

[No. L-42012 / 123 /2002 - IR ( CM - 1 ] ) | AJAY KUMAR GAUR , Desk Officer ANNEXURE

BEFORE SHRIGYANENDRA KUMAR SHARMA, PRESIDING OFFICER CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM - LABOUR COURT,-1 , CHANDIGARH

Case No I. D. 217 /2K2

Sh . Kishori Lal Bhatt Sio Sh. Jagdish Parsad Bhatt, Village Kajheri , UT, Sector 52, Chandigarh

.....Applicant 5493 [ भाग 1 ]-खण्ड 3( ii ) ]

भारत का राजपत्र : अक्तूबर 4, 2008 /आश्विन 12 , 1930

Versus

TheSr. Director, Electronics Test & Development Centre, B-108, Industrial Area, Phase VIII Mohali . , Chandigarh .

Industrial dispute between the employers in relation to the management of Food Corporation of India, and their workman, which wasreceived by the Central Government on 8-9-2008.

....Respondent

APPEARANCES

[No. L-42011/ 18/1988- IR(C-IT) ] AJAY KUMAR GAUR, Desk Officer :None

For the workman

ANNEXURE

For the management : Shri R.P. RanaAdvocate

AWARD

passedon 26-8-2008

BEFORE SHRIGYANENDRAKUMAR SHARMA, PRESIDING OFFICER, CENTRALGOVERNMENT INDUSTRIALTRIBUNAL- CUM - LABOUR COURT- 1 , CHANDIGARH

Case No 1.D 85/89

Central Government vide notification No. L-42012/ 123/2002- IR( CM- II ) dated 30-10-2002 , has referred the following dispute to this Tribunal for adjudication:

Sh. Hari Krishan C/o Amritsar General Labour Union , Ekta Bhavan, Putlighar, Amritsar (Punjab)

Applicant

Versus

"Whether the action of the management of Electronics Test & Development Centre , Mohali in terminating the services of Sh. Kishori Lal Bhatt S/o Sh . Jagdish Prasad Bhatt, Canteen Boy Helper w.e.f. 10-2-2001 is legal andjustified? Ifnot, towhat relief the workman is entitled to and from what date?"

District Manager, Food Corporation of India , Rani ka Bagh , Amritsar (Punjab)

Respondent

APPEARANCES

For the workman : Sh . H.K. Gandotra .

For the management : Sh . N.K. Zakhmi

AWARD

Passed on 26-8-2008 2 No one is present , on behalf of workman . Learned representative ofthe management is also present. Since morning this reference has been called number of times . At 10.45 am , it was ordered to be placed before this Tribunal once again at 2 pm . It is 2.30 now and on repeated calls no one is present, inspite of having of full knowledge of the proceedings of this reference . The reference is as olid as referred to this Tribunal in the year 2002. On repeated calls since moming no one is present . Accordingly, the reference is dismissed in default for non- prosecution. Central Govemment.be informed accordingly. File to be consigned.

Central Govemment vide notification No. L-42011 / 18/1988 - IR(C - II ) dated 28-4-87, has referred the following industrial dispute regarding the workmen for Judicial adjudication:

G.K. SHARMA , Presiding Officer

Chandigarh

26-8-08

नई दिल्ली, 8 सितम्बर, 2008

"Whether the action of the management of Food Corporation of India in terminating the services of the following Watchmen eta 1-9-86 is lega ! ar justified? Ifnot , to whatrat tahe workmen concerned are entitled?"

The list of the workmen is as tows

1. Sh. Sakattar Singh.

2. Sh . Dilbagh Singh .

3.Sh . Rashpal Singh .

का. आ. 2781.-औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में केन्द्रीय सरकार भारतीय . खाद्य निगम के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच अनुबन्ध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ श्रम ऱ्यायालय नं. - 1 , चण्डीगढ़ के पंचाट ( संदर्भ सं. 85/1989 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 8-9-2008 को प्राप्त हुआ था ।

4. Sh .Gunnukh Singh S'o Sh. Mohan Singh.

5. Sh . Gurmukh Singh S/o Sh . Gyan Singin [सं. एल -42011 / 18 /1988-आईआर ( सी-11 ) ] अजय कुमार गौड़ , डेस्क अधिकारी

6. Sh .Ajit Singh .

New Delhi , the 8th September , 2008

7. Sh. Dalip Singh

The six workmen from Serial No. 1 to 6 filed the joint statement ofclaim , whereas , 7th one Sh . Dalip Singh filed the separate statement ofclaim with similar facts. It is the claim of he workman . " 11'hey were appointed and working S.O. 2781. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ), the Central Government hereby publishes the award (Ref. No. 85/1989) ofthe Central Government Industrial Tribunal - cum-Labour Court , No.1 Chandigarh as shown in the Annexure , in the 5494

THE GAZETTE OF INDIA : OCTOBER 4,2008 / ASVINA 12 , 1930

[PART [ I-SER . 3 ( 1 ) ]

Heard learned counsels for the parties . Learned counsel for the workmen argued that there existed a direct relationshipbetween the FCI and the workmen. They were directly under the control of the FCI , they were working under FCI under the instrucnons of the officers of FCT and they were paid, accordingly , directly by the FCI and not through any contractor. Learned counsel for the workinen relied upon certain case laws of Hon'ble Supreme Court , which I will discuss slighniy later. Through all these case laws, the learned counsel has argued that the direct relationship is established and al ! the workmen should be reinstated into the service with full back wages .

ns Watchmen as perinanent and regular employees against permanent post with the respondent Food Corporation of India. Their services were terminated by the management of respondent on 1-9-86 without prior notice or retrenchment compensation , except Sh . Ajit Singh whose services were terminated on 17-9-86 . All the workmen had completed 240 days in the service with the management of respondent and as their termination from the services were illegal and against the provisions of Industrial Disputes Act , they are entitled for reappointment on their reinstatement with the management of respondent with full back wages and consequential reliefs along with 18% interest with cost expenses incurred in perusing the case. Sh . Dalip Singh flied separate statement of claim on the similar facts that he worked with the management of respondentfrom 1-8-84 to 1-9-86 and without notice or retrenchment compensation , his services were terminated on 1-9-86 , and he is also entitled for reinstatement in the service as has completed 240 days of work with the management .

On the other hand , learned counsel for the management of FCI contended that barring 3 workmen who have worked for a very short time with the management directly, all the workmen had worked through outsourcing agencies (contractors ) and their existed no relationship of master and servant and no question of termination arise For rest three workmen it has been contended that they bave not completed 240 days in the preceding year froors the date of their re - engagement through contractors .

The main question for determination before this Tribunal in this reference is whether the workmen were working directly with the management or through the out- sourcing security agencies tcontractors)?

It is well settled law that the workmen have to prove that they have worked 2410 days in the preceding year from the date of their termination and were paid accordingly by the management . Hon'ble Apex Court in Range Forest Officer vs. S.T. ladinamı AIR 2002 , Supreme Court 1147 held that onus lies upon claimant to show that he had in fact worked tor 240 day's in a year. In absence of proof of receipt salary or wages or report of appointment , tiling of affidavitby the workmen is not sufficient evidence to prove that he had worked for 240 days in a year preceding to his termination . Accordingly , the onus lies on the workmen . 10 prove that they have worked with FCI for more than 240 days proceeding to the date of their termination and were paid by FCI accordingly. Mere filing of affidavits will not be sufficient . They have to prove this fuct by some cogent evidence. They filed certain documents which are their attendance sheets and duty charm .

The main objection of the management of FCI , as is evident from their written statement is that there is no master-servant relationship in between the workmen & management of FCL . Barring the workmen Dilbagh Singh , AjitSingh and Sakattar Singh , all the rest 4 employees were engaged through the outsourcing agencies i e . Security and Development Services Jalandhar and Bright Security Services. Amritsar . Both of these agencies , as contractor, provided the services of these workmen to the FCI and there was no master - servant relationship between the workmen and the FCI . FCI used to pay the dues of the workmen to the contractor agencies and , thereafter, the agencies used to pay the same to the workmen . The work which was carried on by the workmen was seasonut and not of permanent nature. Regarding workman Dilbagh Singh , it has been stated that prior to his engagement through the above mentioned 2 outsourcing agencies , he was appointed on D.C. approved rates from 1/82 to 3/85 and was paid accordingly. Regarding Ajit Singh , it has been stated that prior to his engagement through the outsourcing agencies ( contractors) , he worked for 15 days directly with the management and he was paid accordingly. Regarding workman Sakattar Singh , it has been stated that heworked directly with the management for 30 days in the month ofJanuary , 1985 to February, 1985 for which he was paid on the basis of D.C. rates and thereafter , he was re- engaged through the outsourcing agencies ( contractors ) .

I have heard learned coutisels and perused the entire materials on record. All the workmen tiled their afidavits and were cross - examined in detail . On behalf of the management of FCI , Ex- Subedar Sarup Singh, Deputy Director, Bright Security Services , Amritsar filed his aflidavin and he was cross - examined in detail . Sh . N.P.S Kohli . Regional Manager , FCI was also cross -examined as MW2 on his affidavit .

It is also important to merition that on behalf of the workmen , several applications v Filed for summoning of certain records. Previously . the application which was filed in the year 1993 , was dismissedby this Tribunal . Subsequently, few more applications were filed . During meantime, workmen preferred a writ petition before Hon 'ble the Punjab and Haryana High Court seeking the direction for this Tribunal for summoning the records . Hon'ble the High Court of Punjab and Haryana was kind enough to directs this Tribunal to summon all the records mentioned in the application which the workmen filed m the year 1993 , subject to the pay menm of 5,000 Rs . as cost .

भारत का राजपत्र : अक्तूबर 4 , 2008/ आश्विन 12 , 1930

[ भाग 1]- खण्ड 3 ( ii) ]

Accordingly, this Tribunal directed the management ofFCI for filing ofthe documents . Management filed documents consisting of almost 900 pages . To my suprise, during the course ofargument, not a single document was referredby learned counsel for the workmen . The proceedings for summoning ofdocuments took 15 years' time but when the documents were available to the workmen , as stated earlier , not a single document was referred. When the Tribunal itselfpointed out, leamed counsel for the workmen only answered that all the documents are in favour of the workmen. But this Tribunal is bound to peruse all the documents whether referred by the parties or not .

On the other hand , management has filed certain documents to prove that these workmen were working through contractors . Paper No.173 Ex. M - I is the letter written by Security and Development Services to the Assistant Manager, Food Corporation of India , Taran Taran containing the names of the persons for whose services were to be provided to the FCI , Taran Taran . The SecurityandDevelopment Services has also filed the photo- coples ofthe contracts singed by the workmen as Annexure M-II , M- III , M - IV and M -V. There is another letter ofBright Security Services Amritsar regarding the termination of service of 7 workmen .

The management of FCI has also filed certain documents from Bright Security Services which are relating to the employment of casual Watchmen and addressed to Assistant Manager, FCI , Taran Taran. These letters are regarding all the workmen . Likewise the Bright Security Services, Amritsar has also written a letter to Assistant Labour Commissioner (Central ) , Chandigarh informing him that services of all the workmen were terminatedby the Bright Security Services and requested that the matter may please be closed . These two letters regarding the termination of the services namely by Security and Development Agency and Bright Security Services were written to the Conciliation Officers ( Assistant Labour Commissioner, Chandigarh ) as a proof that the workmen wereworking in FCI through these agencies . Annexure 17 to 19 is the payment made to the service provider agencies. On the back of the letter total days of every workman is written by the FCI but the paymerit was made to the Security Agency through checks on recommendation of AGL/ AM/ DM, FCI as is clear from Annехиге -35.

In their cross- examination , the workman Sakattar Singh had admitted that he has received the payment for 7 days in the month of January , 1985 and for 13 days for February, 1985 but he has denied his disengagement in the month of February, 1985 , after taking wages for 13 days . In his evidence, he has denied any relationship with any of the security agencies and has stated that he has been directly engaged by FCI . The same evidence is given by rest of the workтел .

Bothofthe security agencies have filed their licenses as well . Sh. Sarup Singh Deputy Director of Security and

5495 Development Services was examined in the Court as well . He has categorically stated that Bright Security Services provided the Watchman to the FCI at Taran Taran.

It is true thatatPage No. 1 ofhis cross-examination, he has stated that attendance was reported in FCI and the payment was made by FCI to the worker but in the very next line he has stated that duty period of the worker was of 8 hours . The supervisory agency used to depute the workers to discharge their duties and the attendance register was maintainedby the supervisor of the agency. Likewise, MW2, N.P.S. Kohli has also denied the fact that the workmen were directly engaged by the FCI . Learned counsel for the workmen has relied upon the following case laws: - I. Bank ofBaroda Vs. Ghemar Ahai, Harji Bhai , Rabri , 2005-11 LLJ Page No. 235. In this case, Hon'ble the Apex Court has held that decree of proof required to separate claim of person to be workmen varies from one case to another. The facts of this case are quite different from the present case . In the case before the Supreme Court , there was a dispute regarding the termination of a drive who has filed the evidence regarding his appointment and payment . The respondent fails to file any evidence . In that case. there was no question involved as well that the services of the Driver were taken through the out- sourcing agency (contractor ) . In spite of it, the law laid down by Hon'ble the Apex Court on the burden ofproof shall be complied with by this Tribunal , wherever applicable.

2.HindustanTin Workers Private Ltd. Vs. Employees ofHindustan Tin Workers Private Lid . FJR Volume 5 Page 14. In this case, law laid down by Flon 'ble the Supreme Court is relating to the retrenchment and award of back wages in which it has been heldby Hon'ble the Apex Court that ordinarily, a workman whose services have been illegally terminated would be entitled to full wages , except to the extent he was gainfully employed during the enforced idolness . The dispute before this Tribunal in the instant case is whether the management of FCI engaged the workmen directly or their services were provided to the management of FCI by out-sourcing agencies (contractors)? Thus, the question of back wages arises after the determination of above mentioned question regarding the relationship between the workmen and the management .

3. Rajendra Kumar Kindra Vs. Delhi Administration , AIR 1984 Supreme Court - 1805 . This case is regarding thedismissal of an employee on his misconduct and the Facts of the instant case are altogether different as not applicable in the instant case.

4. Kapurthala Central Co- operative Bank Ltd. Vs. PresidingOfficer Labour Court, Jalandhar andOthers. 1994 FJR Page 95. This case is also relating to the 5496

THE GAZETTE OF INDIA : OCTOBER 4, 2008/ASVINA 12, 1930

back wages and reinstatement of the workmen who havebeen illegally retrenched from the service.

After few days of argument , through Speed Pust . the workmen also provided a copy ofHon'ble Apex Court judgment in U.P. State Electricity Board vs. Pooran Chand Pandey and Others . I have gone through this case law and the principle laid down in this case will be applied in the instant case as well,

Recently, in GMO and GC Shinchar Vs. ONGC Contractual Workers Union 2008 LLR 801 , Hon'ble the Apex Court of India had discussed the matter of contractual workmen . In this very case, the principles laid down by Hon'ble the Apex Court in R.K. Panda Vs. Steel Authority of India andOthers ( 84) 5, SCC - 304 were discussed. The Apex Court held as follows:-

(i) Where contract labour is engaged in or in connection with the work of an establishment and employment of contract labour is prohibited either because the Industrial adjudication/ court ordered abolition of contract labour or because the appropriate Government issued notification under Section 10 ( 1 ) of the CLRA Act, no automatic absorption of the contract labour working in the establishment was ordered;

(ii) Where the contract was found to be a sham and nominal , rather a camouflage , in which case the contraci labour working in the establishment of the principal employer were held , in fact and in reality , the employees of the principal employer , himself, Indeed, such cases do not relate to abolition of contract labour but present instances wherein the Court pierced the veil and declared the correct position as a fact at the stage after employment of contract labour stood prohibited;

( iii ) Where in discharge of a statutory obligation of maintaining a canteen in an establishment the principal employer availed the services of a contractor the Courts have held that the contract labour would indeed be the employces of the principal employer.

In the light of above observation . the Tribunal has 10 see the following facts:

1. Whether all these workmen were directly recruited by the management of FC' ] ?

2.Whether they were under the administrative control of the managemem of FCI?

3. Whether they were under the disciplinary action of the management of FC1?

4. Whether they were paid by the management of FCI directly? And

5. Whether the management of FCI exercised the power of punishtuent, removal and termination to these workmen?

The workmen have provided few documents which are the photo copies of attendance register in which the

[PART I-SEC . 3 ( ii ) ] attendance of workmen was marked. It is signed by the Assistant Manager of FCI . Likewise, duty- chart is also singed byAssistant Manager of FCI . In his evidence MW2, the Regional Manager , FCI has stated that sometimes he regulated the working of the workmen provided by security agencies and it was not the regular feature. Inthe ordinary circumstances , it is probable for FCI to engage the security persons at their option for security reasons out of the workmen who were provided by the security agencies . On the other hand , both of the security agencies namely Security and Development Services Jalandhar and Bright Security Services , Amritsar have filed the copies of their licenses. They have filed certain documents which proved that these agencies provided the services of workmen to the management of FCI . As per the documents , as referredearlier , filed by the management , it is also established that the FCI paid the dues of the workmen to the security agencies through cheques and the security agencies paid the wages of the workmen accordingly. Three workmen who have directly been engaged for sometime with the management of FC'I have not proved that they have completed 240 days before their re- engagement through the contractor with FCI and they were also paid for240 days directly by FCI .

Learned counsel for the workmen has also stated that the alleged service provider is nothing but a facewash, the contract with them is sham and actually the workmen have worked under the direct control of FCI . It has also been contended by learned counset for the workman that the FCI has failed to prove that it was authorized to engage the labour on contract through agencies which is violation or Section 10 ( 1 ) of the CLRA Act as is heldby Hon'ble Supreme Court in Steel Authority of India Ltd. und Others vs. National Union Water Fund Workers and Others 2001 (91 ) FLR 182, Supreme Court . Para 6 of the above judgment reads as under;-

"Ifthe contract is found to be genuine and prohibition notification under Section 10 [ ) of the CI.RA Act in respect of the concerned establishment has been issued by the appropriate Government . prohibiting employment of contract labourer in any process , operation or other work ofany establishment and where in such process , operation or other work of the establishment the principal employer intends to employ regular workmen he shall give préference to the erstwhile contract labourer , if otherwise found suitable and, if necessary, by relaxing the conditions as 10 maximum age appropriately taking into consideration the age of the workers at thetime of their initial employment by the contractor and also relaxing the condition as to academic qualifications other than technical qualifications . " Likewise,Hon'ble the Punjab and Haryana High Cour in a recent judgment titled as Food Corporation of India and Others Vs. Presiding Officer , Central Government [ndustrial Tribunal -cum-Labour Court- 1 . Chandigarh 2008、 LLR -391 has held:

[भाग II- खण्ड 3 ( ii) ]

1. Evenwhen the Management-Corporation did not speak registration under Section 7 of the Contract Labour (Regulation & Abolition ) Act on the date when the workmen were engaged, workers of the contractor will not be deemed to be the direct employees of the Management - Corporation.

2. If an industrial establishment is permitted to employ contract labourer through a contractor, engaging of such contract labour must be bona fide.

3. When it is found that engaging ofcontract labour was not bonafide and it was a mere camouflage then inthose cases, the contract labour by the principal employer is to be treated as employees ofthe principal employer, who can be directed to regularize services ofthe contract labour in the concerned establishment but the workmen did not so plead hence they will not be entitled to any relief.

4. If a principal employer does employ the persons through the contractor who is having no licence under Section 12 of the Contract Labour (Regulation and Abolition ) Act , then only penal provisions of Sections 23 and 25 ofthe saidAct are attracted, hence it isnowhere provided that such employees employed through the contractor would become employees of the principal employer.

5.The Scheme of the Contract Labour ( Regulation and Abolition ) Act reveals that it regulates the employment of contract labour in certain establishment and provides for its abolition in certain circumstances hence it does not provide for total abolition of contact labour.

6. Reinstatement of 6 workmen ofthe contractor, as awarded by the Labour Court being erroneous is liable to be set aside since there was no violation of Section 25F of the Industrial Disputes Act by the petitioner as principal employer.

On perusal all the materials on record in the present case, I am unable to find out a single piece evidence on behalf of the workmen regarding the claim of their appointment being through the contractor and regarding the contract between the contractor and the FCI being sham . This Tribunal is bound to confine itself within four corners of reference . The reference is regarding the termination of the services of the workmen by FCI . The workmen have claimed that they were directly recruitedby the management of FCI and their termination is illegal because it was made without notice and retrenchment compensation. The workmen nowhere in their statement of claim or even in evidence have challenged the contract , if any, to be sham or illegal . Thus , in absence of the claim of the workmen, this Tribunal , in my opinion has no power to discuss the above mentioned issue because , if FCI is permittedto employ contract labourer through a contractor , the contract must be bonafide. In case , it is found that

5497

भारत का राजपत्र : अक्तूबर 4, 2008/आश्विन 12 , 1930

engaging ofcontract labour was not bona fide and it was a mere camouflage then in those cases , the contract labour by the contractor is to be treated as the employee ofthe FCI . This is not the case of the workmen at all. In the pleading for evidence , it is not mentioned that their engagement through contractor was not bonafide and it was a mere camouflage. On the other hand, their case is that they were directly employed by the management corporation.

On the basis of the documents, filed by both of the parties and oral evidence adduced by them , I am of the viewthat all theworkmen at the time of their disengagement from the services were not the employees of FCI . Their services were provided by the above mentioned 2 out- sourcing security agencies as contractor to the management of FCI . Management of FCI has no administrative control over workmen during their services provided through these out-sourcing agencies. The workmenwere not paid directly by FCI . The entire payment ofwages was made to these out -sourcing agencies through cheques.Accordingly, no relationship of master and servant is established between his workmen and the management ofFCI .As there was no relationship ofmaster and servanı , there was no question for termination of the workmen by FCI . The services , as proved through the document, were terminated by the out sourcing agencies. The reference is accordingly, answered. Central Government be informed. Filebe consigned .

G.K. SHARMA , Presiding Officer नई दिल्ली , 8 सितम्बर , 2008

का. आ. 2782.-औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14) की धारा 17 के अनुसरण में, केन्द्रीय सरकार भारतीय खाद्य निगम के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबन्ध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ श्रम न्यायालय नं. -1 , चण्डीगढ़ के पंचाट ( संदर्भ सं. 139/1992 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 8-9-2008 को प्राप्त हुआ था ।

[सं. एल-22012/227/एफ/1992- आईआर ( सी-[[ ] ] अजय कुमार गौड़, डेस्क अधिकारी New Delhi , the 8th September, 2008 S.O. 2782. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947 ) , the Central Government hereby publishes the award (Ref. No. 139/1992) oftheCentral Government Industrial Tribunal-cum- Labour Court No. 1 , Chandigarh as shown in the Annexure , in the Industrial dispute between the employers in relation to the management of Food Corporation of India and their workmen, which was received by the Central Government on8-9-2008.

[No. L-22012/227/F/ 1992 - IR( C- II )] AJAY KUMAR GAUR, Desk Officer 5498

THE GAZETTE OF INDIA : OCTOBER 4, 2008/ASVINA 12 , 1930

ANNEXURE

BEFORE SHRI GYANENDRA KUMAR SHARMA, PRESIDING OFFICER, CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL- CUM - LABOUR COURT- 1 , CHANDIGARH

Case No 1.D 139/92

The District Manager , Food Corporation of India, Hoshiarpur (Pb .)

[PART II-SEC .3 ( ii) ] sealed. According to the marragement , these 123 bags of wheat were clandestinely placed in shed 'A' on the night of5/6.2.83 . Both of these workmen were on duty at depot from 4 p.m. - 12 p.m. ( Mid night ) on 5-2-83 and they were again put on duty on the vary next shift from 12 mid night to 8 A.M. on 6-2-83 . It is the contention of the management that during this period 123 bags of wheat were placed in shed 'A' ,

...Applicant

Versus

The State President , FCI , Class - IV, Employees Union B - ІІІ. Nabha Gate, Sangrur

...Respondent

APPEARANCES

For the workman: Sh . Hardayal Singh

For the management : Sh. Ravi Kant Sharma

AWARD

Passed on 1-9-2008

Government of India vide notification No. L-22012/ 227/F/92-1R(C- II ) dated 10-12-92, has referred the following industrial dispute for Judicial adjudication:

"Whether the action of the management of Food Corporation of India ordering compulsory retirement to Shri Balwant Singh , Head Wacthmen and Shri Tarsem Lal , Watchmen is legal andjustified? Ifnot , to what relief the concerned workmen are entitled to?"

The dispute between the parties , as is clear from their pleadings , is that on 5-2-83 the squad of district office checked the stock of wheat in Mukerian , in which the shortage of 122 bags of wheat was detected in shed ' B' . Shri Balwant Singh and Shri Tarsen Lal , the workmen in this instant case, along with the other employees present on the spot admitted the shortage of 122 bags and the shed' B ' was sealed. As the shed 'A ' was empty , it was not sealed and on 6-2-83 Assistant Manager ( depot), one of the delinquent official sent a telegram to the District Manager, Hoshiarpur which was received in district office on7-2-83 to the effect that 123 bags of wheat were lying in shed A'. The stocks were again checked on 9-2-83 and it was found that 123 bags of wheat were lying in shed 'A' Apart from the shortage of 122 bags ofwheat, while having theweight of 249 bags , a shortage of 61.80.200 quintals of wheat was also found .

There is a dispute between the parties that during the check of stocks on 5-9-83 , shed ' A' was not checked by the squad party and the Shortage of 122 bags of wheat was in shed' B '. On the other hand the management of the Food Corporation of India, had alleged that Shed ' A' was also checked and as it was found vacant , the same was not A preliminary enquiry was conducted in which the name of Shri Balwant Singh and Shri Tarsem Lal have not find place. It was thereafter , that the involvement of the workmen was shown on the ground that in the night of 5-2-83 and 6-2-83, both workmen were present on the spot and during this period within their knowledge , 123 bags of wheat was placed in shed ' A in order to make up the shortage and to prevent them from the consequences of shortage.

The enquiry of these two workmen Balwant sing and Tarsem Lal was conducted separately. Both of the workmen were charge sheeted for shortage of 122 bags of wheat and for unauthorizely brought 123 bags of wheat in the night of 5 /6-2-83 from outside and kept the same in shed no. A- 1 , to cover up the shortage . The charge sheet was regarding the misappropriation of 122 bags of wheat . shortage of 61-80-200 quintals of wheat and for keeping [23 bags of wheat inside the depot unauthorizedly . The enquiry officer conducted the enquiry against both of the workmen and after conducted the enquiry, he gave the report on 28-8-87 against the workmen to the effect that charges levelled against the workmen regarding misappropriation of 122 bags of wheat and bringing 123 bags ofwheat unauthorizely im depot to cover the shortage in connivarice with co- workers are proved , whereas other charge regarding partial shortage 0161-80-200 quintals of wheat is not proved.

After receiving the enquiry the disciplinary authority without issuing any show cause notice to the workmen and without opportunity of being heard ( personal hearing) on the proposed punishment . passed the punishment of compulsory retirement on 20-5-88 . The workinen preferred an appeal against this compulsory retirement order which was dismissed by the appellant authority on 27-1-89 . Thereafter, the workmen Balwant Singh and Tarsem Lal preferred an industrial dispute which was referred to this Tribunal on account of failure of conciliation proceedings in the office of Conciliation Officer .

I have heard learned counset for the parties and pursued the materials on the record . tearned counsel for the workmen has stated that enquiry was conducted against the principal of natural justice , proper opportunity was not given to them . Enquiry alficer was not properly appointed and the enquiry officer has not conducted the enquiry as per the procedure laid down in concerned rules.

भारत का राजपत्र : अक्तूबर 4, 2008/आश्विन 12 , 1930

[भाग II-खण्ड 3 (ii) ]

The main contention which the learned counsel for the workmest stressed again and again is that the copy of enquiry report was not given to the worknen. Theywere summarily punished with the order of compulsory retirement in violation of the principal of natural justice as no show cause notice was issued to them and opportunity for personnel hearing on the proposed punishment was not afforded,

On the other hand learned counsel for the management ofrespondent has contended that the enquiry was conducted strictly as per the rules applicable to the parties. It was not obligatory on the part ofthe disciplinary authority to provide the copy of the enquiry report to the workmen under the rules . Accordingly, the disciplinary authority in compliance of the concerned rules without supply the copy of enquiry report and without issuing the show cause notice has passed the order of punishment for compulsory retirement of the workmen.

Learned counsel for the parties have relied on certain case laws. I will consider the case laws while discussing the relevant issues .

The main questions before this tribunal for adjudication are:-.

(1) Whether the enquiry officer has conducted the enquiry in a fair, reasonable and proper manner and there has been no violation of any rules of principal of natural justice?

(2) Whether the enquiry officer has rightly held , on proper analysis ofall the materials on record, as the charge proved against the workmen regarding the shortage of 122 bags ofwheat on surprise check and unauthorizely placing 123 bags ofwheat in shed no. A- I ?

(3)Whether the non supply of copy of enquiry report will amount to the violation ofprinciple ofnatural justice? and ?

(4) whether the disciplinary authority has committed a procedural error by not issuing any show cause notice and declining the opportunity or hearing on purposed punishment ?

I have gone through the entire file of enquiry proceedings regarding both of the workmen. The procedure for conducting the enquiry is mentioned in regulation 60 of the Discipline and Appeal Regulations of the Food Corporation of India (staff) Regulations , 1971. I have gone through the entire procedure to be adopted by the enquiry officer while conducting the enquiry.. From the enquiry proceedings, it is clear that opportunity at every stage was given to theworkmen by the enquiry officer. Two witnesses were examined by the enquiry officer and workmen accordingly, cross -examined them . An opportunity for adducing the defence witness was also given which was not availed by the workmen . It was duty ofthe enquiry 3631 GL/2008-7

5499 officer to afford the opportunity for defense witnesses, which was given, and on non - adducing any defense witness the enquiry officer proceeded further . Thus , concerning the procedure adopted by the enquiry officer. I am of the view that the enquiry was conducted in a very fair and reasonable manner and there seems to be no violation of any rules of Principle ofNatural Justice.

Now, I have to discuss whether the enquiry officer has rightly concluded enquiry holding the charge against theworkmen regarding the shortage of 122 bags and placing 123 bags unauthorizely in shed no . B- 1 as proved . The three Judges Bench of Hon 'ble Apex Court in State of Haryana and another Vs. Rattan Singh 1977, ( 11 ) LLN 51 held as follows:-

" In a domestic enquiry the strict and sophisticated rules ofevidence under the Indian Evidence Act may not apply . All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. Departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian EvidenceAct. The essence ofa judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Fairplay is the basis and if perversity or arbitrariness , bias or surrender of independence of judgment vitiate the conclusions reached , such finding . even though of a domestic tribunal cannot be held good . The simple point is was there some evidence or was there no evidence not in the sense of the technical rules governing regular Cour proceedings but in a fair commonsense way as men o understanding and worldly wisdom as men o understanding and worldly wisdom accept. Viewed in thi way, sufficiency of evidence in proof or the finding by domestic tribunal is beyond scrutiny. Absence of any evidence in support ofa finding is certainly available fo theCourtto look into because it amounts to an error of lav apparent on the record" .

In the said case law , Hon'ble the Apex Court ha clearly established the law regarding the conductin enquiry and viewing the evidence by the Administrativ Tribunals and in departmental enquiries . On perusal ofthe materials on record, it is evident that the surprise check was made on 5-2-83 and 122 bags of wheat was found short in shed ' B ' . Regarding this incident of shortage on 122 bags of wheat, preliminary enquiry report was given on 6-2-83 . A telegram was send by Assistant Manager (depot) to the District Manager . Hoshiarpur with the facts that 123 bags ofwheat are lying in shed ' A' . This telegram was received in the District Office on 7-2-83 and agair there was a check whose report dated 17-2-83 is also or record.All the employees including the workmen who were present at the time of eheck on 5-2-83, admitted in writing 5500

THE GAZETTE OF INDIA : OCTOBER 4 , 2008/ ASVINA 12, 1930

[ PARI 11 - SEC. 3 (ii)]

"Whenever the enquiry officer is other than the disciplinary authority and the report of the inquiry officer holds the employee guilty of all or any of the charges with proposal for any punishment or not. the delinquent employee is entitled to a copy of the report to enable him to make a representation to the disciplinary authority against it and the non - furnishing of the report amounts to a violation ofthe rules of natural justice "

about the shortage of 122 bags in shed 'B ' which was sealed . None of them informed the check squad that 123 bags ofwheat are lying in shed 'A' . It is not the case of the workmen that at the time of checking by the squad. They forget by mistake to inform the checking squad that 123 bags ofwheat are lying in depot in shed 'A', After the sput checking dated 5-3-83 was over, it was a new fact which was brought to the notice of the District Authorities that 123 bags of wheat is lying in shed 'A' . Thus , this fact that suddenly the officials and the workmen present at the spot at the time of checking, informed the District Authorities about 123 bags of wheat in shed 'A ' and their failure to disclose this fact at the time of check has a reasonable nexus with the fact as alleged by the management of respondent that these bags were brought and keep in shed 'A' in between the night of 5-3-83 and 6-3-83.

It is not mere conjuncture and surmises of the enquiry officer but a fact proved by the two witnesses during the enquiry proceedings . Both of the witnesses who were present at the time of check as member of squad , and witnessed every proceedings , have adduced the evidence that during check, shed A - l was checked and it was not sealed because it was empty. Shed ' B ' was only sealed because there was a shortage of 122 bags of wheat which was admitted by the officials present at the spot . As shed 'A' was not saled , it gave an opportunity to keep 123 bags ofwheat, to escape from the liability of shortage.

The same issue was again discussed about the retrospective effect of the law land down by the Hon'ble Apex Court in Mohd . Ramzan Khan's case ( supra ) , by three Judges Bench of Hon'ble the Apex Court in Managing Director ECIL Hyderabad Vs. B. Karunakar A.I.R. 1994 . Supreme Court 1074. Hon 'ble The Apex Court in this case held that it was for the first time in Mohd . Ramzan Khan's case (supra) that the question squarely fell for decision before this Court. Hence till 20thNovember . 1990 i.e... the day on which Mohd . Rantizan Khan's case ( supra ) was decided, the position of law on the subject was not settled by this Court. It is for the first time in Mohd . Rantzan Khan's case(supra) that this Court laid down the law. That decision made the law laid down by Supreme Court prospective in operation , i.e. , applicable to the urders of punishment passed after 20th November , 1990 The law laid downwas not applicable to the orders of punishment passed before that date notwithstanding of the fact that the proceedings arising out of the same were pending in courts after that date. The said proceedings Jhad to be decided according to the law, prevalent prior to the said date , which did not require the authority to supply a copy of the enquiry officer's report to the employee . The only exception to this was where the service rules with regard to the disciplinary proceedings themselves made it obligatory to supply a copy of the report to the employee.

Itis also adınitted fact that both of these workmen were on duty in the night of 5-2-83 and 6-2-83 . The telegram was send to the District Authorities regarding the availability of 123 bag wheat in shed ' A' on 6-2-83. Thus , there is also a hexus of the contention of the management of respondent that these 123 bags were hept in shed A - I during the night of5-2-83 and 6-2-83 to meet out the shortage, and the fact that during this time admittedly both of these workmen were on duty as Security Guards who are responsible for carrying out and taken in of every lot of grains . Thus , the enquiry officer has rightly held that 123 bags of wheat were kept in shed A- l during the night of5-2-83 and 6-2-83 , while these workmen were on duty and it was done in connivance with the other employees responsible for shortage . Accordingly , I tind no reason to interfere in the reasoning and findings of the enquiry officer. As there was no evidence regarding the shortage of lose wheat against any of the workmen , it was rightly held by the enquiry officer that another charge is not proved against them.

This is the final law laid downby the Apex Court that if any punishment is given to the delinquent employee or workmen before 20-11-1990 . 1.2 .. the day on whichMohd. Ramzan's case ( supra ) was decided , the workmen or the delinquent employee have no right to claim that non - supply of the copies of enquiry report is in violation of principle ofnatural justice.In all the cases in which the punishment was given on , or after 20-11-1990 , this plea was available to the workmen , Admittedly the punishment was given to the workmen on 20-5-88 and it was prior to the date of judgment in Mohd , Ranızan Khan's case ( supra), and if the concerned rules permit the disciplinary authority to pass the order ofpunishment without supplying the copy of the report, it will be lawful and cannot be challenged . Accordingly, in this case there will be no effect of don- supply of the copy of the enquiry report to the workmen Another point for determination before this Tribunal is what will be the effect of non - supply of the enquiry report to both of the workmen ? The number of case laws has been referred before me but I am quoting the relevant caselaws only.

Thethree Judges Bench of Hon'ble Supreme Coun , in Union of India Vs. Mohd . Ramzan Khan ( AIR 1991 SC 471) laid down the law as follows : -

The next contention on behalf of the workmen is theat no show cause notice was given to them and opportunity was not afforded for personnel hearing . The copy of discipline and appeal regulations of Food Corporation of India ( Stafl ) Regulations 1997 is before me. Compulsory [भाग II- खण्ड (ii) ]

भारत का राजपत्र : अक्तूबर 4, 2008/आश्विन 12, 1930

retirement, the punishment which is awarded to both ofthe workmen, comes within the major penalty, as defined in regulation 54 of the Discipline and Appeal Regulations of the Food Corporation of India (Staff) Regulations . 1971 . The procedure for imposing for major penalties is given in regulation 59. The workmen has no contention other than that no opportunity for personnel hearing was given to him and no show cause notice was serve upon him with proposed punishment . Regulation 59 (3 ) of the said Regulations provides that if the disciplinary authority having regardto its finding on all or any or the reasons of charge and on the basis of evidence adduced during the enquiry, is of the opinion that any of the penalties specified in clause v to ix of regulation 54 should be imposed on the corporation employee , it shall make an order imposing such penaltyand it shall not be necessary to give the corporation employee any opportunity of making representation on the penalty proposed to be imposed . Thus , the regulation permitted the disciplinary authority to impose the penalty without asking the explanation or issuing show cause notice . This Tribunal , while adjudicating the reference has its own limitations and has to implement the regulations as such. In my opinion , this Tribunal has no power to decide the virus or the constitutionality of any regulation to impose the penalty without hearing or want of calling explanation . So , there was no procedural error committed by the disciplinary authority while awarding the punishment ofcompulsory retirement.

The penalty for compulsory retirement from the service is in my opinion. proportionate to the misconduct committedby the workmen . 142 bags ofwheat were found short in a check by the special squad . The workmen in connivance with other employees try to make the short good by putting 143 bags in another shed . Thus, I have no occasion to interfere in the punishment given by the disciplinary authority.

One of the contention on behalf of the workmen is that one of the employee who was also punished by the Food Corporation of India went to the Civil Court . The workmen has filed the photocopy of the judgment passed by the Civil Judge Hoshiarpur,decreeing the suit of Shri Sagliram Assistant Grade ( 1 ) on the ground that non-supply of the copy of the enquiry report , violate the principle of natural justice. This decree was set aside by the District Judge, Hoshiarpur vide order dated 7-11-96 , and the suit was accordingly, dismissed.

On the basis of the observations made above the reference is answered in positive that the action of the management of Food Corporation of Indía ordering compulsory retirement to Shri Balwant Singh Head Watchman and Shri Tarsem Lal Watchman is legal and justified and workman are not entitled to any relief. Let the Central Government be informed . File is consigned.

G.K. SHARMA, PresidingOfficer

5501 नई दिल्ली , 8 सितम्बर, 2008

का. आ. 2783, औद्योगिक विवाद अधिनियम , 1947 ( 1947 का ( 4 ) की धारा 17 के अनुसरण में केन्द्रीय सरकार भारतीय खाद्य निगम के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच अनुबन्ध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण / श्रम न्यायलय नं. 1 , चण्डीगढ़ के पंचाट ( संदर्भ सं. 151/2000 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 8-9-2008 को प्राप्त हुआ था ।

[सं. एल -22012/429/ 1999- आईआर ( सीएम-11 ) ] अजय कुमार गौड़, डेस्क अधिकारी NewDelhi , the 8th September, 2008 S.O. 2783. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) , the Central Government hereby publishes the award ( Ref. No. 151 / 2000) ofthe Central Govemment Industrial Tribunal-cum- Labour Court No. 1 , Chandigarh as shown in the Annexure. in the Industrial dispute between the employers in relation to the management of Food Corporation of India and their workmen, which was received by the Central Government ол 08-9-2008.

[No. L-22012/429/ 1999- IR( CM- 11) ] AJAY KUMAR GAUR , Desk Officer

ANNEXURE

BEFORE SHRI GYANENDRA KUMARSHARMA , PRESIDING OFFICER, CENTRAL GOVERNMENT INDUSTRIALTRIBUNAL-CUM- LABOUR COURT- 1 , CHANDIGARH

Case No [.D 151/2000

The President, F.C.I. Ancillary Labour Union C/ o Malkiat Singh, VPO Mohie , Distt . Ludhiana

Applicant

Versus

The Distt . Manager, Food Corporation of India . 804 . Gurdeve Nagar, Ludhiana.

Respondent

APPEARANCES

For the workman : Shri B. N. Sehgal Advocate . For the management : Shri N.K. Zakhne Advocate .

AWARD Passed on 25-8-2008

Central Govt , vide notification 1. - 22012 /424/99- IR(CM- 11 ) dated 29-2-2000 , has referred the following dispute to this Tribunal for adjudicutior .:

"Whether the action of the management of Food Corporation of India in not regularizing the services ofthe workmen as per list shown in annexure is just and legal ? Ifnot , to what relief the workers are entitled and from which date?"

?. The present reference was madeby the Central Govt. on the failure of conciliation proceedings fot 5502

THE. GAZETTE OF INDIA : OCTOBER 4 , 2008/ASVINA 12 , 1930

adjudication ofthe matter referred in the schedule referred above and the workman prayed for declaring the action of the management as illegal and invalid and for reinstate- ment in service with full backwages and all consequential benefits in the interest ofjustice , equity and fair play .

The management turned up and opposes this application.

Asper office memorandum dated 30-4-08 this case was fixed in pre lok adalat meeting on 25-8-08 for its disposal by adopting the mediation and conciliation mechanism. The representative of the workman Shri B.N. Sehgal made a statement that the workman does not want to pursue with the present reference and the same may be dismissed as withdrawn . It is propose to dispose off this reference in Lok Adalat . Accordingly the reference is returned to the Central Government as withdrawn in Lok Adalat . Central Government be informed . File be consigned to record, G.K. SHARMA , Presiding Officer Chandigarh 25-8-08

नई दिल्ली , ४ सितम्बर , 2008

का. आ, 2784.-औद्योगिक विवाद अधिनियम , 1947 (1947 का 14 ) की धारा 17 के अनुसरण में केन्द्रीय सरकार भारतीय खाद्य निगम के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच अनुबन्ध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ श्रम न्यायलय नं.-] , चण्डीगढ़ के पंचाट ( संदर्भ सं. 29/2000 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 08-9-2008 प्राप्त हुआ था ।

[सं. एल-22012/291/1999- आईआर(सीएम -11 ) ] अजय कुमार गौड़ , डेस्क अधिकारी New Delhi , the 8th September, 2008

$.O. 2784 .---In pursuance of Section 17 of the Industrial Disputes Act . 1947 ( 14 of 1947 ) , the Central Government hereby publishes the award ( Ref. No. 29.2010 ) ofthe Central Government Industrial Tribunal- cum -Labour Court No.1 , Chandigarh as shown in the Annexure , in the Industrial dispute between the employers in relation the management of Food Corporation of India , and their workmen , which was received by the Central Government on 08-9-2008.

[No. 1-22012/291 / 1999 - JR( CM - 11 ) AJAY KUMAR GAUR. Desk Officer ANNEXURE

BEFORE SHRIGYANENDRAKUMAR SHARMA, PRESIDING OFFICER CENTRALGOVT. INDUSTRIAL TRIBUNAL CUM - LABOUR COURT- 1, CHANDIGARH

Case No 1.D 29/2000

The President , Food Corporation of India, Ancillary Labour Workers Union , Mohalla Virk, VPQ Sawaddi . Distt. Ludhiana .

[PART I -SEC.3 ( ii) ]

Versus

TheSenior Regional Manager , FCI, Punjab Region, Sector 34-A, Chandigarh .

...Respondent

APPEARANCES

For the Workman :

Shri B.N. Sehgal Advocate.

Shri N.K. Zakhmi Advocate .

Forthe Management :

AWARD

Passed on 25-8-2008

The Central Government vide Notification No. L-22012/291 / 99- IR( CM - 11 ) dated 31-1-2000, has referred the following dispute to this Tribunal for adjudication :

"Whether the action of the management of Food Corporation of India in not regularizing the services of the workers shown in the annexure is just and legal? If not, to what relief the workers are entitled and from which date?"

2. The present reference was made by the Central Govt. on the failure of conciliation proceedings for adjudication of the matter referred in the schedule referred above and the workman prayed for declaring the action of the management as illegal and invalid and for regularizing the service with full backwages and all consequential benefits in the interest ofjustice , equity and fair play.

The management turned up and opposes this application.

As per office merporandum dated 30-4-08 this case was fixed in pre lok adalat meeting on 25-8-08 for its disposal by adopting the mediation and conciliation mechanism . The representative of the workman Shri B.N.Sehgal made a statement that the workman does not want to pursue with the present reference and the same may be dismissed as withdrawn. It is propose to dispose off this reference in Lok Adalat . Accordingly the reference is returned to the Central Govt . as withdrawn in Lok Adalat . Central Govt.be informed . File be consigned to record

G.K. SHARMA, Presiding Officer Chandigarh 25-8-08

नई दिल्लो, सितम्बर, 2008

का. आ. 2785 औद्यागिक विवाद अधिनियम , 1947 ( 1947 का ( 4 ) की धारा 17 के अनुमरण में कंन्द्रीय सरकार स्टंट बैंक आफ पटियाला के प्रबंधतंत्र के संबद्ध नियोजकों और उनक कर्मकारों के बीच अनुबन्ध में निर्दिष्ट ग्रांतिक विवाद में केन्द्रीय सरकार औधोगिक अधिकरण/ श्रम न्यायलय नं.। , बण्डीगढ़ के पंचाट ( संदर्भ सं. 17/1990 ) को प्रकाशित करती है , जो केंन्द्रीय सरकार को 8-9-2008 को प्राप्त हुआ था ।

[सं. एल-1202:270/ 1989- आईआर( श्री -3 ) ] बी.के, मनचन्दा, अनुभाग अधिकारी New Delhi , the 8th September , 2008

....Applicant

... 2785.- pursuance of Section 17 of the Industrial Disputes Act , 19.17 ( 14 of 1947 ), the Central $503 [ भाग II- खण्ड 3 ( ii) ]

भारत का राजपत्र : अक्तूबर 4, 2008/आश्विन 12 , 1930

Government hereby publishes the award (Ref. No. 17/ 1990 ) of Industrial Tribunal-cum-Labour Court , No.1 Chandigarh as shown in the Annexure , in the Industrial dispute between the management of State Bank of Patiala, and their workmen, received by the Central Government on08-9-2008.

[No. L- 12012270/ 1989- IR(B-3)]

B. K. MANCHANDA , Section Officer

ANNEXURE

BEFORE SHRI GYANENDRA KUMAR SHARMA, PRESIDING OFFICER CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL- CUM - LABOUR COURT-1 , CHANDIGARH

an tobe adopted bythe enquiry officer and a copy of the said letter along with copy of the charge sheet was given to the workman. Enquiry Officer while conducting an enquiry recorded the evidence and full opportunity was given to the workman. The workman at every stage of enquiry was afforded an opportunity. The Enquiry Officer before filing the report of the enquiry also gave opportunity for written submissions which the workman availed. After concluding the Enquiry the Enquiry officer gave its report and the disciplinary authority after issuing show cause notice and personal hearing, dismissed the workman from service vide order dated 24-8-1988 . The workman preferred an appeal but the same was dismissed vide order dated Jan. 13 , 1989. I have heard learned counsels for the parties and perused the entire materials on record.

Case No [.D 17/90

General Secretary, State Bank of Patiala Staff Union 719, Sector-22A , Chandigarh

Applicant

Versus

The General Manager , (Operation ) , State Bank of Patiala Mall Road Patiala .

....Respondent

APPEARANCES :

For the workman:

Shri Hardyal Singh Advocate.

Shri N.K. Zakhmi Advocate.

For the management:

So far as the procedural genuineness of the enquiry is concerned, in my opinion the Enquiry Officer conducted the enquiry in a fair and reasonable manner after given full opportunity to the workman and there seems no violation ofany rules ofprinciple of natural justice. The further ques- tion before this tribunal is about the finding in the enquiry and reasoning thereof. The finding of the enquiry given by theEnquiry Officer is that workman without the permission of the manager concerned unauthorizedly removed the stocks against the norms of the bank. On this vary charge the disciplinary authority punished the workman with the penalty of, dismissal assuming that the misconduct ofthe workman is gross misconduct .

AWARD

Passed on 14-8-2008

The Central Government vide notification L- 12012/ 270/89-1R (B-3 ) dated 11-1-1990, has referred the following dispute to this Tribunal for adjudication:

"Whether the action of the State Bank of Patiala in dismising Shri Bhagwant Singh , Record Keeper / Godwon Keeper at their Miller Ganj , Ludhiana branch w.e.f. 24-8-88 is legal and justified? If not , to what relief the concemed workman is entitled to and from what date?"

I have gone through the entire materials on record include the evidence adduced by the parties . There is a difference between the performing of duties negligently and misuse the position while discharging the duties by a Public officer / employee. Undoubtedly, as per the evidence and even the findings of the Enquiry Officer there is no iota of evidence to prove that the workman removed the stocks in collusion with the members of the firm or with intent to gain something in lieu of removing the stocks. Meaning thereby , the fraudulent act , any embezzlement , or any act of misrepresentation or intentionally causing the financial loss to the financial institution is not proved in the enquiry. All the witnesses of the bank may be Sh . Jagar Shanna P.W. I , Shri . K.D. Vashist P. W.2 , Shri A.L. Sharma D.W.1 , the then Head Cashier of the bank and Shri Indra Singh D.W.2 , the then Manager ofthe Bank (now retired) have shown, in their evidence , faith in the intergrity, behavior, attitude and the sincerity in working of the workmen , P.W.1 . and P. W.2 specifically stated that prior to the incident they have not heard about any act committed. bytheworkman which would have been against the interest of the bank. Thus , the removing of the stocks is just a negligent act commited by the workman wihtout any intent to commit fund with the bank or any of its customers . The act of workman by removing the stocks cannot said to be done in collusion and even there is no iota of evidence to prove that he has done it with intention of gaining something. Undoubtedly, it is a procedural mistake on account of the negligent act of the workman by which no The workman Shri Bhagwant Singh was charged for unauthorizeddelivery of stocks to M /s. Mehra Sales Cor- poration Ludhiana , M /s . D.C. Mehra Company Ludihana and M /s . Rajendra Trading Company, Ludhiana for value aggregating to Rs. 4,58, 224.35- which were placed with the bank as security in the cash credit limit to Rs 2 lakhs each availed of by the aforesaid firms from the Ludhiana Millar Ganj , branch and in order to conceive this delivery certain stocks of inferior quality with value aggregating to Rs. 1,33,004 approximately were kept in the bank's go down The workman reply to the said charge showing his ignorance about the fraud played by one of the partner of the company Mr. Mehra . Dissatisfy with the explanation given by the workman the disciplinary authority Zonal Manager, Jalandhar appointed Shri D.N. Garg as the Enquiry Officer to enquire the charges levelled against the workman . The letter datedd 1-1-1988 regarding the appointment of Shri Garg as an enquiry officer itself contains the procedure 5504

THE GAZETTE OF INDIA : OCTOBER 4,2008 ASVINA 12 , 1930

financial loss was suffered to the financial instituiten . Itos true that in the case of the fraudulent act , embezzlemen : and tempering the documetns of the bank ; it cannot be a plea of the workman that there has been no financial loss to the financial institution ( banking companies). But the instant case is of different nature and on different fosting. There is no evidence for fraudulem act , embezzlement or tempering with the records of bank with intent to gain somethig for the wrongtul transaction and in the cases of such circumstances , it is valid contention that financial institution has not suffered any financial loss . The evidence reveals that one of the partner Smt . Shakuntala took the guarantee for all outstanding loans on her property which was valued at about Rs . 15 lakhs whereas the loan liability wasjust 4 lakhs plus and the entire amount thereafter . way recovered from the pastrers .

Thus, without commenting on the procedure and the findings ofthe enquiry officer, I am of the view that the disciplinary authority while awarding the punishmeומו ! the workman has not applied the mind properly regarding the abovementioned facts . At the cost of repetition a distinction should has to be made by the disciplinary authority on fraud committed with the bank , embezzlement committed with the bank or tempering the records of the bank with the procedural mistake committed by the workınarn on account of negligent act . The disciplinary authoriry while passing the punishment and imposing the penalty of dismissal have casually taken the view that the charge bas been proved against the workman and the bank has lost the confidence in the workman , It is true that the workruan is working in a financial institution and if the financial institution lost the confidence in the workman, it will not be proper to continue the workman in the bank . But the terms 'losing the faith and confidence in the workman are to be decided judiciously with open brain . Every act which is said to be misconduct in the financial , institution cannot be said to be of such a nature that the institution has lost faith and confidence in the workman , If it would have been the intention of concerned regulations , there had been no requirement of mentioning several penalties , hur one that is the dismissal of the workman from the bank . If the regulations contained the several penalties , it itself shows that the penalty has to be imposed in proportionate to the misconduct committed by the workman .

Learned counsel for the managerment has relied upun two case laws namely Shri L.K. Venna appellant Vs. H.Μ.Γ. Ltd. 2006( I ) SCT 601. Paras 10 & 20 ofthe judgment are relevant and the principle laid down by Hon'ble the Apex Court in the above case shall be apllied as such , if found relevant. In the above case, para 10 is relating to the admission on the charges whereas para 20 is relating to the quantuin of punishment . In the instant case the workman has not accepted the charges levelled against him and on punishment as mentioned in Para 20 , the principle laid downby the Hon'ble Apex Court shall be applied with

[ P - Sr.3 ) Another case law ded by the management is Chairman - cum -M.D., T.M.C. S. Corporation Ltd. Vs. K. Mera Bai 2006 ( 1 ) SCT 460, This wis the case as disclosed in para 19,24,27,28 and 34 regarding the tempering in the records of the bank for issuing of a stock and for swindling the corporation in collusion with the other members of the staft through misappropriation of stocks and eash of the corporation causing huge loss to the corporation to the tune more than Rs.9 takhs . The facts in the instant case pre different as there is no loss to the financial institution and as stated earlier there has been no fraud , ne misrepresentation and no embezzlement and no tempering the record of the bank proved against the workman " Thus, in my opinion the punishment given by the deciplinary authority is shockingly disproportion se to the committed misconduct . It is true that the degree of efficiency in the financial institution , like banks , is much higher then the other institutions . But it is also true that dismissal from the service is the financial doithata san and it should be on the ground alone where the misconduct is of such a nature that it will not be proper and safe for the management to continue the services wirt: the bank . Nature and degree of misconduct has not been seen by the duciplinary authority while passing the punishment for disemssal .

The powers of the tribenal for interfering in the punishment given by the dist iplinary authority are very Jinsited. Section 11 A or the Industrial Disputes Act . empowers the Tribunal to mrertere in the punishment of dismissal, removal etc , given by disciplinary authority. The Tribunal has to springy exercised these powers only in the cases where the punishment is shockingls disproportionate with the coromitted misconduct . It depends on facts and circumstances of the case . As stated earlier that the punishment given by the disciplinary authority is shockingly desproportionate to the committed misconduct which is merely a procederal mistake on accoum of negligent act committed in the workman . So. on the basis of the miscondut, itannot be said What the bank has lost faith and confidence in this workman and in my opinion he should continue with the same is has been cenified by at least two managers and other srployees of the bank while adducing evidence before the Faiquiry Officer .

The misconduct for wanaferring the stocks unauthorizely hy acting negligently is proved against the workman . Thus , he should be punished for that misconduct only . As there has been no mention for transferring such stocks for wrongful gain and against the interest of the bank, in my opinion stoppese of tise incremens with cumulative effect will be the proportionate pumshment to beawarded to the workinan Accordingly exercising the powers vested in this Trahumul ander Section 1 A of the Industrial Disputes Act , the punishntent of dismissal from the service is converted and changed into the stoppage ni five increments with cumulative eflict and the workman is liable to be reinstated in the service with fall back wages 5505 भारत का राजपत्र : अक्तूबर 4, 2008/आश्विन 12 , 1930

[ भाग II- खण्ड 3 (ii) ]

This reference is answered accordingly. Let the Central Governmentbe informed . File is consigned.

G. K. SHARMA , Presiding Officer

नई दिल्ली , 8 सितम्बर , 2008

I have gone through the pleadings of parties. It is evident that the workman Subhash Chander was appointed and allowed to join the duties with the management ofthe Bank on 10-5-89 and he worked till 24-8-91 . He was removed from the services on 24th of August , 1991 without notice or retrenchment compensation . The workman has prayed thathe has completed 240 days of service in the preceding year from the date ofhis termination , he must be allowed to join the bank as he was illegally removed from the services in violation of the provisions of Industrial Disputes Act. का.आ. 2786, औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में केन्द्रीय सरकार जम्मू एवं कश्मीर बैंक लि. के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच अनुबन्ध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण -1 , चण्डीगढ़ के पंचाट ( संदर्भ सं. 141/1992 ) क़ो प्रकाशित करती है , जो केन्द्रीय सरकार को 8-9-2008 प्राप्त हुआ था ।

[सं एल -12012/237/ 1992- आईआर( डी-1 ) ] बी. के. मनचन्दा, अनुभाग अधिकारी

New Delhi, the 8th September, 2008

The management denies the appointment of the workman on permanent basis and alleged that he has not worked with the bank from 10-5-81 to 24-8-91 continuously. Hewas appointed on the temporary basis and the services rendered by him were of casual nature. He was appointed as a Waterman for the summer period and his functioning was seasonal .

S.O. 2786.-In pursuance of Section 17 of the Industrial Disputes Act , 1947( 14 of 1947), the Central Government hereby publishes the award ( Ref. No. 141/ 1992) of Industrial Tribunal - cum- Labour Court- 1 , Chandigarh as shown in the Annexure , in the industrial dispute between the management of The Jammu and Kashmir Bank Ltd. , and their workmen , received by the Central Govertument on 8-9-2008.

[No. L- 12012/237/ 1992- IR(D- 1 ) ] B.K. MANCHANDA , Section Officer

ANNEXURE

BEFORE SHRI GYANENDRA KUMAR SHARMA, PRESIDING OFFICER, CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM- LABOUR COURT- 1 , CHANDIGARH

Case No. I.D 141/1992

Both of the parties adduced the evidence. Certain documents were filed by workman which are the letters said to be written by the Manager , Jammu & Kashmir Bank Ltd. to the HeadOffice regarding the workman , mentioning him as temporary Waterman . The management denies these documents and also failed to file the original documents with contention that the matter is very old and the bank is not having the originals of the documents whose photo- copies have been filed by the workman . The management has disputed these documents only on the ground that these are photo -copjes of the documents which are not admissible in evidence . The management has not disputed the genuineness of these documensts on some other grounds . Considering the nature of the proceedings before this Tribunal , I am of the view that on account of the failure of the management of the bank, in filing the original documents , the photo- copies of these documents shall be read over in evidence .

Sh. Subash Chander S/o Shri Parmanand Sto Shri Jai Bhagwan Ajay Kumar, Gohana Road, Near Gaushala Mandi, Panipat.

Applicant

Versus

DeputyGeneral Manager , The Jammu and Kashmir Bank . Ltd. , 6/91 , Padam Singh Road, Karol Bagh, New Delhi .

....Respondent

APPEARANCES :

For the workman : Shri R.P. Rana

Ifa workman alleged that he has worked for 240 days and was paid the wages for 240 days, he has to prove the contention . As per the law of the land, mere filing of statement of claim and affidavits in support of this contention will not be sufficient but some cogent evidence has to be filed. The cogent evidence may be a copy of salary certificate , copy of lease orders , copies of correspondence made between the workman and the bank and copies ofvouchers . List is not exhaustive but depends on the facts and circumstances of the case as to what should constitute the cogent evidence?

For the management : None for the management AWARD

Passed on 14-8-2008

The Central Government vide notification No.12012/ 237/ 1992- IR(D- 1 ) , New Delhi, dated 18-12-92, referred the following industrial dispute for judicial adjudication:

Naturally original documents are always with the bank. The workman can only manage some photo-copies ofthese documents and if the management is unable to file the original documents , the photo- copies filedby the workman should be considered and read over in evidence because the proceedings before the Tribunal are altogether different in nature than that of the proceedings before the CivilCourt. Accordingly, these letters will be considered while answering this reference .

"Whether the action of the management of Jammu & Kashmir Bank Ltd. in terminating the services of Shri Subhash Chander w.e. f. 25th ofAugust, 1991 is legal and justified? If not, to what relief the workman is entitled and from what date?" 5506

THE GAZETTE OF INDIA: OCTOBER 4, 2008 /ASVINA 12, 1930

[PART II-SEC . 3 (ii) ]

M/s . Munna Lal , Tara Chand and M/s. Bhagwati Trading Company having the accounts in and running business withthe J & K Bank .

In a recent judgment , Hon'ble the Apex Court in Sita Ram and Others Vs. Moti Lal Nehru Farmers ' Training Institute 2008 ( 117 ) FLR - 1191 Hon'ble the Apex Court has held that adverse inference can be drawn when employer withholds records under his exclusive custody Para 15 of thisjudgment reads as under :

"It is evident that the respondents have withheld the best evidence . The wage - sheet , the provident fund records and other documents were in their possession. They were statutorily required to maintain some documents. It may be true that the learned Labour Court did nut draw any adverse inference expressly, but whether such an adverse inference has been drawn or not must be considered upon reading the entire Award . The High Court , in our opinion , has wrongly opined that the award suffers from an error of law and was otherwise based on surmises and conjectures."

The contention of the bank is that the workman was temporarily appointed for summer season as Waterman but this contention is falsified by the letter of the Manager ofJammu and Kashmir Bank written to the Deputy General Manager on 10-1-91 . This letter shows that the workman had worked even in winters in the month of January. The letters containing the facts that he was paid monthly was forwarded by the Manager to the Zonal Maneger with the recominendation that his services be regularized as his work and conduct to the management of the bank is satisfactory . From the perusal of all the letters filed by the workman , it is evident that the workman was appointed on daily wages , payment was made on monthly basis and he continuously worked from10-5-89 10 24-5-91 which is more than 240 days . Accordingly, the workman has not only with the affidavit but by other cogent evidence ( the documents ) proved that he has worked 240 days regularly with the bank preceding the date of his termination . The twoletters forwarded by the Manager of J& K Bank to the Head Office also shows that he was paid Rs . 300/- per month and thereafter, Rs.400/- per month . Accordingly, the workman has also proved that he wins also paid for 240 days for the preceding year from the date of his termination . Adverse inference is also drawn by this tribunat in compliance of the law laid down by Hon'ble Apex Court in Sita Ram's case(supra).

Paper No. 23 is a letter dated 10-1-91 written by Manager, Jammu & Kashmir Bank 1.td. to Deputy- General Manager regarding the regularization of the service of workman as he is working up to the entire satisfaction of the stail members . It is also mentioned in the letter that he has put in all the efforts to increase the business of the bank . The Letter Paper No. 24 is the letter written by Subish Chander. General Manager , Jammu & Kashmir Bank, dated 10.1.91, regarding the regularization ofhis service. In this letter, it has been mentioned that 300 rupees per month is a very meagre amount which is not sitflicient to run his farruly consisting of 4 persons . This letter was forwarded vide aforesaid letter of Manager , Jammu & Kashmir Bank to the General Manager on 10-1-91 .

Paper No. 26 is the letter written by wurknian Subhash Chander on 19-4-91 to the Deputy General Manager . J & K Bank for regularization of his service . This lener was forwarded by the Manager , Jamumu and Kashmir Bank to the Deputy General Manager on 19-4-91 . In this forwarding letter the Manager, Jammu & Kashmir Bank Lid . has recommended that the case of the workman mas he considered sympathetically and he may be put in the regular cadre of Peons as his work and conduct is up to the entire satisfaction of his superiors .

He was removed trom the services , admittedly. without notice or retrenchment compensation . It is also notdisputed that the workman was not properly appointed and it was a back door entry Ifthe case would have been like this, there was no uccasion to the Manager of J & K Bank for recommending the request of the workman for his regularization of his services The Manager concerned not only forwarded the application of the workman but also recommended for the regularization of his services . On the basis of above observations . I am of the view that the retnoval of the workman from the services as daily wager is illegal and against the principles of naturaljustice .

Accordingly, the first part of the reference is answered in negative that the netion of the management of the Jammu & Kashmir Barik ! td . in terminating the services of Shri Subhash Chandra we.f. 25-8-91 is not legal and justified.

Paper No. 27 is another letter dated 27-7-91 regarding workman ( Temporary Waterman ) written by Manager . Jammu & Kashmir Bank Ltd , to the Deputy General Manager, Divisional Office , New Delhi . In this letter, it is mentioned that on 9-4-91 the application of Shui Suit Chander ( Temporary Watermant for regularization of his services in the bank was forwarded duly recommended , to which nothing has been heard from Head Office. Manager who wrote this letter . once again requested the Deputy General Manager to consider the regularization of the service of the workınan sympathetically and also certried that the behaviour and the conduct of the workman is to the satisfaction of the branch Rest two documents Puer Nos. 28 and29 are the certificates given by two firms naine

Now I haveto discuss the second part of the reference that is to what relief the workman is entitled and from ul date? As the termination of the workman was illegal and unjustified, he deserves to be in service on the same terms and conditions on which he was working on the date ofhis termination subject to the revision of pay scale from time to time. As the workman Ikas tut worked for the pretty long time, considering the facts and circumstances of the case and injustice caused to the workroan by illegal act of the भारत का राजपत्र : अक्तूबर 4, 2008/आश्विन 12, 1930

[भाग 11- खण्ड 3 ( ii) ]

bank, the workman will be entitled for half of the wages from the date ofhis termination till his joining in thebank. The management of the bank is directed to reinstate the services ofthe workman within a month time .Accordingly this reference is answered . Let the Central Government be informed. File be consigned.

G.K. SHARMA, Presiding Officer नई दिल्ली, 8 सितम्बर , 2008

का. आ. 2787, औद्योगिक विवाद अधिनियम, 1947 ( 1947 को 14 ) की धारा 17 के अनुसरण में केन्द्रीय सरकार स्टेट बैंक ऑफ पटियाला के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच अनुबन्ध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण चण्डीगढ़-नं. - 1 के पंचाट ( संदर्भ सं. 07/1990 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 08-9-2008 को प्राप्त हुआ था ।

[सं. एल-12012/286/ 1989-आईआर( बी-3 ) ] बी.के. मनचन्दा , अनुभाग अधिकारी New Delhi, the 8th September , 2008 S.O. 2787.-In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947 ) , the Central Govemment hereby publishes the award (Ref. 07/1990) of the Central Government Industrial Tribunal -cum - Labour Court , No. I Chandigarh as shown in the Annexure , in the Industrial Dispute between the management of State Bank of Patiala , and their workmen, received by the Central Govemment on 08-9-2008 .

[No. L- 12012/286/1989- IR(B-3 )] B.K. MANCHANDA, Section Officer

ANNEXURE

BEFORE SHRI GYANENDRA KUMAR SHARMA, PRESIDING OFFICER, CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM- LABOUR COURT- 1 ,

CHANDIGARH

Case No 1.D 7/90

General Secretary, State Bank of Patiala, Staff Union , 719, Sector 22 -A , Chandigarh .

5507 "Whether the action of the State Bank of Patiala in dismissing Sh . Santokh Singh , Watchman/Peon at BhadsonBranch w.e.f. 12-3-88 is legal andjustified? Ifnot, to what relief the concemed workman is entitled and from what date?"

From the pleadings and other materials on record , it is evidentthatthe workman was charge sheeted on 11-3-87 fortwo charges.Firstly, for having Rs . 1300/-on 4-3-1986, from Sh. Avtar Singh , a depositer to the branch for depositing the same into a Saving Bank Account No. 550 ofSh . Avtar Singh and his wife Smt. Jaswant Kaur . The amount was not deposited and the fictitious cash entry of the said amount was made by the workman in the pass- book ofthe depositor and also in the ledger account of the branch to conceal fictitious cash entry already made in the ledger account . Thereafter , it was detected that the said amount of Rs . 1300 was not deposited by the workman and the same was kept for his own advantage . Secondly. onthe basis of the amount ofRs.700 given to the workman by Sh. Buta Singh , Peon ofGovernment High School .. Kartarpur, the workman made a cash entry on 25th June , 1985, in the saving bank pass-book of Account No. 48 maintained at the branch in the name of Sh. Kewal Singh, and the cash balance in the account was raised byRs.700. The fictitious entry was also made of the said amount by the workman in ledger account of the depositor, On the detection ofthis fraud , the workman tallied the saving bank compliancebook of ledger No. I for the period of September , 1985 to March , 1986. On his transfer to another branch in the month ofApril 1996, he made a fictitious entry ofRs .700 in the saving bank account No.4, in a fraudulent manner in between the entries dated 22-3-1986 and 8-4-1986 to conceal fraud. On 21-5-86 , the workman once again visited the branch anddeposited Rs. 700 in thisAccount No. 4, whereas, this amount was not given by the depositor to bring the compliance of the account at the correct level in an fraudulent manner by tampering the records of the bank, thus, causing the fraud with the bank and the customers of the bank.

Applicant

Versus

General Manager ( Operation ) , State Bank ofPatiala, Mall Road, Patiala (Punjab)

-Respondent

APPEARANCES

Sh.Hardyal Singh .

Sh . N.K. Zakhmi .

For the workman: For the management:

AWARD

Passed on 26-8-2008

Government of India vide notification No. L-12012/ 286/1989 - IR(B-3 ) New Delhi dated 10th ofJanuary , 1990 referred the following industrial dispute for judicial adjudication:-

3631 G1/20088

Theworkman replied to the charge- sheet which was found unsatisfactory to the management. An enquiry officer was appointed. After conducting the inquiry, the enquiry officer gave his finding on both of the charges as proved. The disciplinary authority issued a show- cause notice dated 29-1-88 proposing the penalty of dismissal from service . The workman answered the show-cause notice. The disciplinary authority after considering the enquiry report, other materials on record and the answer to show cause notice, dismissed the workman from the service vide order dated 6-6-88 . The workman preferred an appeal which was dismissedby the appellate authority.

On the basis of the pleadings of parties and other materials on record , the main questions for determination for this Tribunal are as follows:

5508

THE GAZETTE OF INDIA: OCTOBER 4, 2008/ ASVINA 12 , 1930

1. Whether the inquiry was conducted in a reasonable , fair and proper manner and in compliance of the principle of naturaljustice?

2. Whether the inquiry officer rightly held both of the charges as well proved?

3. Whether the disciplinary authority has rightly passed the punishment of dismissal of the workman from the services?

Entire inquiry file is before me . I have gone through the inquiry report and the proceedings . The main contention of the workman regarding conducting inquiry is that he was not given an opportunity to cross - examine the two witnesses, namely, the complainant Sh . Amar Singh having the joint account with his wife Smt . Jaswant Kaur and the expert witness , Gyan Prakash Sharma . On perusal of inquiry file , it is evident that Amar Singh was examined bythe enquiry officer as PW5. The cross - examination could not take place on the same day and the enquiry was adjourned for 26th and 27th of October , 1987. Thereafter , Sh . Amar Singh could not altend the inquiry proceedings for cross - examination and the enquiry officer failed to ensure the presence of Amar Singh for cross - examination . On perusal of the inquiry report , it is evident that no weightage by enquiry officer has been given to the evidence ofSh . Amar Singh . It shows that enquiry officer considered the examination of Sh. Amar Singh as non - existent and no prejudice was caused to the workman for non examination of Sh . Amer Singis. By this Tribunal , it will be considered that no exam-nation of Sh . Amar Singh was recorded while adjudicating this reference .

I have gone the sugh the enquiry proceedings in which the statement of Sh. Gyan Parkash Sharma PW4 was recorded. The representative of the workinan was very well present on that day The opportunity was given to him for cross - examination , but this witness was not cross- examined without any reasonable cause It was within the purview of the enquiry officer to offer the opportunity of being heard to the workman and his representative , Sh . S.I .. Sharma to cross - examine PW4 , Sh . Gyan Parkası Sharma . But this witness was not cross -examined ans ) in the opinion of this Tribunal , it cannot be said that there was any violation of the principle of natural justice because the opportunity was afforded which was not availed by theworkman or his representative . As the opportunity was given no prejudice is caused to the workman . There were latches on the part of workman and accordingly , he cannut make it as a ground for challenging the enquiry proceedings .

On perusal of entire materials on record , I am of the view that on giving the charge-sheet , the workman wps asked to explain the same . After his explanation , enquiry officer was appointed and the copy of the letter appointing the enquiry officer was duly served upon the workman . Thematerials on record also reveals that the enquiry officer at every stage afforded the full opportunity of being heard to the workman and after conducting the enquiry , report

[PART 11-SEC. 3( ii) ] was submitted to the disciplinary authority. Thus , I found no procedural error in conducting the inquiry and in the opinion of this Tribunal, the enquiry conducted by the inquiry officer is a fair, reasonable and proper and there seems no violation of any principies of natural justice in conducting the inquiry.

The next question for determination is whether the enquiry officer rightly reached to the conclusion on both ofthe charges being well proved. The main contention of theworkman is that both of the account holders relating to both of the charges were not examined by the enquiry officer and it is sufficient to quash the inquiry on the ground of violation of principle of natural justice. The 3 Judgesbench of Hon'ble the Apex Court in State of Haryana and another Vs. Rattan Singh , 1977 (2) LLN has observed as under;

" In a domestic enquiry , the strict and sophisticated rules ofevidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible There is no allergy tohearsay evidence provided it has reasonable nexus and credibility . Departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act . The essence of judicial approach is objectisny, exclusion of extraneous materials or considerations and observance of rules of natural justice . Fairplay is the basis and ifperversity or arbitrariness. bias or surrender of independence of judgment vitiate the conclusions reached , such finding, even though of a domestic tribunal cannot be held good . The simple point is , was there some evidence or was there no evidence not in the sense of the technical rules governing regular Court proceedingsbut in a fair common sense way as ineans of understanding and worldly wisdom will accept . Viewed in this way. sufficiency of evidence in proof of the finding by a domestic Tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the Court to look into because it amounts to an error of law apparent on the recard."

In this veryjudgment , Hon'ble the Apex Court has held that in the domestic inquiry even there should be no allergy to the hearsay evidence provided it has reasonable nexus and credibility . The word of caution has also been given by Hon'ble the Apex Court that departmental authorities and Administrative I ribunals must be careful in evaluating such materials and should not glibly swallow what is strictly speaking not releavant under the Indian Evidence Act . The essence of judicial approach is objectivity, exclusion of extraneous materials or considerations and observance rules of naturat justice.

Applying the above mentioned principles of law laid down by Hon'ble the Apex Court in the instant case , it is [ भाग 1 ]-खण्ड 3 ( ii) ]

भारत का राजपत्र : अक्तूबर 4, 2008/आश्विन 12, 1930

evident that apart from the evidence adduced by the bank witness before the enquiry officer, it is the own version of the workman that he took a loan ofRs . 1300 from Sh. Avtar Singh through his neighbour shopkeeper. Thus, there is a close nexus of taking Rs . 1300 from Sh . Avtar Singh and not depositing the same to the bank, Workman failedto prove, even by prima facie that he took the loan from Sh. Avtar Singh and it was returned? Apart from it, the entries made by the workman in the pass -book, ledger and loanbook are unexplained whereas, it is proved that entries regarding these 1300 rupees and 700 rupees were made by the workman. As stated earlier , there shall be no effect of the fact that workman has not cross - examined the expert witness, PW4 adduced by the management bank before the enquiry officer as he has afforded full opportunity10 the workman through his representative , properly appointed to cross- examine the witness.

5509 नई दिल्ली, 8 सितम्बर, 2008

का.आ. 2788, औद्योगिक विवाद अधिनियम , 1947 (1947 का 14 ) की धारा 17 के अनुसरण में केन्द्रीय सरकार पंजाब नैशनल बैंक के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच अनुबन्ध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ श्रम न्यायालय नं. - 1 ,चण्डीगढ़ के पंचाट ( संदर्भ सं. 179/97) को प्रकाशित करती है , जो केन्द्रीय सरकार को 8-9-2008 को प्राप्त हुआ था ।

[सं. एल -12012/373/1996- आईआर( बी-11 ) ] राजिन्द्र कुमार , डेस्क अधिकारी New Delhi , the 8th September , 2008 S.O. 2788.- In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947) , the Central Government hereby publishes the award ( Ref. No. 179/97) ofthe Central Government Industrial Tribunal-cum - Labour Court, No.1 Chandigarh as shown in the Annexure , in the Industrial dispute between the management of PNB , and their workmen, received by the Central Government on 8-9-2008.

[No. L- 12012/373/ 1996- [R(B - II) ] RAJINDER KUMAR, Desk Officer

ANNEXURE

BEFORE SHRI GYANENDRA KUMAR SHARMA, PRESIDING OFFICER, CENTRAL GOVT. INDUSTRIAL TRIBUNAL CUM- LABOUR COURT-1, CHANDIGARH

Case No LD 179/97

I have gone through the evidence of the employees ofthe bankwho had heen working with the bank throughout the period in question . They have categorically mentioned how this fraud was committed. Relevant documents are also on record containing the entries of Rs . 1300 and 700 as mentioned above. Thus, there is a great nexus between the evidence on the record and the charges leveled against the workman and these nexus are not beyond the principles of evidence as contained in the Indian Evidence Act . The evidence of Sh. Avtar Singh was not considered by the enquiry officer and, while answering this reference I am not considering the chief examination of Avtar Singh on the principle mentioned above . The enquiry officer has rightly given the finding ofboth ofcharges as well proved. The disciplinary authority after giving an opportunity of being heard to the workman , dismissed him from service and in my opinion, there is no substance to interfere with the finding of the disciplinary authority.

It is the law that the punishment to the workman should be in proportionate to the misconduct committed by him. Whether the punishment is in proportionate to the committed misconduct, has to be decided on the basis of facts and circumstances of each case ? No parameter in this regard canbe framed as two instances ofmisconduct cannot be repeated in the same way and manner . In the instant case, the misconduct is regarding the fraud committed with an account holder of the bank and fraudulent entries made in the documents of bank and tampering of few entries.By such type of acts , the confidence of the bank in the employee is bound to be lost and the confidence of the people in the financial institution , like bank, is also at stake. Accordingly, in such types of cases , it was rightly decided bythe disciplinary authority that it is not proper to continue the services of the workman with the bank and he was rightly dismissed from the service . The reference is accordingly answered in positive that the action of the State Bank of Patiala in dismissing Sh. Santokh Singh , Watchman/Peon at Bhadson w.e.f.12-3-88 is legal and justified and the workman is not entitled to any relief. Let the file be consigned. Central Goverrument be informed.

G. K. SHARMA , PresidingOfficer Sh. Trilok Chand Sharma , C/o Sh . Gain Chand Sharma, H. No. 364, Dhangu Pir, Pathankot

...Applicant

Versus

Punjab National Bank, The Regional Manager , PNB , Regional Office , Kapurthala .

....Respondent

APPEARANCES

For the workman:

Sh. O.P. Sharна

Sh. S ... Verma For the management:

AWARD

Passed on 2-9-200

The Government of India vice notification No. L-12012/373 /96/ IR(B - 11) dated 29-8-97 , has referred the following industrial dispute for Judici ! adjudication "Whether the action of the man agerment of Punjab National Bank in terminatin the services of Shri Tirlok Chand Sto Lok Singh Ram Sharma w.e.f. 2-4-94 are legal andjustified? If not, to what reliefthe concerned workman is entitled ared from what date? " The dispute, as is clear from the pleadings of the parties , is that the workman was charge-sheeted on 27-3-92 for his mis - behavior with Shri S.K. Mehra in Computer Cabin on 3-2-92 and for mis-behaviour and marpeet with the canteen boy on 22-1-92 . There is one more charge sheet dated 29-10-92 regarding the misbehavior and marpeet with canteen boy on 25-8-92 and the workman was supposed to reply the charge sheet within 3 days .

5510

THE GAZETTE OF INDIA: OCTOBER 4, 2008 /ASVINA 12 , 1930

On 2-2-93 enquiry officer was appointed and the enquiry officer after conducting the enquiry gave the repurt of enquiry on 14-8-93 , holding the charge regarding the misbehavior and marpeet with canteen boy on 25-8-92 as well proved and further holding that the charge levelled against workman vide charge sheet dated 27-10-92 has not been proved . Thus , out of the two charges , as per the enquiry report , only one charge that on 22-1-92 he misbehaved and committed marpeet with canteen boy is held to be proved by the enquiry officer

On the basis of the enquiry report the disciplinary authority issue show cause notice and an opportunity for personnel hearing on the proposed punishment ofdismissal from servicewithout notice was also given . The workman did not turn up in the personnel hearing , hence , the disciplinary authority in his absence vide letter dated 2-4-94 confirmed the proposed punishment of dismissal from the services . The workman preferred an appeal which was dismissed by the appellate authority.

I have heard learned counsels for the parties and pursued the emire materials on record. It is the case before this tribunal where principles of natural justice were not followed. Out of three charges , it was held by the enquiry officer that one charge is well proved. For the charge which is said to be well proved , the complainant whose complaint is on record was not summoned by the enquiry officer for recording his statement and he was not subjected to the cross-examination . The statement of canteen boy was recorded and the statement of some bank employee was also recorded, but no opportunity for cross - examination was given to the workman . Accordingly, the enquiry proceedings and the enquiry report have no legs to his stand. This tribunal has also afforded the opportunity to adduce the evidence. The evidence which is adduced by the management, is not sufficient to prove the charge leveled against the workman that he misbehave and committed ' marpeet' with the canteen boy . One of the enquiry reportdated 14-8-93 is summarily closed with the finding that the workman has admitted his guilt and no further action is required.

The workman has written two letters to the enquiry officer on 20-5-93 and 3-8-93 . On 20-5-93 he has informed the enquiry officer that neither he has mis -behaved the canteen boy nor committed any ' marpeet ' with him . On 3-8-93 he has written that he has not misbehaved or committed 'marpeet' with the Canteen boy. Moreover, if he has committed any wrong he is sorry for that , 'The enquiry officer has treated this letter dated 3-8-83 as admission , whereas it cannot be treated as admission for charges leveled against him because in the first part of the letter he has refused for incidents of ' marpeet and misbehavior with the canteen boy and alternatively he has said sorry for that incident which has took place. The whole letter is to be taken jointly . It shows that the intention of writing this letter is not to admit the charge leveled against himbut to overcome with the enquiries . There is no evidence on record which proved the charges against the workman ,

PART I- St . 3 ( ii ) ] as, the evidence which was recorded by the enquiry officer has not been subjected to the cross - examination by the workman . Hence , it cannot be relied upon because it was against the principle of natural justice . In fact this is the case of no evidence and the termination of the workman from the services is not legal and justified .

On the above observation I am of the view that enquirywas not properly conducted . It was conducted in violation of Principles of natural , justice . Enquiry officer has given the report on the basis of surmises and conjuncture without evidence and the disciplinary authority awarded the punishment summarily . Accordingly, this is the case of no evidence and termination is not sustainable .

Now the question before this tribunal is to what relief the workman is entitled? In the cases where the termination is against the law, there are two possible remedics before this Tribunal . The Tribunal can order to reinstatement to the workman in service and the alternative remedy is that the Tribunal can go for the order of compensation. The workman is not working with the bank from last 1-4 years . He was ex -service -man and his reinstated to the service will not be proper in the end of the justice . Thus , while answering this award. I am opting the second alternative for the reasonable compensation to the workman for his wrongful termination from the services .

Hon'ble the Apex Court in the following cases its held that the compensation can also be given by the Tribunal in appropriate cases:

( 1 ) Jaipur Development Authority Vs. Ram and another. 2006 ( 111 ), FLR 1178.SC.

(2) Madhaya Pradesh Administration Vs. Tribunal, 2007 (113 ) FLR 886, Supreme Court 3,

(3 ) Uttaranchal Forest Development Corporation Vs. M.C. Joshi 2007 ( 113 ) FLR 191 Supreme Court .

All the above mentioned case laws have been discussed by Hon'ble the Apex Court in Sita Ram and another Vs. Motilal Nehru Farmers Training Institute. 2008 ( 117) FLR 1191 in which the Hơn ' ble Apex Court has also awarded the compensation instead of reinstatement of the workman into the service.

Considering the wages the workman was receiving at the time ofhis termination , the period from termination to the disposal of this case , I son of the view that Rs . 75,000 (seventy five thousand ) as compensation will meet the ends ofjustice . Accordingly , the management of the bank isdirected to pay the compensation of Rs . 75,000 ( seventy fivethousand)to the workman within a month failingwhich the workman will also be entitled for the interest at the rate of 8 per cent per annum on the said Rs . 75,000 ( seventy tive thousand) , from the order of thus Tribunal till final payment . The reference is answered accordingly. Let the Central Governmentbe informed. L'ile is consigned .

G.K. SHARMA, Presiding Officer [ भाग II-खण्ड 3 ( ii) ]

नई दिल्ली, 8 सितम्बर , 2008

का.आ. 2789.-औद्योगिक विषाद अधिनियम , 1947 (1947 का 14 ) की धारा 17 के अनुसरण में केन्द्रीय सरकार स्मॉल इण्डस्ट्रीज डवलपमेंट बैंक ऑफ इण्डिया के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच अनुबन्ध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ श्रम न्यायालय नं.- 1 ,चण्डीगढ़ के पंचाट ( संदर्भ सं. 11/2006 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 08-9-2008 को प्राप्त हुआ था । [सं एल-12012/128/2005 -आईआर ( बी- II ) ] राजिन्द्र कुमार , डेस्क अधिकारी New Delhi , the 8th September, 2008

S.O. 2789. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947), the Central Government hereby publishes the award (Ref. 11/2006) of the Central Government Industrial Tribunal -cum - Labour Court , No.1 Chandigarh as shown in the Annexure, in the Industrial Dispute between the management of Small Industries Development Bank of India, and their workmen , received by the Central Government on 08-9-2008.

[No. L- 12012/ 128/2005 -IR(B - II ) ] RAJINDER KUMAR, Desk Officer

ANNEXURE

BEFORE SHRI GYANENDRA KUMAR SHARMA, PRESIDING OFFICER, CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM - LABOUR COURT- 1 , CHANDIGARH

Case No. L.D. 11/2006

Shri Dalvinder Singh Sto Shri Prem Chand , R/ o H.No 580, Phase-1 , Ram Darbar, Chandigarh .

...Applicant

Versus

The DeputyManager, Small Industries Development Bank of India , SCO No. 145-146, Sector- 17 -C , Chandigarh

....Respondent

APPEARANCES

For the workman : Sh . R. K. Gautam Advocate For the management : Sh . A. K. Bakshi Advocate

AWARD Passed on 22-8-08

Central Government vide notification No. L- 12012/ 128/2005/ IR(B - II ) dated 20-4-2006, has referred the following dispute to this Tribunal for adjudication: -

"Whether any employer - employee relationship exists between the management of smalt industries Development Bank of India, Chandigarh and Shri Dalvinder Singh? If yes , whether the action of the management of Smatl Industries Development Bank of India , Chandigarh in terminating the services of Shri Dalvinder Singh , Ex- Sweeper, w.e.f. 06-04-2005 isjust and legal? If not, to what reliefthe workman is entitled to?"

2. The present reference was made by the Central Government on the failure of conciliation proceedings for adjudication ofthe matter referred in the schedule referred

5511

भारत का राजपत्र : अक्तूबर 4 , 2008/आश्विन 12 , 1930

above and the workman prayed for declaring the action of the management as illegal and invalid and for reinstatement in service with full backwages and all consequential benefits in the interest ofjustice, equity and fair play.

The management turned up and opposes this application.

As per office memorandum dated 30-4-08 this case was fixed in pre lok adalat meeting on 22-8-08 for its disposal by adopting the mediation and conciliation mechanism. With the efforts of the Tribunal , the workman agreedto withdraw his reference . Both the workman and the management made a statement that management agreed to givework to the workman through contractor w.e.f. 1-4-09 and workman withdraw the reference . It is propose to dispose off this reference in Lok Adalat . Accordingly the reference is returned to the Central Government settled in Lok Adalat . Central Government be informed. File be consigned to record.

G.K. SHARMA , Presiding Officer Chandigarh 25-8-08

नई दिल्ली , 8 सितम्बर, 2008

का. आ. 2790, औद्योगिक विवाद अधिनियम , 1947 (1947 का 14 ) की धारा 17 के अनुसरण में केन्द्रीय सरकार केनरा बैंक के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बौच अनुबन्ध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ श्रम न्यायालय नं.। , चण्डीगढ़ के पंचाट ( संदर्भ सं. 105/93) को प्रकाशित करती है, जो केन्द्रीय सरकार को 08-9-2008 को प्राप्त हुआ था ।

[सं. एल-12012/105/93- आईआर ( बी-11 ) ] राजिन्द्र कुमार , डेस्क अधिकारी New Delhi , the 8th September, 2008 S.O. 2790.-In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947 ) , the Central Government hereby publishes the award (Ref. 105/93 ) of the Central Government Industrial Tribunal - cum - Labour Court No.1 , Chandigarh as shown in the Annexure , in the Industrial dispute between the employers in relation to he management of Canara Bank , and their workmen , which was receivedby the Central Government on 08-9-2008.

[No. L- 12012/105/93 -IR( B - II )) RAJINDER KUMAR, Desk Officer

ANNEXURE

BEFORE SHRI GYANENDRA KUMAR SHARMA, PRESIDING OFFICER, CENTRAL GOVTERNMENT INDUSTRIAL TRIBUNAL-CUM - LABOUR COURT- 1 , CHANDIGARH

Case No. I.D. 105/93

Smt . Padma Sharma , No. 368 , Sector- 32-A, Chandigarh- 160034.

...Applicant

Versus

The Deputy General Manager , Canara Bank , Sector-34, Chandigarh -160032 .

...Respondent 5512

THE GAZETTE OF INDIA: OCTOBER 4, 2008/ ASVINA 12, 1930

APPEARANCES

For the workman: Sri M.I. , Basoor

For the management: Sri N.K. Zakhmi

AWARD passed on 2-9-2008

Government of India vide notification No. 1, -12012/ 105/93 / IR ( B - II ) dated 2-9-93 , has referred the following dispute to this 'Tribunal for adjudication :-

"Whether in the circumstances of the case, dismissal ofworkman Smt . Padma Sharma, Special Assistant is justified? If not , to what relief the workman is entitled 10?"

From the pleadings of the parties, it is evident that Smt . Padma Sharma was charge sheeted by the Canara Bank as follows:---

Charge- 1:- On 23-5-1988 , she had borrowed a sum ofRs . 10,000 /- from one Mr. C. J. Alwares an SB A/ c Holder of Solan Branch with a promise to repay the same in Oct./ Νον. 1988. On 16-10-88 and 21-10-88, she has traudulently made two fictitious credit for Rs.5,000 /- each in the pass book of Shri Alwares to make it appeares that she has depsoited the amount to the SB A/ c of Shri Alwares and also falsified the relevent ledger

Charge-II- Smt . Shakuntala Bansal , mother and guardian ofMaster Ankush Bansal availed VSL of Rs . 5,000 -against KDR 23/82 for Rs . 7.000 and the KDR duly discharged was pledged to the bank . She has received cash towards the VSL, liability during June/ July , 1987, but did not deposit the cash to credit ofVSI. A / c , leter, she remitted Rs . 3300 on 26-5-89 , Rs . 5.000 on 8-6-89 and Rs . 147.35 on 29-6-89 towards clearnance of full liability . Further she had released the pledged KIJR 23/82 before closing the VSL liability .

Charge- 111 : On 31-10-88 . Mrs. Usha Kapoor handed over Rs. 3,000 to Smt . Padma Sharma for being deposited into her SB A/ c 1900. Smt . Padma Sharma did not deposit the same immediately but made fictitious credit of Rs . 3.000 in the pass book and ledger on 31-10-88 and also passed a cheque for Rs . 2,000 for payment based on the fictitious credit. She had deposited , amount only on 16-11-88.

Charge- IV: On 14-6-99. Smt . Sharma had borrowedRs . 10,000 from one Sri Pushkar Verma on SB A/c holder of Solan Branch . On 2-11-88 when the account holder insisted for repayment . She had made two fictitious credit entries ofRs . 5,000 cach in the account of Shri Pushkar Verin and also tampered with the bank records .

Charge-V:---On 27-9-86 , she had - made fictitious eredit entry for Rs . 150 in the SB A/ c 2680 of Smt Sheela without there being any actual credit .

The copy of the charge sheet was provided to the workman Smt . Padma Sharma and the enquiry was ordered tobe conducted . On the first day of the enquiry proceedings , Smt . Padina Sharma, the workman denied the charges as is clear from the proceedings of enquiry dated 9-9-89. But on the subsequent date on 17-10-89 , she admitted all the charges except the charge no 2. The letter

[PART II-SEC. 3 ( ii ) ] written and signed by the workman dated 17-10-89 . addressed to the enquiry officer is on record as D.E. I. The enquiry officer conducted the enquiry and submitted his reports on the basis of the admission of the workman and on the evidence adduced by the management holding all the charges well proved except the charge No. 2 which the enquiry officer hold as partly proved. The disciplinary authority , issued a show cause notice vide letter dated6-11-89 and the proposed punishments were mentioned in letter/ show cause notice itself, The workman answered it and also availed the opportunity of personnel hearing . Thereafter, the disciplinary authority approved the proposed punishments dismissing the workman for the services.

The workman preferred an appeal which was dismissed by the appellare authority , Zonal Manager of thebank on 5-2-1990.

Theworkman has challenged the above proceedings on the ground that the enquiry was not fairly conducted by the enquiry officer , who was not competent to conduct the enquiry. The confessions made by her were not voluntary but on the advice of the enquiry officer with promise for the light punishment . No opportunity of being heard was given to the enquiry officer and the enquiry suffers for violation of principle of naturaljustice.

I have heard learned counsel for the parties and pursued the entire materials on record. The main question for determination before this I ribunal are as follows:-- ( 1 ) Whether the enquiry officer conduct the enquiry in a fair, reasonable and proper manner and there was no violation ofprinciple of natural Justice ?

(2) Whether the confessions by the workman before the enquiry officer were voluntary made ?

(3) Whether the enquiry officer has rightly given the finding on all the charges as proved except charge no. 2 , to which he held as proved partially ?

(4) Whether the disciplinary authority has applied his mind properly and the punishment given to the workman was not proportionate to the misconduct ?

So far as the procedural part of the enquiry is concerned, the enquiry oflicer was duly appointed as per the regulations of the bank and the procedure which was adopted by the enquiry officer seems to be fair and reasonable procedure . I have perused alt the proceedings of enquiry from which it is clear that on all the dates a reasonable opportunity was given to the workman . Opportunity for adducing evidence in defense was also given . The workman refused to submit any written submissions , but thereafter , she preferred to file the written submissions as well . The enquiry officer after going through the submissions of the managentent and the workman , gave the finding in the form of enquiry report . Thus , the enquiry officer was duly appoimed and he adopted fair and reasonable procedure while conducting the enquiry and there seems no violation of the principle of natural justice.

The next question before this Tribunal is whether the confessions which she made hefore the enquiry officer [भाग II- खण्ड 3 (ii) ]

were genuine and free. On perusal ofthe materials on record, it is evident that on the first date of the enquiry the workman denied the charges, but on the vary next date she filed a letter admitting all the charges except charge No. 2. On the basis of her letter the enquiry officer asked certain questions which she replied positively. She assested before the enquiry officer that she has admitted the charges voluntarily. I have gone through the letters written by the workman admitting the charges .The language she has used whilewriting the letters , admitting the charges , shows that it was voluntary act of the workman . There was no pressure or commitment of any type by enquiry officer upon / to the workman, This fact is also corroborated by another fact that at the end of the enquiry proceedings , the workman refused to file any written submissions , but she filed detailed written submissions consisted of 12 pages . I have gone through the entire written submissions . She has admitted the charges levelled against her except the charge No. 2. In this letter she has not only confine herself with the charges levelled against her but also written about her childhood, her education, her family background and circumstances under which she has committed the wrong. Thus, I am unable to accept the contention of the workman that she has not voluntarily admitted the charges levelled against her. There was no occasion for pressurization by the enquiry officer when the workman has previously admitted all the charges and refused to file any written submissions and of her own , she preferred to file the written submissions admitting once again the charges leveled against her. Thus, I am ofthe view that the workman has voluntarily admitted all the charges levelled against her.

Moreover, the enquiry officer has pursued all the evidence oral and documentary , while concluding the enquiry. The enquiry officer has categorically examined all the documents for every charge and has also considered the oral evidence given by the management witness , apart from the admission letter . As more as 12 documents were placed and proved for charge No. 1 , 14 documents for charge no 2, 10 documents for charge No. 3, 5 documents for charge πο . 4. 4 documents for charge no . 5 , and 4 documents for charge No. 6, before the enquiry officer which were marked exts. Most ofthe documents which were filed are common for all the charges . I have pursued all these documents and gone through the oral evidence of the parties as well .

The charges against the workman are regarding taking of loans from the persons having business with the bank. Non -payment of these advances within the agreed time and, thereafter , making entries in the records with intention to show that she has deposited the amount in their accounts , are two different facts . She borrowed Rs. 10,000 from Mr. C.J. Alwaress having a/c no , with the bank. She instead of repayment the same make two fictitions credit entries for Rs . 5,000 each on 16-10-88 and 21-10-88 in the pass book of Shri Alwaress and also falsified the relevant ledger of the bank . Taking of advance from the person having business with the bank is prohibited . Even il, it is taken , it may not constitute so serious misconduct as tempering the records for assuring the parties that she has already returned the amount . This act of tempering

5513

भारत का राजपत्र : अक्तूबर 4, 2008/ आश्विन 12 , 1930

the record is fraud with the bank. The evidence which was placed before the enquiry officer proved these charges. Moreover, the workman voluntarily admined all the facts including the tempering the records of the bank. Likewise, on other charges , No. 3 for non depositing Rs . 3,000 in the amount ofMrs. Usha Kapoor and making fictitious entries in the pass book and ledger , borrowed Rs . 10,000 from Shri Pusker Verma and made two fixititious credit entries for 5,000 each in a/c of Sh . Puskar Verma and tempered the other records are also proved . She also made fixititious credit entry for Rs . 150 in the account ofSmt . Silla without their being actual credit. All these charges are proved through documents , mentioned earlier, and the oral evidence adduced by the management before the enquiry officer . Moreover, the workman has voluntarily admitted these charges as well . On charge No. 2 , the enquiry officer has rightly held that it is partly proved because the workman was not in charge of the concerned branch and not working at the relevant time. Accordingly, the enquiry officer has rightly give the finding after perusal of the entire records, on all the charges as well proved except charge No. 2 .

The enquiry officer has himself suggested the punishment to be given in the enquiry report, and I think on perusal of the entire materials on record , it is not against the provisions of law and the workman is not prejudiced by this act of the enquiry officer .

The enquiry officer in his enquiry report has also shown some lenient attitude for awarding punishment . On page no. 17 of the enquiry report , it is mentioned thatthere seems to be some valid reasons in the submissions made by the workman and it appears that she was not adhering to the system and procedure. It is also held in the enquiry that it appears that though there was no motive on the part of C.S.E. to defraud the customer or the bank, yet her action in making the entry in the pass-book deserves to be reprehended. After this finding the enquiry officer has proposed her dismissal from the services on the charges No. 1, 3, 4 and 5 and stoppage of4 increments with cumulative effect on chargeNo 2. It shows that while giving the finding, the enquiry officer was of the view that the act committed by the workman were not intentionally to defraud with the bank or the customer, thereafter , in the same enquiry report he proposed the punishment of dismissal from the service considering the nature and the gravity of the charges.

The workman was working in a financial institution where the highest degree of integrity , honesty is required and needed. There is a difference, between he negligent act and the act affecting the dignity and integrity of an employce . The workman has tempered with the records of the bank to show the borrowers that she has returned the amount and by this act she has not only act against the interest ofborrowers but against the interest of the bank . Thus, the workman was rightly terminated from the services of the bank , and in my opinion , this tribunal has no occasion and reason to interfere in the finding ofthe enquiry officer and disciplinary authority while discussing on the punishment part. The reference is answered accordingly. Let the Central Government be infonned . File is consigned .

G. K. SHARMA, Presiding Officer 5514

THE GAZETTE OF INDIA : OCTOBER 4.2008 ASVINA 12,190

नई दिल्ली, 8 सितम्बर , 2008

का.आ. 2791, औद्योगिक विवाद अधिनियए, 1947 ( 1947 का (4 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार सेन्ट्रल बैंक ऑफ इण्डिया के प्रबंधतंत्र के संबद्ध नियोजकों और उनके अर्थकारों के बीच अनुबन्ध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरणः श्रम न्यायालय नं. । , चण्डीगढ़ के पंचाट । संदर्भ संख्या 153/2001 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 8-9-2008 को प्राप्त हुआ था ।

[सं. एल-12012/187/2000 - आई आर ( ची-[ ] ] राजिन्द्र कुमार , डंस्क आधिकारी New Delhi , the 8th September , 2008 S.O. 2791. In pursuance of Section 17 of th Industrial Disputes Act, 1947 ( 14 of 1947 ), the Comral Government hereby publishes the Award ( Ref. No. 153 / 2001) of the Cent . Govt . Indus .Tribunal- cum - labour Court No. - 1 . Chandigarh as shown in the Annexure in the Industrial Dispute between the management of C131 , แว their workmen , received by the Central Government ( 4 ) 8-9- 2008.

[No. L-12012/187 /2000 -IR ( 3-100 ) RAJINDER KUMAR . Desk Officer

ANNEXURE

BEFORE SHRI GYANENDRA KUMAR SHARMA CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL- CUM- LABOUR COURT - 1 , CHANDIGARH Case No. I.D. 153/2001

Sh. Shankar Lal Thakur Sto Sh . Mast Ram Thakur Rio Village Tukana . P.O. Manjhu , Teh : Arki Solan (Himachal Pradesh) 173212.

[ PART I - SEC. Xi w.e.f. 4-3-1999 is just and legal? If not what relief the workman is entut.ed to ?"

2.No one is present , on behalf of workman Learned representative of the matement Shri Yash Pal Dhunan is present. Since morning us reference has been called number of times . At 111.-15.am , in was ordered to be placed before this Tribunal ones again it 2 pm. It is 2.30 now and on repeated calls no one is present , in spite of having of full knowledge of the progredings of this reference . The reference is as old as refared to this Tribunal in the year 2001. On repeated calls since morning no one is present . Accordingly, the referenceisdisumissed in default forמירו prosecution. Central Governmrrent be informed accordingly. File to be consigned .

G.K SHARMA , Presiding Officer Chandigarh 2-9-08

नई दिल्ली, 5 सितम्बर 2008

का.आ. 2792, अगक विवाद अधिनियम, 1947 1947 का 14) की धारा 17 के मैनुराग में, केन्द्रीय सरकार अंगिगटन्न इंश्सोरेनस कंपनी लिमिटेड ः प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच अनुवन्ध में निर्दिष्ट औद्योगिक विवाद में कंन्द्रीय सरकार औद्योगिक श्रम न्यायालय नं.1 , चण्डीगढ़ कं पंचाट ( संदर्भ संख्या 153/1994 कः प्रकाशित करती है , जो कंन्द्रीय सरकार को 8-9-2008 को प्राप्न हुआ था।

11:30-94- आई आर( श्री -1 [ गजिन्द्र कुमार, हंस्क अधिकारी New Delhin , the Sth September , 2008

...Applicant

Versus

Central Bank of India , The Regional Manager, CBI, Turber House, Cart Road Shimla ( Himachal Pradesh ) 171001 .

S.O. 2792. In panstance of Section 17 of the Industrial Disputes Act . 14.17 14 of 1947 ), the Cemral Government hereby publishes the Award ( Reference. No.153 / 1994 ) of the Corral Govvernment Industrial Tribunal- cum - Labour Court No - 1 . Chandigarh as shown in the Annexure in the industrial Dispute between the employers in relation to the management of Oriental Insurance Company Ltd. and their workmen , which was received by the Central Government on 8-9-2008.

...Respondent

APPEARANCES

None

Shri Yash Pal Dhiman For the workman : For the managernent :

AWARD

Passed (n) 2-9-08

The Central Clovernment vide notification No.1.- 12012/ 187/2000-1R ( B - II ) , dated 28-3-2001. has referred the following dispute to this Tribunal for adjedication:

"Whether the action of the management of Centre ! Bank of India in terminating the services of Sh . Shankar Lal Thakur S/ o Sh . Mast Ram Thakur

[No. L-17011:30:94-1R ( 13-11 ) ] RAJINDER KUMAR , Desk Offiver ANNEXURE

BEFORE SHRI GYANENDRA KUMAR SHARMA PRESIDING OFFICER, CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM- LABOUR COURT - 1 , CHANDIGARIL

CaseNo. I.D. 153/94

Madan Lal So Sh . Bodboy Village Kotla Camp . P.O. Triva Tehsil Bishana Distt . Jam

..Applicant 5515 भारत का राजपत्र: अक्तूबर 4, 2008/आश्विन 12, 1930

[भाग II- खण्ड 3 ( B) ]

Versus

The management on the direction of this Tribunal , filed two vouchers dated 7-2-92 and 31-3-92.

Divisional Manager , The Oriental Insurance Company Ltd.

TownHall Building, Jammu.

....Respondent

APPEARANCES

For the workman :

Sh . Sukdev Singh Kanwal

Sh.R.K. Chopra

For the management :

AWARD

Passed on 26-8-08

I have heard learned counsels for the paries and perused the entire material on record. The management of respondent has also filed the written arguments and certain case laws. From the vouchers filed by the management and from the pleadings ofthe parties, it is evident that workman was engaged for some time with the management of respondent and he was paid monthly. The vouchers Ex.M2 and Ex.M3 show the mode of payment of wages to the workman in the month of January, 1992 and March, 1992 respectively. These vouchers show that he was paid 450 Rs . per month.

Government of India vide notificatin No. 17012/30/ 94, New Delhi dated 8th November, 1994 referred the following industrial dispute for judicial adjudication:-

"Whether the action ofthe management ofOriental Insurance Company Ltd. , Jammu în terminating the services of Sh . Madan Lal sub- staff w.e.f. 22-1-93 is legal and justified ? Ifnot , what relief is the said workman entitled to ?"

As per the statement of claim ofthe workman , the workman was engaged with the Oriental Insurance Company Ltd. on 31-12-91 and he worked up tohis termination from the services by the company on 22-1-93 . His services were terminated without the notice and retrenchment compensation against the provisions of Industrial Disputes Act. He has also claimed to complete 240 days ofworking continuously with the management proceedingto the date of his termination.

TheManagement ofrespondent insurance company opposed it.As per the written statement of the management ofthe respondent company, the workman only worked for 2months on contract basis for January , 1992 and March , 1992 for whichhe was paid. Prior to this , and after March, 1992 the workman has not worked with the management of the respondent company, hence , no questin of termination or retrenchement compensation arise . It has also been alleged by the management of respondent that workman has not completed 240 days ofwork with the management, so there is not question of violation of any provisions of Industrial Disputes Act .

Now the question before this Tribunal is whether the workman worked only for 2 months , namely January , 1992 and March, 1992 as alleged by the management of the respondent company or he worked for 240 days continuously preceding to the date of his termination ? If so, whether he is entitled for the protection of the provisions of Industrial Disputes Act? The workman Madan Lal has filed certain cheques which are the transaction between the management of respondent company with the Jammu and Kashmir Bank Ltd. and these transactions were made through workman Sh. Madan Lal . The photo-copies ofthe cheques filed by the workman , Madan Lal has not been denied. The signatures of Madan Lal are also not denied. In the affidavit filed by MW1 , there is not a single sentence about these cheques which have been filed by the workman, whereas , this contention of the workman regarding the photo-copies of the cheques was within the knowledge of the management at the time of filling affidavit. Thus, the contention ofthe workanan regarding his working with the management otherwise than January , 1992 and March 1992, which he has shown by filing of photo- copies of certain cheques has not been rebutted by the management of respondent company. Moreover, vide application No.94 dated 16-12-02 workman requested this Tribunal for the direction upon the management of respondent company to file the original cheques , photo- copies ofwhich have been filed by him. Accordingly, this Tribunal issues the direction to file the document as prayed, vide order dated 13-3-05 . But the management of the respondent company failed to file the documents as prayed by the workman. The signatures on the photo-copies of the cheques , which are the transactions between the management of respondent company and bank, are not disputed becausethe management has not denied the same. Moreover , in a recent judgment, published in Sita Ram and Others Vs. Moti Lal Neharu Farmers ' Training Institute 2008 (117 ) FLR- 1191 , Hon'ble the Apex Court has heldthat adverse inference can be drawn when employer with-holds records under his exclusive custody. Para 15 of this judgment reads as under:-

Both of the parities wete afforded the opportunity for adducing evidence. They did so . The evidence of workman Sh . Madan Lal was recorded as WW2 whereas, Raj Kumar Verma, Manager (Accounts ), R.S. Pura , Jamun deposed as WWI . On the other hand , Jaswinder Singh Assistant Manager of respondent insurance company was examined as MWI . Certain documents were also filed by. the parties . The workman filed the photo-copies ofcertain cheques to show that he worked with the management of respondent company even before or after January , 1992 and March, 1992. These photo-copies are duly attested.

3631 G1/2008-9 5516

THE GAZETTE OF INDIA : OCTOBER 4, 2008/ASVINA 12 , 1930

[ PART 11-SEC. 3 (ii ) )

succeed. In this reference , the workman has not challenged the selection procedure . He has only challenged that his termination was in violation of the provisions of Industrial Disputes Act. It is also clear that regular appointment was made very much after the termination of his services .

On the basis of the above discussion and observation , and on persual of entire materials on the record, I am summarizing the matter as follows:

" It is evident that the respondents have withheld the best evidence . The wage-sheet , the provident fund records and other documents were in their posession. They were statutorily required to maintain some documents . It may be true that the learned Labour Court did not draw any adverse inference expressly, but , whether such an adverse inference has been drawn or not must be considered upon reading the entire Award. The High Court , in our opinion, has wrongly optioned that the award suffers from an error of law and was otherswise based on surmises and conjectures."

1. That Sh. Madan Lal was engaged lawfully by the management of respondent insurance company as alleged in Para 5 of the affidavit and in cross - examination of MW- I .

2. That Sh . Madan Lal not only worked for the months ofJanuary, 1992 and March , 1992 but he worked before/ after March 1992 with the management of respondent insurance company as well .

3. That as per the law laid down in Sita Ram's Case( supra) by Hon'ble the Apex Court , adverse inference is drawn against the management of insurance company that in spite of having all the records pertaining to the transactions between the insurance company and the bank through the workman and relating to the payment of wages to the workman, the management of insurance company failed to produce the same and it is open to this Tribunal to believe that the management of insurance company has deliberately even after having custody of the document not produced the same before this Tribunal with intent to escape from the lawful liability which can be imposed under the provisions of Industrial Disputes Act .

4. Thus , this Tribunai will not hesitate to accept the contention of the workman that truth January, 1992 (31-12- 91 ) he worked regularly up to 22-1-93 , till the date of his termination from the services .

5.As per the evidence of MM2 , Jaswinder Singh , he was paid monthty and it was verbal that he was working as a casual labour. The working of a workman on a contract is not proved by fining the dratt of the contract , if any , between the workman and the management . It is further Falsified by the statement of MMI that it was verbal that he was working as casual worker

6. As the workman was paid monthly , thus , all the days of a month including Sundays and Holidays are to be counted while calculating the working days , In this case, the originals of the cheques are lying with the concerned bank and the relevant records with the management of insurance company but both refused to flie the same heing destroyed after the period of limitation . It was the best evidence and was naturally in the custody ofthe bank/ management of the company which they failed to produce. In cannot be expected from the workman to file the original copies of the cheques and the registers containing the entries of cheques to keep with him . In the ordinay course of business , these documents are kept either with the bank concerned or with the management of insurance company. Thus , as per the law laid down by Hon'ble theApex Court in Para 15 of the Sita Ram's Case ( supra ) , an adverse inference is drawn against the management ofrespondentinsurance company and all these cheques sha!!! sad into evidence . As per the cheques , it is proved hefone Tribunal that the workman even worked with the managemem of respondent insurance company were monah of May. 1992 , July 1992 , August , 1992 , Septemb 19 October , 1992 and November, 1992 . There are satha Mions of the insurance company through this worth said months . Thus it is proved by the works thire los at only worked for 2 momhs namely Fanuary , i92 and arch, 1992. It is not the case of the management of the insurance company that this workman worked with the nank as the outsider and the management of insurance company was in habit to get certain official woks done by the outsiders . Even a single evidence has not been tabied by the management of insurance company on these cheques and transactions between the mariagement of insurance company and the bank through the workmen . As per the statement of MW- I in her corss - examination , workman was paid contracted amount . It was verbal that he was working as a casual labour. As per paragraph 5 of the affdavit of the management , the workman was engaged against the vacancy reserved for Schedule Caste candidate and en this vacancy, a Scheduled Caste candidate was appointed thereaficr

7. On counting the days , it is apparent that the workman has worked more than 240 days with the management of respondent insurance company proceeding to the year from the date of his mention fromthe services.

8.It is admitted that he was removed from the services without any notice or retrenchment compensation.

On perusal of the records , it is also evident that as per the rules and regulations of the management of respondent the applicatioris were invited for the recruitment ofClass IV employee against the permanent vacancy and the workman was also given a chance but he could not

Onthe basis of above lindings , I am of the view that removal of the workman from service was illegally being 5517

भारत का राजपत्र : अक्तूबर 4, 2008/आश्विन 12 , 1930

[भाग 1 ]-खण्ड 3 (ii) ]

be a sufficient amount to be awarded to the workman as compensation to meet the ends ofjustice.

Accordingly, this reference is answered . The management of the respondent insurance company is drected to pay Rs . 25,000 within a month failing the workman will also be entitled to the interest at the rate of 8% per annum from the date of disposal of this reference till actual payment . Central Government be informed. File be consigned.

G.K.SHARMA , PresidingOfficer नई दिल्ली, 8 सितम्बर, 2008 against the provisions of Industrial Disputes Act . Now the question before the Tribunal is to what relief is the workman entitled? It is proved from the evidence of the parties that the branch in which the workman was working was thereafter closed permanently and the staff was shifted to the adjoining branches . As the permanent staff was shifted to the adjoining branches , it was also a legal right of the workman that he should not have been removed from the services without notice or retrenchment compensation. It is truethat he has no right to the post and he is not claiming like that. The workman is not claiming for the regularization of the services nor has he challenged the procedure of selection to which he was also given a chance . The only question is whether his removal from the service is illegal and if it is illegal to what reliefhe is entitled? In view of the illegal removal from the servces there are two possible legal remedies to be provided to the workman .

का.आ. 2793.-औद्योगिक विवाद अधिनियम , 1947 (1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार पंजाब नैशनल बैंक के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच अनुबन्ध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ श्रम न्यायालय कोलकाता के पंचाट ( संदर्भ संख्या 33/2004 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 8-9-2008 को प्राप्त हुआ था ।

1. His reinstatement to the services with/without back wages , and on the same terms and condition on which he was working at the time of his termination from services.

2. Payment of compensation .

[सं. एल-12011/78/2004- आईआर ( बी-11 ) 1 राजिन्द्र कुमार, डेस्क अधिकारी

New Delhi , the 8th September , 2008 The order regarding the payment of compensation can also be passed by this Tribunal as laid down by Hon'ble theApex Court in several judgments, few I am quoting

1. Jaipur Development Authroity vs. Ramsahai and Another 2006 ( 111 ) FLR 1178 Supreme Court.

2.Madhya Pradesh Administration vs. Tribunal 2007 (113) FLR 886 Supreme Court

S.O. 2793.- In pursuance of Section 17 of the Industrial Disputes Act. 1947 ( 14 of 1947) , the Central Government hereby publishes the Award ( Ref. No. 33/ 2004) of the Central Government Industrial Tribunal - cum- Labour Court Kolkata as shown in the Annexure, in the Industrial Dispute between the management of Punjab National Bank and their workmen, received by the Central Government on 8-9-2008,

3. Uttranchal Forest Development Corporation vs. M.C. Joshi 2007 ( 113 ) FLR 191 Supreme Court ,

No.1-13011/78/2004-18 ( 8-11) RAJINEER SUMAR, Desk Officer

ANNEE

All the above mentioned case laws have been discussed by Hon'ble the Supreme Court in Sita Ram's Case (supra ) and Hon'ble the Apex Court has held that adequate amount of compensation may serve the ends of justice.

CENTRALGOVERNMES FOUSTRIAL TRIBUNAL AT KOLESTA Reference No. 33 2004

Parties: Employers in Bation wake management of Punjab National Bank

It has come to the notice of this Tribunal that the branch in which the workman was working has been closed. There is no vacancy lies with the management of respondent insurance company. Thus in the interest of justice , it will be proper to award the compensation , instead of reinstatement of the workman into the services.

AND heirworxman

Present: Mr. Justice C.P. Mishra , PresidingOfficer APPEARANCE

On behalf of the Mr. S. Chatterjee , Manager , H.R.D. Management

"The compensation to be awarded should be based on reasonable and justifiable grounds . At the time of removal from the services, the workman was getting Rs. 450 per month. Thus, on the basis ofthe wages he was getting at the time of removal from the services , the period ofhiswork and the period from the date he was entitled for the retrenchment compensation and the date of the disposal ofthis case . I am of the view that Rs . 25,000 will 5513

THE GAZETTE OF INDIA : OCTOBER 4, 2008 /ASVINA 12,193

(Pan 11 - Sec . 3 ( ii) ]

Ce belalfors

Gherai , Vice President of the

Rengal .

Industry: Banking ,

Dad An Ang

AWARD

ByOrder No 1-2011-78.2004 - IR( B - II ) dated 18-08-

7004 the Grenent of India , Ministry of Labour in exercise 10 ( 1 )( d) and ( 2A) referred the

slowing dophi

ascertained. It is stated that in asti almost identical case, the union got an Award in favour of a workman namely, Sk . Nizam Ali who was operang Bank's generator alongwith other anciliary jobs of Banks Branch at 18A, Brabourne Road, Kolkata for years together vide notification dated 04--05-2001 and the workintan was absorbed in the services of the Bank with past benefits . It is accordingly prayed that a direction be given to the Bank to absorb Shri Sunil Sana as a permanent full time employee in Peon's cadre with retrospective effeci including appropriate special allowance and other benefits .

fribunal for adjudication :

: ion of the management of Punjab the services of Shri Sunil Red? not, what rehef the

3.The present Bank in its wonten statement has raised certain preliminary obeictions . It is stated that the concerned workman has not been employee of the Bank and so there has been no employer - employee ralationship between the Bank and him and as such the present dispute referred to for adjudication before his Tribunal cannot be termed as an industrial dispute as defined under the provisions of Industrial Dispute Act, 1947. It is also stated that the present dispute has not been properly and validly espoused as the concerned workman is not a member of the union and thus the union bas no locus standi to raise the present dispute. It is further stated that the dispute was raised after the lapseofmore than ialla decade and even the claum for regularization of the concerned workinan was not raised at the time of merger of erstwhile 13: mk with the Bank when the matter of regularization of services of allthe camployees of erstwhile Bank werecidered Regarding merus . the case of the Bank , in brez is that the concerned woskinan was never engaged by the exaragement of erstwluke Bank . The was engaged for ramming the canteen in the branch premises. It is however , almitted that he was entrusted with the job of- running the Bauck's generator at the tune of power- cuts/ load-shedding araiust payments on a verbat contract with the Bank besities Tetchstag water forwhich he was adequately compensated by payment of Rs . 10 זי day . According to the Bank there was no question ul regularization of the corcerned workman in reas hewas never in emploient as the Bank in als cilpacity . In reply to the contention of the koion it is stated that the decision to closedown the auch was a matter of policy of the Bank since it was running in Law and had nothing to do with the alleged claun for regularization of the workman concerned . Bank has deres all other contentions of the

4. A rejoinder is also Chai by the wuen denying the contentions of the writte shitement of the Baad and reiterating ils case as made its statement el claims .

documentary evidence in this case Seven witnesses itave

5. Both the parties lrise produced oral and been examibied on schofsorkman mm thus case .

s been inade at the instance of Pagi Na Band, Employees Union , hereinafter tobe referreinar The case of the union as it appeara fers tam - tons in brief is that Shri Sunil Kumar was first engaged in the year while New Bank of India Puttjab National Bank suunce 95 Since then his services were utilized as full time shotthe Bank in addition to his duties other permanent sub - staff and for wade bat he was Penn in the keren th , ca doing ail: .. dally w Peor dr. vault K : sex senditure ins of paying roAsperneurdss wore till three the dy sa permanent memberin a strong room and Kaale boxes. Further , since the date ter at the Branch sometime was so operating the same in addition to other routine jobs . After merger of the erstwhile New Bank of India, hereinafter to be referred as the erstwhile is with Punjab National Bank , hereinafter to be referred as the present Bank, the concerned workman continued L. types of lub in the Bank with identical mode vi some case wnhennes ed . in the services of the when submission to the Regional /Zonal anihomes to anade him permanent in the services of the present Bank , but nothing positive had happened ... wached the to take in the issue oflict . The union tuck up rates, but he was Bank. In June, 20 manager ... the managemendame 2 mol sh but the managemenly took a Serisme jos lose down the banch for the reces best k union thereafter raised au ndustrial dispute besire the Regional Labour Couniasioner stengrab . Kela2- ? and the conciliation proceedings were ne ki wa ich ended in failure .It is pointed on that from the various WW- IKamal Lihiri joined erstwhnike Bank in the year 1977

and from 1983 to 1991 hwasan Muza Galib Street Branch correspondences made by the authorities in this reqsird

the details of service of the concerned workman can be of the said Bank en bes evidence that he भारत का राजपत्र: अक्तूबर 4, 2008/आश्विन 12, 1930

[भाग 1 ]- खण्ड 3 (ii) ]

knows the concerned workman whose main job to look after the canteen of the Bank . He used to look after the job of Peon in absence of other Peon . In the absence of the Generator Operator, he also used to look after the functioning ofGenerator Operator. So far as the knowledge of the witness goes there was no permanent Generator Operator. According to him the workman used to start work from before 10A.M. and he has seen him working in the Bank even after SP.M. He has also stated that the workman was not in the pay roll, but he used to get sundry payments through vouchers . He used to get monthly payments for working in the canteen and for other sundry works he used to get payment through voucher . He has further stated that the workman used to bring cash boxes from volt and carried back the same in the absence of Cash Peon and he was regularly operating generator in the Bank. In cross- examination , however, the witness could not say whether the generator functioning in the Bank was owned by the Bank, nor could he say whether the workman claimed for his regularization in the Bank . He also does not exactly know how the concerned workman used to be remunerated.

WW-2 , Suraj Roy also worked at Mirza Galib Street Branch from June, 1996 to 2001 and he know that it was branch of the erstwhile Bank . He also knew that the concerned workman was working in the Bank. He has stated that the concerned workman used to do almost all the work of the Bank, namely , opening and closing the shutter of the Bank , doing the work of Cash Peon and Clearing and also looking after the generator and canteen . He has also stated that he was paid through vouchers and at times even the Manager used to pay him out of his pocket.According to him the same procedure relating to payment in the erstwhile Bank was following in the Bank. The witness has further stated that he had lodged protest when he came to know that the cencerned workman was not a permanent Peon of the Bank . In cross- examination the witness has stated that the concerned workman made representation to the Bank for regularization of his services. Itis also statedby him that during the period 1996 to 2001 there were four Peons in the Bank, viz, one Cash Peon , one ArmedGuard , one Daftary and one Peon, though the Armed Guard and Daftary were not working regularly. The witness , however, has stated that the concerned workman used to be paid for working in the canteen through canteen committee as per procedure of the Bank. He was paid through cash voucher for working as generator operator, Accordingto the witness the system of running the generatorwas in force since before he joined the branch of theBank.

WW-3 , Ranjit Maity is a Peon of the Bank whojoined the Mirza Galib Street Branch of the Bank in the year 1985 and transferred there from in February, 2000. He knew Shri Sunil Sana the concerned workman , He has stated that the concerned workman used to do all the work of sub- staff and operate the generator of the Bank. He also used to

5519 work in the Cash Dept, in the absence ofthe sub - staff. He also used to bring water from outside and serve the same amongst the staff members . But according to him the concerned workman was not a permanent employee ofthe Bank. In cross- examination the witness has reiterated that the concerned workman used to operate generator of the Bank from 1985 to 2000 and there used to be frequent load-shedding during that period. He was also running the canteen of the Bank and was serving tea , snacks etc. amongst the members of the staff throughout the day . Не has also stated that they requested the members of the staff and the union leaders for regularization ofthe services ofthe concerned workman and the Bank Manager was also approached several times for the same . It is also stated by him that he had been insisting on that even during the time of erstwhile Bank . But , they did not give anything in writing. The witness has further stated that the concerned workman was compelled to work because of shortage of staff in the branch .

Other witnesses examined on behalf of the workman viz WW-4 , Amitava Saha , WW - 5 , Bijoy Singh , WW-6, Kanal Lal Singha and WW-7, Somdeb Goswami are all employees of the Bank and they have deposed in the saine line like the earlier witnesses referred to above.

6. On the other hand , three witnesses have been examined on behalfofthe Bank .MW- I , Rupak Ghosh had worked at Mirza Galib Street Branch of the Bank from February, 1996 to July, 1997 and he knows the concerned workman . He has stated in his evidence that the concerned workman was primarily a canteen contractor and he was also the Generator Operator of the Bank and he used to come regularly to the office . He used to take files to different tables in the absence of regular Peon and also used to serve water at the time of taking lunch. He has also stated that there was a canteen committee which used to make payment to the canteen contractor . He has also stated that the generator which used to be operated by the concerned workman at the time of requirement belonged to the Bank and payment for the same used to be made on monthly basis and there used to be frequent load- shedding in the Bank in the year 1996-97 . The witness has further stated that he was neither the compentent authority to give employment to the concerned workman in the Bank , nor he was the joint custodian of the Bank's cash. According to him as per sanctioned staff strength of the Bank the sub- staff were working there. In cross- examination the witness has stated that the services of the concerned workman used to be utilized in the Bank in the absence of the permanent Peon and such services were taken from him because of his long relation with the Branch . He has also stated that the generator was purchased by the erstwhile Bank and the system of operating the generator bythe concerned workman was continued , but no reference hadbeen made to the higher authority for the same .He has also stated that for opening the Bank the services of the 5520

THE GAZETTE OF INDIA : OCTOBER 4 , 2008/ASVINA 12. 1931 :

[ PART 11 --SEC. 300 ) ]

stated that during rainy season there was water logging andwhen water pump remained out of order , he requested the workman concorned to carry water from outside, According to him the Peon used to serve drinking waterto the members of the staff of the Bank and customers . It is further stated by him that duringload- shedding the concerned workman used to operate Bank's generator and he was doing so between 10 A.M. to SP.M for which he was not paid regular salary .

concerned workman were taken for some days . The witness has not been able to say as to whether the working strength of the sub - staff were adequate or not , nor he could say about the exact rules of the canteen committee . It is, however, stated by him that canteen subsidies are given by the Bank every month and canteen used to be operated within its resources and he had signed vouchers for payment ofcanteen subsidy . This witness has further stated that the concerned workman used to come to the Branch before commencement of the banking hour and he used to remain in the Bank till the end of the banking business hour, i , e. , 10 A.M. to 5 P.M. He , however, could not recollect whether he had ever asked the concerned workman to stay beyond 5 P.M. and they themselves used to close the Bank . He has also stated that one Jagannath Basu was the Anned Guard posted in the Bank who used to remain on leave frequently due to illness and during the absence of the saidArmed Guard officiating arrangements had been made amongst the permanent sub - staff of the Bank.

MW-3 , Rama Kauta Nayak was posted at Mirza Cialib Road Branch from February , 2000 to May , 2002 and he knew the concerned workman . He has stated that the concerned workman was a Generator Operator and was also working as a canteen boy and was also supplying water to the staff, but he had et seen him working in the Cash Dept. of the Bank Heused to be paid through canteen committee and the payanent for generator mamtenance used to be made through Bank's revenue . The concerned workman never approached the witness for regularization of his service and it was beyond his power . According to the witness there used to be frequent loading - shedding in the branch during his tenure . In cross - examination the witness admitted that the concerned workman was supplying drinking water to the staff members and he was also bringing fuel from the petrol pump for running the generator and sometimes during exigencies he used to be sent to the Regional Ortice with Daks . On being confronted with some papers the witness has stated that during his tenure all these representations were sent to the Manager and only a copy was given tohim. He , however . has admitted that the letter dated 11-02-2002, Ext . W-2 was given to him and the same bears his signature. On being confronted with the lever dated 17-06-2002 , Ext W-3 the witness has admitted his signature on it and also admitted that it shows he was posted there even in June , 2002. Не has further admitted that there is a policy that a committee is to be formed every year to finalize contractor , but as per his recollection he had not furmed any such committee .

MW-2, Ajoy Kumar Mukherjee worked at Mirza Galib Street Branch of the Bank from July, 1997 to February, 2000 and he knew Shri Sunil Sana the concerned workman .He has stated in his evidence that the concerned workman was a canteen contractor and Generator Operator of the Bank and he was regular. He has never seen the workman working in the Cash Dept. of the Bank. He has also stated that during his tenure he himself used to open theBank and in his absence his second man used to do the same. He has also stated that they had a canteen committee and the Bank was paying to the said committee and the said committee used to make payment to the concemed workman. However , for operating Generator they used to make payment to him . The witness has further stated that he never used the service of the workman as a Peon and did not serve water to the staff members of the Bank . He has also stated that he was never approched by the workman for making him regular and he was not competent to do so . He also stated that there was frequent load- shedding in the branch during his tenure . In cross- examination the witness has stated that when he joined the Branch he saw the workman working as canteen contractor and generator operator , but he could not say since when he was working or who appointed him in the Bank . He has denied that the workman used to work in the Bank like other permanent staff or he used to work in the Cash Dept. and carrying cash from the strong room to the Dept. and vise versa. It is stated by him that normally no outsider is sent to the Regional Office, but sometime for carring statistical information and some urgent letters the workman used to be sent there . He has further stated that during his tenure he has never seen the workman to have opened the door in the morning or have closed the door in the evening and the same used to be done by the Watch & Ward staff, On being shown the document dated 2nd July , 1988. Ext . W- I the witness has admitted his signature there and has

7. Certain documents have been exhibited on behall ofthe workman , but the management has preferred not to exhibit anydocument on ots belhall , Ext W - I is the voucher dated02-07-1998 of the Bank , Ext . W - 2 is the letter dated 11-02-2002 of the concerned workman to the Manager of the Bank , Ext. W-3 is the letter dated 17-06-2002 to the Senior Manager of the Bank by another Senior Manager . Ext, W-4 is a voucher dated 11-08-90 of the erstwhile Bank . Ext. W- 5 are various vongchers of the erstwhile Bank and the Bank showing payments to the concerned workman Exts . W- 6 to W - 8 are the representations of the concerned workman on different dates . Ext. W - 9 is a letter dated 17- 11-2000 of the Personnel Dept to the Sr. Manager , M.G. StreetBranch of the Bank Ext. W - 10 is a letter dated 13-12- 2001 written by the union to the Senior Regional Manager , Kolkata ofthe Bank . Ext. W - l is a letter dated 02-05-2002 written bythe union to the Assistant Labour Commissioner 5521 [ भाग 11- खण्ड 3( ii) ]

भारत का राजपत्र : अक्तूबर 4, 2008/आश्विन 12, 1930

(C) , Kolkata. Ext . W- 12 is a letter dated 13-09-2002 of the Senior Manager to the Chief Manager, HRD Dept. , Kolkata ofthe Bank. Ext. W - 13 is a letter dated 06-11-2002 of the Bank to the Assistant Labour Commissioner (C), Kolkata . Ext . W- 14 is a letter of the union dated 9-12-2002 to the ALC( C) , Kolkata . Ext. W- 15 is another letter ofthe union dated 12-12-2002 to the Deputy General Manager of the Bank. Ext. W- 16 is a letter dated 19-02-2003 ofthe ALC (C), Kolkata to the Chief Manager of the Bank , Ext. W - 17 is a letter dated 12-03-2003 ofthe Bank to the union Ext. W- 18 is a letter of the union dated 08-04-2003 to the ALC (C), Kolkata .Ext, W- 19 is the minutes ofthe conciliation proceedings dated 22-04-2003 and Ext. W-20 is the letter dated 21-04-2004 written by the ALC(C) , to the Secretary, Govt . of India, Ministry of Labour regarding failure ofconciliation .

including other benefits as admissible towards it for the same. Management, however , has challenged it to be so and denied the claim of the workman in this regardby submitting that there has been never an employer -employee relationship between the Bank and the workman concerned and also that this dispute has been now raised after more than halfa decade and that no such claim was ever preferred for regularization of his services even at the time of merger of the erstwhile Bank with the present Bank when the regularization ofservices ofall other employees of erstwhile Bank was so raised and considered by the present Bank in thisregard. So far as the merit ofthe claim of the workman as it has been so pressed on his behalf, it has been stated that no doubt he was entrusted with the job of running the Bank's generator , bringing water etc. from time to time as and when it was so required but for that he was fully compensated by payment of his wages @ Rs . 10 per dayto him for the same . Management in this connection got examined three witnesses viz . MW- I Rupak Ghosh , MW- 2Ajoy Kumar Mukherjee and MW - 3 Rana Kanta Nayak who had been so posted in the concerned branch for different periods to state the facts about the concemed workman to be engaged by the Bank through a canteen contractor and as such he used to do some work in the Bank as well inthe absence of regular employees to serve water etc. from time to time. There was no question as such of giving any permanent job or appointment to him so that there could have been any such occasion for absorbing him in the services of the present Bank as its regular staff as it is so claimed for the same in this regard.

9. The workman, however in order to press his claim has relied upon the evidence of number of witnesses as examined at his instance to support him in this regard viz.WW- I Kamal Lihiri , WW- 2 Suraj Roy, WW-3 Ranjit Maity, WW-4 Amitava Saha , WW- 5 Bijoy Singh , WW - 6 Kanai Lal Singha and WW-7 Somdeb Goswami the employees of the Bank who all have stated about the facts that the concerned workman had done various job from Lime to time in the absence ofother Peons and regular staff and also had looked after the function of the generator as well from 10 A.M. to 5 P.M. and that for this work he used toget sundry payments from time to time through vouchers vide Exts. W- 1 , W-4 and W- 5 filed on the record . It is also stated by them that the workman also used to bring cash boxes etc. in the absence of Cash Peon . They, however did not tell about any such fact regarding his formal appointment made by the erstwhile Bank or in the present Bank as a regular staff who is said to have been so appointed by them after observing the required formalities as per its procedure for making appointment of regular staff in the Bank . The documents filed on behalf of the 8. On the persual of the aforesaid facts as submitted on behalf of either parties in their pleadings and the evidence led by them in this connection it is evident that the claim of the workman concerned as per schedule of reference is there for challenging the action of the management in his services and to get a relief to which he would be entitledto get for the same, if termination of his services is held to be illegal and unjustified by the Tribunal . On the persual of the statement of claims filed by the workınan in this connection , however, it appears so that there has been no such fact so stated by him regarding that aspect of the matter about alleged termination of his service by giving its required details and particulars indicating thereby the particular date when his services had been really so terminated by the management in this regard so that the claim of the workman couldbe so adjudicated for the same as per his claim vide the schedule ofreference in this regard. According to the facts so stated by him he had been first engaged in the canteen in the year 1986 in the erstwhile Bank which was merged with the present Bank on 02-09-1993 .According to him further his services were always so utilized by the Bank as full -time Peon in the routine job in addition to his duties to run the canteen like other permanent sub -staff and for doing so he was paid the daily wages instead of a regular salary that was so admissible to a regular Peon working in the Bank. Besides that he also operated the generator and also did other duties from time to time in the erstwhile Bank and in the present Bank as well thereafter , but the management suddenly took a decision to close down the branch for the reasons best known to it, it has also been stated that in almost an indentical case one other workman , Sk. Nizam Ali was absorbed in the services of the Bank with past benefit and as such the main relief claimed on behalf of the workman is in fact now for regułarzation ofhis services in the Bank as full -time employce with retrospective effect 5522

THE GAZETTE OF INDIA : OCTOBER 4, 2008 /ASVINA 12 , 1930

[PART 11- SHC . 3 ( ii ) ]

appointment to be made or even for regularizing services of the person concerned and in absence of any such fact being so available , no such benefit can be given to the workman himself on such vague ground for his absorption or even for his regularization in the services ofthe Bank as regular staff. Apart from that there is no such occasion now for his claim being considered at all by the Bank as on hisown admission it is an admitted fact that the present Bank no longer operates any such branch at the said place which has now been closed down as a matter of policy as the branch itself was running at a loss and, therefore , on this ground too the question of his regularization in the services or his permanent absorption does not arise and he is not entitled to any such relief claimed by him in this connection.

11. Such type of engagement also does not confer any such legal right to a workinan for his absorption or regularization since the legal position has now been well settled with the Constitutional Bench decision of the Hon'ble Apex Court in Sceretary , State of Karnataka & Others v . Umadevi (3 ) and Others . (2006) 4 S.C.C. 1 wherein ithas been clearly laid down that " When a person enters a temporary employment or gets engagernent as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when appointinent to the post could be made only by following a proper procedure for selection and in concerned cases , in consultation with the Public Service Commission . Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees . It cannot be held that the State has held out any promise while engaging these persons either to continue them where they are or to make thent permanent . TheState cannot constitunonally make such a promise. li is also obvious that the theory cannot be invoked to seek positive reliefor being made permanent in the post . " an workman i.e. , vouchers , Exts . W- 1 , W -4 and W- 5 relied upan by him only go to show that the workman had been paid the amount for various periods for the work done by him for supplying drinking water and other such petty work in the Bank. There is , however, no formal appointment letter as such given to him nor there was any such letter of termination ofhis services so made by the Bank so that the fact regarding the claim ofthe workman in this connection could be so considered and adjudicated in light of this aspect of the matter vide hís claim made as mentioned in the schedule of reference for this in this connection . There is also no evidence adduced by the workman to show the relationship of employer - employee existing between the workman and the Bank as it so claimed by him between the Bank and himself to be existing as such like that of other regular staff so working in the Bank. Consequently , il can equally be said that there had been no such ground to consider his claim for regularization or his permanent absorption in the service of cither in the erstwhile Bank or with the present Bank on 02-09-2003 after it was so merged. Various documents filed on behalfofthe workman showing the payments made to him , i.e. , Exts . W- 1 , W-4 and W-5 only go to show that the workkman was engaged from time to time in the canteen for serving tea and doing other miscellaneous work in the absence of the regular sub - staff forwhich he was duly so paid the said amount as it was so agreed by himto take it for his services rendered to the Bank as a daily wager . This , however, by itself does not mean or confer any right upon him to be taken as regular sub - staff by the Bank for which there should have been a sanctioned post to be so lying with the Bank and aiso he must have been so selected by it by observing the due procedure applicable for selection of such sub - staff as per its regulations of the Bank in this regard . It is also an admitted fact that he was never selected as such so that his services could be so based on any such legal and valid grounds to call for his regularization or permanent absorption in the services ofthe Bank . It is for this reason that there could be no such formal order of termination of his services as well to be so passed either by the erstwhile Bank or the present Bank after its merger on 02-09-1993 in this case.

12.In view of the aforesaid discussion in the preceding paragraphs in is evident that there is no force in the claim and contention of the workman concerned to challenge the action of the management of Punjab National Bank either for alleged termination of his services or even for not absorbing him with the Bank as he has got no legal rightto make any such claim in this regard . In view of the above the workman is not entitled to get any relief in this regard as so prayed by him .

C.P. MISHRA , Presiding Officer 10. As regards the claim of the workman so raised which is based on the ground that some other person like hím viz . Sk . Nizam Ali who was also so working as a Generator Operator in the Bank's Brabroune Road Branch, Kolkata and he was so absorbed unlike him , it is evident that no such decument for this has been filed by the workınan to show that the case ofthe workman concerned is quite similar like that of Sk. Nizam Ali in this regard. More so, it is the discretion of the management to give a chance to a person who might have so worked with them provided there has been a post so available to the Bank for

Kolkata, Dated the 27th August, 2008 [भाग II- खण्ड (ii ) ]

5523

भारत का राजपत्र: अक्तूबर 4, 2008/ आश्विन 12, 1930

नई दिल्ली , 8 सितम्बर, 2008

का. आ. 2794,-औद्योगिक विवाद अधिनियम, 1947 (1947 का 14 ) की धारा 17 के अनुसरण में केन्द्रीय सरकार स्मॉल इण्डस्ट्रीज हवलपमेंट बैंक ऑफ इण्डिया के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबन्ध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ श्रम न्यायालय नं. - 1 ,चण्डीगढ़ के पंचाट ( संदर्भ सं. 12/2006 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 08-9-2008 प्राप्त हुआ था । [सं. एल-12012/ 146/2005- आईआर( जी- II ) ] राजिन्द्र कुमार, डेस्क अधिकारी New Delhi , the 8th September,2008 S.O. 2794. In pursuance of Section 17 of the Industrial Disputes Act, 1947( 14 of 1947) , the Central Government hereby publishes the award (Ref No. 12/2006) ofthe Central Government Industrial Tribunal -cum-Labour Court , No.1 , Chandigarh as shown in the Annexure , in the industrial dispute between the management of Small Industries Development Bank of India, and their workmen , receivedbythe Central Govemment on 08-9-2008.

[No. L- 12012/ 146/2005 - TR(B -11 ) ] RAJINDER KUMAR, Desk Officer

ANNEXURE

BEFORE SHRI GYANENDRA KUMAR SHARMA, PRESIDING OFFICER, CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM- LABOUR COURT- 1, CHANDIGARH

Case No I.D 12/2006

Shri Jaswinder Singh , Sto Shri Prem Chand Río H. No. 2484, Sector25-D, Chandigarh .

...Applicant

Versus

The Deputy General Manager, Small industries DevelopmentBank of India , SCO Nos .145-146, Sector-17- C,Chandigarh.

...Respondent APPEARANCES

For theworkman ; Sh . R.K. Gautam , Advocate

For the management : Sh. A.K. Bakshi, Advocate

AWARD

Passed on 22-8-08

The Central Govemment vide notification No. L- 12012/ 146/2005 / IR (B- II ) dated 28-4-2006, has referred the followingdispute to this Tribunal for adjudication:-

"Whether any employer - employee relationship exists between the management of small industries Development Bank of India , and Shri Jaswinder Singh? Ifyes , whether the action of the management 3631 G1/2008-10

of Sma!! Industries Development Bank of India, Chandigarh in terminating the services of Shri Jaswinder Singh, w.e.f. 06-04-2005 without complying with the provisions ofSections 25 -F,G, H ofthe LD . Act, 1947 is just and legal ? Ifnot, towhat relief the workman is entitled to?"

2. The present reference was made by the Central Govt on the failure of conciliation proceedings for adjudication of the matter referred in the schedule referred above and the workman prayed for declaring the action of the management as illegal and invalid and for reinstatement in service with full back wages and all consequential benefits in the interest ofjustice , equity and fair play.

The management turned up and opposes this application.

As per office memorandum dated 30-4-08 this case was fixed in pre Lok Adalat meeting on 22-8-08 for its disposal by adopting the mediation and conciliation mechanism . With the efforts ofthe Tribunal , the workman agreed to withdraw his reference. Both the workman and themanagement made a statement that management agreed to give priority of the contract to be considered on 1-4-09 to the workman/ contractor Jaswinder Singh and both the parties agreed to this settlement. It is propose to dispase ofthis reference in Lok Adalat . Accordingly the reference is returned to the Central Govt . as settled in Lok Adalat . Central Govt. be informed, File be consigned to record,

G.K. SHARMA , Presiding Chandigarh Officer

22-8-08

नई दिल्ली , ४ सितम्बर , 2008

का. आ. 2795.-औद्योगिक विवाद अधिनियम, 1947 (1947 का 14 ) की धारा 17 के अनुसरण में , केन्द्रीय सरकार न्यू इण्डिया एशोरेन्स कम्पनी लिमिटेड के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच अनुबन्ध में निर्दिष्ट औधोगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ श्रम न्यायालय नं -1 ,चण्डीगढ़ के पंचाट ( संदर्भ सं. 99/91 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 08-9-2008 को प्राप्त हुआ था ।

[सं. एल-17012/5/91-आईआर ( बी-11 ) ] राजिन्द्र कुमार, डेस्क अधिकारी New Delhi , the 8th September , 2008 S.O. 2795. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) , the Central Government hereby publishes the award (Ref. No. 99/91 ) ofthe Central Government Industrial Tribunal -cum-Labour Court No.1 , Chandigarh as shown in the Annexure , in the industrial dispute between the employers in relation to the management of New India Assurance Company Ltd. , and their workmen , which was received by the Central Government on 8-9-2008,

[No. 1-17012/5 /91 - IR(B - II) ] RAJINDER KUMAR, Desk Officer 5524

THE GAZETTE OF INDIA : OCTOBER 4, 2008/ ASVINA 12, 1930

ANNEXURE

BEFORE SHRI GYANENDRA KUMAR SHARMA, PRESIDING OFFICER, CENTRAL GOVT. INDUSTRIAL TRIBUNAL CUM - LABOUR COURT- 1 , CHANDIGARH

Case No. 1. D. 99/91

Smt. Subhadra Kumari C/o Sh . Rakesh Chopra . Chairman, General Insurance Employees Association , New India Assurance Company Ltd. Sector- 17 -A, Chandigarh

PART II- SEC. ( 11 )| time but for specific period . On the basis of the above contentions, the management has declined any relationship ofemployer and employee between the management of respondent and workman ,

Both of the parties were afforded the opportunity for adducing evidence . Apart from the oral evidence, documentary evidence was also tiled by both ofthe parties .

Applicant

Versus

The Regional Manager, New India Assurance Company Ltd. Sector 17- A, Chandigarh

Respondent

APPEARANCES

For the workman : Sri M.L. Bassor

For the management: Sh. N.K. Zakhamí

AWARD

Passed on 2-9-08

Central Govt . vide Notification No. L- 17012/ 5/91 / IR(B - II ) dated 26-7-91 , has referred the following disputeto this Tribunal for judicial adjudication:-- "Whether the action of the management ofNew India Assurance Company Ltd. in terminating the services of Smt . Subhadra Kumari Assistant- cum -Typist is justriied? Ifnot, to what relief is the workman entitled ? " It is the contention of Sint . Subhadra Kumari that she was appointedhned by the opposite party New India Assurance Company d. as Assistant- cum- Typist on daily wage basis on 15-5-84 . Wittmat any fault of Smt. Subhadra Kumari , the management of respondent terminated her services on 30-6-95 . No notice or retrenchment compensation was given before termination ofher services which is in violation of provisions of Industrial Disputes Act . She has worked 240 days continuously before the termination of her services . After her termination , more than 100 employees have been employedby the company , but she was not given any chance to serve.

The respondent denied the claim of workman stating that she was not the employee of the management of the respondent . She was never appointed on the post of typist assistant nor as a daily wager. Due to the load of work of the company and to clear the backlog ofwork, quotations for typing work were called from the local market. The petitioner also submitted her quotation for the typing work which was found lowest amongst the other quotations. According, the petitioner was entrusted the work of typing as per terms and conditions offered by her in her quotations which was accepted by the management . The payment was also made on the basis of quotations submitted by her. This contractual work was given to her from time to Ex. M.1 , is the photocopy of the letter said to he written by Smt. Subhadra Kumari to the Branch Manager. New India Assurance Company , l'azilka regarding the typing ofdocuments mentions inter alia the rate of typing the policies and letters as 60 paise per statement . Ex. Mis another letter dated 1-3-85 . said to be written ha Miss. Subhadra to the Manager . New India Assurance CompanyLtd. regarding typing of documents , quoting this rate of typing policy documents, letters and statement etc. at the rate of 50 paise per letter . Ex . M. 3 is also the same letter written by Smt. Subhadra Kumari to the Branch Manager regarding the rate of typing public documents etc. at the rate of 60 paise per letter In all the three letters quotations, it is also mentioned that the typing machme paper and the carbon paper were to be provided by the management of the respondent company . Ex . M4 0 M53 are the photocopy of the vouchers through which the payment to the workinen was made good. Ex . M 55, M 56 are the letters of the quotations given by the Vijay Type College for typing of the insurance policies , documeтыs and the statement of the company at the rate of 65 per paise perdocument . Ex M 57 , M 58 are the letters quolations by Olympia Commercial College , regarding typing of insurance document. Ex . M 62 - M 68 are the photocopies of the vouchers through which the payment was rusde good to the workman.

Through letter paper no . 121 , the workmen also filed, at the stage of arguments , two documents letter no. 123 is the letter of Deputy Manager written to Vice President, Northern Zone C.G.I.A. regarding Smt . Subhadra Kumari . Letter no. 124 is the letter writtenby Deputy Manager, New India Assurance Company Ltd. to H.L. Kooker . Additional Manager , Firozpur regarding Miss . Subhadra Kumari mentioning her as daily waged typist . I have heard Icarned counsel for the parties and pursued the entire materials on record .

The main question before this Tribunal for judicial adjudication is whether there is a relationship of employer and employee between the management of respondent and the workman? Ifit is , whether the workman has completed 240 days continuously in the preceding year from the date or his termination from the services?

The documentary evidences makes it clear that the management of the respondent company invites tender for theirwork oftyping the insurance polices , other documents and statement of the company . The workman Smi . Subhadra Kumari along with two others , filed the quotations 5525 [ भाग II- खण्ड 3 ( ii) ]

भारत का राजपत्र : अक्तूबर 4, 2008/ आश्विन 12, 1930

for the company. As she has not worked as a dailywaged worker, there was no question for her termination from the service.Her work automatically ceased on expiration ofthe period ofcontract. This reference is answered accordingly. Letthe Central Government be informed. File be consigned.

G. K. SHARMA , Presiding Officer

नई दिल्ली, 9 सितम्बर, 2008

का. आ. 2796.औद्योगिक विषाद अधिनियम , 1947 (1947 का 14 ) की धारा 17 के अनुसरण में केन्द्रीय सरकार डाक विभाग के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच अनुबन्ध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ श्रम न्यायालय नं. । ,चण्डीगढ़ के पंचाट ( संदर्भ सं. 22/2006 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 9-9-2008 को प्राप्त हुआ था ।

[सं. एल -40012/77/2005- आईआर ( डीयू) ] अजय कुमार गौड़ , डेस्क अधिकारी

New Delhi , the 9th September , 2008

5.0. 2796.-In pursuance of Section 17 of the Industrial Disputes Act, 1947( 14 of 1947 ) , the Central Governmenthereby publishes the award (Ref. No. 22/2006) ofthe Central Government industrial Tribunal -cum-Labour Court , No. 1 , Chandigarh as shown in the Annexure, in the Industrial dispute between the employers in relation to the management of Department of Posts, and their workmen, which was received by the Central Government on 9-9-2008.

mentioning their rates for typing the policies etc. The copies of the quotations filed by all three are on record . Apparently, the quotation/proposal of Miss . Subhadra Kumari was accepted being lowest . The endorsement regarding acceptance the offer of Smt. Subhadra Kumari was endorsed on her quotation itself. From the perusal of the copies ofvouchers , it is also clear that vouchers were prepared for payment of different amount , but the purpose forwhich the payment was made good, is clearly mentioned. In every voucher , the purpose of payment is written as typing of insurance policy, documents of the insurance company and the statements etc. The purpose of payment has the nexus with the quotations/proposal made by the Smt. Subhadra Kumari . In her cross examination she has admitted her signatures on quotations and on vouchers but has stated that these are the quotations for the overtime work she did with the company. In the statement of the claim, it is not the case ofSmt . Subhadra Kumari that she alsoworked as overtime along with her dally waged working. Thus , from the perusal of the evidence , oral and documentary, it is clear that Smt. Subhadra Kumari offered her services for typing the insurance policies , some documents and statements at specific rates which were lowest amongst all quotations. Her quotation was accepted and typing work of policies , documents, and statement was given to her by the management of the respondent company. The payment was also made of the same work and in the copies ofthe vouchers it is specifically mentioned that payment is made by company for typing of policies etc;

[No. L-40012/77/2005 - IR(DU)] AJAY KUMAR GAUR, Desk Officer ANNEXURE

BEFORE SHRI GYANENDRA KUMAR SHARMA, PRESIDINGOFFICER, CENTRALGOVT. INDUSTRIAL TRIBUNAL- CUM - LABOUR COURT-1, CHANDIGARH

Case No 1.D 22/2006

Smt. Darshana Devi Wio Shri Manol ar Lal, C/o Shri S.D. Marwah Durga Mandir, 79, Strser Nc 4, Old Bisan Nagar, Patiala.

Applicant

Versus

The Chief Post Master General, Dej . of Posts, Punjab Circle, Sector- 17, Chandigarh.

Respondent

APPEARANCES

For the workman. Noge

For themanagement: Sh. Namit Kumar

AWARD

Passed on 26-8-08

The Central Government vide notification No. L-40012/77/2005 /IR (DU ) dated 19-5-2006, has referred the following dispute to this Tribun i for adjudication:-

Smt. Subhadra has failed to show before this Tribunal that along with the daily waged worker, she was also working an overtime. In fact, there is no evidence on record to show that Sint . Subhadra was working as a daily waged worker, except one document which is the letter written by the Deputy Manager of the company to the Additional Manager Ferozpur, in which she has been mentioned as daily wager typist . She has to prove by some cogent evidence that she worked for 240 days as a daily waged worker and she was paid for that. There is no iota of evidence on record that she worked as a daily waged worker except the above mentioned letter . This letter is not sufficient to prove that she was working as daily waged worker with the company. It only contains a statement referring her a daily waged worker which is not sufficient toprove the direct employer -employee relationship between the management and the workman . On the other hand, it is prove before this Tribunal that she worked on the basis of the contract entered in between the insurance соmраnу for typing of insurance policies , other documents and statements of the company on a specified rates . The documentary evidence clearly proved it that she was not a daily waged worker but she worked for the company on the basis of the said contract. Accordingly, no relationship between the workman and the management of respondent as employer and employees existed at the time she worked 5526

THE GAZETTE OF INDIA : OCTOBER 4 , 2008 / ASVINA 12, 14.30

"Whether the action of the management of Postal Department . , Patiala in terminating the services of Smt. Darshana Devi Wio Shri Manohar Lal , Ex- sweepress w.e.f. 30-11-1998 without complying with the statutory provisions of ID Act, 1947 is legal and justified? Ifnot, to what relief the concerned workman is entitled to and from which date? "

2. Noone is present , on behalf of workman . Learmed representative of the management is also present. Since moming this reference has been called number of times .At 10.45 am. It was ordered to be placed before this Tribunal once again at 2 p.m. It is 2.30 now and on repeated calls no one is present, in spite of having of full knowledge of the proceedings of this reference The reference is as old as referred to this Tribunal in the year 2006. On repeated calls since morning no one is present . Accordingly , the reference is dismissed in default for non -prosecution. Central Governinent be informed accordingly. File to be consigned .

GK. SHARMA , Presiding Officer Chandigarh

26-8-08

नई दिल्ली , 9 सितम्बर , 2008

का. आ. 2797.-औद्योगिक विवाद अधिनियम , 1947 ( 1947 का 14 ) को धारा 17 के अनुसरण में केन्द्रीय सरकार दूर संचार विभाग के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच अनुबन्ध में निर्दिष्ट औद्योगिक विवाद में केंन्द्रीय सरकार औद्योगिक अधिकरण/ श्रम न्यायालय नं । चण्डीगढ़ के पंचाट ( संदर्भ सं. 289/2001 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 09-9-2008 प्राप्त हुआ था ।

[सं. एल -40012/ 182/2001 आईआर (डीयू) ] अजय कुमार गौड़ , डेस्क अधिकारी New Dethi, the 9th September , 2008 S.O. 2797. In pursuancersuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947 ) , the Central Government hereby publishes the award ( Ref No. 289/2001 ) ofthe Central Government Industrial Tribunal -cum - Labour Court, No.1 Chandigarh as shown in the Annexure , in the Industrial dispute between the employers in relation to the management of Departmentof Telecom , and their workmen , which was receivedby the Central Government on 9-9-2008 .

[ No. L-40012 / 182/ 2001-18 [DC ) ] AJAY KUMAR GAUR, Desk Officer

ANNEXURE

BEFORE SHRIGYANENDRA KUMAR SHARMA, PRESIDING OFFICER CENTRAL GOVERNMENT INDUSTRIALTRIBUNAL- CUM - LABOUR COURT- L CHANDIGARH

C'ase No. L. 10. 289/2001

Sm1, Darshana Devi Dio Shri Lachman Dass , House No.39 4, Smalkha , Panipat

[PART II - SEC. 3 ( ii) ]

Versus

TheGeneral Manager . Telephone , Kamal, Haryana.

Respondent

APPEARANCES

Forthe workman

Workman in person

: Sh . G C. Babbar For the management

AWARD

passed on 22-8-08

The Central Government vide notification No 1.- 40012/182/2001 /1R ( DL ) dated 7-9-2001 , has referred the following dispute to this Tribunal for adjudication:

"Whether the action of the management of Department ofTelecommunication in terminating the services of Smt . Darshana w.e.f 8-4-99 is just and legal? 11 not. 10 what relief the workman is emitled to? "

2. The present reference was made by the Central Govt. on the failure of conciliation proceedings for adjudication of the matter referred in the schedule referred above and theworkman prayed for declaring the action of the management as illegal and invalid and for reinstatement in service with full backwages and all consequential benefits in the interest of justice , equny and fair play

The management turned up and opposes this application.

As per office memorandum dated30-4-08, this case was fixed in pre lok adalat meeting on 22-8-08 for its disposal by adopting the mediation and conciliation mechanism With the efforts of the Tribunal .. the workman agreed to withdraw his reference The representative of the managentent Shri H.K. Aggarwal AGM legal made a statement that the department is ready to provide the work to the workman through contractor as per policy of the Government Management will ensure to provide the work tothe workinan . The workman also made a statement that as the management is providing the workinan through contractor she withdraws her reference. Accordingly the reference is returned to the Central Government as settled in Lok Adalal, Central Government . be informed . File be consigned to record.

G.K. SHARMA. Presiding Officer Chandigarh 22-8-08

नई दिल्ली, 10 सितम्बर, 2008

का. आ. 2798 , औयांगिक विवाद अधिरियम , ५५ ( 1947 का 14 ) की धाग । ? के अनुसरण में कंन्द्रीय सरकार में फॉक्स गोकक लिमिटेड के प्रबंधनंत्र के संबद्ध नियोजकों और उनकी कर्मकारों के बीच अनुबन्ध में निदिष्ट औद्योगिक विवाद में कंन्द्रीय सरकार औद्योगिक अधिकरणः श्रम न्यायालय इर्नाकुलम के पंचाट (संदर्भ सं. आईडी 314:2000 ; कां प्रकाशित करनी है , जां केंद्रीय सरकार को 10-9-2008 प्राप्त हुआ था ।

(सं. एन 12510.1999 ( कमल पाखरू, अस्क अधिकारी

Applicant

5527

भारत का राजपत्र : अक्तूबर 4, 2008/आश्विन 12 , 1930

[भाग II- खण्ड 3 (ii) ]

New Delhi , the 10th September, 2008 S. O. 2798. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947 ), the Central Government hereby publishes the award (Ref. I. D. No. 314/ 2006) of the Central Government Industrial Tribunal-cum- Labour Court Ernakulam now as shown in the Annexure , in the Industrial dispute between the employers in relation to the management of M/ s . Forbes Gokak Ltd. and their workman, which was received by the Central Government on 10-9-2008.

[No. L-29012/50/ 1999 -IR( M ) ] KAMAL BAKHRU , Desk Officer

ANNEXURE

IN THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM -LABOUR COURT, ERNAKULAM Present: Shri P. L. Norbert , B.A. , L.L.B. , Presiding Officer

(Friday the 29th day ofAugust, 2008/7th Bhadrapadh 1930)

I.D. 314 of2006 I.D. 18/2000 of Labour Court , Ernakulam Workman: Sri . C.K. Vinu, Cheruveliparambil House, H.No. 14/331 , Cochin-5. By Adv . Sri C. Аnilkumar

Management : TheGeneral Manager, M/s. ForbesGokak Ltd. , Forbes Division Shipping , Patvolk Building, Indira Gandhi Road , Cochin-682003 .

By Adv. Sri V. J. Mathew .

This case coming up in Adalath on 29-08-2008, this Tribunal -com - Labour Court on the same day passed the following:

AWARD

This is a reference made under Section 10 ( 1 )( d ) of Industrial Disputes Act .

2. When the matter came up for hearing the parties expressed their willingness for a settlement. Hence the reference was taken up in Adalath and discussed among the parties . They came to a settlement and a separate agreement was signed by the parties .

In the result, an award is passed in terms of the settlement which will form part of the award.

The award will come into force one month after its publication in the official gazette .

Dictated to the Personal Assistant , transcribed and typed by her, corrected and passed by me on this the 29th day of August, 2008.

P. L. NORBERT, Presiding Officer Appendix-Nil .

नई दिल्ली , 10 सितम्बर , 2008

का. आ. 2799,-औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में केन्द्रीय सरकार मैं. फॉर्बर्ट्स गोकक लिमिटेड के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच अनुबन्ध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ श्रम न्यायालय इर्नाकुलम के पंचाट ( संदर्भ सं. आई. डी. 312/2006 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 10-9-2008 को प्राप्त हुआ था ।

[सं. एल-29012/ 51/ 1999- आईआर ( एम ) ] कमल बाखरू , डेस्क अधिकारी New Delhi , the 10th September , 2008 S. O. 2799. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) , the Central Government hereby publishes the award ( Ref. No. 1. D. 312/2006) of the Central Government industrial Tribunal- cum- Labour Court Ernakulam now as shown in the Annexure , in the Industrial Dispute between the employers in relation to the management of M/ s . Forbes Gokak Lid. and their workman , which was received by the Central Governmenton 10-9-2008.

[No. L-29012/ 51 / 1999 - IR(M) ] KAMAL BAKHRU , Desk Officer

ANNEXURE

IN THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM - LABOUR COURT, ERNAKULAM Present: Shri . P. L. Norbert, B.A. , L.L.B. , Presiding Officer

(Friday the 29th day of August , 2008 /7th Bhadrapadh 1930)

I.D. 312 of 2006

I.D.16/2000 of Labour Court, Ernakulam Workman: Sri M. Sajeesh , Malayil House , Vallachira P.O. , Trichy- 680562. ByAdv. Sri C. Anilkumar

Management: The General Manager , M/s. ForbesGokak Lid., Forbes Division Shipping . PatvolkBuilding, Indira Gandhi Road , Cochin-682003 .

By Adv. Sri V.J. Mathew,

This case coming up in Adalath on 29-08-2008 , this Tribunal - cum - Labour Court on the same day passed the following:

AWARD

This is a reference made under Section 10 ( 1 )( d) of Industrial Disputes Act .

2. When the matter came up for hearing the parties expressed their willingness for a settlement . Hence the reference was taken up in Adalath and discussed among 5528

THE GAZETTE OF INDIA : OCTOBER 4, 2008/ASVINA 12, 1930

the parties . They came to a settlement and a separate agreement was signed by the parties .

In the result, an award is passed in terms of the settlement which will furm part ofthe award.

The award will come into force one month after its publication in the Official Gazette.

Dictated to the Personal Assistant , transcribed and typed by her, corrected and passed by me on this the 29thday ofAugust , 2008.

P. L. NORBERT, Presiding Officeт Appendix--Nil

नई दिल्ली, 10 सितम्बर , 2008

का. आ. 2800.-औद्योगिक विवाद अधिनियम, 1947 ( 1947 का ( 4 ) की धारा 17 के अनुसरण में केन्द्रीय सरकार मै . फॉस गोकक लिमिटेड के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच अनुबन्ध में निर्दिष्ट औद्योगिक विवाद में केंद्रीय सरकार औद्योगिक अधिकरणः श्रम न्यायालय , इर्नाकुलम के पंचाट (संदर्भ सं. आई.डी. 13/2008 ) को प्रकाशित करती है , जां कंन्द्रीय सरकार को 10-9-2008 को प्राप्त हुआ था ।

[सं. एल-29012/ 52/1999- आईआर ( एम) ] कमल बाखरू , देस्क अधिकारी New Delhi, the 10th September , 2008 S. O. 2800 In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947 ). the Central Government hereby publishes the award ( Ref . 1.D.13.2008 ) ofthe Central Govemment Industrial Tribunal- cum -1.amour Court , Ernakulam now as shown in the Annexure . in the Industrial dispute between the employers in rekatea to the management of M's. Forbes Gokak Ltd and their workman , which was received by the Central Coverament on 10-9-2008.

No. 1-2901252 1999-JRM ) ) KAMAL BAKHRU Desk Officer

ANNEXURE

IN THE CENTRAL GOVERNMENT INDUSTRIAL. TRIBUNAL CUM - LABOUR COURT, ERNAKU LAM Present : Shri . P. L. Norbert , B.A. , L.L.B.. PPresiding Officer

(Friday the 29th day of August 2008-7th Bhadrapadh 19301 1.D. 13 of 2006

I.D.14/2000 of Labour Court, Ernakulam Workman : Sri K.S. Santhosh , 81578 , Rohini , Kalathiparambil House, Koovappadam , Cochin - 682002 . By Adv . Sri C. Anilkunar

Management : The General Maлацет , Mis . Forbes Gokak Ltd ..

[ PART II- SEC . 3 ( ii ) ] Forbes Divison Shipping , Patvolk Building , Indira Gandhi Road, Cochin-682003 .

By Adv . Sri V.J. Mathew .

Thiscase coming up in Adalathon 29-08-2008 , this Tribunal - cum - Labour Court on the same day passed the following.

AWARD

This is a reference made under Section 10 ( 1 ) ( d ) of Industrial Disputes Act

2. When the matter came up for hearing the parties expressed their willingness for a settlement. Hence the reference was taken up in Adalath and discussed among the parties . They canie to a settlement and a separate agreement was signed by the parties

In the result, an award is passed in terins of the settlement which will fon part of the award.

The award will comeanto force one month after its publication in theOfficial Guze だ。

Dictated to the Personal Assistant , transcribed and typed by her , corrected and passed by me on this the 29th day of August, 2008

Appendix P.L.. NORBERT, Presiding Officer Nil नई दिल्ली . ।।। मितम्बर , 2008

का. आ. 2801. ऑद्योगिक विवाद अधिनियम, 1947 (1947 का 14 ) की धारा 17 को अनुसरण में कंन्द्रीन सरकार मं. फॉर्वर्ड्स गोकक लिमिटेड के पबंधतंत्र के संचद्ध नियोजकों और उनको कर्मकारों के बीच अनुबन्ध में निर्दष्ट औद्योगिक विवाद में कंन्द्रीय सरकार औद्योगिक अधिकः श्रम चनालय, इर्नाकुलम के पंचाट ( संदर्भ सं. आई.डी. 3132 ) को प्रकाशित करती है, जो कंन्द्रीय सरकार को 10-9-2008 का प्रान्त हुआ था ।

[सं. एन्न 20412: 53 999 - आई आर ( एम ) ] बाखरू, डेस्क अधिकारी New Delhi , the 10th September . 2008 S. O. 2801. hu pursuance of Section 17 of the Industrial Disputes Act , 1947114 of 1947). the C'entral Government hereby publishes the award ( Ref. 1.D. 313 . 2006 ofthe Central Government Industrial Tribunal - cum- Iabour Court . Ernakulam now as shown in the Annexure , in the Industrial dispute between the employers in relation to the managemem of Ms Forbes Gokak Ltd. and their workmen , which was received by the Central Government 010-9-2008 .

( Να. 1. - 29012 /53 / 1999 - IR( M) ] KAMAL BAKHRU , Desk Officer 5529

भारत का राजपत्र: अक्तूबर 4, 2008/आश्विन 12, 1930

[भाग II- खण्ड (ii) ]

ANNEXURE

IN THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM- LABOUR COURT, ERNAKULAM Present: Shri P. L. Norbert , B.A. , LL.B. , Presiding Officer

(Friday the 29th day ofAugust 2008 /7th Bhadrapadh 1930)

I.D. 313 of 2006

1.0.17/2000 of Labour Court, Ernakulam Workman: Sri . T.K. Dinesh Kumar , C/o . T.K. Geetha, 3/93, Samooha Parambu , Perumpadanna, North Parur , Cochin. ByAdv . Sri C. Anilkumar .

Management: TheGeneral Manager, M/s. Forbes Gokak Ltd., ForbesDivison Shipping, Patvolk Building, Indira Gandhi Road, Cochin-682003.

By Adv. Sri V.J. Mathew,

This case coming up in Adalath on 29-08-2008, this Tribunal -cum - Labour Court on the same day passed the following,

AWARD

This is a reference made under Section 10 ( 1 ) ( d ) of Industrial Disputes Act .

2. When the matter came up for hearing the parties expressed their willingness for a settlement . Hence the reference was taken up in Adalath and discussed among the parties . They came to a settlement and a separate agreement was signedby the parties.

In the result, an award is passed in terms of the settlementwhich will form part of the award .

The award will come into force one month after its publication in the Official Gazette .

Dictated to the Personal Assistant, transcribed and typed by her, corrected and passed by me on this the 29th day ofAugust , 2008.

P. L. NORBERT, Presiding Officer

-Nit

Appendix

नई दिल्ली , 10 सितम्बर , 2008

का. आ. 2802, औद्योगिक विवाद अधिनियम , 1947 (1947 का 14 ) की धारा 17 के अनुसरण में केन्द्रीय सरकार मै. फॉर्बस गोकक लिमिटेड के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच अनुबन्ध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ श्रम न्यायालय, इर्नाकुलम के पंचाट ( संदर्भ सं. आई.डी. 311/2006 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 10-9-2008 को प्राप्त हुआ था ।

[सं. एल -29012/54/ 1999- आई. आर. ( एम. ) ] कमल बाखरू , डेस्क अधिकारी New Delhi, the 10th September, 2008 S.O. 2802. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) , the Central Govemment hereby publishes the award (Ref. No. I.D. 311 / 2006) of the Central Government Industrial Tribunal -cum- Labour Court , Emakulam now as shown in the Annexure , in the Industrial dispute between the employers in relation to the management of M/ s . Forbes Gokak Ltd. and their workmen, which was received by the Central Government on 10-9-2008.

[No. L-29012/54/ 1999- IR( M) ) KAMAL BAKHRU , Desk Officer

ANNEXURE

IN THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNALCUM- LABOUR COURT, ERNA KULAM Present: Shri . P. L. Norbert , B.A. , L.L.B. , Presiding Officer

(Friday the 29th day ofAugust 2008 / 7th Bhadrapadh 1930 ) L.D. 311 of2006 I.D. 15/2000 ofLabour Court, Ernakulam Workman: Sri. K. Surendran , 29/ 169A , Susheel Bhavan , Near TOC H School , Janatha Road, Vyttila , Cochin- 682019. ByAdv. Sri C. Anilkumar .

Management : The General Manager ,

M/s. ForbesGokak Ltd., Forbes Divison Shipping, Patvolk Building , Indira Gandhi Road, Cochin-682003 .

By Adv. Sri V.J. Mathew.

This case coming up in Adalath on 29-8-2008, this Tribunal -cum -Labour Court on the same day passed the following:

AWARD

This is a reference made under Section 10 ( 1 )( d ) of Industrial Disputes Act.

2. When the matter came up for hearing the parties expressed their willingness for a settlement . Hence the reference was taken up in Adalath and discussed among the parties. They came to a settlement and a separate agreement was signed by the parties .

In the result , an award is passed in terms of the settlement which will form part of the award.

The award will come into force one month after its publication in the Official Gazette.

Dictated to the Personal Assistant , transcribed and typed by her, corrected and passed by me on this the 29thday ofAugust, 2008 .

P. L. NORBERT, Presiding Officer -Nil

Appendix:

5530

THE GAZETTE OF INDIA : COCTOBER 4, 2008 / ASVINA 12, 1930

नई दिल्ली, 10 सितम्बर , 2008

का. आ. 2803, औद्यागिक विवाद अधिनियम, 1947 ( 1947 का 14 ) की धारा । के अनुसरण में केन्द्रीय सरकार एडरगार्ट ऑथोरिटी ऑफ इंडिया के प्रश्धतंत्र के संबद्ध नियांजक और उनक कर्मकारों के चीच अनुबन्ध में निर्दिष्ट औद्यागिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरणःश्रम न्यायालय सं. 11. मुम्बई के पंचाट ( संदर्भ सं. - सीजीआईटी -2/ 56/2007 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 10-9-2008 को प्राप्त हुआ थः ।

[ सं. एल -11011 / 4/2003 - आई आर ( एम) कमल बाखरु , डेस्क अधिकारी New Delhi , the 10th September , 2008 S.O. 2803. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) , the Cemal Government hereby publishes the award ( Ref. No. CGill- 2/56/2007 ) ofthe Central Government Industrial Tribunal Labour Court , No.2 , Mumbai as shown in the Annexure, in the Industrial dispute between the employers in relation to the management of Airport Authority of India , and their workmen, which was received by the Central Governme оп 10-9-2008 .

[No. L- 1101142003 -IRM KAMAL BAKJURU . Desk Officet

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL. TRIBUNAL CUM- LABOUR COURT NO.- 2, MUMBA

PRESENT

A. A. LAD, Presiding Officer

REFERENCE No.CGIT-2 /56 . OF 2007 (Old No.CGIT - 1 / 14 (OF 2003 )

Employers in Relation to the Management of Airport Authority of India

Airport Authority of India.

[PART 1 $ . 3 ( ii) ]

AWARD

The matrix of the facts as culled out from the proccedings are as under.

2. The Government of India, Ministry of Labourby its Order No.L- 11011.4/ 2003 - IR ( M ) dated 20th March , 2003 & L- 11011 /4/2003 IR( Mise idined 25-10-2007 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 , 1947 have referred the following dispute to this Tribunal for adjudication:

" I. Whether the contract between Airport Authority of India and the respondems contractors , is a sham and bogus and is a camouflage to deprive the workers concerned in the petition ofbenefits available to permanent workmen of Airport Authority of India ?

2. Whether the workers concerned ( list attached ) in the petition should be declared as permanent workers ofAirport Authority of India!!

3. What are the wages and consequential benefits to be paid to the workers concerned in the petition?"

1st Party

Chhatrapti Shivaji International Airport Terminal IB , Mumbai. ...

AND

2nd Party

Their Workmen represented by Indian Airport Kamgar Union , Having its office at C/ o . Baiju Koroth, Maggie D'Souza Chawl , Tank l'akadi , Sahar Village,Mumbai 400 009.

APPEARANCE

FOR THE EMPLOYER: Mr. Shamarao Patil & Mr Avinash Patil , Advocates FOR THE WORK MEN: Mr.A.P. Kulkarni , Mrs. Monika

Sakhrani , Advocates

Date ofreserving Award: 2nd May , 2008 Date of passing of Award 26th May, 2008 .

3. To support the subject matter in the reference the Statement ofClaim is filed by the 2nd Party, Linion through its Vice President , different tome but now finally at Exhibit 03 B making out the ease that the 1st Party, employers carry out its activities at various places in India such as Mumbai, Delhi , Chennai , Kolkata , etc. in all around 120 Airports all over the country . The total work force employed by the employer company consists of permanent employees , casual workers and contract employees . The present proceedings relate to a set of workmen numbering to 35 workmen , whose names and other details are mentioned in the list enchised with it at Annexure - 1 Concemed Workmen are working an the Civil Maintenance work, which is an integral part of the regular. permanent and perennial activities of the 1st Party ne . Airport Authority of India The June's carried outby the concerned workmen are of such a nature that the same have never been severable from the mam activities carried out by the employer at various Airports in liedis , The Mumbai Airport is the largest Airport in alia basing domestic terminal building at Santacruz and Imerria : knal Terminal building at Sahar , Mumbai . At domestic terminal at Santacruz there is largest traffic in India and there is constant flow ot passengers and cargo trairie, using the Airport facilities. The services rendered by the workers , irrespective of their category , are of important are because the contmavas flow of passengers and cage As far as international passengers are concerned , the catase of duties entrusted to all the workers , including the workers concerned . is of vital importance , as the international passengers carry on impression about our country based on their views of the Airports . The domestic terminal building situate Santacruz has two terms which are known as terminal IA from where the flights ot fridiu: Airlmes and Allance 5531 भारत का राजपत्र : अक्तूबर 4 , 2008/ आश्विन 12 , 1930

[भागे ।।- खण्ड 3 ( ii ) ]

theAirports Authority of India i e . the Ist Party deliberately and intentionally did not sanction the appointments of permanent workmen for the maintenance of this terminal and instead decided to employ workers through sham and bogus contractors with a view to exploit these Workmen and with a view to deny them the benefits due and payable under the various industrial laws . The Union further submitted that the modus operandi adopted by the Ist Party was that the workers were employed through intermediartes orthe so - called contractors and such workers were never given statutory benefits such as provident fund , ESL, minimum HRS. Medical benefits , bonus etc. and similarly these workers were also not given the benefits available to the permanent workmen . Union further submitted that it is pertinent and significant to state that these workers were, in fact, entitled to receive the same, similar and identical benefits without discrimination between them and the other permanent workers , from the dates of respective appointments, because based on the principle and doctrine of equal pay for equal work , these workers had /have statutory right of being at par with the permanent workers in the matters ofemoluments and other terms and conditions ofemployment. However, the same was denied to them by artificial means and by subterfuging the conspectus of employment . In other words, the artificial , sham and bogus contractors were introduced by the 1st Party-employer with a view to deprive the workers concerned , oftheir statutory benefits under the various Industrial Laws. Similar and identical modus operandi was also deployed by the 1st Party employer for engagement of such workers by recruiting them through Junior Engineer , Assistant Engineet , Executive Engineer. These , JE, Asstt . Engineer, and Executive Engineer used to recommend the names of the candidates who were to be recruited and allotted to a setof so called contractors . The Carpenters are appointed through J.E. and Executive Engineer. A beldar isappointed through J.E. , Assistant Engineer and Executive Engineer . Union further submitted that the so- called contractors whose names go on changing , are mere name- Lenders . It is submitted that, the Airport Authority of India, le . Ist Party has engaged the so called contractors in names and styles as (1 ) M /s . Nediyath Constructions , (2) M/s . Rojiwada Constructions , (3 ) M/s . J.P. & Brothers, (4) M /s . Reena Enterprises , (5 ) M/s, Samson Construction, (6) M/s Vini Enterprises , (7 ) M/ s ,, Intercon , (8 ) M /s . Profesco and (9) M/ s , D'Souza Construction Co. The Union further submitted that, these parties are not genuine parties . These names are nothing but a subterfuge and camouflage . These so called parties or so called contractors have never obtained any registration as Commercial Establishment under the Shops and Establishments Act or under the Factories Act. These Contractors are changing many a times old so called contractors go away and in their places new so called contractors are introduced by the Ist Party. Theworkers, however , remain the same despite the change ofthe so called contractors. The nature ofwork , which the Air take off and land and the other terminal is known as Terminal LB from where the flights ofprivate airlines such as Jet Airlines, Sahara Airlines , etc. take off and land. Terminal IB was constructed prior to 1972 and the permanent employees/ workers are carrying out function ofcivil maintenance of the terminal buikling. In Terminal 1B there are around 28 permanent workers who are carrying out the function of civil maintenance of the terminal building . In Terminal 18 there are around 28 permanent workers who are carrying out the function of civil maintenance thereof. The 2nd Party Union further submitted Terminal IA , which is also known as New Domestic Terminal Complex (NDTC) was commissioned in the year 1992 and one ofthe permanent workers were posted or employed there for carrying on civil maintenance work, since the Inception of Terminal IA . The naines of the workmen concerned in the present Reference and employed at IA are: ( 1 ) Mr. Jalinder Kamble , Carpenter , (2 ) Mr. Gurunath Jadhav. Mason , (3 ) Mr. Rajesh Yadav , Plumber , (4) Vashisht Yadav, Plumber, (5) Mr. Rabi Ray, Plumber. (6) K. Chinapaya , He per / Beldar, (7 ) Mr. Anand Mane , Helper / Beldar , (B ) Mr. Mahindra Patil , Helper/Beldar, (9) Мг . Mangesh Ramban , Helper/Beldar, ( 10 ) Mr. Suresh Ruke, Helper/ Beldar, ( 11 ) Mr. Dinesh Karekar, Helper / Beldar , (12)Mr. Fredrick John Lobo, Helper / Beldar . Union further submitted that the aforesaid workmen are carrying out the work ofPlumbing, Carpentary and Masonry work and some of them are helpers. Their work is of continuous nature. They are provided with instruments , materials , apparatus etc. etc. The Union further submits that , the workers employed at Terminal 1A are required to work in 4 shifts and some of the workers are required to work only in the general shift. The workers employed in the categories of Carpenter , Mason and Plumber are required to work only in the general shift. All the workers are issued necessary entry passes by the Management of the ist party . All the workmen employed at Terminal LA were required to sign attendance register kept in the respective offices and these registers were/are counter -signed, for the purpose of authenticationby the Junior Engineer. The Union submit that, muster-rolls are maintained all these years . These muster rolls contain details such as "General Shift, Shift duties" etc. as well as the designations of the workmen. The entire work is being carried on the premises of the Airports Authority of India. None of the representatives of the so-called Contractor is present at the premises to oversee the work of the workers . The muster rolls of the workers are maintained by the Junior Engineer /Sr. Superintendent of Terminal IA, who certifies the register under his signature and signs each day's notes of the general shift and the shifts of the staff. The muster- rolis are kept in the custody of J.E./Sr . Superintendent . The Union submits that , the work, in which the concerned workmen are concerned, is also being done by the permanent workmen, in the older terminal of Mumbai Airports. In 1986, when the new terminal was commissioned,

3631 G2008-11 5532

THE GAZETTE OF INDIA : OCTOBER 4,2008 /ASVINA 12 , 1930

[PART II-SEC-3 ( 6) ]

concemed , the pensers are issued with Identity workers concerned in the present proceedings have been carrying out since last several years , has never been the work of intermittent or temporary nature . There have been changes in the Pame- Lending contractors , but the sets of workers have always remained the same. The nature of duties performed by the concerned workers have been of permanent and perennial nature . 2nd Party further submitted that , Ist Party has been maintaining documentation in respect of the workers covered under the present Reference . These documents clearly reveal that, there is direct supervision and control of the work and the duties carried out by the concerned workers are controlled, supervised by the Executives , Officers , Engineers , Sr. Superintendents , Junior Engineer, Engineer - in - charge etc. ofthe Ist Party. The Civil Maintenance Department of Terminal IA is headed by Assistant General Manager under whom there are two Managers viz . Manager Engineering (M.E.) in charges ofTerminal IA and IB respectively. Under these MEs there are Assistant Manager Engineering who were previously known as Assistant Engineers , in each of the sub -division of the Civil Maintenance Department and inthe last level there are Junior Engineers who now known as Senior Superintendents in Civil Maintenance Department - Terminal 1A, where the present set of workers are employed. The workers covered under the present reference, who are only labelled as the contractors' workers, are/were under the direct supervision and control of the Senior Superintendent and of the MEs of the Department who are the permanent workinen working in their respective Terminals . Union submits that, it is , therefore, crystal clear that as far as the nature of the supervision and control is concerned there has been never any difference of whatsoever nature between the permanent workers and the workers covered under the present Reference. In other words, the activities of Civil Maintenance Department , which are carried ou en the premises of the 1st Party cannot be segregated. separated or carved out of the entire work and activities of the Airports Authority of India . This essentially goes to shows that the nature ofduties performed by the werkers inespective of their labels ( t.e. whether perznanent or temporary or otherwise ) are of perennial nature , important nature and are the integral part of the main activities of the establishmen et the Inte 2nd Party further submitted that, the workers comen the preset Reference are undisputedly require shifts. The metlind and manner is which the duties are attotied and the instructions are issued to the workers covered under the present Reference as well permanent workmen , are the systematic actrittes d out in the establishment of the Ist Party. I per se note that, the judicial tests which are applied wire determining the issue of ' undertaking or toda Establishments ' envisaged and contemptred provisions of the 1.D. Act , 1947 , in terms of Section 2 ( k ) (a) thereof, the Civil Maintenance Department of the Ist Party satisfies the test of nature of industry in itself. Apart from

this, the very fact that the allocation of the work to the concerned workers employed in Civil Maintenance Department , irrespective of their status , is entrusted in the hands ofthe Engineer - in-charge , is itselfone of indications and pointer to show that all the workers concerned in the present Reference , employed with Civil Maintenance Department, irrespective of their status, is entrusted in the hands of the Engineer- in - charge , is itself one indications and pointer to show that all the workers concerned in the present Reference , employed with Civil Maintenance Department ofTerminal IA are the direct employees of the Ist Party ie . Airports Authority of India and introduction ofthe so called contractors is nothing but subterfuge and device to refute and deny the real and direct employer employee relationship between the 1st Party employer and the workers concemed, who are covered under the present reference. The allotinent of shifts is also controlled bytheManager Engineering ( C - 1 ) , who issues duty roaster for particular period with the names of the workers who are allotted particular shifts during the periods specified in the duty roaster. In this behalf, it is submitted by the Union that, in the industrial establislunents of this nature, the duty roasters have their own importance . The duty roasters , which are prepared by the Management, is a sort ofadvance notice issued to the workers as to in which shift and al which time they should report and perform their duties Thus, preparation of duty roaster and specifications ofthe shifts therein by the JF [ now known as Sr. Superintendent (C-I) ) is one ofthe factors which indicate that , the workers covered under the present Reference are issued instructions by the officials / executives engineers/ managers etc. of the Ist Party . The name lending contractors , who are merely introduced as intermediaries . have no role to play in these matters . As far as leave of any of the workers is concerned , he has to apply to the Sr. Superintendent /J F. , for the same , who sanctions it The 2nd Party Union subunits that , even in the case of permanent workers , the same system/inethod is followed in the inarters of their leave. The workers covered under the present Reference are never given any fixed quantum of leave. But on the other hand , their wages are deducted by the Managemem whenese workers proceed on leave . Ine rignificance of wow has been only as " leave of ables" and cow in fact , gross illegality Asminationers ot leave because even the resperary worked workers or casual workers etc. are entitled for sed quantuin of leave.It is submitted by the it as idomity Cards are Card and even pre - called contract workers were also issued bureatler , they ( ie . contact wwriers with passes and tokens . The concerned workers are required to obtain, everyday, what is colloquially known as "Parchi " which contains the following columns in the form of rubber stamps :

5533 [ भाग II- खण्ड 3 (ii ) ]

भारत का राजपत्र : अक्तूबर 4, 2008/आश्विन 12 , 1930

Name ofCompany

Name ofLabour

Housekeeping (EHK) along with the Manager- Engineering, Civil (MEC) and the Manager-EngineeringElectrical (MEE) TokenNo.

AreaAllotted NTBAN

DTCBuikling

IssueDate

or the representatives ofthese two departments are required todo a thorough check ofthe terminal building and to note down the observations and actions required by the concerned departments in a register called as " Daily Dedicated Group Register" . This Register is signed by the representatives of the three departments . A copy of this, DDG is kept with each department . The Civil Maintenance Department's copy of the said DDG is with the Manager Engineering (ME) who keeps it in a Diary maintained by the Civil Maintenance Department (CMD) and the Diary and date carry seal of the Department. The ManagerEngineering (ME) makes a notice on the DDG allottingworkto the JE/Senior Superintendent concerned, who in tum , allots it to the workers who carry out the necessary work. The JE/Senior Superintendent personally oversee the work being done by the concerned workers and they report the matter to the Manager Engineering (ME) The Engineer -in-charge also maintains Register for Civil Complaints /Requirements , which is certified by the JE/Senior Superintendent and the Assistant Engineer , based on the complaints received front the Housekeeping Department and the Airport Manager. The work is then allotted to the concerned workers who carry out the necessary work. In the CMD- I A, where the concerned workers are employed, Shri V.R.Mule is the Senior Superintendent at present and earlier Ms. Sunita Pimple was the Senior Superintendent who has recently been transferred to Delhi . Register for Civil Complaints / Requirements contain the following columns:

SerialNumber

NatureofComplaint

Received from Date of Receipt

and time of Receipt

Attendedby

Date and time attended:

Cause of Problem

Signature ofthe Junior Engineer (Civil)

Signature of the Assistant Manager Engineering

(Civil)

Such Registers are being maintained by a period of last around 8/9 months . The maintenance ofsuch registers was started by the 1st Party after introduction of ISO 901 . In fact, the letterheads of Airports Authority of India ( International Airport Division ) also carry the logo/stamp of LLOYD'S REGISTER QUALITY - UKAS QUALITY- ASSURANCE ISO 9001 MANAGEMENT 001 " . In the general shift , there are JEs and Senior Plumbers , who are permanent employees . In the ist shift also , there are JEs and Plumbers . In the second shift , there are permanent plumbers and JEs upto 5 P.M. In the third shift there are plumbers , sewermen and helpers . The workers concemed in the present Reference are also required to work in all the four shifts . The registers for civil complaints/ requirements These columns and information therein is based on the monthly letters which are issued by the Lst Partyto the so-called contractors , signed by the J.E/ Sr . Supdt. , Assistant Engineer, Engineer- in-Charge, Dy. General Manager (Civil) etc./ the 1st Party has been maintaining meticulous records regarding entry/exit and presence of the persons on the establishment of the Company, including the workers concerned . These records are called entry passes and/ or tokens . These passes/ tokens are issued on daily basis by the Bureau of Civil Aviation Security (BCAS). Token mumbers are written on every day's passes . At the end of the day/ shift, the token is taken away from the workers concerned. In fact, though all the workers concerned in the present Reference , as well as those concerned in Writ Petition No.78 of 2000 were continuouslyworking, after filing the Writ Petition, with a viewtocreate false impression about the temporary nature ofwork and with a view to conceal the truth and the real nature of employment, in respect ofthe workers concerned, different methods and devices are followed by the Management of Ist Party through the Engineer- in -charge and the names ofthe workers were , at times, struck off and instead of such workers , names of some other workers were substituted. The allocation of work , to be performed bythe workers concerned in the present Reference is done bythe Engineer- in charge . The names of some of them are Shri Ravindra Node, Ms. Sunita Pimple, Shri Vishwas Mooley, Shri R.N. Singh , etc. The work ofcivil maintenance is ongoing and continuing due to the heavy traffic of passenger and cargo, there is constant wear and tear ofthe facilities and it is imperative that the maintenance is require todo immediately and continuously as per requirements in order to maintain a standard of the airport and to provide these essential hospitality services to the passengers, staff and other associates who use the airport terminals. The cleaning of toilets, continuous water supply and general maintenance ofthe building are essential to the functioning ofthe activities of the 1st Party Employer, i.e. Airports Authority of India. It is for these reasons , amongst other , that the Ist Party has four departments , which look after day-to-day maintenance of the establishment /airports . These four departments are Housekeeping Department (HK), Civil Maintenance Department ( CMD) , Electrical Maintenance Department ( EMD ) and the Electronics Department (ED), These four departments in harmony with each other perform the functions of maintenance of the airport . It is further submitted by the Union that for performance of the maintenance of the building , the Manager House Keeping ( MIIK ) or Executive 5534

THE GAZETTE OF INDIA :OCTOBER 4,2008 / ASVINA 12,1930

are maintained in all shifts . The entries in such registers are pertainingto:

Senior plumber

Complaint

Received from

Date and time ofreceipt

Attended by:

Date of Attendance

Problem

Junior Mate Signature

J.E. Signature

Union submits that , if any material is required for carrying out the task of attending the complaint , the Senior Superintendent who has custody of the stores, provides the material and makes noting of the same in the " Material Issued Register " which is kept in his custody. The Senior Superintendent also maintains the Work Diary, wherein he writes and certifies the work done by the workers concerns and the same is kept in his custody . On the basis of the Work Diary, the Engineer- in -charge prepares payment bills ofthe so called name - lender contractors and then payment is made to them . The work diary is maintained under the signatures of the JE . AME and ME. Apart from these records, the Airport Manager ( APM) also maintains a record of complaints received during the time when the Engineer- in charge is not on duty and allots the work to the shift staff based on the complaints received . All the registers are in the custody of the JE.

4.The Second Party Union submit that prior to 2001 when on the advice of ISO , in order to attain International standards of maintenance of the airports , the maintenance of the building was done through the Manager- Housekeeping who did a thorough check of the terminal building and sent a Job Request in the prescribed proforma to the Manager Civil (IA) , to carry on the specific tasks, The proforma of the Job Request of the House Keeping Section , Mumbai Airports Authority of India i.e. the Ist Party, contains a reference number, date , from and to details and the columns with the following details :

Serial Number Area

Complaint

Remarks (this contains the remarks made by the Engineer-in- charge with his signature upon the task being attended).

The form also contains the details of the person who received the request , wito made the request, person who completed the job, the person who verified the job and the dates on which the same were done . 2nd Party submits that , a substantial part of the responsibility of the a managerial personnel is the supervision and control of the work being performed by the alleged/ so called comract workers i.e. of the workers covered under the pres reference. The Operations Department has issued the of Description (Duties and Responsibilities of the air Manager of Terminal LA , which includes:

(PART II-SE - 300 ] (1) To keep a record of the shift personnel on duty, their attendance and leave record;

(ii) To inspect the terminal building for cleanliness and check all passenger amenities like lounge furniture, toilets , drinking water facilities , PA System . CCTV , flight information Boards (Display-slip flat type ), lift escalator, conveyor belts etc. to ensure that they are available and functioning in a complaint free manner , (iii) To ensure maintenance of the areas in the immediate vicinity of the terminal building 10 ensure that they are kept clean and there is no likelihood of congestion anywhere at any time.

(iv) To ensure that there is no water logging on the city and airside of the termunal building and to take corrective action ifrequired :

(v) To ensure that reserved lounges are maintained well and allotted to entitled persons only.

(vi ) To supervise and control the working of all staffof IAAI on shift duty (including civil and electrical departments ) in coordination with AE/JE .

The 2nd Party further submits that the workers covered under the present Reference , sit in the room outside the JE's office during the general shift and are allotted work by the JE who receives the complaints . At the end of the general shift , when the JE leaves, the office is locked and the workers in the shifts operate from the Pumphouse wherethey received complaints from the Airport Manager . The Plumbersduring the shifts maintains a similar register ofcomplaints under the direction of the E , which is checked and countersigned by the JE who makes a noting of the same. The Second Party further submits that the Wage Bill is prepared by the Junior Engineer on the basis of the records maintained by him and he sends the details of the same to the so called contractor who prepares the wage bill in accordance with the information furnished by the Jl .. There is no supervisor on duty in Terminal IA Civil Maintenance Department at present and the supervision ofthe work is done by the JE . It is thus apparent that the rates ofwages are determined and decided by the Ist Party. The so called name- lenders so called contractors have absolutely no say in these matters. It is one ofthe indication which show that, there is direct employer/ employee relationship between the Ist Party i.e. Airport Authority of India and the workers covered under the present Reference . The Union further contended that the category of workmen involved in the present dispute are workmen who were earlier carrying on the work of maintenance of Terminal II B while it was functioning and now are employed to carry on the work of Civil Maintenance of Terminal II C as Plumbers . Masons and Helpers / Beldars . The huge building of the International Airport is divided 5535 [ भाग II-खण्ड 3 (ii) ]

भारत का राजपत्र : अक्तूबर 4, 2008/आश्विन 12 , 1930

General shift , the Workers employed in the categories of Carpenters, Mason and A Plumber, are required to work only in the general shift . All the workers were are issued necessary entry passes by the Management of the Ist Party. All the workmen employed at Terminal 11 , C were required to sign attendance register kept in the respective officers and these registers were countersigned, for the purpose of authentication , by the Junior Engineer . The Union further submitted that Muster rolls are maintained all these years . The entire work is being carried on, in the premises ofthe 1st Party. None of the representatives of the so called contractor is present at the premises to oversee thework of the Workers . The muster rolls of the Workers are maintained by the Jr. Engineer /Sr. Superintendent of the Terminal IIC , who certifies the register under his signature and signs each day's notes of the General Shift and the shifts of the staff. The muster rolls are kept in the custody of the JE/Sr. Superintendent.

5. Union further submitted that , the work , in which the set ofworkmen covered under the present adjudication. proceedings are concerned, is also being done by the permanent Workmen , in the older terminal of Mumbai Airports in 1986, when the new terminal was commissioned, the ist Partyemployer herein , deliberately and intentionally didnot sanction the appointments of permanent workmen for maintenance of this terminal and insteaddecided 10 employworkers through sham and bogus contractors with aview to exploit these Workmen and with a view to deny them the benefits due and payable under the various industrial laws . It is further submitted by the Union that themodus operandi adopted by the 1st Party was that the workers were employed though intermediaries or the so called contractors and such Workers were never given statutory benefits such as Provident fund , ESl , minimum HRS, medical benefits, bonus etc.

Similarly, these workers were also not given the benefits available to the permanent Workmen and it is pertinent and significant to note that , these workers were , in fact, entitled to receive the same, similar and identical benefits without discrimination between them and the other permanent workers , from the dates of respective appointments. However, the same was denied to them by artificial means and by subterfuging the conspectus of employment. In other words , the artificial , sham and bogus contractors were introduced by the 1st Party with a view todeprive the workers concerned, oftheir statutory benefits under the various Industrial laws . Similar and identical modus operandi was also deployed by the 1st Party employer for engagement of such workers by recruiting them through Junior Engineer , Assistant Engineer , Executive Engineer. These, JE, Assti Engineer and Executive Engineer used to recommend the names of the candidates who were to be recruited and allotted to a set of socalled contractors e.g., carpenters are appointed through JE and Executive Engineer . These contractors are not into three Terminal Buildings viz. Terminal IIA, IIB and IIC. At present Terminal II B is not functioning. Permanent workers are carrying on the work of Civil maintenance of Terminal ILA. The extent and the nature of the work is the same. The 1st Party as a policy decision decided to employ contract workers in the terminal II B when it was constructed though regular workers were employed to carry out the work on civil maintenance in the old terminal Civil maintenance is an essential, incidental and an integral part ofthe 1st Party and involves the maintenance ofthe Airport Terminals where there is continuous flow of passengers and other traffic and the surrounding areas . The maintenance of the Airports is essential and continuous function and one of the main functions of the Airport Authority of India. Ifthe same is not carried on even for a singleday, the entire operations ofthe Airport authorityof Indiawill come to a stand still, Terminal II Cis four stories and includes Ground , Mezzanine, first and second floor. The terminal building admeasures 30,770 sqm of flooring. There are 9690 Sq. M ofcolumns and wall cladding, 28810 Sq.Moffalse ceiling, 6750 Sq. M ofGlazing, 4260 RMT of Seweragefirainage pipes, 1460 RMT ofwater supply pipes, 11 number oftoilet shafts and I Garage Chute. Apart from that there are 8 toilets on the ground floor, 12 on the mezzanine , 6 on the 1st floor and 2 on the second floor. Thework ofthe maintenance ofall this area is being carried on by the concerned Workmen. The Union submits that thework is of continuous in nature. This is evident from the various inter-departmental communications of the 1st Party itself. On 10-9-1999 , Shri A. D. Kanan, the Senior Manager Engineering(c) II , issued an office notice to the DGM (Law) through the DGM (Civil ) bearing No. AAB/ CMD- 11/22/99 /413 wherein he confirmed that the Terminal II B/LIC building cannot be maintained without the work of the present Workmen. On 31-10-2002 the Manager Engineering(c)-SG-SD- II, Mr.M.R.Pushkaran issued a letter to the Security incharge CISF Airport Zone, Terminal 2, Mumbai, a letter bearing No.AAB/CMD- 11/2002-2003 asking for the issue ofTokens to the Workers when due to security reasons entry Tokens for the Terminal building was not being issued as it was ofan urgent nature to attend any civil complaint round the clock like maintenance of toilets and buildings etc. for the floors of MOTC (T-2 building). They are provided with instruments, materials apparatus etc. required, by the Ist Party, for plumbing work to perform their respective duties . The officials ofthe Ist party are also working at Terminal IC to give instructions and to supervise the work of the concerned Workmen. The designations ofsuch officials are as Junior Engineer ( J.E) /Sr. Superintendent , Assistant Engineer/ Manager Engineer and Assistant General Manager. The names of such persons are Mr. M. R. Pushkaran, the Manager Engineering (C) G-SD - II , Shri G. Hoda and Shri Vinay Tamrak JE/Sr . Superintendents . The Workers employed at Terminal IIC are required to work in 4 shifts. Some of the Workmen are required to work only in the 5536

[PART 1 ]-SEC. 3 ( ii) ] THE GAZETTE OF INDIA : OCTOBER 4, 2008/ASVINA 12 , 1930

allocation of the work to the concerned workers employed in Civil Maintenance Department , irrespective of their status, is entrusted in the hands of the Engineer- in - charge , is itself one of indications and pointer to show that all the workers concerned in the present reference , employed with CivilMaintenance Department ofTerminal IIC are the direct employees of the 1st party and introduction of the 50 called Contractors is nothing but subterfuge and device to refute and deny the real and direct employer-employee relationships between the 1st Party and the concerned workers , who are covered under the present Reference . TheDuty Roasters, which are prepared by the Management , is a sort of advance notice issued to the workers as to in which shift and at which time they should report and perform their duties. Thus preparation of Duty Roaster and specifications of the shifts therein by the ME is one of the factors which indicate that the workers covered under the present Reference are issued instructions by the officials /Executives/Engineers / Managers etc. of the 1st Party. The name- lending Contractors , who are merely introduced as intermediaries, have no role to play in these matters . It is the Management of the 1st Party who refused rejectedor sanctioned leave of the workers covered under the present Reference . It is pertinent to state that even in case of permanent workers , the same system/method is followed in the matters of their leave . However, in case of the workers covered under the present reference, whenever they are absent from duties or whenever they intend to go on leave, they have to mention the same in writing. The Senior Superintendent also maintains the Work Diary, wherein he writes and certifies the work done by the workers concerned and the same is kept in his custody. On the basis of the work Diary, the Engineer - in - charge prepares payment bills of the so called name - lender contractors and then payment is made to them . The work diary is maintained under the signatures of the JE , AME and ME. Apart from these records, the Airport Manager ( APM ) also maintains a record of complaints received during the time when the Engineer- in - charge is not on duty and allots the work to the shift staff based on the cutnplaints received . All the registers are in the custody of the Senior Superintendent .

(6) Union further submitted that, the contracts itsell reveal that the entire contract is a sham and the Ist Party has entire supervisory control over the work perionnance by the workmen concerned prior to the Workmen approaching the High Court , the work contracts specified that , the contract was for supply of labour only and only from the year 1998 onwards . After the workmen had filed the Writ Petitions Ist Party started monitoring "Job Work " in their contracts . The 2nd Party called upon the 1st Party to produce the contracts issued prior to 1998 which are identical in terms and conditions to those issued from 1998 onwards except for the fact that those contracts specifically mention in the subject of the Contract that the Contract is for"Maintenance ofcivil work in T- 2 B ( Labour) , while the later ones mention "Maintenance of civil works in T- 2B genuine parties . These names are nothing but a subterfuge and camouflage . These so called parties or so called contractors have never obtained any registration as Commercial Establishment under the Shops and Establishment Act or under the Factories Act, as a factory. These Contractors are changing . Many a times old so called Contractors go away and in their places new so called contractors are introduced by the 1st Party . The Workers, however, remain the same despite the change of the so called Contractors . The nature of work which the workers concerned in the present proceedings have been carrying out since last several years , has never been the work of intermittent or temporary nature . There have been changes in the name-lending Contractors , but the sets of Workers have always remained the same. The nature of duties performed by the workers concerned has been of permanent and perennial nature , It is further submitted by the Union that , the 1st Party has been maintaining documentation in respect of the workers covered under thepresent Reference: These documents clearly reveal that , there is direct supervision and control of the work and the duties carried out by the concerned workers by the executives, officers , Engineers, Sr. Superintendents . Junior Engineer, Engineer - in -charge etc. of the Ist Party It is . therefore , crystal clear that as far as the nature of supervision and control is concerned , there has never been anydifference of whatsoever nature between the permanent workers and the workers covered under the present Reference . As far as the nature of duties are concerned also , there is no difference whatsoever between these two sets ofworkers. The purpose ofhaving a Civil Maintenance Department is to cater to the needs of the 1st Party employer which arise from tíme to time and it is the said Department which itself is an integral part of the establishment of the Ist Party is one of the most important departments . The work of other Departments is carried out effectively because of the output of the workers employed in the Civil Maintenance Department , in other words the activities of Civil Maintenance Department , which are carried out on the premises of the Ist Party cannot be segregated, separated or carved out of the entire work and essentially goes to show that, the nature ofduties performed by the Workers, irrespective of their labels ( i.e. whether permanent or temporary or otherwise) are of perennial nature , important and are the integral part of the main activities of the establishment of the Ist Party. They are performing the duties not only of permanent and perennial nature, but also of essential nature . It is in this back and state of functioning of the Civil Maintenance Department that the allocations of work is done by no less a person/ executive than the Engineer - in - charge. The method and the manner in which the duties are allotted and the instructions are issued to the workers covered under the present Reference as well as the permanent workmen , are the systematic activities carried out in the establishment of the Ist Party. Apart from this, the very fact that the 5537 भारत का राजपत्र : अक्तूबर 4, 2008/ आश्विन 12, 1930

[भाग 1]-खण्ड 3 ( ⅱ ) ]

( JOB WORK) " . Union further submitted that, this

nomenclature does not hide the nature of the contract, In factafter 1998, since most of the workmen are protectedby the orders ofthe Hon'ble High Court, the Contractor has norole to play even in supply of labour and is a mere paper arrangement for routing the money and depriving the Workmen of their rightful wages and claims without prejudice to the above facts. It is also submitted by the 2nd Party that, even prior to 1998 the contracts were a тете paper arrangement and most of the workers have in fact been appointed by the officers and management of Ist partythrough these sham contractors and that is the reason whytheyhave continued to remain in employment despite the change in the contractors for years even prior to the filing ofthe Writ Petitions the present Workmen have been in continuous employment for period exceeding 240days.

doctrine of "equal pay for equal work " the concerned workers are entitled to receive all the benefits , privileges, advantages and other terms and conditions at par with the permanent workers employed under the Ist Party. It is further submitted by the Union that the provisions of the Industrial Employment ( Standing Orders ) Act, 1946 are applicable to the Ist Party and in view of the definition of the term ' employer ' under Section 2(d) thereofthe 1st Party itself is the employer of the concerned workers since admittedly the concerned are working on the premises of the Ist Party. These premises are owned by the 1st Party. Thus in the eyes of the law, the 1st Party is the ' employer' in the respect of the concerned workmen. It is further submitted by the Union that, as far as privileges and facilities of the regular and permanent workmen are concerned, as stated earlier, by virtue of periodical Settlements /Agreements signed by the 1st Party with respective Unions , such workmen have been receiving higher wages , allowances and others terms and conditions ofemployment are being revised regularly and on the other hand, the concerned workmen-who are merely labelled as contract workers and by virtue of certain paper arrangements are shown as workers of the so called contractors , are deprived of these statutory benefits for years together bythe 1st party. The discrimination practice by the 1st party, apart from being unreasonable and arbitrary discrimination envisaged under Article 14 ofthe Constitution of India, it also amounts to commission of unfair labour practices under Item 9 of Fifth Schedule, read with Section 2(ra) of Industrial Disputes Act, 1947. Similarly. employing the concerned workmen for years together without awarding them the status of permanent workmen also amounts to unfair labour practices under item 10 of Vth Schedule read with Section 2 (ra) of the I. D. Act , 1947. Thefactboth the sets of workmen i.e. permanent workmen employed by the 1st Party employer and the workers covered under the present Reference, are performing the same, similar and identical duties and both the sets of workmen are working under the control and supervision of the same Management, itself shows that there should not andought not to be any discrimination in the emoluments, wages and other terms and condition of employment between the two sets of workmen . The Union submitted that, the practice followed by the 1st Party has not only resulted in gross discrimination qua the workmen concerned in the present Reference, but has also created greatdisparity between the two sets of workmen , working under the same employer i.e. 1st Party. There are, in fact, two sets ofservice conditions prevailing in the Ist Party. Union submitted that all the concerned workmen are exploited day in and day out by the Ist Party. There is insecurity of employment for the concerned workmen . It is submitted by the Union that , there is absolutely no justification for the Management ofthe Ist Party to practice such discrimination between two sets of workmen . However,by introduction of the name- lending so called (7) Union further submitted that as far as the wages ofthe concerned workers , are concerned there is great disparity and even in the terms and conditions of employment of these workers who are so called contract workers and the permanent workers. The workmen covered under the present Reference have been thoroughly and totally exploited by the Ist Party. This exploitation continues despite the fact these workers have been performing the very same , similar and identical duties like and at par with the permanent workers of the First Party. There is absolutely no difference in the nature of duties performed by the workers covered under the present Reference and those performed by the permanent workers. However, some paper arrangements are made and some subterfuging arrangements are prepared with a view to conceal the real nexus and nature ofemployment between the workers involved in this Reference and the Ist Party and to deny them the Provident Fund, ESI , bonus , house rent allowance and other statutory benefits and to deny them the benefits under the Settlements signed for the benefit ofpermanent workers. It is submitted by the Union that during all these years the Ist Party has failed to pay or to extend even the statutory benefits as stated above, including pension , medical facilities , travelling allowances, etc. to the concerned workers . On the other hand, the permanent workers , who are doing the same duties , are paid higher wages by the 1st Party. They are compensated byway ofpayment of dearness allowance to meet the costs of living index . They are paid ex-gratia and bonus . They are given House Rent Allowance, leave travel allowance, medical facilities , accident benefits , leave benefits and so many other facilities/benefits . However, all these facilities are denied to the workers covered under the present Reference. Union submits that, the concerned workmen are given step motherly treatment and they are not even extended the just and fair statutory benefits under the various labour laws , by the Management of the ist Party. TheUnion submitted that based on the provisions ofArticle 39 of the Constitution of India , as well as , based on the 5538

THE GAZETTE OF INDIA : OCTOBER 4, 2008 /ASVINA 12, 1930

[PART II-SEC . 3 ( ii ) ]

Choudhary etc. The material, instruments etc , which are supplied to these workmen for carrying out their dutiesby the Ist Party.

contractors and by creation of certain paper records , the concerned workmen are denied equal treatment i.e. , treatment at par with permanent workers working in the establishment of the Ist Party. Union further submits that the concerned workmen have been performing the duties of skilled nature and they have also achieved sufficient knowledge and experience of working for several years continuously on the various posts and jobs. However, inspite of this , they are paid very much low wages than the permanent workmen working in the establishment of the 1st Party. The concerned workmen do not get even the benefits like over- time wages , weekly offs , earned leave , etc.etc. The concerned workers are being exploited by the 1st Party like slaves on the establishment of the Ist Party. The concerned workmen are being treated differently by the 1st Party, by not giving them statutory benefits under the various legislatures , such as under PF Act , ES1 Act , BaymentofBorusAct, over time wages , weekly offs , paid holidays , medical facilities to the concerned workmen clearly amounts to breach of mandatory provisions in favour of these workmen and, as such the 1st Party is guilty of unfair labour practices defined under Item 13 of Vth Schedule, read with Section 2( ra ) of the Industrial Disputes Act, 1947. The concerned workmen have been kept at the level of minimum wages or even lesser wages than paid to the permanent workmen which is nothing but camouflage because in fact the 1st Party wants to employ the workmen on lower rates of wages , and, therefore , the management of the 1st Party is not inclined to award the status of permanent workmen to the concerned workmen . The entire action on the part of the 1st Party, which is malafide, is nothing but creation of various papers records and with the help of such paper records , to create the impression that the workmen employed at the establishment of the 1st Party are not permanent workmen . The introduction of the so called contractors is nothing but subtefuge and camouflage . The so- called contractors are , in fact, only name lenders because these so called contractors themselves do not possess any technical or other qualifications , which would benefit the establishment of the 1st Party . It is further submitted that, the other concerned workmen viz. Mr. Laxman V. Mahale , Plumber and Mr. Perumal Chinnaiyan , Helper/Beldar employed in the day- to-day maintenance of water supply line at Terminal II -C and external area ( CMD II Sub Division IV) carry out the work of ensuring that the entire airport terminal and other buildings situate within the premises ofthe Ist Party are supplied with adequate water supply. The areas are attendedby one Plumber and two helpers , one of whom is permanent workmen in the said Department . The work of checking BMC pipelines is also done by the concerned workmen . Their work is supervised and controlled by JEs . Their attendance is also marked by J.Es. and at times supervision and control is exercised by Assistant Manager Engineering (C) . Names of such Officers /Engineer are S / Shri Dipak Kavlekar , Sawant , J.P. Yadav , Mistry,

(8) It is further submitted by the Union that, the civil maintenance is an essential, incidental and an integral part ofthe 1st Party and involves the maintenance of the airport terminals where there is continuous flow of passenger and other traffic and the surrounding areas. If the same is not carried on even for a few hours, the entire operations ofthe Ist Partywill come to a stand - still and the continuous flow ofwater supply is essential to the functioning of the airport . The plumber and helper are on their feet practically for the whole day attending to the various complaints received from the areas where they function . No permanent workers are employed for this important function except for one helper who is working in the Department. Union further submitted that, on 2nd July, 2001 , the Assistant Manager (Personnel ) Shri Harbit Singh , sent office note on behalfof theAdditional General Manager ( P & A) lo various Heads of Departments including the General Manager (Maintenance ) with a form regarding furnishing of information on contract workmen . Union further submitted that, in response to the same the CMD II while furnishing information stated that , the contract for maintenance of water supply line where the present workinen are , employed was a perennial contract and the reason for employing contract labour was given as " contract workers are more efficient and easy to control than department labour" . 2nd Party submitted that, the work being carried out by the present workmen is a statutory function and hence employment of contract labours for the same is not permissible under the law . The Airports Authority of India Act, 1994 governs the Administration and Management of all the Airports in India categorically provides power under Section 12 that " it shall be the function of the Authorityto manage the Airports , the civil enclases and the aeronautical communication stations ( S. 1241 ) " . Section 12 ( 3 )(a) states that, the Authority may " plan , develop and inaintain, runways, taxiways , aprons and terminals and ancillary buildings of the airports and civil enclaves " . Thus employment of contract workers for carrying out a function inthe discharge of a statutory obligation is illegal and the workmen employed thus would be deemed to be the workmen of the principal employer and they are eligible for absorption and/or appointment as permanent employees of the Ist Party , which is a well settled legal position by virtue ofseveral judgmems of the Hon'ble Supreme Court ofIndia including Steel Authority of India Lid. vs. National Union Waterfront Workers and Ors . ( 2001 ) 7 SCC I and 2ndParty relied upon the judgments published in AIR 1999 SC 1160 ( Secretary , Haryana State Electricity Board vs. 11. Suresh) andAIR 1985 SC. 409 1BHEL workers ' Association and (2008) 87 GLR 7 ( J.B. Pant University ) . The Second Party further submitted that , with respect to the workmen employed in the day-to - day maintenance ofexisting water supply line in Terminals 11A & IIC at Sahar International Airport in the Civil Maintenance Department ( CMD ) II Sub- [भाग II- खण्ड 3 ( ii) ]

Division IV , the 1st Party Company had engaged so called contractor M/ s . Reena Enterprises in the year 1999-2000at the time of filing of the Writ Petition. In the year 2000-01 also the said so called contractor , M/ s. Reena Enterprises was engaged. In the year 2001-02 the so called contractors M/s. Intercon was engaged and at present for the year 2002-03 M/ s D'Souza Constructions , the so called contractor has been engaged as the name lender contractors bythe Ist PartyCompany and that all the contractors and their representatives are mere name- lenders and neither they nor their representatives are present in the premises ofthe 1st Party during the entire period of work and that noneoftheworkers have any interaction with the contractor who is a mere middleman. The Second Party submitted that, the payment of wages is determined by the 1st Party and the actual wages as determinedby the Ist Party are paid to the so called contractors who acts as mere disbursing agencies . The workers are totally dependent on 1st Party for their survival . Ifthe authority chokes out their workthe concerned workers would lose their jobs , in as much as, the so called contractors do not have operations that would take care of the employment of these workers. Union further submitted that, whatever contracts ie , paper arrangements entered into between 1st Party and the so called contractors whohave been engaged as intermediate changes from time to time is nothing but sham and bogus arrangement and it is camouflage to deprive the concerned workmen and those concerned in Writ Petition No.78 of 2000 of the benefits available to the permanent workmen of ist Party.

(9) After 1998 since most of the workmen are protectedbytheorders ofthe Hon'ble Mumbai High Court, theso called contractors have no role to play even in supply oflabours and it is mere paper arrangement for routing the names of depriving the concerned workmen oftheir rightful wages and claims.

(10) That, the entire paper arrangement and the so called contracts are against the provisions of Sections 23 and 27 of the Indian Contracts Act and such a paper arrangement is arrived at with a view to deprive the concernedworkmen oftheir statutory benefits and benefits of permanency which the concerned workmen are entitled to receive based on various labour legislations e.g. Provident Fund and Misc. Provisions Act , 1952, ESI Act , Payment of Bonus Act , and Industrial Employment (Standing Orders ) Act, 1946. These arrangements , by whatever names these be called, is nothing but sharm and bogus arrangements.

( 11 ) That, even prior to 1998, the so called contractors were mere paper arrangement and most of the workmen have been, in fact, appointed by the officials of the 1st Party through the name- lending contractors and this is the reason as to why such workmen have been continuedto remain in the employment despite the change in the contractors even prior to the filing of the Writ Petition No.78 of2000.

3631GI/2008-12

5539

भारत का राजपत्र: अक्तूबर 4, 2008/आश्विन 12 , 1930

(12) That, the concerned workmen are denied the benefits of various settlements/agreements which are signed by the 1st Party and which are applicable to the permanent workmen .

(13) That, the entire arrangement, which is nothing but a mere paper arrangement between the 1st party and the so called contractors , is done to deprive the concerned workman of equal treatment in the matters ofpayment of wages , allowances , statutory benefits under various settlements/ agreements . Thus the continued exploitation ofthe workmen concerned , by the Management of the 1st party employer, is totally unreasonable, uncalled for and unjustified. These actions are against the principles of equality guaranteed to every citizen of India under Articles 14 and 16 ofthe Constitution of India.

(14) That, there is no intelligible differentia which justifies such discriminatory treatment to two sets of workmen, which are equally placed i.e. the permanent workmen on one hand and the concerned workmen on the other hand,

(15) That, the so called contracts specify that, the contractors shall deploy minimum man -power daily for carrying out the work and penal recovery would be imposed, for short supply of man - power /labour, at double the rate and that the scope ofwork and the man -power to bedeployedper day for the name is set out in the so called contracts, which include existing water supply line , sluice valve and distribution system, attending various complaints in the building etc.

( 16) That, the so called contracts also contain stipulations and terms and conditions in the respective Schedule and there is one Schedule D of the contracts which only relates to the type of personnel to be deployed forwork and specify that the supervisory and disciplinary control shall be with engineering- in -charge and it also include some ofthe items such as right ofthe engineer- in- charge to remove/replace the workmen , imposing fine upto Rs . 500/- per workman of the so called contractors in case of default, withdrawal of passes of the workmen who are found inefficient or who are found indulging in activities other than the duties assigned to them and omer disciplinary control . There are stipulations to the effect that the persons with adequate experience , good workmanship to do the maintenance work only shall be engaged with prior approval of the engineer - in -charge . The contractors, who are mere name lenders, are also expected to see that the workmen which are they bringing on the premises of the 1st Party, shall have good character and they are well behaved and carry necessary skill in their jobs/work. That , the workers are also expected and required to give their particulars such as father's name, residential address , specimen signature/thumb impression etc.

(17 ) That, there are occasions , that the workmen proposedtobe employed through the so called contractors, 5540

THE GAZETTE OF INDIA : OCTOBER 4 , 2008 /ASVINA 12 , 1930

[PART II . SEC . 3 ( i ) ] are required to undergo medical examination / checkup by the authorizedMedical officer of the 1st party;

cast on the Ist party not to indulge in any discrimination and to give fair service conditions and fair wages to all the workmen without discrimination .

(22) That , the concerned workinen have worked for last several years without any break and without any interruption in the employment with the 1st Party All the concerned workmen have put in uninterrupted service of number of years continuously in the employment with the Ist Party and as such , each one of them is entitled to the benefits ofpermanency in the employment of the 1st Party employer with other consequential benefits and deprived of the same by the Management of the Ist Party is unconstitutional , unjustified and illegal .

(18) That, the work of the workmen concerned , which is carried out under the direct supervision and total control ofthe Civil Maintenance Department of Terminal II is of permanent , perennial , regular and essential nature . The said Department i.e. CMD II is headed by the Asstt . General Manager , under whom there are 3 Manager Engineering (ME) incharge ofthe Terminal II A, II B/C and External area respectively. Under them there are Assistant Managers (Engineering) in each of the Sub - Div, of CMD and at the lowest level there are 3 Junior Engineers who are now known as Sr. Supdts . In Sub - Division IV -CMF II where the concerned workmen are employed. The supervision and control of these workmen is of Sr. Superintendent and Manager (Engineering).

(23) That upon lifting of the veil, it can be seen that there is direct employer eruployee relationship between the Ist Party and the concerned workmen and the so called contractors who are brought in picture is nothing but a camouflage.

( 19) That , a substantial part of the responsibility of the airport managerial personnel is of the supervision and control of the work being performed by the alleged contract workers. The Operation Department has issued the Job Description Duties and Responsibility of the Airport Manager which includes:

① To keep a record of the shift personnel on duty, their attendance and leave record;

(24) The engagement of the workmen on large scale under the label of contract labours is victimization of the concerned workmen and it is matafied action on the part of the 1st party, in as much as the 1st Party employer is fully aware that all the concerned workmen are perforening the duties of regular, permanent perennial, important and essential nature.

(25) That , the arrangement arrived at between the 1st Party and the so called contractors is malafied act , in as much as it is aimed at depriving the concerned workmen of the benefits of permanency and other statutory benefits ;

(ii) To inspect the terminal building for cleanliness and check all passenger amenities like lounge funitures, toilets , drinking water facilities, PA System, CCTV , flight information Boards (Display - slip flat type), lift escalator , conveyor belts etc. to ensure that they are available and functioning in a complaint free manner ;

(26 ) That , the so called contractors are also που registered under the provisions of Contract Labour (Regulations & Abolition ) Act. These so called contractors also do not have valid and proper licenses for recruitment and engagement of contract labour;

(iii) To ensure maintenance of the areas in the immediate vicinity of the terminal buildingto ensure that they are kept clean and there is no likelihood of congestion anywhere at anytime.

(iv) To ensure that there is no water logging on the city and airside of the terminal building and to take corrective action if required.

(v) To ensure that reserved lounges are maintained well and allotted to entitled persons only.

(27) That the so called contractors themselves have no experience or knowledge of skill or professional qualifications , etc. required to carry out the jobs and to meet the requirements of the 1st Party. On the other hand the concerned workmen are having necessary skills, experience , qualificato perform their respective Cuties.

(vi) To supervise and control the working ere !! staffofIAAl on shift duty including civil and electrical departments ) in co-ardoption

(vii) To attend w the coraplaints and su by public and maintain a complaira buckw will remain open torpublic .

(28 ) That, under the present reioresce ars depremettere statutory benefits which ar permissis provisions governing cus fabour legis . Imployees ' Provident Fund and Misc. P55. Act. Paynent of Bonus Act, an statures , as well as , in view of the Direditare Colicy (20 ) That the contracts between the contractors and Ist Party are always sterck and complete control is vested in the 1st Pany .

(21) That, in view ofthe Directive Principles ofState Policyunder the Constitution of India, the responsibility is

two workmen by nane S/Shri Karve Gepal Mean and C. Vedamani are working as Seweremen . These Seweremen are deputed in all the three shifts around the clock for maintenance of choke up work . They have to attend on a daily basis at 5541 [ भाग II- खण्ड 3 (ii) ]

भारत का राजपत्र : अक्तूबर 4, 2008/आश्विन 12, 1930

least ten times a day. The work of maintenance oftoilet lines,water coolers , water supply points , kitchen and pantry and pipes to shift chute etc. At ground floor, Mezzanine floor, first floor and second floor and terrace in terminal building and surroundings , the chamber cleaning work is done on monthly basis . The drainage line is cleaned by sewermen byentering into the main line once every month, water main lineand tollet main line are cleaned twice every month.The Seweremen have to bodily enter the main sewer linetoclean and clear the line. The work ofthe Sewernen is crucial to the image of the Airports and hence they are deputed round the clock. Seweremen who are permanent staff do the similar work in Terminal 11A at Sahar and Terminal IB at Santacruz Airport and residential colony at AAL( UDA) for doing day to day maintenance of the colony. All the Sewere men work in three shifts in the Airport building, except those at residential colony, who work in one shift.

of Mumbai High Court in Writ Petition No.78 of2000 protection is granted to the present set ofworkers and if the same is continued, it will not cause any prejudice or hardshipto the Ist Party, in any manner whatsoever. Similarly the concerned workmen have been performing their duties peacefully, normally and diligently to meet the requirements expected on them by the ist Party and that the Union is also filing an application for interim reliefs awardedby order dated 16th December, 2002. The Union, therefore, prayed for a declaration that the contract between the 1st Party and the respective Contractors is sham and bogus and are camouflage to deprive the concerned workmen of the benefits available to the permanent workmen employedby Ist Party, and to declare that concernedWorkmen are direct employees ofthe 1st Party alsowith directions to the 1st Partyto give status, benefits and privileges ofpermanent workmen , to all the concertied workmen involved in the present Reference from the date each one of them has completed continuous service of240 days at par with the permanent workmen and to pay thom the arrears arising there from , with 18% compound interest and for payment ofwages and consequential benefits, equal wages for equal work and also prayed for interim reliefs.

(30)The Union further submitted that, the appropriate Government i.e.the Central Govemment, Ministry ofLabour vide their letter dated 16th November , 1999 has interalia directed that the wages consisting of basic pay plus Dearness Allowance should be paid to the workmen concerned, at the rate applicable to the lowest category of regular employee in the respective establishments . However, though the said order has not been set aside or stayed by any High Courts till date , the 1st Party has not paid the basic pay plus dearness allowance at the rate applicable to the lowest category of regular employees , to the concerned workmen . In fact in the order dated 8th February,2000 in Writ Petition No.78 of2000, the Hon'ble BombayHigh Court clearly directed Rule. The Respondents waive service.Hearing ofthe petition expedited . There will bead-interin order in tems ofprayerchuse (C) and(d) with a rider that wages consisting of basic plus Deamess Allowance paid to the lowest categories or Regular employees, willbe paid to the Employees concerned The 1st party filed Notice ofmotion for variation of this order directing the payment equal to that paid to the lowest category of permanent workers. It is submitted that, the Hon'bleHigh Court by an order dated 2nd May, 2000 was pleased to dismiss the Notice of Motion and not vary the said order. The 1st Party, thereafter took out another notice ofmotion praying for the orders dated 8th February, 2000 beset aside.This Notice ofMotion was not pressed by the Ist, Partyat the time of final hearing of Writ Petition and the Hon'ble High Court while disposing ofthe Writ Petition was pleased to direct that the interim relief would continue till four weeks after the disposal of the interim relief application by this Hon'ble Tribunal . Thus protecting the rights oftheworkers the Workers in the present Reference are thus entitled to receive payment by way of interim relief the wages equal; to the basic and D.A. payable to the regular employees.

(31 ) The Union submitted that in view of the orders dated 16th December, 2002 passed by the Division Bench

(32) Thiş is disputed by the 1st Party by filingWritten Statement at Exhibit M 1/1 ] making out the case that , Reference in the present form is manifestly erroneous and without jurisdiction and as such liable to be quashed since the Government of India, Ministry of Labour has made a Reference to this Tribunal for adjudication reciting in the order ofreference that , the Central Government was ofthe opinion that an industrial dispute existed between 1st Party and the 2nd Party in respect of the matters specified in the schedule annexed therewith . It is further recited therein that, the Hon'ble High Court of Judicature at Mumbai on Writ Petition No.78 of 2000 directed the Government for Reference of the abovesaid industrial dispute for adjudication. It is, therefore , submitted by the ist Party that, the order of reference was made only at the directions ofthe Hon'ble High Court of Bombay and not in exercise ofthe powers conferred on the appropriate Government to refer the industrial dispute originated from the provisions ofSection 10( 1 ) ofthe Industrial Disputes Act , 1947. The said power has to be exercised by the appropriate Government, only when it is satisfied on the basis of the material on record ; forming an opinion, that , the industrial dispute existed or apprehended before the order of relſference is made for adjudication . The appropriate Government has to form an opinion as to the factual existence of industrial dispute .As a preliminary step to discharge of its functions in this regard. It is also contended that, the satisfaction of the existence of the industrial dispute is a condition precedent; before making the order of reference , the reference that has been made by the Central Government at the direction of the Bombay High Court issued in the W'ritPetition No.78 of2000 ; without forming an independent opinion by it in respect of the existence of the Industrial 5542

[PART 1]-SEC. 3 ( ii ) ] THE GAZETTE OF INDIA : OCTOBER 4, 2008/ASVINA 12 , 1930

...

Disputes as required under Section 10( 1 ) of the Industiral Disputes Act , 1947. It is also coste aded by the 1st Party that, the so called industrial dispne was raised by the 2nd Party for the first time before the Hun ble High Court under Article 226 of the Constitution of India and there was no any demand raised against the Management at any point of time before any authority . The was no any conciliation proceedings initiated as required under Section 12 of the Industrial Disputes Act, 1947 contended that, the Central Govemment had no any mate is ! before it to satisfy that the industrial dispute existed between the parties to exercise its power under Section 10( 1 ) of the Industrial Disputes Act . , 1947. Thediscretion of Government to make the order of reference is dependent on its satisfaction . The opinion formed by the Government of India on the basis of the directions issued by the High Court was not conclusive; as the same was not the opinion , as contemplated under Section 10 ( 1 ) ofthe Industrial Disputes Act, 1947 and that , there was no material before the Central Government for coming to the conclusion that . the industrial dispute existed, which is a condition precedent in forming of the opinion and it has acted in clear contravention ofthe provisions of Section 10 ( 1 ) of the Industrial Disputes Act , 1947, hereinafter referred to as ' the said Act ' , without application of its mind and to form the necessary opinion in respect of the existence of the industrial dispute . It is also contended by the Ist Party that , the reference is bad for non -jomder of the necessary parties and that the same be rejected on the said ground alone since the Union has time and again referred to the contractors engaged by the 1st Party froin time to time attributing different kind of adjectives to them but theyhave not impleaded them as parties in the reference though some of the Contractors were impleaded in the WritPetition Nos. 621 of98 , 1683 of 1999 and 78 of2000. hence they were proper and necessary parties in this order ofreference also . It is also contended by the Ist Party that , the Union cannot represent the concerned workmen as they are not the workmen of the 1st Party and that the said workers neither can enroll themselves as the members of the Union nor Union can admit them as its members and the 2nd Party , Union is not meant for them and the 1st Party is not aware whether the said workers in fact have been the members of the 2nd Party, Union , since November, 1999 till today and put the 2nd Party to the strict proof thereof ist Parts contended that , ere no privily of contract of employmem beiween it andthe concerned workmen as provjed under Section 2 ( s ) the Industrial Disputes Ac:. 1947. It contended by thest Party that , essential corgina. of a person being workman within the terms of the definition is that he should be emploved to do the work in that industry and that there atid employment of his by the employer and that be the relationship between the employer إ hetween eamployer and employee. Uniesa ine employed there cannot be question of t 'workman' within the definition ofthe tem

theAct. When the contract system is in vogue, the persons employed by the contractors are not the workmen of the 1st Party. It is further contended that, the industrial dispute within the meaning of Section 2 (k ) of the Industrial Disputes Act, 1947 must be between the employers and the workmen as defined under Section 2( s) of the said Act. Since the concerned workmen are not their workmen , as defined under Section 2(s) of the said Act they have no locus -standi to raise the industrial dispute under Section 2 (k ) of the said Act, through the Union . The workmen of the Ist Party may raise the dispute through their Union for their employment or non employment or the terins ofemployment or with the conditions of labour, provided the workmen must have direct and substantial interest in their employment, non- employment , the terms of employment or with the conditions of labour . The definition of Section 2 (k) of the saidAct has to be read in the context of the subject matter and the scheme of the said Act. The said Act is primarily meant for regulating the relations of the employers and their workmen as defined under Section 2 ( s ) of the said Act . The saidAct avowedly gives a restricted meaning to the word ' workman ' and even excludes employees provided in Section 2( s) ( m) of the Act. The said Actdraws the distinction between the workmen as such and the managerial , supervisory and administrative staff. Thus, the Act is primarily meant for regulating the relations of the employers and their workinen and almost all the provisions of the Act are intended to confer benefits on that class of persons, who generally answer to the definition of the word 'workman' as defined under Section 2 (s ) of the said Act . It isfurther contended that , having regard to the scheme and the objects of the " Act " and its other provisions, the definition of Section 2 ( k ) of the Act has to be read . The definition clause falls into three parts ( i ) there inust be a dispute or difference (ii ) the dispute or difference must be between the employer and their workmen as defined under Section 2( s) of the said Act, as the Ist Party is not concerned with rest of the parties i.e. employers and employees or workmen and workmen , ( iii ) the dispute or difference must be connected with the employment or non- employment or the terms of employment or with the conditions of labour of any person. It is contended that , the first two parts obviously do not apply to the facts of the case as there cannot be a real or substantial dispute between the 1st Party and the concerned workmen . The third part of the said definition may relate to any of two matters i.e. ( i ) employment or on employment and ( ii ) terms of employment or conditions of labour of any person . The first two parts of the definition of Section 2( k) of the said Act are not applicable to constuute the industrial dispute, the reasons of which have been averred hereinbefore. So far as the third part of the definition is concerned , the workmen ofthe Authority through their Union may espouse their cause; provided they must have direct and substantial interest in them . In the absence of such interest among the employees ofthe 1st party, the dispute cannot be said to 5543 भारत का राजपत्र : अक्तूबर 4, 2008/आश्विन 12 , 1930

[भाग II- खण्ड 3 ( ii) ]

be real dispute between the parties. Whereas the workmen of the company raise a dispute as against the ir employer, theperson regarding whose employment, non-employment, terms of employment or conditions of labour , the dispute is raised, need not be a workman within the meaning of Section 2 (s ) of the Act , but must be one in whose employment, non -employment, terms of employment or conditions of labour, the workman as a class must have direct and substantial interest, which did not exit when the alleged industrial dispute was espoused by the Union. Ist Party further submitted that , when the validity of the reference made under Section 2( k) of the said Act is challenged it has to be established by the Union that the industrial dispute espoused by it had the support of a substantial Section of the workmen employed in the establishment . It must, therefore, show that the substantial number of such workmen employed in the establishment participated in or acted together and arrived at an understanding either by a resolution or by any other means and collectively supported the said industrial dispute . It submitted that , no such exercise was made before espousing the cause ofthe concerned workmen , hence the said reference is bad in law. 1st Party, therefore , prayed that the reference be rejected.

thedate ofthe order (b) the Contract Labour Board and the Union of India shall hear the parties and consider all contentions of the parties (c) until receipt of order of the Contract Labour Board and Union of India and for 2weeks thereafter , the 1st Party shall continue employing workmen concerned in their present work and respondents were restrained from recruiting fresh workmen in place ofthe present workmen(d) the ist party may take disciplinary action forproved misconduct (e) order shall not cover the workmen listed at Sr.Nos . 10, 20, 25, 26 and 27 of the Annexure ' A' ,. (f) Respondent No.1 may issue an advertisement and recruit permanent workmen for work done by the contract workers , who will be at liberty to respond to the said advertisement . The appointment of such workmen shall be however subject to the order ofthe Board (g) Petition was disposed off in terms of the above (h)All contentions were kept open . The said Writ Petition did not cover the contract labourers numbering 15, mentioned at page 3 of the statement of claim . ist Party further contended that six contract labourers who worked under another contractor viz . M/s . J.P. and Brothers , Suvarna Kalash Co operative Society Ltd. Andheri , Mumbai , who was entrusted with the work of maintenance ofcivil work atTerminal 2B for the period from 17-09-1998 to30-09-1999, filed the Writ Petition No. 1683 if 1999 on2-7-99 after disposal of Writ Petition No. 621 of 1998. However, outof the said six, the contract labourers at Serial Nos . 14, 16 to 18 (i.e. total 4) are covered in the order of reference dated 20-3-2003 vide 17 ofthe statement of claim. They are at present deployed at Terminal 2C. The prayers in the said Writ petition were to pass the orders (a) to restrain the respondents No. 1 and 4 from terminating the services of the petitioners till the decision ofthe Central Government on the question of abolition of contract labour in the jobs carried out by the petitioners (and) for a period of6 weeks thereafter (b) to restrain the Respondents Nos. 1 and 4 from terminating the services of the petitioners, pending hearing and final disposal of the petition , (c) to direct the Respondents No.1 to pay to the Petitioners wages equal to the wages drawn by the direct employees doing the same or similar work, pending hearing and final disposal of the petition and (e (? ) ad- interim and interim reliefs ; in terms of prayers ( c) and d(/) above . The Hon'ble Bombay High Court passed the order dated 29-7-1999 at the admission stage to the effect:

"the interim relief granted in Writ Petition No.621 of 1998 shall equally apply to the six contract workmen whose names are indicated at Exhibit " A" to Writ Petition No. 1683 of 1999."

(33) It is further contended that, the 2nd Party, Union filed Writ Petition No.621 of 1998 covering the contract labourers as mentioned at pages 16 and 17 of the Statement ofClaim praying for orders (a) to continue the workmen concerned in the petition in their present work as long as work exist and to restrain the Respondents from recruiting fresh workmen in the place ofthe present workmen , (b) to direct the Respondents Nos.3 and 4 to investigate under Section 10 ofthe Contract Labour Act and on being satisfied, with the condition therein , to direct the Respondents to forthwith regularize the workmen concerned with the petition as employees of Respondents No. 1 , ( c) to direct the respondents to treat the workmen concerned in the petition on par with the permanent workmen ( d) to restrain the Respondents from changing the status-quo in respect ofthe concerned workmen in any manner whatsoever and pending hearing and final disposal ofthe petition , to grant interim orders in terms ofprayers (a ), ( b ), (c) and ( d) above as prayed for at clauses (c) , ( f) , ( g) and (h ) respectively. The Hon'ble High Court at the admission stage on 27-4-1998 and 6-5-1998 passed ad interim stage on 27-4-1998 and 6-5-1998 passed ad interim orders in terms of prayer clause(e) i.e. to continue workmen concerned in the petition and restrain the 1st Party from recruiting fresh workmen . Thereafter an order dated 22-7-1998 was passed; disposing ofthe said petition in terms of the Minutes of Order i.e. (a) the petitioner (i.e.) Union shall apply to the Contract Labour Board and Union of India for investigation under Section 10 of the Contract Labour ( Regulation and Abolition ) Act within 2 weeks from order , praying that contract labour system be abolished ; who shall investigate in accordance with the law and make a final order within 6 monthsfrom

Ist Party further contended that , the final order dated 16-12-2002 was passed by the " Hon'ble High Court directing the Central Government to make a reference ofthe demands specified therein , to the Industrial Tribunal for adjudication. Ist Party further contended that, it is unexplained by the Government of India, Ministry of Labour, as tohow it could 5544

THE GAZETTE OF INDIA: OCTOBER 4 , 2008 /ASVINA 12,1930

[PART II- SIC. 30 ) ===

club the said contract Jabourers covered in Writ Pention No. 1683 of 1999 lor the common order ofreference dated 20-3-2003 with the contract labours covered in Writ Petinon No.78 of 200. The former Writ Petition was filedby the contract labourers in the capacity of the individuals. whereas the letter was filed by the Union in the respective capacity on behalf of the contract labourers covered in the Writ Petition No.78 of 2000. The Union cannot represent the contract labourers covered in Writ Petition No. 1683 of 1999 ; and it did not represent them at any point of time till the order of reference dated 20-3-2003 was made by the Government of India , Ministry of Labour . The order of reference dated 20-3-2003 , covering the contract labourers mentioned at Serial Nos . 14 , 16 to 18 therein is bad in law to that extent. It is. therefore, prayed that the order of reference dated 20-3-2003; covering the contract labourers covered at Sr. Nos . 14 , 16 to 18 , numbering four: may be rejected to that extent. It is also contended by the tat party that the contract labourers at Sr. No. 1 to 15 of the order of reference and shown at page 3 of the statement of claim ; deployed at Terminal LA were for the first time covered in Writ Petitio No. 78 of 2000. The contract labourers shown at page 16 and 17 ofthe statement of claim , numbering 18 are deployed atTerminal 2C and the contract labourers at Sr. No. 1 and 2 at page 38 of the statement of claim , are deployed at external area ( CMD) and tha , the said contract labourers were already covered in the previous W.P. No.621 filed by the 2ndPartyand 1683 of 1999 fited by the contract labourers and lastly covered in Writ Petition No.78 of 2000. The Ist Party submitted that in Writ Petition No. 78 of 2000 the Ind Party made various prayers ; such as ( a ) to quash and set aside the order dated 16-11-1999 of the Central Government, (b) to direct the Respondent No.1 ( ie . the Authority ) to absorb the workers jisted as its direct employees ( c ) to restrain the Respondents Nos . I and 5 to 8 ( ie . the Authority and the contractors ) from terminating services of the said workmen (d) pending hearing and final disposat of the petition , to direct Respondent No.l to pay said workers wages equal to the wages drawn by their regular employees doing same or similar jobs ( e ) ad- interim and interim reliel's in terms of prayers ( a ) to ( d ) , wherein an order dated 8-2-2000 was passed by the High Court to the effect

"ad- interim order in terms of prayer clauses ( c ) and (d) with a rider that the wages constituting of basic pay phts dearness allowance paid to the lowest category of regular employees , will be paid to the employees concerned . "

in the statement of clain are nothing but an after- thought and are made to fine tune with the terms of reference made by theGovernment of India. Ministry of Labour , pursuant to the directions issued by the Hon'ble High Court of Bombay in its order dated 16-12-2002 in Writ Petition No.78 of2000. It is also submitted that , the Hon'ble High Court while passing the order at clause ( i ) of paragraph ( 1 ) of the said order was influenced by the order passed by the High Court in Writ Petition No. 917 uf 1995 and others and the observations made by the Supreme Court in Steel Authority of India Ltd and ors . vs National Union Water Front Workers and others 2001 AIR SCW p.3574-2001 III CLR p.349 without having any reference in the pleadings of the Union in this regard in Writ petition . It is further submitted by the 1st Party that , according to the order dated 22-7-1998 passed by the Hon'ble !ligh Court in terins ofthe minutes of the Order in Writ Petition No.621 of 1998 the 2nd Party, Union , applied to the Union of India and the Central Advisory Contract Labour Board ( hereinafter referred to as the ' Board' ) for investigation of the said matter in accordance with law . The parties were heard and contentions of the concerned parties were considered and the circular dated 16-11-1999 wits issued by the Government of India, Ministry of Labour, New Delhi deciding nơi to prohibit the employment of comract labour inter alia in ( 1 ) plumbing ( ii ) carpentary , (iii ) masonary work and ( iv ) puitip operation and pump reparing , provided that the wages (consisting of basic pay plus dearness allowance ) paid to thelowest category of regular employees in the respective establishments are paid to the contract labour . The Union being aggrieved by the said curcular deciding not to prohibit the employment of contract labourers in the said works andhence it filed a writ petition being No.78 of 2000 praying for various reliefs averteil abure, one of which was to quash and set aside the said circular ( Notification ) dated 16-11-1999 ofthe Government of India. The Hon ble High Court however by its order dated 16-12-2002 directed the respondents to abide by the interim relief granted by it , if any and further directed the (Government of India to make a reference of the demand specitied therein , to the Industrial Tribunal for adjudication and accordingly the impugned order of reference dated 20-3-2003 was made to this Tribunal for adjudication . Ist Party further submitted that, the industrial dispute can be raised by the Union , only on issuance of prohibition notification under Section 1011 ) of the Central Labour Act: prohibiting employment of contract labour or otherwise ; as held by the Apex Court in the case of Steel Authority of India ( supra ) . There was , however, decision of the Government of India not to prohibit employment of the contract labour in the said works. Ist Party submits that , it was aggrieved by a part of the said circular, providing for the wages ( consisting of basic pay and dearness allowances ) paid to the lowest category of regular employees in the respective establishment are paid

to the contract labourers and hence the Authority filed a It is contended by the Ist Party that , there is no any averment in any ofthe said Writ petitions , nor even in the last writ petition filed by the Union , as well as by the contract labourers themselves in the Hon'ble High Court to the effect that, the contract was sham and bogus and was a camouflage to deprive the contract labourers concerned: in the said petition, of benefits available to its permanent workmen . The allegations made in this regard by the Union Writ Petition No. 6540 of 1999 , the Hon'ble High Court , 5545 भारत का राजपत्र : अक्तूबर 4, 2008/आश्विन 12, 1930

[ भाग II-खण्ड 3 (ii) )

Ministry of Labour, New Delhi to make the order ofreference dated 20-3-2003 to this Tribunal and its jurisdiction to adjudicate the Reference on merits .

Delhi by its order dated 22-11-2001 gave the liberty to the parties to approach the Central Government , for reconsideration of the matter in view of the subsequent decision of the Apex Court in Steel Authority of India (supra). Ist Party contended that , a representation dated 27-3-2002 was submitted to the Joint Secretary, Ministry of Civil Aviation , New Delhi 110 003 , who in turn issued an office memorandum dated 3-7-2002 to the Ministry of Labour, Government of India, New Delhi ; for review ofthe circular dated 16-11-1999 relating to the wages payable to the contract labourers . Ist Party further contended that, theBoard recommended to the Government of India that a part of its recommendations relating to the wages payable to the contract labourers indicated in the circular dated 16-11-1999be treated as withdrawn ; as it had no powers to make such recommendations under the provisions of the Contract Labour Act and Central Rules . The note dated 24-2-2003 in this regard was issued by the Under Secretary to theGovernment of India, Ministry of Labour, New Delhi to the Chief Labour Commissioner (c ), New Delhi , the copy of which was sent to Mr. Colin Gonsales , Advocate , thus the circular dated 16-11-1999 based on the recommendations made by the Board, relatingto the wages payable to the contract labour has no any force of law. It is further contended by the Ist party that, Air Port Employees Federation of India ( AEFI ) , Kerala, filed a Letters Patent Appeal in the Hon'ble High Court of Delhi against the said judgment and order dated 22-11-2001 against the order of the Single Judge which was numbered as LP A No.530 of 2002 in CPW No.6540 of 1999 and by order dated 24-7-2002 the Division Bench dismissed the appeal observing that there were no merits in it. Ist Party submitted that, Mr. Sivaraman and another filed a special leave Petition in the Apex Court against the said judgment and order dated 24-7-2002 which was dismissed by its order dated 31-1- 2003. 11 is , therefore, contended by the Ist Party that it is not for the Hon'ble Court to enquire into the question and decide whether the employment of contract labourers in any process , operation or other work in any establishment should be abolished or not . It is the matter for the decision by the Government, after considering the matter under Section 10 ofthe Contract Labour Act, which was done by the Government of India as averred hereinabove . It is , therefore, further contended by the 1st party that , this Tribunal has no authority or jurisdiction to adjudicate the issue whether the contract between it and the contractor's was shan and bogus and was a camouflage to deprive the workers concerned in the petition , of benefits available to its permanent workmen since this Tribunal has no jurisdiction or authority to adjudicate the said issue and the other issues which are incidental also cannot be adjudicated, hence, it prayed that the order of Referentis dated 20-3-2003 be rejected on this ground .

(35) 1st Party without prejudice to its aforesaid contentions and preliminary objections in reply to the Statement ofClaims submitted that, by virtue of the order ofreference dated 20-3-2003, the alleged industrial dispute has been referred for adjudication of this Tribunal concerning 15 contract labourers at Terminai IA employed by the Contractors VIZ. M/s.J.P.Brothers , M/s. Saison Constructions , M/ s. Vini Enterprises , M/ s . Profesco; and for18 Contract labourers at Terminal 2C employed by the Contractors viz.M/ s . Rojiwadia Constructions , Mis. Profesco; M/s . D'Souza Construction Co. , M/s . Intercon , and for 2 contract employees at external area of Terminal 2 employed by the Contractors viz. (1 ) M/s . Rolex Construction Co. ,M/s, Reena Enterprises, M/s , Intercon; M/ s . D'Souza Construction Co .. It is further contended by the ist Party that the Union cannot represent the said contract employees as they are not the workmen of the Ist Party and that , neither the contract employees can enroll themselves as the members of the Union nor the Union can admit them as its members and that the Union is put to the strict proof to show that the concerned workmen are the members ofthe said Union . It is also contended by the Ist Party that, the Government of India , Ministry of Labour, didnot act independently in forming an opinion, as required under Section 10 of the Industrial Disputes Act , 1947 that the industrial dispute existed for being referred to this Tribunal for adjudication since it made the reference at the direction given by the Hon'ble High Court in its order dated 16-12-2002 in Writ Petition No.78 of2000, The discretion of Government to make the order of reference is dependent on its satisfaction that the industrial dispute either exists or apprehended. The opinion formed by the Government of India on the basis of the directions passed by the High Court was not conclusive . The alleged industrial dispute was raised by the Union for the first time before the Hon'ble High Court ofBombay under Article 226 ofthe Constitution ofIndia in the year 1998. There was no any demand raised against the Ist Party at any point of time. There was no any conciliation proceedings initiated as required under Section 12 of the said Act . Thus , there was no material before the Central Government for coming to the conclusion that the industrial dispute existed which is a condition precedent in forming of the opinion. Ist party submitted that , the Central Government had acted in clear contravention of the provision of Section 10 ( 1 ) of the Act and had taken the decision , only on the basis of directions of the Hon'ble Bombay High Court without having any material before it to apply its mind and form the opinion inn respect of the existence uftis industrial dispute . посе said order of reference dated 20-3-2003 is mane evroneous and without jurisdiction and as such liat) . rejected on this ground alone. Ist Party further cu

tan. there is no definition of"Traffic services " ar (34) It is also contended by the Ist Party that the preliminary issues raised by it goes to the root ofthe matter and relate to the jurisdiction of the Government ofIndi 5546

THE GAZETTE OF INDIA : OCTOBER 4 , 2008/ASVINA 12, 1930

[PART II-SEC. 3 ( ii ) ] by the 2nd Party but it is ' air traffic service ' . Chapter III deals with the functions of the Ist Party and not definition of the 1st Party as averred by the 2nd Party. There are two divisions of the 1st Party viz . (i ) International Airports Division and ( ii) National Airports Division . The International Airports Division manages 5 international airports, whereas National Airports Division manager 119 airports across the country. The man power required by it is consisting of permanent , temporary and contractual . Though the order of reference dated 20-3-2003 covers 35 contract employees Annexure I annexed to the statement ofclaim provides the list of 33 contract labourers . Ist Party submitted that the details of the contract labourers in respect of their date ofjoining , date of birth , etc. are not required tobe maintained it hence the same are not available with it . It is contended that the concerned labourers are working on the civil maintenance work which is not an integral part of the regular , permanent and perennial activities ofthe 1st party as the civil maintenance work is necessary for up- keeping and maintenance of buildings and it manages the airports , the civil enclaves and the aeronautical communication stations among others . The duties performed by the contract labourers have nothing todo directly with the functioning of the 1st Party and without prejudice to the said averments , 1st party submitted that, this Tribunal cannot decide whether the work carried outby the contract labourers is incidental to or necessary for its main activities since it is within the domain of the Central Government . The allegations, therefore , that the duties carried out by the concerned workmen were of such nature that the same had never been severable from the main activities carried out by the employees at various airports in India are not true . Ist Party denied that, the services rendered by the workers , irrespective of their category, were of important nature because of the continuous flow of passengers and cargo , as there is no nexus between the two . Ist Party further submitted that , the contract labourers carry out the work Terminal IA and the instructions of their employers and do not come in contact with the international passengers and hence the allegations made that as far as international passengers were concerned , the nature of duties entrusted to all the workers; including the workers concerned was of vital importance ; as the international passengers carry impression about our country are not true. Ist party further submitted that , the permanent workmen were not appointed for carrying on civil maintenance work, since the inception of operation of Terminal IA , as there is no sanction for creation ofthe posts for appointment of the regular workmen as the work is not of a perennial and permanent nature The persons working as plumbers , carpenters , masons , etc. are not technically qualified persons but by virtue ofexperience . they have acquired the routine knowledge of the trade. The said contract labourers were appointed since November, 1999 and thereafter , except one and have been in continuous service by virtue of orders passed by the

Hon'ble Bombay High Court from time to time and last being dated 16-12-2002 . it is contended that , at present 13 contract labourers are deployed at Terminal IA for carrying on civil maintenance work and one is /was in the employment of the Ist Party much less S/Shri Nandlal Pillai and Prahalad Mane were in its employment at any point oftime. Mr. Nandgopal Pillai was reported removed from the service by M/ s . J.P. Brothers ; whereas Mr. Prahalad Mane remained absent without any permission of the contractor since 16-12-2002 . Mr. Balakrishnan has not reportedly been attending on duty since last three years without permission of the contractor . The contract labourers carry out the routine work of plumbing, carpentry and masonry. They are not technically qualified in their trade to do the said work; which they do under the instructions ofthe contractor; as and when the complaints are received from the concerned section . The allegation , therefore , made that their work was of a continuous nature is not true and that, all the tools , instruments and plants etc. required by the respective category of the contract labourers are provided by the contractor and the materials required for carrying out the respective jobs are supplied by the department. 1st Party also submitted that , the contractor give instructions to the contract labourers on the basis of the complaints received from the concerned sections and the contractor or his supervisor supervises and controls their work and that since the said type of work being carried out by the contract labourers Ist Party cannot engage Junior Engineer/ Sr . Superintendent / Assistanı Manager / Manager, Engineer and Asstt . General Manager, formerly known as Executive Engineer . Officers of the 1st Party do not give instructions directly to the contract labourers and or supervise their work as alleged nor the offices named by Union can give instructions to the lower categories of the contract labourers and supervise their work . It is further contended by the 1st party that the plumber alongwith his helper carry out the contractualjobs in all the three shifts and carpenter and mason alongwith their helpers work only in the general shift . The entry passes are issuedby the Security agency i.e. Cemrat Industrial Security Force, which is approved by the Bureau of Civil Aviation Security and not by the Ist Party as alleged . Ist Party also contended that , the contractor maintains the Muster Roll of the contract labourers . The Attendance Register for contract labourers is not kept in the offices ofthe Ist Party , hence, the question ofcounter- signing the register for the purpose of authentication by the Junior Engineer does not arise and it is not true that all the workmen employed at Terminal 1A were required to sign attendance register kept in the respective offices and those registers were / are countersigned for the purpose of authentication by the Junior Engineer . Ist Party submits that it, however , maintains the Muster Book for the purpose ofeffecting payment to the comractor . Ist Party submits that , neither the place of work , nor the location of the person working is material for determining the relationship.

5547 भारत का राजपत्र : अक्तूबर 4, 2008/आश्विन 12, 1930

[भाग 1-खण्ड 3 (ⅱ ) ]

Difference between the contract labourers and the permanent workmen is bound to be there, as the scales of pay and other benefits are attached to the definite posts but the contract labourers hold no post. Equal pay for equal work is a concept which for the purpose of implementation requires complete and wholesome equality between two groups . The regular workmen e.g. plumber, mason , carpenter, sewerman , beldar etc. have to fulfil the requirements of the job specifications before being appointed in a specific post . Ist Party therefore denied that those workers were in fact, entitled to receive the same, similar and identical benefits without discrimination between them and the other permanent workers from the dates of respective appointments because based on the principle and the doctrine of' equat pay for equal work ' those workers had/have statutory right ofbeing at par with the permanent workers in the matter of emoluments and other terms and conditions ofemployment and that, the same was denied to them by artificial means and by subterfuging the conspectus of employment and that , in other words the artificial sham and bogus contractors were introduced by the 1st partywith a view to deprive the conce med workmen oftheir statutory benefits under the various industrial laws are not true for the reasons averred herein a before . Ist Party submitted that the question whether contract labourers are entitled to receive the same , similar and identical benefits given to its permanent workmen and whether they have to be placed at par with the permanent workmen in the matters ofemoluments and other terms and conditions of employment have to be decided by the Deputy ChiefCommissioner of Labour (C), as provided under Central Rules and hence , this Tribunal has no jurisdiction to decide the said aspect of the dispute. Ist Party contended that the said concerned workmen were not recruited through Junior Engineer, Assist Engineer and Executive Engineer but were recruited by the contractors , 1st Party, therefore, denied any modus operandi was adopted while recruiting these concemed workomen through Contractors . Ist Party further contended that the illustrations of the categories of the posts allegedly appointed through Junior Engineer, Asstt . Engineer and Executive Engineer has been fabricated by the 2nd Party Union since the concerned workment contract labourers are nothing but figment of imagination . The persons holding the posts of the said status cannot and did not canvass for appointment of the said categories of the contract labourers with the Contractors , which is derogatoryto their status , Ist denied the allegations that the carpenters were appointed through J.E. , Asstt . Engineer and that a beldar was appointed through I. E, and Assistant Engineer and Executive Engineer apart from other instances as alleged by the Union . 1st Party further submitted that the 2nd Party has simply given the list of contractors without specifying the period for which they were appointed to carry out the jobs assigned to them and that, the duration of the contract must be for a year or two and It denies that , the attendance is also marked by the representative ofthe Engineer- in -charge . It is also denied that, none of the representative ofthe so-called contractor was present at the premises to oversee the work of the workers. It also denied that the muster rolls of the workers were maintained by the Junior Engineer/Sr. Superintendent of Terminal 1A, who certified the register under his signature and signed each day's notes of the general shift and the shifts of the staff are without any basis and that since the Muster roll is not being maintained by the 1st Party the question of keeping the same in custody by the Junior Engineer/Sr . Superimendent does not arise. ist Party further contended that , no comparison can be made in respect ofwork carried out at Terminal IA with that carried on at Terminal 2C; as the nature of work carried on by them varied from complaint to complaint and without prejudice to the said contentions Ist party submitted that, the question whether the work done by the contract labourers is the same, similar or identical work as that done by the permanentworkmen employed by it is a matter to be decided bythe Dy. Chief Labour Commissioner (C) under the Central Rules and hence this Tribunal has no jurisdiction to decide the said aspect of the dispute . It contends that the new Terminal was commissioned in the year 1992 and not in 1986 as averred by the Union . 1st Party denied that it deliberately and intentionally did not sanction the appointments of permanent workmen for the maintenance of that terminal as alleged, It submitted that, there is no sanction by the Authority for creation of the permanent posts to carry on civil maintenance work at Terminal 1A, as the work is not of a perennial and permanent nature and hence the said work was entrusted to the contractors from time to time by inviting tenders . The said tenders were scrutinized by a Committee and one of the tenders was accepted, after following the rules and regulations for the samewho were required to execute an agreement . Ist Party obtained the Certificateof Registration , whereas the Contractors obtained the licences under the Contract LabourAct. Ist Party submitted that the 2nd Party Union/ concerned workmen should have approached the contractors from time to time for various benefits due and payable under the labour law . It is therefore , denied that, 1st Partydecided to employ workers through sham and bogus contractors with a view to exploit those workmen and with a view to deny then the benefits , due and payable under the various industrial laws as alleged . Ist Parties denies that it adopted any modus operandi as contended bythe 2nd Party, it appointed the contractor in accordance with the lawto carry on the contractual work who was supposed to give the statutory benefits to the contract labourers . Ist Party is not aware whether any demands were raised by the 2nd Party representing the concerned labourers , claiming benefits such as Provident Fund, ESI etc. against the contracts and out come of such demands . 1st Party denied that the contract labourers can claim pay parityand other benefits available to its permanent workmen.

3631 G1/2008-13 5548

THE GAZETTE OF INDIA: OCTOBER 4, 2008/ASVINA 12, 1930

(PART II-SEC. 3 ( ii )]

control is concerned, the work of permanent workers is supervised and controlled by the afficers of the department , whereas that of the concerned contract labourers eitherby the supervisor/ representative or by the contractor himself. The allegations therefore made that it was therefore crystal clear that as far as the nature of supervision and control was concerned, there had been never any difference of whatsoever nature between the permanent workers and the concemed workers are not borne out by fact and the same are not true. 1st Party further submitted that the recruitment of the regular workmen made by it is in accordance with the Service Regulations whereas the contractors recruit the contract labourers , who do not pass through the stringent test . The allegations, therefore made that as far as nature ofduties ofthose two sets ofworkmen was concerned , there also had absolutely been no difference of whatsoever nature are not true . It submitted that all the departments are integral part of its establishment and all are equally important from the management point of view . The allegation , therefore , that it was the said department (Civil Maintenance Department ) which itself was an integral part of the establishment of Ist Party was one of the most important Departments and that the work of other departments was carried out effectively because of the output of the workers employed in the Civil Maintenance Department are without any basis . 1st Party submits that its function is to manage the airports , the civil enclaves and the aeronautical communication stations effectively whereas the Civil Maintenance Department is concerned with maintenance and up keeping of the buildings, and as and when the complaints are received from different quarters , the same are attended by the contractors through his contact labourers . The allegations, therefore , made that the activities of the Civil Maintenance Departinent which were carried out on the premises of the 1st Party could not be segregated , separated or carved out of the entire work and activities of the 1st Party and not true . The dutics performed by the contract labourers are of a routine nature; for which they do not possess any technical qualification. The allegations , therefore , made tou the nature of duties performed by the workers , irrespective of their labels i.e. whether permanent or temporary or sherae, .

as and when the period was over , the new contractor in place of old one was deployed. It is also denied by the Ist party that , the so- called contractors whose names went on changing were merely name- lenders. It is submitted that the contractors were appointed after following the procedure evolved by it as stated hereinabove . The 2nd Party has not impleaded the contractors in the reference, hence, it cannot cast aspersion or level any allegations on them behind their back and who are not in a position to rebut the same. The basis on which the 2nd Party has averred that, the so called parties or so called contractors had never obtained any registration as commercial establishment under the Shops & Establishments Act has not been specified in the statement of claim. 1st Party submits that the question of obtaining a registration certificate under the Factories Act did not arise as the contractors did not run any factory . Hence the allegations made that those parties were not genuine parties and those names were nothing but a subterfuge and camouflage and that the so called parties or so - called contractors had never obtained any registration as commercial establishment under the Shops and Establishment Act or under the Factories Act as a factory, are without any basis . Ist Party reiterated that, the Contractors are for a specific period and before the period is over fresh tenders are invited , Contractors fulfilling the eligibility criteria as per the notice inviting tenders are only issued tender documents in the specified tendering system and the contract is awarded after following the rules and regulations framed in this regard. In the said process , the contractors are bound to change and the old contractor may or may not take interest in responding to the advertisement and in his place another contractor is appointed, whose quotation is acceptable and technically feasible . Hence , the allegations made that many a times old suited contractors went away and in their place new were introducedby the Ist and the same are not true . Ist tractors were changed but the conttant manas, however, remained the same by vimeo di order on'ble Bombay High Court in varicu . Wsed above and the concerned workmen have isen ingot the work for the last few Pary tomate years , which is

ces of the

were de integra

contended that , tai, tem

a number of

the contractes for the piped cre

umber couractor and is dete

bree shifts:

maimaining ...

tabourers is workmen and that, dose dostal

there was discul supervion and control :

aoine and

Jess'sich are duties carried out by the concemed wo

officers of the 1st purs. The domes and tes ...

he allecations , Sr. Superintendent are of onerous d

wowperforming derogatory to the status the said post to oversee the the duties not only of permanent and perennial nature but work of contract labourers which of routine nature Ist also of the essential natute ne borne out by lacts and the

same are not true. Ist Party submitted that , the allocation Party submits that so fare the na ure of supervision and 5549 भारत का राजपत्र : अक्तूबर 4, 2008/ आश्विन 12, 1930

[ भाग II- खण्ड 3 (ii) ]

lending contractors who were merely introduced as intermediatories had no role to play in those matters . Ist Party further submitted the concerned workmen have to apply for leaveto his employer i.e. contractor and they had never applied to the Sr. Superintendent/ Junior Engineer and hence, the question of sanctioning the same by the Ist Partydoes not arise. Since the concerned workmen did not and cannot apply for leave to the Sr. Superintendent/Junior Engineer the question of initially acknowledging the application and subsequent refusing the same after the concerned workmen , through their Union filed proceedings against the 1st Party did not arise . The allegation , therefore , made that as far as leave of any of the worker was concerned, he had to apply to the Sr. Superintendent/ J.E. for the same , who sanctioned it and that initially St. Superintendent/ JE used to give acknowledgement of the leave applications on the copy meant for the concerned workmen but after the concerned workmen through their union filed proceedings against the Ist Party the concerned Sr. Superintendent/JE refused to give acknowledgement or the receipt of leave applications are without any basis and the same are not true and are without any basis. It reiterated that the 1st Party is not concerned with the leave applications of the concerned workmen . The allegations , therefore , that in the matter of leave, it was the management of 1st Party, who refused, rejected or sanctioned leave of the concerned workmen are not borne out of the facts and the same are not true, 1st Party submitted that , in case ofpermanent workers appointedby it the provision of leave is governed by the Service Regulations coupled with the bilateral settlement reached between itandthe recognized Union from time to time. Ist Party submitted that the contract labourers / concerned workmen , whenever they remain absent from duties or whenever they intend to go on leave; they have to mention the same in writing addressed to their contractor , who deals with the same. Ist Party submitted that , it is not aware whether the concerned workmen had never been given any fixed quantum of leave by the contractors but on the contrary their wages are deducted by the management of theContractors, whenever they proceed on leave . It further submitted that if there was any grievance in this regard; the concerned workmen or the Union should have approached the contractors and should have ventilated their grievances; in accordance with the prescribed procedure. Ist Party contended that, the permanent workers are issued the Identity Cards , however, in the past , the contract labourers were also issued the identity cards by Bureau of Civil Aviation Security on the applications of the contractors with its contract labourers and recommendation but now the tokens are issued by the Central Industrial Security Force on a day-to- day basis on account of security reasons . Hence , the allegations that , the contractors were required to give letter to 1st Party every monthwith the list of workers which was subjectto the approval ofthe Engineer- in- Incharge and was issued ofwork in respect of the concerned workmen/contract labourers is done by their contractor and not by the Executive Engineer . The allegations, therefore , made that it was in that background and state of functionin of the Civil Maintenance Department that, the allocation of work was done by no less a person/executive than Engineering-in- charge are false . Ist Party submitted that the method and the manner in which the duties are allotted and the instructions are issued to the contract labourers/concerned workmen and to the permanent workmen , rest with the contractor and the officer of the department respectively. 1st Party submitted that, it did not carry on any systematic activities; so far as the functioning of the Civil Maintenance Department at Terminal 1A is concerned. The allegations therefore, made that the method and the manner in which the duties were allotted and the instructions were issued tothe concerned workers, as well as the permanent workers were in the systematic activities carried out on the establishment ofthe Ist Party . 1st Party further submitted that , on applying judicial tests laid down by the Apex Court: by no stretch of imagination , its Civil Maintenance Department can be brought in the ambit of an ' undertaking' or ' industrial establishment' within the meaning ofSection 2(ka) ofthe saidAct. It denies that the Civil Maintenance Department of the 1st Party satisfies the test of nature of industry in itself as alleged. The contract labourers were appointed by the Contractors , the wages and other benefits are given by the contractor, the allocation ofwork as well as the control and supervision over their work is done by the contractor or his supervisor or the representative as the case may be . The contractor initiates the disciplinary action against the concerned labourers. The allegations, therefore , made that the very fact that the allocation ofthe work to the concerned workers employed in Civil Maintenance Department, irrespective of their status was entrusted in the hands of the Engineer- in - charge was itselfone ofthe indications and pointer to show that all the concerned workers employed with Civil Maintenance Department ofTerminal LA were the direct employees of the 1st Party and introduction of the so -called contractors was nothing but subterfuge and device to refute and deny the real and direct relationship of employer -employee between the 1st Party and the concerned workmen , are without any basis and the same are not true. 1st Party submitted that it has no role to play in respect of allotting shift to the contract labourers and no duty roaster is maintained by it and contract labourers report for duty in shifts at the instructions of the contractors . It submitted that , the allegations made that preparation of duty roaster and , specification of the shifts therein by J.E. ( now known as Sr. Superintendent ( C- 1 ) was one ofthe factors; which indicated that the concerned workers were issued instructions by the officials /Executives /Engineers / Managers etc. of the 1st party are nothing but figment of imagination and the same have been made with ulterior motive. Ist Party also denied the allegations that the name- 5550

THE GAZETTE OF INDIA: OCTOBER 4 , 2008/ASVINA 12 , 1930

[ PART II- Sec. 3 ( ii ) ] theallegations of the 2nd Party that it wa for

by BCAS only on the authorization of the Engineer- in- charge are not correct . The passes aring photographs of the workers are issued by BCA , generally for a longer period whereas the metal tokens are sued by the CISF for aday. The contract labourers are required to obtain " Parchi " every day for tokens, wherein thedetails are filledin by the security agency on the basis of information furnished bythe contractors . The allegatire therefore , made by the second Party that, those columnformation Deerein wasbased on the monthly letters were issued by the Ist Party to the so called contractors were based on the monthly letters issued by the Ist Party to the so called contractors signed by the J.E./Sr . Superintendent, Assistant Engineer, Engineer- in charge, Dy . General Manager (Civil ) etc. are not Collect. Ist Party also contended that , the security agency maintains the record of the presence in respect of the concerned workmen and , therefore , the allegations that , the 1st Party had been maintaining meticulous records regarding entry , exit and , persons on the establishment, including the workers concerned are without any basis. It further contended that , neither the Union nor the concerned contract labourers madı any grievance at any time that their names were struck retland some other names were substituted . The allegation, therefore, made that , in fact , though all the workers concerned in the present reference as well as those concerned in the Writ Petition No.78 of 2000 weте continuously working, after liling of the said Writ Petition, with a view to create false impression about the temporary nature of work and with a view to conceal the truth and the real nature of employment , in respect of the workers concemed, different methods and devices were followed by the management of the 1st Party through the Engineer- in-charge and the names ofthe workers were , at times struck off and instead of such workers ; names of some other workers were substituted are without any basis . Ist Party reiterated that, the allocation of work to be perfortned by the contract labourers in the present reference is done by the Contractor himself or by his supervisors and the work of civil maintenance has to be performed as and when required which is of an intermittent and not of a perennial nature and it is not true that due to heavy traffic of passengers and cargo there was constant tear and wear of the facilities and was imperatives maintenance was done tomediately and conimic , Ist Pariy contended that. Bermoost functioning of ds activitik , of the Ist Party the show be proper co -nt Fination of all the department st Party submister! dat , ivere are various departments es Joust keeping, Elecnica , Operations, Electronics and Civil which warrenei Terminal Building for Dailused Cra be :

amongst other that the 1st Pasty had fous De

which looked after day- day

Establishment / Airport anu ti those foci

wereHouse Keeping ( HK ), Civii Мар

(CMD),Electrical Maintenance Department ( ED ) , and that, those four departments , in harmony with each other performed the functions of maintenance of the Airports are not totally true . Ist Party submits that the inspection is carried out by the representatives of the said departments and not by the officers of those as alleged by the Union , in order ensure that the deficiencies complaints are attended immediately instead of passing the same through various channels ; in order to avoid red tapism . Hence , the allegations that for the performance of the maintenance of the building officers of the Ist Party or the representatives of two Departments were required to do the thorough check and to note down the observations and actions required by the concerned Department's in the " Daily dedicated Group Register" are not totally true .It is submitted that the DDG of Terminal IA is done twice in a weekand the representatives of Civil , Electrical , Electronics, House Keeping and Operations remain present -for DDG inspection . Ist Party demed that , the register was always signed by the representatives of those three departments and that a copy of that DDG was kept with each department and that the Civil Maintenance Department's copy of said DDG with the Manager Engineer who kept it in a diary maintained by Civil Martenance Department and the diary and the date carried seal of the Department are not true, apart from the fact that the said allegations have no relevancy in adjudicating the issues covered under the order of reference. Ist Party submitted that , the DDG inspection notings prepared by the Housekeeping Departmentare forwardbiory anger Engineeing (C) who in turn forward the same to the Manager Engineering for necessary action who routes the same to the Sr. Superintendent Engineering (C) . The Engineer- in charge does not maintain the register for civil complaints . The Manager Engineering does not allot workto the Junior Engineer / Sr . Superintendent it is contractor who allots the work to the contract labourers who carry out the necessary work . The contractor or his representative oversees the work allotted to them, however . JE Sr. Superintendent lakes roundwhile the work is going on . The allegations , therefore. made that the Manager Engineering make noting on the DDG, allots work to the JE Sr. Superintendent concerned, who in turn allots it to the workers , who carry out the necessary work and that J.E. Sr. Superintendent personally oversee the work being done by the concerned workers are not true. It is ennrended by the 1st Party that , the Engineer- in-charge does not maintain the register for civil complaints / requirements but the Sub-division oflice maintains the same . The said register is being maintained since last one yearby virtue of ISO requirements . It is, therefore, denied that the Engineer in charge also maintained the register for civil complaints / requirements which was certified by the JE/Sr. Superintendent and the Assistant Engineer based on the complaints received from the House- keeping Department and Airport Manager. The averments made in respect of the names of the officers working in 5551

भारत का राजपत्र : अक्तूबर 4, 2008/आश्विन 12, 1930

[भाग - खण्ड 3 ( ii) ]

Terminal IA specifying the alleged duties are not correct . Ist Party further contended that the allegations made by the Union that the concerned workers who sat in the room outside the JE' s office during the general shift were allotted work by the JE 1st Party also denied that, al the end of the general shift, when the JE left , the office was locked and the workers in the shifts operated from the pump house . It contended that the plumber maintains the register of complaints under the instructions of the contractor , who checks the same, as and when required . The Junior Engineer also checks the same; in order to ensure that the work requiring immediate attention is attended by the contract labourers promptly. The allegations , therefore, made that the plumbers during the shifts maintained a similar register ofcomplaints under the direction of the JE, which was checked and counter-signedby the FE , who made the noting of the same are not true , Ist Party also submitted that, the contractor prepares the wage bill on the basis of the record maintained by him , hence the allegations that the wage bill was prepared by the JE on the basis of the records maintained by him and sends the details of the same to the so called contractor , who prepare the wage bill in accordance with the information furnished by the J.E. It is further submitted that, there is no supervisory on duty since July, 2002; who was removed by the contractor probably at the behest of the Union . Since the contractor has been supervising and controlling himself the work, it ishis prerogative to keep the supervisor or not . It is denied by the Ist Party that, the supervision work was done by the Junior Engineer. It is submitted that , it was one of the conditions of the contract that the contractor is required to pay to his contract labourers atleast statutory minimum wages provided under the Minimum Wages Act, 1948. The allegations, therefore , made that it was thus apparent that , the rates ofwages were determined and decided by the 1st Party and that , the so called name - lenders/ so called contractors had absolutely no say in those matters are not correct. It is denied by the list Party that, there is any indication of a contract ofemployment ; showing that , there isrelationship of the employer and the workmen between the Ist Party and the concerned workmen - as alleged. Ist Party further contended that , the list of the contract labourers, containing Sr. Nos . I to 20 covered at paragraph 18 of the original statement of claim, into the contract labourers from Sr. Nos . I to 18 have been incorporated at the end of the amended paragraph 13A . The said list constitutes a second group of contract labourers covered in the order of reference and it is not the third category of workmen involved in the present dispute , as contended by the Union, It further contended that , the persons shown at Sr.Nos. I to 18 ofthe list initially deployed at Terminal 2B buton commissioning of Terminal 2C, they were shifted to Terminal 2C. It is further submitted that , the Ist Partydid not take a policy decision as such to employ contract Labourers at Terminal 2B, when it was commissioned and there was no creation and sanction of the posts by the CMF- IA where the concerned contract labourers are deployed are correct. It is submitted that, the concerned contract labourers are required to work in all the shifts. The material required for attending to the complaints are issued by the Department from its stores and the entry of the same is made in MAS (Material At Site) Accounts Register by the Sr. Superintendent Engineer (C) who does not maintain work diary and hence the question of writing by him therein and certifying the work done by the contract labourers concerned and keeping the same in his custody does not arise, Ist Party submits that the bill for payment to the contractor for the contract labourers deployed by him is prepared by the contractor on the basis of his Attendance Register and Wage Register after making payment to them by him and the payment is made in accordance with the contractual terms . The allegations , therefore, that on the basis ofthe work diary, the Engineer- in-charge prepared payment bills of the so called name- lender contractors and then payment was made to them are not true. It is further contended by the Ist Party that, the Airport Manager also maintains a complaint register and the Sr. Superintendent Engineer ( C)/Manager Engineering (C) notes the complaints recorded therein for getting the same attended either through the contract labourers deployed by the contractors or through the running contracts. Hence, the allegations that, apart front those records, theAirport Manager also maintains the records of complaints received during the time, when the Engineer - in charge was not on duty and allotted the work to the shift staff based on the complains received are not true. It is also denied by the Ist Party, all the registers were in the custody ofthe Junior Engineer. It is further contended by the 1st Party that , the maintenance of terminal buildings is being done through the Manager, House- Keeping ; excері maintenance ofCivil, Electrical and Electronics installations. The report made by the Manager, House keeping on inspection of the Terminal Buildings is forwarded to the civil maintenance department for attending to the deficiencies hence , the allegation that prior to 2001 , when on the advice of ISO, in order to attain international standards of maintenance of Airports, the maintenance of the building was done through the Manager House Keeping, in the manner as alleged is not correct. 1st Party denied that the substantial part or the responsibility ofthe airport managerial personnel was the supervision and control ofthework being performed by the alleged so called concerned workmen and that the Operation Department issue the job description (Duties and Responsibilities) of theAirport Manager of Terminals, much less of Terminal LA. Ist Partycontended that the duties and responsibilities ofAirport Manager in general have been prescribed by the Operations Department but it does not mean that the duties and responsibilities of the Airport Manager ofTerminal lA have been specifically provided for . Hence , the allegations made by the Union that the Operation Department had issued the job description of the Airport Manager of 5552

[PART I-SEC. 3 ( ii) ] THE GAZETTE OF INDIA : OCTOBER 4,2008/ASVINA 12 , 1930

competent authority to man the said Terminal as the work is not of a perennial and permanent nature and hence the job was entrusted from time to time to the contractors for maintenance of the civil work ; in accordance with the prescribed procedure . Ist Party submitted that, its all departments are essential and integral parts but civil maintenance is not the incidental part of it . Ist Party contended that , the concerned workmen are not technically qualified in their trades and they do the work under the instructors of the contractor. The allegations made by the Union that the work of concerned workmen was continuous in nature is not correct as alleged. It denied that the letter dated10-9-1999 issued by Mr. A.D. Kannan , Sr. Manager Engineering ( 11) contain that the Terminal 2B/2C building cannot be maintained without the work of the concerned contract labourers. Ist Party contended that , the contents ofthe letterdated 31-10-2002 issued by Mr. M.R. Pushkaran , Manager Engg . -SG -SD to the Security Incharge . CISF , Mumbai , have been distorted by the Ist Party. It is submitted that, the tools , instruments , and plants required by the respective contract labourers are provided by the contractor and the materials required for carrying out the respective jobs are supplied by the departments , hence the allegations made by the Union that the same were providedby the 1st Party are not true . It is contended that, the contractor used to give the instructions to the concerned workmen for carrying out the work on the basis of the complaints received from the concerned sections and the contractor or his supervisor supervises and controls their work. It is , therefore , denied that , the officials ofthe 1st Party were also working at Terminal IIC to give instructions and to supervise the work of the concemed workers. It is denied by the Ist Party that , maintenance of the airports was continuous function and one of the main functions and that if the same was not carried on even for a single day the entire operations of the Ist Party would come to a stand still , 1st Party reiterated that, the contract labourers carry out the work of plumbing and masonry and denied that the work of the concerned workmen was of continuous in nature and that , the contents of the letter dated 10-9-1999 have been totally distorted by the 2nd Party. It also contended that , there is no post of carpenter even as per the designations shown by the 2nd Party in respect of the 18 contract labourers, hence the allegations made in respect of instruments , materials , apparatus etc. required for carpentry work are unwarranted . It submitted that, the said type of work being earried out by the contract labourers , Ist Party cannot engage Junior Engineer ( JE ) / Sr. Superintendent/ Assistant Engineer/ Manager Engineer and AGM ( Assistant General Manager earlier that designation was known as Executive Engineer ) . The designation ofMr. M.R. Pushkaran is Manager Engg . ( Civil ) SGMr. Hoda has been promoted as Asstt . Manager( Civil ) and is, at present working at Calcutta Airport and whereas name ofthe Junior Engineer is Mr. Vinay Tamrakar and not Mr. Vinay Tamrakar as averred and that they do not give

instructions directly to the contract labourers and or supervise the work. Ist Party denied that the workers were/ are issued necessary entry passes by it and that all the workmen employed at Terminal IIC were required to sign attendance register kept in the respective offices and those registers were/ are counter - signed for the purpose of authentication by the Junior Engineer . It is submitted by the 1st Party that , the Muster Roll is maintained by the contractors , it however , maintains the same for the purpose ofeffecting payment to the contractor . It further contended that neither the place of work nor the location ofthe person working is material for determining the relationship . The allegations, therefore , that the muster roll was maintained bythe Junior Engineer / Sr. Superintendent of Terminal IIC andwas being certified by him are not correct and there is no question of keeping the same in their custody . The tenders were being scrutinized by the Committee entrusted with the said assignment and accepted after following the rules . It is , therefore , submitted that , the Union should have approached the contractors for their various benefits under the labour law . It submitted that , it did not adopt any modus operandi as contended by the 2nd Party but appointed the contractors in accordance with law, from time to time who was supposed to give the statutory benefits 10 the contract labourers . It is further contended that the concerned workimen cannot claim pay parity and other benefits available to the permanent workmen and that differentiating between the contract labourers and the permanent workmen is bound to be there as the contract labourers do not hold post . Equal pay for equal work is a conceptwhich for the purpose of implementation requires complete and wholesome equality between two groups which is not there in the present case. It is , therefore, denied that the concemed workmen , in fact , were entitled to receive the same , similar and identical benefits without discrimination between them and other permanent workers based on the principle and the doctrine of ' equal pay for equal work as alleged and that , the same were denied to them by artificial means and by subterfuging the conspectus ofemployment and that in other words , the artificial , sham and bogus contractors were introduced by the 1st Party with a view to deprive the concerned workmen of their statutory benefits under various industrial laws . It is submitted by the Ist Party that , the said question is to be decided by the Deputy Commissioner of Labour as provided under the Central Rules and hence this Tribunal has nojurisdiction to decide the said aspect. It is submitted that, the illustration of the category of the post allegedly appointed through Junior Engineer, Assistant Engineer and Executive Engineer has been fabricatedby the 2nd Party Union and had falsely made the allegations that the concernedworkmen were appointed by the alleged officers of the 1st Party. It is reiterated by the 1st Party that the duration of the contract might be for a year or two and as and when the period was over, the new contractor in place of old was deployed hence the allegations made by the 5553 भारत का राजपत्र : अक्तूबर 4, 2008/आश्विन 12, 1930

[ भाग- खण्ड 3 ( ii) ]

and activities of the 1st Party are not true . The duties performed by the concerned workmen are of a routine nature for which they do not possess any technical qualifications .It is denied by the 1st Party that the concernedworkmen /contract labourers were performing the duties not only ofpermanent and perennial nature bur also ofessential nature and it submitted that the allocation ofwork in respect ofthe contract labourers is done by their employers i.e. contractors and not by the officers ofthe 1st Party as alleged. It is denied by the Ist Party that, the method and the manner in which the duties were allotted and the instructions were issued to the concerned workers as well as the permanent workmen , were systematic activities carried out in the establishment ofthe ist Party, It is also submitted that , on applying judicial tests laid down by the Apex Court, but no stretch of imagination , its Civil Maintenance Department can be brought in the ambit of an "undertaking " or " industrial establishment " within the meaning of Section 2(ka ) of the said Act. It denies that theCivil Maintenance Department ofthe Ist. Party satisfies the test ofnature of industry in itself as alleged. 1st Party reiterated that , the contract labourers were appointed by the contractor , wages and other benefits are given by the. contractor, the allocation of work is done by the contractor or hissupervisor , contractor initiates the disciplinary action against the contract labourers , hence , the allegations made by the 2nd Party Union in this respect are not true, ist Partyalso denied that the allegations that, the name - lending contractors, who were merely introduced as intermediaries, had no role to play in those matters . It further submitted that, the concerned workmen have to apply for leave to their employers i.e. contractors and they had never applied to the Sr. Superintendent/Junior Engineer and, hence, the question of sanctioning the same or the question of acknowledging the same did not arise at all . It, therefore, denied the allegations that , in the matter of leave , it was the management of the Ist Party who refused, rejected or sanctioned leave of the concerned workers . It contended that in the case of permanent workers appointed by it, the provision of leave is governed by the Service Regulations; couplewith the bilateral settlement reached between it and the recognized Union from time to time and the concemed workmen have to apply for leave to their contractor. It is contended by the 2nd Party that , the allegations that , in fact all the concerned workmen were continuously working, after filing the Writ Petition No.78 of2000 with a view to create false impression about the temporary nature ofwork and with a view to conceal the truth and real nature of employment , in respect ofthe workers concerned, different methods and devices were followed by the Management of 1st Party through the Engineer- in-charge and the names ofthe workers were, at times, struck off and instead of such workers, names of some other workers were substituted are without any basis . Ist Party further contended that , there are various department such as HouseKeeping.Electrical ,Operations, Electronics and Civil , 2nd Partythat, the so called contractors whose names went on changing were name lenders , without knowing and understanding the tendering system are not true. It is also contended that, the Union has not impleaded the concerned contractors in the order of reference , hence, it cannot cast aspersion on them behind their backs. 2nd Party cannot level the allegations against the said contractors who are not in a position to rebut the same and the allegations that, the they had never obtained any registration as commercial establishment under the Shops and Establishment Act or under the Factories Act . The contractors fulfilling the eligibility criteria as per the notice, inviting tenders are only issued tender documents in the specified tendering system and the contract is awarded after following the rules and regulations and in the said process contractors are bound to change , however, contract labourers remained the same by virtue ofthe orders passed by the Hon'ble High Court of Bombay in various Writ Petitions referred hereinabove. It is denied by the 1st Partythat, the nature of workwhich the concerned workmen have been carrying out since last several years, had never been the work of intermittent nature , It is further contended by the 1st Party that , this Tribunal cannot decide whether the work carried out by the contract labourers is of permanent and perennial nature , as it is within the ambit of theCentral Government . 1st Party contended that, it merely maintains the record in respect of a number of categories of contract labourers deployed by the contractor for the purpose of effecting payment to the contractor and not for the purposes and the manner as alleged by the 2nd Party Union and the said contract workers were/are not under the direct supervision and control of the officers ofthe 1st Partyas alleged. It is denied by the Ist Party that, as far as the nature ofsupervision and control was concerned there had never been any difference of whatsoever nature between the permanent workers and the workers covered under the present reference . It submitted that, its all the departments are integral part of its establishment and all are equally important from the managementt point of view. It is, therefore , denied the allegations that it was Civil Maintenance Department which itself was an integral part of its establishment of Ist Party was one of the most important departments and that , the work of other departments was carried out effectively because of the output of the workers employed in the Civil Maintenance Department , Ist Party submitted that, its function is to manage the airports , the civil enclaves and the aeronautical communication stations effectively; whereas the Civil Maintenance Department is concerned with maintenance and up keeping of the buildings and as and when the complaints are received from different quarters , the same are attended by the contractor, through his contract labourers . Hence, the allegations made by the 2nd Party that, the activities ofCivil Maintenance Department , which were carried out on the premises of the 1st Party could not be segregated, separated or carved out of the entire werk 5554

THE GAZETTE OF INDIA : OCTOBER 4, 2008/ASVINA 12 , 19.30

[PART 11-Sec . 3 ( ii ) ] which carry out the inspection of the Terminal Building for Daily Dedicated Group . It further contended that the inspection is carried out by the representatives of the said department and not only by the officers as averred therein by the Union in order to ensure that , the deficiencies/ complaints are attended to immediately instead of passing the same through various channels in order to avoid red tapism . The allegations regarding performing of the maintenance of the buildings , the Manager House Keeping alongwith the ME, Civil and the ME , Electrical or a representative of two departments did a thorough check of the terminal building and noted down the observations and action required by the concerned department in a "Daily Dedicated Group Register " are not totally true. It submitted that the DDG of Terminal 2C is done twice in a week . The representatives of Civil Electrical , Electronics , House Keeping and Operations remain present for DDG inspection and the DDG report is prepared by House Keeping and is signed by all the said officials. Whenever the operations and electronic department representatives are not available the DDG inspection is carried out by Civil , Electrical and House Keeping Department , whose representatives , three in numbers sign the same, which is prepared by House Keeping Department . It contended that , the Manager Engineering does not allot work to the Junior Engineer/ Sr . Superintendent , the contractor allots the work to the contract labourers who carry out the necessary work. The allegations, there fore , made that, the Manager Engineering made a noting on the DDG allotting the work to the JE Senior Superintendent concerned who in turn alloued it to theworkmen who carried out the necessary work and that the Senior Superintendent/ JE personally over- saw the work being done by the workmen and reported the matter to the ME are not correct. The said register is being kept for last one year by virtue of ISO requirement. The letter head of the 1st Party carries the logo of ISO 9001-2001 as the Mumbai Airport as certified for the same on 26-6-2002. 11 contended that the allegations that the Sr. Superintendent also maintained the Work Diary, wherein he wrote and certified the work done by the workers concerned and the same was kept in his are not true and the same have already been dealt with hereinabove . It reiterated that the bill for payment to the contractor for the contract labourers eployed by him is prepared by the contractor on the basis ofthe attendance register and wage register after making payment to them by him and the payment is made by him in accordance with the contractual terms . The allegations , therefore, made by the Union in respect of the maintenance of the register and payment are not true . Ist Party contended that the maintenance of terminal building is beingdone through the Manager, House Keeping, except maintenance ofCivil , Electrical and Electronics installations, the report made by the Manager, House Keeping on inspection of the Terminal Building is forwarded to the Civil Maintenance Department for attending to the deficiencies . The allegation , therefore , that prior to 2001

when on the advice of ISO , in order to attain international standards of maintenance of airports , the maintenance of the building was done through the Manager House Keepingwho did a thorough check of the terminal building and sent a Job Request in the prescribed proforma to the ME of the Civil Maintenance Departinent for tasks to be carried out are not fully correct . It submitted that, there is no relevancy of the rest of the averinents in respect of the profonna ofjob request of the House Keeping Section . 1st Party denied the allegations made by the 2nd Party Union that the substantial part of the responsibility of the airport managerial personnel was the supervision and control of thework being performed by the alleged contract labourers The allegations made by the 2nd Party in this respect are not correct . It is submitted that, it is one of the condition of the contract that the contractor is required to pay to his contract labourers at least statutory minimum wages provided under the Minimum Wages Act, 1948. Ist Party also denied rest of the allegations made by the 2nd Party in thisrespect . It is contended that , there is no any indicia of a contract ofemployment showing that there is relationship of the employer and the workmen between the 1st Party and the concerned Workmen. Ist Party reiterated that the contracts are not sham , Ist party does not exercise supervision and control over the work performed by the contract labourers , the contents of the carlier contracts prior to 1998 and the subsequent contracts are the same. Ist Party further submitted that . it had inadvertently earlier mentioned , as maintenance of civil work in T- 2B ( labour ) instead of maintenance of civil work in T- 2B ( 'job work') and the change of wording has nothing to do with the filing ofwrit petitions in the High Court by the Union and hence the demand for production of copies of contracts is redundant . It admitted that the nomenclature does not hide the nature of the contract. Ist Party further contended that , the role of the contractor had not changed even alter [998 as they were not the supplier of labour in the past but by virtue oforders passed by the Hon'ble High Court from time to time, the contact labourers had been protected from termination of their services: pending the hearing and final disposal of the matter . The contracts entered into with the contractors were fair , proper, bonafide and legal . It is , therefore, denied that in fact after 1998 , since mostof the workmen were protectedby the orders of the Hon'ble High Court , the contractor had no role to play even . in supply of labour and was a mere paper arrangement for routing the money and depriving the workmen of their rightful wages and claims . Ist Party reiterated that the contracts entered into with the contractors , prior to 1998 or subsequently, were in accordance with the prescribed procedure. The contract labourers were recruited by the contractors themselves and that , in the past whenever the contractorwas replaced by a new contractor after expiry of the period of the contract of the earlier contractor, the new contractor recruited his own hands . Therefore , the allegations made by the 2nd Party that , even prior to 1998, 5555 भारत का राजपत्र : अक्तूबर 4 , 2008 /आश्विन 12 , 1930

[भाग - खण्ड 3 (ii) ]

and Disciplinary Regulations viz. the LALA.I. (General Conditions of Service) Regulation , 1980 ; which were operative till 22-5-2003 and the same were replaced by the A.A.L. ( General Conditions of Service and Remuneration ofEmployees ) Regulations , 2003 which came into force w.e.f. 23-5-2003 and the I.A.A.I. ( Conduct , Discipline and Appeal) Regulations, 1987 were operative till 8-5-2003 and the same were substituted by the A.A.L. (Conduct , Discipline and Appeal) Regulations , 2003 which came into force from 9-5-2003, the allegations, therefore, that the provisions of the Industrial Employment (StandingOrders) Act, 1946 were applicable to the 1st Party and in view of the definition of the term employer under Section 2 (d) of thereof, the Ist party itself was the employer of the concerned workmen are not true. It further contended that thepresent reference has been made by the Government of India, Ministry of Labour, New Delhi under Section 10( 1 ) ofthe Act at the instance of the Bombay High Court, since the contract labourers/ concerned workmen were not employed by it, there was neither express nor implied contract of employment. Moreover , the intention of the legislature is further clear in giving restricted meaning to the definition of the word "workman " from the fact that even the employee employed; drawing wages and working at the premises is excluded as a class by virtue of the provisions of Section 2 (s ) and ( iv) of the Act since the condition of a person being a " workman " within the meaning ofdefinition is that , he should be employed to do the work in that industry . From the definition ofthe term 'workman' under Section 2 (s) of the Act the contract labour is excluded from it. It, therefore, denied that the concerned workmen are employed by it . 1st Party contended that the fringe benefits and facilities are provided to its regular workmen by virtue of bilateral senlements between the 1st Partyand the recognized Union from time to time and the said benefits are attached to the definite posi and the contract labourors employed by the coninausor did not hold post in its establishment and hence there cannot be comparison between two groups . The contractors fulfilling the eligibility criteria are only issued tender documents in specified tendering system and the contract is awarded after following the prescribed procedure on the ternis d conditions set out therein . Ist Party furtiver submitted that ifthe contract labourers/ concerned workmen did not get the statutory benefits for years togethe, as' alleged by the Union it should have taken necessary steps to redress their grievances and obtained the necessary statetory benefits for which the 1st Party cannot be blamed. Ist further contended that the regular workmen and the contract labourers do not fall in the same class and unfair labour practice provided under item 9 of the Fifth Schedule read with Section 2 (ra ) of the Act is not applicable to the facts of the case; as the contract labour is not a ' workman ' as defined under Section 2 ( s ) of the Act, apart from the faci that the Fifth Schedule inserted by the Industrial Disputes (Amendment) Act, 1982 cannot be enforced; as this the contractors were mere paper arrangement and most of theworkers had in fact been appointed by the officers and management of the 1st Party through those sham contractors and that was the reason why they had continued to remain in employment are not correct, Ist Party submits that the concerned workmen have been protected by the order of the High Court , 1st Party contended that the contractor has to fix the wage scales, wages, determine the conditions of service in consultation with the Union. Ist Party is not aware whether the Union has served a charter of demands on behalf of the contract labourers on the contractor . 1st Party submitted that the 2nd Party Union cannot claim for the contract labourers pay parity and the standardised conditions of service with those ofpermanent workmen . The allegations made by the 2nd, Party that , the concerned workmen had been thoroughlyand totally exploited are not true for the reasons averred hereinabove . It is denied by the 1st Party that, the exploitation continued, despite the fact those workers have beenperforming the very same , similar and identical duties and at par with the permanent workers ofthe 1st party and denies rest ofthe allegations made by the 2nd Party in this respect as regards the contractors and difference in the pay, standard benefits, etc, being extended to the permanent workmen and the concerned workmen for the reasons as stated hereinabove and reiterate that the concerned workmen are not entitled to claim th same from the 1st Party. Ist Party further contended that the Union did not take up the cause of the contract labourers / concerned worknen to claim the fringe benefits averred therein, for which it cannot find fault with the 1st Party and that the benefits averred by the Union cannot be extended to the contract labourers / concerned workmen as they are not its workmen . It is denied by the Ist Party that, the concerned workmen were given step -motherly treatment , they were not even extended the just and fair statutory benefits under the various labour laws by the 1st party, ist Party submitted that the provisions of Article 39 of the Constitusion of India accentuates the basic philosophy of idealistic socialism and the doctrine of " equal pay for equal work " is a concept which for the purpose of implementation requires complete and wholesome equality between two the groups , moreover contract labourers/ concerned workmen are not the workmen of the 1st Party for various reasons such as (i ) they were employed by the contractor,(ii) neither the place ofwork nor the location of personsworking is material for determining the relationship , (iii) no right and obligation ofdisbursement of wages exist, (iv) 1st Party has no control , supervision over their work, (v) 1st Party has right ofdetermining conditions ofservices exists, (vi ) Ist Party has no power to initiate disciplinary action against them . Ist Party also submitted that the provisions ofthe Industrial Employment ( Standing Orders) Act, 1947 are not applicable to the establishment ofthe Ist party by virtue ofthe provisions in the said Act itself and the employees ofthe Ist Party were governed by its Service

3631 G1/2008-14 5556

THE GAZETTE OF INDIA : FOBER 4,2008/ ASVINA 12,1939

[PART II - SEC . 3 ( ii ) ] Tribunal has not been empowered in this behall to

malatiie; was records and whit ation of various papers h paper records , to create

the impression 14 woramen emple

the allegations of work/ external work was is done by the concerned workmen and its supervision by the officials of the Ist Party in the manner as alleged. Ist Party further submitted that, all the departments are its essential and integral parts but Civil Maintenance is not its incidental part, the maintenance of the airport is essential but it is not a continuous function but it is one of the functions of the Ist Party and the allegations made by the 2nd Party in this respect are not true . Ist Party further submitted that, the continuous flow ofwater supply is essential to the function of the airport , for which the proper planning and execution of the same hasbeen and live plumbers and helpers carry on their work; as and when the complaints are received from the concerned section many times they have no any work which is of an amemmettent nature , the allegations in this respect that , the plumbers and helpers were on their feet practically for the whole day ete, etc. are also not true . 11 is also denied that the work carried out by the concernied workmen was a statutory friction and hence employment of contract labourers for the same was not permissible under the law . Section 12th it the Airports Authority of India , 1994 provides that it has inantage the airports , the civil enclaves and the aeron ::atical communication stations Samilarly Section 123 (a ) provides that, the 1st Party may plan, develop, construct and maintain runways , taxi ways . aprons and terminals and an illary buildings at airport and civil enclaves , it catum be construed as statutory obligations as alleged It is also denied by the Ist party that the employment of the contract workers concerned workmen for carrying out a function in the discharge of statutory obligations was illegal and the workinen thus employed would be deemed to be the workers of the principal employer i.e. Ist party and they were eligible to be absorbed and/or appointed as permanere employees of the 1st Party in view of decision rendered several judgments of the Apex Court such as Steel Authority of India vs National Union Waterfront workers and others reported in 2001 ( 7 ) S.C.C. P.l as well as in Secretary . Haryana State Electricity Roard vs II . Suresh reported m AIR 1999 S.C. 1160 ; BHEL Workers Association reported in AIR 1985 SC page 409 and J.B. Pant University case ( 2000 ) 87 FLR 7 had no waring to the fact :

adjudicate the industrial dispute relating to any matter specified in the Fifth Schedule . Ist Part , therefore , denied the allegations made by the 2nd Party regarding near labour practice, discrimination etc , etc. 1st Party further contended that the contract labourers/ concerned workanen perform repetitive work , they have not acquired any technical qualification in the trade and have been retained by it in view ofthe interim orders passed by the Hon'ble High Court in Writ Petitions, protecting their services pendency of the proceedings in the Court between them and the Ist Party. Ist Party further contended thai , the contractor pays atleast the statutory minimum wages under the Minimum Wages Act , 1948 and the question of wages by it, payable to regular workmen working in the establishment of the I st Party does not arise. Ist Party denied the allegations that the concerned workmen had been performing the duties of skilled nature and they had also achieved sufficient knowledge and experience by working for several years continuously still they were paid very much low wages than permanent workinen working with it . Ist Party contended that the contract tabourers concerned workmen are not covered under the definition of 'workmen' as defined under Section 2 ( s ) of the Act , and the Union ought to have taken up their cause against the contractors , if it represented them from the beginning , as alleged, in order to claim the statutory bencfits provided under various legislations . I st l'arty further contended that concerned workinen were employed by the contrelor who paid them wages and since they were not its workers as defined under Section 2( s ) of the Act , the quesянии conferring the status of pennanent workmen to the contract labourers/ concemed workmen does not arise and denied rest of the allegation with regard to practice of denying equal treatment ir:: ner of wages , allowances , over acilities and other benefits pany and denied for ust several years ... mouflage. Ist Party desig ! time wages b adopted by th that the one part of the Ist party was establi home ut

worknitl

ктер contractor "

sutory and that th

ructs lenders be

areיחייזימני did not pops

the Party further

ind ourn .

concerned workin

wanbay that the

a were list are deployed tor day ar Jay

med

area only of Termino rea

unen.

far as other concerned worksten

sicherence in fine Plumbers, Heipers/ hulda .. yed the day tanlas

maintenance of water supply line minal IC and extend

tune with the directions issue. ! by the Bombay High Court in the orderdated 16-12-2012 : Writ Petition No 78 012000 area ( CMD- II Sub. DivJV mot de . Ist Party dened it therefore denied the alle trous orade by the 2nd Parts 5557 भारत का राजपत्र : अक्तूबर 4, 2008/ आश्विन 12, 1930

[ भाग - खण्ड (ii ) ]

that the so called contractors who were engaged as intermediate changed from time to time was nothing but sham and bogus arrangement and it was a camouflage to deprivethepresent workmen covered in Writ petition No.78 of2000. The allegations made by the 2nd Party that the so called contractors had no role to play even in supply of labours and it was mere paper arrangement for routing the names and depriving the workmen concerned of their rightful wages and claims are without any basis and the same are hereby denied . 1st Party reiterated that contracts entered into with the contractors were legal, valid, fair and bonafide. It is, therefore, denied by the Ist Party that , the entire paper arrangement and the so called contracts were against the provisions of Section 23 and 27 of the Indian Contracts Act, 1872, and that itwas with a view to deprive the concerned workmen of their statutory benefits and the benefits ofpermanency which the concerned workmen were entitled to receive based on various legislations such as Provident Fund and Misc . Provisions Act, 1952, E.S.I. Acl , Payment of Bonus Act and Industrial Employment (Standing Orders) Act, 1946 are without any basis and the same are not true for the reasons averred hereinabove . Ist Party reiterated that the contractors were appointed in accordance with the prescribed rules even prior to 1998 and the contractors recruited the contract labourers / concerned workmen to carry out the jobs assigned to them by his supervisor. ist Party further submitted that the creation of posts was not sanctioned by the Competent Authority as the work is not of a perennial and permanent nature and hence there are no posts of regular workmen at Terminal 2C, it therefore , entered into contracts fromtime to time, in accordance with the prescribed procedure with contractors ; who executed the specific jobs provided in the contracts . The jobs performed by the contract labourers/ concerned workmen and those by the regular workmen were not necessarily the same . 1st Party further contended that the contract labourers/ concerned workmen do not fall in the class of the regular workmen and hence no an unequal treatment was meted out to the equals and that their said actions were against the principles ofequality guaranteed to every citizen of nation under Article 14 and 16 ofthe Constitution of India are not true . Ist Party further submitted that averments further made that the scope of work and the man- power to be deployed per day for the same was set out in the so called contracts which included existing water supply line , sluice valve and distribution system, attending various complaints in the buildingetc. do not convey clear cut meaning , apart trom the fact that it did not give corresponding provision in the contract and hence, it is not in a position to meet the same.

1st Party further submitted that the words such as 'in case of default ' ' other disciplinary control ' ' to do the maintenance work only ' , ' prior' etc , have been injected by the 2nd Party Union for the reasons best known to the 2nd Party. Ist party further contended that the contract labourers/concerned workmen are not subjected to the

medical examination/checkup by the authorized medical officer of the management , before being recruited by the contractor and it is therefore denied that there were occasions; that the workmen proposed to be employed through the so called contractors were required to undergo 10 medical examination/ checkup by its authorized Medical officer . It is denied by the 1st Party that the substantial part of the responsibility of the Airport Managerial Personnel was the supervision and control of the work being performed by the so called contract workers / concerned workmen. Ist Party further contended that the contracts between it and the contractors are ofa multifarious nature , depending on nature and requirements ofwork, since the contracts are ofa variety of nature ; the control of the management varies from contract to contract, therefore, it denied the allegations that the contract between the so called contractors and 1st party were always stereo-type and full and complete control was vested in the 1st party. 1st Party submitted that , whenever it enters into the contract with the contractor, be brings the man -power, as and when the contract period is over , the contractor transfers the contract labourers to other project . However, in this case the High Court has protected the services of the contract labourers at the request of the Union , pending the hearing oftheproceedings. Inspite ofbeing well aware of the ground realities in this regard, time and again, the allegations have been leveled that though the so called contractors went on changing and the earlier set of so called contractors was replaced by the fresh contractors , the workmen still continued to work on the establish of the Ist Party,which are not true . It is contended by the by the Ist party that the allegations that the Ist Party being Authority under Article 12ofthe Constitution of India, the discriminatory treatment meted out by them to the concerned workmen under the guise of employing them through the so called contractors was uncalled for and unjustified are not true . It is further contended by the Ist Party that , the Directive Principles of State Policy under the Constitution of India has no application to the facts of the case, since the contract labourers /concerned workmen were employed by the contractor, the question of indulging in any discrimination and giving fair service conditions and fair wages to the contract labourers without discrimination did not arise . It further contended and reiterated that no direct relationship can be established between it and the contract labourers / concerned workmen, it is denied that upon lifting of the veil, it could be seen that there was direct employer. employee relationship between the 1st Party/employer and the concerned workmen and the so called contractors, who were brought in picture was nothing but camouflage as alleged. It is further contended that , the allegations that, the engagement of the workmen on large scale under the label ofcontract labours was victimization of the concerned workmen and it was malafiede action on the part ofthe 1st Party employer in as much as the 1st Party was fully aware that all the workmen covered under the present reference 5558

[PART II-SEC . 3 (ii) ] THE GAZETTE OF INDIA : OCTOBER 4, 2008/ASVINA 12, 1930

were performing the duties ofregular, permanent , perennial , important and are of essential nate are without any basis and the same are not true . 1st Panther contended that, thecontractors were registered onde: the provision of the Contract Labour Act and they are/were having valid und proper licences for recruitment of contract labourers hence it is denied that the contractorse not registered under the provisions of Contract Lahou Regulation & Abolition) Act and did not have validoper licences for recruitment and engagenient of co labourers and they are also registered with the Public Works Departnicht , Central Public Works Department and the Public Sector Undertakings and the registration certificates are issued by the authorities of the said Department . It is contended by the 1st Party that, the allegations that the so called contractors themselves had no experience or knowledge ar skill or professional qualifications, etc. required to carry out jobs and to meet the requirements of the Ist Party and that on the other hand: the concerned workmen were having necessary skills, experience , qualifications , etc , to perform their respective duties are not true . It is submitted by the 1st Party that , the order of reference dated 20-3-2003 does not specify by naine " Kharve Ganpat Magan " but specifies the name as "Ganpath " at Serial No.9, working at Termuinal 2B and trot at Terrnimal 2C , in the said order of reference , the said contract labourers are shown as helpers /beldars but the Union has shown them as sewerman . Whereas at the end of paragraph 134 ofthe statement of claimat p . 17 . they are at Sr. Nus . 9 and 15 ; wherein they have been shown as helpers / beldars . The Union cannot enlarge the scope of the reference , by changing their designations . It further submitted that , in all the three shifts , there are two sewermen , one plumber and one helper in each shift . However, in the general shift , there is a sewerman only , hence the allegations that sewerman were deputed in all three shifts remind the clock for maintenance of choke up work are not correct , it further subitutted that the sewermen have to attend the work of maintenance as and when required for maintenance of the choke up work , the allegations therefore that they had to attend on a daily basis atleast ton times a day are not correct and the chauthber cleaning work is done as and when required , hence the allegations that the same was done on monthly basis is not estet the 10 ge line is cleaned by sewermanby the ssir meant for de papes hence it is not true thai tee lige was cleaned be sewermen hy entering into usamle everyth. water man fine and line are clamed as when required and not weary month as alleged. It contended that , thework done by everybody

(37) It is contenden she thei 16-11-1999, the Government et Irin, Maiste New Delhi has inter alia pred that the wages t al basic pay and dearness om paid rati category of regular en 3

establishment are to be paid to the contract labourers . Aggrieved by the said Circular 1st Party filed a writ petition in the Hon'ble High Court ofDelhi being Civil Writ Petition No.6540 of 1999 and the IHon'ble High Court ofDelhi by its order dated 22-11-2001 , gave the liberty to the parties to approach the Central Governinent ; in accordance with law for reconsideration of the matter , in view of the subsequent decision of the Supreme Court in Steel Authority of India (Supra ) representation dated 27-3-2002 was submitted to theJoint Secretary, Ministry of Civil Aviation , New Delhi who in turn issued an Ofice Memorandum dated 3-7-2002 tothe Ministry of Labour, Government of India , New Delhi, in this regard for review of the circular dated 16-11-1999 relating to the wages payable to the contract labourers . Board recommended to the Government of India that a part of its recommendations relating to the wages payable to the contract labourers indicated in the circular dated 16-11-1999 be treated as withdrawn ; as it had no powers to make such recommendation under the provisions of the Contract Labour Act and the Central Rules. In this regard theUnder Secretary to the Government of India . Ministry ofLabour, New Delhi issued a note, dated 24-2-2003 , to the Chief Labour Commissioner ( c ) , New Delhi , thus the circular dated 16-11-1999 based on the recommendations made bý the Board; relating to the wages payable to the contract labourers has no any force of law . Ist Party therefore submitted that, in view of the above position , the question of not paying the basic pay plus dearness allowance at the rate applicable to the lowest category of regular employees the to contract labourers'concerned workmen does not arise . Order dated 8-2-2000 was passed by the Hon'ble BombayHigh Court in Writ petition No. 78 of2000 , granting wages consisting of basic pay plus dearness allowance ; paid to the lowest category of regular employees to the contract labourers /concerned workmen . Management filed Notice of Motion No 79 of 2000 , praying for modification ofthe said order dated 8-2-2000 and the Division Bench of the Bombay High Court by its order dated 2-5-2000 held that it was premature to modify the said ad - interim order dated 8-2-2000, in view of the fact that the issue of paymenm of basic wages and dearness allowance payable to the contract labourers / concerned workmen, as paid to the lowest category of regolar employees was seized by Delhi High Court in Civil Writ Petition No.6540 of 1990 and the said Notice of Motion was dismissed as premature and later on , the Flon'ble Delhi High Court by its order dated 22-11-2001 quashed the impugned notification dated 16-11-1999 issued by the Central Government for the reasons given therein, giving the parties liberty to approach the Central Government , in accordance with law for reconsideration of the maner in view of the decision of the Supreme Court in Steel Authority of India Ltd. (Supra ) . Ist Party submits that in view of the said developments, Ist Party approached BombayHigh Court by taking out another Notice ofMotion being No. 169 of 2002 in Writ Petition No.78 of 2000 for modification of the said order dated 5559 भारत का राजपत्र : अक्तूबर 4, 2008/ आश्विन 12, 1930

[भाग II- खण्ड 3 (ii) ]

theAct . ist Party also submitted that this Hon'ble Tribunal cannot hold and declare that the contract labourers/ concerned workmen are direct employees of the Ist Party nor can pass any order directing the 1st Party to give status, equal wages , wages and consequential benefits and privileges of the permanent workmen, to the contract labourers / concerned workmen effective from any date, much less from the day/ date each one of them had completed continuous service of240 days , at par with the permanent workmen and pay them the arrears arising there from, with 18% compound interest since this Hon'ble Tribunal has no jurisdiction and authority to grant any relief, on account ofthe order of reference itself being non- est for the aforesaid reasons . ( It is further contended by the 1st Party that, this Hon'ble Tribunal cannot pass the order, pending hearing and final determination of this reference directing 1st Party to give all the benefits: applicable to its regular workmen , to all the said concem persons number 33 with immediate effect, as it would tantamount to granting the final relief, which cannot be done, unless the alleged industrial dispute is adjudicated on merits . The interim reliefshould not be the whole relief that the contract labourers may get , if they succeed finally and the question whether the contract labourers / concerned workmen are entitled to receive all the benefits applicable to the permanent workmen of the 1st Party, to all the 33 concerned workmen with immediate effect cannot be adjudicated by this Hon'ble Tribunal as the same has to be determinedby the Dy. Chief Labour Commissioner (c) as provided under the Central Rules .

(38). It is also submitted by the 1st Party that this Hon'ble Tribunal cannot pass the order , pending the hearing and final determination of the reference, directing the Ist party to pay wages consisting of basic wages plus dearness allowances paid to the lower category of regular employees doing the same workmen, as the contract labourers/ concemed workmen , to all the 33 concerned workmen since the order ofreference itself is null , void and bad in law; for the aforesaid reasons , ist Party further submitted without prejudice to the aforesaid reasons , that this prayer is already covered in paragraph 28 ( F ) of the Statement of Claim , hence its aforesaid reasons applies with equal force to this prayer ofthe 2nd Party also as the basic wages and dearness allowances constitute benefits. It is also reiterated by the 1st Party that, the question whether the work performed by the contract labourers is the same work as carried on by its permanent workmen cannot be adjudicated by this Hon'ble Tribunal but the same has to be determined by the Dy. Chief Labour Commissioner (C) under the Central Rules and hence , the Hon'ble Tribunal has no jurisdiction to adjudicate the said aspect of the dispute and the question of adjustment with the final determinate/outcome of the reference does not arise. Ist Party further contended that the 33 concerned workmen are not its workmen. The 2nd Party Union should have raised the demands against the contractors , who have 8-2-2000 which came up for hearing alongwith the said Writ Petition on 16-12-2002. Though the said Notice of Motion was pressed for the order, no order was passed; observing interalia that all contentions of parties are kept open to be agitated before the Industrial Tribunal hence the allegations made by the 2nd Party that the Notice of Motion was not pressed by the 1st Party are not true . In view ofthe above position the contract labourers/concerned workmen are thus not entitled to receive payment by way of interim relief, the wages equal to the basic and D.A. payable to the regular employees and hence, the said order dated8-2-2000 passed in Writ Petition No. 78 of2000 may be vacated, 1st Party submitted that the status quo is being maintained by virtue of the interim orders passed from time to time and last one dated 16-12-2002 passed by theHon'ble Bombay High Court in Writ Petition No.78 of 2000. The contract labourers /concerned workmen are therefore being continued. The contractors normally refuse to execute the contractual assignments with contract labourers appointed by the old contractors being continued. With great difficulty and persuasion , a few entered into the contracts with it , if the status quo is maintained indefinitely; definitely it will cause not only inconvenience, monetary loss , prejudice and hardship but also sufferings and agony, which cannot be compensated in terms of money. The allegations that protection was granted to the present set ofworkmen and ifthe same was continued, it will not cause any prejudice or hardship to the 1st Party in any manner whatsoever are without any basis and the same are not true for the reasons averred hereinabove. It is, therefore, submitted by the 1st Party that, the order dated 16-12-2002 passed in Writ Petition No.78 of2000 by the Hon'ble Bombay High Court granting protection of continuing the contract labourers may be vacated. The contract labourers / concerned workmen have been performing their duties as in the past as the work is of a routine nature . It is contended that the Hon'ble High Court has directed the 2nd Partyto apply to the concerned Industrial Tribunal for interim relief within a period of four weeks from the date of notice of reference , it submits that the Union/contract labourers are not entitled to any benefit in terms ofinterim relief for the aforesaid reasons . Ist Party submits that, considering the tenor of the terms of the contracts reached between the 1st Party and the respective contractors , the Hon'ble Tribunal cannot hold and declare that, the same were sham and bogus and were camouflage deprive to the contract labourers/ concerned workmen of the benefits available to permanent workmen of Ist Party. 1st Party further submitted that, this Hon'ble Tribunal cannot go into the said aspect as the order of reference dated 20-3-2003 itself is null , void and bad in law; as the Government of India did not exercise the powers vested in itunder Section 10( 1 ) of the Act, before referring the alleged industrial dispute specified in the order of reference for adjudication and the industrial dispute espoused by the Union does not fall within the purview of Section 2( k) of 5560

THE GAZETTE OF INDIA: OKTOBER 4,2008 /ASVINA 12 , 1930

[PART 11 - SB: 3 ( 1 ) ] not even heen imp leaded in this reference and the necessary and proper partics ; order of reference itself is prima- facie null , void and bad in law and hence this Tribunal cannot pass the order pending the hearing and final disposal of the reference, directing Ist Party to give all the statutory benefits to the said 33 concemed workmen under The Employees ' Provident Funds and Miscellaneous provisions Act, 1952, The Employees ' State Insurance Act , 1948, The Payment of Bonus Act , 1965 as well as leave facilities and other statutory benefits given to the regular workmen forthwith for the aforesaid reasons. It is further submitted, without prejudice to the aforesaid averments, that, the question whether all the 33 concerned workmen are entitled to receive all the statutory benefits as well as the leave facilities and other statutory benefits given to the permanent workmen of the Ist Party forthwith , contot be adjudicated by this Hon'ble Tribunal as the same has to be determined by the Dy . Chief Labour Commissioner ( C ) as provided under the C'entral Rules and hence , this Hon'ble Tribunal has no jurisdiction to adjudicate the said aspects ofthe dispute . Ist Party further contended that the status quo has to be maintained till the interim application is decided by this Hon'ble Tribunal . In case the Hon'ble Tribunal decides the interim application against the L'nion, the question of maintain status - quo , pending the hearing and final determination of the reference in respect of contract labourers / concerned workmen does not arise and in these circumstances , the interim orders dated 8-2-2000 and 16-12-2002 passed in Writ Petition No.78 of 2000 be vacated . Ist Party further contended that , the 2nd Party Union/concerned workmen are not entitled to any tehet hence, this Hon'ble Tribunal cannot pass any oruer granting any other , better or consequential relief as deemed fit as this Hon'ble Tribunal has no authority to grant any relief, and 2rid Party is not entitled to costs alsu and contended that the order of reference Jated 20-3-2003 made by the Government of India , Ministry of Labour, New Delhi at the behest ofthe Hon'ble Fligh Court is bad in law. for the aforesaid reasons, hence it prayed that, the order of reference dated 20-3-2003 be rejected.

objections are irrelevam mischievous and not sustainable in law and in facts and have been made with the intention ofdelaying, defeating and denying the rightful claim ofthe concerned workmen . 2nd Party comended that it is an admitted position that the concerned workmen have been fighting for permanency for last so many years in various Courts and forums and ist Party has been forcedto protect the services of the present workmen only upon the orders of the Court , t , non titrther submitted that , in the course ofthe multifarious pouceedings in the various courts . including the proceedings in the High Court at the hearing and disposal of the Writ i'ctition No.78 of 2000 , the Ist Party has failed to raise any of the legal objections and submissions made herein and hence the same be struck off their defence and the 1st Party be estopped from raising the same at this late stage and contended that this Hon'ble Tribunal has no jurisdiction to go into the preliminary objections raised by the 1st party being bound by the orders of the Bombay High Court in Wru Petition No.78 of 2000 and 1683 of 1999 tad the order of reference of the appropriate Government . It is contended by the 2nd Party Union that at the time ot setring of the writ petition. Ist Partyhad consented to the order directing the Government to refer the matter to this Hon'ble Tribunal and hence is estopped from raising thus issue now before this Hon'ble Tribunal . 2nd Party denind the submissions of the 1st Party thatthe order of reference being made on the direction of the Court is in contros ention of the law. 2nd Party contended that , it had een raising this demand of perttianency since years and had given detailed written submissions to the Cloverzunent with regard to the question of abolition wherein the aim and hogus nature of the contracts had been also deal with. 2nd Party further contended that , during the pendency of the writ petitionat had raised a demand with the ist Party on 14th June , 2002 regarding the sham and bogus nature of the contract employing those 33 and other workers and to be declared treated as permanent employees of the 1st party with retrospective effect from their respective dates on which they started working with the 1st party and thereafter 11 sent the same to the Deputy Labour Commissioner for conciliation along with the justification of their demands. The Government of India . Ministry of Labour , New Dellu vide its order dated 20-3-2003 reterred the same i.c. the present reference, for adjudication . It is also contended by the 2nd Party that the naines of these and other workers were mentioned in the sand relerence , however , due to the present proceedings , the con deleted the names of the present 33 workmen from the said proceedings . An application for transfer of the said proceedings to this Tribunal has been made so that , both the references can be heard together. Union has also filed a statement of claim on 4-8-2003 before this Tribunal and the Ist Party las been served with a copy of the sure but the Ist Party has failed to file its reply. Hence. Ist Party's contention that (39) 2nd Party Union filed rejoinder , at Exhibit 11-16、 for the purpose of dealing with some of the new contentions raised by the 1st Party stating that it reiterates all the contentions and averrnents made in then State of Claim as if the same have been set out specifically and mentioned herein and that it should not be taken as any admission on the part of the 2nd Party of the alleganons and contentions of the Ist Party's written staturment dated 29th December, 2003 , each and every contention madein the said written statement which is contrary to the Statement of Claim , except for the typographical error . is hereby denied most emphatically, jointly and severally. unless specifically admitted herinbelow . As regards preliminary objection raised by the 1st Party in connection with the maintainability of the claim Union and decidingit as a preliminary issue , 2nd Party contended that , the said the only material on the bists of which the Governnient 5561 [भाग [ ]-खण्ड 3 (ii ) ]

भारत का राजपत्र : अक्तूबर 4, 2008/आश्विन 12 , 1930

cameto the conclusion was the order of the Hon'ble Bombay High Court is incorrect on the record and its own knowledge. It also contended by the Union that, it took out the Chamber Summons Nos . 142 of2002 in Writ Petition No.78 of2000 for amendment of the Petition and bringing the demand notice on record and praying for reference of the demands for adjudication which Summons was allowed by the Hon'ble High Court and the Ist Party did not raise any objection to the same being allowed. Hence , the plea of sham and bogus had been raised before the Hon'ble High Court and the High Court applied its mind on the particular facts of the case before referring the same for adjudication . 2nd Party further submitted that, without prejudice to the above contentions , that even assuming whilst denying that the demand had not been raised, it is well settled principle of law that the High Court has the powers to refer any dispute for adjudication in exercise of its powers under Article 226 of the Constitution of India .

(40) With reference to the allegations regarding non joinder ofthe parties , 2nd Party contended that , the alleged contractors keep changing, it had made the then alleged contractors party to the proceedings in W.P. No.78 of2000 but none of them appeared despite being served, no reply was filed by them and hence they are presumed to have admitted the case of the Petitioners and hence their non- joinder is not bad in law and admittedly the said alleged contractors keep on changing hence it would not be feasible to make them the parties to the reference , hence the objection of the Ist Party in this regard is not sustainable in law. Second Party Union contended that all the workmen in the reference are its members , hence Union is entitledto represent them in the present proceedings and the 1st Party has not raised the said objection in any of the previous proceedings taken out by the Union and the same have been made with the mischievous intention of delaying the proceedings. 2nd Party contended that, the Hon'ble Delhi High Court in Writ Petition No. 6540 of 2001 directed the Petitioner to pursue its remedies with the concerned Government, in respect of the circular / letter, which reads as under:

"So far as the circular dated 16-11-1999 issued by the Government of India , Ministry of Labour is concerned the parties are given the liberty to approach the Central Government in accordance with the law for reconsideration of the matter in view of the subsequent decision of the Supreme Court in Steel Authority of India Ltd. (Supra ) . "

correctness of the same . The circular dated 16-11-1999 issued by the Ministry of Labour is still subsisting and the Ministry of Civil Aviation has no jurisdiction to quash the same. Union has not been given any notice of the same and the Ist party is put to the strict proof of the alleged dated 3-7-2002 and the contents thereof, in any case the said circular has not been quashed. Union further stated that, ist party had filed Notice of Motion No. 169 of2002 in W.P. No. 78 of 2000 falsely stating that, the circular had been struck down by the Delhi High Court and hence prayed for vacation of the interim orders . 2nd Party filed its reply brining the correct facts on record, however, at the time of hearing 1st party did not press the prayers in its ' NoticeofMotion and hence it is now barred fromdoingso. It is not true that the contentions of the motion are kept open as contended by the Ist Party. 2nd Party further contended that the Ist party has deliberately and willfully made false statement that the said circular is not in force 10 avoid paying the wages to the workers as per the directions. of the Government . Ir is contended by the 2nd Party Union that , the circular refused abolition of the contract labour system on the sole condition of payment ofwages equal to Basic and DA paid to the lowest category of regular workmen and 1st Party has willfully and deliberately disobeyed the same and the orders of the Hon'ble High Court in Writ Petition No. 78 of 2000 dated 8-2-2000 and 2-5-2000 which were confirmed by the final judgment ofthe Hon'ble High Court on 16-12-2002 and is now trying to mislead this Tribunal regarding the enforceability of the said circular in order to deprive some poor workers of their rightful wages . 2nd Party stated that the Ist Party filed Special Leave Petition ( Civil ) No. 5383 of2003 in the Hon'ble Supreme Court of India challenging the judgment of the Hon'ble Bombay High Court in the present matter which is pendingand no interim relief is granted against the present proceedings or payment of wages. 2nd Party contended that, in fact the preliminary objections regarding the jurisdiction of the Hon'ble High Court , in exercise of its powers under Article 226 of the Constitution of India, in directing the Government to make a reference has been taken by the tst Party in its SLP and said fact has been deliberately and willfully suppressed from this Hon'ble Tribunal . 2nd Party admitted the typographically mistake with regard to the definition of " Air Traffic Service " instead of"Traffic Services " mentioned in para 4 of the Statement ofClaim and year of commissioning ofTerminal IA being 1992 instead of 1986 as mentioned in paragraph 5 of the Statement of Claim . 2nd Party denied the allegations of the Ist Party that the concerned workmen are notdoing the same and similar work as permanent workmen and that their work is of routine and repetitive nature and state ibat ; the same is false as per the records of the 1st party the!!

and it stared thar , the concemed workmen bave th recasite skills and are perkrming the same, similk dertical dranies as performed by the permanent wo deployed in Terminats IB and U -A . Union admitier It is also submitted by the Union that, the present workinen are not covered under the said notification which was struck down by the Hon'ble Delhi Iligh Court and the 1st party has misrepresented the order of the Hon bie Delhi High Court and the judgment of the Apex Court in SAIL. The order of the Bombay High Court order is the correct interpretation of SAIL and in any case , this Han blee Tribunal is bound by the same and cannot go into 5562

THE GAZETTE OF INDIA : OCTOBER 4,2008/ ASVINA 12 , 1930

[PART I-Sec. 3 ( i ) ]

Airport Authority of India?

(2A) If yes , since when !

From the date ofreference i..e. 20-3-.2003 Yes

(3) Whether the workuren involved in the Reference are entitled to get status and benefit alongwith privileges as of permanent workmen as claimed?

(3A) If yes , since when ?

From 20-3-2003.

Yes

(4) Whether workmen învolved in the reference are entitled to get directions from this Court to Airport Authority of India to pay them wages and other consequential benelits?

(4A) If yes , since whien'.

From 20-3-2003 .

Yes

(5) Whether workmen involved in the reference are entitled to get the wages on thebasis of equal work and equal pay?

Yes

(6) Whether workmen involved in the reference are entitled to get benefits applicable to permanent employees ?

(6A) Is reference bad in law

(7) What order?

As perOrder

below

REASONS:

ISSUE No. 64 :

contentions of the 1st party made in paragraphs 32 and 46 that the DDG is done twice a week and denied all other submissions and contentions in the said paragraph which are contrary to the submissions and averments made by the 2nd Party. 2nd Party admitted the contentions of the Ist Party trade by in paragraphs 33 and 47 of the written statement that, the Airport Manager maintains a record of complaints even during the time when the Engincer - in- charge is on duty . 2nd Party also admitted the averment of the 1st party made in paragraph 47 of the written statement that , Register for Civil Complaints and Requisition Register are one and the same. 2nd Party denied the contentions of the 1st party made in paragraphs 51 and 98 of its written staternetit thai . the contracts are awarded as per rules framed and put the Ist party to the strict proof there ! and production of the said rules with documents and tenders received and the contracts awarded. 2nd Party demed the allegations regarding payment of ex - gratia special allowance to the concerned workinen and contended that, they are being paid the minimum wages and denied that they are not dong the same , similar and identical work as the permanent workers and bence are not entitled to parity inwages . Regarding the discrepancy in the designarica of workmen shown as flelpers/ Beldars in the order of Reference as being shown as Sewermen as pointed wat hy the 1st Party in the Statement of Claim 2nd Party subenitted that, while these workmen had been appointed as I telpers / Beldars , they are now heing made to do the work of Sewerhen and this change in their work conditions by the 1st party has been reflected in the statement of cluse and the 1st Party submission in this respect in the written statement is mischievous and misleading . 2nd Party " enied that it has in any manner tried to enlarge the scope of the present reference . 2nd Party further contended that , the issnes raised by it in its statement of claim are gen. טזאחיו the terms of the reference and this Hon'ble Tribuna ! san go into the same and the same are important and necessary in order to fully determine the issues before this Tribusal and all the contentions , objections , averments containedin the Ist Party's written statement dated 29th December , 2003 are technical objections and it is put to the strict proof thereof and the 2nd Party filed an allidavin in support of its rejoinder at Exhibit ! 17.

41 In view of the above pleadings , Issues were framed on 11-11-2007 , at 1 : xhibit 53 , and on the application of the Ist Party dated 5-2-2008 the said lssues were recasted, at hiba 69 which i answer as under:

Issues

Findings

( 1 ) Whether the Comract between Aripon Authority Badia and Respondents Yes ' ontractors , is sleum and bogus and is camouflage ?

Yes

(2 ) Whether the workmen insolved in the reference should he declared as permukaan eniployees of the

42. In the Statement Claim Union has made out the casethat, 35 workmen are jnvolved in this reference .Out of them two have left the work and 33 remains , These workme are working in " civil maintenance work " which is an integral part of regular, permanent and perennial activities of the AirportAuthority. According to Union duties carried out by the concerned workmen are of such a nature that , the same can never be severable from main activities carried out by the Airport Authority of India ( which will hereinafter be called as "Authority " ) at various . Airports in India. According to Union services rendered by the workers irrespective of their category are of important nature because of continuous flow of passengers and cargo.As far as international passengers are concerned , the nature of duties entrusted to all the workers , including the concerned workmen are ot vital importance as the international passengers carry the impression about our country based on the functions of the Airports . Domestic tertainal building sumatedat Santacruz has 2 Terminals which are known as Terminal A. from where the flights of Indian Airlines and alliance Airlines take off and land , and the other terminal is known as Terminal IB from where flights 5563 भारत का राजपत्र : अक्तूबर 4, 2008/आश्विन 12 , 1930

[भाग II- खण्ड 3 (ii ) ]

them Authority cannot run Airport , The workers involved inthe reference and in Writ Petition No.78 of 2000 are continuously working with 1st Party though contractors are changed. So it is prayed that , they be declared as permanent employees of the Authority and directions be given to theAuthority to treat them as its regular employees and give them benefits attached to the employees of the Authority.

ofprivate airlines such as Jet Airlines, Sahara Airlines etc. take off and land . Terminal IB was constructed prior to 1972 and the permanent employees are carrying out functions ofcivil maintenance of said Terminal . According toUnion in Terminal IB there are 28 permanent workers who are working out the function of civil maintenance of the said Terminal building, whereas Terminal LA which is known as "New Domestic Terminal Complex " which was commissioned in the year 1992, where only contract employees are working and one permanent employee is working on it . 15 Workmen out of them , involved in the reference, whowere also party in the Writ Petition No.78 of 2000, who were carrying out the work of Plumbing , Carpentry andmasonary and some of them are also working as Helpers . Their work is of continuous nature . They are provided with instruments , materials , apparatus etc. e.g hack-saw blades , drill bits , screws , nails , hinges , trower belts , L- Drops, Hooks , Door Closers , lamination sheets , aluminum frames of "T " and " L " shapes and of different sizes, ply-wood, fevicol , mirrors , glass , sliding doors , aluminum girders, doors and window frames etc. as required for carpentry work and articles like sand , cement (white and grey), tiles ,water proofing compound, sodium silicate, araldite, marbles , granites , cutting blades (for files ) etc. required for masonary work and elbos was of different sizes , "T" ofdifferent sizes , nipples ofdifferent sizes , Unions of different sizes, Gj . pipes of different sizes, Cj pipes of different sizes , C - I (T) of different sizes , C - I Bond of different size , C-I Nani Tapes ofdifferent sizes. I.W.C. Urinal tanks . urinal snreaders wash basins , angle cock, pillar cock, bib cock (P.V.C. ) (C.P.Brass ), P.V.C. connector , C.P. brass connector, urinal waste pipe , and others as described in paragraph 4, at page 4 of the Statement of Claim filed at Exhibit U/ 3B , are supplied to the workers of the Civil Maintenance and other articles as mentioned at the bottom ofpara 4 at page 4 ofthe Statement of Claim are also supplied toPlumbers ,

44. This is disputed by the ist Party by filing exhaustive reply at Exhibit M- / 11 by raising number of contentions . Amongst them, one of it , is maintainability of the reference and jurisdiction of this Tribunal over the subject matter. According to Authority, order of reference dated20-3-2003 made by the Government of India, Ministry ofLabour , New Delhi to this Tribunal for adjudication of the industrial dispute specified in the Schedule itself is not tenable. In the reference it is recited that, " Central Government was of the opinion that , an industrial dispute existed between the employers in relation to the Management of the Airport Authority of India and their workmen in respect of the subject matter specified in the Schedule".According to Authority , Hon'ble High Court in Writ Petition No.78 of 2000 directed the Central Governmentto make a reference for adjudication is itself, defective and Hon'ble High Court cannot pass such an order and Central Government cannot make such a reference. Even wording usedby the Division Bench of our Hon'ble High Court in its order dated 16-12-2002 is only reproduced by the Central Government while making a reference. It reveals that , the Central Government has not applied its mind which is required to be applied under Section 10 ofthe Industrial Disputes Act , 1947. According to Authority Central Government must form an opinion that, there exists industrial dispute and so it can refer to the Tribunal for adjudication . Unless and until opinion is formed by the Central Government under Section 10 of Industrial Disputes Act , 1947 relying on report of conciliation authority formed under Section 10 of Industrial Disputes Act, 1947 to whom aggrieved party ought to have approached and said machinery ought to have applied its mind after hearing both and submit failure report in that respect to Central Government on it. But here in this case, no such exercise nor attempts have been made by the Union. Union did not approach Labour Commissioner( C) No opportunity was given to the Labour Commissioner (C) to resolve the dispute and see whether Labour Commissioner (C) can resolve it and if not can submit failure report as happens generally . Even no opportunity was given to the Authority to make out its case regarding dispute referred by the Division Bench of the Hon'ble High Court about the subject matter referred in the Reference. Accordingto Authority the dispute raised by the Union was raised for the first time directly before the Hon'ble High Court and the Hon'ble High Court under Article 226 ofthe Constitution of India made reference which cannot make a reference . Besides , Central Government had no 43.Accordingto Union the work ofthose workers is supervised by the officer of the Authority of the level of Junior Engineer . The workmen employed at Terminal [A are required to work in 4 shifts and some of them are required to work only in general shift . That the workers employed in the category of Carpenters , masons and Plumbers are required to work in General Shift. All these workers are issued necessary entry passes by the Authority. All of them were required to sign attendance register kept in the respective offices . Entire work is being carried out on the premises of theAirport Authority. Union claimed that none of the representative of the so called Contractors supervise their work . The so called Contractors mentioned at page 6 and 7 of the Statement ofClaim are not genuine contractors . They are sham , artificial , bogus and mere name lenders . It is paper arrangement made by the Authorityto deprive the claim of the workers involved in the reference. According to Union work done by these workers is of permanent and perennial nature and without

3631 Gl/2008-15 5564

THE GAZETTE OF INDIA : OCTOBER 4, 2008 /ASVINA 12. 1930

[PART 1 SEC. Sit ) ) material before itto satisfy that , an industrial dispute existed

between the parties to exercise its powers under Section 10( 1 ) ofthe Industrial Disputes Act, 1947. Discretion of the Central Government to make an order of reference is dependent on its satisfaction that an industrial dispute either exists or apprehended . The opinion formed by the Government is only on the basis of the directions given by theHon'ble High Court in Writ Petition No.78 of 2000. In fact it is not the opinion of the Central Government which has formed after taking exercise under Section 10 ( 1 ) of the Industrial Disputes Act, 1947 as there was no material before the Central Government for coming to the conclusion that , industrial dispute existed which the condition precedent in forming an opinion as contemplated under Section 10 ( 1 ) ofthe Industrial Disputes Act , 1947. It has clearly acıed in clear contravention of the provisions of Section 10 ( 1 ) of the Industrial Disputes Act, 1947. Hence it is submitted that it is not a reference at all under Section 10 ( 1 ) of the Industrial Disputes Act , 1947. According to Authority Central Government acted in clcar contravention of the provisions of Section 10( 1 ) ofthe Industrial Disputes Act , 1947 and has taken decision only on the basis of the directions issued by the Division Bench of the Hon'ble High Court. Besides , stand is taken by the Authority that , there should be dispute between the Authority and its employees. Admittedly employees involved in the reference are not at all employees of the 1st Party. Unless and they are employees ofthe 1st party, they cannot be workmen as defined under Section 2 (s ) of the Industrial Disputes Act , 1947. Since the concerned workmen are not their workmen as defined under Section 2 (s) of the Industrial Disputes Act, 1947 and its employees, their dispute cannot be called as industrial dispute. As per Section 2 (k ) of the Industrial Disputes Act , 1947 , since none of the concerned workmen are the employees of the Authority and even it is not the case of the linion that they are employees of the Authority , Union corsot nje dispute on their behalf. Besides it is contended thee , the bra has no proper representation t raise this dupute, Notagle permanent employee of Authority support the mousineel dispute ofthe Union. Since basically it is not the dispute of the employees of the

Authority, the dispuveterred here for adjudication cannot be treated as , an "industrial cispute and

thedispute. According authority , Writ Petition No.621 of 1998 was initially filed by 14 employees who were working at Terminal 2C who prayed to continue them in the employment of the 1st part and prayed to direct the Respondents No. 3 and 1 to investigate their relationship with the 1st Party, under Section 10 of the Contract labour Act. At the stage of admission the Hon'ble High Court passed ad-interim orders in terms of prayer clause ( e) i e. to continue workmen concerned in the writ petition till disposal of the said Writ Petition and thereafter by order dated22-7-1998 they were protected till the disposal of the Writ Petition . It is further stated that . Union can raise dispute on issue of Notification under Section 10 ( 1 ) of the Contract Labour ( Regulation and Abolition ) Act prohibiting employment ofcontract labourers or otherwise as laiddown in Clause ( 5) of para 122 of the judgment passed by the Apex Court in case of Steel Authority of India Ltd. ws National Union Water Front Workers published in 2001 111 CLR 349 SC . However , there was decision of Government of India to prohibit employment of contract labourers in the said works . Authority was aggrieved by the part of the said circular where Authority was asked to provide wages consisting ofbasic pay plus dearness allowances paid to the lowest category of regular employees . tobe paid concerned employees . Hence Authority filed Writ Petition in Hon'ble Delhi High Court . In that Hon'ble Delhi High Court while deciding Writ Petition No.6540 of 1999 by its order dated 22-11-2001 gave the liberty to the parties to approach the Central Government , in accordance with the law, for reconsideration of the matter on that point , in view of the subsequent decision of the Apes Court . According to the Authority considering this suggestion , a representation was made to the Government of India. relating to the wages payable to the Contract Labourers who in turn indicated that. the circular dated 16-11-1990 relating to the wages payable to the contract labourers be treated as withdrawn observing that, it had no power to make such recommendations under the provisions of the Contract Labour Act and Central Rules and such type of instructions were issued by the Under Secretary to the Government of India , Ministry of Labour , New Delhi to the General Manager. Labour Commissioner , Delhi . On that ledia , Kerala iled Laters Airport Employees

cannot decide it. It is also skiede

L against the said Pater ! Appeal in Dethi

Union must show that the iratusi di

dgment and order dofthe Hon'ble Delhi

High Court which was A No. 536 of 2002 in by the sufficient number of employees wh

VW No.640 of 1949 the Division Bench ofthe the Union and there is rapport of subatunt

the Authority or is supported by proper ...

dhi High Court de dated 24-1-2002 permanent employeeses the fat pan , Aardin

Against that judgment observing that , there .....

Authority, not a single employee ut

High Court one Mr. an order passed by

supported the dispute. Even it is not s'est

450 2007أي in the 5. Sivaraman filed S

supported the dispute, how many stopard

dr . Apex Court by its Apex Court which

and whether they are members ofthe b

Athority, Tribunal onder dated 31-1-2003

cannot decide whether the contract labour in any

establishment should be contistued abolished or not , 11 is

the prerogative of the Government of India to consider and list of the members of the Union is produced nor copy of resolution passed in the meeting the Union is produced to show that, a particular number wi workers are supporting [भाग II- खण्ड 3( ii ) ]

भारत का राजपत्र : अक्तूबर 4, 2008/आश्विन 12 , 1930

decide said point . It is submitted that, this Tribunal has no jurisdiction and this Tribunal cannot decide whether employees working under contract labour can continue in the establishment of the Authority or not. According to Authority, since employees involved in the reference are not the employees of the Authority they cannot be represented through this Union . It is also contended that , since the Central Government acted in clear contravention ofSection 10( 1) of the Industrial Disputes Act , 1947 and had taken decision only on the basis of the directions of theDivisionBench ofHon'ble Bombay High Court made a reference, without application ofmind and without following the procedure as laid down under Section 10( 1 ) of the Industrial Disputes Act, 1947 does not require to consider and deserve to reject.

(45) So on the basis of these vital contentions we bave to decide this issue as a preliminary issue or as a main issue which goes to the root of the case as well help in deciding the powers of this Tribunal .

(46) As far as jurisdiction of this Tribunal is concerned we have to see, what is the subject- matter of the reference? Subject - matter ofthe reference is :

" 1. Whether the contract between Airport Authority of India and the respondents contractors , is a sha and bogus and is a camouflage to deprive the workers concerned in the petition ofbenefits available to permanent workmen of Airport Authority of India?

2. Whether the workers concerned (list attached) in the petition should be declared as permanent workers ofAirport Authority of India?

3. What are the wages and consequential benefitsto be paid to the workers concerned in the petition? " As per subject-matter in the reference, Government of India, Ministry of Labour , New Delhi, directed this Tribunal to see whether contract between Airport Authority of India and respective contractors is sham , bogus and camouflage to deprive the workers concerned in the reference and to see whether employees involved in the reference can be declared as permanent employees of Authority and what benefits can be given to them . So as faras subject-matter referred in the reference, is the subject- matter regarding status of the employees involved in the reference who are admittedly working for the Authority. In this reference Government of India , Ministry of Labour, NewDelhi , did not refer to see whether , employees ofthe contractors can be utilized in the establishment of the Authority? This Tribunal is not supposed to decide whether there is prohibition of the employment of the contract labour and it is just and proper, as presumed by the Authority's Advocate? This Court is not asked to decide whether Contract Labour can be prohibited or otherwise in the establishment of the Authority? Definitely it is neither prerogative of this Tribunal nor subject- matter of the reference to decide whether contract labour can be used in

5565 Authority since it is not within the jurisdiction of this Tribunal to decide that aspect and it is not even asked by the Central Government to this Tribunal to decide that point. Before this Tribunal , Authority has raised the question of locus standi of the Government of India , Labour Ministry. Presuming that , Central Government ask this Tribunal to decide whether contract labour can be used in Authority which did not ask this Tribunal to decide. However , in my considered view the question of non- abolition of labour contract or abolition of contract labour inAuthority is not raised by Central Government nor it ask this Tribunal to decide whether abolition of contract labour isjust and legal?

(47) The contention of the Ist Party Authority is that, reference is made mechanically by the government of Indiaa, Ministry of Labour , New Delhi and it has neither discussed on the demand of the Union nor case of the Authority on it , as theren was no material before Government to from its opinion either to send the reference or not. Besides , it is ground of the Authority that , since provisions ofIndustrial Disputes Act , 1947 are not followed, Hon'ble High Court cannot ask Central Govemment to send reference to this Tribunal . For that if we peruse the order of the Hon'ble High Court which is annexed by the Union with its Statement ofClaim. In said order while making referenceHon'ble Division referredjudgment ofApex Court in Steel Authority of India , page 122 ( 1) ( a )( 2 ) para 6 and after making reference of the order in Writ Petition No.917 of 1999 dated 9-10-2001 more precisely referring para 26(i to iii) and para 28 of it Hon'ble High Court order to make a reference to the Government of India for sending reference to this Tribunal for adjudication . The wording of the reference is :

" 1. Whether the contract between Airport Authority of India and the respondents contractors , is a sham and bogus and is a camouflage to deprive the workers concerned in the petition ofbenefits available topermanent workmen of Airport Authority of India?

2. Whether the workers concerned ( list attached) in the petition should be declared as permanent workers ofAirport Authority of India?

3. What are the wages and consequential benefits to be paid to the workers concerned in the petition?" In the said order the Hon'ble High Court accepted the position of appropriate Government as the Central Government which was agreed to by both. Here at this juncture the case made out by the Union , that, Authority cannot challenge the decision of making reference of Hon'ble High Court since it agreed to make a reference has no meaning. Wording of the order reveals that, both had agreed for the appropriate Government as the Central Government and not for making reference or for any other purpose. Besides , Hon'ble High Court in its order kept all points open stating that :

5566

THE GAZETTE OF INDIA : OCTOBER 4 , 2008/ ASVINA 12, 1930

[PART II- SEC. 3 ( ii )] "All contentions of the parties are kept open to be agitated before the Industrial tibunal . "

the Superior Court of the Hon'ble High Court , I have to observe that , reference is maintainable in the present form and not bad in law.

(48 ) Authority has challenged the reference on number of other grounds including on ground that , Union has no proper representation. The reference does not complywith the provisions of Section 10( 1 ) of the Industrial Disputes Act , 1947. According to Authority, reference is nonest . Dispute is not between the Authority and its employees which is expected as per Section 2( k ) of the Industrial Disputes Act. 1947. Accordingto Authority Section 2( k) of the Industrial Disputes Act, 1947 covers disputes or differences between eniployers and employers, or between employers and workmen , or between workinen and workmen , which is connected with the employment or non -employment or the terms of the employment or with the conditions of labour , of any person. According to πις if we read the definition of Section 2( k ) it reveals that:

"Section 2 ( k) : Industrial dispute means , any dispute or difference between employers and employers , or between employers and workmen , or between workmen and workmen , which is connected with the employment or non - employment or the terms of employment or with the conditions of labour, of any person ."

No doubt Ist portion of the definition covers any dispute or differences between employers and employers . or between eniployers and workmen or between workmen and workmen. It is nowhere stated that, dispute must be between employer and its workmen as tried to convance by the Ist Party's Advocate Mr. Patil. On number of occasions Ld . Advocate for Authority Mr. Patil referred this definition i.e. Section 2 ( k ) of the Industrial Disputes Act, 1947 and submitted that since it is not a dispute between the Authority and its Workmen or it is not supported by the worknice of the Authority it cannotbe called as industrial dispute Even in Written Statement he spent number of pages on it saying that , since it is not a dispute between the Authority and its workmen, it cannot be called industrial dispute under Section 2 (k ) of the Industrial Disputes Act. 1917. But according to me last portion of the definition which is important and which reveals that , dispute must be of employer and its workinen . At the cost repetition last portion of the definition which is connected with the employment or non - employment or the terms of the employment or with the conditions of labour of any person . At the most Union hasto show that employees involved in the reference are covered under the definition of employee . The evidence brought on record and stand taken reveals that , employees involved in reference are working wah the First Party . No doubt Authority isdenying their status as its employees . But admittedly they are working for Authority is fact . Nature of their relation will be decided in due course . Besides That means , all points which ar , connected with the subject-matter of the reference are kept open hy the Hon'ble High Court and on the basis of that Authority has challenged the decision of the He ble High Court before this Tribunal of making referue. But according to Authority cannot challenge the decision of Hon'ble High Court of making of reference to bunal before this Tribunal . If at all the Authority was not happy with the order of the Hon'ble High Court , it ought to have approached the superior Court on the decision of making reference by the Hon'ble High Court to this Tribunal But according to me Authority has decided to challenge suid which in my opinion is estopped or cannot ask this Tribunal to decide the decision of the Hon'ble High Court in asking Central Government to make a reference to this Tribunal . So on that count this Court cannot make any comment about decision of reference and it cannot set aside and the subject - matter sent by the Government of India , Ministry of Labour , New Delhi . Another point raised by the Authority that, Central Goverrunent did not apply its mind which was expected under Section 10 of the Industrial Disputes Act , 1947 to make a reference. It is also comended by the Authority that, Union cannot directly approach 10 High Court and pray to make a reference as happened in this case and cited decision ofGujarat Electricity Board vs Hind Mazdoor Sabha reported in 1995(87 ) JK p . 267 SC where reference was made on the joint application of the parties . Authority contended that , Union directly cannot approach Hon'ble High Court and pray to make a reference which is not just and proper . According to Authority Union cannot raise for the first time dispute directly in High Court under Article 136 of the Constitution of India and flon'ble High Court cannot send it unless provisions of Industrial DisputesAct , 1947 are followed . Again here when Hon'ble High Court has decided to make a reference and when Central Government has decided to make a reference and when Central Governnient. Labour Ministry. New Delhi , has made it in my considered view this Tribunal cannot go into that aspect and consider the question raisedby the Authority about making reference by Central Government as per the directions of the Hon'ble figh Court . It at all Ausionty was not happy with the decision of the Hon'ble Ingan ca decon taken by Central Covernment of making reference, it oughiro have approacis. Apex Court as happened in the case of Citharat Electricity Board vs Hind Mazzioura ( pra ). Derinitely order passed by the Hon'ble High Court is binting to all . It mean that , by that, this Tribunal cannot consider the grievances of the Authority on this point and cannos gaasite the reference on that ground alone According t reference sent by the Government of bedi Ma Labour , New Delhi , under directions given High Court when is not distertadie anyA 5567 [ भाग - खण्ड 3 ( ii) ]

भारत का राजपत्र : अक्तूबर 4, 2008/आश्विन 12, 1930

resolution which is legal and just which permits the Union to make reference . Here employees who are involved in the reference says that, they are the members of the Union . It is to be noted that their status is not challenged by the Authority saying that, they are not members of the Union andwhen Union represents them one has to take it in the liberal wayto say that, they have power to ask the Union to fight for them as they are of weaker section. The Authority has not shown any provision where specific number of the members of the Union is expected which required to support to such a resolution to make a reference. Cases referred by the Authority's Advocate shows that, even a member of the Union can even make reference as happened in case of Workmen of Indian Express, 1970 11 LLJ page 132 ( 137) SC. So there no specific number is required to support the resolution empowering the Union to make reference. According to me for want ofsupport of particular number of workmen/ members of the Union , the Union cannotbe restrained in espousing the cause and make a reference.

(50) On the basis of the lengthy pleadings of both and on the strength of application given by Ist Party dated5-2-2008 issues which were framed at Exhibit 53 were recasted at Exhibit 69. With number of contentions of the Ist Party it has taken contention that, this reference is not maintainable since this Tribunal has nojurisdiction . Instead of framing separate issue on that on each count I framed issue in the following form which reads as follows:

"Is reference bad in law?" admittedly employees in the reference are working for the Ist Party.Authority is not disputing it and admitting that , they are working for authority but as contract workers .But the fact is that, they are working for the Authority. It is the case of the Authority that, they are working through Contractors. Hon'ble High Court directed the Central Government to send the reference to this Tribunal for adjudication asking this Tribunal to decide , " whether contract between the Airport Authority of India and the Respondents Contractors is sham and bogus ? " Even on the point of, designation of " Respondents -Contractors" Ld. Advocate for the Authority submits that, Contractors are not made party in the reference and as such reference is badfor non -joinder of necessary party. But it is important to note that, Hon'ble High Court has asked Central Government to make reference using word "regarding contract between Respondents-Contractors and Authority" . In the reference there is no status to any party as respondents as worded in the reference. In the reference there is status to the parties as ist Party and the 2nd Party. So ifwe apply the analogy pointed out by the Authorities Advocate that, Respondents/ Contractors are not made party in the reference has no meaning , as it is not expected byHon'ble High Court to make Contractors as party in the reference since they were already respondent in Writ Petition No.78 of 2000. Besides it is not the case of the Authority that , there were no contractors , as a party in the Writ Petition and Hon'ble High Court asked the Central Government to make a reference regarding that contract which Union claim as sham , bogus and camouflage. This Court hasto decide only whether the said contracts , which are referred in the reference and which were before the Hon'ble High Court in Writ Petition No.78 of 2000 while making reference is sham and bogus?

Whichwill cover maintainability of the reference as well as jurisdiction ofthis Tribunal over the subject- matter. As this issue goes to the root ofthe case it is taken first for decision and discussion . So I answer this issue in the affirmative.

ISSUENO. 1 :

(49) Authority has made much capital of the proper representation by the members of the Union for making reference relying on citations published in 1961 [ I LLJ page 436 SC while deciding the case of Bombay Union of Journalists vs. The "Hindu " Bombay. He also refers to the citation published in 1958 I LLJ page 500 SC in case of Workman ofDimakuchi Tea Estate vs. Dimakuch Tea Estate and citation published in 1970 11 LLJ page 132 SC in case of Workmen of Indian Express Newspaper Pvt . Ltd. vs. The Management of Indian Express Newspaper Pvt. Ltd. as well as citation published in 1965 I LLJ page 95 in case of Nellai Cotton Mills vs. Labour Court Madurai . He also referred citations published in 2005 11 LLJ page 850 of Guwahati High Court in deciding Indian Oil Corp. Ltd.vs C.G.T.L. , Guwahati and citation published in 1977 LL ) p . 377 in deciding case of National Asphalt Products Construction Co. vs. N.M. Kothari . In all these citations no specific yard stick is laid on the number of employees which is expected to support to espouse the cause to count for to make a reference or to pass the resolution to make reference who are on the membership ofthe Union . Even no any provision is pointed out of Industrial Disputes Act, 1947to show how much numbers of members are required to pass such

(50A) This issue is concerned with alleged Contractor and the employees involved in the reference. As stated above the employees involved in the reference are claiming that they are working with the Authority but according to the Authority, they are working with the Authority as a contract workers. According to Union actually they are doing work of the permanent workmen of the Authority. Since they have worked for more than 240 days in each year they are entitled to be confirmed. They are doing work ofperennial and permanent nature which is the work ofthe Authority. Civil maintenance work is attended by these concerned workmen. Without them Authority cannot function its activities of running airport smoothly and do its activities in trafficking passengers and cargos . Work of civilmaintenance is a must with the help of that work Authority is up-keeping buildings neat , clean and tidy. With the help of these concerned workmen , toilets and bath- rooms are kept neat, tidy and clean . The work of cleanliness is done with the help of these concerned workmen . Water supply is also kept in flow and continuous 5568

THE GAZETTE OF INDIA : OCTOBER 4 , 2008/ ASVINA 12, 1930

[PART II-SEC . 3 ( ii) ) which help in cleaning the toilets and bath - rooms. It also supply water to the passengers as well as alliance services which are concerned with the trafficking of goods . and passengers. Without the services of these persons , Airports cannot be run and services cannot be made effective and it cannot availed to the passengers without help ofthese workers . So it is prayed that , instead ofkeeping them on the list of Contractors or stamping them as "contract workers " they be regularized and benefit of wages and other benefits which are attached to the permanent employees of the Authority who are duing same type of work be given to them. Whereas case of the Authority is that , they are not employees of the Authority. They are not qualified to post . They were not interviewed nor selected by the Authority . There is no vacancy against their post so that they can be regularized . Since they are not filledin by following recruitment process i.e. by advertising post in the newspaper or calling names from the Employment Exchange , taking interviews , asking them to appear for trade test they cannot be regularized and treated at par with the employees of the Ist Party. If it is done it will lay new way to enter into employment and needed will be deprived who are waiting for opportunity.

( 51 ) Union had also made out the case that, 33 employees involved in the reference , out of them 13 are working at Terminal IA , 18 of Terminal 2C and 2 on outside area of the Terminal in the post of Plumber , Helpers and Beldar. They are doing work which is done by the permanent employees of that type . The work done by them is ofperennial nature. They are performing duties not only as that of permanent and perennial nature but also doing duties of essential nature . They are working in 4 shifts , shifts are controlled by Manager Engineering Muster is maintained . Attendance is noted. Salaries are paid as per attendance. However , facilities of permanent employees like leave , salary, bonus are not offered to these workmen. Accordingto the Union , though there are number of Contractors through whom these workers are working and contractor are changed from time and again but these workers remain the same . There were 9 contractors who are mere name- lenders sown on record but actually names of the employees are not changed . It itself shows that , it is paper arrangement done by the 1st Party just to show that , these workers are contract workers and not employees of the Authority . It is also the case of the Union that , all those workers are working at the place of the Authority . Their entry and exist is controlled by the Authority. Their work is also controlled by Authority. Their payments are made by the Authority. However , they are not getting benefits as is given to the permanent employees who are working or attending same type ofwork .

(52 ) To show that the concerned workmen are doing the work of permanent and perennial nature and work like permanent employees and must get protection , benefit and must be observed as employees of the Authority. Union

examined its witnesses viz . Prabhat Kumar Bandhopadya at Exhibit U / 70, who on oath states that, he joined Ist party as a Draftsman and worked in the Engineering Department . His deposition is on limited point regarding nature ofduties carried out by these workmen involved in the reference. According to him duties attended by these workmen are of permanent , perennial and of regular nature. He states that duties are integral part of the various activities of the Authorities . According to him without said duties the Authority cannot carry out its operations. He states that , civil maintenance work in different areas e.g. Terminal IA, IB , IIA , B & C and in Cargo complex and al Terminal IB and II and Cargo complex where permanent employees are working. They are doing duties as done by permanent workers . The supervision of the said work is made by the officers of the said Department. He states that, for such type of work , done by permanent workers , they are getting wages in the range of Rs.20,000 10 Rs . 40,000 per month whereas these workers are getting Rs . 4to 8 thousand per month . Permanent workers are also getting benefit of H.R.A .. Bonus , LTA whereas these concerned workers are not getting any benefit of such types. Ile states that , these workers are working in 3 shitis and also in general shift . In the cross this witness states that, he deposes as a witness of the union and fight as a representative of the Union . Ife states that , he is aware that, permanent employees have to pass Trade Test for appointment in the establishment of the Authority and no worker, involved in the reference , have given such a trade test. He also admits that, he hats not visited site ofcontract workers . Then Union examined Pushpa Gopalankrishnan at Exhibit U /71 who is working with workman involved in the reference . He states that. he is working in civil maintenance work which is imegral part of the regular and permanent activities of the 1st party According to him services rendered by these workers is of most important nature because of trafficking passengers and cargo . According to him , domestic terminal at Santacruz is havitig largest traffic in India and there is constant flow of passengers and cargo. He states that , Union made representation to the Government to abolish contract labour systemby filing Writ peution No.621 01 1998 and 1683 of 1999, and during pending the decision of the Writ petitions, Hon'ble High Court protected these employees According to him , earlier 18 workmen were carrying out the work of civil maintenance of Terminal II B while it was functioning and then shifted to carry out work of civil maintenance of Terminal II -C and now are agiun shiited to Terminal 11 3. He states that , the work done by them is of continuous, permanent and perenniul nature . He states that , instrument like materials , apparatus are supplied, including Ilack saw, blades , drill bites, screws, nails , hinges , tower bolts , etc. as per the nature ofwork and tiles , water proofing compound, sodium silicate and other things are also supplied by the Authority to attend the work of repairs . For plumbing also necessary articles are supplied and with the help of that 5569 [भाग II- खण्ड 3 (ii) ]

भारत का राजपत्र: अक्तूबर 4, 2008/आश्विन 12 , 1930

of checking BMC pipe line is also done by him . He states that, they supply water for buildings attached to Terminal II A, II B , & II C. He states that, there work is supervised and controlled by Assistant Engineer and CMD II . He states that, attendance is also marked by Assistant Engineer . He states that, supervision and control is exercised by Assistant Engineer . He states that, his work is under control and supervision of the civil maintenance department of Terminal II which is of perennial, regular , permanent and continuous nature . Maintenance of the Airport is essential and continuous job of work and without it , the Airport Authority cannot operate the Airport and attend flights of various airlines and provide services to the passengers. He states that, work is never checked by the contractors or their representatives and they are directly under the control and supervision of the officers of the Authority. In the cross he admits that , he has no appointment order nor he was interviewed and passed technical examination of plumber. He also admits that, other helpers are also not having appointment orders . He states that, he has no idea whether Government of India refused to discontinue Contract Labour system in plumbing , masonry and carpentry in the establishment of the Authority. He admits that, Union never complained about contractors and complained that , their work is not checked by the contractors. He denies that, Contractor has to decide what type of payment is to be made to these Contractors . He denies that , Contractors which are mentioned by the Authority have engaged these concerned workers . Then Union examined Vashistwah Yadav at U 73 who is also working as a Plumber at Terminal LA at Santacruz alongwith 11 others..He states that, he alongwith 11 others is working at Santacruz and doing the work which is integral part of the regular, permanent and perennial activities ofthe Authority. He states that, the duties carried out by these workers are as per the directions and instructions given by the officers of the Authority who check their work, attendance and work attended by them. According to him work attendedby them is important to run airport and without that work , Authority cannot run the Airport and provide services to the passengers. He states that , at Terminal I B there are around 26 permanent workmen who are carrying out the work of civil maintenance . According to him, same type of work is done by his colleagues who are paid less than the permanent workers . According to him, said work is ofregular , permanent and perennial nature . Instrument are supplied by the Authority with the help of said instrument and materials they are doing that work and they are working on the place of the Authority. They are working for the Authority and Authority is benefitedby their work. Their work is never stopped and they were never asked not to report on duty for want of work . The work done by him which he is doing with his colleagues is important and without that . Authority cannot maintain the Airport in proper shape and offer services to passenge Thecontractors shown are bogus Contractors. They never theseworkers are attending said work and maintaining flow of water as well as keep the premises clean and tidy. According to him, these workers are getting low salary though they are doing work of permanent nature and the workwhich is attended by permanent employees . He states that, Contractors shown are not genuine contractors . They are changed but list of the workers is the same. These workers are engaged in the work of pennanent nature and doing work under the supervision of the Management. Their attendance is marked . Their salary is paid as per their attendance and as such they are to be treated as regular employees of the 1st Party. In the cross he admits that , he has no appointment order issuedby the Authority. He admits that, he is working as a contract worker but actually working with Ist Party and under the supervision of the of officers of the 1st Party. He admits that , Union never complained in Writ Petition No.78 of2000 that, the contract is sham and bogus . He admits that , workers working with them are qualified to work on which they are working .He admits that, workers working with them are qualified to work on which they are working. He admits that, Contractors were party in the Writ Petition . He states that, Contract was introduced by the Authority to deprive these workers to claim permanency and the benefit of the work which they are doing like permanent workers . He admits that, Union never approached in Writ Petition to direct Contractorsto regularize their services. He also admits that, no relief was sought from the contractors by approaching Conciliation Authority. He denies that, contracts are job contractors . According to him , Contractors are labour contractors. He made out the case that , Assistant Manager prepare the wage bills as mentioned in para 22 of his affidavit and accordingly payments are made . Then Union examined Laxman Vithal Mahale at U- 72 who states that , he is working with the 1st party as a Plumber and is looking after day to day maintenance of water supply line at Terminal 11 and external area of ( CMD II Sub.Div.IV ) alongwith other workmen involved in the reference and 2 permanent workmen and he is doing the work of regular , perennial and permanent nature . He states that , without that work, Authority cannot run its activities and upkeep the airports. He also states that , the union approached the Central Government to abolish the labour contract in that area. He states that , he is working on Terminal II, Apron side and city side area of that Terminal and other buildings situated within the premises of the Airport belonging to the Airport Authority of India and supplying adequate water supply. He states that , area is attended by one ofthe plumbers i.e. he himself and 3 Beldars . Out ofthem, two are permanent and are the employees of the 1st Party. According to him , the area on which he is working include Apron area , main floor site , water supply for all Airlines, Online maintenance building, Sahar Police Station , Pump House, Oberoi Flight Kitchen Air Canteen , Plants I and II , Power House I & II , Project office, Petrol Pump , ground service, department traffic , department offices etc. Work $570

THE GAZETTE OF INDIA : OCTOBER 4,2008/ ASVINA 12, 1930

[PART 11- SEC . 3 (ii ) ] =

supervise their work and check it . In the cross he states that , he has no appointment order of the Authority nor was interviewed by the Authority. He denies that , representative of the Contractors are supervising theirwork. He states that, work is supervised by the officers of the Ist party. He states that, payment is made by the officers of the 1st party. Against that, Ist party Authority examined its witness by name Jai Prakash Mahesh Yadav at Exhibit M1-86 who was Assistant Manager ( E ) ( Civil ) . He states that, he joined 1 1999 as a Junior Engineer and now he is still working at Terminal II. He states that, Authority entered intoOperation Management and Development Agreement on4-4-2006 with M/ s . Mumbai International Airport Pvt . Ltd. (which will be hereinafter referred to as "MIAL " ) having its registered office at Chhatrpati Shivaji International Airport, 1st floor , Terminal I- B , Santacruz (E) ,Mumbai 400 099.As per the letter dated 2-5-2006 issued by the Authority to MIAL, the effective date of the agreement is 3-5-2006 on the date on which the possession oftheAirport was given by the Authority to MIAL for its operation , maintenance , development , constructions , upgradation , modernization , designing , financing . management , etc. for a period of 30 years . According to him as a result of that, the authority is now not concerned with the Chhatrpatti Shivaji International Airport and the functioning of it. He states that , the employees on the concerned work were deployed by the contractor for day- to-day maintenance of the water supply in the area and they are doing other maintenance work. The demand ofthe Union to abolish Labour Contract in civil maintenance is rejectedby the Government of India by circular dated 16-11-1999. The same is not challenged by the Union and now Union cannot pray to abolish the Labour Contract in civilmaintenance and ask authorities to regularize workers workingwith the contractors . By circular dated 16-11-1999 Government of India decided not to prohibit the employment ofthe contract labour in the job of plumbing , masonry and carpentry at their establishment at Chhatrapati Shivaji International Airport. The Writ filed by the Union inchallenging the decision ofthe Government of India, not to prohibit the contract labourers in the job of plumbing , masonry and carpentry at its establishment of CSI Airport on which Hon'ble High Court has not passed any order and as such , the said circular dated 16-11-1999 became final . According to him as per that , the Authority protected the services of the employees engaged on contract basis in that era and since the Government of India decided not to prohibit the employment of contract labour in that era and take services of the contract labourers , he states that, contract labourers are legal. He states that they are supervised by the contractors. Payment is made by the contractors. He denies that , there is supervision by the officers of the Ist Party and payment is made by the Authority as per the work done by the contract workers . According to him, concerned workers are carrying on work under the instructions of the contractors and not of the

Authority.He denies that , the work done by the workers is of integral , perennial and permanent nature and that , Authority cannot work without them and offer facilities to the passengers . He states that , the Authority merely maintains the record in respect of the categories ofcontract labour deployed by the contractors for the effective payments to the contractors . He denies that , supervision is done by the officers of the Authority and it is checked by it. He denies that , the muster roll is maintained by the officers of the Authority. He states that the Authority is not concerned with the leave application or control of the contract labourers . Jie also states that Authority is not concerned with the payment of the said workers of the contractors . The concerned workers working on the post ofplumbers , masonry and carpentry as well as Helpers and Beldars are required to fulfill job requirements before they are appointed by the Authority . Since none of the concerned workers have fulfilled the said requirements they cannot be regularized . Since there is no sanction to fill post, the Authority cannot consider them to regularize. He states that, Contractors are genuine and contracts have signed before the officer of the Authority. After entering into Labour Contracts with the Labour Contractors , said work is given to them . In the cross he states period of contracts and he referred to the contract of 2001. He admits that, he is not concerned with the contracts . He admits that, page 8 of the bunch of documents dated 13-2-2008 are documents concerned with the Department , however, he cannot comment on those. lle is unable to comment on the documents produced by the Union with list dated 25-2-2008. He admits that, Mahale and Perumal are working prior to his joining in 1999. He admits that, tenders are called before accepting the contracts . He admits that . details are supplied to the contractors before calling the tenders. He also admits that , condition of acceptance of the contract is conveyed to the Contractors . He admits that , there is no separate list regarding work which is to be done by permanent employees and work which is to be done by the Contract workers. He admits that , though contractors are changed these two workers are continued . He adınits that, water supply is essential and it is of continuous nature . He admits that, water is supplied to other alliance airlines also . He admits that , work of department never stops. He admits that, services ofthese two workers viz . Mahale and Perumal who are employees involved in the reference are utilized for that purpose. He admits that, contract of Mis. Reena Enterprises dated 6-4-2001 does not provide exact area covered. He admits that , condition laid down by M/ s . Intercon in its letter dated 27-9-2008 , is beyond scope of contract . He admits that, without valid licence contract cannot be allowed . He also admits that , he has not seen any licence from any contractors during his tenure . He also admits that , contractor was visiting day to day work ofthe workmen involved in the reference . He admits that , payment is made before him . He admits that, he counter- signs the payments . He admits that. name, designation 5571 [[ भाग- खण्ड (ii) ]

भारत का राजपत्र : अक्तूबर 4 , 2008 /मश्विन12 , 1930

working with these 12 workmen at Terminal LA. He again says that, no permanent workmen is working on Terminal IA. He admits that , 13 workers are attending civil maintenance work. All those workers are employees of contractors . He admits that, civil maintenance work at Terminal 1B is attended by permanent employees .He admits that, they are transferred from Terminal IB to IA. He states that, his services are not transferred still he is employee of theAuthority. He states that, MIAL is making payment to the contractors after transfer ofAirport to MIAL as per the contract dated 3-5-2006. He also admits that these 12 employees are also not transferred to MIAL and payment is not made by MIAL. He admits that , the contract pemaining to 12 employees between Authority and Vini Enterprises does not bear the names those 12 employees. When contract dated 28-2-2003 is shown to him which also pertain to those 12 employees it also does not bear the names of those 12 employees . He admits that, the record likeDaily Dedicated Group ( which hereinafter is called as DDG,) register is not maintained . He admits that , DDG register reflects what type of work is attended by which workman. He is unable to comment on page 64 to 66 documents produced by the Union on 17-11-2005 . He is alsounable to comment on pages 220 to 331 ofdocuments produced by the Union with the list dated 17-11-2005. He admits that , the said original document does not bear signature of the contractor . He admits that, he is Incharge ofTerminal IB ofcivil maintenance department. He admits that , 12 employees involved in the reference are attending Terminal IA of its civil maintenance work . He admits that , civil maintenance work includes plumbing work, masonry and carpentrywork also. He gives procedure in what way complaints are attended. According to him , complaints received from various department which are referred to Senior Manager Civil who decides to which Sub -Division it is to be assigned. Then same are forwarded to the concerned contractors who will attend to the said complaints. Said contractors are called on phone who attend on their calls. He admits that, no such a record is maintained of calling contractors and his attendance on the complaints . He admits that, he has not seen certificates ofregistration ofthe Authority or licence obtained by the Contractors. He states that, there is no such licence produced in the proceedings since it is with the contractors . He in unable to state whether , said posts were ever advertised or proper procedure was followed for recruitment ofthese concerned workmen . He admits that, he never interviewed permanent employees. He admits that, permanent employees are also working as masonry. plumbers and carpenters . Then Management examined Vinay Kumar Tamrakar at Exhibit ML/ 88. He states that ,the is working as Assistant Manager ( Engg - Civil ) at CSI Airport,Mumbai . He states that , 18 employees involved in the reference were never appointed by the Authority. According to him , Terminal 11B was not functioning till 2-5-2006 except for Haj Pilgrims and arrival . According to him and payment is mentioned in the wages register. He is unable to state whether same type of wage rules are followed in thepayment of permanent workers . He admits that, for issuing Identity Card Police verification is required. He admits that, he has not interviewed any ofthe employees working in his department . Then Management examined itswitness Vishwesh Ravindranath Mule at Exhibit M1/87 who states that, he is working as Assistant Manager (Engineer Civil ) at Chhatrapati Shivaji International Airport, Mumbai, (CSIA).He is working there since from 8-2-2005. He states that,he is not knowing anything about saidprior tothat period. He states that, he is deposing on the basis ofthe record maintained by the Authority. He states that , Authority entered into Operation Management and Development Agreement on 4-4-2006 with M/s . Mumbai International Airport Pvt. Ltd. having its registered office at Chhatarapati Shivaji International Airport, Ist floor , Terminal I -B, Santacruz ( E) ,Mumbai -400 099. As per the letter dated2-5-2006 issued by the Authority to MIAL , the effective date ofthe agreement is 3-5-2006 on the date on which the possession of the Airport was given by the Authority to MIAL for its operation , maintenance, development , constructions , upgradation, modernization , designing, financing, management, etc. for a period of30 years. According to him as a result of that , the authorityis not concerned with the Chhatrpati Shivaji International Airport and the functioning of it . He states that, those, 15 concerned employees are not employees of the Authority and theywere never employed by the Ist party, hence is not aware about their designations etc. He states that , 12 employees are working at Terminal 1A in civil maintenance which are ofcontractors . He states that, duties performed by the contract labourers have nothing to do with the main functions of the airport . He states that , no permanent workmen is appointed in civil maintenance department since inception of the operation of Terminal IA for lack of sanction of the post of the competent authority. According to him workmen involved in the reference are not technically qualified in their trade. However , they are deployed by contractors and they are doing work under the instructions ofthe contractor who has to maintain civil complaints register maintainedby CMD . He states that, comparison can be made in respect ofthe civil maintenance workcarried out at Terminal IA with Terminal IIA. 18 at Chhatrapati Shivaji International Airport as the nature of the work carried out by them varied from complain to complaint . It is denied that contract workers are entitled to get wages and benefits as are given to the permanent employees . He denies that , the contract workers in the reference are requiredto regularize in service. According to him , since workers involved in the reference are working under the control of the contractors and since they are not appointed by the Authority, they cannot be regularized as prayed by the Union . In the cross he states that , he is deposing about 12 employees working at Terminal LA in civil maintenance work. He admits that, even permanent employees are

363101/2008-16 5572-

THE GAZETTE OF INDIA : OCTOBER 4 , 2008/ ASVINA 12 , 1930

[PART 11-SEC . 3 (ji ) ] 18 employees involved in the reference were initially employed at Terminal II B and on commissioning of Terminal II C they were shifted to Terminal IIC. He states that , Authority maintained attendance book for the purpose of payment of the contract workers . He states that , when these 18 workers are attending work, Junior Engineer used to supervise them . This witness states that , he is concemed to Terminal II C and 17 employees involved in the reference . Healso admits that , concerned 18 workmen involved in the reference were shifted to Terminal IIC . He admits that register maintained by Pushpan does not bear signature of the Contractor at any place . He admits that he used to sign the register in some places . He explains that , he signs to certify the work done by the workers . He states that , as soon as the complaints are lodged he used to call the contractors to attend it or through labour contracts to attend it. He has no evidence on that point of calling contractors and contractors attending the complaints . He admits that, he was doing the work of entering the complaints and the work done by the concerned workman . He also admits that he used to check the said work done by the workers . He admits that , besides 17 other job contract workers , these are also working there . He admits that, there is no signature of the Contractors. He admits that , day to day work is part ofcivil maintenance work of Terminal IIB and Terminal II C. He also admits that , he has not seen licences with Intercon and D'Souza Construction Co. He admits that , Authority used to maintain record to make payment to the contractors. He admits that , he has not seen contracts of M / s Rusy Wadia and Profesco. The Management examined Dr. Santa Prasana Choudhry at Exhibit MI/ 84 and Ashok Kumar Malik at ExhibitML/ 90 . Evidence of Dr. Choudhry is on technical point and about transfer of Airport to MIAL . Whereas the evidence of Malik is also of technical type ie . on the point of sanction of post where he states that there is no sanction of post . Besides this Authority request to read deposition ofDr. S.P. Choudhry recorded in Reference No. 44 of 2003 al Exhibit 103 and of Malik Exhibit 110 be read in this reference. So this is the oral evidence led by both parties in support oftheir respective cases i.c. on the case of contract labours.

avoid inconvenience and delay. Still by these applications dated 5-2-2008 and 13-2-2008 documents were demanded considering the application filed by the Union and reply given by the Authority lastly Court passed orders observing that, sufficient opportunity is given to both and still it did not utilized it and produced documents and observed that both to show custody and importance of the documents on which Court will draw inference . Now both have to show that , documents demanded are possessed by other side and it is custodian of it . If both succeed in showing that , these documents are relevant , important and in custody of other side , Court will draw inference. However , at the stage of final arguments both were heard and number of documents were referred by both ofthen . Meanwhile Union filed number of agreements of1998-99, 2000-2002 and Constitution ofUnion with list at Exhibit 176 and at Exhibit U/ 2 ] respectively.Against that, Management filed number of documents at Exhibit M-1/28, in the form of Xerox copy of the correspondence of forwarding letter as mentioned in the list . Besides , Management filed Xerox copies of a number letters at Exhibit M 65 , Exhibit M 76 from Serial No. 1 to Sr. No. 8 , including copy of agreement alleged to have been entered in to between Authority and Contractor copy of terms and conditions of contract , copy of vouchers, copy of work order etc: Besides , there is one complaint register which is in original form. Said complaint register shows that, the same is attended to by the workers involved in the reference maintained by the officers of the Authority and certified by the officer ofthe Authority on behalfof the Management i.e.Authority. As far as this original complaint register is concerned, some of the documerits are produced , in the original form , by the Union along other documents . However, Authority object that type of production saying that, one has to see how these originals are with Union when custody of original documents ought to have been with the Authority? Whereas Union's Advocate Shri Kulkarni , replied that , in the Evidence Act source of information or source of document is not material but the evidential value of the document is material one. After alt, both have not cited any relevant law or any case law in support of their respective contentions . However , the fact is that original is produced by the Union in a number of forms. Some are on the letter heads of the Authority .At the beginning the Authority was denying existence ofthe documents . Even initially Authority was saying that. Xerox copies of the documents of which original ought to have been with the Authority but are not with it , are filed by the Union and those are fabricated and cannot be relied upon . However , no specific case is made out by the Authorities and pointed out, which document or portion of the document is fabricated and which copy of the document is not the copy ofthe original . Even it is not pointed out what is the change made in the documents produced in the Court and what was original of it? Authorities tried to give number (53 ) Besides this both demanded documents froin each others by filing applications dated 5-2-2008 and 13-2-2008 prayed to rely on the copies of the documents produced by them in that context . After hearing both , order was passed on said application on 5-2-2008 and 13-2-2008 observing that, both are aware of the demand of the documents from each other. It was also observed thai , they know which documents are demanded by other side and still it is pertinent to note that , most of the documents are not produced by each of them. It was also observed that, since reference is to be disposed off in time schedule given by the Hon'ble High Court , Court did not want to waste its time on it and asked parties to produce the documents. Even my predecessor gave opportunity to both to produce documents which are available with them to of excuses on it saying that . since these documents are 5573 [ भाग - खण्ड 3(ii) ]

भारत का राजपत्र : अक्तूबर 4, 2008/ आश्विन 12, 1930

workers are the contract workers and not the -workers of the Authority. No doubt said burden is not properly discharged by Authority. At the same time, burden was on the Union to show that, these are the Authority workers and not ofthe Contractor workers . But negative burden that those are not contract workers is not at all expected from the Union to discharge it. On the contrary positive burden is expected to prove which is initially on the Authority i.e, the employees involved in the reference are the employees of the Contractors is on the Authority.

stolen by the Union and Xerox copies are produced, originals of it must be with the Union. In fact it is the Authority who has to produce the originals to show the Xerox copies are not copies of it which Union have produced. All this was going on between both . From the records it appears that, Union succeeded in obtaining documents from the Authorities . Even it is not denied by the Union . No theft case appears filed by the Authority about alleged theft of documents . Documents which are on the letter -head ofthe Authority which are in Xerox form and since those are not admitted by the Authority alleging that they are fabricated, but it is not proved which is fabricated portion of it and no specific case is made out on it, in my considered view, we have to presume that the documents brought on record have evidential value and can be relied in the evidence, Union has produced those documents with list at Exhibit U 29, U 31 , U 90 A, U 92, U 93 . Documents regarding complaint book of the workmen working on Electricity Maintenance Division are produced after referring to MW 2 with Exhibit U 89. Union also produced Constitution of it at Exhibit U - 21 and receipt of membership of it with list at Exhibit U- 22. Union also produced Complaint Book at Exhibit U/29 of Civil Maintenance Department workmen . Most of the documents are on the letter heads ofthe Authority.

(54) Against that Management has produced documents wiin list at Exhibit M-28, with list at Exhibit M-65 , M/81 , M - 85, M - 101 . Authority also filed original Agreements of 1998-99 , 2000-2002 executed and entered into between Authority and Contractor with list at Exhibit 176. So documents produced by both are not seriously challenged by both of them except saying that documents cannot be relied upon. However , looking the documents produced , and looking to nature of the documents producedbythe concerned authorities , 1 have to conclude that, those documents are concerned with the employees involved in the reference.

(55) So this is the evidence led by both. By this evidence Union tried to point out that employees involved in the reference are working for Management . They are under the control of the management . They are supervised by the Management, through their officers and they are paid by the Management . The claim of the Union is that, there is no contractor actually and these employees are working directly under the control of the Management. As far as existence of the contractor from the date of the reference, is concern we find, there is no contractor in existence from the date of reference . Even prior to the date ofthe reference, there were contract shown on record, but the existence of that contractor is not proved by the Management , except producing the documents of contract, In fact it was the Management who could have called the Contractors in support of their case and ought to show that , there was contractor and those workers were the contractor workers and not the workers of the Authority . In fact burden is on the Authority to show that , those

(56) Initially Management was saying that , workers: involved in the reference are not concerned with them. They are not supervised by the officers of the Authority. Even initially it was saying that , they are not paid by the Authority. But later on i.e. as the case progressed we noted the development in the attitude and approach of the Authority which go on admitting that they were supervised by the Authority. Their attendance was recorded. Their workwas supervised by the officers ofthe Authority .Even Management started saying that , after the reference since there was no Contractor Management had to supervise. their work . Management has to protect the employees as per the directions given by the Hon'ble High Court and since the High Court has protected them and since Management has to pay the wages, Management has to maintain record of their work and on the basis of that payment was made to them. Prior to that case of the Management was that , Contractor was attending to them, making payment to Contractors which was paid to the workers in the presence of the officer of the Authority. However, there is no evidence brought on record of any kind by the Authority to show that, Contractor was attending at any point of time. No evidence is brought on record of any type to show that , the Contractor was supervising the work, or he was making payment to the workers and the Authority was giving lump sum amount of contract to the contractor and out of that contractor was paying the wages to the workers involved in the reference. No any type of evidence is led by the Authority which in factwas in a good position to lead evidence on that point since it was organization and Government undertaking which is also a part of the activity of the Government of India.No evidence is laid by Authority to show that tenders were called or Terms of the tenders were discussed and settled and the contract was accepted by the contractor . It is pertinent to note that , no such evidence is led by the authority and no such record is maintained by the Authority to show how these workers were controlled, supervised or paid by the Contractors to conclude that , they were the employees ofthe contractors . Against it , case made out by the Union reveals that, there was no actual contract in existence . It is a matter of record that , workers were same but contractors were changed from time and again , assuming that, there was contract which create doubt how it can be ? When there is change of contractors naturally contractor will bring his own team . But here Authority 5574

THE GAZETTE OF INDIA: OCTOBER 4, 2008/ASVINA 12 , 1930

[PART 11-SEC. 3 ( ii )] P

admits that, there was change in contractors but the workers were the same which also give blow to the stand taken by the Authority that, these employees are employed by the contractor and were working for the Authority.

whether there was a contractor as alleged by the Authority andwhether employee at any time worked for contractor? As far as point of contract is concerned if we see the evidence ofthe Authority we find Authority, has examined Jaiprakash Mahesh Yadav at Exhibit M 1/86 who gave detailshow contracts are called and how work is given to the Contractors . Besides, he explained in what manner the notes are maintained and how payment is made . In the cross this witness of the Management admits that , contractors are changed but set of employees is the same. When question was put to him how he contacted the contractors about the work or complaints and how contractors complied ? On that he replied that , on the directions of the Contractors employees viz . S.U. Adsul and Nitin Gavit attend for Contractor . But when question was putby the Union's Advocate whether , he has evidence on that point , on which he replied that , he did not have noting on it and admits that , Authority did not maintain such record of this type of conversation. He states that , period of contract was extended and curtailed . But in the cross he admits that, he cannot point outby which documents terms of contract are curtailed or extended . He admits that, work of department never stops including work ofsupply ofwater. He admits that terms and conditions laid down in M/ s . Intercon contract is beyond scope of contract.He admits that , contract of Mis . Reena Enterprises does not project exact area of work . He admits that , he has not seen the licence of these Contractors . He also admits that, he has no evidence to show that , Contractors are visiting day to day work and checking it . He states that. payment is made before him by the Contractors to the 'contract workers . He admits that , he countersigns the said payments . He states that , he has seen the wage registers. Then Management witness Vishwesh Ravindranath Mule, examined at Exhibit Ml/ 87 , also talked about contract and supported the case of the Authority saying that, the work isdone with the help of the contractors . When he was cross on that he admits that , even at Terminal IA with these 12 employees are working which is the work doneby the contract workers . He adınits that , no permanent worker is working in Terminal [ A. Ile states thar, these employees are attending civil maintenance work who are ofcontract workers . When contract of M/ s . Vini Enterprises was referredto him which is pertaining to 12 employees, he states that said contract does not bear the names of 12 employees for which it is alleged that, Vini Enterprises entered into Contract with the Authorities . Even he was shown contract of M/ s. Profesco of2003 which is pertaining to 12 employees working at Terminal là for civil maintenance. He also admits that original complaintbook does not bear signature of the contractor to show that contractor noted the complaint and complied it. He admits that, no record is maintained of entry and exit of the contractor on the premises of the authorities . He admits that , except his word he has no evidence to show that , Contractor attended as per complaints and work is done (57) Besides, place ofwork is important .Admittedly workers are working at the place of the Authority.As per decision referred by Union given by the Apex Court while deciding case of Ramana Dayaram Shetty vs International Airport Authority of India & Ors . published in ( 1979) 111 SCC page 489 administrative authority is equally bound by the norms of standard procedure laid down by it for others . Inthe instant case we did not find procedure followed by theAuthority and having maintained record to show that , actually there was a contractor and the employees involved In the reference are contractual employees . Then citation referred by Union of Bombay High Court while deciding case of Hindustan Livers Limited vs Hindustan Lever Employees Union while deciding Appeal No. 174 of 2001 in Writ Petition No.480 of 1997 observed that , onus of showing that, there was the contract and contractor was engaged is on the employer and if employer fails to discharge it, in that circumstance adverse inference need to draw accordingly. Even citation referred by Union published in AIR 1968 SC page 1413 ( Gopal Krishnaji Ketkar vs Mohmad Haji Latif & Ors. ) shows that, party who possess the best evidence which would through light on issue in controversy if holds back such documents , the Court can draw inference against party who holds such documents . ApexCourt observed that , workmen working on daily wages isnot supposed to maintain record of his employment . It is employer who has to maintain it to dislodge the complaint ofthe workmen on the work done by him . Citation referred byUnion published in (2006) I. SCC page 106 while deciding case of R.M.Yellati vs Asstt . Executive Engineer Union. Citation published in 1998 ( 1 ) CLR page 1043 reveals that ratlo laid down in the case of Uprton India Ltd. vs Shammi Bhan & Anr. generally principles of Contract Act is applicable to agreement between 2 persons having capacity to contract are also applicable to a contract of industrial employment but the relationship was created as partly contractual in the sense that agreement of service may give rise to the mutual obligation e.g. obligation of the employer to pay wages and the correspondent obligacion ofthe workmen to render services and party non - contractual at the State as passed by legislation prescribing obligations for the employers towards his workmen . The citation referred by Union ofApex Court while deciding the case of Silver Jubillee Tailoring House & Ors. and Chief Inspector of Shops and Establishments and Ors. published in 1973 (11) LLJ page 495 observed that, where employer and employee relationship existed when person employed means workingfor the State,.One has to remove mask and to seethe real relations between the employer and employee as observed by the Apex Court while deciding case ifBharat Heavy Electrical Ltd. vs State of U.P. published in 2003 ( III ) CLR page 188. Here ifwe remove the mask to see really 5575 भारत का राजपत्र: अक्तूबर 4, 2008/ आश्विन 12 , 1930

[भाग - खण्ड 3 (ii ) ]

contractors and they decided to work as per tenders. No acceptance letter is proved or produced of contractor. Besides, it is not shown by the Authority that, tenders of the contractors were accepted and orders were issued and it was served on the contractors . Even it is not proved by theAuthorities that, the said contracts have been accepted by the Contractors and they attended the work as per the tenders accepted by them. Ifwe consider all this evidence led by both definitely it will answer against the authority and lead us to conclude that , the contract as alleged by the Authority is not in existence but it is sham and bogus and therewas no contractor as alleged by the Authority. Even ratio laid down by Apex Court referred by Union while deciding case of Secretary. Haryana State Electricity Board v/s Suresh & Ors , publish in 1999 (2) LLN page 612 will help sorting outwhich are real contractors and who are the real in employees of the contractors?

(58) All this reveals that , employees involved in the reference are definitely not employees of the contractors. In this reference 33 employees are involved but none of the contractor has comeforth to claim that particular employee belongs to their establishment and they are working for them. So in these premises we have to conclude that, the so called contract berween the Authorities and the Respondents Contractors who were parties in the Writ Petition No.78 of 2000 were sham, bogus and camouflage or name- lender contractors. So I answer Issue No.1 that , Contractors referred in the reference are sham . Bogus and camouflage and name- lender contractors and not real one. ISSUE No. 2:

(59) From the evidence brought on record by both it reveals that, nature of work attended by these workers is of aperinal or permanent nature. Said work will arise till the Airport continues. There will be that work which will be for ever till the Airport survive and till Authority provide services to the passengers . Besides , work done by these workers is attended by permanent works and in some cases work of this type is attended by the workers involved in the reference only. Work at Terminal IA is attended by workers involved in the reference as no permanent worker is working at Terminal IA. This nature of work of civil maintenance which covers renovation of toilets, floor repalring, painting , plastering and other miscellaneous work to do structural and maintenance and without which Authority cannot run the Airport and provide services to the passengers who are reporting on the Airport . Evidence reveals that from 1992-97 permanent workers are working on Terminal IB whereas employees involved in the reference are working at Terminal IA and Junior Engineer orAssistant Engineer were supervising their work . It shows that, there is no bifurcation or separation in the work to distinguish the status of the workmen , either said is done by contract workers or done by workers of the Authority. Besides there is no any line or demarcation marked out by by the Contractor with the help of contract workers . He states that, he has seen the licence under Labour Contract Act ofcontractors. However, he is unable to point out and unable to explain as to why it is not on record . Then Management examined Vinay Kumar Tamrakar at Exhibit M1/88who has filed affidavit pertaining to Terminal II- B and II -C and 17 employees involved in the reference. According to him said 17 employees are working for M/s . D'souza Construction Co. However, he admits that he has not seen these 17 attending day to day Terminal U -Band II-C. He admits that, register maintained does not bear signature ofthe contractor anywhere . He admits that, he signs the register at some place. He admits that he signs the said register 'for certifying work done by the contract workers. He states that , as soon as complaint is lodged he used to contact the contractor but admits that no documents are maintained regarding message given to the contractor. Even he admits that, no such documents are maintained regarding message given to the contractor and the complaint attended by the contractor. He admits that, thereafter he used to verify the work done by the workers. He admits that, he himself and one Taide used to take measurement of the work done by the workers and payment was madeto theworkers accordingly. He admits that, after completion ofthe work of said measurement is taken . He admits that, besides these 17 workers other job workers are working on the place of the Alrport Authority. When he was shown the original note dated 29-1-2008, on that , he states that, said note does not bear the signature of the contractor. He admits that, he has not seen the licence of M/s. Intercon and M/ s . D'Souza Contractors. He admits that, Authority used to maintain record of the payments madetothecontractors . He admits that AE& ME are making supervision and checking the work done by these 17 workers . He admits that, he has not seen contractors maintaining the muster roll and duty attended muster of the contractor workers . Then Dr. Sarada Prasanna Choudhury, is examined by the Authority at Exhibit M1/84 who admits that Contractors M /s.Shankar Construction is not on record. All this reveals that , actually there was no contract in existence and contractor in picture as alleged bythe Authority. The copies of contracts producedby the Authorities are not proved by calling concern contractors. In fact as stated above burden is on the Authority to produce these contracts and to show that , contracts are there and workers involved in the reference are their employees. But it is unfortunate that, Authorities did not make efforts in that direction to call the contractors as its witnesses and feel it necessary to prove that, there was a contract between Authority and they engaged employees involved in the reference as their employees . Authorities had produced documents with list MI/76 in the form of copies of inviting tenders . However, these copies does not project whether actually such tenders were considered by any contractors . It was nowhere pointed out by Authority whether, such contracts are acceptedby the 5576

THE GAZETTE OF INDIA : OCTOBER 4, 2008/ASVINA 12, 1930

[PART II-SEC. 3 (ii ) ]

facilities are provided to the workers who are doing same type of work and why these workers are not getting the same facilities and scale as given to the workers who are doing same type ofjob?

(61 ) Then there is development during the pendency ofthe proceedings , MIAL entered into Agreement with theAuthorityby agreement dated 4-4-2006 by which MIAL took possession of the Airport for operation , management and development , construction , upgradation , designing etc. for a period of 30 years and accordingly as per letter dated 3-5-2006 issued by the Authority and as per that agreement Authority, handed over the possession of the Airport to MIAL for 30 years . As per the case of the Authority its some officers are working on its pay roll and are helping MIAL as per agreement . Officers like Mr. Моге is still working with the Authority. That means yet some officers are ofthe Authority and Authority is maintaining record of those officers and paying their salary and that these officers have their offices there. It is not the case of the Authority that , they have closed down all its activities. Moreover, no specific case is made out by the Authority or MIAL who was party in these proceedingsbefore this Court , for some time which was then deleted as per order of the Hon'ble High Court while deciding Writ Petition No. 695 of2008 ( and Writ Petition No. 841 of 2008 ) filedby MIAL, However, it is important to note that , order passed by the Hon; ble High Court on MIAL's grievance in above Wril Petitions is worth to note . Hon'ble High Court in lası paragraph mentioned as follows:

"However, it is clarified that this Court has not expressed any opinion on the merits of the controversy. All contentions of both sides in the Reference are kept open . This Court has merely expressed its opinion on the issue of joinder of Petitioner and it is clarified that no opinion is expressed on the obligation arising out of the Agreement between the Pentioners and the Airport Authority of India as well . "

theAuthorities to show that , particular work is required to bedone by the workers ofthe Authority and the particular work is to be done by the contract workers . Government had permitted contract labour workers and there is no ban for the contract workers in the civil maintenance on the premises of the Airport Authority. Still it does not mean that , Authority is supposed to get work done only from the contract workers or from the workers of the Authority. It is also not brought on record that, Authority pressed with the Government to get sanction the post and the Government has not sanctioned it . No communication is brought on record to show that , it did like that and still their request was not considered by the Government of India. Even it is not the case of the Authority that, it displayed vacancies or called for the names from the Employment Exchange or from any other Authority to fill in the posts . Though Authority was harping in saying that, these are contract workers and by virtue of order given by the Hon'ble High Court , they are protected and work is get done from them does not mean that , they should be instrumented like that for ever. When work is available and evidence reveals that , there is work which is of permanent type and without which Authority cannot run theAirport , one has to presume that , work is of permanent nature and it is rather part and parcel of the Authority . Otherwise ifwe separate the civil maintenance work fron the work of the Authority then , there will be question who will be answerable to any unwanted thing happens because of the lack of maintenance or because of lack of care not taken at the Airport? Unless and until all things are okay i.e. there is adequate water supply , adequate electricity supply, adequate cleanliness , adequate repair, and other things it will not be possible to run the Airport. In this premises in my considered view, work done by these workers cannot be separated from the main functions of the Authority as it is rather equal and important which is supporting with the activities of the Airport Authority, Besides as questioned above , who will be answerable to any unwanted thing happens ? So to meet out all that , one has to presume that , it is departmental work which cunnot be separated which is tried by the Authority to take advantage of contract labours to utilize their services on the lowwages.

(60) It is brought on record that , these workers are utilized on very low wages . It is also brought on record that workers of this type who are involved in the reference are getting Rs 4000/- to Rs.5000/- per month against that, employees of the Authority who are doing or attending same type ofwork, are getting Rs 40,000/-10 Rs . 50,000/- per month. It is also matter of record that , these workers are concern form 1993. Just authorities had assured that , the workers involved in the reference will be protected and that they will not get less salary than minimum wages . But that is not only the intention in protected the interest of the employees like this . One has to consider what, other

According to me these observations kept scope open to the claim of the workers involved in the reference with MIAL and MIAL cannot run away or Authority cannot raise its hands saying that , it had handed over Airport to MIAL and now Authority is not responsible or concerned with the responsibilities of these workers or MIAL. cannot say that , they are not their employees since they are not engagedby MIAL. Here Union's contention is that , these workers are working with the Authority for years together . They are attending work of permanent nature which is essential to run the Airport and without said work or maintenance, Airport cannot be run . When Airport canñol run without work of these workers and when there was no contract or when there is no contractor, one has to presume that, they are the workers of the Authonty and after the agreement entered into between MIAL . and Authority, they will be employees of the MEAL .. As entire activities of the [भाग [ ] - खण्ड 3 (ii) ]

Airport are now taken over by the MIAL as per agreement dated 4-4-2006 which is between the Authority and the MIALwhich is case of MIAL and Authority. One has to note that, when Authority is one of the Undertaking of the Government ofIndia, which has duty bound to take care of the employees of this type of Undertaking and protect their interest. And ifemployees of this type ofUndertaking are left without protection or shelter , it will give rise to unrest in the labour field and will disturb the harmony of the labour atmosphere . So in this situation we have to conclude that, the employees involved in the reference must be treated as employees of the Authority.

ISSUE NO. 2-A:

(62) Now, question will be since when ? It is pertinent to note that, this Reference is sent by the Central Government, Ministry of Labour , New Delhi, in 2003. Union approached Hon'ble High Court, Bombay by filing Writ Petition No.78 of 2000. Even there was tense atmosphere on that subject prior to that yet there was no adjudication on that. Now by virtue of reference this Tribunal is adjudicating on this dispute and by this decision, this Court isdeciding the relations of the concerned employees with theAuthority. Till that there was no any occasion to decide that. Union did not try to get it decided by approaching competent authority but directly approached the Hon'ble High Court ,In fact Union ought to have approached Deputy Chief Labour Commissioner (C) who is competent Authority on such points . But instead of doing that, Union directly approached Hon'ble High Court , they spent time there, and then sought directions of Hon'ble High Court where Hon'ble High Court directed Central Government to make a reference and reference is now here as per the directions of the Hon'ble High Court sent by Central Government, Ministry ofLabour , New Delhi, to this Tribunal in 2003. As a result this matter is before this Court . So according to me from the date of the reference i.e. from 20-3-2003 we have to presume that , Union channelise the dispute and one has to consider the dispute from that date as it is not proper to consider the claim of workers prior to the date ofthe refererice and so concerned workmen are to betreated as employees of the Union from 20-3-2003.

ISSUE NOS . 3 AND 3A:

(63) When Union succeeds in showing that, they are the employees of the Authority then they must get the status of the permanent employees of it. Besides benefits which other permanent employees of the Authority are getting, these employees must get it. When work of this type is done by the permanent employees of the Authority and same work is done by these workers involved in the reference but these workers are deprived of benefits and privileges for no reason which are extended to the permanent employees of the Authority, in my considered view, workers involved in the reference cannot be deprived of the said privileges and the benefits which are given to

5577

भारत का राजपत्र : अक्तूबर 4, 2008/ आश्विन 12, 1930

thepermanent employees ofAuthority. So I conclude that, employees involved in this reference are also entitled to get the same benefits and privileges which are given to the permanent employees from 20th March,2003.

ISSUE NO. 4 & 4A:

(64) Union has demanded pay and wages and consequential benefits at par with the permanent employees of the Authority who are doing same type of work. When employees involved in the reference are doing same type ofwork which is done by the employees of the Authority andwhen Authority failed to show that they are contractor's employees and why these employees involved in the reference are not entitled for the same, in my considered view they are also entitled to get pay and wages and other consequential benefits at par with the employees oftheAuthority who are doing same type of work, from thedate ofthe reference i, e. 20th March, 2003 .

ISSUE NOS. 5 & 6;

(65) Whenthese employees are treated as employees oftheAuthority and not contractual workers and when it is observed that they are entitled to get pay and wages as well as status and benefits at par with the permanent employees of the Authority who are doing same type of work, no question arise to pass separate order saying that, they are entitled to get equal pay for equal work and status of permanent employees . The citation referred by the Authority published in 2006 II CLR SC Secretary, State of Kamataka vs Umadevi and Ors . Does not come in theway of these employees as argued by Union that , said observation is in connection with service matter and not labour service and when Union succeeds in showing that , they are doing work of permanent nature and that the Authority cannot run Airport and same type of work is doneby the permanent employees of the Authority in my considered view, they are entitled to get wages and other privileges on the basis of equal work equal pay and permanent status . Accordingly I answer this Issue to that effect.

(66) In view of the discussions made above i conclude that, the reference require to be allowed. Hence, the order :

ORDER

(a) Reference is allowed;

(b) Authonty is directed to treat these employees involved in the reference as its permanent employees and give benefits to them at par with its own employees who are doing similar type ofwork with it, including benefits of wages , with consequential benefits as Permanent employees of the Authority from20-3-2003.

AtBombay, 26-5-2008.

A. A. LAD, Presiding Officer 5578

THE GAZETTE OF INDIA : OCTOBER 4 , 2008 /ASVINA 12 , 1930

नई दिल्ली , 11 सितम्बर , 2008

का. आ. 2804, औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में केन्द्रीय सरकार रेलवे मेल सर्विस के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबन्ध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ अम न्यायालय भवुनेश्वर के पंचाट ( संदर्भ सं 16/2000 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 11-9-2008 को प्राप्त हुआ था ।

[सं. एल -40012/94/2000 - आईआर ( डीयू) ] अजय कुमार गौड़ , डेस्क अधिकारी New Delhi , the 11th Sepetember, 2008 S.O. 2804,-In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947), the Central Government hereby publishes the award ( Ref. No. 16/ 2000) ofthe Central Government Industrial Tribunal - cum- Labour Court , Bhubaneswar , as shown in the Annexure , in the Industrial Dispute between the employers in relation to the management of Railway Mail Service and their workman, which was received by the Central Government on 11-9-2008 .

[No. L-40012/94 /2000- IR( DU) ] AJAY KUMAR GAUR, Desk Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM - LABOUR COURT BHUBANESWAR

Present : ShriN.K.R. Mohapatra ,

Presiding Officer C.G.L.T. -cum-Labour Court. Bhubaneswar

Industrial Dispute Case No. 16/2000 Date ofPassing Award-28th July, 2008

BETWEEN

The Management of the Superintendent , RailwayMail Service, SE Railway,

V-Division , Visakhapatnam ( A.P. )

... 1st Party-Management .

And

Their Workman , Shri T. Ramulu , Ex-RMS Rest House Attendant , C/ o . Akhaya Kr . Baliarsingh , In front of Andhra Bank , Dist . Khurda.

...2nd party-Workman

APPEARANCES

... For the Ist Party-Management M/ s , R.P. Nanda& Associates , Advocate .

Shri T. Ramulu

... For Himself- the 2nd Party- Workman.

[PART II-SEC. 3 ( ii) ]

AWARD

TheGovernment of India in the Ministry of Laobur, in exercise of Powers conferred by Clause (d) of sub- section ( 1 ) and sub- section 2(A) of Section 10 of the In- dustrial Disputes Act, 1947 ( 14 of 1947 ) have referred the following dispute for adjudication vide their Order No.L 40012/94 /2000 /IR(DU ) , dated 1-6-2000.

"Whether the action of the Management ofRMS , SE Rly, Visakhapatnam in terminating the services of Sh. T. Ramulu, w.e.f. 3-7-1997 is just, fair and legal? If not, to what relief the workman is entitled? " 2. The RailwayMail Service Division, Visakhapatnam was maintaining a Rest House at Khurda Road to provide temporary accommodations to officers on Tour etc. As a watcher of that rest house the disputant T. Ramutu was initially engaged as part time Chowkidar to work for five hours daily with effect from 1-2-1970 and subsequently he was asked to work as Rest House Attendant with working hours from 8 A.M. to 12 Noon and again from 6 P.Μ. το 8 P.M. daily . On receiving some complaints from the local inhabitants that the disputant is indulged in entertaining outsiders to gamble and drink Alcohol inside the rest house, the Management put him off from duty with effect from 3-7-1997. Claiming that he has been illegally terminated, the disputant raised an Industrial Disputes before theAsst . Labour Commissioner ( Central ) giving rise to the present reference.

3. The Management alleges that the appointment of the disputant as Chowkidar and subsequently as Atten- dant was on part time basis terminable at any time without assigning any reason . On the complaint of several local inhabitants that he was entertaining outsiders to gamble and drink Alcohol inside the rest house creating nuisance for the public, the matter was enquired into locally and the disputant was asked to give his explanation and he was put off from duty with effect from 3-7-1997 . It is further alleged by the Management that before it could take any final decision in the matter , the disputant raised an Indus- trial Disputes for which no final order could be passed. In other words it is contended by the Management that its action of putting the workman off from duty is neither bad nor illegal .

4. On the above pleadings of the parties the follow ing issues were framed.

ISSUES

1. Whether the reference is maintainable that the workman has not been terminated by the Manage- ment?

2. Whether the action of the Management as alleged by the workman is legal and justified?

3. To what relief the workman is entitled to?

5. Besides examining himself another witness has been examined by the disputant . The Management has [भाग II- खण्ड 3 ( ii ) ]

5579

भारत का राजपत्र : अक्तूबर 4, 2008/आश्विन 12 , 1930

examined three witnesses in support of its case besides producing several documents relating to the preliminary enquiry held against the disputant .

FINDINGS

ISSUE NO. 1

6. As to the maintainability and jurisdiction of the Tribunal neither party has of course raised any objection but thatdoes not prevent the Tribunal to examine its own jurisdiction especially when a Posta ! Departmental have been impleaded as a party erring it to be the employer of the disputant. From the very pleadings of the parties and the nomenclature of the Management it is clear that, the establishments of the Management is a part and parcel of thePostal Department running within the railway premises with a designation Railway Mail Service (RMS) . In case of Sub-District Inspector ofPosts , Vikam-Versus Theyyam Josepah reported in 1996 - II -LLJ 230 a two judge bench of the Hon'ble Supreme Court have held that, function ofthe postal Department are part of the soverign function ofthe State and therefore it is not an industry within the defini- tion of Section 2( J ) of the Industrial Disputes Act . Since under exceptional clause 6 of section 2 of the Industrial Disputes Act establishes discharging soverign function ofthe State are excluded from the definition of Industry , it isaccordingly held that the reference is not maintainable in its present form , the Tribunal not being competent to deal with any subject relating to the Postal Department .

ISSUE NO . II &

7. These two issues are taken up together for the purpose of convenience.

However , considering for a moment that the Postal Department in which the workman was working was an Industry within the definition of Industrial Disputes Act , I would like to examine other probable consequences ofthe dispute . Admittedly the workman has produced no documents in support ofhis permanent appointment either inthe post of Watcher or in the post of Care Taker of the rest house, Rather the official documents produced by the Management shows that he was engaged as a part time worker in both the capacities . The other evidence of the Management indicates that, a public complaint was received against the disputant that he used to entertain outsiders to gamble and take alcohol within the premises to the annoyance of the neighbouring inhabitants and then a preliminary enquiry was held by the Management by recording the statements of various inhabitants of the locality and thatthe workman was also asked to give his explanation . One of the documents produced by the Management also discloses that the workman had admitted his fault in his show cause . The further evidence as adduced by both parties indicates that pending regular enquiry the workman was put - off from duty and that soon thereafter the workman had raised an Industrial Disputes before theAsst . Labour Commissioner (Central) resulting ' 3631 G1/200817

the same in the present reference. Ext. - AA shows that the order under which the disputant was put-off from duty was intimated to him as his signature as a token of such communication is appearing on such order and as no final order has been passed thereafter terminating the workman his raising of the dispute seems totally pre - matured .

9. Thus in any view of the matter the reference is not maintainable in its present form .

N.K.R. MOHAPATRA, Presiding Officer C.G.LT.-cum - L.C. , BBSR .

LIST OF WITNESSES EXAMINED ON BEHALF OF THE 2ND PARTY-UNION.

W.W.I-T. Ramulu

W. W.2-Akshaya Kumar Das.

LIST OF DOCUMENTS EXHIBITED ON BEHALF OF THE 2ND PARY-WORKMAN.

Ext.-1-Order of Supdt . RMS - V Division Visakhapatnam - I to the workman to work as a Watcher from 8 A.M. to 12 Noon and from 6 P.M. to 8 P.M. in the Rest House.

LIST OF WITNESSES ON BEHALF OF THE IST PARTY MANAGEMENT

M.W. - I-Shri P. Sivasankaraya.

M.W. -2- Y.S . Prabhakar Rao .

M.W. -3-N.V. Appa Rao .

LIST OF DOCUMENTS EXHIBITED ON BEHALF OF THE 1ST PARTY- MANAGEMENT

Ext. -A-Copy ofthe rejoinder .

Ext.-B-Engagement Memo issued by the inspector of V- 1st Sub-division dated 23-4-1970.

Ext.-F-Copy of statement of Sh . S.K. Mohanty, Sh . Ramesh Chandra Mohapatra & Shri Kabiraj.

Ext -C-Reinstated letter No. V- I st/Estt . , dated25-4-1974. Ext.-D-Letter ofShri T. Ramulu dated 28-4-1989. Ext -E-Letter No. PF/T. Ramulu dated 22-3-1989 issued to the disputant. Ext. -G-Copy of letter ofSh . T. Rumulu dated 14-6-1997. Ext. -H-Copy of letter No. V- 3rd/PF /TRL, dated 3-7-1997. Ext-J Copy of statement ofSh . T. Venkateswara Rao , Sh , N.V. Appa Rao , Sh . K. Appa Rao and Sh . Y.S. Prabhakara Rao .

Ext -K-Copy of letter No. B2/22/TR, dated 7-1-1999 issued to the A.L.C. (C), Bhubaneswar.

Ext. - L- Copy of letter No. 8 ( 105)/98 - BBS/B , dated 12-10-1999 ofthe A.L.C. (C) , Bhubaneswar.

Ext.-M-Copy of report of Mail Agent V - 14 dated 13-6-1997.

5580

THE GAZETTE OF INDIA : OCTOBER 4, 2008 / ASVINA 12 , 1930

[PART II- SEC . 3 ( ii ) ]

BETWEEN :

Ext.-N-Copy of report of Mail Agent V- 14 dated 14-6- 1997.

Ext-P-Copy of letter No. 29- CL.IV/Rigs VIII, dated 13-3- 1995 issued by the Asst . Post Master General , Hyderabad.

The Management of the Asst . Superintendent , Telegraph Traffic In - charge, Central Telegraph Office, Rourkela - 1 . Distt . Sundargarh , Rourkela -769001 .

... List Party-Management,

And

Ext. -Q Original copy of the statement of Shri T. Ramulu. Ex1. -Q/I -Signature of Shri T. Rumulu on the copy of the statement . Ext. - R- Copy of representation ofShri T. Ramulu to the A.L.C. ( C) , Bhubaneswar dated 22-12-1998 .

Their Workman, Late Shri Abhimanyu Sahoo

Substituted by his father Chandramani Sahoo , Uditnagar, Govt. High School , P.O. Rourkela, Ext.-R/ 1-Signature ofShri T. Ramulu in that represemation dated22-12-1998.

Distt. Sundargarh , Pin - 769012 .

Ext.-S-Complaint ofStaff.

...2nd party- Workman Ext.- T-Complaint of staff Shri Y.S. Prabhakar Rao.

Ext.-U- Statement of Shri T. Venkatesara Rao .

APPEARANCES

Ext-V-Statement of Shri K. Appa Rao - II ,

Ext-W-Statement of N.V. Appa Rao.

For the ist Party-Management M/s. S.K.Pattnaik , & Associates , Advocate .

Ext. -Z-Reportto theAuthority.

M/s. N.C. Mohanty , Advocate. ...For the 2nd Party-Workman.

Ext. -AA-Order under which the workman was put - off from service with effect 3-7-1997.

AWARD

नई दिल्ली, 11 सितम्बर , 2008

TheGovernment of India in the Ministry of Laobur , in exercise of Powers conferred by Clause (d ) of sub- section ( 1 ) and sub - section 2(A) of Section 10 of the In- dustrial Disputes Act , 1947 ( 14 of 1947 ) have referred the following dispute for adjudication vide their Order No.L 40012/27/98 /IR( DU ) , dated 16-6-1998,

का, आ. 2805, औद्योगिक विवाद अधिनियम , 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार दूर संचार विभाग के प्रबंधतंत्र के संबद्ध नियोत्रकों और उनके कर्मकारों के बीच , अनुबन्ध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ श्रम न्यायालय , भवुनेश्वर के पंचाट ( संदर्भ से 43/2001 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 11-9-2008 को प्राप्त हुआ था ।

"Whether the refusal of employment of Shri Abhimanyu Sahoo , workmanby the Management effectivefrom 6-11-1997. islegal and justified? If not , what relief the workman is entitled to ? " [सं. एल-40012/27/98- आई आर (डीयू) ] अजय कुमार गौड़ , डेस्क अधिकारी

New Delhi , the 11th September , 2008

S.O. 2805. In pursuance of Section 17 of the

2. The case of the deceased workman Abhimanyu Sahoo, substituted by his L .. R. - father Chandramani Sahoo, is as follows in short .

Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the award (Ref. No. 43/ 2001) ofthe Central Government Industrial Tribunal - cum- Labour Court , Bhubaneswar, as shown in the Annexure, in the Industrial Dispute between the employers in relation to the management of Department of Telecom , and their workman , which was received by the Central Government on 11-9-2008 .

[No.L-40012/27/98 - IR(DU) ] AJAY KUMAR GAUR, Desk Officer

ANNEXURE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM - LABOUR COURT BHUBANESWAR

Present : Shri N.K.R. Mohapatra,

PresidingOfficer C.G.LT. -cum -Labour Court, Bhubaneswar

That the disputant workman ( since died) was initially engaged by the Management as a temporary Mazdoor to sprinkle water to khas khas from 15-4-1987 10 15-6-1987 and again from 15-4-1988 0 15-6-1988 . Thereafter on being sponsored by the Employment Exchange he was given a temporary jobs in March 1990 on monthly wage for supplying water to the staff und officials and from 1996 on- wards he was entrusted with the jobs of distributing daks and telegrams in addition to his original jobs of supplying water. For the above purpose he was paid a consolidated amount of Rs . 375/- for the period from March 1990 to April 1995, Rs . 562/ - for the period from May 1995 to June 1997,Rs. 750/- for the period from July 1997 10 August 1997 and at a reduced rate of Rs. 700/-for the period from Sept. 1997 to Nov. 1997.It is alleged that when the workman raised a protest about such reduced payment for the period from Sept. 1997 to Nav. 1997, the Management took exception to the same and ultimately refused employment Industrial Dispute Case No. 1. 43/2001 Date ofPassing Award-31st July, 2008 [ भाग II- खण्ड 3 ( ii ) ]

from 6-11-1997 without any advance notice or retrenchment compensation and filled up that vacancy by engaging another person . The disputant being aggrieved by the above conduct of the Management raised an Industrial Disputes and hence the reference.

3. The Management , besides taking several other pleas admitted that the workman was initially engaged as a temporary/part time worker to sprinkle water to khas khas during 15-5-1986 το 15-6-1986 , 15-4-1987 to 15-6-1987, 14-4-1988 to 15-6-1988 as also on other works from 15-4-1989 to 15-6-1989 on daily wage basis by the Jr. Telecom Officer, in -charge of C.T.O. , an incompetent person to give such engagement , in contravention of the instructions of 1985 not to engage such person. As regards the alleged engagement through employment exchange from March 1990 till the date of refusal of employment on 6-11-1997 it is averred by the Managerment that from 1985 thedisputant was working as a Home Guard and therefore his allegation that he was recruited through employment exchange in 1990 and that he was paid monthly wages and that ultimately terminated from 6-11-1997 are all false and concocted and stage managed . In addition to the above and while questioning the maintainability ofthe case it is further contended by the Management that the Telegraph Department (Management) is not an Industry in as much as the same comes under the soverign functions of the State and that therefore the disputant can neitherbe called as aworkman nor he can claim any relief under the Industrial DisputesAct.

4. On the basis of the above pleadings ofthe parties the following issues were framed

ISSUES

1. Whether the reference is maintainable?

2. Whether the refusal of employment of the workman by the Management effective from 6-11-1997 is legal andjustifled?

3. If not, to what relief the workman is entitled?

5. One witness each has been examined by the parties . From the side ofthe disputant five documents have been marked as Ext. - 1 to 5 while the Management's documents have been marked as Ext. - A to D and Dil to D/3 , E, E/l and F.

FINDINGS

ISSUE NO. 1

6. It is a well - known fact, that earlier Post and Telegraphs Department was a composite establishment . But after the formation of Telecom Department the Telegraph Department having been de-linked from the Postal Department was brought under the Telecom Department and that accordingly the Telecom Deptt . has filed the written statement in this case representing the

5581

भारत का राजपत्र : अक्तूबर 4, 2008 /आश्विन 12, 1930

Telegraph Department, the Management in question . It is well settled in various pronouncernent of the Apex Court that Telecommunication Department is an Industry within the ambit of the term " Industry" as defined under the Industrial Disputes Act . Therefore the reference is well withinthejurisdiction ofthe Tribunal for adjudication .This issue is answered accordingly.

ISSUE NO. 2 & 3

7. These issues arejointly taken up as they are inter- dependent.

It is not disputed that the workman was never engaged continuously for 240 days in any year between 1987 to 1989. According to the workman such continuous engagement was made from March 1990 1jll he was refused employment on 6-11-1997 to which the Management has denied in so -many words . Therefore , the only question that preliminarily needed to be examined is whether the workman has been able to prove his case of continuous engagement since 1990 till the alleged date of termination оп 6-11-1997 . Besides , to establish a case of retrenchment . he is further required to prove that during a period of 12 months preceeding the date of his alleged termination on6-11-1997 he had continuously worked minimum for240 days.

8. In the claim statement it is alleged that on the basis of the interview and onbeing sponsored by the employment exchange the workman was given regular appointment on monthly wage basis till he was terminated on 6-11-1997 . But while deposing before the Court the workman does not whisper that he was given regular appointment on being sponsored by the Employment Exchange. Further he says during cross -examination that he was not issued with any appointment letter. This shows thathe was not appointed on regular basis in March 1990 as claimed by him . Further, contrary to the above , he says during trial that for the month from March 1990 10 June 1997 he was paid on monthly basis but from July 1997 onwards he was paid Rs . 25 on daily rate basis . This otherwise makes clear the position further that he was never engaged on regular basis but his engagement was on daily rate basis as claimed by the Management . The payment side of the cash book of 1992 ( Ext . - D series ) which the Management has produced show that in the month of January 1992 for performing the duty in the absence of Chowkidar on 4-1-1992 and 11-1-1992 and for working for four hours as Waterman from 13-1-1992 to 18-1-1992 he was paid@ Rs. 25/- per day and that again for working in place of regular Chowkidar he was paid Rs . 75 in the month, ofFebruary 1992 and then in the month of May 1992 he was paid Rs . 150 towards 6 days full wages for working for four hoursdaily for 12 days as a Waterman and thereforer he was paid in August 1992 Rs. 150 for working as Waterman from 11-7-1992 to 22-7-1992 on contract basis . These facts further confirms , as claimed by the 5582

THE GAZETTE OF INDIA : OCTOBER 4 , 2008/ ASVINA 12 , 1930

[PART 11-SEC. 3 ( ii ) ]

LIST OF WITNESSES EXAMINED ON BEHALF OF THE 2nd PARTY-WORKMAN.

Management , that the engagement of the workman was intermittent and need based but not that it was on regular basis since 1990 , as claimed by him .

W.W.--Shri Abhimanyu Sahoo .

LIST OF DOCUMENTS EXHIBITED ON BEHALF OF THE2nd PARTY- WORKMAN.

Ext.-]-Xerox copies of the appointment orders .

Ext. -2-Xerox copies of the appointment orders .

Ext. -3-Xerox coptes of the appointment orders

Ext.-4- Xerox copy of the Peon Book.

Ext.-5-Xerox copy of petition filed before A. 1. C. ( C ).

LIST OF WITNESSES ON BEHALF OF THE Ist PARTY MANAGEMENT.

M.W.- I- Shri Ramakanta Ghosh .

LIST OF DOCUMENTS EXIUBITED ON BEHALF OF THE Ist PARTY- MANAGEMENT

Ext. -A Xerox copy of ketter dated 30-3-1985.

Ext -B Xerox copy of letter dated 18-10-1984.

Ext. -C Xerox copy of letter dated 7-11-1989.

Xerox copy of the payment sheets , Volume-36. Ext-D

Ext. -DI to D/3 - Payment portion of Shri Abhimanyu Sahoo.

Ext -E Xerox copy of payment sheet, Volume-37 .

lixt. -E/ J- Payment portion of Sari Ablumanyu Sahoo.

Service record of late Abhimanyu Sahoo issued bythe Commandant , Home Guard, Rourkela, Ext. -F

नई दिल्ली, ।। सितम्बर , 2008

का. आ. 2806. औद्योगिक विवाद अधिनियम, 1947 ( 1947 का ( 4 ) की धारा 17 के अनुसरण में केन्द्रीय सरकार दूर मंचार विभाग के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों में बीच, अनुबन्ध में निर्दिष्ट औद्योगिक विवाद में केंन्द्रीय सरकार औद्योगिक अधिकरण/ श्रम न्यायालय भुवनेश्वर पंचाट ( संदर्भ सं. 23/2000 ) को प्रकाशित करती है, जो कन्ट्रोल भरदार को 11-9-2008 को प्राप्त हुआ था ।

9. Now coming to the workman's engagement period during 12 months proceeding the date of alleged termination on 6-11-1997, except the oral evidence no cogent docuinentary proof has been adduced by the workman to establish that during the above period he had worked continuously minimum for 240 days . According to the evidence of the workman he was engaged in delivering letters and Telegrams as a Peon during 1990 to 1997. But from the above discussion it is clear that except working interminemly , sumetimes as Waterman and in some other time as a substitute workinan , he was never paid for delivering the Telegram or letters . Therefore , the entire case of the workman appears to be a got- up one . He las ot course filed the Xerox copy of a Peon Book for the period 2-5-1997 το 7-11-1997 to show that he was engaged during 1997 to distribute Telegram and letters . But this document ( Ext . 4) shows that on 9-5-1997 , 17-6-1997, 16-7-1997, 13-8-1997.16-9-1997 and on 9-10-1947 one internal letter on each ofthe above dates was entrusted to him to be delivered with the office and except this there is nothing in it about the continuous engagement or about his delivering of the telegrams out side the office . Ext. - F is a letter of the Commmandant . Home Guard . Rourkela communicated to the Management on 20-8-2002 . This letter shows that the workman was carolled as a home guard volunteer in the Home Guard orgamzation with effect from 28-9-1995 and that he was discharged from that organization due 10 his death with effect from 16-7-2000 . The letter further indicates that Home Guard Volunteers are set to assist the police in maintaining law and order as and when required and in addition to that they are also deputed to public and Private Sector offices to perform watch and duty and for përlarming the above duties they are also paid remuneration as per the scale prescribed This coupled with the materials available in Ext . -4 thus lead to the inference, in absence of any other documentary evidence , that the workman was engaged 10 work in the office of the Management intermittently for about six days only during May 1997 to October 1997 There being to other materials to speak about his other engagement during a period of 12 months preceding the alleged date of termination on 6-11-1997, it is heid that the workman has neverworked for a continuous period of 20 days prior to his alleged termination

[सं. एल 01 : 18:2000- आई आर ( डोयू ) । अजय कुमार गौड़, डेस्क अधिकारी

New Delhi . the 1th September , 2008 10. new of the various discussions made above i find no merit in the various contentions of the workin and as such the alleged termination can not be heid bad for non - compliance of Section 25-f ol'the Industers !Dispedes Act .

11. The reference is answered accordingly with non relief to the workman .

Ν.Κ. Β.ΜΟΠΑPATRA, Presiding Oilicet

S.O. 2806 - In pursuance of Section 17 of the Industrial Disputes Act , 1917 ( 14 of 1947 ) , the Centraf Quverument hereby publishes the Award ( Ref. No. 23: 2000 ) ofthe Central Goveonment Industrial Tribunal cum. Labour Court , Bhubaneswar as shown in the Annexure . in the Industrial dispute between the employers in relation to the management of Department of Telecom , and their [ भाग- खण्ड 3 ( ii) )

5583

भारत का राजयत्र : अक्तूबर 4, 2008/आश्विन 12, 1930

workman , which was received by the Central Government on 11-9-2008.

[No. 1-40011 / 18/2000- IR(DU)] AJAY KUMAR GAUR, Desk Officer

ANNEXURE

THE CENTRAL GOVERNMENT INDUSTRIAL RIBUNAL- CUM- LABOUR COURT

BHUBANESWAR

PRESENT

Shri N.K.R. Mohapatra, PresidingOfficer, C.G.I.T.-cum-Labour Court , Bhubaneswar

Industrial Dispute Case No. 23/2000 Date ofPassing Award-30th July 2008

BETWEEN

TheManagement of the Superintending Engineer , Telecom (Electrical ) Plot No. 92 , Sahidnagar, Bhubaneswar (Orissa) .Pin -751001 .

... Ist Party-Management .

And

Their Workmen , represented through the president , Orissa Door Sanchar Astai Mazdoor Sangh (BMS) , Sector-A , 219 , Mancheswar Industrial Estate, Bhubaneswar , Orissa - 751001 .

...2nd party Union

APPEARANCES

... For the 1st Party -Management Shri R.N. Bhunia S.D.E. (P &A), Telecom

... For the 2nd Party-Union Shri K.C. Rout , President , ODAMS .

AWARD

TheGovernment of India in the Ministry of Labour, in exercise of Powers conferred by Clause (d) of sub -sec- tion ( 1 ) and sub - section 2 (A ) ofSection 10 ofthe Industrial Disputes Act , 1947 ( 14 of1947) have referred the following dispute for adjudication vide their Order No.L. 4001 1 / 18/ 2000/ IR(DU ), dated 28-9-2000.

"Whether the action of the Management of Superintendent Engineer , Telecom ( Electrical ) Department, Bhubaneswar by not regularizing the services ofskilled workers (As per annex. ) isjustified? If not , to what relief the workers are entitled ? " List of the Workmen working under different Contractor G.M.T.D. Electrical , Bhubaneswar / Puri Telecom Exchange, Puri

Name of the Workmen

Name ofthe Contractors

M/ s. Dubei Electricals 1. Ranjan KumarBarik .

-do-

2. Малој Kumar Panda.

3. Prasant Kumar Rout.

-do-

4. Binod Panda.

-do-

5. Laxmidhar Gouda.

-do-

C.T.T.C. , Electricals.

1. Sanatan Subudhi .

M/s. Krishna Electricals 2. Aruna Kumar Rout.

-do-

3.Bighnaraj Sahoo.

-do-

4. Gangadhar Sahoo.

-do-

5. Sarat Ch . Nayak .

6. Michu Sahoo .

-do-

7. Rajeswar Nayak

Dhenkanal Telecom Colony

M/ s . Krishna Electricals 1. Ram Chandra Prusty.

-do-

2. Barun Behera,

3. Ajay Kumar Sethy.

-do-

4.HimansuNayak .

Dhenkanal Telecom Exchange

1. Dswijabar Sahoo.

M/s. R.E. Bhagat

-do-

2. Susanta Kumar Pal .

M/s. Chatterjee Associates 3. Subal Mohanty.

-do-

4. Sridhar Kumar Sahoo.

M/ s. R.K. Swain .

5. Pradyumna Rout.

JevporeTelecom Bhawan

1. Amar Kumar Rout

M/ s . Dubai Electricals 2. Ashok Kumar Samal .

-do-

M/ s. Ganesh Electricals.

3. Raghunath Acharya.

2. Contending that the above named disputants are working continuously under the Management on jobs continuous and perennial in nature , the Union raised an Industrial Dispute for their regularization before theAsstt. Labour Commissioner ( Central ) resulting the same in the present reference. It is alleged in the claim statement that these workers were recruited by the Management at different times during 1995 to 1999 on adhoc basis as shown against each and were engaged to work under the direct control and supervision of the Management. It is claimed that the work performed by these workers are ofcontinuous and perennial in nature and it is similar too with that of a regular employee and therefore they need to be regularized considering their continuous engagement from 1995 , their said engagement being under different sham contractors .

5584

THE GAZETTE OF INDIA : OCTOBER 4, 2008 / ASVINA 12 , 1930

3. By controverting the above stand of the Union it is averred by the Management in its Written Statement that the works performed by the so -called workman are not continuous or perennial in nature and that the disputants were never recruited nor engaged by the Management as claimed by the Union . As a matter of practice the Management used to carry out certain job on work -to- work contract basis by engaging different contractors from time to time for execution of such work . These contractors are always engaged through competitive tender and therefore the disputants engaged by such contractors have no foot hole to claim regularization .

4. On the basis of the above pleadings of the parties the following three issues were framed.

ISSUES

1. Whether there is any relationship as employce and employer between the parties?

2. Whether the action of the Managementby regularizing the services of skilled workers is justified?

3. What relief the workman are entitled to?

5. At the early stage of the proceeding the Union left no stone unturned but in the middle filed a petition to eliminate the names of some of the disputants from the reference and ultimately remained absent and therefore was set exparte on 27-12-2007 . The Management on the other hand has examined one Witness besides producing some documents marked as Ext. A to D.

FINDINGS

ISSUE NO. I to 3

6. These issues are taken upjointly for easy disposal .

The evidence of the Management shows that for internal wiring, installation ofA.C. Machines and for similar other jobs the Management used to engage different contractors on tender basis from time to time as per its requirements and after completion of the work the company supplying the machineries is being given the contract for annual maintenance . It is further deposed that after a contract is awarded , the concerned contractor used to deploy his own man to execute the work and that accordingly some of the disputants might have had worked beingdeployedby their contractor but were never engaged bythe Management for any purpose . To show the genuine engagement of such contractors , the Management has produced the Electrical Licenses granted by the State Electricity Deptt . to two such contractors namely M/s . Krishna Electrical Works and M/s . Dubey Elcetricals who were engaged by the Management . Ext. - E and E/ 1 , the Retums submitted by Contractor M/ s . Krishna Electrical , disclose that some of the disputants were engaged by the above contractors paving the way to believe that the disputants were all contractor labourers. The list of

[PART 11- Sec. Stii ) ] disputants as supplied by the Government also contains a column indicating that they were engaged by different contractors including Ms. Krislina Electricals to work in different locations of the Management . Therefore , in these circumstances, when no evidence contrary the above has been adduced or produced, the mere stand of the Union that these contractors were sham can hardly be believed . Thus there being no evidence to establish employer- employce relation- ship between the Management and the disputants the later is held to have no right to claim regularization in the establishment of the former .

7. Hence in the result . I hold that there is no merit in the reference or the stand taken by the Union. Accordingly the reference is answered exparte against the 2nd Party- Union and on contest in favour of the Ist Party- Management.

Ν.Κ.Ρ. ΜΟΠΑPATRA . Presiding Officer LISTOFWITNESSES EXAMINED ON BEHALFOF THE 2ND PARTY UNION .

The 2nd Party- Union has not examined any Witnesses on hisbehalf.

LIST OF DOCUMENTS EXHIBITED ON BEHALF OF THE 2ND PARTY UNIO

The2nd Party-Union also not exhibited any documents on his behalf.

LIST OF WITNESSES ON BEHALF OF THE 1ST PARTY-MANAGEMENT

M.W.- l- Shri R.P. Toppo.

LISTOF DOCUMENTS EXHIBITED ON BEHALF THE IST PARTY MANAGEMENT

Ext. -A-License for electrical contractor-M's Dubey Electricals.

Ext.-B- License for Electrical Contractor--M's . Krishna Electrical Works.

Ext. -C-Electrical workman's permit 10 Sluri B.R. Sahoo.

Ext. -D -Copy of relevant portion of Rule 45 of Indian ElectricityRules , 1956

नई दिल्ली , ।। सितम्बर , 2008

का. आ. 2807.--औद्योगिक विवाद अधिनियम, 1947 ( 1947 का ।4 ) की धारा 17 के अनुसरण में केन्द्रीय सरकार एम.टी.एन.एल. के प्रबंधतंत्र के संबद्ध नियांजकों और उनके कर्मकारों के बीच, अनुबन्ध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ श्रम न्यायालय नं. ॥ मुम्बई के पंचाट ( संदर्भ सं सीजीआईटी -2/62 ऑफ 2001 ) कां प्रकाशित करती है , जो केन्द्रीय सरकार को 11-9-2008 प्राप्त हुआ था ।

[ सं. एल -401012/59/2001- आई आर( डोयू) । अजय कुमार गौड़ , इंस्क अधिकारी 5585 [भाग II- खण्ड 3 (ii) ]

भारत का राजपत्र: अक्तूबर 4, 2008/आश्विन 12, 1930

NewDelhi, the Iith Sepetember, 2008

S.O. 2807 -In pursuance of Section 17 ofthe Industrial Disputes Act, 1947 (14 of 1947 ), the Central Govemment hereby publishes the award (Ref. No. CGIT- 2/62 of 2001) of the Central Government Industrial Tribunal Labour Court , No. II Mumbai , as shown in the Annexure, in the Industrial dispute between the employers in relation to the management of M.T.N.L. and their workman , which was received by the Central Government on 11-9-2008 .

24-09-1994. She was working under the supervision of GeneralManager, E- II , MTNL. She also worked with other workmen of first party and was handling record of first party.However she was paid wages through contractor by nameM/s . Ravi Enterprises and thereafter M/s . Chamunda Corporation. She worked with first partytill 1-2-2000 and her serviceswere terminated from that date . According to her, firstpartywas her employer . She was qualified to work as a Clerk and she was also treated as employee of first party So she prayed that , she be re-employed with first party and termination effected on her from 1-2-2000 be quashed and set aside.

[No. L-40012/59/2001 - IR(DU)) AJAY KUMAR GAUR, Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUTRIAL TRIBUNAL NO. 2 , MUMBAI

Present : A. A. Lad, Preisding officer

3. It is disputed by first party by filing reply Ex-6 making out casethat, second party is not the employee of first party.Shewas never appointed by first party. There is no employer employee relation between first party and second party. It is further stated that, she was working with contractor and contractor terminated her services for which first party cannot be held responsible .

Reference No. CGIT- 2/62 of2001

Employers in relation to the Management of Mahanagar Telephone Nigam Limited

4. In the rejoinder Ex-7 , workman states that, there is master and servant relation between her and first party. Shewas getting overtime and other benefits as an employee ofthe firstparty.

5. Inview of above pleadings, issues were framed by my Learned Predecessors at Ex- 8 which are answered asfollows:

TheGeneral Manager Mahanagar Telephone Nigam Ltd. Mumbai Charai Telephone Exchange Thane400 601 . AND Their Workmen

Issues

Fladings Smt . Rema Rajendra Babu

No.

(1) Whether Mrs. Rema Rajendra Babu proves that she was in the employment ofMTNL?

7/7, Sadanwadi , Lake Road, Opp. Bhandup Police Station

Bhandup (W) Mumbai 400078 .

APPEARANCES

(ii) Does she prove that she was in continuous service with MINL from 24-9-94 till 31-1-2000 ? No. For the Employer

(iii) Whether the management

: Mr. R.C. Kotiankar Advocate

Forthe Workmen

Mr. J.H. Sawant

Does not arise.

Advocate

compliedwith the provisions under Section 25 F ofthe Industrial Disputes Act?

Mumbai , dated 2nd July, 2008 .

AWARD

Does not arise

(iv) Whether the action ofthe management ofMTNL, Mumbai by terminating the services of Mrs.Rema Rajendra Babu from theservices of MTNL, Mumbai is justified?

TheGovernment of India, Ministry of Labour by its Order No L-40012/59/2001 / IR(DU) dated 4-5-2001 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, 1947 have referred the following dispute to thisTribunal for adjudication:

(v) What reliefMrs. Rema R. Babu is entitledto?

Norelief.

REASONS

Issues nos. 1 to 5 :-

"Whether the action of the management of MTNL, Mumbai by terminating the services ofMrs. Rema Rajendra Babu from the services of MTNL, Mumbai is justified? If not , to what relief the workman is entitled?"

6. Second party claim that , she joined first party as a Clerk w.e.f. 24-9-1994. She worked till 1-2-2000. According to her , she worked as Clerk and was handling as well as 2. Claim Statement is filed by the concerned workman at Ex-4 stating that she joined first party as Clerk w.e.f 5586

THE GAZETTE OF INDIA: OCTOBER 4, 2008/ASVINA 12, 1930

maintaining records and registers of first party. Though she was paid through M /s . Ravi Enterprises and M/ s..Chamunda Corporation , she was employee of first party and said contractor cannot terminate her services . This is deniedby first party saying that, there is no employer and employce relationship between Second party and first party and it cannot be held responsible and liable for secondparty.

7. To prove that , second party place reliance on her affidavit filed in lieu of examination- in -chief at Ex -25 where she has stated as above. In the cross , she states that, she has no written appointment letter issued by MTNL . She states that , as per directions of MTNL, she was appointed . She has no evidence about directions given by Officers of MTNL to the contractor. She has no evidence to show that, contractor was name lender and that arrangements were made by MINL to deprive her claim . Then she examined Ram Briksh , R.I. , Ram , R.K. Singh , R.C. Mengaji , Balkrishna Bhagve and Popat Pawar . However none of them positively support the case of the second party and able to throw any light to establish the relationship between second party and first party. Against that first party decided not to led any oral evidence an filed purshis Ex-39 . On that second party's advocate filed Written Arguments atEx-40 and case laws with list Ex- 42 whereas first party filed written subinissions at Ex-41 .

8. As stated above, except second party nobody is speaking about relation with first party as employee . Besides second party has not madeout case of any type to show that first party appointed her or she worked at the direction of first party or she was on muster roll of first party. Even there is no evidence to show that , second partyworked for 240 days continuously in a calendar year to claim permanency with first party. The case laws produced by second party's advocate at Ex -42 has no relevancy with the facts of this case . Unless and until second party establishes employer - employee relationship . in my considered view she cannot claim any relieť against first party. Even number of witnesses are examinedby second party but she or they unable to establish employer- employee relationship between first party and second party. Besides she demanded inspection of number of documents by application Ex- 29 but unable to establish her relationship with first party.

9. So all these reveals that, she is not concerned with the employment ofthe first party and not employee of first party. So ! conclude that. she is not entitled for any relief and answer above issues to that effect. Hence the order:

ORDER

Reference is rejected.

Date: 2-7-2008

A. A. LAD, PresidingOfficer

[PART 11-SEC. 3 (ii) ) नई दिल्ली, ।। सितम्बर , 2008

का. आ, 2808.-औद्योगिक विवाद अधिनियम , 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में केन्द्रीय सरकार एम.टी.एन.एल. के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबन्ध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण्णश्रम न्यायालय नं. 11 , मुम्बई के पंचाट ( संदर्भ सं सीजीआईटी-2/21 /2003 का 21 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 11-9-2008 को प्राप्त हुआ था ।

[सं. एल -40012/316/ 99- आई आर (ड.यू) ] अजय कुमार गौड़ , डेस्क अधिकारी New Delhi , the 11th Sepetember , 2008 S.O. 2808.-In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ), the Central Government hereby publishes the award ( Ref. No. CGIT- 2/21 of 2003 ) of the Central Government Industrial Tribunal - cum - Labour Court . No. II Mumbai , as shown in the Annexure , in the Industrial dispute between the employers in relation to the management of M.T.N.L. and their workman, which was received by the Central Government on 11-9-2008 .

No.1.-40012/316/99 - IR(DU )] AJAY KUMAR GAUR, Desk Officer ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUTRIALTRIBUNALNO. 2 , MUMBAI

Present: A. A. Lad , PresidingOfficer

Reference No. CGIT -2 /21 of 2003

Employers in relation to the Management of Mahanagar Telephone Nigam Limited

The ChiefGeneral Manager Mahanagar Telephone Nigam Ltd. Telephone House , Prabhadevi Mumbaj -400028 .

AND Their Workinen

1. The Vice President All India Telecom Employees Union Line Staff& Group D' B- 1 , Kanta Apartments , Pant Nagar Ghatkopar ( ) Mumbai ,

2. Shri Laxman Mohan Sonawane Teen Dongri , Mahatma Phule Nagar Buddha Vihar Goregaon (W) Mumbai -100062 .

5587

भारत का राजपत्र : अक्तूबर 4, 2008/ आश्विन 12, 1930

[भाग - खण्ड 3 (ii) ]

APPEARANCES

Forthe Employer : Ms. S.I. Shah Advocate

For the Workmen : Мг . Л.Н. Sawant Advocate

Mumbai , dated 4th August, 2008 .

AWARD

TheGovernment of India , Ministry of Labour by its Order No. L-40012/316/99- IR( DU) dated 5-5-2003 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 , 1947 have referred the following dispute to this Tribunal for adjudication :

"Whether the action of the management of Mahanagar Telephone Nigam Limited, Mumbai in terminating the services ofthe petitiner (Sh . Laxman Mohan Sonawane) with effect from 1st January, 1988 is legal andjustified ? Ifnot, to what reliefthe workman is entitled?"

2. Claim Statement is filed by the concerned workman at Ex -8 making out case that, he joined first party as casual labourer from January, 1985 and attended permanent nature ofwork.He worked continuously. Then he was refused to report on duty from January , 1988. He made representation with first party requesting to permit him to report on duty which was not heard so he preferred to raise an industrial dispute andAssistant Labour Commissioner (C) admitted case of concerned workman and called first party for conciliation and submitted failure report . On that, Central Government refused to make reference. So he approached Hon'ble Bombay High Court under Article 226 of the Constitution ofIndia and by filing Writ Petition No.2872 of 2002 in which Hon'ble High Court directed Central Governmentto make reference holding work done by concerned workman for more than 240 days is not criteria to deny to the dispute raised by workman . So it is prayed that, refusal of employment from first party w.e.f. January 1988 be set aside with direction to first party to take concerned workman in the employment w.e.f. 1-1-1988 with backwages and continuity ofservice.

3. This is disputed by first party by filing Written Statement at Ex- 11 making out case that , reference is not maintainable as it is made after long time . It is barred by law of limitation . Besides it is stated that , concerned workman does not fall under the definition of ' workman ' as he did not work240 days continuously with first party. There was no evidence from the second party to show that he worked for more than 240 days to claim benefit ofprotection given in the provisions of Industrial Disputes Act from first party. It is furthe stated that , Assistant Labour Commissioner (C) has wrongly referred the dispute by submitting failure report and Central Government has rightly refused tomake 3631 GI/2008-18

reference observing that concerned workraan cannot be called as a 'workman ' since he has not passed the test of completing 240 days in a year. It is stated that, decision given by Hon'ble High Court in directing Central Government to make reference is not just and proper. It is stated that, High Court cannot pass such directions and cannot compel Central Government to make reference as making reference is the prerogative of Government. It is denied that, first party terminated the services of second partyworkman. It is denied that , first party acted illegal and terminated second party by violating provisions of Industrial Disputes Act So it is submitted that, prayer prayed by second party deserves to be rejected.

4. In view ofabove pleadings, issues were framed at Ex-19which are answered as follows:

Issues

Findings

Does notarise (i) Whether order issued against 2nd party oftermination is Justifiable?

No.

(ii) Whether 2nd party is workman?

Does not arise (ii) Is the 2nd party entitled for the reliefas sought?

(iv) ,What order?

Asper order below.

REASONS

Issue no.2 :-

5.According to first party, concerned workman Sonawane is not its 'workman ' since he worked as casual labour.He did not work continuously for 240 days in each calendar year to claim ' workman ' of first party and attract protection given under Industrial Disputes Act. Whereas case of the second party is that he joined first party as a casual labour and worked for more than 240 days in each calendar year. According to second party , as a result of that, he is a permanent employee of first party and without following due process of law, has terminated his services which first party cannot.

6. Here second party claim employment with fi - L party saying that, he worked for more than 240 days in each calendar year from 1985 to 1986. However it is disputed by first party saying that he never worked continuously for 240 days in each calendar year to claim as workman and attract provisions of Industrial Disputes Act .

7. It is matter of record that, Assistant Labour Commissioner (C) sent failure report . It is matter ofrecord that Central Government refused to make reference . It is matter of record that , concerned workman approached Hon'ble High Court and sought directions of Hon'ble High Court against Central Government to make reference. It is matter ofrecord that . as per direction of Hon'ble High Court , Central Govemment made a reference.

8. First party is challenging the status of second party saying that , he did not work for more than 240 days 5588

THE GAZETTE OF INDIA : OCTOBER 4, 2008 / ASVINA 12 , 19.30

in each year to claim workman . Copy of the Writ Petition is filed with Ex- 20 where Hon'ble High Court has observed that:

"Prima Facie it cannot be said that there was nothing before the appropriate Government to show tha workman has not worked for 240 days in the year preceding his termination. "

By making such observation Hon'ble High Court gave directions , to . Central Government to make reference presuming thai concerned workman worked more than240 days in a year to qualify him to claim employntent with . first party. However before this Court , first party has challenged the status of second party making ont a that , second party did not work for more than 240 day's in a calendar year and more precisely in the preceding sear of termination. Accordingly, first party has made out casu that effect in written statement and more precisely in para I of it saying that second party worked 92 days in the year 1985 and 70 days in the year 1986. Against that , second party in his affidavit Ex- 22 did not make out case that he worked for 240days in the preceding year of termination . Just he made out case that, he worked continuously. He has not given account of his working days in his atidavit. Besides in his cross he states that, he was employed through one Sawant . He further admits that , one Sharnua was making payment of his salary. He admits that , be nas doing work of putting cables. He unable to stare tire nume ofthe officer who restricted him from reporting on duty. He unable to give the year from which he worked with first party.Even he unable to give date on which he took treak . Against that . first party led evidence of one H.P. Yadav by filing affidavit in lieu of Examination - in - Chief Ex-2 and submitted that, concerned workman worked enly for 92 days in 1985 and 70 days in 1986. In the cross he admits that , second party never worked under him . He also states that, he has no idea about page 24 Ex- 20. Even he unable to state whether second party worked from 1985 to December , 1987. He admits that , concerned workman was terminated without giving notice explaining that since he was not regular employee .

9. So first party admits that, no notice was given to concerned workman and witness examined by first party states that he cannot comment on Ex-20 .

10. If we peruse Ex-20, the documents of second party we find , said are with Ex -20 filed with copy ol lever dated 7-8-1997 and copy of service certificates from page 3 to 5. If we peruse those pages 3 to 5 we find those are simple statement given of work done by concerned workman. Said pages have no authentication of any type. Said pages do not bear any seal or signature from any of the officer of the first party.On the contrary page 2 appear a statement of working days given under the thumb impression of concerned workman .It is not clear from where itis coileted and produced or who has verified it or who has checked it? Besides page 4 appears copy of Service certificate and it also does not bear seal and authenticated

[PART 11- SEC . 3 ( ii ) ] certificate to accept in evidence. When first party states that , concerned workman did not work for 240 day's in cach calendar year and more precisely in the preceding year of termination , in that case burden is on concerned workman to show that , he worked for more than 240 days to clain employee and to seek protection of the provisions of Industrial Disputes Act . Utation published in 2008 11 LLF page 654 Patna High Court , Citation published in 2008 [ L.LJ page 492 S.C. , Citation published in 2008 I LLJ 400 GujaratHigh Court , Citaten published in 2007 III LLJ page 652Madras HC, Citation published in 20081 LLJ Madras High Court page 43 and citation published in 2008 1 LLJ page48 Madhya Pradesh High Court observed that , burden ison workman to prove thai , as worked for more than 240 days. In the present case , that burden is not discharged by the concerned workınan to prove that . he worked for more 240 days . It is responsibility of the concerned workman to prove that he worked for more than 240 days in each calendar year and more precisely in the preceding year of termination to claim permanency . Besides he states that. payment was made by one Sharms and he was working under one Sawant .It is not explamed by second party how Sharma was concerned with Ni ( Ni ? Besides he has not brought any authenticate evidence to prove that he worked on permanent basis . So feonclude that , concerned workman cannot be called as workeen to attract the benefits of provisions of Industrial Disputes Act. So I conclude that , concerned workman can called as the' workman' of first party.

Issues Nos . i & 3 :-

11. When concerned warkınan failed to prove that, he worked for more than 240 days in a calendar year to claim permanency , legaily ne cannot be protected by the provisions of Industrial Doputes Act. As per Section 25 ( F) ifa permanent employee is to be tonninated , management has to follow procedure as per the provisions of Industrial DisputesAct . However in the instance case , second party failed to establish that , he was permanent employee ofthe first party or he can claim permanency or he can claim permanency by virtue of working more than 240 days in a calendar year , In this case , in my considered view, question of following provisions of Industrial Disputes Act does not arise. In this case admittediy said procedures are not followed by first party. it second party establishes that. first party did not take any legal steps which it ought to have when second party tailed to establish that, in my considered view question of following procedure as per provisions of Industrial Disputes Act and considering relief for second party to reinstate with backwages does not arise. Moreover alleged termination is of 1986 which is challenged in 2003. No doubt there was writ petition also and on that basis reference was made .The reference appears made as per directions of Hon'ble High Court in 2002 about the action not taken by Central Government in 1999. So if we considered all that coupled with case madeout by both . I conclude that , second party is not entitled to any relief. So I answer these issues to that effect, भारत का राजपत्र : अक्तूबर 4 , 2008/ आश्विन 12 , 1930

[भाग II- खण्ड 3 ( ii) ]

12. Inview of discussions made above , I conclude that reference deserves to be rejected . Hence the order ;

ORDER

Reference is rejected.

Date: 4-8-2008

A.A. LAD, PresidingOfficer नई दिल्ली , 11 सितम्बर, 2008

का, आ. 2809-औद्योगिक विवाद अधिनियम , 1947 (1947 का 14 ) की धारा 17 के अनुसरण में केन्द्रीय सरकार बी. बी.एम.बी. के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबन्ध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण नं. 1, चण्डीगढ़ के पंचाट ( संदर्भ से 77/1995 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 11-9-2008 को प्राप्त हुआ था ।

[सं. एल-23012/4/1993- आई आर( सी- II ) ] अजय कुमार गौड़, डेस्क अधिकारी New Delhi , the 11th Sepetember , 2008 S.O. 2809.-in pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the award (Ref. No. 77/ 1995 ) of the Central Government Industrial Tribunal Labour Court , No.I Chandigarh , as shown in the Annexure , in the Industrial dispute between the employers in relation to the management of BBMB and their workman , which was receivedby the Central Government on 11-9-2008.

[No. L-23012/4/ 1995 - IR(C- II )] AJAY KUMAR GAUR, Desk Officer

ANNEXURE

BEFORE SHRI GYANENDRA KUMAR SHARMA, PRESIDING OFFICER, CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL- CUM - LABOUR COURT- I ,

CHANDIGARH Case No. 1.D. 77/95

Sh . R. K. Singh Parmar. President Nanga ! Bakra Mazdoor Sangh ( INTUC ) Nangal Township, Ditt. Ropar.

...Applicant

Versus

The Chief Engineer , BSL/BBMB , Sundernager , Distt . Mandi (H.P.)

Respondent

APPEARANCES

: Sh. R.K. Singh.

: Sh . R.K. Rana .

For the workman For the management

AWARD

Passedon4-9-2008

Central Government vide Notification No.L-23012/4/ 95-IR (C- II) dated 30-8-95 referred the following industrial dispute for judicial adjudication:

"Whether the termination of services on account of abandonment ofjob ofthe workmen Sh . Balbir Singh, Gulzar Lal , Bikram Singh , Subhash Chandby the management ofB.B.M.B. rep.by Chief Engineer BSL/ B.B.M.B. , Sunder Nagar w.e.f.29-1-82 , 21-7-80, 24-2-82 & 26-11-79 respectively is covered under the definition of retrenchment as defined under Section

5589 2(00) of I.D. Act ? If not . to what relief the workmen are entitled to and from what date?"

I have gone through the statement of claim , written statement and other materials on record. This reference washotly contested by the management ofB.B.M.B. with the avernment that the termination of all the 4 workmen from the service does not fall within the purview ofthe definition of retrenchment under Section 2 (00 ) of Industrial Disputes Alt. But after 12 years , in one fine morning , the management ofB.B.M.B. moved an application for filing additional evidence on the ground that all these workmen have been given retrenchment compensation before their termination from the services . The original letters and their copies regarding the retrenchment compensation were also filed. The workmen have admitted that they have received the retrenchment compensation but have challenged the right of the management for fiting additional evidence . It was such evidence which affects the very foundation of this reference accordingly, considering the nature of evidence, I ambound to go through the evidence filedby themanagement ofB.B.M.B.

Thus , for the purpose of this reference only , I am of the view that by its on act and conduct , the management of B.B.M.B. has put the answer or this reference in the mouth ofthe Tribunal by stating that the management ofB.Β.Μ.Β. has paid the retrenchment compensation to all the four workmen named in the reference . Undoubtedly, the retrenchment compensation can be paid only to a retrenche and the workmen have not denied it that they have not received the retrenchment compensation . They have objected for filing the additional evidence so late . Thus , at the cost of repetition , for the purpose of answering this reference, I am ofthe view that Tribunal has to do nothing as by way of conduct by giving the retrenchment compensation to the workmen, the management of B. B.M. B. has accepted them as retrenches.

The workmen as retrenche have received the retrenchment compensation well in time, So , they are not entitled to any relief. This reference is accordingly answered. Let the Central Government informed. File be consigned.

G.K. SHARMA , Presiding Officer नई दिल्ली , 11 सितम्बर, 2008

का. आ. 2810.- औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में केन्द्रीय सरकार भारतीय खाद्य निगम के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबन्ध में निर्दिष्ट औद्योगिक विषाद में केन्द्रीय सरकार औद्योगिक अधिकरण नं. । घण्डीगढ़ के पंचाट ( संदर्भ सं. 55/1992) को प्रकाशित करती है , जो केन्द्रीय सरकार को 11-9-2008 को प्राप्त हुआ था ।

[सं. एल-22012/39/एफ/1992 - आई आर. ( सी- []. ) ] अजय कुमार गौड़ , डेस्क अधिकारी New Delhi , the 11th September, 2008 S.O. 28101 pursuance of Section 17 of the 5590

THE GAZETTE OF INDIA :OCTOBER 4, 2008/ASVINA 12 , 1930

Industrial Disputes Act, 1947 ( 14 of 1947 ) , the Central Government hereby publishes the award ( Ref. No. 55/ 1992) of the Central Government Industrial Tribunal - cums- Labour Cout , No. 1 Chandigarh , 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 11-9-2008.

[No. L-22012/39/F/ 1992 - IR( C- II ) ] AJAY KUMAR GAUR , Desk Officer

ANNEXURE

BEFORE SHRI GYANENDRA KUMAR SHARMA, PRESIDING OFFICER CENTRAL GOVT. INDUSTRIAL TRIBUNAL-CUM - LABOUR COURT- 1 , CHANDIGARH

Case No. 1.D. 55/92

Sh. Chandra Paul Sio Sh . Hari Singh , Rio Ladhot , P.O. Ladhor, Teh and District Rohtak-124001

[PART 11-SEC . 3 (ii) )

...Applicant

Versus

The District Manager , Food Corporation of ludia, District Office, Rohtak- 12400 )

and the applicant started working as car driver with the FCI, Rohtak. He remained in the service of District Manager, FCI Rohtak up to 30-9-90 , but he was paid salary for the month of May, 1989 only. The wages for the period of June, 1989 to September , 1990 have not been paid by the management of the corporation of India. His services were terminated arbitrarily without any notice and retrenchment compensation on 1-10-90 . On number of times , the workman requested the management of FCI to provide him the job but ofno use. He also gave an application to the Regional Office, Food Corporation of India , Chandigarh for regularization of his services against an existing vacancy in response to their letter No. Estt . 1 ( 7 ) / 89/54 dated 8-1-90. but nothing was heard . He was maintaining the log book of staff car No. HYC - 1903 and has also put his signatures on it . The log books are in the custody of the District Manager, Food Corporation of India . Rohtak . He has completed 240 days of work with the management of respondent and his termination is illegal . At the time of the retirement of the Driver, he should have been given the preference but it was not given to him . Thus , the act of the management is illegal and void and he is entitled for his reinstatement into the services of the management with full back wages.

Responcient

APPEARANCES

For the workman

: Sh . Hardayal Singh .

: Sh . Parmod Jain .

For the managerment

AWARD

Passed on 3-9-2008

Government of India vide Notification No.2.2012/39/ F/92-1R ( C - II ) dated 9-6-92 referred the following industrial dispute for judicial adjudication: -

"Whether the action of the management of FC ] District Office , Rohtak in terminating the services of Sh . Chander Paul Singh w.e.f. 1-10-90 and not giving the preference of employment in terms of Section 25 of the Industrial Disputes Act, 1947 after the retirement of the regular Driver of the staff car is just? If not , 10 what relief the workman concerned is entitled to and from what date?"

This reference was referred hy Central Government , Ministry of Labour on account of failure of reconciliation proceedings in the office of reconciliation officer ( RLC) Chandigarh. Two points are to be determined by this Tribunal. firstly whether the termination of Sh . Chander Paul Singh , workınan w.e.f. 1-10-90 is legal and justified and secondly , whether the action of management not giving the preference of employment after the retirement of the regular Driver of staff car is just, fait , legal and regular?

The workman. in his statement of claon has alleged that he was initially appointed as Watchman through the Aman Security Detectives , Chandigarh vide theis efficer letter No. ASI ROK 5/89 dated 5-5-89 by the District Manager. FCI Rohrak . Whenever , the regular Driver of the corporation remained on leave , the wurkinan used to perform the duties as a car driver as he was having a valid Driving Licence. Later on , the agreement with the Aman Security Detectives , Chandigarh was terminated by the management The management of FCI filed the written statement and raised a preliminary objection that there is no relationship of master and servant between the workman and the management of FCI . The applicant was under the employment and control of Mis . Aman Security and Detectives, Chandigarh throughout and he was not in the service, ofthe management of FCI , as per Clause 4 and 5 of the contract entered in between the management . of FCI and M's . Aman Security and Detectives , Chandigarh .

The "management of FCI also denied that he drove the staff ca. of District Manager. It has been stated that fraudulently, he has put on his signatures on the log book in connivance with any of the Class IV employee of FC ] and has put in his signatures on the attendance register. videletter No.Estt/ l ( 7 ) / 87 /54 dated 8-1-90 , options were called for from all the t'lass IV employees of the FC'I for their recruitment as Driver on the basis of the terins mentioned in the letter itselt . The applicant also applied buthis application was not considered as he was not under the employment or FCI bul under the Mis . Arnan Security and Detectives . Chandigarh.

Management of FCI has also alleged that the entire payment has been recened by the workman applicant from the agency and simnetienes in different names . For proving the fact that he has received the wages from the agency in different names , management of FCI appointed a handwriting expert specialized for giving reports on the signatures which were marked as X- 1 and X-o on record . The original report of handwriting expert is on record and he was also subjected to cross - examination by the expert of the workman .

FCI has filed certain documents apart from this X- 1 10X- 6, the disputed signatures . Paper No. 47 mark II is the attested copy of the agreement entered in between the management of Food Corporation of India and the Mis. Aman Security and Detectives ( Regd . ) Chandigarh . Clause 4 of this agreemem , which is admitted to both of the parties, is as follows:

[भाग - खण्ड 3(ii) ]

"The Security Guards will not be entitled to any FCI benefits and will have no claim ofthat fact at any time." Clause 5 ofthe agreement reads as under:

"That all liabilities arising out of ID Act or other labour enactments will be borne by the security agency being principle employer ."

Ex. M2 is the circular letter of Food Corporation of Indiaregarding filling up one post ofDriverGrade Il from the eligible departmental candidates . Ex. M I is the application made by the workman Chander Paul on prescribed perfortna as desired by Food Corporation of Indiavide its circular letter Ex. M2. In this letter, in sub- clause 2 ofClause 7, which is related to the experience , the applicant Chander Paul has specifically mentioned that he is working in Food Corporation of India District Office, Rohtak through M/ s . Aman Security and Detectives from May 1989 and his services are being used as staff car driver usually as andwhen the regular Driver goes on leave. This application is written by Sh. Chander Paul after 8-1-90 Le. the date of issuance of circular letter inviting the applications for one post of Driver Grade Il from the eligible departmental candidates . Mark I is the copy of handed over charge certificate by the Driver of the management respondent Sh . Sant Lal on his superannuation from the service on28-9-90. Original report ofExpert , along with the photograph are also on record. Disputed signatures on the salary statement for the month of May, June and July are also on record . The log book or departmental car No HYE- 1903 is also on record. I have gone through the oral and documentary evidence of the parties. "

It is admitted by the workman that from June, 1989, he was appointed with the Food Corporation of India throughM/s. Aman Security and Detectives, Chandigarh . It is his statement that , thereafter , his services were terminated by the contractor and he became the direct employee of the management ofFood Corporation of India. But he failed to prove that from what date he was directly engaged ( appointed) by the management of Food Corporation of India. Ex , M1 which is the document ofSh . Chander Paul to which he admitted in his oral evidence that he applied for the post of the Driver in reference, to the letter ofthe management No. Estt./1(7)/89/54 dated 8-1-90 for his appointment as a regular driver . There is no date on this application but certainly, this application is given after 8-1-90 the date which the circular letter regarding filling up one post of Driver , Ex. M2 came into existence and circulated to the employees . In this very letter, Ex. M1 , the workman has accepted as follows :

" I am working in Food Corporation of India, District Office Rohtak through M/s . Aman Security Services from May, 1989, "

Thus , the admission of the workman that from May, 1989 till the writing of this application he was working with the management of respondent FCI , Rohtak through Aman Security Services . Thus , his application was rightly rejected by management of FCI on the ground that he was not a departmental candidate as per the Clause 4 and 5 of the

5591

भारत का राजपत्र : अक्तूबर 4, 2008/ आश्विन 12, 1930

agreement entered between Food Corporation of India and theAman Security and Detectives.

Thus, there is no question of priority to be given to the workman at the time of appointment ofa regular Driver on superannuation ofregular Driver. Sant Lal on 28-9-90, as this appointment was to be made from the eligible departmental candidates and admittedly. Up to the time of starting the procedure ofappointment . The workman was not the departmental candidate of the FCI, but engaged through M/s . Aman Security and Detectives, Chandigarh .

It is theworkman who has to prove that he has worked for240 days proceeding to the date ofhis termination from the services. It is admitted case of the workman that up to January, 1990. He was working with the management through M/s . Aman Security and Detectives , Chandigarh . Under such circumstances . burden lics on him to prove as towhen and from what date he became the direct employee ofthe management ofFCI . He has utterly failed to prove it because there is no evidence on record to prove that he was directly engaged by the management of FCI . Onlythe log book is filed by the department containing the signatures of this workman . The workman has admitted that while working as a security guard , he used to work as a driver as andwhen the regular driver goes on leave even at the time whenhewas appointed with the management of FCI through M/s. Aman Security and Detectives , Chandigarh . Thus ,It is a matter between all officer of the management of FCI and the workmanthat the officer permitted a guard to drive the vehicle and by this concession , for which the officer concemed may be liable personally, it cannot be said that the workman became the direct employee of the management of FCI . Thus , on perusal of all the materials on record, I am of the view that there is no evidence on record that the workman served with department as the direct employee and there was a relationship between the management of FCI and the workman that can be termed as 'employer- employee relationship . His employer was M/ s. Aman security and Detective , Chandigarh and on his engagement by M/s . Aman Security and Detectives , Chandigarh, he was working with FCI ,

There is one more controversy between the parties regarding the payment of wages . The management of FCI has tried to prove that the workman received the wages sometimes in the name of different persons. To prove this contention, management has filed the original record along with report ofHandwriting Expert. The Handwriting expert was also cross examined by learned counsel for the workman. In my view, it is not proper for this Tribunal to comment on this controversy being beyond the reference.

I am adjudicating this reference with the finding that Chander Paul Singh. The workman was never appointed by FCI and there was no relationship of employer and employee in between the FCI and Chander Paul Singh . For the reason recorded in the body ofthis Award . I am also of the view that Chander Paul was not entitled for any preference in the matter or appointment of a Driver to be made out of the Class IV departmental candidates . Let Central Government be informed. Filebe consigned.

G.K. SHARMA, PresidingOfficer THE GAZETTE OF INDIA: OCTOBER 4, 2008/ASVINA 12, 1930

5592

नई दिल्ली , 11 सितम्बर , 2008

का. आ. 2811.-औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार एम. सी. एल. के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण , भुवनेश्वर के पंचाट ( संदर्भ संख्या 432/2001 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 11-09-2008 को प्राप्त हुआ था। [सं. एल-22012/293/2000- आई आर( सीएम-11 ) ]

अजय कुमार गौड़ , डेस्क अधिकारी New Delhi , the 11th September , 2008 S.O. 2811.In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award ( Ref. No. 432 / 2001 ) of the Central Government Industrial Tribunal - cum- Labour Court, Bhubaneswar as shown in the Annexure in the Industrial Dispute between the management of Kalinga Area ofMCL, and their workonen , received by the Central Government on 11-09-2008 .

[No. L-22012 /293/2000 - IR (CM- ( 1 ) ]

AJAY KUMAR GAUR, Desk Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM - LABOUR COURT, BHUBANESWAR

PRESENT

Shri N. K. R. Mohapatra , Presiding Officer, C.G.I.T.-cum -Labour Court , Bhubaneswar.

Industrial Dispute Case No. 432/2001 Date of Passing Award-- 11th August , 2008

BETWEEN

The Management of the Chief General Manager, Kalinga Area ofMCL, At. Po . South Balanda , Angul.

IstParty - Management

And

Their Workmen, represented through the General Secretary, Talcher Koila Khani Mazdoor Sangh, At . Po . South Balanda, Angul .

... 2nd Party - Union

APPEARANCES

For the ist Party- Shri A.K. Padhy,

Management Personnel Manager ,

Shri M.C. Nayak.

Forthe 2nd Party- linion

[PART II- SEC. 3 ( й ) )

AWARD

The Government of India in the Ministry of Labour, in exercise ofpowers 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 -22012/293- 2000- IR( CM - II ) , dated 21-11-2001 .

"Whether the action of the Management of Kalinga Area ofMCL in not promoting S.Sh. K.K. Parida. D.C. Jena , U.C. Acharya . P.K Rout , J.K. Samal , I.К Chatopadhyay from Dumper Operator Gr , B to Gr . A Excavator Dumper Operator with full back wages w.e.f. 1-4-1996 is legal and justified ? If not to what reliefthe workmen are cautled to?"

2.It is alleged by the 2nd Party- Union that during 1995-1996 the disputants in question were all working as Operator, Grade- B under the Management . As per necessitythey were also authorized to operate high grade Dumpers usually operated by Firade - A Operators and had accordingly gained necessary experience as pre- condition for thier promotion to Grade - A Opetator . But while considering such promotion the Management promoted thierjuniors narnely B.B. Maiink. P.K Jena , P.P. Das . Y K. Mohapatra and many others with oeftect from 1-4 1996 and onwards . Claiming these disputants have been vindictively deprived oftheir promotion , the Union raised an Industrial Disputes for their promotion as Grade -A Excavator Dumper Operator with effect from 1-4-1996 Hence this reference.

3. The Management on the other hand alleged that there is no post like Group -A Excavator Dumper Operator towhich the disputants can be promoted There is of course some posts called Excavaton Kirade - A Senior Dumper Operators coming under a separate service Rules and as such the claim of the workman for theit promotion to that grade with effect from 1--4-1996 also not otherwise tenable . It is further added by the Management that even otherwise the disputants are not elissie to be promoted from Grade- Bto Grade-A Dumper Operator wath eflict from 1-4-1996 ل by then they had not aujante necessary qualification as prescribed by the J.B. According to the guidelines of J.B.C.C.I .. to be promoted is the rank of Cirade - A Dumper Operator , one is required to work as Duimper Operator for a minimum period of 8 years and the disputants having not acquired that qualitication by 1-1-1996 they were righily not promoted along with others trom that date .

4. On the basis of the above pleadings of the parties the following issues were frameα

ISSUES

1. Whether the reference is muntainabie?

2.Whether the aciam of the Management of Kalinga Area ofMCL in mo promoting S: Shri K.K Paruka. D.C. Jena , U.C. Acharya . P.K. Rout . J.K. Samal , T K. Chatopadhyay from Dumper (Operator Gir . B 10 Cic. A [भाग II- खण्ड 3 ( ii) ]

Excavator Dumper Operator with full back wages w.e.f. 1-4-1996 is legal andjustified?

3. Ifnot to what relief the workmen are entitled?

5. On failure ofthe Union to participate in trial it was set ex -parte on 17-7-2007 . The Management as a consequence thereof examined one witness în ex -parte and produced necessary documents marked as Ext . - I to Ext. - 8 / 1. Hence the AWARD.

FINDINGS

ISSUE NO. 1

6. There being no challenge as to the maintainability ofthe reference, this issue is accordingly answered holding the reference maintainable .

ISSUE NO.2 & 3

7. As regards the above issues it is deposedby the Management Witness that there being no post like Grade-AExcavator Dumper Operator as mentioned in the reference the disputants can never be promoted to that post.According to the Witness there is of course ane Past called Excavator Operator Grade- 1 which covers posts like Shovel Operator, Dieseal Dragline Operator, Drill Operators, Excavation Plant Senior Mechanic and Senior Dumper Operator and those are guided by a separate promotional avenues . As the Dumper Operator like the disputants are guided by other Rules they can not be fitted into automatically in any ofthe posts available under Excavator Operator, Grade- I .

8. Speaking about the normal method of promotion of a Dumper Operator of the category to which the disputants belong, it is stated that to be promoted to the rank of Dumper Operator , Grade - A one has to work continuously for eight years as Dumper Operator Grade-B andCand out of the said period he should have worked for more than 3 years as Grade-B operator as fixed in the settlement of 1984 of the J.B.C.C.L. (Ext. -2 ) . Since none of thedisputants have got such qualification by 1-4-1996 they are not even entitled to be promoted to the rank ofDumper Operator, Gprade-A from that date as their normal chance falls due in April , 2000,

9. In view ofthe above unchallenged evidence ofthe Management , I find no justification in the demand of the Union and accordingly it is held that the disputants are not entitled for any relief as claimed in the reference .

10. Accordingly the reference is answered ex parte against the Union with no relief.

N.K.R. MOHAPATRA , Presiding Officer List of witnesses examined on behalf of the 2nd party- workman.

The 2nd Party-union has not examined a Single Witness . List of Documents exhibited on behalf of the 2nd party- workman.

5593

भारत का राजपत्र : अक्तूबर4, 2008 /आश्विन12, 1930

No documents have also been filed by the 2nd Party-Union . List of witnesses exhibited on behalf of the 1st party- Management.

M.W.- 1 - Shri Radha Mohan Panda.

List ofdocuments exhibited on behalf of the Ist party- Management

Ext.-1.Office order No. 8090 dated 1-11-1994.

Ext. -2-Extract of the relevant portion of the JBCCI settlements 1984.

Ext. -3 - Internal Circular of 1995. Ext.-4-Appointment letter No. 7790, dated 11-3-1991 . Ext.-5 -Office Order No. 1760 , dated20-7-1991. Ext.-6-Office Order No. 3635, dated 20/27-12-1993. Ext-7-OfficeOrder No. 532, dated 23/24-1-1997. Ext. -8-Office Order No. 5867 , dated 15-9-1995. Ext.-8/ 1 -Office Order No , 5863 , dated 15-9-1995.

नई दिल्ली , 11 सितम्बर , 2008

का.आ. 2812,-औद्योगिक विवाद अधिनियम, 1947 (1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार सेन्ट्रल रेलवे के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विषाद में केन्द्रीय सरकार औद्योगिक अधिकरण , मुम्बई -2 के पंचाट ( संदर्भ संख्या 19/2007 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 11-09-2008 को प्राप्त हुआ था। [सं. एल -41012/32/2006- आई आर ( बी - Ⅰ ) ] बी. के. मनचन्दा, अनुभाग अधिकारी New Delhi , the 11th September , 2008 S.O. 2812. In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947 ) , the Central Government hereby publishes the Award ( Ref. No. 19/2007) of the Central Govemment Industrial Tribunal-cum - Labour Court No. 2, Mumbai , as shown in the Annexure in Industrial Dispute between the employers in relation to the management ofCentral Railway and their workmen , which was received by the Central Government on 11-09-2008

[No. 1-41012/32/2006- IR(B- 1) ] B. K. MANCHANDA, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIALTRIBUNALITRIBUNAL NO. 2, MUMBAI PRESENT

Shri A.A. Lad, Presiding Officer

Reference No. CGIT-2/19 of2007 Employers in Relation to the Management of Central Railway

The Sr. Personnel Officer (Construction ) Central Railway, CAO( C)' s Office 5594

THE GAZETTE OF INDIA : OCTOBER 4 , 2008 ASVINA 12 , 1930

Personnel Branch, Mumbai Division Mumbai CST, Mumbai -400001 .

Their Workmen

Shri Rajesh Kadam

2/8, Central Railway Officer's Quarters Matunga, Mumbai -400019 .

APPEARANCES

For the Employer

Mr. Jagannathan . Representative.

Forthe Workmen

No , appearance Mumbai , dated 25th July.

2008

AWARD

TheGovernment of India Minisuy of Labour by its Order No. L-41012/ 32-2006 - IR( B - 1 ) , dated 16-03-2007 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 . 1947 have referred the following dispute to this Tribunal for adjudication:

"Whether the action of the Management of SPO (Construction ) CAP's Office , Central Railway . Mumbai CSI by terminating the services of Shri Rajesh Kadam , Bungalow Peon w.e.f. 17-2-2001 is justified? If not, what relief Shri Rajesh Kadam is entitled to?"

2. Vide Ex - 2 & Ex - 4 , notices were sent to parties , but returned by postal authorities with remark "not claimed " . So it is treated as workman not interested in the proceeding Hence the order:

ORDER

Reference is disposed of for want of prosecution .

Date: 25-07-2008

A.A. LAD . Presidmg Officer नई दिल्ली , 11 सितम्बर , 2008

का,आ. 2813.-औद्योगिक विवाद अधिनियम , 1947 ( 1947 का ( 4) को धारा 17 के अनुसरण में, केन्द्रीय सरकार सेन्ट्रल रेलवे के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में कंन्द्रीय सरकार औद्योगिक अधिकरण, मुम्बई -2 के पंचाट ( संदर्भ संख्या 81/2003 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 11-09-2008 को प्राप्त हुआ था। [सं. एल-41012/ 160/ 2003 - आई आर ( बी -1 ) ] बौ. के. मनचन्दा , अनुभाग अधिकारी New Delhi , the 11th September, 2008 S.O. 2813. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947 ) . the Central Government hereby publishes the Award ( Ref. No. 81 (2003 )

[ PAR : II-St.c.3 ( ii ) ] of Industrial Tribunal - cum- [ abour Court No. 2 , Mumbai as shown in the Annexure in Industrial Dispute between the management of Central Railway.and their workinen , received by the Central Government on 11-09-2008 .

[No. L-41012-160/2003 - IR ( B - 1 ) ] B. K. MANCHANDA , Section Officer ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL No. 2, MUMBAI PRESENT

Shri A.A. Lad, Presiding Officer

Reference No. CGIT - 2/81 of 2003

Employers in Relation to the Management of Central Railway

Divisional RailwayManager

Central Railway, Divisional Office Mumbai CST , Mumbai - 400001 .

And Their Workmen

The Vice President

Nhava Sheva Port & General Workers Union Port Trust Kamgar Şadan . 2nd Noor Nawab Tank Road, Mazgaon . Mumbai-400010 .

APPEARANCES

For the Employer

Mr.Abhay Kulkarnı , Advocate .

Forthe Workmen

Mr. J.H. Sawant. Representative. Mumbai , dated 18th July . 2008

AWARD

TheGovernment of India Ministry of Labour by its Order No. L-41012/ 160 : 2003-1R( B - 1 ) , dated 28-11-2003 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 , 1947 have referred the following dispute to this Tribunal for adjudication:

"Whether the action of the Divisional Railway Manager, Central Railway , Mumbai Division. Mumbai CST . Mumbai in not granting promotion to Shri P.N. Gaikwad. Office Supdt . Grade- ll w.e.f. 1-3-1993 is justified ? 11 not, what relief the workman , Shri P.N. Gaikwad is entitled to?"

2. Claim statement is Bled by the Vice President of Union at Ex -3 making out case that , the employee involved in reference was employed by management of Central Railway, Mumbai Division on the post of Khalasi we.f. 19-01-1964 . He was promoted to the post af Junior Clerk on 5595 [भाग II- खण्ड 3 ( it) ]

भारत का राजपत्र : अक्तूबर 4, 2008/आश्विन 12, 1930

27-07-1970 then on the post of Senior Clerk on 04-07-1980 and then on the post of Head Clerk w.e.f. 01-01-1984. Но was further promoted to the post ofOffice Superintendent (O.S.) Grade- II w.e.f. 13-9-1996. According to union, concerned workman officiated in the post ofOS- II for the period from 06-03-1993 to 12-12-1994 and again from 23-11-1995 to 12-9-1996.

workman could go through it, he might have passsed said viva successfully and in the event that he would have promoted in the OS- II as per scheme of restructuring of cadre w.e.f. 01-03-1993 . So it is prayed by the union that, thedecision of first party management in not considering concemedworking for promotion on the post ofOS- Il grade w.e.f. 01-03-1993 and again not considering in the scheme ofrestructuring of cadre w.e.f. 01-03-1993 is not justified and requested management to grant promotion to the concerned workman on the post of OS- II Grade w.e.f. 01-03-1993 in place of L.R. Wagh and further declare promotedto the post ofOS -I Grade w.e.f. 04-07-1997which was granted to L.R. Wagh and then on the post ofChief Office Superintendent w.e.f. 10-05-1998 the post whichwas made available to Shri L.R. Wagh where Wagh failed to achieve it.

3.Accordingto union , said workman is eligible and entitled forpromotion to the post ofOffice Superintendent (O.S.) Grade- 11 w.e.f. 01-03-1993 as his case was fully covered under the scheme of restructuring of certain Group C& D Cadres as notified by the Ministry of Rallway by letter No. PC- III/91 /CRC/I dated 27-01-1993 . Accordingto union , workman working in the category of Head Clerk as on01-03-1993 were entitled to be promoted to the post of OSGrade- II against the revised percentage . According to union , workmen working in the category of Head Clerk were tobe selected for promotion to the posts of OS - II Grade only on scrutiny of Service record and confidential reports without holding any written and/or viva test . Accordingto union, management decided to fill up 14 post of OS- II as per said scheme w.e.f. 01-03-1999 as well as against the resultant vacancies and existing vacancies . However out ofthese 14 posts , management decided not to fill up two posts against Restructuring of Cadrewhich were reserved for Scheduled Caste . According to union , said two posts were kept unfilled for SC candidates as per ChiefPersonalOfficer's letter dated 12-11-1993 ,

4. Union states that on 01-03-1993 , concerned workman-was senior in services in the category of Head Clerk to L.R. Wagh . According to union , concerned workman P.N. Gaikwad was entitled for the post ofOS- Il Grade from01-03-1993 . However two posts ofOS - II Grade reserved for SC were kept unfilled and workman was not given benefit against restructuring of cadre w.e.f. 01-03-1993 ,

6.This is disputed by first party by filing reply Ex- 11 making out case that, reference is not maintainable as concerned workman is not a ' workman ' as defined under Industrial Disputes Act . It is stated that, union cannot raise dispute of this type about retired employee since concerned workman does not come under definition of "workman" as defined under Section 2 (s ) of Industrial Disputes Act. It is further stated that reference is bad for non -joinder ofnecessary parties as post is prayed by Union togrant promotion given to L.R. Wagh, While giving relief to concerned workman , definitely L.R. Wagh will be affected. Since L.R. Wagh is not party to this reference, he cannot put up his case and relief cannot be granted against person who is not party in the reference which will affect on his right and claim . Besides it is stated that claim is made after 12 years which bad in law as no reason is given about delay. Even there is forum called Permanent negotiation Machinery (PNM) . Since concerned workman did not approach PNM , cannot pray relief before this Tribunal. Since there is no community of interest among the workmen, and since union has no support of sufficient members to expouse cause for individual it is stated that, no relief can begranted ofthis type. It is further stated that , in 1992 first party carried out exercise of selection process of Head Clerks to the post of OS- II Grade to fill up 12 vacancies . Accordingto management, as per practice followed by in railways ratio of 1 : 3 , first party invited 36 employees for the said selection process . The test of written test, interview after written test and after going through Confidential Report of candidate selection was made . Even panel was prepared for the said selection. 12 general candidates from the said panel were promate on 01-03-1993 among therm Shri L.R. Wagh was successful in selection criteria and waspromoted w.e.f. 06-01-1994 against vacancy occurred arising out of retirement of an employee. Since concerned workman has not proved his eligibility for promotion, he was not considered and now cannot pray to consider it after such a long period . So it is stated that, reference deserves to be rejected.

5. Accordingto union , management's letter dated 19-06-1997 based on Court Judgment, these two posts were tobe released and filled by SC candidates , Since concerned workman is eligible to post of OS- Il Grade, he was not considered , Management by letter dated 04-07-1997 instead of granting promotion to concerned workman granted promotion to Shri L.R. Wagh w.e.f. 01-03-1993 against reconstruction of cadre . According to union , said L.R. Wagh wasjunior to the concemed workman . Union further alleged that, concerned workman was wrongfully declared as unsuitable for the post in the year 1993. It is contended that, concerned workman was entitled to get promotion in place of L.R. Wagh and was entitled to post of OS - 11 Grade which was granted to L.R. Wagh on the principles of seniority. It is further stated by union that , he was also entitled for further promotion of ChiefOffice Superintendent w.e.f. 10-05-1998, the post which was made available to L.R. Wagh, However it was not given to him since he failed in Viva voce test . According to union, if concerned

3631 GI/2008-19 5596

[PART II-SEC.3 (ii)] THE GAZETTE OF INDIA : OCTOBER 4,2008 /ASVINA 12 , 1930

7. In view of above pleadings my learned predecessor framed issues at Ex- 15 which are answered as follows;

Issues

Findings

(1) Whether P.N. Gaikwad is a " Workman " ?

(ii) Whether he is entitled for promotion as claimed in the statement of claim?

( i) Whether subjet matter can cover under the definition of Industrial Disputes?

concerned workman Gaikwad is not ' workman' when he made claim nor was employee of first party at the time of making reference since Gaikwad retired on 01-03-2001 . He was not in employment of first party whem dispute was raised. Besides dispute raised by union about Gaikwad cannotbe treated as " industrial dispute" since Gaikwad was not in the employment of first party when dispute was raised . According to first party, anion cannot raise dispute in respect of retired employee. Besides status ofconcerned workman who retired as a " Head Clerk " , does not permit union to call concerned employee as ' workman ' to seek benefits under Industrial Disputes Act .

No relief.

( iv) What relief second party is entitled to get?

(v) What order?

As per order below.

Reasons

Issue No. 1 :

11. To support that , second party has led evidence by filing affidavit Ex- 13 in lieu of examination - in -chiefwhere he stated the history of his service . Instead of stating anything about his status as workman and his emitlement over the claim , union was happy in narrating the history of service ofconcerned workman and capitalizion promotion given to Shri L.R. Wagh by ignoring claim of concerned workman, In the affidavit nothing is stated by the concerned workman as to how he is ' workman' though he retired and howhe can claim relief when he is not in the employment? In the cross this witness has stated that , the employee withwhom he is comparing i.e. Wagh hail from Scheduled Castecategory.Even he admits that , he has not approached the conciliation authority which is there to settle grievances ofpromotion. Against that , management has filed affidavit ofone G. V. Jagtap in lieu of examination - in -chief at Ex- 18 where he states that, concerned workınan is not entitled to any relief since he is not workman ' . He also stated that , since concerned workman is retired and since he has not explained the delay as bis demand comes after 12 years from retirement, he is not entitled to any relief. In the cruss this witness states that, said workman was maintaining register in respect ofentry and exit of goods at Wadibunder . Even there is no cross of union or from the concerned workman's side putting suggestion about his status or making out case about his work , duties and status and his competency to demand the relief as prayed in the claim statement. Written Arguments is submitted by Second party at Ex-21 and by first party Ex-22.

8. Claim Staternent is filed by Vice President, Nhava Sheva Port and General Workers Union raising dispute of not granting promotion to one of its member, Shri P.N. Gaikwad who was employed by the Management of Central Railway as a Khalassi w.e.f. 19-01-1964. The case of the union is that, said workman was promoted to the post of Jr. Clerk w.e.f. 27-07-1970 and then on post of Senior Clerk w.e.f. 04-07-1980 and thereafter said workman was promoted to the post of Head Clerk w.e.f. 01-01-1984 and then on post ofOffice Superintendent Grade - II w.e.f. 13-09-1996. Accordingto union , said workman was eligible and entitled for promotion on post of OS II grade w.e.f. 01-03-1993. As his case fully covered under the scheme of restructuring of certain Group C & D Cadres by Ministry of Railway by letter dated 27-01-1993 according to union, as per said scheme, workman of category of Head Clerk as on 01-03-1993 were entitled to post of OS - II Grade against revised percentage. According to union , as per said scheme, workmen working in category of Head Clerk were tobe promotedto OS- II Grade only on scrutiny of service record and Confidential Report where written test or viva does not require . According to union, management decided to fill up 14 posts of OS - II grade as per the scheme wed . 01-03-1999 . However out of 14 posts management decided not to full 2 posts against restructuring of cadres which were reserved for SC category . Said two posts were kept unfilled for SC candidates as per Chief Personnel Officer's letter dated 12-11-1993.

9. According to union , Shri Gaikwad concerned workman was senior in service and was in category of Head Clerk . He was senior to L.R. Wagh who was promoted by giving benetit of the scheme . According to union , concerned workman Gaikwad is entitled for the said post as welt as entitled to get benefits of further proιποτίons against the restructuring of cadre w.e.f. 01-03-1993.

10. This is disputed by management saying that ,

12. First party is taking strong objection about status ofconcerned workman " Gaikwad " stating that , Gaikwad cannot claim any relief as he is not workman ' , Besides it is stated that, he has not explained delay of 12 years as concerned workman retired in 2001 and claiming relief about hispromotion w.e.f. 01-03-1993 . For that , first party rely on citation published in 1999 LAB IC 2766 where Kerala High Court whiledeciding case of C.J. Everestee Vis . District Labour Officer and others where it is observed that the employees who have accept voluntary retirement on certain scheme cannot claim any relief under the Industrial Disputes Act. It is further observed that, by following judgement reported in Sukumaran V/s . HMT Ltd. 1999 ( 1 ) Ker L. T. SN 10 , where Kerala High Court observed that, 5597 [भाग II- खण्ड 3 ( i ) )

भारत का राजपत्र : अक्तूबर 4, 2008/आश्विन12. 1930

workman who retired from services , cannot come under the definition of workman ' and workman who is retrenched, dismissed or discharged can only raise dispute under provisions of Industrial Disputes Act. Besides he place reliance on the citation published in 2000 (1 ) CLR 671 where Apex Court while deciding case ofNedungadi Bank Ltd. V /s . K.P. Madhavankutty observed that, if dispute is raised after 7 years , it cannot be considered if such a delay is not explained.

cannot be called as " Industrial dispute" . Moreover it appears, it is a individual dispute although cláim statement is filedby Vice-President of union. It is not pointed out whether members of union agreed to raise dipute. It is not shown whether there was any resolution passed in the union permitting union to espouse the cause of the concerned workman who was not at all their memberwhen dispute appears raised through union by the concerned workman. So definitely all these questions are not answered byunion and concerned workman , which does not permit union and concerned workman to proceed with claim and the dispute. So I conclude that, subject matter involved in the reference does not come within the definition of Industrial dispute and answer this issue to that effect.

Issues Nos . 2 and 4:

15. Since second party failed to prove that , concerned workman comes within the definition of 'workman' and dispute raised by him through union is industrial dispute , he cannot seek any relief.

13.As per Section 2 (s) of Industrial Disputes Act , definition ofworkman is given and as per that an employee who is dismissed, discharged or retrenched comes under the definition of' Workman '. Said definition does not cover retired employee. Besides citation referred above clearly enlighten who can raise a dispute . If we apply that ratio and definition given under Section 2 ( s) of Industrial DisputesAct and admitted position of concerned workman Gaikwad who retired cannot be called as ' workman ' . We findhe doesnot have qualification to call as a "workman" . When he is not workman, in my considered viewhe is not entitledto any protection as given to a ' workman ' who fall under definition ofSection 2 (s) of Industrial Disputes Act and who can be protected under provision of Industrial Disputes Act . So I observe that, concerned workman Gaikwad is not a ' workman ' . Besides his last status as OS- Il which he occupied w.e.f. 13-09-1996, does not permit him to claim and seek any relief as ' workman ' . Moreover, that status does not permit him to be called as a ' workman' .

IssueNo. 3 :

16. Beside he is challenging the promotion given to one L.R. Wagh, Admittedly said Wagh is not made party. According to concerned workman , promotion was given to Wagh w.e.f. 01-03-1993 . According to concerned workman, actually that time he was entitled to promotion to the post of OS -1 Grade as was granted to Wagh . According to concerned workman , he was also entitled for further promotions to the post of Chief Office Superintendent w.e.f. 10-05-1998 as the said post was made available to Wagh but Wagh could not get it, since he failed in viva test . If at all that opportunity would have given to him , difinitely he might have achieved it. So all these claims of the concerned workman are hypothecated on surmises and presumptions . Only entitlement is not criteria to claim promotion . For promotion , one has to go through all those promotional test and must have that caliber and then one can claim promotion . Concerned workman appears that he forgot that and go on claiming promotion as of right . At the most he can fight for injustice but cannot fight for promotion as of right as promotion is given by looking number of things particularly performance, integrity , sincereness , punctuality and interest in work . Only by age or by seniority one cannot claim promotion. He is comparing himself with Wagh who isnot made party in the proceeding. We do not knowwhat is stand of Wagh . We do not know how Wagh was promoted?When he is specially challenging the promotion given to Wagh , question arises why he was shy in making Wagh a party. In the absence of Wagh , we cannot comment on his promotion and cannot say that , promotion given to Waghwas not correct and concerned workman was entitled in place of Wagh . Besides ,he seeks his promotion hypothetically saying that, if promotion might have given to him , he might have succeeding in acquiring position of ChiefOffice Superintendent where Wagh failed as he could 14. While framing issues , order was passed to decide issue No. 1 first. As far as issue No. 1 is concerned , I discussed above and decided. Now issue when debar concerned workman in raising subject matter involved in the dispute create hurdle in discussing claim of concerned workman. When union raised dispute of promotion not given to concerned workman and when he was not in employment that time admittedily dispute was raised when concerned workman was retired on 01-03-2001 question arises how his demand can be considered? Besides he has not explained as to why he was late when his promotion was denied in 1993 by raising dispute after his retirement . Moreover he has not explained how he can get reliefwhen he lastly worked on the post of OS - II Grade w.e.f. 13-09-1996 ? All these series of questions remain unanswered. Besides his status after retirement does not permit him to call as ' workman ' as Section 2 (s) does not cover retired employees but permit employee to raise dispute aboust his retrenchment, dismissal or discharge from employment. The status of employee does not come in the purview of Section 2 (s ) of Industrial Disputes Act. Besides he is raising dispute about promotion regarding past and further he is claiming promotion w.e.f. 01-03-1993 by raising dispute after retirement and also claiming promotion of future . He has not explained as to why he is late and delay in raising dispute ? So definitely such dispute 5598

THE GAZETTE OF INDIA : OCTOBER 4, 2008/ ASVINA 12, 1930

[PART I- SEC . 3 ( ii ) ]

[सं. एल -12012/27/2003- आई आर ( बी -1 ) ]

श्री. कं. मनचन्दा , अनुभाग अधिकारी

New Delhi , the 11th September, 2008

S.O. 2814. In pursuance of Section 17 of the Industrial Disputes Act. 1947 ( 14 of 1947) , the Central Govemment hereby publishes the Award ( Ref. No. 79:2003 ) of Central Government Industrial Tribunal -cum - Labour Court No. 2, Mumbai , as shown in the Annexure in Industrial Disputebetween the management of Reserve Bank of India, and their workmen, received by the Central Government on 11-09-2008 .

[No. 1.- 1201 1 /27/2003 - IR ( B- 1 ) ] 13 K. MANCHANDA, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL NO . 2, MUMBAI PRESENT

Shri A.A. Lad , Presiding Officer

Reference No. CGIT-2 /79 of2003

Employers in Relation to the Management of Reserve Bank of India

not pass viva test . So the entire story of concerned workman and demand made by him through union is imaginary hypothetical and not made on facts which are on ground. Besides he waited for 12 years and now challenge promotion given to Wagh which he has not explained. Citation published in 1997 LAB IC page 3061 a decision ofGujarat High Court in case of Bansidhar Sarma and Others V/ s . Certifying Officer and Labour Commissioner , Assam where it is observed that , one cannot challenge promotion given to a person who is not party in the proceeding. Same view is taken by Madhya Pradesh High Court white deciding case of Pushpa and Ors . Vis. State of M.P. published in 2006 LAB IC 761. The citation published in 1997 ( 2 ) LL.N 140 where Bombay High Court while deciding case of Valente Lourdes Vis . Kadamba Transport Corporation Ltd. observed that , promotion is a method of selection and unless thar selection is challenged without making allegation of extortion , or malafide selection , said selection cannot be set aside . Here second party has not challenged selection or process of selecting Wagh , buthe is claiming promotion as of right . When he has not made Wagh party, When he has not explained luches and delay and when his grievance does not come under Industrial Disputes Act and when he is not workman ' as he is retired when dispute was raised , in my considered view, this type of person is not entitled to any benefit .

Through the Deputy General Manager, ExchangeControl Department, Central Office, Central Office Building , 10th floor,Mumbai-400001 .

... IstParty

And

Their Workmen

Reserve Bank Workers'

Organization, through General Secretary, having his office at Parvatibi Building; 2nd floor, Pithe Street . Mumbai -400001 .

...2nd Party

APPEARANCES

17.As stated above, I ordered to decide issue No. 1 as preliminary issue . However no evidence is led by both by making concentration on the order passed by this Courr.. Even they did not lead evidence only on single point but they led evidence on entire demand of concerned workinan. Besides I find concerned workman when is not a ' workman ' , and dispute raised does not come in the definition of Industrial Dispute , I feel there is no point in keeping the reference alive for further orders . So I decided to discuss all that and deciding accordingly entire reference with conclusion that reference is not maintainable and deserves to be rejected. Hence the order:

For the Employer

ORDER

Mr. S.C. Mahanta , Representative.

For the Workmen

Reference is rejected.

Mr. Umesh Nabar , Advocate. Dated: 18-07-2008

A.A. LAD, Presiding Officer नई दिल्ली , 11 सितम्बर, 2008

Date of reserving Award: 07-02-2008 Date of passing ofAward: 24-07-2008 AWARD

The matrix of the facts as culled out from the proceedings are as under:---

का.आ. 2814, औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार रिजर्व बैंक ऑफ इंण्डिया के प्रबंधतंप के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण , मुम्बई -2 के पंचाट ( संदर्भ संख्या 79/2003 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 11-09-2008 को प्राप्त हुआ था।

2. The Government of India , Ministry of Labour by its Order No. L -2011 /27 / 2003 - IR( B - 1 ) , dated 27th November, 2001 and Corrigendum No.-2011 /27 /2003 - IR (8-1 ) dated 20th February, 2004 in exercise of the powers conferred by clause ( d ) of sub -section ( 1 ) and sub -section $599 भारत का राजपत्र : अक्तूबर 4, 2008/ आश्विन 12, 1930

[भाग ।।- खण्ड 3 (ii) ]

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

"Whether the action ofthe Management ofReserve Bank ofIndia, Mumbai in not making change ofGroup ofHindi Translator from Group 'A ' to Group 'D' is justified? Ifnot , what relief the Union viz. , Reserve Bank Workers' Organization is entitledto?"

cadre of Clerical Grade II and was appointed as such on 6-12-1983. He applied for the post ofHindi Translator and on being found suitable as per the norms , he was appointed as Hindi Translator with effect from 19th August, 1996. Consequently he is presently working as Hindi Translator in FED. The letter of appointment indicates the duties of Hindi Translator which inter alia includes that, Shri Bhise can be assigned the regular clerical duties in any of the establishment of the Bank including that of Coin -Note Examiner Grade 11 and that, Shri Bhise would be eligible to draw special pay of Rs . 275 per month (now Rs . 405 рег month) as long as he is working as Hindi Translator. According to ist Party it was made clear that Shri Bhise would not be eligible to draw the special pay if ( i ) he ceases towork as Hindi Translator , (ii ) if he is promoted as aClerk or Coin-Notes Examiner Grade I; (iii ) he wouldbe eligible for the said special pay ofRs . 275 per month (now Rs . 405 per month) if he continues to work as Hindi Translator even after his promotion as a Clerk Grade 1.

3. To support the subject-matter in the referencethe Statement ofClaim is filed by the 2nd Party, Union through itsGeneral Secretary , at Exhibit 12 stating that, the employee involved in the reference was employed with 1st Party as Hindi Translator. However, he was doing work of Hindi Assistant which is treated as Group ' D' category. However , he was paid salary of Group "A". According to Union actually concerned Workman was entitled to get salary of cadre ofGroup 'D' as he was working as a Hindi Assistant though appointed as Hindi Translator. Union stated that, it is a registered Union and represents the employees concerned in the reference who are employed andworking withthe 1st Party, and who are posted as Hindi Translators invarious establishments of the 1st Party Authority, Union has always fought for the betterment of services of employees employed with various establishments . Union has also always resolved the grievances of the employees through collective bargaining. However , 1st Party did not give any cooperation and negotiate the demand of the Union to treat the work ofthe concerned workmen ofGroup 'A' to Group 'D' and for grant of pay scale ofGroup 'D' which is notjust and proper. According to Union concemed workman is appointed in Group ' A' but he was doing the work ofHindi Assistant. He performs duties identical and the same that of Hindi Assistant which comes under the category ofGroup 'D' . The principle of " equal pay for equal work " applies to the work of concerned workman. However, it is not followed by the Authority. It is prayed that, scale ofGroup ' D ' given to the concerned workman and he be benefited of that cadre .

6. It is contendedby the 1st Party that , as per circular dated 27th March , 1995 Mr. Bhise submitted his representation on 14th October , 2001 addressed to the Governor referring to the said circular requesting that , the salary paid to the Hindi Translator should be on par with that paid to Hindi Assistant alleging that, the duties of both the Hindi Translator and the Hindi Assistant listed out in the circular were common in nature and requested that , he should also be paid accordingly. His said request was rejected by letter dated 1st December , 2001. He did not challenge that, decision by approaching the appropriate forum. According to Ist Party concerned workman , is not entitled to get pay scale of Hindi Assistant as post of Hindi Assistant is promotional post . Since he was appointed as Hindi Translator and since he was not promoted to the post of Hindi Assistant he is not entitled to claim the scale ofHindi Assistant ofGroup ' D ' . Whatever decision is given by the 1st Party is just and proper and Union cannot challenge it in the form of this prayer . It is further stated that , the 2nd Party Union cannot represent the concerned workmen as said Union is in minority in the establishment of the Ist Party. Since Hindi Translator is paid ofsalary of Group 'A' the prayer prayed by the Union togivepayscale in Group ' D' which is scale ofpromotional cadre is not justified. It is stated that , as of facts the concerned workman cannot get it . So it is submitted that, the referencemay be rejected.

7. In view ofthe above pleadings issues were framed at Exhibit 18 which I answer as follows:

Issue.

Findings 4.Accordingto Union gradually 1st Party stopped filling in the posts of Hindi Assistants . Job of Hindi Assistant is got done through Hindi Translators . In fact it is change from Hindi Translators to Hindi Assistants. Said change is not effected by following provisions of Section 9(a) ofthe Industrial Disputes Act, 1947. No notice was given and the same has been effected without consultation ofthe Union and without hearing the Union on that point. 1st Party has gradually started abolition of the post of Hindi Assistant and started utilizing the services ofHindi Translators on the post of Hindi Assistants .

1. Whether action of the Management in not making change ofGroup of Hindi Translator from Group 'A' to Group ' D ' is justified?

2. What order?

Asper order passed below.

Thisis disputed by the 1st Party by filing reply, at Exhibit 15, contending that , S.V. Bhise, the concerned workman forwhom Union has raised the issue, was initially appointed as a temporary Typist by the Ist Party on 14th October, 1980. He gave option for switchover to common 5600

THE GAZETTE OF INDIA : OCTOBER 4, 2008/ASVINA 12, 1930

(PART II-SEC. 3 ( i ) ) Reasons

Issue no. 1 :-

8. Union filed rejoinder at Exhibit 16 repeating the facts as mentioned in the Statement of Claim . However, Union failed to file affidavit of any of its witnesses and lead evidence in support ofthe claim ofthe Union to enable the concerned workman Shri Bhise to claim the pay scale ofGroup ' D ' Hindi Assistant. Against that 1st Party also decided not to lead any evidence and filed pursis at Exhibit 19 stating that, it will rely on the documentary evidence placed on record and on case - laws.

and different scale ofthe same post in various departments and various establishments . As of right Union cannot pray to direct 1st Party to give scale of Group ' D' to the concerned workman on the basis of " equal pay for equal work" . There are number of judgments which does not permit to follow the principles of " equal pay for equal work" . If work is done in particular department, by temporary employee said employee cannot claim of permanent employee and such a scale is not given to the person who is working on the same work. For that he relied on the citations published in the Service Law Joumal VII 2005 page-264 where Apex Court while deciding case of Deb Narayan Shyam & Ors . Vs. State of West Bengal observe that, when matter is examined by Pay Commission and decided it , Court cannot interfere in it . According to 1st party the grievances of the concerned workman was decided by the 1st Party and it was intimated by reply dated 1-12-2001 . 2nd Party did not challenge that decision where it was observed that , concerned workman is not entitled for pay scale ofGroup ' D ' which is available to the Hindi Assistant. Citation published in AIR 2003 SC page 2658 while deciding the case of State of Haryana vs Tilak Raj observed that , if the claim is made by daily wager in comparison with the regular and permanent staff stating that she is doing same work which is done by permanent and regular work and if claim wages on the basis of equal pay for equal work' it cannot be considered. Citation published in AIR 1989 page 19 where Apex Court while deciding case of State of LI.P. vs. J.P. Chaurasia and Ors . Observed that , following principles of " equal pay for equal work " is the question of administration in such matters Courts need not and should not interfere . Citation published in 1988 SC page 1291 while deciding the case of Federation of All India Customs & Central Excise Stenographers ( Registered) & Ors . Vs. L'anion of India and Ors . laiddown the ratio that, when the differentiation sought to be justified on ground ofdissimilarity of responsibility, confidentiality and relationship with the public etc. and on that basis scale is fixed though the work is of sirnilar type for two persons who are claiming differences .

( 10) As far as case of change " under Section 9(a ) of the industrial Disputes Aul . 1947 is concerned . no specific case is made out by the Union . No evidence lead on it . No argument advanced on it. Even issues framed does not cover the issue of " change " . Besides 2nd Party did not press to have that issue of " change " for consideration and decision . So I feel I need not burden the judgment in commenting on subject of' change' .

(9) Perused the written arguments of the 2nd Party filed at Exhibit 20 and written arguments filed by the Ist Party at Exhibit 21. As per that , i.e. written arguments at Exhibit 20 , Union tried to make out the case that , the concerned workman i.e. Mr. Bhise is doing the work of Hindi Assistant though he was posted as Hindi Translator. It is also stated that, gradually Ist Party started reducing the strength on the post of Hindi Assistant . Accordingto Union wark of Hindi Assistant is get done from Hindi Translator gradually is in fact ' a change ' . Said ' change ' is not intimated to the Union or made after discussion with the Union . Accordingto Union 1st Party cannot make such a' change' and it is illegal . When concerned workman isdoing the work of Hindi Assistant and on the basis of " equal pay for equal work " , he is entitled to get salary of the cadre of Hindi Assistant though he is posted as Hindi Translator. According to the Union ' when concerned workmen is doing duties of Hindi Assistant he must get benefit of it. However, Ist Party is not considering it so it is prayed that scale of Group ' D' be given to the concerned workman . Whereas 1st Party in its written statement made out the case that concerned workman is posted on the ost of Hindi Translator . According to ist Party post of Hindi Assistant is a promotional post. According to Ist Party there are number of employees in various categories including officers in Class 1 , workmen ie , like Clerks , Assistants , Stenographers , Typists etc. in Class 111 . Accordingto Ist Party , there is subordinate staff as Peons , Mazdoors etc. in Class IV category for discharging its functions . The workmen involved in reference was posted actually as Hindi Translator. Accordingto 1st party post ofHindi Assistant is a promotional post . Unless and until concerned workman is qualified for the post of Hindi Assistant , he cannot get cadre of Hindi Assistant vis -a- vispost ofHindi Assistant . He cannot get special pay of it which is attached to the post ofHindi Assistant. It is further stated that, as per settlement dated 18th August, 2000 post of Hindi Translator was kept in Group 'A' whereas post of Hindi Assistant was kept in Group D which is having higher pay scale than the Group ' A ' which is available for Hindi Translator. While posting person in post ofHindi Assistant , level of expertise , experience , suitability is looked into while appointing on the post of Hindi Assistant which bears different scale for different work

( 11 ) It is admitted position that post of Ilindi Assistant is promotional post . Even Union urging to give scale of Hindi Assistant to concerned workman saying that he is entitled for that scale . However, it is not proved that concerned workman is doing work of Hindi Assistant only .No evidence on that point is placed on record. In my considered view in the absence of evidence on the point of [भाग II-खण्ड 3 (ii) ]

5601

भारत का राजपत्र : अक्तूबर 4, 2008/आश्विन 12, 1930

work ofconcerned workman as a Hindi Assistant, I cannot give favourto concerned workman blindly in the absence ofevidence. So ifwe, consider all this coupled with facts of this case that, the post of Hindi Assistant is a promotional postand concerned workman was appointed on the post of Hindi Translator , according to me he is not entitledto the scale of Group ' D' which is available for persons working on the post of Hindi Assistant. Besides it is not made out clear by the Union or by the concerned workmen by leading any type of evidence and succeed in showing that duties discharged by the concerned workman are ditto and similar to the employees working on the post ofHindi Assistant. It is stated that, Shri Bhise, was doing similar type ofwork. Here Union claims that similar type ofwork is done by the concemed workman . It does not mean similar type means ditto or same work which is done by the employees working on the post of Hindi Assistant. Admittedly concerned workman is posted on the post of Hindi Translator . His post is of Hindi Translator, his scale is of Group 'A ' which is applicable to Hindi Translator. Sincehe is not posted as Hindi Assistant in my considered view he is not entitled for the scale of Hindi Assistant i.e. ofGroup "D'.

(12) In view ofthe discussions made above i conclude that, claim of the Union to give scale of Hindi Assistant to Bhise does not require to consider and deserves to be rejected. So I answer the above Issue to that effect and passes the following order;

ORDER

Reference is rejected

with no order as to its costs.

Bombay, 24th July, 2008.

A.A. LAD, PresidingOfficer नई दिल्ली , 11 सितम्बर , 2008

का.आ. 2815.-औद्योगिक विवाद अधिनियम , 1947 (1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार स्टेट बैंक ऑफ इंदौर के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधि करण , मुम्बई -2 के पंचाट ( संदर्भ संख्या 111/2000 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 11-09-2008 को प्राप्त हुआ था । [सं. एल-12012/337/2000- आई आर ( बी-1 ) ] बी. के. मनचन्दा, अनुभाग अधिकारी New Delhi , the 11th September , 2008 S.O. 2815. In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947 ), the Central Government hereby publishes the Award ( Ref. No. III / 2000) of the Central Govemment Industrial Tribunal- cum- Labour Court No. 2, Mumbai , as shown in the Annexure in Industrial Dispute between the management of State Bank of Indore, and their workmen, received by the Central Government on 11-09-2008

[No. 1-12012/337/2000- IR (B -I)] B. K. MANCHANDA, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL No. 2, MUMBAI PRESENT

A.A. Lad, Presiding Officer

ReferenceNo. CGIT-2/111 of2000 Employers in Relation to the Management ofStateBank of Indore

..... I st Party The Deputy General Manager, State Bank of Indore, EMCA House, Ballard Estate,, Mumbai400 001 .

AND

The Workmen

.....2nd Party State Bank of Indore Employee's Union , Through General Secretary, Empire House , 214, D. N. Road, Fort, Mumbai 400001 .

APEARANCE :

For the Employer : Mr. S. P. Bhagwat, Advocate For the Workmen ': Mr. Umesh Nabar , Advocate Date of reserving Award: 14th February, 2008. Dateofpassing ofAward: 29th July, 2008.

AWARD PART II

The matrix of the facts as culled out from the proceedings are as under:

1. The Government of India , Ministry of Labour by its Order No.L- 12012/337 /2000/IR(B- 1 ) dated 8thNovember, 2000 In exercise ofthe powers conferred by clause ( d) and sub-section 2 (A) of Section 10 of the Industrial Disputes Act, 1947 have referred the following dispute to this Tribunal for adjudication:

"Whether the action of the Management of State Bank of Indoreby dismissing Shri N.G. Jadhav from the services ofState Bank of Indore . w.e.f.13-4-99 is justified? If not, what reliefthe workman is entitled?

2. To substantiate the subject- matter referred in the reference 2nd Party submitted Statement ofClaim at Exhibit 8, through General Secretary ofthe Union contending that, the concerned Workman joined with 1st Party on 23rdApril, 1979 as a Clerk at Bhuleshwar Branch . Subsequently he was assigned work of Chief Cashier at Fort Branch and after 12th December, 1988, on the basis of seniority and merit, he was considered for the said post . According to the Union entire record of the concerned workman was unblemish and clean.

5602

THE GAZETTE OF INDIA : OCTOBER 4, 2008/ASVINA 12 , 1930

[PART II-SEC. 3 ( ii) ]

Ist Party on the basis of such a finding is not proportionate. So it is submitted that, enquiry be declared not just and properand finding perverse .

4. This prayer is disputed by the 1st Party, by filing reply at Exhibit 9, denying the allegations of the Secretary ofthe Union and case made out by the concernied Workman stating that , proper opportunity was given to the concerned Workman . He was represented by the Union representative . No evidence was led by the concerned Workman. There was sufficient evidence before the Enquiry Officertohold concerned Workman guilty of the charges leveled against him. The misconduct of doing any act of prejudicial to the interest of the Bank or gross negligence or negligence involving or likely to involve the Bank in serious loss was leveled against the concerned Workman . The charge of willful damage or attempt to cause damage to the property of the Bank or any of its customers was also leveled against the concerned Workman. Even charge of giving or taking a bribe or illegal gratification from a customer or an employee of the Bank is also leveled against the concerned workman . After receiving Charge sheet 10 days' time was given to the concerned Workman to explain as to why enquiry should not be initiated against him . The reply, dated 4th October . 1995 , given by the concerned Workman denying the allegations was read by the Management and since said explanation was not satisfactoryby letter dated 17th October , 1995. First Party appointed Ram Atre as Enquiry Officer. By letter dated 16th November, 1995 date was fixed as 8th December, 1995 as the first date of the enquiry and Shri Wagle was appointed as Presiding Officer by the Bank. Concerned Workman appointed Shankar S. Joshi as his Defence representative, who defended the concerned Workman. Enquiry was held between 8th December , 1995 10 11th December, 1996 in which 6 witnesses were examined by the 1stParty. Except Mohile , all the remaining 5 witnesses were cross-examined by the 2nd Party's representative and declared that , he did not want to cross - examine Mohile , the witness of the Ist Party Even concerned workman did not examine himself nor any other witnesses 10 defend his case. After giving opportunity to both to submit their written submissions , the enquiry officer gave finding holding concerned workman guity of the charges leveled against him. Said finding was having ground, reason . The enquiry is fair and proper and finding was based on it. It is submitted that , such an enquiry cannot be declared null and void and not just and proper as claimed by the concerned Workman .

5. In view ofthe above pleadings my L.d. Predecessor framed the Issues at Exhibit 10 Out of those Issue No. 1 and 2 were tried as preliminary issues holding enquiry fair and proper and finding not perverse . After that reference was kept for deciding the point of punishment whether it is just and proper and whether the prayer of the concerned workmen to reinstate require to consider , which I answer as follows:

(3) On 3rd March , 1994 concerned Workman was served with suspension order alleging that, during his employment as Chiet Cashier at Fort Branch , some serious irregularities have been observed. The allegations levelled against the concerned workman were that, when he worked as Chief Cashier Cheque No. 697626 was received by the Workman unauthorisedly. It is also alleged that , Rupees four lakhs loan was raised by the concerned Workman from Diwali fund account on 23rd October , 1993 and the same was repaid by him in cash in six installments between 24th October , 1993 and 4th November , 1993. Even C.D. Account ofthe concerned workman were allegedly showing abnormal transaction . It was also alleged that, on 29th December, 1993 Cash Officer had initially remarked shortage ofcash ofRs . 4 Lacs, though it was then noticed as wrongly mentioned by mistake . It was also alleged that, concerned Workman took undue advantage and did not maintain the books properly till 30th December, 1993. So charge sheet was served on him dated 18th July, 1995 leveling above number of allegations and calling upon concerned Workman to submit his explanation questioning as to why, the disciplinary action should not be initiated against him? It was alleged that , concerned Workman misused position of the staff of the Bank and attempted to make unauthorized entries in the Bank's Books in respect of some transactions . Concerned Workman denied all those charges categorically, however , it was not heard by the 1st Party.It is stated that, without giving any consideration to the reply given by the concerned Workman , inquiry was initiated . Charges were not explained to the concerned workman . Account holder ofC.D. Account No. N- B7 was not examined by the Bank. Then charge sheet was issued on the presumption that , Workman intentionally wrote CD the Account No. N 87 without referring to correct title of the account mentioned in the Voucher. Material evidence of the witness were not placed on record by the Ist Party and as such, concerned workman lost an opportunity to cross examine said material witness . It is alleged that , fair and proper opportunity was not given to the concerned workman by the Enquiry Officer. The concerned Workman wasdeprived ofthe right to hear him . It is also alleged that, enquiry proceedings held against the concerned Workman was conductedby violating the principles of naturaljustice . Evidence led by the Ist Party did not prove the charges leveled against concerned Workman. The finding given by theEnquiry Officer holding concerned workınan guilty ofthe Charge under 19.5 ( k ) is not just and proper . The EnquiryOfficer only dealt with incomplete evidence which was favourable to the Isı Party. The Enquiry Officer totally ignored the evidence on record and gave finding just to oblige the Management. It is also alleged that , the finding ofthe Enquiry Officer is perverse and not according to the evidence led before him . Evidence was not valued by the Enquiry Officer noting the admissions given by witnesses and contradictions brought on record by the Defence Representative in the cross . The action takenby the 5603 [ भाग II- खण्ड 3 ( ii ) ]

भारत का राजपत्र : अक्तूबर 4, 2008/आश्विन 12, 1930

Finding

Issue

Yes

3. Whether the action of the Management of State Bank of Indore by dismissing Shri N.G. Jadhav from the services of StateBank of Indore w.e.f. 13-4-1999 is legal and proper?

4. What relief Shri Jadhav is entitled to? No

REASONS:

sincerely and his entire service record is clean and unblemished and acquired promotion of Chief Cashier within 10 years. He further made out the case that. on 3-3-1994 he was suspended after 15 years ofservice though he was having clean and unblemished record . The enquiry was conducted against him . It was alleged that , the C.D. Account heldby the 2nd Party was having heavy monetary umexplained transactions . On that , he submitted reply which was not considered by the Bank and enquiry proceedings were initiated against him .

ISSUE NO.3 :

(6) After Part I Award reference was kept for adjudication on the point ofpunishment and prayer prayed 2nd Party ( concerned workman ) of by reinstatement . On that, 2nd Party- concerned workman-filed an affidavit at Exhibit 33 in lieu of the examination - in -chief stating that, the Disciplinary Authority did not consider his service record which was undoubtedly and undisputedly clean and unblemished. He further alleges that, the Disciplinary Authority did not consider the facts and circumstances leading to the transaction alleged against him and held him guilty of charge of dual misappropriation. He further states that, Disciplinary Authority ignored the fact that the said alleged facts at the most amount to negligence in duties.He further alleged that , Disciplinary Authority did not consider that. No loss of any kind has been causedto theBank. He further alleged that , Disciplinary Authority did not consider the circumstances as well as his clean and unblemished service record ofwhich he is entitled to get benefit. He further alleged that, he tried to get alternative employment but did not get it and that his entire family is dependent on him . He further alleges that, he sold out his property to cope-up with the needs of the family. He further alleges that , due to mental tension and torture which he faced during the above tenure require to compensate by reinstating him and by setting aside the punishment awarded oftermination . In the cross 2nd Party made admits that, he joined 1st Party as a Clerk -cum -Cashier in 1979 at Bhuleshwar Branch and worked at Fort Branch as Head Cashier when he was terminated. He further states that, he was served with the Show Cause notice dated 12-12-1997 and he replied it. He admits that, personal hearing was given to him before termination of his services and he replied to the show cause notice to the proposed punishment. He admits that, he did not try for employment after termination of his services . Even he did not enroll his namewith the Employment Exchange . He then filed name with the Employment Exchange . He then filed closing purshis at Exhibit 35. Against that 1st Party has not led any evidence on the point of punishment and filed closing purshis at Exhibit 36.

(7) 2nd Party submitted written arguments at Exhibit 37 which were replied by the Ist Party by filing its submissions at Exhibit 38 ,

(9) According to him Ist Party ought to have considered the explanation given by him . Ist Party did not consider the same and proceeded against himby issuing charge sheet and holding enquiry. According to 2nd.Party. the punishment given of dismissal is not just and proper . It was given on ill motive or with malafied intention or given malafiedly with Intention to victimize the 2nd Party workman .Undisputedly the Disciplinary Authority didnor look into the clean and unblemished service record of the 2nd Party, concerned workmen and confirmed the punishment oftermination which is not just and proper . It is further contended that , no witnesses of the concerned workwere examined . According to 2nd Party charges leveled against him are not proper and the allegations leveled against him does not constitute the misconduct which warrant dismissal from service. In support ofthat , 2nd Party relied on the citations published in AIR 2006 page 1438 Punjab State Civil Supplies Corporation Limited vs Sikander Singh, 1979 ( 11 ) LLI page 14 SC Union of India and Ors . vs J. Ahmed. Against that Ist Party by written arguments at Exhibit 38 made out the case that , 1st Party conducted an enquiry and examined 6 witnesses before the Enquiry officer who were cross-examined by the 2nd Party. However, no witness was examined by the 2nd Party before the Enquiry Officer. Even no any other witness was offered or brought before the Enquiry Officer by the 2nd Party to support his contentions. After recording the evidence Enquiry Officer submitted report dates 26th May , 1997 with observations that charges are proved except charge /allegations Nos . 5 and 16 as partially proved against concerned workmen . Said report was sent by the Bank to the concerned Workman vide its letter dated 12th August, 1997. He replied it by his letter dated 19th August, 1997. Then show cause notice was issued to the 2nd Party on 12-12-1997 for the proposed punishment which was replied by the concerned workman by his letter dated 31-1-1998 . Then after going through the report and findings of the Enquiry Officer and reply to the show cause notice and the subinissions ofthe concerned workman , inflicted the punishment of disınissal and served on the concerned workman letter dated 13-4-1999 . By said letter he was removed from dated 13-4-1999 . By said letter he was removed from services. Then he preferred an appeal by letter dated 25th June, 1999. The Deputy General Manager ,the Appellate Authority gave personal hearing to the concerned workman and by letter dated 26thOctober, 1999 Disciplinary Authority informed him (8)2nd Party in written arguments made out the case that, he joined 1st Party as a Clerk in 1979. He worked

3631 G1/2008-20 5604

THE GAZETTE OF INDIA : OCTOBER 4,2008 /ASVINA 12 , 1930

Paar 11- Sec. 3 ( that, his appeal cannot be survived and order of dismissal was upheld. Thus misconduct alleged against the concerned workman which was proved beyond reasonable doubt wus considered by the Disciplinary Authority. The position of the concerned workmen as , " Head Cashier " was considered while awarding the said punishment . The post ofthe " Head Cashier " was a " confidential " and "rust worthy" post which was also considered by the Authority . Disciplinary Authority Disciplinary considered the allegations alleged against the concerned workınan and evidence brought on record and the charges proved against the concerned workman and they decided to terminate his services which does not require to be interfered , ist Party further contended that , it has lost the confidence in the 2nd Party and he cannot be continued on such a confidential post . 2nd Party admit that , he did not try for employment , does not show any proof that he tried but did not get any employment. No evidence is led to show that, how many family members are depending on him . Hence, the Ist Party requested that , the punishment awarded to the concerned workman does not require to be interfered. In support of that number of citatiuns were referred by the IstParty.

have been returned to hack le fact said cheque ouglit 10 have been returned to the concerned customer . However , heaccepted it in making slight corrections and sentit back . Said charge was also proved against the concerned workman . Then allegation of his receiving , with interest , a loan of Rs 4,00,000 from 1weli account which was credited in his S.B. Account No 20 and said loan was repaidby him in six cash instalmer's of huge amount between 26-10-1993 10 4-11-1993 As per Enquiry Officer evidence brought before him revealed that Rs . 75,000 was paid in his account on 26-10-1993 . Rs 25,000 on 27-10-1993 , Rs.1,0000 ότι 28-10-1993 . Rs . 65.000 on 29-10-1993 . Rs.50,000 on 30-10-1993 , Rs 89,000 on 4-11-1993 which was suspicious and source of said repayments was not explainedby the concerned workman and said charge was also proved against the concerned workman . Then allegation of showing total payment not correct on 24-12-1993 . Cheque bearing No. 20516 for Rs . 4 lack issued by c.s.e. on his Current Account but he purposely write Account No. 87 instead of No.84 on the said cheque and presented it for cash payment . So this charge was also proved against the concerned workmati . Then charge of Token Book was leveled against the concerned workman . Then charge of abnormal heavy amount ( eash/ transfer ) credit/ debit transactions between 27-11-1993 to 29-1-1994 in his account is also proved against him . Then charge of credit entry of Rs.30.000.- each made in CD Account No. N 87 on 1-1-1994, Debit entry of Rs. 10,000 - on 3-1-1994 in CD Account No.N 87 , credit entry of Rs.10.000 on 12-1-1994 issued on CD Account No. N 87 of the concerned workman were leveled against the concemed workman and which were also observed proved by the Enquiry Officer . Then charge of taking undue advantage of his being an employee of the Bank being a flead Cashier the practice of recording denomination - wise details of cash deposited atthe close of business in the cash reserve book was not adhered to by him prior to 30-12-1993 and suddenly this practice was started from December , 50 , 1993 onwards was also leveled against the concerned workman. The said charge was also observed proved by the Enquiry Otlicer against the concerned workman. Ten charge of casa memo dated29-12-1993 showing that there was 200 currency of Rs.500 denomination in the joint custody and 2 currency notes of the same denomination in the hand balance of the concerned workman had swelied to look at close of December 30 , 1993 i.e. net increase of 800 currency notes worth Rs.4 lakhs though there was no receipt of Rs.500 denomination notes on that day . The said charge was also observed proved against time concerned workman

( 11 ) If we consider the charges leveled against the concerned workman and the lindings given by the Enquiry Officer which remain undisputed one has to consider the status and the post held by the concerned workman which was of 'Chief Cashier ' , in the Bank reveals that . concerned workman is not entitled for any reliet's .

10.Here we have to see that , serious charges were leveled against the concerned workman , including the charge of abnormal heavy transaction in the C.D. Account of the concerned workman , misusing cheques of other account, charge of doing act of prejudicial to the interest of the Bank or gross negligence or negligence , to involve the Bank in serious loss and charge of willful damage or attempt to cause damage to the property of the Bank or any of its customers is leveled against the concerned workmen. The said charge was observed proved by the Enquiry officer . Then charge of using cheque No.20510. 20509 , 20512 and 20519 for various amounts and even account number was filled in various amounts and even account number was filled in by the concerned workman in his own hand writing which were of C.D. Account No. N84. So the Enquiry Officer observed that , C.D. Account No. 84 was given to Shri Nandkumar Jadhav whereas cheque Book issued to said C.D. Account No. 84 was litied in by the concerned workman Shri N.G. Jadhav in his own hand writing which is admitted by him though he was not concerned with that C.D. Account No. N 84. Said charge was also proved against him . Then charge of sending cheque No.697626 for Rs 4,00,000 ofAccount No.3968 of Shri Kantilal Jain which was credited in C.D. Account No.N 87 ofthe concerned workman . Said entry was made through Bank's Internat Transfer Voucher by the concerned workman. Said cheque was returned unpaid in clearing on 24th December, 1993 with remarks " Refer to Drawer" . That, the said cheque was received by him unauthorisedly making slight deliberate alterations in the name Le . N.D. Jadhav and the said cheque was returned and received by concerned workman by making initials on the cheque and retuned back . In fact said cheque ought to 5605 [भाग- खण्ड 3 ( ii) ]

भारत का राजपत्र : अक्तूबर 4, 2008/आश्विन 12 , 1930

misconduct is proved against employee and he is dismissed inthat case, no interference is required.

( 13 ) Against that citation referred by the 22nd party by producing Xerox copies of the decision in Civil ApplicationsNos. 6269, 6271 and 6273 of 2003 published in AIR 2006 SC page 1438 Punjab State Civil Supplies Corporation Ltd. vs Sikander Singh tried to point out that , 2nd Partycan claim back wages , on order ofdismissal , ifit is set aside. However , it is not pointed out how this citation help the concerned workman and how he can get benefit when order of dismissal cannot be set aside . Another citation referred published in 1979 II LLJ . Page 14 (Union of India anothers vs J. Ahmed) on the point of misconduct and definition of misconduct. However , it is not pointed out how the definition of misconduct given in the said citation is applicable in the instant case and how the concerned workman can get benefit of it?

( 14) Ifwe consider all this coupled with the evidence I am of the view that , the punishment awarded on 2nd Party is Just, proper and does not require any interference . So I answer this point in favour of the Management .

(15) 2nd Party pray for reinstatement with back wages . But in the instant case 2nd Party is unable to establish that , the order of dismissal can be set aside. On the other hand the contention of the 1st Party is that , the misconduct which is leveled against him and were proved were of very serious nature . There were number of irregularities . Besides there were number of ingridients in the actions of the concerned workman which were of high account of credit and debit. However , these were not explained . Besides the tampering with the cheque book, TokenBook is also leveled against the concerned workman which is ofserious nature, When the work ofthe concerned workman is that of a ' Cashier ' which is responsible post . In this situation if charges are proved against the concerned workman who is working on such a post it will give a bad signal to others if leniency is shown to the 2nd Party . When 2nd Party fails to prove that , punishment awarded of dismissal is not just and proper question of reinstatement does not arise. So 1 answer this issue to that effect.

(16) In view ofthe above discussion I conclude that reference deserves to be rejected. Hence, the order:

ORDER

Reference is rejected with no Order as to its costs . Bombay, 29th July, 2008.

A.A. LAD, Presiding Officer

नई दिल्ली , 11 सितम्बर , 2008

का.आ. 2816, औद्योगिक विवाद अधिनियम , 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार साऊधरन रेलवे के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण, (12)Much capital is made by the concerned workman that, Authority did not consider his past unclean and unblemished record. Accordingto Ist Party if the charge of misconduct is proved in that case, past record of the concerned workman does not come to his rescue and need not be considered while confirming the punishment on such an employee. For that, Ist Party relied on citation published in 2006 LLR page 252 where Apex Court while deciding the case of Karnataka Bank Limited vs A.L. Mohan Rao observed that , as long as an enquiry is fair, proper and also where misconduct is proved in that case , the past record ofthe concerned workman does not play any role. TheApex Court while deciding the case of Union Bank of India vs Vishwa Mohan published in 1998 ( 3 ) LEN (SC) page 89 observed that, in Banking business absolute devotion, diligence , and integrity need to be preservedby everyBank employee and in particular by Bank Officer. It is further observed that , if it is not observed confidence of depositors wouldbe impaired. Apex Court while deciding case ofP.C. Kakkar vs Chairman and Managing Director. United Commercial Bank Ltd. Published in 2003 LLR page 436 observed that, where punishment is imposed upon employee by the employer interference by the Court does not require. Citation published in 1995 1 LLJ page 233 where Karnataka High Court while deciding the case of Bank of India vs D. Padmanabhadu & ors . observed that, the Bank is the custodian of the money of the customers and the Cashier is the person who deals with the money and he mustbe more diligence and honest and when misappropriation is proved against him he cannot be considered sympathetically on the ground of his caste or for any other reasons . While deciding the case of Brihamumbai Municipal Corporation vs. Dattatraya Sonawane, published in 2006 11 CLR p . 848 , bombay High court observed that, if the charge of misconduct of misappropriation is duly established in the enquiry it would not be possible to hold that the punishment of dismissal was disproportionate and set aside by the Labour Court for reinstatement with the directions of back wages when charge of misappropriation is proved against the concerned workman . Allahabad High Court while deciding the case of Pinki Bose vs. Presiding officer . Central Government Industrial Tribunal -cum -Labour Court , Калриг published in 2006 II CLR page 242 observed that, ifcharge is proved in that case no interference is required by any Court . Citation published in 2006 CLR ( SC) page 32 while deciding the case of Life Insurance Corporation of India vs R. Dhandapaní observed that , Labour Court or Industrial Court is expected to interfere with the decision of the Management under Section 11 -A of the Act only when it is satisfied punishment imposed by the Management is wholly and shockingly disproportionate to the degree of the guilt of the concerned workman . Citation published in 2006 I CLR-(SC) page 854 Apex Court while deciding the case of L.K. Verma vs HMT Ltd. and anr. observed that, after holding enquiry and after charges proved of 5606

THE GAZETTE OF INDIA : OCTOBER 4,2008 /ASVINA 12, 1930

इरनाकुलम के पंचाट ( संदर्भ संख्या 50/2006 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 11-09-2008 को प्राप्त हुआ था।

01/47 / 1995 - आई आर ( बी -1 ) ] री. के. मनचन्दा, अनुभाग अधिकारी New Dell ... 11th September , 2008 S.O. 2816. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award (Ref. No 58/2006) of Industrial Tribunal - cum -Labour Court , Ermalulam , as shown in the Annexure in Industrial Dispute between the management of Southern Railway, and their workmen , receivedbythe Central Government on 11-09-2008 .

No. 141011 /47/ 1995 - R ( R- 1) ] B. K. MANCHANDA , Section Officer

ANNEXURE

IN THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM - LABOUR COURT, ERNAKULAM Present : Shri P. L. Norbert , B. A. , LL. B. Presiding Officer

(Thursday the 19th day of June, 2008 )

1. D. No. 58/2006

(1.D. No. 04:200 ! et Labour Court, ternakulan ) Union

The General Secretary. Southern Railway Construction- WorkersUnion , Railway Quarters No. 116 -B.

ByAdv.Sri C.Anil Kumar

Management : The Executive Engineer Constriction, Southern Railway. Ernakulam .

2. The Divisional Electrical Engineer (Construction ) , Southern Railway . Froukulam.

3.The General Manager . Southern Railway. Chennai .

ByAdy Sri M. C. Cheriyan .

This case coning up for hearing on 23-05-20118 , this Tribunal- cum - labour Court ота 19-06-2008 passed the fullowing:

AWARD

Theta a reference nuade under Section of ) of Industrial Disprites At the reference is :----

Whether the action of the management of Southem Railway, I makulam denial of interitu relict granted by 3rd Pay Commission to Shri K.N. Balakrishnan and 57 others ( Amiexure ) is justified ? If noi what relief the workmen concerned are entitled 2. The facts in briel are as follows: 58 employees

[PART II-SEC. 3 ( ii ) ] ofRailwayare claiming interim relief ordered by Government as per the recommendation of 3rd pay commission and adopted by the Railway Board. The interim relief, ifallowed, is payable from 01-03-1970 onwards .

3.Accordingto the management the claim is belated and stale . Some of the workers have died, a few others have retired and the claim itself is highly belated and should have been raised in 1970. None of the workers were regular employees ofthe railway . They were daily rated project casual labourers and were paid daily wages and not scale wages . None of them are entitled to interim relief recommended by the 3rd pay commission in the interim report. It is available only to regular employees of railway and not to casual employees .

4. In the light of the above contentions the following points arise for consideration: --

1. Is the claim stale?

2. Are the 58 workers entitled for interim relief?

The evidence consists of the oral testimony of WWI and documentary evidence of Exts . W - 1 . to W -48 on the side of the umon and Ext.M - 1 on the side of the management .

5. Point No. 1: The names of workers are mentioned in the annexure to the reference Some ofthem were working since 1954. It is an admitted fact that the 3rd pay commission had recommended to the Government for payment ofinterim relief to Central Government Employees from 01-03-1970 onwards . The Railway Board by its Board's decision adopted the order of the Government and decided to pay interim relief to the employees of Railway as well frosti 01-03-1970 . The management contends that the dispute is raised after a period of 30 years in 2001. Hence the claim is highly belated and cannot be entertained . It is to be noted that the cause of 58 workers was espoused from 1970 onwards by representing before the railway authorities and Government and filing writ O.Ps. and appeals . Exts.W-4. 5. 7,8 , 25, 28, 29 reveal this Ests W -37 and 38 are judgments dtd. 27-11-74 and 22-01-1974 respectively of Hon'ble High Court of Kerala in writ petitions filed claiming interim relief recommended by 3rd pay commission and ordered by Railway Board , Thus the claim for interim relief has been very much alive . Whether the 58 workers had attained temporary status and were entitled to scale wages were also agitated in writ A.l. and in appeals which accordingto the union had a bearing on the claim for interim relief . Thus the issue was prolonged nut due to any fault or latches on the side of the union or workers but the authorities concerned had not rendered a final decision . Ext W-40 is a judgment in A. P.2075-76 dared 28-11-1978 of the Hon'lile High Court ofKerala directing the Government to refer the dispute regarding interim relief to industrial tribunal . Again union made representation to Government to refer the dispute. Ext . WI O.P. was filed in 1996 for a direction to Government to refer the dispute . It was allowed . Against भारत का राजपत्र : अक्तूबर 4; 2008/ आश्विन 12 , 1930

[ भाग II- खण्ड 3 ( ii ) ]

that Ext. W2 writ appeal was filed by Government, but was dismissed on 25-01-2001. Thereafter by Ext . W- 3 reference order dated 20-03-2001 was Issued. The delay occurred in the above circumstances and there is no laxity or inaction on the part of union . Hence it is difficult to accept the contention ofthe Railway that the claim is stale and hence unsustainable .

6. Point No. 2: The union on behalf of58 workers are claiming interim relief from 01-03-1970 onwards. The 3rd pay commission in their interim report dated 16-09-1970 had recommended grant ofinterim reliefw.e . f 01-03-1970 to Central Government Servants having a basic pay not exceeding Rs.1250 per month . The Railway Boardby its decisiondated 01-10-1970 resolved to extent the said relief to railway employees . However the Board had also decided that the order for interim relief will not be applicable to ( 1 ) Casual Labour (2 ) Contract Labour (3 ) Railway Servants posted in Indian Mission abroad . Ext .W- 31 page 2 contains thedecision of the railway board to pay interim relief to its servants . There was some doubt regarding the application ofthe order for payment of interim relief to causal labourers . Hence clarification was sought and page 1 of Ext. W -31 contains the clarification:-

"2. The President is pleased to clarify the above point as under:-

(1) Interim relief should be granted according to the basic pay ranges indicated in Board's letter referred to above also to Railway staffwho are in the prescribed scale of pay.

(ii) Interim Relief should also be granted to causal labour and substitutes employed on Railways who have attained the status of temporary Railway servants on the completion of six month's continuous service , and in the case of substitute Teachers on their attaining temporary status after three months continuous service.

(3)The above clarifications are effective from 1-3- 1970".

By Ext . W- 25 and 28 the Assistant Labour Commissioner and Executive Engineer of the railway informed the union that casual workers working in projects are not entitled for interim reliefordered by RailwayBoard. Meanwhile the union made a representation to the Hon'ble Minister of Railways demanding interim relief to causal fabourers as well . The Labour Minister by Ext . W7 replied to the union that the casual employees who have not attained temporary status are not entitled for interim relief. According to the railway the 58 workers were project workers and hence, however long they worked, they were not eligible for temporary status or interim relief. The union disputes that the workers were employed in projects . Therefore the first question that requires to be considered is whether the workers were employed in projects or in open line. It is not disputed that casual workers in open line on completion of 6 months' continuous service are entitled for temporary status . Rule 2501 of Railway

5607 Establishment Manual 1960 (Edition 1968 ) defines casual labour as follows:-

"(a) Casual Labour refers to labour whose employment is seasonal, intermittent, sporadic or extends over short periods . Labour of this kind is normally recruited from the nearest available source . It is not liable to transfer , and the conditions applicable to permanent and temporary staffdo not apply to such labour, (b) The casual labour on railways should be employed only in the following types of cases , namely:-

(1) Staff paid from contingencies except those retained for more than six months continuously: Such ofthose persons who continue to do the same work for which they were engaged or other work of the same type for more than six months without a break willbe treated as temporary after the expiry of the six months of continuous employment .

(ii) Labour on projects , irrespective of duration , except those transferred from other temporary or permanent employment.

( ) Seasonal labour who are sanctioned for specific works of less than six months duration . If such labour is shifted from one work to another of the same type, e.g. , relaying and the total continuous period of such work at anyone time is more than six months' duration , they should be treated as temporary after the expiry of six months of continuous employment . For the purpose of determining the eligibility of labour to be treated as temporary, the criterion should be the period ofcontinuous work put in by each individual labour on the same type of work and not the period putincollectively by any particular gang oflabourers " ,

7. This Rule was amended in 1990 and is contained in Rule 200 i of Railway Establishment Manual Vol.1 [ Edition 1990. However so far as the dispute is concerned it was the old Rule that was applicable to the workers in question .As per Rule 2501 (b ) ( ii ) irrespective of the duration of the employment labourers on projects were treated only as causal labourers . It is as per the decision of Hon'ble Supreme Court in Inder Pal Yadav's case that it was held that project causal labourers who would complete 360 days of continuous service , will be entitled to temporary status from 01-01-1981 [ Inder Pa] Yadav v . Union ofIndia ( 1985 ) 2 scc 648 ) . As per the direction of the Hon'ble Supreme Court the Railway Ministry framed a scheme regarding the service conditions of project causal labourers . The railway decided 5608

THE GAZETTE OF INDIA : OCTOBER 4 , 2008 /ASVINA 12, 1934

[ PART II-Sec. 3 )

that the workers in question were eligible for temporary status even prior to 1970. They contend that the workers were employed in open une and not in projects . The question is , is that true ? There are 2 wings in the railway ( 1 ) Open Line (where yard mntenance work is carried out) . (2) Construction Wing ( wisch includes project work ) . This can be seen from the definition of casual labour' in R - 2001 ofRailway Establishment Manual -Vol - 11 , 1990 Ed. to grant temporary status to project causal labourers who completed continuous service of 360 days . The schume was made applicable to ( 1 ) Casual labour on projects who were in service as on 01-01-1984 . (2 ) Casual labour on projects who though not in service as on 01-01-1984, but had been in service and had completed service of 360 days. But the Hon'ble Supreme Court modified the scheme with a cut of date as 01-01-1981 instead of 01-01-1984 . Other terms of the scheme were accepted by the Supreme Court. The relevant para 5 of Inder Pal Yadav case reads:

It is clarified in 1. Robert ' Souza V. Executive Engineer, Southern Railway AIR 1982 SC 854 para 11 at page 861 as follows:-

"The test provided is that for the purpose I' determining the eligitulity of causal labour to be treated as temporary, the errion should be the period of continuous work put an be each individual labour on the same type of work and not the period put in collectively by any particular gang or group of labourers , It is thus partently clear that if a person belonging to the category of casual labour employed in construction work sther than work - charged projects renders sis months continous service without a break, by the operation of statutory rule the person would be treated as temporary railway servant after the capry of six months of continuous employment. It is equally true of even seasonal labour . Once the person acquired the status of temporary railway servant by operation of law, the condition of his service souldbe governed as set out in Chapter XXII ! " .

"The scheme envisages that it would be applicable to causal labour on projects who were in service as on January 1 , 1984. The choice of this date does not commend to us , for it is likely to introduce an invidious distinction between similarly situated persons and expose some workmen to arbitrary discrimination flowing from fortuitous court's order . To illustrate. in some matters, the court granted interim stay before the workmen could be retrenched while some others were not so fortunate. Those in respect of whom the court granted interim relief by stay / suspension of the order of retrenchment, they would be treated in service on January 1 , 1984 while others who fail to obtain interim relief though similarly situated would be pushed down in the implementation ofthe scheme. There is another area where discrimination is likely to rear its ugly head . These workmen come from the lowest grade of railway service. They can ill affordto rush to court . Their Federations have hardly been of any assistance . They had individually to collect money and rush to court which in case of some may be beyond their reach . Therefore , some of the retrenched workmen failed to knock at the doors of the court ofjustice because these doors do not open unless huge expenses are incurred. Choice in such a situation, even without crystal gazing is between incurring expenses for a litigation with uncertain outcome and hunger from day- to - day. It is a Hobson's choice, Therefore, those who could not come to the court need not be at a comparative disadvantage to those who rushed in here . If they are otherwise similarly situated , they are entitled to similar treatment, if not by anyone else at the hands of this Court . Burdened by all these relevant considerations and keeping in view all the aspects of the matter, we would modify part 5.1 ( a) ( i ) by modifying the date from January 1 , 1984 to January 1 , 1981. With this modification and consequent rescheduling in absorption from that date onward, the scheme framed by Railway Ministry is accepted and a direction is given that it must be implemented by recasting the stages consistent with the change in the date as herein directed " .

8. Going by the above decision in Inder Pal Yadav's case and the scheme framed by the Ministry of Railway none of the project causal labourers were entitled for temporary status till 01-01-1981 , However the union claims

9. Exts. 18 to 21 are rage tevision orders of the period 1961 to 1969. The daily wage rates were revised and enhanced from time- to - time . I he names of causal labourers are mentioned in Exts . W - 180 W - 24. If the 58 workers were working in open line they would have got temporary status and consequently scale wages on completion of 6 ונחת continuous service . Some of them had worked from 1954 onwards as causal labourers med any others before 1969 Butthe very fact that they were paid at daily wage rate and their wages were rovised from time to time as scen from Exts .W- 18 to W- 24 itselt is medicative of the fact that they wereworking in projects and in open line . While revising the wages, on the basis or consolidated pay , daily wage was fixed . In fact in the clairt statement the union has not put forward a specific cas et employment in openline . However on the basis of E ... 11 office order of southerni railway dated 16-07-1956 it is submitted by the learned counsel for the union that one of the 58 employees namely Sri . V.N. Kumara Pillai, No , 2 the list of employees attached to the reference was appointed as temporary lascar watchman on a consolidate pay of Rs . 60 per month wef 20-07-1956 and hence he was working in open line . This is an office order of 1956 The wage is fixed at consolidated market rate. It is mentioned in the note to the office order that the terms of employment is purely temporary as applicable to other casual iebourers except that they will be eligible for T.A. under normal rule that are applicable to other temporary class - IV saft on the construction . Ext .

[ भाग 1 ] - खण्ड 3 (ii) ]

भारत का राजपत्र : अक्तूबर 4, 2008/आश्विन 12 , 1930

W-12 office order dated 30-09-1959 allotting the work shows that Sri . V. N. Kumara Pillai was posted in the construction wing. Exts . W-22to W-24 shows daily wages of Kumara Pillai and others were revised in later periods of 1967, 1968 and 1969. Therefore the contention that Sri . V. N. Kumara Pillai was working in open line and had acquired temporary status as early as in 1956, cannot stand.

5609 In the result an award is passed finding that the action of the management Southern Railway in denying interim relief to Shri.K.N. Balakrishnan and 57 others is legal and justified and they are not entitled for any relief.

The award will come into force one month after its publication in the Official Gazette .

Dictated to the Personal Assistant, transcribed and typed byher, corrected and passed by me on this the 19th day ofJune, 2008.

P. L. NORBERT, Presiding Officer APPENDIX

Witness for the Union

WW- 12-04-2007 Sri.L.Robert D'Souza .

Witness for the Management-Nil

Exhibits for the Union

10. However it was argued by the learned counsel for the union that General Secretary ofthe Union Sri . Robert D'Souza was a similar casual worker who was denied temporary status by the Railway. But Hon'ble Supreme Court held in AIR 1982 SC 854 (referred supra) that he was entitled to temporary status and consequential benefits . But the decision cannot be extended to workers in this case. So far as Robert D'Souza is concerned it was found by Hon'ble Supreme Court that he was working continuously for more than two decades and he was transferred on and of from one place to another and for host of other reasons , he cannot be treated as a project worker and, therefore , entitled to temporary status . But union would rely on Ext . W6 and submit that most of the workers in question were sought to be transferred to another place which is contrary to the Railway Establishment Manual R-2501 (a) regarding casual labour. The difference between work in open line and project is contained in R-2001 ( i ) ( a ) & (b ) of Railway Establishment Manual Vol. II , Ed . 1990. Going by that Rule the work mentioned in Ext.W6 is not open line , but project . " Ext . W6 reads - " Since amajor portion of the work in this construction unit is over......." Though by Ext . W6 Ex. Engineer , Ernakulam had enquired with other Ex. Engineers in other places whether the casual workers could be accommodated in their units , it does not mean that they were actually transferred. The union does not have a case that they were transferred at any time. Hence on the basis of Ext . W6 it cannot be said that the workers were employed in open line . WWI Sri.L.Robert D'Souza himself has stated that there are no records to show that other than himself any of the 58 workers were transferred from Ernakulam division to any other division .

11. In the light of the above circumstances and evidence it has to be held that none ofthe 58 workers were working in open line , but only in projects and hence they were mere casual labourers , not entitled for temporary statusbefore 01-01-1981 (i.e. until Railway framed a scheme in respect ofproject workers). If that was their status in the employment, they are not eligible to claim interim relief ordered as per 3rd pay commission report .

12.I have referred to Railway Board's decision, Ext . W-29 (page-4) to pay interim relief to railway employees andExt. W -31 , clarification regarding payment of interim relief. The clarification is to the effect that interim reliefis to be paid to regular railway employees drawing a basic pay up to a particular range and to causal labour who have attained temporary status . The present workers do not fall under any of the two categories in Ext . W -31 and hence cannot succeed to get interim relief orderedby Railway Board and payable from 01-03-1970.

WI 21-10-1999 Photostat copy of Judgment in OP 5003/1996 of Hon'ble High Court of Kerala.

W2 25-01-2001 Photostat copy of Judgment in WA 958/2000 of the Hon'ble High Court of Kerala.

W3 20-03-2001 Photostat copy of reference order No.41011/47/95 [ R (B -II ) of M/o. Labour, Government of India.

W4 30-07-1995 Copy of representation sent by Union before the Secretary to Govemment ofIndia, M/o.Labour.

W5 20-05-1994 Photostat copy of statement submitted by Union before the ALC , Ernakulam.

W6 05-09-1996 Photostat copy of letter No.P-107 /CN/ ERS ofthe Executive Engineer Office, Ernakulam , Southern Railway.

W7 05-05-1972 Photostat copy ofOrder No.M. 16021 / 2/72- LWI ( 1 ) of M/o . Labour, Government of India.

W8 07-06-1972 Letter No.C.26 (j ) /72 issued by the ALCO, Ernakulam to the Union.

W9-04-10-1955 Office Order No.QEC / 344 of Ex . Engineer, Southern Railway, Emakulam,

W-10-14-01-1956 Photostat copy oforder No.QEC/409 and QEC / 410 of the Executive Engineer, Southern Railway.

W-11-16-07-1956 Office Order No. QEC/ 510 of the Executive Engineer, Southern Railway .

W-12-30-09-1959 Photostat copy of office order No.QEC/ 114/ S of Assistant Engineer- in-charge, Southern Railway.

W-13-01-03-1972 Photostat copy of establishment matters- Annexure E.

5610

THE GAZETTE OF INDIA : OCTOBER 4 , 2008/ASVINA 12,1930

W-14-30-10-1974 Photostat copy of Judgment in OP 3273/74 and connected OP's of the Hon'ble High Court ofKerala.

W-15-31-01-1975 Certified copy of fudgment In writ appeal Nos.33 , 34, 37 and 38 of 1975 of the Hon'ble High Court of Kerala W-16-16-02-1982 Photostat copy of Judgment in S1.P 1613/1979 of the Supreme Court of India ( Reported in 1982 (1 ) LLJ W-17-

List of workers ( copy of annexure to Reference).

W-18-17-05-1961 Photostat copy of office order No. 157 ottheExecutive Engineer.

W-19-08-05-1964 Office Order No.309 of Executive Engineer , Virudhunagar, Southern Railway.

W-20-18-02-1965 Page No. ( 1 ) of office Order No.398 uf Southern Railway, Mana Madurai .

W-21-21-06-1965 Page No. ( 1 ) ofoffice Order No. 446 of Southern Railway, Mana Madurai .

W-22-06-01-1968 Office Order No.208 ofthe Executive engineer, Southern Railway , Ernakulam.

W-23-30-10-1968 Photostat copy of otlice order No.258 of the Executive Engineer, Southern Railway, Ernakulam.

W-24-9-09-1969 Office Order No.335 of the Executive Engineer , Southern Railway. Ernakulam.

W-25-22-11-1971 Copy of letter No.C.27 ( 3 ) / 71 issued by the ALC to the workinen .

W-26-30-09-1972 Copy ofletter No.P.574.CVERS issued by Southern Railway to the ALC Ernakulam.

W-27-06-12-1972 Letter No.Dy.3640 - Con - 1 /72 issued by the Chief Labour Commissioner (Central ) to the Union

W-28-20-08-1971 Letter No.P - 53 / CN/ERS issued by the Ex . Engineer Southern Railway to the Union .

W-29-07-02-1972 Photostat copy of representation submitted by Union before the Unioti Minister for Labour .

W-30-21-07-1972 Copy ofletter No.M- 15025/ 15 / 72-[LWI of Ministry of Labour and Rehabilitation .

W-31-21-10-1970 Copy of Order No.E ( P &A) 1-70: IR- 1.

W-32-03-03-1960 Copy of Order No.C/ 119 -S of Assistant Engineer QE. Railway Construction, Emakulam.

[PART 11-SEC . 3 ( ii) ] :-= W-33-14-01-1956 Copy ofOffice order No.QEC/409 of Executive Engineer. Southern Railway, Ernakulam.

W-34-18-01-1958 Copy of Order No.XEN / ERS of Assistant Fingincers office , Quilon .

W-35-16-09-1969 Copy of Order No.J /W /407 /IX by the Divisional Engineer/ II /Olavakkod .

W-36-08-03-1990 Copy of Memorandum No.V / P.407 / VII /CL, issued by the Divisional Personnel Officer , TVM.

W-37-27-11-1974 Photostat copy of Judgment in OP 264474 of the Hon'ble ligh Court of Kerala.

W-38-22-01-1974 Photostat copy of Judgment in OP 917/73 of the Hon'ble High Court of Kerala

W-39-06-03-1979 Photostat copy of judgment in OP 1582-75 of the Hon'ble High Court of Kerala.

W-40-28-11-1978 Photostat copy of Judgment in OP 2075/76.1 . of the lion ' ble liigh Court ofKerala.

W-41-03-06-1993 Photostat copy of Judgment in WA.622-1992 of the Hon ' hle High Court of Kerala .

W-42-06-04-1994 Photostat copy of Order in CP 125/83 of the Central Government Labour Court , Ernakulam ( Labour Court , Emakulam)

W-43-27-08-1971 Copy of letter No.P 363 / 1 / CN - Pilot issued by the Chief Engineer . Southern Railway , Chennai to Sri . L.Robert L'Souza .

W -44-28-08-1971 Letter No.P - 53 CN -ERS issued by the Executive Engineer , Southern Railway to Sri.L. Robert D'Souza .

W-45-

Statement showing particulars of all the C 1. Stall issued by the Executive Engineer, Southern Railway .

W-46-30-09-2007 Photustas copy of letter issued by the Section Engineer ( P. Way ) , Alwaye to The Labour Enforcement Officer (Central)

W-47-16-10-1986 Photostat copy of office order No.C'L/ 24-1-86 of the Executive Engineer (construction) , Emakulam.

W-48-10-10-1986 Copy of office order No.CL/24.86 of the Executive Engineer (Construction ), Ernakulam.

Exhibit for the Management

M1 12-06-1974 Photostat copy of Order No.PC -72/ RLT 89 3 of RailwayBoard.

5611

भारत का राजपत्र : अक्तूबर 4, 2008/आश्विन 12 , 1930

[भाग ] I- खण्ड 3 (ii ) ]

नई दिल्ली, 11 सितम्बर, 2008

का.आ. 2817. औद्योगिक विवाद अधिनियम , 1947 (1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार रेलवे इलैक्ट्रीफिकेशन के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच अनुबन्ध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण , भुवनेश्वर के पंचाट ( संदर्भ संख्या 40/2002 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 11-9-2008 को प्राप्त हुआ था । [सं. एल -41012/ 153/2001-आई आर ( बी-1 ) ] बी. के. मनचन्दा , अनुभाग अधिकारी New Delhi, the 11th September , 2008 S.O. 2817. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award (Ref. No. 40/ 2002) of Industrial Tribunal - cum-Labour Court No. 2, Bhubaneshwer as shown in the Annexure in the Industrial Dispute between the management of Railway Electrification , and their workmen, received by the Central Government on 11-9-2008.

[No. L-41012 / 153/2001-1R (B- 1) ] B. K. MANCHANDA , Section Officer

ANNEXURE

CENTRALGOVERNMENT INDUSTRIAL TRIBUNAL- CUM- LABOUR COURT, BHUBANESWAR

PRESENT

Shri N.K.R. Mohapatra, PresidingOfficer, C.G.I.T. - cum - Labour Court, Bhubaneswar

Industrial dispute case No. 40/2002 Date of passing Award-7th August 2008

BETWEEN

The Management of ( 1 ) the Managing Director, M/s. Oriental Security Services, 315 -A, Saheed Nagar, Bhubaneswar - 751007,

(2) The Dy . Chief Signal & Telecom Engineer ,Railway Electrification , Bhubaneswar, B-23 , Rail Vihar, S.E. Rly. Sub . PostOffice, Chandrasekharpur , Bhubaneswar, Orissa- 23.

... Ist Party- Managements

And

Their Workman, Shri Pradip Kumar Behera , C/ o . A. Sahoo , Gr . No. 96-F, Type-D, Rail Vihar , Chandrasekharpur , Bhubaneswar- 23.

... 2nd Party- Workman.

APPEARANCES

Shri Prafulla Kr. Swain, Authorized Representative .

For the Ist Party- Managements.

Shri Pradip Kumar Behera

... For Himself-the 2nd Party-Workman .

3631 GI/2008-21

AWARD

TheGovernment of India in the Ministry of Labour , in exercise of powers conferred by Clause ( d ) of sub section ( 1 ) 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 Oder No. L -41012 /153 / 2001 - IR (B - 1), dated 22-3-2002.

"Whether the action of Mis . Oriental Security Services, Contractor under Cheif Project Manager , Railway Electrification by terminating the services of Shri Pradip Kumar Behera is justified? Ifnot , what relief the workman is entitled?"

2. The Management No.1 is an establishment of providing security and other service to other establishment on contractual basis . Therefore , for execution of its work it had undertaken from Management No. 2, it had deployed the disputant and miany others in 1998 to work within the premises ofthe said Management No. 2, herein after called the Principle Employer. On 21-7-2000 it served an office order to the disputant saying he was no more requied to work in the premises ofPrinciple Employer. In the letter he was directed to report in the head office. Characterizing this order to be an order of termination , the workman raised an Industrial Disputes alleging that he was vindictively terminated/thrown out ofjob on some false allegations of writing against the Management . It is claimed that the above order of the Management- 1 amount to illegal retrenchiment .

3. The Management No. 2. the Principal Employer, contended in his written Statement that it has nothing to do with the above order of the Management No. I. Since the workman was withdrawn by the immediate employer on administrative grounds from working within the premises of the Management No. 2 , the said Management is wholly answerable to the reasons of such withdrawal . The Management No. 1 , the immediate employer, on the other hand, alleges that since the workman was not sincere in his duties and was not of good behaviour towards the officers ofPrinciple Employer , he was withdrawn on the complaint ofthe Management No. 2 for his re- engagement else where but the workman by dint of his own will had failed to report before the Head Office for his further engagement and as such the order passed by it on 21-7-2000 withdrawing the disputant from the establishment of the Management No. 2 does not amount to dismissal or termination under any law and therefore no illegality has been committed by it.

4. On the basis of the above pleadings of the parties the following issues were framed.

ISSUES

1. Whether the reference is maintainable?

2. Whether the action of the M/ s . Oriental Security Services , Contractor , under Chief Project 5612

THE GAZETTE OF INDIA: OCTOBER 4 , 2008/ASVINA 12 , 1930

Manager, Railway Electrification by terminating the services of Shri Pradip Kumar Behera is justified?

3. Ifnot, to what relief the workman is entitled to?

5.The workman examined himselfbesides examining another and produced docutnents marked as Ext . 1 to 7. TheManagement No. I examined one witness and produced no documents . Management No. 2 has been set ex pane for its non -participation after filling Written Statement

FINDINGS

ISSUE NO. I

6. Under Section 2 of the Industrial Disputes Aci the Contral Government is the appropriate Government in respect of a Railway Company and the reference being against one of the establishments of Railway Department and its contractor, the same is maintainable and entertain- able by the Tribunal

ISSUE NO. 1 ] & [

7. Keeping in view the pleadings of the parties the only question to be decided under these issues is whether the withdrawal of the disputant from working in the establishment of Management No. 2 by Management No. I amounts to retrenchment and it'so whether it was in accordance with law or not.

8. Admittedly for discharge of its contractual obligation the workman was deployed by the Management No. 1 to work in the establishment of the Management No.2 with effect from 10-5-1998 . M.W. No. 1. examined on behalfof the Management No. 1 , deposed that the workman was withdrawn on administrative ground as he misbehaved someof the officers of the Principal Employer (Management No.2). But the Principal Employer ( Management No. 23 is found totally sitent about such allegation being made by hirn . Therefore the only alternative upened to the Court is to examine the case with reference to other surroundings. circumstances .

9. The office order ( Ext. - 1 ) which was issued to the workman withdrawing him from the establishment of the Management No. 2 reads as under....

On administrative point of view Shri Pradeep Behera .

Peondeployed at premises of CSTE/RE/BBSR is 10 more required to continue with immediate eller fami 21-7-2000 . As such he is directed to report the undersigned at OSS FIqr . At once for further consideration .

10. The reply of the Management No. I given to Asst. Labour Commissioner ( Cemral ) during conciliation proceeding shows that while working in the establishment of the Principal Emplover the workman had tried to he absorbed permanently in the establishment of the Management No. 2 and so much so had demanded the

[PART 11--SEC. 3 (ii) ) salary with arrears at par with a permanent employee of Management No. 2 and 10 enrich his said end had also written to various authority . If the letter of withdrawal (Ext. - 1 ) is examined in the above hack -drop , it would lead to the foregone conclusion that the intention of the said Management behined such withdrawal was not to deploy the workman elsewhere but with a view to gets rid of hum and his serveral allegations made to higher authority . It was argued by the Management No. I that the wurkman was withdrawn from the establishment of the Management No. 2 with a view not to ierzninate him but with a viewto engage him elsewhere. [ 1' t was the real intention of the Management No. 1 it could not have omitted to mention such fact while issuing Ext ! During trial the Management Witness stated that after the withdrawal of the workinan he was asked/deployed to work in the office of the B. ) A. but in his bid to work in his previous place had refused to jointhere .But such of the evidence of the M. W. - I cannot be believed in any probability as no document has been produced in support of the same . Therefore, it is held for the discussion made earlier that in the garb of withdrawing theworkinan he was really terminated from service without any retrenchment competiastkim or notice as required under Section 25 - F of the Industrial Disnures Act.

11. In the above premises the action of the Management No.1 is freld se bad under law . If farther work is available the workman may be engaged there with compensation of Rs . 5. Uu towards his back wages and if no such work is available the workman may be paid a consolidated amount : Rs . 15,000 in lieu of his reinstatermere and back wages

12. Reference is answered accordingly .

N. K. R. MOHAPATRA , Presiding Officer LIST OF WITNESSES EXAMINEDON BEHALFOF TIE 2nd PARTY- UNION.

W.W.I - Pradeep Kuntar Behez W.W.2- Sumantra Mohapatra .

LIST OF DOCUMENTS EXHIBITED ON BEHALF OF THE 2nd PAPTY- WORKMAN,

Ext. - 1 - Copy of the office order No 387.0SS , dated 21-7-2000 stating the emeration of the worknian .

Ext.-2- Copy of the statement of the workman dated 24-8-2000 given to He Management explaining his innocence .

Ext. -3 - Copy of the artiter statement filed by the Management before the 1.1..C . IC) , Bhubabeswar .

Ext. - 4- Copy of differcat representations of the workman made to the Managenteni of Railway to provide laun engagement.

Ex1. - 5 -Copy of the postal receipts under which the representations of the workman had been sent to the Railway authority [ भाग 1] - खण्ड 3 ( ii) ]

5613

भारत का राजपत्र : अक्तूबर 4, 2008/आश्विन 12 , 1930

Ext. -6-Copy of the orders of the Hon'ble High Court in M.C. No.3428 of 2001 .

Ext. -7 -Order ofthe Hon'ble High Court in O.J.C. No. 3371 of2001.

LIST OF WITNESSES ON BEHALF OF THE 1st PARTY-MANAGEMENT

M.W.- 1 -Shri Ajaya Kumar Swain

LIST OF DOCUMENTS EXHIBITED ON BEHALF OF THE 1st PARTY-MANAGEMENT

The Management have not exhibited any documents .

नई दिल्ली, 11 सितम्बर , 2008

का.आ. 2818.-औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार कोंकण रेलवे को. लि. के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच अनुबन्ध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण-2 , मुबंई के पंचाट ( संदर्भ संख्या 50/2002 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 11-9-2008 को प्राप्त हुआ था। [सं. एल-41011 / 12/2002- आईआर ( बी-1 ) ] बी.के. मनचन्दा, अनुभाग अधिकारी New Delhi , the 11th September, 2008 S.O. 2818. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award (Ref. No. 50/ 2002) of Industrial Tribunal- cum-Labour Court No. -2, Mumbai as shown in the Annexure, in the Industrial Dispute between the management of Konkan Railway Corporation Ltd. and theirworkmen , received by the Central Government on 11-9-2008 .

[No. L-41011 / 12/2002- IR (B - I) ] B.K. MANCHANDA, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL - NO. 2 , MUMBAI PRESENT

A.A.Lad, PresidingOfficer

Reference No. CGIT-2 /50 of2002 Employers in relation to the management of Konkan Railway Corporation Ltd. , Navi Munabai

The ChiefPersonnel Officer

Konkan Railway Corporation Ltd. Belapur Bhavan , Sector- 11 CBDBelapur

Navi Mumbai-400614

And Their Workmen

The Vice President

Nhava Sheva Port & General Workers Union Port Trust Kamgar Sadan , 2nd floor

Nawab Tank Road, Mazgaon Mumbai -400010

APPEARANCES

For the Employer : Mr. P. N. Kilpady Advocate.

For the Workmen Mr. J. H. Sawant Representative.

Mumbai , dated 12th June , 2008 AWARD

TheGovernment of India , Ministry of Labour by its Order No.L- 4101 / 12/2002 - IR ( B - I ) dated 12-6-2002 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 , 1947 have referred the following dispute to this Tribunal for adjudication.

"Whether the action of M/ s . Konkan Railway Corporation Ltd. , Navi Mumbai in not classifying the six workmen , whose names are shown below, as Artisan in the scale of3500-4590 w.e.f. 1-4-1996 is justified? Ifnot, what reliefthe workmen are entitled?

2. Claim Statement is filed at Ex- 7 which was replied by first party at Ex -8 . Rejoinder was filed by the Representative of workman at Ex -9 . Issues were framed at Ex-10 and matter was fixed for evidence and even evidence was recorded to some extent.

3.HoweverbyEx- 31 . both parties approached this Tribunal and requested to dispose of reference since they settled the dispute out of court . Hence the order:

ORDER

In view ofpurshis Ex-31

Reference isdisposed of.

Date: 12-6-2008

A.A.LAD, PresidingOfficer Exh , No. 31

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL NO. 2, MUMBAI REFERENCE NO. CGIT - 2 /50 OF 2002 Konkan Railway Corporation Ltd. V/s. ..First Party Their workmen S/ Shri Jitendra Tiwari and 5 others represented by Nhava Sheva Port and General Workers Union .. ..Second Party Applicationfor disposal of the Reference proceedings in view ofthe First Party's letter dated 5-5-2008 accepting the terms ofsettlement stated in the second party's joint representation dated 28-4-2008.

THE GAZE STE OF INDIA : OCTOBER 4 , 2008 /ASVINA 12. 1930

5614

MAY IT PLEASE YOUR HONOUR:

The Second Party workman bag to submit the present application for disposal of the Reference proceedings as the First Partyby its letter No.KR/CO/P/16/Mech . dated 5-5-2008 has kindly agreed the conditions of serrlement stipulated in the joint representation dated 28-4-2008 submitted to the First Party by the Second Party workinen . Copies of the First Party's letter dated 5-5-2008 and the joint representation dated 28-4-2008 may please be taken on record and this Hon'ble Tribunal may be pleased to dispose of the Reference proceedings as settled between the parties and ablige.

Mumbai , Dated: 9-5-2008

( Jitendra Tiwari ) (Dayanand Sheny) Sr. Chief Personnel Inspector, K.R.CL.

(Bijaykumar Sahooj (Mangesh Kalinkar )

[PART TE-SUC ( 0 ) | Shri Jitendra Tiwari and 5 others in the same place of working as requested.

At present , they may be retained at their present place of working but it should be clarified transier is a condition of service and needbased.

Please advise the concerned employees accordingly and to withdraw petition filed before the Hon'ble Central Government Industrial Tribunal , immediately , to enable 10 take further necessary action in the matter.

Nalinakshan T. Dy Chief Personal Officer From Jitendra Tiwari and 5 others

Date: 28-4-2008 To, Chief Personnel Officer Konkan Railway Corporation [.td . CBD Belapur , Navi Mumbai

(Through RRM./KW )

RespectedSir,

Sub: Settlement of Industrial dispute reg........

(R. Surve)

(Rajest: M T.)

(AjayKumar) Second Party Workmen

( Jaiprakash Sawant ) Representative Nhava Sheva Port & General Workers Union Identified by me, (Prakash Kilpad ) Advocate for Fust Party

KONKAN RAILWAY CORPORATION LTD. A GOVERNMENT OF INDIA UNDERTAKING We, The undersigned , workmen I beg to submit that we are willing to settle our industrial dispute pending before the Central Government Industrial Tribunal No.2 . Mumbai in reference No. CGIT-2-50 of 2002 in followingterms (i ) That six workmen named in the reference order dated 12-6-2002 shall be granted the pay scale of Rs.4000- 6000 w.e.f. 20-2-1998 in the post of Technician - 1 by awarding the proforma fisation in that grade by continuity ofservice for the first time bound promotion in the scale of 4500-7000 w.e.f. 25-1-2006 all the benfits of seniority and promotional opportunity but without back wages Da account of grant of said pay scale w.e.f. 20-2-1998 and further we will be paid the back wages of Time bound promotion w.e.f. 25-1-2006 and we will be retaind the place ofworking as it is .

Date 5-5-2008

No. KR/CO/P/16/MECH.

RRM/KW

Sub.: Settlement of Industrial disputes- Case of Shri Jitendra Tiwari and 5 others .

Ret.:( i ) This office letter No. KR / CO/ P/ 16/ MEC'H dated 17-4-2008.

(ii ) Joint Representation of Shri Jitendra Tiwari and S others dated 28-4-2008 .

Reference above, the joint representation from Shri Jitendra Tiwari and 5 others dated 28-4-2008 received through RRM KW has been examined . It is informed that the conditions indicated in their letter were already accepted by the management and mentioned in the letter No. KR/ CO/ P /16.MECH dated 17-4-2008 except the retention of ( ii) The industrial dispute will be withdrawn immediately on receipt of the communication /order in the above term ( i ) with a period of oneweak .

Thanking you .

Yours faithfully.

(1) Jitendra Tiwari

(4) R. Surve

(2)Bijay Kumar Salbuns (3)M. Kalamkar (5) Rajesh-MT

(6)Ajay Kumar

नई दिल् ।। मिज़म्बर , 2008

का.आ. 2819 -अद्यागिक विवाद अधिनियम, 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार कोंकण रेलवे 5615 [भाग ।।- खण्ड 3( ii ) ]

भारत का राजपत्र: अक्तूबर 4, 2008/आश्विन 12, 1930

(d) ofsub-section ( 1 ) and sub -section 2 (A) of Section 10 of the Industrial Disputes Act , 1947 have referred the following dispute to this Tribunal for adjudication :

को. लि. के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच अनुबन्ध में निर्दिष्ट औद्योगिक विषाद में केन्द्रीय सरकार औद्योगिक अधिकरण मुबई-2 के पंचाट ( संदर्भ संख्या 50/2003 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 11-9-2008 को प्राप्त हुआ था।

[सं. एल-41012/ 178/ 2003 - आई आर ( बी-1) ] बी. के. मनचन्दा, अनुभाग अधिकारी

"Whether the action of the management of M/s. Konkan Railway Corporation Ltd. , in imposing the punishment ofcompulsory retirement from the services on Shri M. Madhavkumar w.e.f. 5-3-2002 is legal andjustified? Ifnot, what relief is the workman is entitled?

New Delhi , the 11th September, 2008

S.O. 2819.- In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Govemment hereby publishes the Award (Ref. No. 50/ 2003) of Industrial Tribunal -cum -Labour Court No. 2, Mumbai as shown in the Annexure , in the Industrial Dispute between the management of Konkan Railway Corporation Ltd. , and their workmen , received by the Central Government ση 11-9-2008.

[No. L-41012/ 178/2003 - IR (B - I ) ]

2.Claim Statement is filed by the concerned workman atEx-6 stating that he joined Konkan Railway Corporation Ltd. on 21-10-1996 as per appointment order issued by Dy. ChiefPersonnel Officer , Konkan Railway Corporation Ltd. , Belapur . He worked as ' Line Peon ' on tempoгагу category upto 20-4-1997. Thereafter he was continued from 20-4-1997 and then taken on permanent basis under employment No. 1300. He was getting all benefits of permanent employee however without any reason he was terminated on 26-8-2001 .

B. K. MANCHANDA , Section Officer

ANNEXURE

BEFORE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL No. 2, MUMBAI

PRESENT

A.A. Lad , Presiding Officer

Reference No. CGIT-2/50 of2003

Employers in relation to the management of Konkan Railway Corporation Ltd. , Navi Mumbai

3. When he was appointed as Line Peon he was working under D.N. Mahajan , Dy. Chief Engineer and doing work in his House at Nerul Quarters . He was attending work from 7.00 a.m. upto 9.00 p.m. and providing household services to wife of Mahajan . He was also supposedto look after the children of Mahajan including taking them to school and bringing them back from school . Even he was asked to obey Mrs. Mahajan's order and he was doing all that sincerely and without any complaint . Even in his absence his wife was called for work . Ifremained absent he was called through Driver and as such his services were utilised fullyby Mahajan family .

The CheifPersonnel Officer,

Konkan Railway Corporation Ltd. , Belapur Bhavan , Sectors 1 , Plot No. 6, CBD Belapur, Navi Mumbai - 400 709

4. During 31-7-2001 to 24-8-2001 he remained absent because of his sickness . He wanted to go to his native place. Even he informed that fact to Mahajan and his wife. When he went to his native place , he learnt that , his father was also sick so he had to stay there. He informed all that toMahajan.

AND Their Workmen

Mr. M. Madhav Kumar , SS- 11 , Room No.147, Sector -6, Kopar Khairane, Navi Mumbai -400709.

APPEARANCES

Mr. P.N. Kilpady , Advocate.

For the Employer

For the Workmen

:Mr. V. Narayanan , Advocate

Mumbai , dated 11th June , 2008 .

AWARD

5.According to second party, he worked for 5 years continuously and provided his services to Mahajan family. Then he suffered from jaundice and when he informed to Mahajan family, said was taken by Mahajan family otherwise and instead ofgranting leave and permitting him to remain absent, at the instance of Mahajan , showcause notice was served on him . After recoering from sickness when he reported on duty, but he was not allowed to report. The medical certificate submitted by concerned workman of private practitioner was not accepted by Mahajan and Konkan Railway Corporation Ltd. and even he was not heard and action was taken by Konkan Railway Corporation Ltd. biasly by awarding punishment of termination. So second party prayed to set aside order of termination with direction to first party to take him in the employment and give him benefits of backwages with continuity of service .

The Government of India in the Ministry of Labour, by its Order No. L- 41012/ 178/2003 - JR ( B- 1 ) dated 22/28-8-2003 in exercise of the powers conferred by clause 5616

THE GAZETTE OF INDIA : OCTOBER 4 , 2008/ ASVINA 12 , 1930

6. It is disputedby first party by filing reply Ex. - 10 making out case that , second party cannot raise dispute individually as there is no support of union . It is further stated that, he was appointed as temporary employee and on daily wages ofRs.67 w.e.f. 26-10-1996 . He was having habit of remaining absent unauthorisedly. He was served with memo dated 6-12-1999, 13-3-2001 and 9-4-2001 . Even he was suspended during the period 13-7-2001 for habitual absenteeism still he did not improve in his absentecism. Su chargesheet dated 6-8-2001 was served about his absenteeism from 31-7-2001 . Reply given by second party was considered by Inquiry Officer. Opportunity was given 10 concerned workman and relying on that , punishment of termination was imposed. Then he preferred appeat on it and Appellate Authority made change in the order of lermination and passed order of compulsory retirement. According to first party, second party cannot challenge the order of termination or order of compulsory retirement and cannot pray for reinstatement as action was taken by following due process of law. So it is prayed that , prayer prayed by second party of reinstatement with benefits of backwages be dismissed.

7. Said reply is challenged by second party by filing rejoinder at Ex- 11 sticking with his case of information given about his sickness to Mahajan family and making out case that, order of termination be set aside .

8. In view of above pleadings issues were framed at Ex- 15 which are answered as follows:--

Issues

Findings

No. ( i ) Is enquiry fair and proper.

( ii) Is findings not perverse?

Findus perverse

No. (iii) ls termination under reference legal?

( iv) Is second party entitled to any other relict?

Yes, by way of reins: ste- mont but without backwares.

( v) What order' ?

As per ordier below.

REASONS

Issues Nos . 1 & 2 :

9. case of the second party is that , he worked witt first party as Line peon from 1997. Then he was posted at the house ofMahajan and he worked there till 2001. As far as work done by second party at Mahajan's house from 1997 to 2001 is concerned, is not seriously disputed by first party . Case of the first party is that, he was appointed on temporary basis on daily wages and by following due process of law, he was terminated.

[PART I SEC . 3 ( ii ) ] 10. Second parts tiled his affidavit in lieu of represent himself through his representative . In the cross examination - in -chief at a where he made out case that, enquiry was not conducted properly. He stated that , there was no enquiry. He lumell and inquiry Officer were only present. No evidence was recorded nor was he allowed to he admits that he did not apply to be represented through advocate. He admits i enquiry was conducted by Prasanna Kumar . He is that , he knows Telugu ' language . He admits than , piry was explained to him in his language. He state : hat , whatever going on in the enquiry was explained him and when questioned he states that it was just copd saying that enquiry was going on and he has to sign the proceedings . When question was asked as to why he remained absent , he explained that , or accoco ! hm , sickness of his father he remained absent . He exud his wife at Ex- 19 as well as examined Mahajan and Mahajans Ex - 25 and 26 respectively.It is penineni to vote that , Mahajan and his family admit that second party was serving in their house and remained absent attration . He also admits tlgy , when he returned back for medical and he was not permitted to report cu deurs.It is also admitted by Mahajan that , when he was for Medical , he was on authorised leave . Even Mahajan is that . be was working in her here and diso attending office alter that. 13och also adma that absenteeism, there is ant other complaint about vors ot second parts. Hath adm that they we . not examined as witnesses in the inquiry .

11. If we peruse the documents produced by first partywith Ex- 17 we find Konkan Railway Corontation bas produced plain cofre pondence and etiquir report as well as some suns and answers vrince by Inquiry Officer which new sit there was waly Inquiry Officer and this werowe present There is no any Presenting Officer forza Railway Corporation Ltd. nor defence represive his workman . Even dere was no aay wine party. Even no erass ol'any witness appear in in the second party side or even from first party is prot certing does not reveal that wimesses were canend they were examined before Inquiry Officer or crosses to ned. Bufact. Maha's Lumiiy was expected witnesses Sea heyre sumittedly not examined in domestic engar : The way in which enquiry appears conducted ,it reeds imat some interrogation took place between Inquiry fire and concerned workinan . All these reveal that ini , Diveer was questioning the second party and second party was answering it Su from this it cannot be said til enquiry as expected and it cannot be called as a Jur mental enquiry This Inycirz Officer sits on his sit deciding procedure of rcording evidence unang a concluded about absenteeism of second woman It is also admitted factthat nowitness wits mined by the first party Konkan Railway Corporation Lic sopportunity was given to the [भाग 11- खण्ड 3 (ii) ]

second party to put up his case with the help of representative. No intimation was given to second party workman that he can bring his representative or witnesses in the enquiry. Even nо documents are called for . On the contrary, documents on record reveals that second party has submitted medical certificates ofprivate doctors about his absenteeism and first party ignored those , saying that, said certificates are not certificates of doctor from the panel ofKonkan Railway Corporation Ltd. It is not pointed out, who are the panel doctors ? and before whom he was supposed to attend. All these reveal that , it was not an enquiry and Inquiry Officer was not having any reason 10 conclude concerned workman as absent without intimation. Letter dated 13-3-2001 reveals that second party workman intimated about absenteeism but without medical certificate ofpanel doctor . It is revealed that , he produced medical certificate of Private doctor but not medical certificate of Doctor who is on the panel of Konkan Railway Corporation Ltd. It reveals that, he intimated first party as per his ideas but it was not considered by first party . So accordingto me, the way in which enquiry was conducted and the way in which findings was given is not proper and I have to observe enquiry is not fair and proper and findings perverse . Accordingly . I answer these issues to that effect.

Issue No. 3:

12. When on such type of enquiry findings is given by Inquiry Officer one has to declare that , it is not legal and just finding. Even it cannot be treated that the decision taken on such finding of termination and then of compulsory retirement is just and proper. So I conclude decision of removal either by way of compulsory retirement or by way of termination is not just and proper .

Issue No. 4: 13. Second party prayed for reinstatement with backwages and continuity of service. As far as his services with first party is concerned , first party agree that second party served from 1996 till his termination . First party tried to make out case that, he was on daily wages but tenure spent by second party and continuous working with first party give him protection of ' workman ' as he has completed more than 245 days in each calendar year. Besides Mahajan's family admit that , second party served with them and they have no complaint except his absenteeism . When he is absent, naturally he is not entitled to wages of that period. Even first party's ground to remove second party was ofabsenteeism without permission or intimation . But according tome, that ground is not just and proper . So in my considered view second party must be reinstated but without backwages .

14. In view of discussions made above , I conclude that reference ofsecond party required to be allowed partly hence the order:

5617

भारत का राजपत्र : अक्तूबर 4, 2008/आश्विन 12 , 1930

ORDER

(i ) Reference is allowed partly.

(ii) First party Konkan Railway Corporation Ltd. is directed to reinstate second party workman Shri Madhavkumar in its employment from the date of receipt ofthis order on the post on which he was working at the time ofhis termination .

( iii) Prayer of second party to give backwages is rejected.

Date: 11-6-2008 A. A. LAD, PresidingOfficer नई दिल्ली , 11 सितम्बर , 2008 का.आ. 2820 औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में , केन्द्रीय सरकार कोंकण रेलवे को. लि. के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच अनुबन्ध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण -2 , मुम्बई के पंचाट ( संदर्भ संख्या 91/2001 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 11-9-2008 को प्राप्त हुआ था। [सं. एल-41012/64/2001- आई आर ( बी-1 ) ] वी. के. मनचन्दा, अनुभाग अधिकारी New Delhi , the 11th September , 2008 S.O. 2820 -In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award ( Ref. No. 91 / 2001) of Industrial Tribunal -cum - Labour Court No. -2, Mumbai as shown in the Annexure, in the Industrial Dispute between the management of Konkan Railway Corporation Ltd., and their workatien, received by the Central Govemment on 11-9-2008 .

[No. L -41012/64/2001 - IR(B - I ) ] B.K. MANCHANDA , Section Officer

ANNEXURE

BEFORE THECENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL - NO.2, MUMBAI PRESENT A.A. Lad, PresidingOfficer ReferenceNo. CGIT-2 /91 of 2001

Employers in Relation to The Management of Konkan Railway Corporation Ltd.

The Regional Railway Manager, Konkan Railway Corporation Ltd. , Karwar, Karnataka State Pin581 306 5618

THE GAZETTE OF INDIA: OCTOBER 4,2008/ ASVINA 12 , 1930

AND

THEIR WORKMEN

Shri B. Premjit

Sreedevi -Marunnoli P.O. Puduppanam Badagara - 673 105 Kerala State.

APPEARANCES:

FOR THE EMPLOYER : Mr. Gurunath Naik Advocate .

FOR THE WORKMEN : Mr. J.H. Sawant Advocate.

Mumbai , dated 30th June, 2008 .

AWARD PART- I

TheGovernment of India, Ministry of Labour , by its Order No.L - 41012/ 64/2001 /IR ( B- 1 ) dated 20-7-2001 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, 1947 have referred the following dispute to this Tribunal for adjudication:

"Whether the action of the management of Regional Railway Manager , Konkan Railway Corporation Ltd. , Karwar in terminating the services ofShri B. Premjit . Foremen w.e.f. 30-12-1999 is legal and justified ? If not, to what reliefthe workman is entitled for ?

2.Claim Statement is filed by the concerned workman atEx-8 making out case that , he was employed with first party as ' Foreman ' w.e.f. 3-5-1991 . In 1998 he fell sick and proceeded on leave w.e.f. 5-10-1998 to enable him to avail medical treatment from an expert orthopaedic at his native place. Accordingly , he underwent treatment from the Superintendent, Orthopaedic Surgeon of the Government Hospital at Kerala and thereafter from Calicut and further from Sr. Medical Officer, Government Ayurvedic Hospital , Batakara. During that period , he was informing first party about his position and requesting to sanction leave and not take any disciplinary action against him about his absenteeism.

3.After recovering from the said ill ness , he reported on 21-1-1999 with medical fitness certificates of the competent authority . However he was not permitted to report on duty. He was asked to report to Chief Medical Officer , KRCL Belapur , Navi Mumbai . On 30-12-1999 he was examined by Chief Medical Officer who asked second partyworkman to report before Chief Engineer & Regional Railway Manager . Workman reported accordingly However he was not permitted to report and letter dated 30-12-1999 was handed over to him on 11-1-2000 issuedby Cheif Engineer , Balakrishnan informing that he was removed from services with immediate effect . On that he preferred appeal and made representation ,

[PART 11-SEC. 3 ( ii ) | 4. Second party further state that , Chief Engineer by his letter dated 10-5-2000 informed second party that. Appellate Authority will decide on his grievances and he was asked to appear before Appellate Authority on 20-5-2000 for personal hearing . Chief Engineer gave personal hearing on 1-6-2000 and 2-6-2000 . Infact in that personal hearing second party was cross examined by the Chief Engineer and by letter dated 2-6-2000 he submitted documents i.e. letter of Dr. P.T. Gopalan , Dr. P. Ummer and note ofEnquiry Officer . On that second party was asked to give replywhich was replied by him on 14-6-2000 5.He further states that. Appellate Authority by letter dated 11-9-2000 confirmed the punishment of removal from services imposed by Chief Engineer. So he states that , the enquiry conducted which was ex - parte is not an enquiry . No oppotunity was given to him . He was not permitted to appoint defence representative . No evidence was before EnquiryOfficer of the first party . So he prayed to quash and set aside the enquiry and findings given by Enquiry Officer vis-a-visdecision taken of removal with request to direct first partyto take hun in the employment .

6. This is disputed by first party by tiling reply at Ex-9 stating that, second party is not a ' workman'. He was appointed as a Foreman . He was taking salary of Rs . 5,500 p.m. Besides duties assigned were of Foreman . He was assigned charge of welding plants and supervising work ofemployees working there. Since he is not workman' , he cannot seek protection under provisions of Industrial DisputesAct.

7. 11 is further stated that . second party remained absent unauthorised without taking leave or prur permission between 15-10-1998 10 20-12-1999 . Actually during that period, he was engaged in partnership business run in the name of Mis . Solid Bonds and nature of business was specialized in Rail Gas Pressure Welding Works al 709, 4th A cross , 7th Main, 1st Block, Kalyan Nagar. Bangalore-560 043. According to first party , he was doing business with partner and was not sick as pretended by him . Even he has not produced medical certificate and X- Ray reportthough he was claiming that , he was taking treatment from Orthopaedic .

B. First party issued charge sheet dated 29-4-1999 asking second party to appear in the inquiry. Even intimation letter was issued 10 second party to report in the enquiry but he fully neglected to participate in the enquiry So , at last enquiry was conclisded ex-parte . Even he was given personal hearing by the thiet Engineer where second party noted that, he is busy with his private work . Even medical certificate produced by him were bogus . The investigating machinery of first party enquired about the second party's business by appointing one enquiry officer . Mr. P.V. Mathew who visited the residence of second party to verify his sickness on 29-9-1999 . On that day he found second party was not present at bis house and his brother 5619

भारत काराजपत्र : अक्तूबर 4, 2008/आश्विन 12, 1930

[ भाग II-खण्ड 3 ( ii ) ]

Mr. Ajit was present who informed Mathew that, second party had gone to Bangalore to meet his business partner. ThenMr. Mathew talked to second party on mobile offered by brother ofsecond party. Even he handed over visiting card of the company run by second party and his brother. Even second party talked on phone with Mathew from Bangalore. Mathew submitted report accordingly. On relying on this report ofMr. Mathew , first party concluded second party is not sick and has taken disadvantage ofhis sickness which reveals that, he is not interested in the service of first party and so he remained absent in the enquiry as well as on duty. It is further stated that, personal hearing was given . Even in that he was not able to make out his case and prove his sickness during his absence . It is further stated that, he unable to satisfy first party about fitness certificate and date of issuing of said, since fitness certificate was obtained by Kerala doctor on 21-12-1999 and on the very day he appeared in the office with that certificate. All these reveal that , he purposely remained absent since not interested in the services of first party.So it is contended that, action taken of removal is just and properand does not require any interference.

9. In view of above pleadings my learned Predecessor framed issues at Ex- 11 . Out of those, issues No.1 & 2 which are on the point of fairness of enquiry and finding ofenquiry officer are treated as preliminary issues , which I answer as follows:

Issues

Findings

No (1 ) Whether the domestic inquiry conducted against the workman was as per the Principles of Natural Justice ?

Yes ( ii) Whether the findings ofthe inquiry officer are perverse?

REASONS

ISSUE NO . 1 & 2 :

enquiry . The documents produced by first party with list Ex- 12 reveals that personal hearing was given to second party workman by the Chief Engineer who actually put questions to second party and recorded the answers of it. Except that, there is no evidence . So the enquiry which is on record cannot be called as ' enquiry' . The findings given by enquiry officer are not on the basis ofdocuments and evidence led by both . So definitely when there was no enquiry, question of deciding whether it is fair and proper and findings of enquiry officer perverse does not arise.

12. Second party filed written arguments at Ex- 23 whereas first party at Ex-24 alongwith copy of four judgments including judgment published in 1995 ( 1 ) LLJ 113 , 2001 LLR 825 , 2003 ( 98 ) FLR 507 and citation published in 1993 LAB IC 324. All these citations are on the point of domestic enquiry and findings of it where employee did not attend the enquiry on the date given . The facts of those cases are different than facts of this case. As far as citation no.1 is concerned, it is pertaining to burden of proofwhereburden to led evidence was casted on workman to show that enquiry is not fair and proper . In the instant case, no evidence was led by second party but when admittedly second party did not appear in enquiry and no any evidence was recorded by Enquiry Officer , question ofproving that, there was no enquiry does not arise . Second partyhas filed Written Arguments at Ex- 23 repeating the same facts which are stated in the Claim Statement.

13. So instead of wasting time on deciding whether enquiry fair and proper when actually there is nothing on record on enquiry, I conclude that, there was no enquiry and findings given by enquiry officer is perverse.

14. Status ofsecond party is challenged by first party saying he is not workman . No cognizance of it is taken by the second party. So one has to decide that issue of 'workman' as it comes in the way ofrelief of second party. So I answer these issues to that effect and direct parties to appear in the reference on the point of ' workman ' and on the point of justification of action taken by first party. Hence the order:

ORDER

(i) Enquiry not fair andproper.

( ii) Findings perverse .

(iii) Both parties to attend in the reference on the point of 'workman ' and on the point of 'justitication of action' taken by first party.

Date: 30-6-2008

10. These issues are on the point of fairness of enquiry and findings of enquiry officer. Admittedly there was no enquiry since second party did not appear before enquiry officer. Even second party did not lead evidence on the point of absenteeism or sickness and filed purshis at Ex- 17 reporting that he do not want to lead evidence on point of enquiry. Against that first party has examined Mr.Mathewby filing an affidavit in lieu of Examination in Chiefat Ex-19who speaks about his visit to house ofsecond party and about absence of second party at his house. He also spoke on the point of business run by second party in the house and about his talk with second party over telephone, who was at Bangalore . So the evidence led by both is not connected with enquiry and findings of it , 11. But it is mattar of record that, enquiry was not conducted since second party did not participate in the 3631 G1/2008-22

A. A. LAD , Presiding Officer नई दिल्ली , 12 सितम्बर , 2008

का. आ. 2821.-औद्योगिक विवाद अधिनियम , 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में , केन्द्रीय सरकार केनरा बैंक के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच अनुबन्ध 5620

THE GAZETTE OF INDIA: OCTOBER 4,2008/ ASVINA 12,1930

मेंनिर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ श्रम न्यायालय नं. 1 , चण्डीगढ़ के पंचाट ( संदर्भ संख्या5/92 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 11-9-2008 को प्राप्त हुआ था। [सं. एल-12012/336/91- आई आर ( बी -11 ) ]

[PARI 11 -Sec. 3 ( ii ) )

राजिन्द्र कुमार , डेस्क अधिकारी

New Delhi , the 12th September , 2008 $.O. 2821. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award (Ref. No. 5:92) of the Central Government Industrial Tribunal- cum-Labour Court No. I , Chandigarh as shown in the Annexure , in the Industrial Dispute between the employers in relationto the management ofCanara Bank and their workmen , which was received by the Central Government on 11-9-2008 .

[No. L-12012/336/91 -IR ( B-II )]

RAJINDER KUMAR , Desk Officer

ANNEXURE

BEFORE SHRI GYANENDRA KUMER SHARMA , PRESIDING OFFICER, CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM - LABOUR COURT- 1 , CHANDIGARH

Case No. I.D. 5/92

Sh. Arun Ghai , Assistant General Manager , Canara Bank Staff Union , B -XI, 1662, Rari Mohalla , Ludhiana ( Pb) .

were amalgamated with the Canara bank on 23rd ofAugust. 1985 with the scheme of analgamation . As per the scheme of amalgamation , the workman , atong with the other employees ofErstwhile Laxmi Commercial Bank was placed in the seniority list and his name was listed at column No. 13 with 79 points . Aggrieved with this list , the workman raised an industrial dispute and on account of failure of conciliation proceedings . Central Government referred the reference for judicial adjudication to this Tribunal . I have heard learned counsels for the parties and perused entire materials on record . 'The main contentions which are the cause of concern to the workman are: -

1. Seniority ratio of for counting service is wrong The workman is entitled to credit for full length of service with Erstwhile Laxmi Commercial Bank as well as Canara Bank.

2. The Canara Bank white deciding the service conditions of the employees who had been the employees ofErstwhile Laxmi Commercial Bank before amalgamation, has counted the length of service after excluding period of probation while the period of probation should have been counted in the service while determining the length of service.

3. The criteria of qualification for promotion which was taken over under settlement, dated 19-11-85, was bad in law.

....Applicant

Versus

DeputyGeneral Manager , Canara Bank, Circle Office, Sector 34 -A , Chandigarh .

Respondent

APPEARANCES

For the workman:

Sh. B.J. Singh For the management;

Sh . Ashok Jagga .

AWARD

Passed on 3-9-08

TheGovernment of India vide Order No. 12012/336/ 91 - JR (B- II ) dated 10-2-92 referred the following industrial dispute for the judicial adjudication .

"Whether the action of the management of Canara Bank in not including the name ofSh . Arun Ghai in seniority list ofSpecial Assistant notified on 31-3-91 and inducting his juniors isjustified? Ifnot, to what relief is the workman entitled?"

It is clear from the statement of claim , written statement and other materials on record that the workman was an employee ofErstwhile Laxmi Commercial Bank which The amalgamation scheme is on record. Ihave gone through the scheme of amalgamation. It is undisputed that before amalgamation both ofthe banks were A Class banks. After the amalgamation , the Canara Bank was supposed to extent the service conditions of its employees to the employees of the Erstwhile Laxmi Commercial Bank. The Canara Bank extended the benefits of service conditions of Canara Bank to the employees of Erstwhile Laxmi Commercial Bankw.e.f. 1-10-85 . Оп 3-10-85 , a memorandum of settlement arrived in between the Canara Bank Workers ' Union and the management of the Canara Bank. As per the above statement , the service weightage for the service in Erstwhile Laxmi Commercial Bank was to be reckoned in the ratio of 1.5: 1 , meaning thereby, one and a halfyears of service in the Erstwhile Laxmi Commercial Bank was reckoned as one year of service in the Canara Bank . The dispute arises on it and a writ petition (civil ) No.685/86- 1475/86was filed by All India Canara Bank Union Officers against the management of Canara Bank . Hon'ble Supreme Court dismissed the petition with the observation that Banking Regulation Act. 1949, proviso to. Section 45 ( 5) (1) and Clause ( 12 ) ofthe scheme of amalgamation framed by the Reserve Bank of India under Section 45 ( 4 ) of the Banking Regulation Act , which received sanction from the Central Government under sub - section 7 thereafter , providedthat inthe event of any difference or doubt arising in the matter of equation of post made by the transferee bank pursuant to the scheme , the party aggrieved shall be 5621 भारत का राजपत्र: अक्तूबर 4, 2008/ आश्विन 12, 1930

[ भाग ।। - खण्ड 3 ( ii) ]

at liberty to make a reference to the Reserve Bank of India under aforesaid proviso . The writ petition was dismissed with the direction that if the party raised any such objection , the Reserve Bank of India shall enter upon the reference and deal with the same in accordance with the law.

settlement was made between the Workers ' Union of Canara Bank and the management of Canara Bank оn 30-10-85, in which the service ratio 1.5: 1 in between the Erstwhile Laxmi Commercial Bank and the Canara Bank was settled.As per the proviso of Para 12 of the amalgamation scheme, in the case of any dispute the reference should have been made to the Reserve Bank of India. It was accordingly made and the Reserve Bank of India has made it clear that the service weightage of the service in the Erstwhile Laxmi Commercial Bank was reckoned in the ratio of 1.5 : 1 meaning thereby, every one and a half years of service in the Erstwhile Laxmi Commercial Bank is reckoned as 1 year of service in the Canara Bank was reasonable. Hon'ble Apex Court in above mentioned two writ petitions has also made it clear that the decision of Reserve Bank of India as per the amalgamation scheme willbe final . Thus , the ratio ofreckoning the service weightage of 1.5: 1 is final and it cannot be interfered by this Tribunal while answering thisreference.

A reference was accordingly made to the Reserve Bank of India and Reserve Bank of India decided the reference that weightage of service in the ratio of 1.5 : 1 granted to the employees of Erstwhile Laxmi Commercial Bank is reasonable . While - passing the order , the Reserve Bank of India in Para 5 specifically mentioned that Erstwhile Laxmi Commercial Bank Ltd. and Canara Bank Ltd. were bothA class Banks and the duties discharged by the various categories of the employees of the Erstwhile Laxmi Commercial Bank Ltd. were prematric to the duties discharged of the various categories of employees of Canara Bank. Though Erstwhile Laxmi Conumercial Bank Lid. was A Class Bank, most of its branches were medium and small branches with limited operations and the employees had, therefore, limited exposure . Hence, considering the quality of service , the efficiency of the organization and the range of volume of the business transacted, the Reserve Bank of India is ofthe opinion that although , Erstwhile Laxmi Commercial Bank Ltd. was an AClass Bank, the experience given by its employees cannot be equated with the employees of the CanaraBank.

I have gone through the scheme of amalgamation as well . Para 12 of scheme of the amalgamation reads as under:-

A new question has been raised by the workinan that while counting the service the period of probation was not counted in the length of service of the workman . In my opinion , it is also a dispute which as per the proviso of Clause 12 of amalgamation scheme should have been referred along with the above reference regarding the weigthage of service of the Reserve Bank of India . This Tribunal as per the Proviso to Paragraph 12 of the scheme cannot decide it , while answering the reference. While answering the reference, this Tribunal , has no power or jurisdiction to decide the virus of the constitionality ofthe scheme of amalgamation . Accordingly , service weightage for the service in the Erstwhile Laxmi Commercial Bank in the ratioof 1.5 : 1 , Canara Bank was rightly reckoned . One and a halfyears of service in Erstwhile Laxmi Commercial Bankwas reckoned as one year service in the Canara Bank while determining the service conditions ofthe employees ofErstwhile Laxmi Commercial Bank. On the amalgamation of Erstwhile Laxmi Commercial Bank with the CanaraBank, it is the natural consequence that some of the employees ofCanara Bank having the less number of years ofservice may be placed above the workman .

"The transferee bank shall , on the expiry of period not longer than three years from the date on which this scheme is sanctioned, pay or grant to the employees of the transferor bank the same remuneration and the same terms and conditions of service as are applicable to the employees of corresponding rank or status of the transferee bank subject to the qualifications and experience on the said employees ofthe transferor bank being the smse as or on the said employees of the transferor bank being the same as or on the said employees of the transferor bank being the same as or equivalent to those ofsuch other employees of the transferee bank.

On perusal of the entire materials on record , the workman has failed to prove that any employee of Erstwhile Laxmi Commercial Bank junior to the workman has been placed at senior level in the seniority list .

Provided that ifany doubt or difference arises as to whether the qualifications or experence of any ofthe said employees are the same as or equivalent to the qualifications and experience of the other employees of corresponding rank or status of the transferee bank or as to the pay of the employees in the scales of pay of the transferee bank, the doubt or difference shall be referred to the ReserveBank of India whose decision thereon shall be final ."

Thus , the reference on the basis of the above observation is answered in positive that the action of the management of Canara Bank in not including the name of Sh. ArunGhai in seniority list of Special Assistant notified on 31-3-91 and inducting his juniors is justified and the workman is not entitled to any relief. Let the Central Government be informed. File be consigned.

On perusal of the materials on record, it is evident that under Paragraph 12 of the amalgamation scheme,

G. K. SHARMA , Presiding Officer 5622

18L GAZETTE OF INDIA : OCTOBER 4, 2008 /ASVINA 12 , 1930

नई दिल्ली , 12 सितम्बर, 2008

का.आ. 2822.-औद्योगिक विवाद अधिनियम, 1947 ( 1947 की 14 की धारा 17 का अनुसरण में , केन्द्रीय सरकार, बैंक ऑफ इण्डिया के प्रथधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरणःश्रम न्यायालय इरनाकुलम के पंचाट ( संदर्भ संख्या 114/2006 ) को प्रक्रःशिन करती है , जो केन्द्रीय सरकार को 11-9-2008 कां प्राप्त हुआ था ।

[सं. एल-12012 /193/2003 - आई आर ( चो-11 ) ] राजिन्द्र कुमार, डेस्क अधिकारी New Delhi, the 12th September , 2008 $.0.2822 -In pursuance of Secuon 17 of the Industrial Disputes Act , 1947 ( 14 of 1947 ) , the Coniral Government hereby publishes the award ( Ref. No. 114 : 2006) of the Central Government Industrial Tribunal - cum- Labour Court , Inakulam as shown in the Annexure , in the Industrial Dispute between the manageinent of Bank of India and their workman, received by the Central Govemment on 11-9-2008 .

[No. L- 12012 / 193 / 2003-1R ( B - 11 ) ] RAJINDER KUMAR . Desk Officer

ANNEXURE

IN THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL- CUM - LABOUR COURT, ERNAKULAM

Present : Shri . P. L. Norbert , B.A. , LL.B., Presiding Officer

(Friday the 30th day of May. 2008 / 9th Jaishta 1930 )

J. D. 114/2006

(T. D. 3/2004 of Labour Court . Ernakulam) Workman : George Shajan , Sio . Late U. Anthoo , Kaliachammuri House, Keerthi Nagar Road , Elamakkara P.O. , Ernakulam .

By Adv . Sri . M. R. Sudheendran Management The Zonal Manager. Bank of India . Kerala Zone . Kaloor , Emabulam , Kochi - 17 .

By Adv . M.P.R. Nair.

This case coming up for hearing on 29-5-2008 . this Tribunal - cum-Labour Court on 30-5-2008 passed the following:-

AWARD

This is a reference made under Section 10 ( 1 ) ( d ) of Industrial Disputes Act .

[PART 11- SEC. 3 ( ii ) ] 2. Shri George Shajan was a casual worker in Paravur Central Bank, Nayarambalam branch . While so , Paravur Central Bankwas amalgamated with Bank of India in 1990. Thereafter theBank of India refused to engage the worker. Representation was made by the workman . Then he was engagedat M.G.Road branch of the bank as part - time sweeper for sometime. There was break in service and hence theworker made representation to the management. Again he was engaged from May, 1992 as part - time sweeper as well as peon cum part - time sweeper. Accordingto the workman since then he has been working continuously and completed continuous service of 240 days during 1992-93 itself. However the workman was not allowed to sign in the muster- roll . Payment was made as per debit vouchers . On 30-01-2001 the workman made representation tothe management to regularise him in service . It was not considered favourably by the management . From 15-02- 2003 he was not allowed to work. But no notice or compensation was given to him. The work done by the workman is perennial in nature . After the retrenchment freshers were taken.

3. The management contends that at the time of amalgamation of Paravur Central Bank with Bank of India all the employees on the roll of Paravur Central Bank were absorbed in Bank of India . The name of the workman was not there on the roll . Assuming that the workman was a casual labourer in the erstwhile bank, the management bank is not bound to engage him . Being a nationalized bank the management bank has prescribed procedure for selection of candidates for appointinent . The management has not engaged the workman for a period of 240 days as contended by him. No freshers or juniors are engaged in the place of worker .No order of appointment or termination was issued to the workman by the bank . He is not entitled for compensation or retrenchment notice as claimed by him . The workman is not entitled for any relief.

4. In view of the above contentions the only point that arises for consideration is :

Whether the termination of service oftheworkman is legal?

The evidence consists of the oral testimony of WWI and the documentary evidence of Ext .W - 1 on the side of the workman and MW ] and Exts . Ml and M2 on the side of the management.

5. The Point: The engagement of workman in erstwhile Paravur Central Bank as Casual labour is not seriously disputed by the management . However according to the management at the time of amalgamation of the Paravur Central Bank with management bank the employees on the role ofParavur Central Bank were absorbed in Bank of India. It is true that the workman was only a casual labourer in Paravur Central Bank, Hence his name may not be there on the roll of Paravur Central Bank . WWI admits that he was not allowed to sign the Muster Roll . After the 5623 [ भाग II- खण्ड 3 (ii) ]

भारत का राजपत्र : अक्तूबर 4, 2008/आश्विन 12 , 1930

In the result an award is passed finding that the action ofthemanagement in terminating the service of the workman Sri . George Shajan is legal and justified and he is not entitled forany relief.

The award will come into force one month after its publication in theOfficial Gazette.

Dictated to the Personal Assistant , transcribed and typed by her, corrected and passed by me on this the 30th day ofMay , 2008 .

P. L. NORBERT, Presiding Officer Appendix

Shri . K.A.George Shajan.

Witness for the workman WWI 25-09-2007 Witness for the Management MWI 28-05-2008

amalgamation the workman was not engaged by the management bank . He made representation and thereafter he was taken as casual part -time sweeper admittedly by the management . The work of the claimant till May, 1992 was not continuous . However thereafter according to the workman he worked continuously till his termination on 15-02-2003 and completed 240 days , continuous service during 1992-93 itself. But the bank denies such continuous service. Since the workman admittedly was only causal labourer unless it is proved that he had worked continuously for 240 days or more during a calendar year he cannot claim any right or benefit under the provisions of 1.D. Act . The burden is on the workman to prove continuous service. The Hon'ble Supreme Court in 2006 ( 1 ) LJ 442 has made it clear that the burden to prove continuous service of 240 days is on the workman and such burden can be discharged by calling for relevant documents from the management side and the worker himselfmounting the box and stating his case .

Shri . SanilkumarG. (Affidavit only)

Exhibit for the workman 30-11-2001 WI-

Photostat copy of representation submitted by workman to the Management .

Exhibits for the Management M1-

M2.

Statement of SB Account No.246 for the period from 03- 09-98 to 31-12-2000. Relevant page of manual of Instructions .

नई दिल्ली, 12 सितम्बर , 2008

का.आ. 2823.-औद्योगिक विवाद अधिनियम , 1947 (1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार , सैन्ट्रल बैंक ऑफ इण्डिया के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ श्रम न्यायालय नं. 2 , मुम्बई के पंचाट ( संदर्भ संख्या 5/2003 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 11-9-2008 को प्राप्त हुआ था।

[सं. एल-12011/181 /2002- आई आर ( जी- II ) ] राजिन्द्र कुमार , डेस्क अधिकारी

New Delhi, the 12th September, 2008

S.O. 2823. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947) , the Central Government hereby publishes the award (Ref. No. 05/2003) of the Central Govemment Industrial Tribunal - cum- Labour Court, No. 2 , Mumbai as shown in the Annexure in the Industrial Dispute between the management of Central Bank of India and their workman , received by the Central Government on 11-9-2008 .

6. The workman had called for 3 documents from the management side . They are the debit voucher of the period 1990-2003 , petty cash vouchers of the year 1997 to 2002 and statement of SB Account No. 246 of Bank of India Staffcanteen ofthe period 1990 to 2000. The bank produced the S.B.Account of staff canteen of the period 98 to 22-12- 2000. Regarding the early period from 1992-98 it was submitted that the records of those periods are not available as the bank preserves documents only for a period of 8 years. It was also submitted that there are no debit vouchers to show payments to the workman as he had not worked during the period mentioned in the affidavit accompanying the petition calling for documents . It is also submitted that petty cash vouchers were also not available with the bank as no payments were made on the dates shown in the petition ofthe workman calling for documents. An affidavit to this effect was filed by the management . The staff canteen S.B.Account which is marked as Ext.MI does not reveal that the workman was paid anything by the bank during the period from 1998 to 2000. Ext .M2 is a relevant page ofmanual of instructions ofBank of India. It shows that as per item No. 17 vouchers are to be preserved only for a period of 8 years and other documents need be kept only for lesser periods . The workman has not been able to prove that he had worked continuously for 240 days or more in an year . No attempt was made by the workman to examine any staff of the bank to support his case. There is total absence of any evidence to show that he had worked during any particular period . Admittedly there was neither an appointment order nor a termination order. In the absence of any evidence regarding continuous service of 240 days he cannot claim any right under Industrial Disputes Act much less under Section 25 - F of the Act andhe is not entitled for notice or compensation under that provision . There is no violation ofany provision of lawwhen the management disengaged the workman on 15-02-2003. Point is answered accordingly.

(No. L- 12011 / 181 /2002- IR (B- II ) ) RAJINDER KUMAR, Desk Officer 5624

THE GAZETTE OF INDIA : OCTOBER 4 , 2008/ ASVINA 12 , 1930

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL No. 2 , MUMBAI

PRESENT

Shri A. A. Lad,. Presiding Officer

Reference No. CGIT -2 /5 of 2003

Employers in Relation to the Management of Central Bank of India

The Chief Manager

Central Bank of India , Zonal Office, C/ o . 317, M.G.Road,

Рилс-(MS) 411001.

And

Their Workmen,

The General Secretary ,

Akhil Bhartiya Adinastha Bank Karmachari

Sangh,

FlatNo. 10, Jivandhara Society, Jail Road, Saikheda Road, Siddeshwar Nagar , Nasik Road(MS)

APPEARANCES

For the Enmployer Mr. L. L. D. Souza, Representative.

For the Workmen No appearance.

Mumbai , dated the 15th July, 2008

AWARD

The Government of India , Ministry of Labourby its Order No.L- 12011/ 181 /2002 / IR ( B - II) dated 27-01-2003 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, 1947 have referred the following dispute to this Tribunal for adjudication :

"Whether the action of management of Central Bank ofIndia in not extending the check- off facility to the members of Akhil Bhartiya Adinastha Bank Karmachari Sangh is correct and justified ? If not, what relief the Union viz . Akhil Bhartiya Adinastha Bank Karmachari Sangh is entitled to ?"

2. Claim Statement is filed by the General Secretary of the union stating that , said union is registered under Trade Union's Act, 1926. The union registration number is 4917 dated 06/04/1995 . It is based at Gwalior , Madhya Pradesh , Said union has Constitution and Rules . Membership of the said union is open to any employee working in the subordinate category. Said rules and constitution ofunion is approved by the Registrar of Trade Unions .

[PAKT II --- Sic . 3 ( ii) ] 3.According to unina , large number of employees in the various subordinate categories employed in the various Nationalised Banks including first party bank have joined union and became member of it. Union is trying to have betterment to its members and making efforts for the welfare of the members of the union . It is collecting membership subscription at the rate of Rs 5 / p.m. for ordinary membership.

4. As number of employees are members of union who are working in the various Banks and branches ut 1. scattered throughout India. 11 find difficult for the union to contact personally sand members and colleet the membership every month or quarterly or yearly . For that , union has adopted check off arrangement with the management of the Banks whereby under authorisation of individual employee , Bank can deduct union membership subscription of the employees working in its office on monthly basis from wages payable to that employee and remit the said collectively to the second party union. Such a deduction regarding membership union subscription is permittedunder Section 7 ( 2 ) ( kkk ) of the Payment ofWages Act. According to union , such a deduction towards subscription is in practice not only in the Bank but in other undertakings also . According to second party union , such a deduction regarding union membership subscription is term or condition of service regulated either by the Payment of Wages Act or by seulement or Award under the Industrial Disputes Act and any dispute in that regard is treated as industrial dispue under Section 2 (k ) of Industrial Disputes Act.

5.According 10 second party union , the subordinate categories ofstaff working with first party are also members of second party union. Other unions functioning in the Banking Industry hardly represent the employees working in theBank which are of subordinate category . According to union , it has membership not only of first party Bank but also in other pationalized Banks such as State Bank of Indore, State Bank of India , Bank of india, Punjab National Bank, Allahabad Bank etc. The employees working in the Bank who are members of second party union , on request of second party union and consent of concerned workman have been deducting the membership subscription of second party union and remitting the same to it . However the members of the so called union employed with first party at Nashik Branch has denied the said facility and first party is not following it. According to second party, it requested first party to extend said facility to its members . However, it was not considered by first party. So it is the case ofsecond party that , first party be directed to deduct the membership subcription of members of second party union by following check offfacility from salary ofmembers working in first party Bank and be directed to remil it as per theunderstanding 100k place between union and number ofbanks.

6. This is disputed by first party Bank by filing reply Ex-9 making out case that , subject matter of reference of [ भाग II- खण्ड 3 ( ii) ]

following check- off facility for collecting membership subscription of members of second party union from the employee ot the first party Bank and denying by the first partyto follow the check- off system for the said purpose cannot become and Industrial Dispute and cannot be called Industrial Dispute under Section 2 (k) of Industrial Dispute Act. Since it cannot be an industrial dispute , it cannot be adjudicated by this Tribunal . On this ground reference is not maintainable. It is further stated that , there are negligible members of second party union working in the first party branch and as such , it does not give any cause to the union to espouse the dispute. It is further stated that , nothing is brought on record by union that it can be authorised to espouse cause of workmen working with first partyBranch at Nashik . According to first party check- off facility is a matter, strictly followed between workman and management and there union has no locus standi 10 represent the workman to insist first party to follow check offfacility . According to first party, extension of check-off facility is not a condition ofservice and said facility can be utilised at the discretion of management. Union acannot compel first party to follow the check off facility . It is stated that, extension of facility ofcheck off is purely a discretion facility which can be followed at the management discretion and such a facility cannot be claimed as a matter ofrightas claimed by union . To espouse such a cause , union must have sufficient members from the workmen working with first party. Since it is not proved by union that , majority members of union working with first party have given authority to union to extend the facility of check off for including membership of union from the employees of first party Branch . So it is submitted that the prayer prayed cannot be considered .

7. In view ofabove pleadings my learned predecessor framed issues at Ex - 11 which I answer as follows:

Issues

5625

भारत का राजपत्र : अक्तूबर 4, 2008/आश्विन 12, 1930

forwarded a dispute for adjudication by extending powers conferred under clause (d ) of sub- section ( 1 ) and sub- section (2A) of Section 10 of the Industrial Disputes Act which reads as follows:

"Whether the action of the management of Central Bank of India in not extending the check -off facilityto the members of Akhil Bhartiya Adinastha Bank Karmachari Sangh is correct and justified? If not, what relief the union viz. Akhil Bhartiya Adinastha Bank Karmachari Sangh is entitled to?"

Asper subject- matter referred in the schedule, this Tribunal has to decide whether action of management in not extending check-off facility to the members of second partyunion is correct andjustified ? If not , what relief union can get from the Tribunal against first party?

9.Accordingto union , it can utilize check-off facility to collect its membership subscription trom the employees working with first party who are members of it, since union is not in position or as it is not feasible for the union to collect the monthly subscriptionby contacting members working at different places in the various banks including fust partybranch , therefore , check- off facility was followed. EvenBank agreed to follow the check- off facility. As per that, Bank was supposed to withdraw the membership subscription of the members of the union working with it and remit it to the union. However , Bank did not give any responseto it , which resulted in non -collection of the subscription from the members of the second party working with first party. This is denied by first party saying that, said cannot become subject- matter of Industrial Dispute and nothing is on record to show that , union is authorised to espouse the cause of workmen . It is also stated that, check-off facility is matter of facility followed between workman and management and union has no role to play.

Findings

Yes (i ) Whether the management bank proves that , the dispute raised does not constitute an industrial dispute ?

Yes (ii) Whether the management proves that the Sangh has no locusstandi to represent the individual workman?

Yes (iii) Whether the action of the management ofCentral Bank of India in not extending the check-off facilityto the members ofAkhil Bhartiya Adinastha Bank Karmachari Sangh is correct and justified?

No relief.

(iv) What reliefthe union viz. Akhil Bhartiya Adinastha Bank Karmachari Sangh is entitled to?

Reasons

Issue nos. 1 to 4:

8.By this reference , Government of India, Ministry of Labour & Employment by letter dated 27-01-2003 10, For that, let us see what evidence is led by both? In this case, when matter was fixed for recording evidence of second party union , union by an application sent through post Ex -24 & Ex-26 and prayed time. For having waited for number of dates , union started remaining absent and on 23-04-2007 Court passed an order to proceed ex- parte against union and directed management to file an affidavit:Accordingly, management filed affidavit at Ex - 27 after two dates of the order . Even though the evidence of the managerment was filed in the form of affidavit Ex- 27 in lieu of Examination - in -chief, witness was not cross- examined by the union though number ofdates were given . Lastly reference was kept for written arguments as there was claim statement of union vis -a - vis written statement of the first party and that both have made out their case by filing their respective pleadings .

11. Since nobody appeared for union to support their pleadings and prayer prayed and when first party had objected that, union has no right to claim such relief of check-off facility, we have to see whether union can still getany relief inthis background?

5626

THE GAZETTE OF INDIA : OCTOBER 4, 2008/ ASVINA 12 , 1930

12. It is case of the first party that , subject matter referred in the dispute does not fall in the category of " Industrial Dispute" . In Industrial Disputes Act , definition of industrial dispute is given under Section 2 (k) which reads like this:

(k) " industrial dispute " means any dispute or difference between employers and employers , or between employers and workmen, or between workmen andworkmen, which is connected with the employment or non -employment or the terms of employment or with the conditions of labour , of any person;

As per definition of industrial dispute given under Industrial Disputes Act , " industrial dispute " means , difference between employers and employers or difference between employers and workman or difference between workman and workman which is connected with the employment or non -employment on strength of employment or which is connected with condition of labour of any person . Here , union has dispute regarding not following check-off facility alleging that , it is not extended by first party. Bank has stated that union has no right to claim reliefon that point since it is matter between employer and employee . And union has not said anything on that point. As far as definition of industrial dispute is concemed, subject matter of not extending " check off facility " cannot come within the conditions of labour or within terms of employment or non - employment as defined under Section 2 (k ) of the Industrial Disputes Act . The prayer prayed by second party is about their problem which they are facing in colleting the membership subscription from its members who are working with first party Bank . According to first partyBank . since , members of second party working with first party have not given authority to second party to collect their membership subscription from the first party branch, second party cannot pray to extend the facility of check- offand cannot ask Bank to remit the amount as of right as happened in this case. When no evidence is lead on that point by the union , and when union has not proved that , it can claim relief of check - off facility as of right from the first party branch regarding its members working with first party branch, in my considered view, second party is not entitled to any relief. Though second party did not care to lead evidence vis- a - vis to prove their demand on the point of check-off facility which is to be extended by first party for remitting the membership subscription of its members working with first party, in my considered view, union is not entitled to any relief.

13.In view of discussions made above , I conclude that , union failed to prove that it has right to recover membership subscription of its members working with first party branch by following check off facility and sought direction from Tribunal to direct first party to remit the same to it . So I answer above issues to that effect and passes the following order:

[PART II- SEC. 3 ( ii ) ]

ORDER

Reference is rejected with no order as to cost. Dt. 15-5-2008

A. A. LAD, Presiding Officer नई दिल्ली , 12 सितम्बर , 2008

का.आ.2824 औद्योगिक बिबाद अधिनियम, 1947 ( 1947 का (4 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार , बैंक ऑफ बड़ौदा के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ श्रम न्यायालय नं. । , चण्डीगढ़ के पंचाट ( संदर्भ संख्या 41/94 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 11-9-2008 को प्राप्त हुआ था ।

[सं. एल-12012/28/1994- आई आर ( बी-11 ) ] राजिन्द्र कुमार , डेस्क अधिकारी New Delhi , the 12th September , 2008 S.O.2824 . In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947 ) , the Central Government hereby publishes the award ( Ref. No. 41/94) of the Central Government Industrial Tribunal cum Labour Court , No. 1 , Chandigarh as shown in the Annexure in the Industrial Dispute between the employers in relation to the management ofBank of Baroda and their workman, which was received by the Central Government on 11-9-2008 .

No. L - 12012/28 / 1994 - IR (B - 11 ) ]

RAJINDER KUMAR , Desk Officer ANNEXURE

BEFORSHRIGYANENDRA KUMAR SHARMA , PRESIDING OFFICER, CENTRAL GOVT. INDUSTRIALTRIBUNAL- CUM - LABOUR COURT,-1 , CHANDIGARH.

Case No. I. D. 11/94

Sh . Gian Chand, Secretary, All India Ex -Serviceman Bank Employees Federation , Cro P.N.Β. , Shalamar Road, Jammu - 18000 ]

...Applicant

Versus

The Deputy General Manager , Bank of Baroda , Zonal Officer 16, Sansad Marg New Delhi - 110001 .

...Respondent

APPEARANCES

For the workman

For the management

: Sri Ronak Singh Sri Parmod Jain AWARD

Passed on 4-9-08

The Government of India vide notification No L- 12012/28/94 IR B- 2 , dated 6-5-94 referred the following industrial dispute for judicial adjudication :-

[भाग 1 ]-खण्ड 3 (ii) ]

$627 भारत का राजपन्न: अक्तूबर ,4, 2008/आश्विन 12, 1930

"Whether the action of the management ofBank of Baroda , Jammu in imposing the punishment of stoppage of one increment on Shri S. Ronak Singh, Cash Clerk , vide their order dated 4-9-92 is justified? Ifnot, what relief the said workman is entitled to?"

evidence to the workman . The enquiry officer issues; summon/ notices upon all the three persons named in the witness list . No one turn up on the date fixed and the workman requested the enquiry officer to pass the order that the defence witnesses be summoned at the expenses ofthe bank because all the persons named in the defence witness list, were the bank employees. Enquiry officer refused it with the contention that it is the duty of the workman to produce the defence witnesses . He can otherwise seek the assistance of the enquiry officer .

The dispute between the workman and the management of Bank of Baroda is regarding the availing leave fair concession illegally by the workman in the year 1987. The workman claimed his bill ofL.F. C. in respect of the journey made by Upper India Express Train on 13-14th July, 1987. Explanation was called from the workman and dissatisfying with the Explanation , the workman was charge sheeted on 27-3-90. It was also ordered to conduct the enquiry on the incidem for which the workman was charge sheeted. After conducting the enquiry , the enquiry officer filed the enquiry report and the disciplinary authority after issuing show - cause notice and providing an opportunity of personal hearing punished the workman with stoppage ofthree increments vide order dated4-9-92. The disciplinary authority after examining the objections raisedby the workman passed the detailed order regarding the stoppage of three increments with cumulative effect . The workman preferred an appeal and the appellate authority set aside the punishment given by the disciplinary authority and substitute the punishment by stoppage of one increment with cumulative effect ,

These were the points on the basis of which the workman has contended about the violation of the principle or natural justice . The Tribunal has to decide whether considering the nature ofdispute , any prejudier has been caused to the workman by not summoning the witnesses named in the list . Three witnesses , which were requested to be summoned by the workman were the complainant Shri N. K. Pandini , Shri R.D. Jatain the then Manager of the Jammu Branch and Shri Jaswant Singh Head Cashier, Ghandhi Nagar, Jammu Branch. All these three witnesses have no concern with the journey made by the workman from Jammu10 Patna and back . The journey has been claimed to be made by the particular train, on the fix dates . In my opinion , it was not essential to summon the witnesses to prove the journey, whercas , it can be proved by the documents of the railways.

The workman . in his statement of clain stated that proper opportunity of being heard was not given to him . He was not permitted to summon the witness in defense , whowere the bank emloyees, through the enquiry officer .

The management , on the other hand alleged in written statement that proper opportunity of being heard was given, the witnesses which were named in the witness list by the workman were the employees of the bank management and it was found by the enquiry officer that it was not required to examine those witnesses .

Principle or natural justice is not the uttruling horse, it has certain limitations . If the proper opportunity ofbeing heard is given and the person concerned is not availing those opportunities , it cannot be claimed that there has been violation of principle of natural justice . Likewise . no prejudice is caused to the workman , because considering the nature of dispute, to prove the charge , it was not necessary to summon the witnesses as prayed by the workman . Enquiry officer has rightly refused for summoning the witnesses at the expenses of the bank. The nature of charge is such that it can be proved by independent documentary evidence .

I have heard learned cousel for the parties and pursued the materials on record.

Thus, in conducting the enquiry there was no violation ofthe principle of natural justice and enquiry was conducted in a fair reasonable and proper inanner.

I have gone through the enquiry report givenby the enquiry officer . He has held the charge to be proved against the workman on the basis of the document obtained from the railway department with regard to the Upper Indian Express by which the workman claimed to travel and file the bill for making journey on 13-14th of July, 1987from the Jammu to Paina and back. The document is regarding the fact that theUpper Indian Express has cease to operate from 26-1-87. Ifthe train was not in existence, how a person can travel with that train?

The main dispute between the workman and the management of the bank is whether workman has wrongly claimed the L.F.C. bills in respect of the journey he has shown to be made by Upper India Express on 13-14th of July, 1987 , from Jammu to Patna and back? This Tribunal has tobe decided the applicability ofthe principle ofnatural justice in the light of the dispute . I have gone through the proceedings of the departmental enquiry . The details of the proceedings, have also been narrated by the workman in his statement of claim . The workman was given full opportunity to engage the defense representative . He accordinglh , engaged the defence representative , but the same refused to contest his case . Thereafter , several opportunities were given to the workman to engage the defence representative but he failed.

The certificate given by the Railway Department was not controverted by the workman and on the other hand M.W2 Mr. Ramesh Kumar, Law Office has corroborated From the enquiry proceedings, it is also clear that the enquiry officer also afforded the opportunity for defence

3631G1/08-25 5628

THE GAZETTE OF INDIA : OCTOBER 4 , 2008 /ASVINA 12 , 1930

and proved the document that the workman has not undertake journey in Upper India Express on 13-14th of July, 1987 from Janunu to Patna and back as claimed in the bills.

Under such circumstances , it was the duty of the workinan to prove by some cogent evidence that he undertook journey by the train for which he claimed the bills. The workman has utterly failed and even las has not agitated the matter before the enquiry officer and before this Tribunal , whether he has undertaken the journey by that train as stated carlier? Ile was disputing on the violation of the principle of natural justice on one count or the other, The Tribunal has to contine itself with the main dispute between the parties and in that background onty, this Tribunal has to decide whether there has been ans violation of principle of natural justice ? The document issued by the Railway department is sufficient to prove the charge against the workman and I find no reason to interkere in the finding of enquiry officer .

Accordingly, the charge has been properly proved against the workinan and the penalty of stoppage of one increment with cumulative effect in my opinion is in proportionate to the committed misconduct .

The reference is accordingly answered in postnive that the action of the management of Bank of Baroda. Jarrinio in imposing the punishment of stoppage of one increment on Shri S. Ronak Singh , Cash Clerk , vide their fetter , dated 4-9-92 is justified and the workman is not entitled to any claim . Let the Central Government be informed . 1 ile be consigned .

G.K. SHARMA, Presiding Officer नई दिल्ली, 12 सितम्बर , 2008 का.आ. 2825. औद्योगिक विवाद अधिनियम , 1947 ( 447 का 14 ) की भाग 17 के अनुसरण में, केन्द्रीय सरकार इंडियन नं . के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के क्रीच अनुबंध में निर्दिष्ट औद्यागिक विवाद में केन्द्रीय सरकार औद्योगि अधिकरण/ श्रम न्यायालय, चैन्नई के पंचाट ( संदर्भ संख्या ५५ को प्रकाशित करती है , जो केन्द्रीय सरकार को 11-9-2008 को गुप्त हुआ था ।

सं. एल -124001 / 8/2000 - आई आर ( ची-11 ) राजिन्द्र कुमार , डेस्क अधिकारी New Delhi . the 12th September, 2008 S.O. 2825.-In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947 ) . the Central Government hereby publishes the award (Ref. No. 80-2006 ) of the Central Government Industrial Tribunal - cum-Labour Court. Chennai as shown in the Annexure in the Industriat Dispute between the management of Indian Bank and their workınan, which was received by the Central Governent on 11-9-2008 .

[No.1-12011 / 8/2000-1R ( 13-11 ) ]

RAJINDER KUMAR , Desk Officer

[PART 11 ---SC. 3 ( ii ) ]

ANNEXURE

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

Monday, the7th hily, 2008

Present: K. Jayaraman . Presiding Officer Industrial Dispute No. 89/2016

in the matter of the dispute for adjudication under clause (d) of sub - section ( 1 ) and sub - section 2 ( A ) of Section 10 of theIndustrialDisputes Aut . 19-17 ( 14 of 1947 ) , between the Management of Indian Bank, and their Workman ]

BETWEEN

IParty Petitioner Union TheGeneral Secretary , Indian Bank Employees . Association ( TN ) 250 , Lingbi Streel ,

Chennai - 600 001

The Dy , General Manager . 1 Party Respondent Indian Bank , Circle Office ,

510/511 , Gandhi Road .

Kancheepuram - 631501

APPEARANCE

For the Petitioner

Sri R Sekar, Authorised Representative

For the Management Ms 1.S. Gopalan and Co .. Advocates

AWARD

The Central Government , Ministry of Labour vide its Order No. L- 12011 : 8.2000-1R13-10 dated 04-12-2006 referred the following Industrial Dispute to this Tribumal for adjudication .

The schedule mentioned in the order is :

"Whether the demand of regularization of Sri K. Vinodh. Part-time Sweeper of Indian Bank, Valparai Branch isjust and legal? Ifnot , te what relief the workman is entitled to?"

2. After the receipt of the Industrial Dispute . this Tribunal has numbered 11 15 10 89 2006 and issued notices to both sides. The petitioner appeared through his Representative and the Management appeared through their Advocate and filed their Claum and Statement and Counter Statements respectively

3. The allegations in the Claim Statement are brielly as follows:

The Petitioner Linion espouses the cause of Sri K.Vinodh who was engaged as Temporary Part-time 5629 [ भाग 1]- खण्ड 3 (ii) ]

भारत का राजपत्र: अक्तूबर 4, 2008/ आश्विन 12 , 1930

-- Sweeper in Valparai Branch of the Respondent Bank. The concerned employee was working as such from 01-07-1997 after the Permanent Part- time Sweeper, Sm1 . Kunjammal retired from the service on 30-06-1997 . Instead of regularizing his services in Valparai Branch where Permanent Part -time Sweeper was required because of the post falling vacant due to the retirement of Smt. Kunjammal , the Respondent Management with the sole intention of not absorbing him in the permanent category started engaging another person di turn basis from May, 1998. The Petitioner Association , therefore, raised a dispute before the Asstt . Labour Commissioner (C) against this unfair labour practice of the Respondent Management Since the conciliation failed in this case, the ALC(C) has referred the matter to the Govemment but the Government declined to refer the dispute to Labour Court for adjudication. Therefore , the Petitioner Association filed a Writ Petition before the High Court and on the direction ofthe High Court , the matter was referred to this Tribunal for adjudication . The Permanent Part -time worker in Valparai Branch is an integral part of set up and such employment of Sri K. Vinodh as Temporary Part- time Sweeper cannot be considered as casual in nature . The guidelines of the Bank are clearly stated that the Bank should take up the matter of replacing the retiring staff at least 6 thonths in advance with the Employment Exchange . But , in this case theRespondentBank did not take any such steps and instead chose to employ Sri K. Vinodh as Temporary Part - time Sweeper continuously from July, 1997. This was taken only in the process of exploiting the labour taking advantage of his poverty. Even in the industrial level settlements it is clearly stated that temporary employee includes a workonan who is appointed in a temporary vacancy caused by the absence of a particular permanent employee . The engagement of Sri K. Vinodh is casual in nature is factually incorrect and motivated. Instead ofregularizing his services as Permanent Part-time Sweeper, the Respondent Bank engaged another person from May, 1998 on turn basis only to deny the concerned employee permanent employment. This action of the Respondent Bank is perverse in nature. Therefore, the Petitioner Association prays this Tribuna! to regularize the concerned employee's service as Permanent Part - time Sweeper and also consequential relief.

Respondent Bank from making any recruitment . Addedto it , the Bank introduced a Special Adhoc Scheme of Voluntary Retirement in the year 2000, pursuant to which 1336 employees in the category of Award Staff comprising Clerk, Sub-staff and Part - time employees accepted the offer ofVoluntary Retirerttent Scheme, thus , Bank was able to right aize its existing manpower , In the Valparai Branch of the Respondent Bank had a permanent Part - time Sueeper byname Sint. Kunjammal who retired on 30-06-1997, Only in view ofthe ban on recruitment, the Valparai Branch could not take steps to fill up the vacancy either by temporary employment or by permanent employment by making a requisition to the Employment Exchange . Therefore, the Branch has to employ casual labourer for attending to cleaning works of the premises . As such , the Branch was engaging alternatively K. Vinodh and Ms. Leelavathi, both are the children of Smt . Kuniammal as Sweeper on daily wages . In April , 1998 the said Leelavathi got married and stopped offering her services for engagement as casual labourer. The concerned employee knows the nature of employment and consequences flowing from it , therefore , the demand of the Petitioner Association cannot be considered. When the post of a Permanent Part-time Sweeper was not filled up and ifsome one was engaged to attend the cleaning work on daily wages and on need based situation is only a casual labourer . Such casual labourer cannot be treated as a Temporary Workman . Even temporary employees have no right to the post . It is false to allege that the concerned employee K. Vinodh was continuously engaged from July, 1997 to April , 1998. Sri Vinodh was engaged only for 106 days . The provisions of awards and settlement quoted by the Petitioner Association are applicable only to regular staff of the Bank and not applicable to a casual workman . Further , whenever a post falls vacant , the Bank cannot be compelled to fill up the post. Fitling up the post depends upon several consideration like various restrictions imposed by Reserve Bank of India, the guidelines introduced by the Government of India and administrative requirement ofthe Respondent Bank.Therefore , Vinodh was not engaged as a Temporary Part-time Sweeper . He was given post only on a need based situation and he was not appointed to any post by the Bank. In view of the ban on recruitment , there was no contingency of the Branch to make a requisition to the Employment Exchange . Further, regularization cannot be a mode of recruitment. Hence , for all these reasons the Respondent prays that the claim may be dismissed with

costs:

4. As against this , the Respondent in his Counter Statement alleged the Respondent is a nationalized Bank and, therefore , opportunities in the Respondent Bank should be made available to any eligible citizen of this Country and no one can claim regularization or absorption by reference to his having worked in the Bank for a long time as casual worker in any contingency. In the matter of employment of sub- staff, the Bank has to make a requisition to the Employment Exchange and from among the candidates sponsored by the Employment Exchange based on test and interview, the Bank can make selection for appointment. In this case by a Circular dated 12-08-1991 , the Reserve Bank of India imposed a ban on the

5.Again the Petitioner Association in its rejoinder alleged the right sizing of the Bank workforce by the Respondent Management through Voluntary Retirement Scheme as claimedby the Respondent Authorities has nothing to do with the present case. The job of sweeping. upkeep and maintenance of Branch premises is very important in a service industry like Banks . The only motive ofthe Bank is to deny employment to Sri Vinodh and the 3631 GI/2008-24 5630

THI: GAZETTE OF INDIA : OCTOBER 4, 2008 / ASVINA 12, 19.30

[ PART 11 SEC 3 ( ii ) ] Respondent tried to take shelter under the so - called ban on recruitment , The very fact that the concerned employee worked for 295 days from July 1997 to March 1999 in place of the retired Permanent Temporary Employee establishes that the work performed by him was not casual in nature . After the Bling ofthe Writ Petition , the concerned employce was engaged for a peiod of more than 1400 days from 01-02-2002 31-03-2007 and till this date he continues to function as Temporary Part - time Sweeper. The Management only has been exploiting the poverty of the concerned employee for a very long years . Hence, the Petitioner Association prays an award in their favour .

6. Points for determination аге:

( i) Whether the demand of regularizing of SriK. Vinodia in Valparai Branch of the Respondent Bank isjust and legal

( d ) Jowhat relief the concerned workman is entitled 10:

PointNo.1

also without any substance because under the Employment Exchange ( Compulsory Notification of Vacancies) Act , 1959 under Section -3 it is clearly mentioned that the act shall not apply in relation to vacancies in any employment to do unskilled work . It is also clear from the above that when the Act is not applicable to the instant case, the question of sponsorshipby Employment Exchange is only a pretext to deny employment to the concerned employee because under Section - 2( i ) " Unskilled Office Work " means any work done in an establishment by any of the categories viz. Daftary , Jamadar , Orderly and Peon, Dusting man or Farash , Bundle or Record Lifter, Process Server , Watchman. Sweeper and any other employee doing any routine or unskilled work . Therefore. , in this case, the concerned employee who is sweeping the bank premises is only a unskilled and , therefore the Employment Exchange( Compulsory Notification ofVacancies ) is not applicable to him . In this case , the concerned employee has worked more than 240 days in a continuous period of 12 months and he has also worked more than 2000 days from 1997-2006 . Only in order to prove his case , the petitioner has taken eut a petition for production of documents which are in the , custody of the Respondent Management but the Respondent Management opposed the application on the ground that it is a confidential correspondence between the Head Office and the Branch Office and, therefore , they refused to produce the same and if that documents was produced before the Court it will clearly establish that . the concerned employee has worked more than 240 days in a continuous period of 12 months . Further, the Respondent Management did not dispute the contention of the concerned employee that the concerned employee had worked for more than 2000 days from 1997 to 2006. He has also registered his name with the Employment Exchange . Under such circumstances , the concerned employee is entitled for the relief prayed for.

7 The case of the Petitioner Association is that the concerned employee , Sri K. Vinodh was engaged as Temporary Part - time Sweeper at the Indian Bank. Valparai Branch ofthe Respondent Bank from July 1997 after the retirement of Permanent Part-time Sweeper , Smt . Kunjaminal . Sunce the post was a sanctioned post and since it fell vacant from July 1997, the Bank is to initiate steps to recruit a regular Part- time Sweeper but instead of that they have employed Sri K. Vinodh temporarily on casual basis and now they refuse to regularize the services of the concerned employee which is illegal and against the provisions of law . The learned representative for the petitioner further contended that the Respondent Management's line of argument in denying employment to Sri K. Vinodh is ( i ) . due to ban on recruitment imposed by Reserve Bank of India in the year 1996 and ( ii ) since Sri Vinodh was not sponsored by the Employment Exchange and he cannot claim the status of temporary workman but they have not denied that Part -time Sweeper post at Valparai Branch is a sanction post and ithas fallen vacant from the year 1997 after the retirement of reguiar Part time sweeper . If really tile contention of the Respondent Management is true , then they should have taken steps through Employment Exchange for appointing a lemporary Sub - staff but they have not done so Farther , even though in the case of Sri Vinodh , the Respondent aconitted that the concerned employee was not taken through Employment Exchange as Temporary Sub - stalt , they have confirmed the services ofmore Lac 100 tonporary workman who are working m the capacity of T'ersonal Drivers and l'emporary Sub- staff in the Perrnment Sub - statfradre . This exposes the Gature of ac Respondera Bank . The other contention that he has not some through Employment Exchange is

8. As against this , the Respondent contended that the Valparai Branch of the Respondent Bank had a Permanent Part - time Sweeper and one Smt . Kunjammal was worked as such and who retired on 30-06-1997 but in view ofban on recruitment the Valparai Branch could not take steps to fill up the vacancy either by temporary employment or by permanent employment by making a requisition to the Employment Exchange. Therefore , they have taken a decision to employ casual labourer for attending to cleaning works of the premises and the branch was engaged Sri Vinodh and Ms. Leelavathi , both are children of Smt . Kunjammal as Sweepers on daily wages and afler Leelavathi left the place the branch was obliged to engage Sri Vinodh to work as casual labourer . The concerned employee knows the nature of employment and the consequences flowing from it . , The demand of the Petitioner Union should not therefore be countenanced . Further, whenever a post falls vacant, the Bank cannot be compelled to fill up the post .

5631 [ भाग 11- खण्ड 3 ( ii) ]

भारत का राजपत्र : अक्तूबर 4, 2008/आश्विन12 , 1930

been searching for some employment so as to eke out his livelihood and accepts whatever he gets . But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment , perpetuate illegalities and to take the view that a person who has temporarily or casually got employed should be directed 10be continued permanently " and in that case the Supreme Court has struck down the appointment of temporary employees. Relying on this judgement , the leamed counsel for the Respondent argued that in this case the concerned employee even when he was appointed as casual labour has known the fact that it is only as a casual he was employed and he cannot claim permanency by his employment , under such circumstances , the prayer for regularization cannot be asked for by the concerned employee. Again the learned representative for the petitioner argued though the Respondent argued that only due to ban on recruitment by the RBI they have not appointed Sri Vinodh as Temporary Part -time Sweeper, the conditions imposed by the RBI against the Indian Bank is not onlywith regard to recruitment . It is clear from Ex.M5, Page 14-15 , the RBI sent a letter to the Management of Indian Bank regarding the Capital Adequacy Ratio of 8% due to the inability of the Bank to achieve prescribed capital to risk weighed asset ratio, the RBI had stipulated 8 conditions for the Bank to follow, one of the & conditions was ban on recruitment but here the Respondent Management tried to project that this was the only condition viz, ban on recruitment laid down by the RBI . Further, the Representative contended that conditions relating to ban on recruitment is still valid but the facts are otherwise . These conditions were imposed on Indian Bank to tide over its difficulties faced in 1996 when Indian Bank incurred losses and hence conditions were imposed by RBI . Now the Indian Bank has crossed the difficult period, even in the year 1997 the Indian Bank Management confirmed the services ofmore than 100 temporary workmen in the Sub- staff category. Further, Indian Bank has been earning profits for the 4th successive year, it has come out with IPO and aiming at flakh crore business . Furthermore, one of the 8 conditions was also ban on expansion of the branch network in metro/urban centers but the Indian Bank has been on a branch expansion spree . It has recruited many staff in the past few years and also confirmed some of them in the cadre ofClerk and also the staff category .All these things clearly prove that the ban on recruitment is no more relevant and the conditions laid down in the letter are no more relevant . Only on the pretext of ban on recruitment the Indian Bank deny the rights of the concerned employee . The Respondent Bank exploits the innocent workmen to the maximum . The concerned employee worked more than 10 years of long and continuous service in the Part - time Sweeper cadre, that should be taken into consideration and his prayer is to be allowed by this Tribunal .

The fillingup of post depends upon several considerations like various restrictions imposed by Reserve Bank of India, the guidelines introduced by the Govt . of India and administrative requirements of the Respondent Bank. Therefore, Sri Vinodh was engaged only as a casual labour and not as Temporary Part-time Sweeper. He was engaged only because of the absence of Permanent Part- time Sweeper . Ifany person is appointed as per the Recruitment Rules, then alone he can be called as temporary workman. When the post itself has not been filled up the person locally engaged by the Bank will only be a casual labour. It is only done on a need -based situation and such engagement is on daily wages only . The concerned employee was never appointed to any post of the Bank . Since, the Valparai Branch was not authorized to engage a temporaryworkman or a permanent workman , there was no contingency for the Branch to make a requisition to the Employment Exchange in view of the ban on recruitment and other administrative reasons . Therefore , at no stretch of imagination his appointment can be called as Temporary Part-timeSweeper . Further, regularization cannot be a mode of recruitment , as such , the relief prayed by the Petitioner Association cannot be given to the concerned employee . Further, the learned counsel for the Respondent relied on the ruling reported in 2006 4 SCC1 SECRETARY, STATE OF KARNA TAKA AND OTHERS VS. UMA DEVIAND OTHERS and argued that the Supreme Court has clearly stated "persons who get employed without following a regular procedure or even through the backdoor or on daily wages have been approaching the Courts seeking directions to make them permanent in their posts and to prevent regular recruitment....... ..... A class of such employment which can only be called " litigious employment" has risen like a phoenix seriously impairing the constitutional scheme . The Courts are swayed bythe fact that the person concerned has worked for some time and in some cases for a considerable length of time. Such an argument fails when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article- 14 ofthe Constitution. Merely because a temporary employee or a casual wage workers is continued for a time beyond the term of his appointment, he would not be entitled to de absorbed in regular service or made permanent, merely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by the relevant rules . It is not open to the Court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad- hoc employees who by the very nature of their appointment, do not acquire any right . The Supreme Court further observed in the judgement " if a person who accepts an engagement either temporary or casual in nature , it cannot be said that he is not aware of the nature of his employment. He accepts the appointment with open eyes. It may be true that he is not in a position to bargain, not at arm's length and since he might have

9. Though , I find some force in the learned counsel for the Respondent since the original appointment by the 5632

DIE GAZETI: OF INDIA: OCTOBER 4.2008 ASVINA 12, 1930

Respondent Back is only as a casual , the petitioner cannol compel the Respondent Bank to regularize his services In this case the Respondent Management has also appointed one Leelavath and subsequently one E. Vinayagaan as casuals for the sweeping work . Furthermore , only because the concemed complesse has worked continuously for more than 240 days , he east ask regularization on the ground that his appointment was on regular post . As such. I an not belised the contention that the petitionet is entitical for reparatization Even though, the Respondent has a perntaser vacant , the Respandir is to take steps as per the procedure af to regularize be pers the post . As sich . tnd this point against the netitioner .

Point No. 2

The next post the decided in this case to Lat relief the concerned employee is enitled?

10. In view of my foregoing findings that the demand ofregularization of Sri K Vinodh is not just and legal . I lind the concerned employee is not cautled to any relict.

11 Thus , the reference is answered accordings (Dictatedto the P.A.. transcribed and typed by him corrected and promsinced by me in the apen court on this day the 7th July . 2008 )

K. JAYARAMAN , Presiding Officer Witnesses Examined: -

WWT Sri K. V For the 1 Party Pelitrocha

None

For the It Party Managemem

Documents Marked :

On the Petitianet's side

Ex. No. Date

Description

Ex. W1 23-03-1999 Dio - data of Sri K Vinudbaran Ex. W2 07-08-1984 Record sheet of Srik Vindhan ( TC from Panchayat Unio Middle School )

Ex. W3 28-08-1985 Imployment Exchange Regis- tration Card

On the Management's side

Ex. No. Date

Description

Ex. MI 30-09-1978 Govt. of India . Ministry of Finance Banking Division Director in respect of recrutment ofSub - staff in Public Sector Banks etc. ( F / 1 /2/1 /77 / ( R ) 04-03-1983

Ex. M2

Indian Bank HO Circular 24.83 16-08-1990

Ex . M3

Govt. Of India , Ministry of Finance Banking Division- Direction regarding recruitment and absorption of remporary employees in Public Sector Banks

[PART U-SC 3 ( ii ) ] 06-07-1992

Fx . M4

Sestlertient C / s 12 (3 ) of ID Act hetween Indian Bank and Federation of Indian Bank Emplyees Union regarding persons engaged in leave vacancies of sub - staff

Ex. M5 26-6-1996 Letter from RBI (4231 /21-1-02/ 96 )- Ban on recruitment of stall? replacement for retirements etc. 12-08-1996

Ex . M6

Letrer from RBI (444/21-1412/96)- Restriction on recruitment of staff.

नई दिल्ली, 12 सितम्बर , 2008

का.आ. 2826,-औद्यागिक विवाद अधिनियम, 1947 (1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार , न्यू इंडिया एश्योरेंस कम्पनी लिमिटेड के प्रबंधतंत्र के संबद्ध नियोजकों और उनकं कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरणः श्रम न्यायालय नं. 2 , चण्डीगढ़ के पंचाट ( संदर्भ संख्या 629-2005 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 11-9-2008 को प्राप्त हुआ था।

[सं. एल 17013.10 / 1998- 013.10 / 1998 - आई आर ( बी- II ) ] गजिन्द्र कुमार, डेस्क अधिकारी New Delhi . the 12th September , 2008

5.0. 2826. In pursuance of Section 17 of the Industrial Disputes Act . 1947 ( 14 of 1947 ) , the Central Government hereby publishes the award ( Ref. No. 629 / 2005) of the Central Government Industrial Tribunal- cum- LabourCourt , No. 2. Chandigarh as shown in the Annexure in the Industrial Dispute between the management ofNew India Assurance Co. Ltd. and their workman , receivedby the Central Government on 11-9-2008.

[ No. L - 17013/10/1998 - IR ( B - II) ] RAJINDER KUMAR, Desk Officer ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL- CUM - LABOUR COURT- 11 , SECTOR 184, CHANDIGARH

Presiding Officer: Shri . Kuldip Singh

Case I. D. No. 629/2005

Registered on : 24-8-2005

Date ofDecision: 6-12-2007

Varinder Singh So Sh . Darsan Singh , House No 123 , Adarashnagar , Pipliwala Town , Mani Majra , Chandigarh

....Petitioner [ भाग II- खण्ड 3 ( ii) ]

भारत का राजपत्र : अक्तूबर 4, 2008/आश्विन 12 , 1930

5633 Versus

New India Assurance Co. Ltd. through Senior Divisional Manager, Regional office , SCO- 36 , Sector 17 -A, Chandigarh

.... Respondent

APPEARANCE

For the Workman : Mr. Ravinder Jain , Advocate

Mr. N. K. Zakhmi , Advocate

For the Management

AWARD

Counsel for the parties present . I have heard them on the question of fairness of the enquiry proceedings and have also gone through the file.

day also the workman did not appear. He , however , wrote a letter to the Enquiry Officer requesting for adjournment which he received on 1st ofNov, 1996. The Enquiry Officer adjourned the proceedings for 5th of Dec , 1996. The workman did not appear even on that date nor informed the Enquiry Officer, the reasons for his being absent. The Enquiry Officer still adjourned the proceedings for 30th of Dec, 1996 for proceeding ex - part in the matter. The workman again requested , vide his letter datd 15th ofDec , 1996 for opportunity and the Enquiry Officer acceded to the request . The matter was adjourned to 8th of January, 1997. The workman did not attend the proceedings on that date also . The documents placed on record especially the copies of the notices and postal receipts show that the Management did its best to provide sufficient opportunity to the workman to defend his case but he did not avail of that opportunity. It was in these circumstances that the ex- parte proceedings were held in the matter and the evidence oftheManagement was taken . There is, therefore , no basis forthe workman to claim that the Enquiry Officer did not provide sufficient opportunity to him to defend himself.

The perusal of the record shows that the memorandum of charges dated 18th of March , 1996 was served upon the workman and he filed the reply thereto dated 28th of April , 1996. The Management did not feel satisfied with the reply and decided to hold a regular enquiry in the matter. Vide their order dated 7th of August , 1996 appointed the Enquiry and Presenting Officers . The workman was also served with the articles of the charges. He was also provided with the statement of imputations , lists of witnesses and of the documents which the Management was likely to produce against him in the enquriy . The workman participated in the enquiry proceedings only on 16th of Sept. 1996. As stated above he did not take part in the enquiry proceedings on other dates. It is also noted in what circumtances the enquiry officer had to proceed in the matter ex-parte .

Admittedly this is a case in which the punishment was awarded to the workman after holding a domestic enquiry by the management . Hon'ble Supreme Court has time and again said that Domestic Enquiry in industrial cases has acquired great significance and industrial adjudication attaches considerable importance to such enquiry. Their Lordship has further said that an enquiry is not an empty formality , but an essential condition to the legality ofthe disciplinary order. In other words before the delinquent wokman can be dismissed for misconduct , the employer should hold a fair and regular enquiry into the misconduct and dismissal without holding a regular enquiry wouldbe an illegality. It is also settled priciple of law that. the disciplinary enquiry has to be quasi judicial, held according to the principles of natural justice and the enquiry officerhas a duty to act judicially. Another principle which has also to be borne in mind is that in departmental proceedings the disciplinary authority is the sole judge of facts and in case of an appeal presented to the Applellate Authority , the appellate authority has also the powers and jurisdiction to re- appreciate the evidence and come to its own conclusions on facts being the sole fact finding authorities . Keeping these prnciples of law in mind I proceed to examine the case of the workman .

It is submitted by the counsel for the workinan that the enquiry held against the workman was not fair and proper. He was not given full opportunity to defend himself and the punishment awarded to him is not only disproportionate but also harsh .

I have gone through the enquiry proceedings . In what manner the enquiry was conducted can be seen from the interim orders passed by the Enquiry Officer . The order dated 16th of Sept. 1996 reads that the workinan was present on that day and requested for time to engage defense representative . The Enquiy Officer granted the time and adjourned the proceedings for 15th of Oct , 1996. The workınan did not turn up till 5 in the evening on that day. The Enquiry Officer did not proceed in the matter and again adjourned the proceedings for 5th of Nov , 1996 on which

I have also considered the claim of the wokman that the punishment awarded to him is dispoportionate and harsh. In my opinion this claim of the workman is also baseless . The management has given the detail ofabsence ofthe workman during the period May 1994 to Dec. 1995 and for the period Dec. 1991 to April, 1994. He remained absent for 214 days during the first count and for 309 days during the second count . The workman did not rebut these lacts by filing rejoinder or otherwise. During the enquiry also he did not produce any documentary or oral evidence to show that the charges framed against him were baseless. As against to it the witnesses of the Management fully supported the claim of the Management . The workman wasgiven the copy of the report and he did not file appeal nor challeged the finding otherwise. On record is ex - s- 10 which reads that the workman admitted his having remained absent from duty and gave his ill health as the cause but 5634

THE GAZETTE OF INDIA . OCTOBER 4 , 2008/ ASVINA 12 , 1930

produced to evidence to support his claim . There is nothing on record to show that the workman ever informed the Management of his inability to come for duty although he was living few miles away from the office of the Management. He could very well send telegram or request by any means including telephonic request . he did not bother to do that which shows that he was not sincere in serving the Management . He has also failed to show that he was physically unfit to convey his requests to the Mangement.

After going through the record of enquiry proceeding, placed on the file, I of the opinion that the fair and proper enquiry was held in the matter and that punishment awarded to the workman was well justified since the workman was not serious and sincere to serve the Management . There is nothing brougth on record to show that the action of the Management of New India /Assurane Co. Ltd , Chandigarh in terminating the services of Shri Varinder So Sh . Darshan Singh w.e.f. 9th of July, 1997 was unjust and illegal . The reference received from Government of India , Ministry of Labour vide their letter No. -L17013 / 10 / 98 /JR ( B- [ I ) dated 28-5-1999 is answered against him holding that he is entitled to no relief.

Let a copy of this award be sent to the appropriate government for neccessary action and the file be consigned to records after due completion .

KULDIP SINGH . Presiding Officer नई दिल्ली , 19 सितम्बर , 20008

का.आ. 2827,--औद्यागिक विवाद अधिनियम, 1947 ( 194 का14 ) की धारा 17 के अनुसरण में , ककेन्द्रीय सरकार , सैन्ट्रल बैंक ऑफ इंडिया के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकार के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ श्रम न्यायालय नं.। , चण्डीगढ़ के पंचाट ( संदर्भ संख्या 41/91 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 11-9-2008 को प्राप्त हुआ था ।

[सं. एल -12012/467/ 1990- आई आर बो -1 ) राजिन्द्र कुमार, डेस्क अधिकार New Delhi . the 19th September . 2006 5.0. 2827.-1n pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947 ) , the Centra: Government hereby publishes the Award ( Ref. No. 41 911 of the Central Government Industrial Tribunal - cum- Labou Court. No. 1. Chandigarh as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of Central Bank of India and their workırmen. which was receivedby the Central Government on 11-9-2008.

[No. L- 12012/467.1990 - IR ( B - 11 : |

RAJINDER KUMAR, Desk Officer

PART 11-SEC. 3 ( ii )]

ANNEXURE

BEFORE SHRI GYANENDRA KUMAR SHARMA , PRESIDIG OFFICER, CENTRAL GOVT. INDUSTRIAL TRIBUNALCUM - LABOUR COURT- 1 , CHANDIGARH

Case No. I. D. 41/91

Regional Manager , Central Bank of India . Regional Office, Ambala Cantt .

.... Applicant

Versus

President, Central Bank of India Employees Union . Haryana. 129 Lal Kurti , Ambala Cantt

Respondent

APPEARANCES

For the workman

Sh. B. S Gill .

Sh. A. K. Batra.

For the management

AWARD

Passed : 1-9-08

The Government of lucia vide notification no 1-12012/467/90-1R(B - II ) dated 5-4-91 referred the following industrial dispute forjudicial aJindication : -

"Whether the action of the management of Central Bank of India in denying the back nages of Clericat Cirade w.c.f. 1-12-84 to Sh . Shadi Lal. Gerd is justified? If not . 10 what relief is the workman enriled!"

The main controversy betere this Tribunal is whether Sh. Shadi Lal is entitled for the back wages for the period from 1-12-84 to 1-4-86 for which the notional promotion was given along with the protection of seniority . On perusal of statement ofclaim , written satement 2nd other materials on record. it is evident that as per the Paurostoon Polies Agreement dated 20-12-75 : Sh . Sindi Lal qualified the th All India Written Test Son his purmotion which was conducted on 12-2-8 :1 . The immersiew was scheduled to be held on 29-10-84 , but before tac date of interview , he wit arrested on 7-10-8-1 on account stenahral death of lis wite. Being in judicial custody Coralang time , the workman was suspended from the services and this suspensio continued up to 31-1-86 . Alter revocazion of suspension on 31-1-86 . on the ground his release ( acquntal ) in the criminal proceedings . As per the Promotion Policy Agreemem dated 20-12-75 . interviewd again and was promoted from 1-4-86 1te was also given the benelit sol seniority and it was also ordered that his notional promation will be effective tron -12-84 utnowages from 1-12-84 to 1-4-86 were given .

The workman raisedezadustrial dispute for getting the financial benefits of promsion from 1-12-84 10 1-1-86 , and on account of Sallure of reconciliation proceedings in the ofitice at reconcilation officer , the [ भाग II- खण्ड 3 (ii) ]

5635 भारत का राजपत्र : अक्तूबर 4, 2008/आश्विन 12 , 1930

CentralGovernment referred the above mentioned reference forjudicial adjudication. Both of the parties were afforded the opportunity for adducing evidence. Number of documents have been filed by the parties and Sh . Shadi Lal was also cross -examined on his affidavit.

The management, in spite of giving number of occasions could not adduce any evidence, and accordingly. vide order dated 12-8-08 , this Tribunal closed the evidence of the management for the reasons mentioned in the said order.

It is admitted that as per the promotion Policy Agreement dated 20-12-75 which is on record; the workman qualified the 12th All India Written Test which was held on 22-2-84 for his promotion which was due from 1-12-84 . After the written test , the interview was scheduled to be held on 29-10-84 but the workman could not appear before the Interview Board on account of his judicial custody in a criminal case for unnatural death of his wife from 7-10-84 . Thus , on the date of interview, the workman was in the judicial custody.

post as well . If, during his judicial custody, he wouldhave been interviewed and selected for promotion , whether it was possible under the law to provide him the wages without working on the promoted post, whereas , the constrainst for non working on promoted post were beyond the control to the bank, will Promotion Policy Agreement dated 20-12-75, clearly provides that in case a candidate fails 10 appear before the Interview Committee or fails to qualify in the interview , and has qualified a written test, he is to be given one more opportunity to appear before the Interview Committee. This provision is also regarding such unforeseen circumstances, where it was not possible for the workman to go for the interview for his promotion being detained in judicial custody on account of unnatural death of his wife. As per the terms and conditions of the Promotion Policy Agreement, just after his acquittal , he was called for the interview and selected for promotion . He was accordingly proinoted with notional promotion benefits from 1-12-84 and the benefit of the seniority . Thus , the management of the bank has provided all the legal remedies which were available to Sh . Shadi Lal after his acquittul from the criminal charge.

As stated earlier, the pay scale and getting of back wages is directly linked with the working of the workman to the post and because of the circumstances memioned in the body of this order, which were beyond the control of the bank, the workman could not work on promoted post from 1-12-84 to 1-4-86 , he will not be entitled for the back wages as prayed. Accordingly, this reference is answered in positive that the action of the management of Central Bank of India in denying the back wages of Clerical Grade w.c.f 1-12-84 is justilied . As per this reference , the workman is not entitled to any relief. Let the Central Government be informed. File be consigned.

GK. SHARMA, Presiding Ollicer

नई दिल्ली, 25 सितम्बर , 2008 It is the contention of the workman that his suspension order was served in jail, the interview leiter should have also been sent through jail authorities. It is the contention of the management of respondent that interview letter was sent on his registered address . There is no evidence to prove that registered letter was sent to the workman on his registered address . Whereas , if the management of the bank had served the suspension letter through the jail authorities, what was the constraint before them not to serve the interview letter through the jail authorities has not be proved. It is also not the case of the management of the bank that interview letter was not given on account ofhis suspension and his detention in judicial custody. The person , who detained to the judicial custody, has certain rights and these rights cannot be infringed without any reasonable cause.

का.आ. 2828. राष्ट्रपति श्री सतनाम सिंह को दिनांक 18-9-0K ( पूर्वाहन ) से उनके 65 वर्ष की आयु का होने अथवा अगले आदेशों तक, जो भी पहले हो, केन्द्रीय सरकार औद्योगिक अधिकरण- सह- श्रम न्यायालय -11, नई दिल्ली के पीठासीन अधिकारी के रूप में नियुक्त करते हैं ।

[सं. ए-11016/9/2007-सीएलएस ।। ] पी. के. ताम्रकार , अवर सन्तिन

New Delhi , the 25th September , 2008

5.O. 2828. The President is pleased to appoint Shri Satnam Singh as Presiding Officer of the Central Govemment Industrial Tribunal - cum - Labour Court 11 , New Delhi we.l. 18-09-2008 for a period till he attains 65 years of age or until further orders , whichever is earlier .

[No. A- 11016/ 9/2007 -CLS - U The Tribunal has to see whether any prejudice was caused to the workman on account of the act of management of respondent bank . It is true that interview leuer was not given to the workinan, but no prejudice was caused to him by non-issping the interview letter . Just after his acquittal as per the Promotion Policy Agreement dated20-12-75, he was again in a viewed and was promoted without any delay. Furthermore, he was also notionally promoted from back date , dated 1-12-84 without any loss to his seniority in the services . The wages to a post are related directly with the working . Had the wurkman has worked on the promoted post he was entitled for the back wages. His non- working to the promoted post was not due to the act of the management of respondent bank . But because of the circumstances that he was detained to the judicial custody in a criminal case on account of the unnatural death of his wife. This situation was beyond the control of the bank to provide him the work on promoted

P. K. TAMRAKAR, Under Secy.

5636

THE GAZETTE OF INDIA OCTOBER 4,2008 ASVINA 12. 19310

Versus

नई दिल्ली, 8 सितम्बर , 2008

The General Manager . State Bank ofParla, Head Officer- The Mall , Patiala .

Respondent

...

APPEARANCES

None

For the workman

For the management Shiro N.F.Zakทะพ

का.आ. 2829,-औद्योगिक विवाद अधिनियम, 1947 ( 1947 का (4 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार, स्टेट बैंक ऑफ पटियाला के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्नकाणं के बीच, अनुबंध में निर्दिष्ट औद्योगिक वित्राद में केन्द्रीय सरकर औद्योगिक अधिकरण श्रम न्यायालय , चण्डीगढ़ नं.। के पंचाट। संदर्भ संख्या 61/1995 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 8-9-2008 को प्राप्त हुआ था।

AWARD

[सं. एल-12012 /89/1994-आईआर ( ची बी. के. मनचन्दा, अनुभाग अधिकारी

Passedon 25-8-08

New Delhi , the 8th September , 2008

Central Government vide notification No. - 12012 89/94-1R (B -3 ) , dated 30-6-95 has referred the following dispute to this Tribunal for adjudication:

Whether the action of the management of State Bank ofPatiala in terminating the services of Shri Sat Pal . ex-part time Sweeper is just, fair and legal ! If nποι . what relief the workman concerned is entitled and from what date ? "

S.O. 2829.- n pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ), the Central Government hereby publishes the Award (Ref. No. 61/1995 ) of the Central Goveminent Industrial Tribunal- cum -Labour Court- 1 , Chandigarh as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of State Bank of Patiala , and their workmen. which was received by the Central Government ол 8-9-2008.

[No. L - 12012 /89 / 1994-IR ( B -3 ) J B. K. MANCHANDA , Section Officer

ANNEXURE

BEFORE SHRI GYANENDRA KUMAR SHARMA, PRESIDING OFFICER. CENTRAL GOVERNMENT INDUSTRIALTRIBUNAL CUM- LABOUR COURT- 1 , CHANDIGARH

Case No. ID . 61/95

2. No one is present , un behalf of workman . Leamed representative of the management is also presem. Since morning this reference has been called number of times. At 10.45 AM , it was ordered to be placed before this Tribunal once again at 2 pm . It is 2.30 now and on repeated calls no one is present, in spite of having of full knowledge of the proceedings of this reference The reference is as old as referred to this Tribunal in the year 1995. On repeated calls since morning no one is present . Accordingly , the reference is dismissed in default for non - prosecution . Central Governmentbe informed accordingly . File to be consigned .

Shri Sat Pal C/ o Shri D.L. Sika , General Secretary, State Bank of Patiala Employees Union , Delhi Road, Rohtak.

G.K. SHARMA. Presiding Officer

Chandigarh 25-8-2008

.....Applicant

Printed by the Manager , Govt of India Press, Ring Road . Mayapuri New Tel :-10064 and Published by the Controller uf Publications , Delhi - 110054