jftLVªh la- Mh- ,y- (,u) 04@0007@2003µ05

izkf/dkj ls izdkf'kr

PUBLISHED BY AUTHORITY

lkIrkfgd

WEEKLY

la- 9]

ubZ fnYyh, iQjojh 26—ekpZ 3] 2012] 'kfuokj@iQkYxqu 7—iQkYxqu 13] 1933

No. 9]

NEW DELHI, FEBRUARY 26—MARCH 3, 2012, SATURDAY/PHALGUNA 7—PHALGUNA 13, 1933

Hkkx esa fHkUu i`"B la[;k nh tkrh gS ftlls fd ;g i`Fkd ladyu ds :i esa j[kk tk lds

Separate Paging is given to this Part in order that it may be filed as a separate compilation

Hkkx IIó[k.M 3—mi&[k.M (ii)

PART II—Section 3—Sub-section (ii)

Hkkjr ljdkj ds ea=kky;ksa (j{kk ea=kky; dks NksM+dj) }kjk tkjh fd, x, lkafof/d vkns'k vkSj vf/lwpuk,a

Statutory Orders and Notifications Issued by the Ministries of the Government of India

(Other than the Ministry of Defence)

523 GI/2012

(1821)

dk£ed] yksd f'kdk;r rFkk isa'ku ea=kky;

(dk£ed vkSj izf'k{k.k foHkkx)

ubZ fnYyh] 21 iQjojh] 2012

dk-vk- 798-—dsUnzh; ljdkj ,rn~}kjk naM izfØ;k lafgrk]

1973 (1974 dk vf/fu;e la[;k 2) dh /kjk 24 dh mi&/kjk

(2) }kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq, ijh{k.k U;k;ky;ksa rFkk

fof/ }kjk LFkkfir iqujh{k.k ;k vihyh; U;k;ky;ksa esa vihyksa]

iqujh{k.kksa ;k bu ekeyksa ls mRiUu vU; ekeys tks fd fnYyh

fo'ks"k iqfyl LFkkiuk (ds-v-C;wjks) }kjk LFkkfir fd, x, gSa]

LFkkuh; {ks=k ftlesa lkjk vle jkT; lfEefyr gS] esa vfHk;kstu

ekeyksa dh lapkyu djus ds fy, fuEuksDr odhyksa dks ds-v-C;wjks

ds yksd vfHk;kstd ds :i esa fu;qDr djrh gS %µ

1- Jh vfHkthr HkV~Vkpk;Z

2- Jh lqijfr; nsc iqjdk;LFk

¹iQk- la- 202@5@2011&,ohMh-IIº

jktho tSu] voj lfpo

MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES

AND PENSIONS

(Department of Personnel and Training)

New Delhi, the 21st February, 2012

S.O. 798.—In exercise of the powers conferred by

sub-section (2) of Section 24 of the Code of Criminal

Procedure, 1973 (Act No. 2 of 1974), the Central

Government hereby appoints following Advocates in

Central Bureau of Investigation as Public Prosecutor for

conducting the prosecution of cases in the State of Assam

instituted by the Delhi Special Police Establishment (CBI)

in trial courts and appeals, revisions or other matters arising

out of these cases in revisional or appelleate Courts,

established by law :—

(1) Shri Abhijit Bhattacharya

(2) Shri Supratim Deb Purkayastha

[F. No. 202/5/2011-AVD-II]

RAJIV JAIN, Under Secy.

1822

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

ubZ fnYyh] 24 iQjojh] 2012

dk-vk- 799-—dsUnzh; ljdkj ,rn~}kjk naM izfØ;k lafgrk]

1973 (1974 dk vf/fu;e la[;k 2) dh /kjk 24 dh mi&/kjk

(8) }kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq,] Hkkjr ds loksZPp

U;k;ky; esa fuEuksDr ekeyksa ds laca/ esa ds-v-C;wjks dh vksj ls

mudk lapkyu djus ds fy, Jh xksiky lqczge.;e] odhy dks

fo'ks"k yksd vfHk;kstd ds :i esa fu;qDr djrh gS %µ

(i) HkwriwoZ ,l-,y-ih- (fØeuy) la- lh-lh- 4085@2011 (ds-

v-C;wjks cuke ckyk lkgsc Bkdjs vkSj vU;) vc ,l-,y-

ih- (fØeuy) la- 2275@2011

(ii) ,l-,y-ih- (fØeuy) la- 2981@2011 (jkts'k ryokj

cuke ds-v-C;wjks vkSj vU;)

(iii) vijk/ vihy la- 1179@2007 (:fcuk lqyseku esuu cuke

egkjk"Vª jkT; (ds-v-C;wjks)

(iv) MCY;w ih-lh- la- ------------@2011 (lh-ih-vkbZ-vks- vkSj ,-

vkbZ-th- (ih) cuke /eZchj [kV~Vj)

(v) ,l-,y-ih- (fØeuy) la- 7266@2007 (ds-v-C;wjks cuke

v'kksd dqekj vxzoky) rFkk vU; lEc¼ ekeys

(vi) 1993 ds ckEcs ce CykLV ekeys rFkk lEc¼ ekeys

(vii) cksiQkslZ ekeys esa ,l-,y-ih- ekeys rFkk vihy] iqujh{k.k

;k blls lEc¼ vU; ekeys rFkk buls izklafxd ekeys A

¹iQk- la- 225@37@2011&,ohMh-IIº

jktho tSu] voj lfpo

New Delhi, the 24th February, 2012

S.O. 799.—In exercise of the powers conferred by

sub-section (8) of Section 24 of the Code of Criminal

Procedure, 1973 (Act No. 2 of 1974), the Central

Government hereby appoints Shri Gopal Subramanium,

Advocate as Special Public Prosecutor for his appearance

on behalf of CBI in the following matters in the Supreme

Court of India :—

(i)

Formerly SLP (Crl.) No. CC4085/2011 (CBI Vs. Bala

Saheb Thackerey & others) now SLP (Crl.) No. 2275/

2011

(ii)

SLP (Crl.) No. 2981/2011 (Rajesh Talwar Vs. CBI &

others)

(iii)

Crl. Appeal No. 1179/2007 (Rubina Suleman Memon

Vs. State of Maharashtra (CBI).

(iv)

W.P. (C) No. ............../2011 (CPIO & AIG(P) Vs.

Dharambir Kahttar)

(v)

SLP (Crl.) No. 7266/2007 (CBI Vs. Ashok Kumar

Aggarwal) and other connected matter.

(vi)

Bombay Bomb Blast cases of 1993 and related

matters.

(vii)

SLP Matters in Bofors Case.

and appeals, revisions or other matters connected

therewith and incidental thereto.

[F. No. 225/37/2011-AVD-II]

RAJIV JAIN, Under Secy.

foÙk ea=kky;

(foÙkh; lsok,a foHkkx)

ubZ fnYyh] 10 iQjojh] 2012

dk- vk- 800-—cSaddkjh fofu;eu vf/fu;e] 1949 (1949

dk 10) dh /kjk 6 dh mi&/kjk (1) ds [k.M (.k) }kjk iznÙk

'kfDr;ksa dk iz;ksx djrs gq,] dsUæh; ljdkj] ,rn~}kjk] ¶Lopkfyr

Vsyj e'khuksa ij Hkkjrh; fjtoZ cSad] Hkkjrh; izfrHkwfr fofue; cksMZ]

chek fofu;ked fodkl izkf/dj.k vkSj isa'ku fuf/ fofu;ked

vkSj fodkl izkf/dj.k }kjk r; dh xbZ fofu;ked lajpuk ds

vuq:i foÙkh; mRiknksa ds izn'kZu¸ O;olk; ds ,sls :i esa fofu£n"V

djrh gS ftlds varxZr ,d cSaddkjh daiuh ds fy, budk iz;ksx

djuk fof/lEer gS A

¹iQk- la- 11@16@2011&,iQvkbZ (ikVZ)º

v#.k ds- feJk] voj lfpo

MINISTRY OF FINANCE

(Department of Financial Services)

New Delhi, the 10th February, 2012

S.O. 800.—In exercise of the powers conferred

by clause (o) of sub-section (1) of Section 6 of the Banking

Regulation Act, 1949 (10 of 1949), the Central Government

hereby specifies “display of financial products conforming

to the regulatory framework as provided by RBI, SEBI,

IRDA and PFRDA, on the Automated Teller Machines” as

a form of business in which it is lawful for a banking

company to engage.

[F. No. 11/16/2011-FI (Part)]

ARUN K. MISRA, Under Secy.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

1823

(jktLo foHkkx)

(dsUnzh; izR;{k dj cksMZ)

ubZ fnYyh] 17 iQjojh] 2012

vk;dj

dk- vk- 801-—vk;dj vf/fu;e] 1961(1961 dk 43)

dh /kjk 139 dh mi&/kjk (1 x) }kjk iznÙk 'kfDr;ksa dk iz;ksx

djrs gq,] dsUnz ljdkj ,rn~}kjk blds mijkar fofu£n"V 'krks± ds

v/hu fuEufyf[kr Js.kh ds O;fDr;ksa dks dj fu/kZj.k o"kZ 2012&13

ds fy, /kjk 139 dh mi&/kjk (1) ds vUrxZr vk; fooj.kh

nkf[ky djus dh vko';drk ls NwV nsrh gS] vFkkZr~ %µ

1- O;fDr;ksa dh Js.khµ,slk O;f"V ftldh laxr dj

fu/kZj.k o"kZ ds fy, dqy vk; ikap yk[k #i;s ls vf/d ugha gS

rFkk dsoy fuEufyf[kr 'kh"kZ ds vUrxZr vk;dj izHkk;Z gS-µ

(d) ^^osru**_

([k) cSad esa cpr [kkrs ls C;kt ds :i esaµ^^vU;

Ïksrksa ls vk;** tks nl gtkj #i, ls vf/d ugha gSA

2- 'krs±]µiSjk 1 esa mfYyf[kr O;f"V]µ

(i) viuh LFkkbZ [kkrk la[;k (iSu) esa vius fu;ksDrk dh

lwpuk nh gS_

(ii) vius fu;ksDrk dks iSjk 1 ds miiSjk ([k) esa mfYyf[kr

vk; dh lwpuk nh gS rFkk fu;ksDrk us ml ij dj

dkVk gS_

(iii) vius fu;ksDrk ls iQkeZ 16 esa dj dVkSrh dk izek.ki=k

izkIr fd;k gS tks iSu] vk; ds C;kSjs rFkk Ïksr ij dkVs

x, ,oa dsUnz ljdkj ds ØsfMV esa tek fd, x, dj

dk mYys[k djrk gS_

(iv) Ïksr ij dj dVkSrh rFkk fu;ksDrk }kjk dsUnz ljdkj

dks mlds tek ds ekè;e ls dj fu/kZj.k o"kZ ds fy,

viuh dqy dj ns;rk dk fuokZg fd;k gS_

(v) dj fu/kZj.k o"kZ dh vk; ds fy, ml ij ns; dj ds

izfrnk; dk dksbZ nkok ugha gS_ vkSj

(vi) dj fu/kZj.k o"kZ ds fy, dsoy ,d fu;ksDrk ls osru

izkIr fd;k gSA

3- vk;dj fooj.kh izLrqr djus dh vko';drk ls NwV ogka

izkIr ugha dh tk,xh tgka vk;dj vf/fu;e dh /kjk 142 (1) ;k

/kjk 148 ;k 153d ;k /kjk 153x ds vUrxZr laxr dj fu/kZj.k

o"kZ ds fy, vk; fooj.kh nkf[ky djus ds fy, uksfVl tkjh fd;k

x;k gSA

4- ;g vf/lwpuk jkti=k esa izdk'ku dh rkjh[k ls izHkkoh

gksxhA

¹vf/lwpuk la- 09@2012@iQk- la- 225@283@2011&vk-d-fu-&IIº

vt; xks;y] funs'kd (vk-d-fu-&II)

(Department of Revenue)

(CENTRAL BOARD OF DIRECT TAXES)

New Delhi, the 17th February, 2012

(Income-tax)

S.O. 801.— In exercise of the power conferred by

sub-section (1C) of section 139 of the Income-tax Act,

1961 (43 of 1961), the Central Government hereby exempts

the following class of persons, subject to the conditions

specified hereinafter, from the requirement of furnishing a

return of income under sub-section (1) of section 139 for

the assessment year 2012-13, namely :—

1. Class of persons.—An Individual whose total

income for the relevant assessment year does not exceed

five lakh rupees and consists of only income chargeable

to income-tax under the following head,—

(A) “Salaries”;

(B) “Income from other sources”, by way of interest

from a saving account in a bank, not exceeding ten

thousand rupees.

2. Conditions,-—The individual referred to in para 1,-

(i) has reported to his employer his permanent

Account Number (PAN);

(ii) has reported to his employer, the incomes

mentioned in sub-para (B) of para I and the

employer has deducted the tax thereon;

(iii) has received a certificate of tax deduction in

Form 16 from his employer which mentions the

P AN, details of income and the tax deducted

at source and deposited to the credit of the

Central Government;

(iv) has discharged his total tax liability for the

assessment year through tax deduction at

source and its deposit by the employer to the

Central Government;

(v) has no claim of refund of taxes due to him for

the income of the assessment year, and

(vi) has received salary from only one employer

for the assessment year.

3. The exemption from the requirement of furnishing

a return of income tax shall not be available where a notice

under section 142 (1) or section 148 or section 153 A or

section 153C of the Income-tax Act has been issued for

filing a return of income for the relevant assessment year.

4. This notification shall come into force from the

date its publication in the Official Gazette.

[Notification No. 09/2012/ F. No. 225/283/2011-ITA -II ]

AJAY GOYAL, Director (ITA-II)

1824

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

ubZ fnYyh] 21 iQjojh] 2012

(vk;dj)

dk-vk- 802-—tcfd dsUnz ljdkj us vk;dj vf/fu;e] 1961 (1961 dk 43) (ftls blesa blds i'pkr mDr vf/fu;e ds :i

esa lan£Hkr fd;k x;k) dh /kjk 80>d dh mi&/kjk (4) ds [kaM (iii) }kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq, 1 vizSy] 1997 dks vkjaHk gks

jgh rFkk 31 ekpZ] 2002 dks lekIr gks jgh vof/ ds fy, la[;k dk-vk- 193 (v)] fnukad 30 ekpZ] 1999 }kjk rFkk 01 vizSy] 1997 dks

vkjEHk gks jgh rFkk 31 ekpZ] 2006 dks lekIr gks jgh vof/ ds fy, la[;k dk-vk- 354 (v)] fnukad 01 vizSy] 2002 }kjk okf.kT; ,oa

m|ksx ea=kky; (vkS|ksfxd uhfr ,oa lao/Zu ea=kky;) esa Hkkjr ljdkj dh vf/lwpukvksa }kjk vkS|ksfxd ikdZ ds fy, ,d ;kstuk fu£er ,oa

vf/lwfpr dh gS _

vkSj tcfd eSllZ izlkn VsDukWykth ikdZ izkbosV fyfeVsM] ftldk iathÑr irk 2@10] r`rh; ry] 80 iQhV lM+d] iqtkjh ysvkmV]

vkj ,e oh] f}rh; pj.k] caxyq#&560094 esa gS] IykWV la- 97] bZihvkbZih vkS|ksfxd {ks=k] OokbViQhYM] caxyq#] dukZVd&560066 esa ,d

vkS|ksfxd ikdZ fodflr dj jgk gS A

vkSj tcfd dsUnz ljdkj us mDr vkS|ksfxd ikdZ dk vuqeksnu] okf.kT; ,oa m|ksx ea=kky; ds fnukad 13&04&2006 ds i=k la-

15@62@2005 vkbZMh&II }kjk mlesa mfYyf[kr fuca/u ,oa 'krks± ds v/hu fd;k gS_

vr% vc mDr vf/fu;e dh /kjk 80>d dh mi/kjk (4) ds [kaM (iii) }kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq, dsUnz ljdkj ,rn}kjk

bl vf/lwpuk ds vuqca/ esa mfYyf[kr 'krks± ds v/hu eSllZ izlkn VsDukWykth ikdZ izk- fy-] caxyq# }kjk fodflr ,oa vuqjf{kr rFkk

izpkfyr fd, tk jgs miØe dks mDr [kaM (iii) ds iz;kstukFkZ ,d vkS|ksfxd ikdZ ds :i esa vf/lwfpr djrh gS A

vuqca/

'krs± ftu ij eSllZ izlkn VsDukWykth ikdZ izk- fy-] caxyq# }kjk ,d vkS|ksfxd ikdZ dh LFkkiuk ds fy, Hkkjr ljdkj

dk vuqeksnu iznku fd;k x;k gS A

(i)

vkS|ksfxd miØe dk uke

izlkn VsDukWykth ikdZ izk- fyfeVsM]

(ii)

voLFkku

IykWV la- 97] bZihvkbZih] vkS|ksfxd {ks=k] OokbViQhYM] caxyq#]

dukZVd&560066

(iii)

fu£er U;wure iQ'khZ {ks=k

10711 oxZ ehVj

(iv)

izLrkfor vkS|ksfxd dk;Z&dyki

,u vkbZ lh dksM ds lkFk vkS|ksfxd fØ;kdyki dh izÑfr

,u vkbZlh dksM

fooj.k

Øe la-

/kjk

izHkkx

lewg

Js.kh

fo|qrh; vkS|ksfxd e'khujh] viSjsVl vkSj mlds ikVZ~l dk fofuekZ.k

892

MkVk izlaLdj.k] lkWÝVos;j fodkl ,oa dEI;wVj ijke'khZ lsok,a

893

dkjksckj ,oa izca/u ije'khZ fØ;kdyki

894

vk£dVsDpjy ,oa vfHk;kaf=kdh ,oa vU; rduhdh ijke'khZ lsok,a

895

rduhdh ijh{k.k ,oa fo'ys"k.k lsok,a

(v)

vkS|ksfxd mi;ksx ds fy, mfí"V vkcaVu ;ksX; {ks=kiQy dh izfr'krrk

95-00 izfr'kr

(vi)

okf.kfT;d mi;ksx ds fy, mfí"V vkcaVu ;ksX; {ks=kiQy dh izfr'krrk

5-00 izfr'kr

(vii)

vkS|ksfxd miØeksa dh U;wure la[;k

03 ;wfuVsa

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

1825

(viii)

izLrkfor dqy fuos'k (jkf'k #i, esa)

10]52]24]434

(ix)

vkS|ksfxd iz;ksx ds fy, fufeZr LFkku ij fuos'k (jkf'k #i, esa)

8]26]67]565

(x)

vkS|ksfxd iz;ksx ds fy, fufeZr LFkku ij fuos'k lesr volajpuk

10]52]24]434

fodkl ij fuos'k (jkf'k #i, esa)

(xi)

vkS|ksfxd ikdZ ds vkjaHk gksus dh izLrkfor frfFk

30&11&2005

vko';d vuqeksnu ftlesa fuos'k lao/Zu cksMZ ;k Hkkjrh; fjtoZ cSad ;k ml le; ykxw fdlh dkuwu ds vUrxZr fofufnZ"V

fdlh izkf/dkjh }kjk fons'kh izR;{k fuos'k ;k vfuoklh Hkkjrh; fuos'k ds fy, vuqeksnu 'kkfey gS] ykxw uhfr ,oa dk;Z iz.kkyh ds vuqlkj

vyx ls fy;k tk,xk A

vf/fu;e ds vUrxZr dj ykHk bl vf/lwpuk ds iSjk 1 (vii) esa mfYyf[kr la[;k esa ;wfuVksa ds vkS|ksfxd ikdZ esa fLFkr

gks tkus ds ckn gh izkIr fd;k tk ldrk gS A

eSllZ izlkn VsDukWykth ikdZ izk-fy-] caxyq: ml vof/ ds nkSjku vkS|ksfxd ikdZ dk izpkyu tkjh j[ksxk ftlesa vk;dj

vf/fu;e] 1961 dh /kjk 80>d dh mi&/kjk (4) ds [kaM (iii) ds vUrxZr ykHk izkIr fd;k tkuk gS A

;fn vkS|ksfxd ikdZ 31&3&2006 rd 'kq: ugha gqvk] rks vk;dj vf/fu;e] 1961 dh /kjk 80>d dh mi&/kjk (4)(iii)

ds vUrxZr ykHk izkIr djus ds fy, ml ;kstuk ds vUrxZr iz;ksT;rk ds v/hu vkS|ksfxd ikdZ ;kstuk] 2008 ds vUrxZr u;k vkosnu

visf{kr gksxk A

vuqeksnu vekU; gks tk,xk rFkk eSllZ izlkn VsDukWykth ikdZ izk-fy-] caxyq: ,slh vekU;rk dh fdlh izfrfØ;k ds fy,

iwjh rjg ftEesnkj gksxk] ;fn

(i)

ftl vkosnu ds vk/kj ij dsUnz ljdkj }kjk vuqeksnu iznku fd;k tkrk gS mlesa xyr lwpuk@feF;k tkudkjh gksrh gS vFkok

dksbZ oLrqxr lwpuk iznku ugha dh tkrh gS A

(ii)

;g vkS|ksfxd ikdZ ds voLFkku ds fy, gS ftlds fy, fdlh vU; miØe ds uke esa vuqeksnu igys gh iznku fd;k tk pqdk

gS A

;fn eSllZ izlkn VsDukWykth ikdZ izk-fy-] caxyq: fdlh nwljs midze (vFkkZr varfjrh miØe) dks vkS|ksfxd ikdZ (vFkkZr

varj.kdrkZ miØe) dk izpkyu ,oa vuqj{k.k gLrkarfjr dj nsxk] rks varj.kdrkZ ,oa varfjrh la;qDr :i ls mi;qZDr varj.k ds fy,

varj.kdrkZ ,oa varfjrh miØe ds chp fu"ikfnr djkj dh izfr ds lkFk vkS|ksfxd lgk;rk lfpoky;] vkS|ksfxd uhfr ,oa lao/Zu foHkkx]

m|ksx Hkou] ubZ fnYyh&11 dh m|e lgk;rk ;wfuV dks lwfpr djsaxs A

bl vf/lwpuk esa mfYyf[kr 'krks± rFkk vkS|ksfxd ikdZ Ldhe] 2002 esa 'kkfey dh xbZ 'krks± dk ml vof/ ds nkSjku ikyu

fd;k tkuk pkfg, ftlds fy, bl Ldhe ds vUrxZr ykHk mBk, tkus gSa A dsUnz ljdkj mi;qZDr vuqeksnu dks okil ys ldrh gS] ;fn eSllZ

izlkn VsDukWykth ikdZ izk-fy-] caxyq: fdUgha Hkh 'krks± dk ikyu djus esa vleFkZ gksrk gS A

dsUnz ljdkj ds vuqeksnu ds fcuk ifj;kstuk Iyku esa fdlh la'kks/u vFkok Hkfo"; esa vfHkKku vFkok vkosnd }kjk fdlh

oLrqxr rF; dks izdV u djus ls vkS|ksfxd ikdZ dk vuqeksnu vekU; gks tk,xk A

¹vf/lwpuk la- 10@2012@iQk-la- 178@7@2011&vk-d-fu-&Iº

je.k pksiM+k] funs'kd (vk-d-fu-&I)

New Delhi, the 21st February, 2012

(INCOME-TAX)

S.O. 802.—Whereas the Central Government in exercise of the powers conferred by clause (iii) of sub-section (4)

of Section 80-IA of the Income-tax Act, 1961 (43 of 1961 ) (hereinafter referred to as the said Act), has framed and notified

a scheme for industrial park, by the notifications of the Government of India in the Ministry of Commerce and Industry

(Department of Industrial Policy and Promotion) vide number S.O.193(E), dated the 30th March, 1999, for the period

beginning on the 1st day of April, 1997 and ending on the 31st day of March, 2002 and vide number S.O. 354(E), dated the

1st day of April, 2002, for the period beginning on the 1st day of April, 1997 and ending on the 31st day of March, 2006;

1826

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

And whereas M/s. Prasad Technology Park Private Limited having its registered office at #2/10, 3rd Floor, 80 Feet

Road, Poojari Layout, RMV, 2nd Stage, Bangalore-560094, is developing an Industrial Park at Plot No. 97, E.P.I.P. Industrial

Area, Whitefield, Bangalore, Karnataka-560 066;

And whereas the Central Government has approved the said Industrial Park vide Ministry of Commerce and

Industry letter No. 15/62/2005-ID-II dated 13-04-2006 subject to the terms and conditions mentioned therein;

Now, therefore, in exercise of the powers conferred by clause (iii) of sub-section (4) of Section 80-IA of the said

Act, the Central Government hereby notifies the undertaking, being developed and being maintained and operated by

M/s. Prasad Technology Park Pvt. Ltd., Bangalore, as an industrial park for the purposes of the said clause (iii) subject to

the terms and conditions mentioned in the annexure to this notification.

ANNEXURE

The terms and conditions on which the approval of the Government of India has been accorded for setting up of

an industrial park by M/s. Prasad Technology Park Pvt. Ltd., Bangalore.

1 . (i)

Name of the Industrial Undertaking

Prasad Technology Park Private Limited

(ii) Proposed location

Plot No. 97, E.P.I.P. Industrial Area, Whitefield, Bangalore,

Karnataka-560 066

(iii) Area of Industrial Park

10711 Square Meters

(iv) Proposed activities

Nature of Industrial activity with NIC code

NIC Code

Description

S. No.

Section Division

Group

Class

Manufacture of electrical industrial machinery, apparatus and

parts thereof

892

Data processing, software development and computer

consultancy services

893

Business and management consultancy activities

894

Architectural and engineering and other technical

consultancy activities

895

Technical testing and analysis services

(v) percentage of allocable area earmarked for

95.00%

Industrial use

(vi) Percentage of allocable area earmarked

5.00%

for commercial use

(vii) Minimum number of industrial units

03 Units

(viii) Total investments proposed

Rs.10,52,24,434

(Amount in Rupees)

(ix) Investment on built up space for

Rs. 8,26,67,565

Industrial use (Amount in Rupees)

(x) Investment on Infrastructure Development

Rs.10,52,24,434

including investment on built up space for

industrial use (Amount in Rupees)

(xi) Proposed date of commencement of the

30-11-2005

Industrial Park

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

1827

2. Necessary approvals, including that for foreign direct investment or non-resident Indian investment by the

Foreign Investment Promotion Board or Reserve Bank of India or any authority specified under any law for

the time being in force, shall be taken separately as per the policy and procedures in force.

3. The tax benefits under the Act can be availed of only after the number of units indicated in Para 1 (vii) of this

Notification, are located in the Industrial Park.

4. M/s. Prasad Technology Park Pvt. Ltd., Bangalore, shall continue to operate the Industrial Park during the

period in which the benefits under clause (iii) of sub-section (4) of Section 80 IA of the Income-tax Act, 1961

are to be availed.

5. In case the Industrial Park did not commence by 31-3-2006, fresh approval will be required under the Industrial

Park Scheme, 2008 subject to the applicability under that Scheme for availing benefits under sub-section 4(iii)

of Section 80 IA of the Income tax Act, 1961.

6. The approval will be invalid and M/s. Prasad Technology Park Pvt. Ltd., Bangalore shall be solely responsible

for any repercussions of such invalidity, if

(i) the application on the basis of which the approval is accorded by the Central Government contains

wrong information/misinformation or some material information has not been provided in it.

(ii) it is for the location of the industrial park for which approval has already been accorded in the name of

another undertaking.

7. In case M/s. Prasad Technology Park Pvt. Ltd., Bangalore, transfers the operation and maintenance of the

industrial park (i.e., transferor undertaking) to another undertaking (i.e., the transferee undertaking), the

transferor and transferee shall jointly intimate to the Entrepreneurial Assistance Unit of the Secretariat for

Industrial Assistance, Department of Industrial Policy and Promotion, Udyog Bhawan, New Delhi-l1 along

with a copy of the agreement executed between the transferor and transferee undertaking for the aforesaid

transfer.

8. The conditions mentioned in this notification as well as those included in the Industrial Park Scheme, 2002

should be adhered to during the period for which benefits under this scheme are to be availed. The Central

Government may withdraw the above approval in case M/s. Prasad Technology Park Pvt. Ltd., Bangalore, fails

to comply with any of the conditions.

9. Any amendment of the project plan without the approval of the Central Government or detection in future, or

failure on the part of the applicant to disclose any material fact, will invalidate the approval of the industrial

park.

[Notification No. 10 /120l2/F.N. 178/7/2011-ITA-I]

RAMAN CHOPRA, Director (ITA-I)

LokLF; ,oa ifjokj dY;k.k ea=kky;

(LokLF; ,oa ifjokj dY;k.k foHkkx)

ubZ fnYyh] 16 uoEcj] 2011

dk-vk- 803-—Hkkjrh; fpfdRlk ifj"kn~ vf/fu;e] 1956 (1956 dk 102) dh /kjk 11 dh mi&/kjk (2) }kjk iznÙk 'kfDr;ksa

dk iz;ksx djrs gq,] dsUnz ljdkj] Hkkjrh; fpfdRlk ifj"kn~ ls ijke'kZ dj ds lEc¼ fo'ofo|ky; ds uke esa ifjorZu ds dkj.k mDr vf/

fu;e dh izFke vuqlwph esa fuEufyf[kr vkSj la'kks/u djrh gS] uker% %µ

(d) ^^larks"k fo'ofo|ky;] xkft;kckn** ds le{k ^^ekU;rkizkIr fpfdRlk vgZrk** ¹blds ckn dkWye (2) ds :i esa lan£Hkrº

'kh"kZd ds varxZr vkSj ^^iathdj.k ds fy, la{ksi.k** ¹blds ckn dkWye (3) ds :i esa lan£Hkrº 'kh"kZd ds varxZr fuEufyf[kr

var%LFkkfir fd;k tk,xk] vFkkZr~ %—

1828

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

^^ekLVj vkWiQ ltZjh** (izlwfr ,oa L=kh jksx fo'ks"kK)

,e,l (vkschth)

(;g ,d ekU;rkizkIr fpfdRlk vgZrk gksxh tc ;g larks"k esfMdy dkWyst]

xkft;kckn esa izf'kf{kr fo|k£Fk;ksa ds ckjs esa larks"k fo'ofo|ky;]xkft;kckn

}kjk ebZ] 2011 esa vFkok ckn esa iznku dh xbZ gks A)

^^MkDVj vkWiQ esfMflu** ({k; jksx o 'oluh; jksx Iyeksujh esfMflu) ,eMh (Vhch o 'oluh; jksx @Iyeksujh esfMflu)

(;g ,d ekU;rkizkIr fpfdRlk vgZrk gksxh tc ;g larks"k

esfMdy dkWyst] xkft;kckn esa izf'kf{kr fo|k£Fk;ksa ds ckjs es larks"k

fo'ofo|ky;] xkft;kckn }kjk ebZ] 2011 esa vFkok ckn esa iznku dh

xbZ gksA)

^^{k; jksx o Nkrh jksx esa fMIyksek**

MhVhlhMh

(;g ,d ekU;rkizkIr fpfdRlk vgZrk gksxh tc ;g larks"k

esfMdy dkWyst] xkft;kckn esa izf'kf{kr fo|k£Fk;ksa ds ckjs esa larks"k

fo'ofo|ky;] xkft;kckn }kjk ebZ] 2011 esa vFkok ckn esa iznku dh

xbZ gksA)

^^MkDVj vkWiQ esfMflu** (fiQft;ksykWth)

,eMh (fiQft;ksykWth)

(;g ,d ekU;rkizkIr fpfdRlk vgZrk gksxh tc ;g larks"k

esfMdy dkWyst] xkft;kckn esa izf'kf{kr fo|k£Fk;ksa ds ckjs esa larks"k

fo'ofo|ky;] xkft;kckn }kjk ebZ] 2011 esa vFkok ckn esa iznku dh

xbZ gksA)

^^MkDVj vkWiQ esfMflu** (ck;ksdsfeLVªh)

,eMh (ck;ksdsfeLVªh)

(;g ,d ekU;rkizkIr fpfdRlk vgZrk gksxh tc ;g larks"k

esfMdy dkWyst] xkft;kckn esa izf'kf{kr fo|k£Fk;ksa ds ckjs esa larks"k

fo'ofo|ky;] xkft;kckn }kjk ebZ] 2011 esa vFkok ckn esa iznku dh

xbZ gksA)

^^MkDVj vkWiQ esfMflu** (ekbØksck;ksykWth)

,eMh (ekbØksck;ksykWth)

(;g ,d ekU;rkizkIr fpfdRlk vgZrk gksxh tc ;g larks"k

esfMdy dkWyst] xkft;kckn esa izf'kf{kr fo|k£Fk;ksa ds ckjs esa larks"k

fo'ofo|ky;] xkft;kckn }kjk ebZ] 2011 esa vFkok ckn esa iznku dh

xbZ gksA)

^^MkDVj vkWiQ esfMflu** (euksjksx foKku)

,eMh (euksjksx foKku)

(;g ,d ekU;rkizkIr fpfdRlk vgZrk gksxh tc ;g larks"k

esfMdy dkWyst] xkft;kckn esa izf'kf{kr fo|k£Fk;ksa ds ckjs esa larks"k fo'ofo|ky;]

xkft;kckn }kjk ebZ] 2011 esa vFkok ckn esa iznku dh xbZ gksA)

^^euksjksx fpfdRlk esa fMIyksek**

Mhih,e

(;g ,d ekU;rkizkIr fpfdRlk vgZrk gksxh tc ;g larks"k

esfMdy dkWyst] xkft;kckn esa izf'kf{kr fo|k£Fk;ksa ds ckjs esa larks"k

fo'ofo|ky;] xkft;kckn }kjk ebZ] 2011 esa vFkok ckn esa iznku dh

xbZ gksA)

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

1829

^^MkDVj vkWiQ esfMflu (dE;wfuVh esfMflu)**

,eMh (dE;wfuVh esfMflu)

(;g ,d ekU;rkizkIr fpfdRlk vgZrk gksxh tc ;g larks"k

esfMdy dkWyst] xkft;kckn] esa izf'kf{kr fo|k£Fk;ksa ds ckjs esa larks"k

fo'ofo|ky;] xkft;kckn }kjk ebZ] 2011 esa vFkok ckn esa iznku dh

xbZ gksA)

([k) ^^cqansy[kaM fo'ofo|ky;] >klh mÙkj izns'k** ds le{k ^^ekU;rk izkIr fpfdRlk vgZrk** ¹blds ckn dkWye (2) ds :i

esa lan£Hkrº 'kh"kZd ds varxZr vkSj ^^iathdj.k ds fy, la{ksi.k** ¹blds ckn dkWye (3) ds :i esa lan£Hkrº 'kh"kZd ds varxZr fuEufyf[kr

var%LFkkfir fd;k tk,xk] vFkkZr~ %—

^^ekLVj vkWiQ ltZjh** (izlwfr ,oa L=kh jksx foKku)

,e,l (vkschth)

(;g ,d ekU;rkizkIr fpfdRlk vgZrk gksxh tc ;g ,e,ych esfMdy dkWyst]

>kalh] mÙkj izns'k] esa izf'kf{kr fo|k£Fk;ksa ds ckjs esa caqnsy[kaM fo'ofo|ky;]

>kalh] mÙkj izns'k] }kjk 1982 esa vFkok ckn esa iznku dh xbZ gksA)

^^izlwfr ,oa L=kh jksx foKku esa fMIyksek**

Mhthvks

(;g ,d ekU;rkizkIr fpfdRlk vgZrk gksxh tc ;g ,e,ych esfMdy dkWyst]

>kalh] mÙkj izns'k] esa izf'kf{kr fo|k£Fk;ksa ds ckjs esa caqnsy[kaM fo'ofo|ky;]

>kalh] mÙkj izns'k] }kjk 1981 esa vFkok ckn esa iznku dh xbZ gksA)

^^ekLVj vkiQ ltZjh (vkFkksZisfMDl)**

,e,l (vkFkksZisfMDl)

(;g ,d ekU;rkizkIr fpfdRlk vgZrk gksxh tc ;g ,e,ych esfMdy dkWyst]

>kalh] mÙkj izns'k] esa izf'kf{kr fo|k£Fk;ksa ds ckjs esa caqnsy[kaM fo'ofo|ky;]

>kalh] mÙkj izns'k] }kjk 1984 esa vFkok ckn esa iznku dh xbZ gksA)

^^fMIyksek bu vkFkksZisfMDl**

Mh-vkFkksZ-

(;g ,d ekU;rkizkIr fpfdRlk vgZrk gksxh tc ;g ,e,ych esfMdy dkWyst]

>kalh] mÙkj izns'k] esa izf'kf{kr fo|k£Fk;ksa ds ckjs esa caqnsy[kaM fo'ofo|ky;]

>kalh] mÙkj izns'k] }kjk 1984 esa vFkok ckn esa iznku dh xbZ gksA)

(x) ^^nhun;ky mikè;k; xksj[kiqj] xksj[kiqj fo'ofo|ky;] mÙkj izns'k** ds le{k ^^ekU;rk izkIr fpfdRlk vgZrk** ¹blds

ckn dkWye (2) ds :i esa lan£Hkrº 'kh"kZd ds varxZr vkSj ^^iathdj.k ds fy, la{ksi.k** ¹blds ckn dkWye (3) ds :i esa lan£Hkrº

'kh"kZd ds varxZr fuEufyf[kr var%LFkkfir fd;k tk,xk] vFkkZr~ %—

^^MkDVj vkWiQ esfMflu** (tujy esfMflu)

,eMh (tujy esfMflu)

(;g ,d ekU;rkizkIr fpfdRlk vgZrk gksxh tc ;g chvkjMh esfMdy dkWyst]

xksj[kiqj] mÙkj izns'k] esa izf'kf{kr fo|k£Fk;ksa ds ckjs esa ^^nhun;ky mikè;k;

xksj[kiqj] xksj[kiqj fo'ofo|ky;] mÙkj izns'k]** }kjk 1982 esa vFkok ckn esa

iznku dh xbZ gksA)

¹la- ;w- 12012@83@2010&,ebZ (ih&II)]

vfurk f=kikBh] voj lfpo

MINISTRY OF HEALTH AND FAMILY WELFARE

(Department of Health and Family Welfare)

New Delhi, the 16th November, 2011

S.O. 803.—In exercise of the powers conferred by sub-section (2) of Section 11 of the Indian Medical Council

Act, 1956(102 of 1956), the Central Government, after consulting the Medical Council of India hereby, makes the

1830

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

following further amendments in the First Schedule to the said Act, due to change in name of affiliating University,

namely :—

(a) against ‘‘Santosh University, Ghaziabad’’ under the heading ‘Recognized Medical Qualification’ [hereinafter

referred to as column (2) ] after the last entry and entry relating thereto under the heading ‘Abbreviation for Registration’

[hereinafter referred to as column (3)] the following shall be inserted, namely :—

‘‘Master of Surgery (Obstetrics & Gynaecology)’’

MS (OBG)

This shall be a recognized medical qualification when granted by

Santosh University, Ghaziabad in respect of students being trained

at Santosh Medical College, Ghaziabad on or after May, 2011.

‘‘Doctor of Medicine (Tuberculosis & respiratory

MS (TB & Resp. Disease/Pulmo. Medicine)

Diseases/Pulmonary Medicine)’’

This shall be a recognized medical qualification when granted by

Santosh University, Ghaziabad in respect of students being trained

at Santosh Medical College, Ghaziabad on or after May, 2011.

‘‘Diploma in tuberculosis & Chest Diseases’’

DTCD

This shall be a recognized medical qualification when granted by

Santosh University, Ghaziabad in respect of students being trained

at Santosh Medical College, Ghaziabad on or after May, 2011.

‘‘Doctor of Medicine (Physiology)’’

MD (Physiology)

This shall be a recognized medical qualification when granted by

Santosh University, Ghaziabad in respect of students being trained

at Santosh Medical College, Ghaziabad on or after May, 2011.

‘‘Doctor of Medicine (Biochemistry)’’

MD (Biochemistry)

This shall be a recognized medical qualification when granted by

Santosh University, Ghaziabad in respect of students being trained

at Santosh Medical College, Ghaziabad on or after May, 2011.

‘‘Doctor of Medicine (Microbiology)’’

MD (Microbiology)

This shall be a recognized medical qualification when granted by

Santosh University, Ghaziabad in respect of students being trained

at Santosh Medical College, Ghaziabad on or after May, 2011.

‘‘Doctor of Medicine (Psychiatry)’’

MD (Psychiatry)

This shall be a recognized medical qualification when granted by

Santosh University, Ghaziabad in respect of students being trained

at Santosh Medical College, Ghaziabad on or after May, 2011.

‘‘Diploma in Psychological Medicine’’

DPM

This shall be a recognized medical qualification when granted by

Santosh University, Ghaziabad in respect of students being trained

at Santosh Medical College, Ghaziabad on or after May, 2011.

‘‘Doctor of Medicine (Community Medicine)’’

MD (Community Medicine)

(This shall be a recognized medical qualification when granted by

Santosh University, Ghaziabad in respect of students being trained

at Santosh Medical College, Ghaziabad on or after May, 2011.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

1831

(b) against ‘‘Bundelkhand University, Jhansi Uttar Pradesh’’ under the heading ‘Recognized Medical Qualification’

[hereinafter referred to as column (2) ] after the last entry and entry relating thereto under the heading ‘Abbreviation for

Registration’ [hereinafter referred to as column (3)] the following shall be inserted namely :—

‘‘Master of Surgery (Obstetrics & Gynaecology)’’

MS (OBG)

(This shall be a recognized medical qualification when granted by

Bundelkhand University, Jhansi, Uttar Pradesh in respect of students

being trained at M.L.B. Medical College, Jhansi, Uttar Pradesh on

or after 1982).

‘‘Diploma in Obstetrics & Gynaecology’’

DGO

(This shall be a recognized medical qualification when granted by

Bundelkhand University, Jhansi, Uttar Pradesh in respect of students

being trained at M.L.B. Medical College, Jhansi, Uttar Pradesh on

or after 1981).

‘‘Master of Surgery (Orthopaedics)’’

MS (Orthopaedics)

(This shall be a recognized medical qualification when granted by

Bundelkhand University, Jhansi, Uttar Pradesh in respect of students

being trained at M.L.B. Medical College, Jhansi, Uttar Pradesh on

or after 1984).

‘‘Diploma in Orthopaedics’’

D. Ortho.

(This shall be a recognized medical qualification when granted by

Bundelkhand University, Jhansi, Uttar Pradesh in respect of students

being trained at M.L.B. Medical College, Jhansi, Uttar Pradesh on

or after 1984).

heading ‘Recognized Medical Qualification’ [hereinafter referred to as column (2)], after the last entry and entry relating

thereto under the heading ‘Abbreviation for Registration’ [hereinafter referred to as column (3)] the following shall be

inserted namely :—

‘‘Doctor of Medicine (General Medicine)’’

MD (General Medicine)

(This shall be a recognized medical qualification when granted

by Deen Dayal Upadhyay Gorakhpur University/Gorakhpur,

University, Uttar Pardesh in respect of students being trained

at B.R.D. Medical College, Gorakhpur, Uttar Pradesh on or

after 1982).

[ No. U-12012/83/2011-ME (P-II)]

ANITA TRIPATHI, Under Secy.

ubZ fnYyh] 23 uoEcj] 2011

dk- vk- 804-—dsUnz ljdkj] Hkkjrh; fpfdRlk ifj"kn~ vf/fu;e] 1956 (1956 dk 102) dh /kjk 11 dh mi&/kjk (2) }kjk

iznÙk 'kfDr;ksa dk iz;ksx djrs gq,] Hkkjrh; fpfdRlk ifj"kn~ ls ijke'kZ djus ds ckn vgZrk dh ukekoyh esa ifjorZu ds dkj.k mDr vf/fu;e

dh izFke vuqlwph esa fuEufyf[kr vkSj la'kks/u djrh gS] vFkkZr %—

mDr vuqlwph esa—

(d) ekU;rkizkIr fpfdRlk vgZrk 'kh"kZd ¹blds ckn dkWye (2) ds :i esa lan£Hkrº ds varxZr ^^d'ehj fo'ofo|ky;**

ds lkeus iathdj.k ds fy, la{ksi.k ¹blds ckn dkWye (3) ds :i esa lan£Hkrº 'kh"kZd ds varxZr vafre izfof"V ,oa mlls

lacaf/r izfof"V ds ckn fuEufyf[kr dks var%LFkkfir fd;k tk,xk] uker %—

1832

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

^^L=kh ,oa izlwfr jksx foKku esa fMIyksek**

Mh th vks

(;g ,d ekU;rkizkIr fpfdRlk vgZrk gksxh tc ;g xouZesaV esfMdy

dkWyst] Jhuxj] tEew o d'ehj esa izf'kf{kr fd, tk jgs fo|k£Fk;ksa ds laca/

esa d'ehj fo'ofo|ky;] }kjk o"kZ 1998 esa ;k mlds ckn iznku dh xbZ gks)A

([k) ekU;rkizkIr fpfdRlk vgZrk 'kh"kZd ¹blds ckn dkWye (2) ds :i esa lan£Hkrº ds varxZr vkSj ^^ve`rk fo'o

fo|kihBe fo'ofo|ky;] dks;EcVwj** ds lkeus iathdj.k ds la{ksi.k ¹blds ckn dkWye (3) ds :i esa lan£Hkrº 'kh"kZd ds varxZr vafre

izfof"V ,oa mlls lacaf/r izfof"V ds ckn fuEufyf[kr dks var%LFkkfir fd;k tk,xk] uker% %—

^^ekLVj vkWiQ ltZjh (vkiFksyeksyksth)**

,eMh (vkiFksyeksyksth)

(;g ,d ekU;rkizkIr fpfdRlk vgZrk gksxh tc ;g ve`rk Ldwy vkiQ

esfMflu] dksPph] dsjy esa izf'kf{kr fd, tk jgs fo|k£Fk;ksa ds laca/ esa

ve`rk fo'o fo|kihBe fo'ofo|ky;] dks;EcVwj }kjk ebZ] 2011 esa

vFkok mlds ckn iznku dh xbZ gks)A

^^MkDVj vkWiQ esfMflu (,ysLFkhfl;k)**

,e Mh (,usLFkhfl;k)

(;g ,d ekU;rkizkIr fpfdRlk vgZrk gksxh tc ;g ve`rk Ldwy vkiQ

esfMflu] dksPph] dsjy esa izf'kf{kr fd, tk jgs fo|k£Fk;ksa ds laca/ esa

ve`rk fo'o fo|kihBe fo'ofo|ky;] dks;EcVwj }kjk ebZ] 2011 esa

vFkok mlds ckn iznku dh xbZ gks)A

(x) ekU;rkizkIr fpfdRlk vgZrk 'kh"kZd ¹blds ckn dkWye (2) ds :i esa lan£Hkrº ds varxZr iatkc fo'ofo|ky; ds

lkeus iathdj.k ds la{ksi.k ¹blds ckn dkWye (3) ds :i esa lan£Hkrº 'kh"kZd ds varxZr vafre izfof"V ,oa mlls lacaf/r izfof"V ds ckn

fuEufyf[kr dks var%LFkkfir fd;k tk,xk] uker% %—

^^ekLVj vkWiQ ltZjh (dku] ukd o xyk)**

,e ,l (bZ ,u Vh)

(;g ,d ekU;rkizkIr fpfdRlk vgZrk gksxh tc ;g xouZesaV esfMdy]

dkyst paMhx<+ esa izf'kf{kr fd, tk jgs fo|k£Fk;ksa ds laca/ esa iatkc

fo'ofo|ky;] }kjk ebZ] 2011 esa vFkok mlds ckn iznku dh xbZ

gks)A

(?k) ekU;rkizkIr fpfdRlk vgZrk 'kh"kZd ¹blds ckn dkWye (2) ds :i esa lan£Hkrº ds varxZr ^^jktLFkku LokLF; foKku

fo'ofo|ky;] t;iqj** ds lkeus iathdj.k ds la{ksi.k ¹blds ckn dkWye (3) ds :i esa lan£Hkrº 'kh"kZd ds varxZr vafre izfof"V ,oa

mlls lacaf/r izfof"V ds ckn fuEufyf[kr dks var%LFkkfir fd;k tk,xk] uker% %—

^^MkDVj vkWiQ esfMflu (MjesVksyksth]osujksyksth o ysizksth)**

,e Mh (Mh oh ,y)

(;g ,d ekU;rkizkIr fpfdRlk vgZrk gksxh tc ;g ljnkj iVsy esfMdy]

dkyst chdkusj] jktLFkku esa izf'kf{kr fd, tk jgs fo|k£Fk;ksa ds laca/

esa jktLFkku LokLF; foKku fo'o fo|ky;] t;iqj }kjk twu] 2011 esa

vFkok mlds ckn iznku dh xbZ gks)A

(Ä) ekU;rkizkIr fpfdRlk vgZrk 'kh"kZd ¹blds ckn dkWye (2) ds :i esa lan£Hkrº ds varxZr ^^nh rfeyukMq MkW- ,e th

vkj esfMdy ;wfuoflZVh] psUubZ** ds lkeus iathdj.k ds la{ksi.k ¹blds ckn dkWye (3) ds :i esa lan£Hkrº 'kh"kZd ds varxZr vafre

izfof"V ,oa mlls lacaf/r izfof"V ds ckn fuEufyf[kr dks var%LFkkfir fd;k tk,xk] uker% %—

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

1833

^^MkDVj vkWiQ esfMflu (,usLFkhfl;k)**

,e Mh (,usLFkhfl;k)

(;g ,d ekU;rkizkIr fpfdRlk vgZrk gksxh tc ;g psaxyiVw esfMdy]

dkyst psaxyuVw] rfeyukMq esa izf'kf{kr fd, tk jgs fo|k£Fk;ksa ds

laca/ esa ^^nh rfeyukMq MkW- ,e th vkj esfMdy ;wfuoflZVh] psUubZ**

}kjk ebZ] 2010 esa vFkok mlds ckn iznku dh xbZ gks)A

^^{k;jksx ,oa o{k jksx esa fMIyksek**

Mh Vh lh Mh

(;g ,d ekU;rkizkIr fpfdRlk vgZrk gksxh tc ;g ih ,l th bLVhV;wV

vkWiQ esfMdy lkblsat ,aM fjlpZ] dks;EcVwj esa izf'kf{kr fd, tk jgs

fo|k£Fk;ksa ds laca/ esa ^^nh rfeyukMq MkW- ,e th vkj esfMdy

;wfuoflZVh] psUubZ** }kjk ebZ] 2010 esa vFkok mlds ckn iznku dh xbZ

gks)A

(p) ekU;rkizkIr fpfdRlk vgZrk 'kh"kZd ¹blds ckn dkWye (2) ds :i esa lan£Hkrº ds varxZr Jh ckykth fo|kihB

fo'ofo|ky;] ikafMpsjh ds lkeus iathdj.k ds la{ksi.k ¹blds ckn dkWye (3) ds :i esa lan£Hkrº 'kh"kZd ds varxZr vafre izfof"V ,oa

mlls lacaf/r izfof"V ds ckn fuEufyf[kr dks var%LFkkfir fd;k tk,xk] uker% %—

^^MkDVj vkWiQ esfMflu(,usLFkhfl;k)**

,e Mh (,usLFkhfl;k)

(;g ,d ekU;rkizkIr fpfdRlk vgZrk gksxh tc ;g egkRek xka/h esfMdy]

dkyst ,aM fjlpZ baLVhV;wV] ikafMpsjh esa izf'kf{kr fd, tk jgs fo|k£Fk;ksa

ds laca/ esa ^^Jh ckykth fo|kihB fo'ofo|ky;] ikafMpsjh** }kjk

vizSy] 2011 esa vFkok mlds ckn iznku dh xbZ gks)A

(N) ekU;rkizkIr fpfdRlk vgZrk 'kh"kZd ¹blds ckn dkWye (2) ds :i esa lan£Hkrº ds varxZr ^^fouk;d fe'ku

fo'ofo|ky;] lyse] rfeyukMq** ds lkeus iathdj.k ds la{ksi.k ¹blds ckn dkWye (3) ds :i esa lan£Hkrº 'kh"kZd ds varxZr vafre

izfof"V ,oa mlls lacaf/r izfof"V ds ckn fuEufyf[kr dks var%LFkkfir fd;k tk,xk] uker% %—

^^fMIyksek bu vkFkksZisfMDl**

Mh vkFkksZ

(;g ,d ekU;rkizkIr fpfdRlk vgZrk gksxh tc ;g fouk;d fe'ku

fd:ikuUnk ofj;j esfMdy dkyst] lyse] rfeyukMq esa izf'kf{kr

fd, tk jgs fo|k£Fk;ksa ds laca/ esa fouk;d fe'ku fo'ofo|ky;]

lyse] rfeyukMq }kjk ebZ] 2011 esa vFkok mlds ckn iznku dh xbZ

gks)A

(t) ekU;rkizkIr fpfdRlk vgZrk 'kh"kZd ¹blds ckn dkWye (2) ds :i esa lan£Hkrº ds varxZr ^^if'pe caxky LokLF;

foKku fo'ofo|ky;] dksydkrk** ds lkeus iathdj.k ds fy, la{ksi.k ¹blds ckn dkWye (3) ds :i esa lan£Hkrº 'kh"kZd ds varxZr

vafre izfof"V ,oa mlls lacaf/r izfof"V ds ckn fuEufyf[kr dks var%LFkkfir fd;k tk,xk] uker% %—

^^MkDVj vkWiQ esfMflu**(,usLFkhfl;k)**

,e Mh (,usLFkhfl;k)

(;g ,d ekU;rkizkIr fpfdRlk vgZrk gksxh tc ;g dydÙkk us'kuy

esfMdy dkyst] dksydkrk esa izf'kf{kr fd, tk jgs fo|k£Fk;ksa ds

laca/ esa if'pe caxky LokLF; foKku fo'ofo|ky;] dksydkrk }kjk

vizSy] 2011 esa vFkok mlds ckn iznku dh xbZ gks)A

^^ekLVj vkWiQ ltZjh** (izlwfr ,oa L=kh jksx foKku)

,e,l (vkschth)

(;g ,d ekU;rkizkIr fpfdRlk vgZrk gksxh tc ;g dek.M gkWLihVy]

dksydkrk esa izf'kf{kr fd, tk jgs fo|k£Fk;ksa ds laca/ esa if'pe

caxky LokLF; foKku fo'ofo|ky;] dksydkrk }kjk ebZ] 2011 esa

vFkok mlds ckn iznku dh xbZ gks)A

1834

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

lHkh ds fy, fVIi.kh %

1- LukrdksÙkj ikB~;Øe ds fy, Lohd`r ekU;rk 5 o"kZ dh vf/dre vof/ ds fy, gksxh ftlds ckn bldh iqujh{kk dh tk,xhA

2. mi&/kjk 4 esa visf{kr vuqlkj ekU;rk dks le; ij uohdj.k ugha djkus ds iQyLo:i lacaf/r LukrdksÙkj ikB;Øeksa esa

fujiokn :i ls nkf[kyk can gks tk,xk A

¹la- ;w- 12012@87@2011&,e bZ (ih&II)]

vfurk f=kikBh] voj lfpo

New Delhi, the 23rd November, 2011

S.O. 804.—In exercise of the powers conferred by sub-section (2) of Section 11 of the Indian Medical Council

Act, 1956 (102 of 1956), the Central Government, after consulting the Medical Council of India hereby, makes the

following further amendments in the First Schedule to the said Act, due to change of nomenclature of the qualification

namely :—

In the said Schedule —

(a) against ‘‘ University of Kashmir’’ under the heading ‘Recognized Medical Qualification’ [hereinafter referred

to as column (2)] , after the last entry and entry relating thereto under the heading ‘Abbreviation for Registration’

[hereinafter referred to as column (3) ] the following shall be inserted namely :—

‘‘Diploma in Gynaecology & Obstetrics’’

DGO

(This shall be a recognized medical qualification when granted by

University of Kashmir in respect of the students being trained at

Govt. Medical College, Srinagar, Jammu & Kashmir on or after, 1998).

(b) against ‘‘ Amrita Vishwa Vidyapeetham University , Coimbatore’’ under the heading ‘Recognized Medical

Qualification’ [hereinafter referred to as column (2)] , after the last entry and entry relating thereto under the heading

‘Abbreviation for Registration’[hereinafter referred to as column (3) ] the following shall be inserted namely :—

‘‘Master of Surgery (Ophthalmology)’’

MS (Ophthalmology)

(This shall be a recognized medical qualification when granted by

Amrita Vishwa Vidyapeetham University, Coimbatore in respect of

students being trained at Amrita School of Medicine, Kochi, Kerala

on or after May, 2011).

‘‘Doctor of Medicine (Anaesthesia)’’

MD (Anaesthesia)

(This shall be a recognized medical qualification when granted by

Amrita Vishwa Vidyapeetham University, Coimbatore in respect of

students being trained at Amrita School of Medicine, Kochi, Kerala

on or after May, 2011).

as column (2)] , after the last entry and entry relating thereto under the heading ‘Abbreviation for Registration’ [hereinafter

referred to as column (3)] the following shall be inserted namely :—

‘‘Master of Surgery (Ear, Nose & Throat)’’

MS (ENT)

(This shall be a recognized medical qualification when granted by

Punjab University, in respect of students being trained at Govt.

Medical College, Chandigarh on or after May, 2011).

(d) against ‘‘ Rajasthan University of Health Sciences, Jaipur’’ under the heading ‘Recognized Medical

Qualification’ [hereinafter referred to as column (2)], after the last entry and entry relating thereto under the heading

‘Abbreviation for Registration’ [hereinafter referred to as column (3)] the following shall be inserted namely :—

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

1835

‘‘Doctor of Medicine (Dermatology, Venerology &

MD (DVL)

Leprosy)’’

(This shall be a recognized medical qualification when granted by

Rajasthan University of health Sciences, Jaipur in respect of

students being trained at Sardar Patel Medical College, Bikaner,

Rajasthan on or after June, 2011).

(e) against ‘‘The Tamilnadu Dr. MGR Medical University Chennai ’’ under the heading ‘Recognized Medical

Qualification’ [hereinafter referred to as column (2)] , after the last entry and entry relating thereto under the heading

‘Abbreviation for Registration’ [hereinafter referred to as column (3)] the following shall be inserted namely :—

‘‘Doctor of Medicine (Anaesthesia)’’

MD (Anaesthesia)

(This shall be a recognized medical qualification when granted by

The Tamilnadu Dr. MGR Medical University Chennai in respect of

students being trained at Chengalpattu Medical College,

Chengalpattu Tamil Nadu on or after May, 2010).

‘‘Diploma in Tuberculosis & Chest Diseases’’

DTCD

(This shall be a recognized medical qualification when granted by

The Tamilnadu Dr. MGR Medical University Chennai in respect of

students being trained at PSG Institute of Medical Sciences &

Reserch, Coimbatore on or after May, 2011).

(f) against ‘‘ Sri Balaji Vidyapeeth University, Pondicherry ’’ under the heading ‘Recognized Medical Qualification’

[hereinafter referred to as column (2)] , after the last entry and entry relating thereto under the heading ‘Abbreviation for

Registration’ [hereinafter referred to as column (3)] the following shall be inserted namely :—

‘‘Doctor of Medicine (Anaesthesia)’’

MD (Anaesthesia)

(This shall be a recognized medical qualification when granted by

Sri Balaji Vidyapeeth University Pondicherry in respect of students

being trained at Mahatma Gandhi Medical College & Research

Institute Pondicherry on or after April, 2011).

(g) against ‘‘ Vinayaka Mission’s University Salem, Tamilnadu ’’ under the heading ‘Recognized Medical

Qualification’ [hereinafter referred to as column (2)] , after the last entry and entry relating thereto under the heading

‘Abbreviation for Registration’ [hereinafter referred to as column (3)] the following shall be inserted namely :—

‘‘Diploma in Orthopaedics’’

D. Ortho.

(This shall be a recognized medical qualification when granted by

Vinayaka Mission’s University, Salem, Tamilnadu in respect of

students being trained at Vinayaka Mission’s Kirupananda Variyar

Medical College, Salem, Tamilnadu on or after May, 2011).

(h) against ‘‘ The West Bengal University of Health Sciences, Kolkata ’’ under the heading ‘Recognized Medical

Qualification’ [hereinafter referred to as column (2)] , after the last entry and entry relating thereto under the heading

‘Abbreviation for Registration’ [hereinafter referred to as column (3)], the following shall be inserted namely :—

‘‘Doctor of Medicine (Anaesthesia)’’

MD (Anaesthesia)

(This shall be a recognized medical qualification when granted by

The West Bengal University of Health Sciences, Kolkata in respect

of students being trained at Calcutta National Medical College,

Kolkata on or after April, 2011).

‘‘Master of Surgery (Obstetrics & Gynaecology)’’

MS (OBG)

(This shall be a recognized medical qualification when granted by

The West Bengal University of Health Sciences, Kolkata in respect

of students being trained at Command Hospital, Kolkata on or after

May, 2011).

Note to all :

1. The recognition so granted to a Postgraduate Course shall be for a Maximum period of 5 years, upon which it

shall have to be renewed.

2. Failure to seek timely renewal of recognition as required in sub -clause 4 shall invariably result in stoppage of

admissions to the concerned Postgraduate Course.

[ No. U 12012/87/2011-ME (P-II)]

ANITA TRIPATHI, Under Secy.

1836

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

ubZ fnYyh] 2 iQjojh] 2012

dk- vk- 805-—dsUæh; ljdkj] Hkkjrh; fpfdRlk ifj"kn~ vf/fu;e] 1956 (1956 dk 102) dh /kjk 11 dh mi&/kjk (2) }kjk

iznÙk 'kfDr;ksa dk iz;ksx djrs gq,] Hkkjrh; vk;qfoZKku ifj"kn~ ls ijke'kZ djus ds ckn] mDr vf/fu;e dh çFke vuqlwph esa fuEufyf[kr vkSj

la'kks/u djrh gS] vFkkZr~ %—

mDr vuqlwph esa —

(d) ^^jkuh nqxkZorh fo'ofo|ky;] eè; izns'k** ds le{k 'kh"kZd ^ekU;rkizkIr fpfdRlk vgZrk* ¹blds ckn dkWye (2) ds :i esa

lan£Hkrº ds vUrxZr 'kh"kZd ¶iathdj.k ds fy, la{ksi.k¸ ¹blds ckn dkWye (3) ds :i esa lan£Hkrº ds vUrxZr vafre izfof"V ,oa mlls

lacaf/r çfof"V ds ckn fuEufyf[kr var%LFkkfir fd;k tk,xk] vFkkZr %—

(2)

(3)

¶MkDVj vkWiQ esfMflu (fofdj.k fpfdRlk)¸

,e-Mh- (fofdj.k fpfdRlk)

(;g ,d ekU;rkçkIr fpfdRlk vgZrk gksxh tc ;g

usrkth lqHkk"k pUæ cksl esfMdy dkWyst] tcyiqj] eè;

çns'k esa izf'kf{kr fd, tk jgs fo|kfFkZ;ksa ds ckjs esa jkuh

nqxkZorh fo'ofo|ky;] eè; çns'k }kjk 1996 esa ;k mlds

mijkUr iznku dh xbZ gks) A

lHkh ds fy, fVIi.kh % 1- LukrdksÙkj ikB~;Øe dks çnku dh xbZ ,slh ekU;rk dh vf/dre vof/ 5 o"kks± ds fy, gksxh ftlds mijkar

bldk uohdj.k djkuk gksxk A

2- ekU;rk dks mi&[kaM 4 dh vko';drk ds vuqlkj le; ij uohdj.k u djk;s tkus ij lacaf/r LukrdksÙkj

ikB~;Øe esa ços'k fujiokn :i ls can gks tk,axs A

¹la- ;w-12012@8@2012&,e bZ (ih&II)º

vfurk f=kikBh] voj lfpo

New Delhi, the 2nd February, 2012

S.O. 805.—In exercise of the powers conferred by sub-section (2) of Section 11 of the Indian Medical Council Act,

1956 (102 of 1956), the Central Government, after consulting the Medical Council of India, hereby makes the following

further amendments in the First Schedule to the said Act, namely :—

In the said Schedule—

(a) against ‘‘Rani Durgawati Vishwavidhalaya, Madhya Pradesh’’ under the heading ‘Recognised Medical

Qualification’ [hereinafter referred to as column (2)], after the last entry and entry relating thereto under the heading

‘Abbreviation for Registration’ [hereinafter referred to as column (3)], the following shall be inserted, namely :—

(2)

(3)

‘‘Doctor of Medicine (Radiotherapy)’’

MD (Radiotherapy)

(This shall be a recognized medical qualification when

granted by Rani Durgawati Vishwavidhalaya, Madhya

Pradesh in respect of students being trained at Netaji

Subhash Chandra Bose Medical College, Jabalpur, Madhya

Pradesh on or after, 1996).

Note to all : 1. The recognition so granted to a Postgraduate Course shall be for a maximum period of 5 years, upon which

it shall have to be renewed.

2. Failure to seek timely renewal of recognition as required in sub-clause 4 shall invariably result in stoppage

of admissions to the concerned Postgraduate Course.

[No. U. 12012/8/2012-ME (P-II)]

ANITA TRIPATHI, Under Secy.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

1837

oL=k ea=kky;

ubZ fnYyh] 31 tuojh] 2012

dk-vk- 806-—dsUæh; ljdkj] la?k ds 'kkldh; ç;kstuksa ds fy, jktHkk"kk fu;e] 1976 ds fu;e 10 ds mi&fu;e (4) ds

vuqlj.k esa] oL=k ea=kky; ds varxZr vkus okys fuEufyf[kr dk;kZy;ksa dks ftlesa 80% ls vf/d deZpkfj;ksa us fganh dk dk;Zlk/d Kku

çkIr dj fy;k gS] vf/lwfpr djrh gS %&

1- cqudj lsok dsUnz] Hkkjr uxj] fnYyh A

2- cqudj lsok dsUnz] vla/ jksM] dPpk dSai] ikuhir A

3- cqudj lsok dsUnz] eaxy ikaMs uxj] Ldhe ua- 1] fo'ofo|ky; jksM] esjB] mRrj çns'k A

4- cqudj lsok dsUnz] cjkjh] Hkkxyiqj] fcgkj A

5- cqudj lsok dsUnz] pkSdk?kkV] okjk.klh] mÙkj çns'k A

6- cqudj lsok dsUnz] dke/suq de£'k;y dEiySDl] flfoy ykbal] vtesj jksM] t;iqj A

7- cqudj lsok dsUnz] 15&,] ekek ijekuan ekxZ] vksisjk gkml] eqacbZ A

8- cqudj lsok dsUnz] igyk ekyk] ubZ lfpoky; bekjr] flfoy ykbal] ukxiqj A

9- Hkkjrh; gFkdj?kk çkS|ksfxdh laLFkku] jk/kÑ".kiqje] xzke pkS[kk] tks/iqj] jktLFkku A

10- jk"Vªh; gLrf'kYi ,oa gFkdj?kk laxzgky;] çxfr eSnku] ubzZ fnYyh A

¹iQk- la- bZ&11016@1@2011&fganhº

lqu;uk rksej] la;qDr lfpo

MINISTRY OF TEXTILES

New Delhi, the 31st January, 2012

S.O. 806.—In pursuance of sub-rule ( 4) of Rule 10 of the Official Languages (Use for the Official purpose of the

Union) Rules, 1976, the Central Government, hereby, notifies the following offices of the Ministry of Textiles, more than 80%

staff whereof have acquired working knowledge of Hindi:—

1. Weavers Service Centre, Bharat Nagar, Delhi.

2. Weavers Service Centre, Asandh Road, Kachcha Camp, Panipat.

3. Weavers Service Centre, Mangal Pandey Nagar, Scheme No.1, University Road, Meerut, Uttar Pradesh.

4. Weavers Service Centre, Barari, Bhagalpur, Bihar.

5. Weavers Service Centre, Choukaghat, Varanasi, Uttar Pradesh.

6. Weavers Service Centre, Kamdhenu Commercial Complex, Civil Lines, Ajmer Road, Jaipur.

7. Weavers Service Centre, 15-A, Mama Parmanand Marg, Opera House, Mumbai.

8. Weavers Service Centre, Pahala Mala, New Sachivalaya Building, Civil Lines, Nagpur.

9. Indian Institute of Handloom Technology, Radhakrishnapuram, Village Choukha, Jodhpur, Rajasthan.

10. National Handicrafts and Handlooms Museum, Pragati Maidan, New Delhi.

[F. No. E-11016/1/2011-Hindi]

SUNAINA TOMAR, Jt. Secy.

fo|qr ea=kky;

ubZ fnYyh] 17 iQjojh] 2012

dk-vk- 807-—fnukad 17&8&2006 dks vf/lwfpr eq[; oS|qr fujh{kd ,oa oS|qr fujh{kd dh vgZrk 'kfDr ,oa dk;Z fu;ekoyh]

2006 ds lkFk ifBr fo|qr vf/fu;e] 2003 (2003 dk 36) dh /kjk 162 dh mi&/kjk (1) ds }kjk çnÙk 'kfDr;ksa dk ç;ksx djrs gq,]

dsUnz] ljdkj ,rn~}kjk mi;qZDr fu;e esa mfYyf[kr vgZrk ,oa 'krk±s ds vè;/hu] fnYyh eSVªks jsy dkjiksjs'ku fyfeVsM] ubZ fnYyh ds

fuEufyf[kr vf/dkfj;ksa dks Mh,evkjlh esa muds dk;Zdky ds iwjk gksus rd eq[; oS|qr fujh{kd@oS|qr fujh{kd ds :i esa fu;qDr djrh

gS—

1838

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

Ø- la- vf/dkjh dk uke

inuke

vgZrk

ds in ij fu;qfDr

1- Jh ,l-lh- ftUny

eq[; oS|qr vfHk;ark

oS|qr bathfu;fjax esa ch,llh (vkWulZ)

eq[; oS|qr fujh{kd

2- Jh vks-,p- ikaMs

eq[; egkçca/d

ch-bZ (oS|qr)

eq[; oS|qr fujh{kd

3- Jh egsUæ dqekj

eq[; oS|qr vfHk;ark

ch,llh bathfu;fjax (oS|qr)

eq[; oS|qr fujh{kd

4- Jh ,-ds- flag

eq[; oS|qr vfHk;ark

ch Vsd- (oS|qr)

eq[; oS|qr fujh{kd

5- Jh ,e-ds- fla?ky

eq[; oS|qr vfHk;ark

ch-bZ- (vkWulZ) bysfDVªdy ,oa

eq[; oS|qr fujh{kd

bysDVªkWfuDl

6- Jh lat; dqekj

la;qDr egkçca/d] oS|qr

ch-bZ (oS|qr)

oS|qr fujh{kd

7- Jherh fot;k y{eh

mi eq[; oS|qr vfHk;ark

ch-bZ (oS|qr)

oS|qr fujh{kd

8- Jh Mh-,l- ijekj

mi eq[; oS|qr vfHk;ark

ch- Vsd (oS|qr)

oS|qr fujh{kd

9- Jh eqds'k o/ok

mi egkçca/d@oS|qr

ch-bZ (oS|qr)

oS|qr fujh{kd

mi;qZDr vf/dkjh] dsUæh; fo|qr çkf/dj.k (lqj{kk ,oa fo|qr vkiw£r ls lacaf/r mik;) fofu;e] 2010 esa nh xbZ çfØ;k ds

vuqlkj] Mh,evkjlh ds çHkko okys {ks=kksa ds Hkhrj oS|qr dk;ks±] oS|qr laLFkkiukvksa vkSj oS|qr jksfyax LVkWd çpkyuksa ds laca/ esa vFkok

Mh,evkjlh ds fu;a=k.k/hu@Mh,evkjlh ls lacaf/r dk;ks± rFkk lHkh oS|qr laLFkkiukvksa ds laca/ esa viuh&viuh 'kfDr;ksa dk ç;ksx djsaxs vkSj

vius&vius dk;ks± dk fu"iknu djsaxs A

Mh,evkjlh ;g lqfuf'pr djsxk fd eq[; oS|qr fujh{kd@oS|qr fujh{kd ds :i esa fu;qDr vf/dkjh Mh,evkjlh esa mudks lkSais

x, dk;Z ds laca/ esa oS|qr fujh{kd ugha gksaxs A

oS|qr fujh{kd ds :i esa fu;qDr O;fDr og çf'k{k.k çkIr djsaxs tks dsUnz ljdkj bl mís'; ds fy, vko';d le>s vkSj ;g

çf'k{k.k ljdkj dh larqf"V ds Lrj rd iwjk fd;k tk,xk A

¹iQk- la- 42@3@2010&vkj ,aM vkjº

T;ksfr vjksM+k] la;qDr lfpo

MINISTRY OF POWER

New Delhi, the 17th February, 2012

S.O. 807.—In exercise of the powers conferred by sub-section (1) of Section 162 of the Electricity Act, 2003 (36 of

2003) read with qualification, power and function of Chief Electrical Inspector and Electrical Inspectors Rules, 2006 notified

on 17-8-2006, the Central Government hereby appoints following Officers of Delhi Metro Rail Corporation Ltd., New Delhi

as Chief Electrical Inspector/Electrical Inspector till their tenure in DMRC, subject to the qualification and condition

mentioned in above Rule :

Sl. Name of the

Designation

Qualification

Appointed as

No. Officers

1 2

1. Sh. S.C. Jindal

Chief Electrical Engineer

B.Sc. Engg (Hons) in Electrical

Chief Electrical Inspector

Engineering

2. Sh. O.H. Pande

Cheif General Manager

B.E (Elect)

Chief Electrical Inspector

3. Sh. Mahendra Kumar

Chief Electrical Engineer

B.Sc. Engineering (Elect)

Chief Electrical Inspector

4. Sh. A.K. Singh

Chief Electrical Engineer

B.Tech (Elect)

Chief Electrical Inspector

5. Sh. M.K. Singhal

Chief Electrical Engineer

B.E.(Hons.) Electrical &

Chief Electrical Inspector

Electronics

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

1839

6. Sh. Sanjay Kumar

Joint Gen. Manager,

B.E. (Elect)

Electrical Inspector

Electrical

7. Smt. Vijaya Laxmi

Dy. Chief Electrical Engineer B.E. (Electrical)

Electrical Inspector

8. Sh. D.S. Parmar

Dy. Chief Electrical Engineer B.Tech (Elect)

Electrical Inspector

9. Sh. Mukesh Wadhwa Dy. Gen. Manager/Electrical

B.E. (Elect)

Electrical Inspector

The above mentioned officers shall exercise the powers and perform their respective functions in respect of

electrical works, electrical installations and electrical rolling stock in operation within the areas occupied by the

DMRC or in respect of works and all electrical installations under the control of DMRC/belonging to DMRC as per the

procedure provided in Central Electricity Authority (Measures relating to Safety and Electricity Supply) Regulations,

2010.

DMRC will ensure that the officers appointed as Chief Electrical Inspectors/Electrical Inspectors will not be

Electrical Inspector in respect of the work assigned to them in DMRC.

The person appointed as Electrical Inspector shall undergo such training as the Central Government may consider

it necessary for the purpose and such training shall be completed to the satisfaction of the Government.

[F. No. 42/3/2010-R&R]

JYOTI ARORA, Jt. Secy.

dks;yk ea=kky;

ubZ fnYyh] 23 iQjojh] 2012

dk-vk- 808-—dsUæh; ljdkj us dks;yk /kjd {ks=k (vtZu vkSj fodkl) vf/fu;e] 1957 (1957 dk 20) (ftls blesa i'pkr~

mDr vf/fu;e dgk x;k gS) dh /kjk 4 dh mi&/kjk (1) ds v/hu Hkkjr ljdkj esa dks;yk ea=kky; ds }kjk tkjh dh xbZ vf/lwpuk la[;k

dk-vk- 2555] rkjh[k 8 vDrwcj] 2010] tks Hkkjr ds jkti=k ds Hkkx II] [kaM 3] mi&[kaM (ii)] rkjh[k 16 vDrwcj] 2010 esa çdkf'kr dh

xbZ Fkh] ml vf/lwpuk ls layXu vuqlwph esa fofu£n"V ifj{ks=k dh Hkwfe esa ftldk eki 328-056 gsDVj (yxHkx) ;k 810-63 ,dM+ (yxHkx)

gS] dks;ys dk iwosZ{k.k djus ds vius vk'k; dh lwpuk nh Fkh_

vkSj] dsUæh; ljdkj dk ;g lek/ku gks x;k gS fd bl vf/lwpuk ls layXu vuqlwph esa fufgr mDr Hkwfe ds Hkkx esa dks;yk

vfHkçkIr gS_

vr%] dsUæh; ljdkj] dks;yk /kjd {ks=k (vtZu vkSj fodkl) vf/fu;e] 1957 dh /kjk 7 dh mi&/kjk (1) }kjk çnÙk 'kfDr;ksa

dk ç;ksx djrs gq, blls layXu vuqlwph esa o£.kr 327-862 gsDVj (yxHkx) ;k 810-14 ,dM+ (yxHkx) eki dh mDr Hkwfe dk vtZu djus

ds vius vk'k; dh lwpuk nsrh gS A

fVIi.k 1 % bl vf/lwpuk ds v/hu vkus okys {ks=k ds js[kkad la[;k ,lbZlh,y@ch,lih@lhth,e(ih,yth)@Hkwfe@412] rkjh[k

26 flrEcj] 2011 dk fujh{k.k dysDVj] ftyk&'kgMksy (eè; çns'k) ds dk;kZy; esa ;k dks;yk fu;a=kd] 1] dkmafly gkml

LVªhV] dksydkrk&700001 ds dk;kZy; esa ;k lkmFk bZLVuZ dksyiQhYM~l fyfeVsM (jktLo vuqHkkx) lhir jksM] fcykliqj&495006

(NRrhlx<+) ds dk;kZy; esa fd;k tk ldrk gS A

fVIi.k 2 % mDr vf/fu;e dh /kjk 8 ds mica/ksa dh vksj è;ku vkÑ"V fd;k tkrk gS] ftlesa fuEufyf[kr mica/ gSa A

vtZu ds ckcr~ vkifÙk;k¡ %—

^^8(1) dksbZ O;fDr tks fdlh Hkwfe esa ftldh ckcr~ /kjk 7(1) ds v/hu vf/lwpuk fudkyh xbZ gS] fgrc¼ gS] vf/lwpuk ds fudkys tkus

ls rhl fnu ds Hkhrj lEiw.kZ Hkwfe ;k mlds fdlh Hkkx ;k ,slh Hkwfe esa ;k ml ij ds fdUgha vf/dkjksa dk vtZu fd, tkus ds ckjs esa vkifÙk

dj ldsxk A

Li"Vhdj.k]—

(1) bl /kjk ds vUrxZr ;g vkifÙk ugha ekuh tk,xh fd dksbZ O;fDr fdlh Hkwfe esa dks;yk mRiknu ds fy, Loa; [kuu lafØ;k,a djuk

pkgrk gS vkSj ,slh lafØ;k,a dsUæh; ljdkj ;k fdlh vU; O;fDr dks ugha djuh pkfg, A

1 2

1840

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

(2) mi&/kjk (1) ds v/hu çR;sd vkifÙk l{ke vf/dkjh dks fyf[kr :i esa dh tk,xh vkSj l{ke vf/dkjh] vkifÙkdrkZ dks Loa; lqus

tkus] fof/ O;olk;h }kjk lquokbZ dk volj nsxk vkSj ,slh lHkh vkifÙk;ksa dks lquus ds i'pkr~ vkSj ,slh vfrfjDr tk¡p] ;fn dksbZ gks] djus

ds i'pkr~] tks og vko';d le>rk gS] og ;k rks /kjk 7 dh mi&/kjk (1) ds v/hu vf/lwfpr Hkwfe dk ;k ,slh Hkwfe esa ;k ml ij ds

vf/dkjksa ds laca/ esa ,d fjiksVZ ;k ,slh Hkwfe ds fofHkUu VqdM+s ;k ,slh Hkwfe esa ;k ml ij ds vf/dkjksa ds laca/ esa vkifÙk;ksa ij viuh

fliQkfj'kksa vkSj mlds }kjk dh xbZ dk;Zokgh ds vfHkys[k lfgr fofHkÂ fjiksVZ dsUæh; ljdkj dks mlds fofu'p; ds fy, nsxk A

(3) bl /kjk ds ç;kstuksa ds fy, og O;fDr fdlh Hkwfe esa fgrc¼ le>k tk,xk tks çfrdj esa fgr dk nkok djus dk gdnkj gksxk]

;fn Hkwfe ;k fdlh ,slh Hkwfe esa ;k ml ij ds vf/dkj bl vf/fu;e ds v/hu v£tr dj fy, tkrs gSa A¸

fVIi.k 3 % dsUæh; ljdkj us dks;yk fu;a=kd] 1] dkmafly gkml LVªhV] dksydkrk&700001 dks Hkkjr ds jkti=k] Hkkx II] [kaM 3]

mi&[kaM (ii)] rkjh[k 4 vçSy] 1987 esa çdkf'kr vf/lwpuk la[;kad dk-vk- 905] rkjh[k 20 ekpZ] 1987 mDr vf/fu;e

dh /kjk 3 ds v/hu l{ke çkf/dkjh fu;qDr fd;k gS A

vuqlwph

nkeuh Hkwfexr [kku Cykd] lksgkxiqj {ks=k]

ftyk&'kgMksy (eè; çns'k)

(js[kkad la[;k ,lbZlh,y@ch,lih@lhth,e(ih,yth)@Hkwfe@412] rkjh[k 26 flrEcj] 2011)

1- Cykd&1 %

(d) jktLo Hkwfe %

Ø-la-

xzke dk uke

iVokjh gYdk

cankscLr la[;k

rglhy

ftyk

{ks=k gsDVj esa

fVIi.k

uEcj

[kjSgk

203

lksgkxiqj

'kgMksy

82-395

Hkkx

dUnksgk

lksgkxiqj

'kgMksy

28-365

Hkkx

dqy % 110-760 gsDVj (yxHkx) ;k 273-69 ,dM+ (yxHkx)

([k) jktLo ou Hkwfe %

Ø-la-

xzke dk uke

iVokjh gYdk

cankscLr la[;k

rglhy

ftyk

{ks=k gsDVj esa

fVIi.k

uEcj

[kjSgk

203

lksgkxiqj

'kgMksy

0-182

Hkkx

dqy % 0-182 gsDVj (yxHkx) ;k 0-45 ,dM+ (yxHkx)

mi ;ksx % 100-942 gsDVj (yxHkx) ;k 274-14 ,dM+ (yxHkx)

2- Cykd&2 %

(d) jktLo Hkwfe %

Ø-la-

xzke dk uke

iVokjh gYdk

cankscLr la[;k

rglhy

ftyk

{ks=k gsDVj esa

fVIi.k

uEcj

dUnksgk

lksgkxiqj

'kgMksy

184-145

Hkkx

/euhdyk

469

lksgkxiqj

'kgMksy

8-015

Hkkx

/euh[kqnZ

468

lksgkxiqj

'kgMksy

8-448

Hkkx

dqy % 200-608 gsDVj (yxHkx) ;k 495-70 ,dM+ (yxHkx)

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

1841

([k) jktLo ou Hkwfe %

Ø-la-

xzke dk uke

iVokjh gYdk

cankscLr la[;k

rglhy

ftyk

{ks=k gsDVj esa

fVIi.k

uEcj

dUnksgk

lksgkxiqj

'kgMksy

12-901

Hkkx

/euh[kqnZ

468

lksgkxiqj

'kgMksy

3-411

Hkkx

dqy % 16-312 gsDVj (yxHkx) ;k 40-30 ,dM+ (yxHkx)

mi ;ksx % 216-920 gsDVj (yxHkx) ;k 536-00 ,dM+ (yxHkx)

dqy jktLo Hkwfe % 110-760 + 200-608 = 311-368 gsDVj (yxHkx) ;k 769-39 ,dM+ (yxHkx)

dqy jktLo ou Hkwfe% 0-182 + 16-312 = 16-494 gsDVj (yxHkx) ;k 40-75 ,dM+ (yxHkx)

dqy ;ksx (Cykd 1 + 2)% 110-942 + 216-920 = 327-862 gsDVj (yxHkx)

;k 274-14 + 536 -00 = 810-14 ,dM+ (yxHkx)

1- xzke [kSjgk (Hkkx) esa v£tr fd, tkus okys IykV la[;k %— 55(Hkkx)] 215(Hkkx)] 216] 217] 240] 241(Hkkx)] 243(Hkkx)]

244 ls 268] 269(Hkkx)] 270(Hkkx)] 271(Hkkx)] 299(Hkkx)] 303(Hkkx)] 304(Hkkx)] 316 ls 326] 327(Hkkx)] 328 ls 339] 340(Hkkx)]

341(Hkkx)] 342 ls 352] 353(Hkkx)] 354(Hkkx)] 355(Hkkx)] 356(Hkkx)] 357(Hkkx)] 398(Hkkx)] 441 (Hkkx)] 442] 443(Hkkx)] 446

ls 468] 469(Hkkx)] 470(Hkkx)] 472(Hkkx)] 473(Hkkx)] 474] 475(Hkkx)] 476 ls 506] 507(Hkkx)] 508 ls 519] 1129] 1130(Hkkx)A

2- xzke dUnksgk (Hkkx) esa v£tr fd, tkus okys IykV la[;k %— 7(Hkkx)] 8 ls 18] 19(Hkkx)] 20(Hkkx)] 21 (Hkkx)] 22] 23]

24(Hkkx)] 26(Hkkx)] 27 ls 32] 33(Hkkx) ls 40(Hkkx)] 41 ls 103] 104(Hkkx)] 105(Hkkx)] 106] 107(Hkkx)] 108 ls 115] 116(Hkkx)]

117(Hkkx)] 118(Hkkx)] 128(Hkkx)] 129@1(Hkkx)] 129@2] 130] 132(Hkkx)] 133] 143 ls 148] 151 ls 194] 216(Hkkx)] 217(Hkkx)]

218(Hkkx)] 222(Hkkx)] 283 ls 310] 311(Hkkx)] 312] 320(Hkkx)] 324(Hkkx)] 325 ls 331] 334(Hkkx)] 335 ls 347] 348@1]

348@2(Hkkx)] 349] 350] 351(Hkkx)] 373(Hkkx) ls 377(Hkkx)] 378 ls 380] 381(Hkkx)] 382(Hkkx)] 387(Hkkx)] 388@1] 388@2(Hkkx)]

389] 390] 391@3 ls 391@8] 391@12 ls 391@14] 392(Hkkx)] 393(Hkkx)] 394 ls 401] 402(Hkkx)] 403(Hkkx)] 173@410] 115@411

(Hkkx)] 348@412 A

3- xzke /euhdyk (Hkkx) esa v£tr fd, tkus okys IykV la[;k %—106(Hkkx)] 107(Hkkx)] 132 ls 134] 135@1(Hkkx)]

135@2] 136(Hkkx) A

4- xzke /euh[kqnZ (Hkkx) esa v£tr fd, tkus okys IykV la[;k %—1 ls 7] 8(Hkkx) ls 11(Hkkx)] 38(Hkkx)] 40(Hkkx)] 4@165 A

lhek o.kZu %

Cykd&1 %

d&[k

js[kk xzke [kSjgk esa fcUnq ^^d** ls vkjaHk gksrh gS vkSj IykV la[;k 339] 319] 55 ds if'peh lhek ls gksrh gq, tkrh gS vkSj

ljiQk ukyk ds iwohZ fdukjs ij fcUnq ^^[k** ij feyrh gS A

[k&x

js[kk xzke [kSjgk ds IykV la[;k 55 ls gksdj IykV la[;k 317] 316] 323 ds mRrjh lhek ds lkFk&lkFk tkrh gqbZ IykV la[;k

304] 327] 269] 270] 271] 243] 241 ls gksdj xqtjrh gqbZ 240 ds mRrjh lhek ds lkFk&lkFk tkrh gS fiQj IykV la[;k 246

ls gksdj 217 dh mRrjh lhek ds lkFk& lkFk tkrh gqbZ IykV la[;k 215] 507 ls gksdj tkrh gS vkSj xzke [kSjgk&dUnksgk ds

lfEefyr lhek ij fcUnq ^^x** ij feyrh gS A

x&?k

js[kk xzke dUnksgk ds IykV la[;k 30] 31] 30] 14] 12] 11] 9] 8 ds if'peh lhek ds lkFk&lkFk tkrh gS] IykV la[;k 8] 7]

19 ds mRrjh lhek ds lkFk&lkFk tkrh gS vkSj fcUnq ^^?k** ij feyrh gS A

?k&Ä

js[kk xzke dUnksgk ds IykV la[;k 19] 20] 21] 24@1] 24@2] 26] 33] 107 ls gksdj IykV la[;k 106 ds iwohZ lhek ds lkFk&lkFk

tkrh gqbZ] IykV la[;k 105 ls gksdj xqtjrh gS fiQj IykV la[;k 115 ds iwohZ lhek ds lkFk&lkFk tkrh gqbZ] IykV la[;k 411]

116] 117] 118] 216] 217] 218] 222] 223] 322 ls xqtjrh gS vkSj xzke [kSjgk&dUnksgk ds lfEefyr lhek esa fcUnq ^^Ä** ij

feyrh gS A

1842

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

Ä&d

js[kk xzke [kSjgk vkSj IykV la[;k 517] 519] 446] ds nf{k.kh lhek lkFk&lkFk tkrh gqbZ vkSj IykV la[;k 443 ls gksdj xqtjrh

gS] IykV la[;k 441 ds if'peh lhek ds lkFk&lkFk tkrh gqbZ vkSj IykV la[;k 470] 469] 472] 473] 475] 398] 1130] 355]

354] 353] 356] 357] 341] 340 ls xqtjrh gS fiQj IykV la[;k 340] 339 ds nf{k.kh lhek ds lkFk&lkFk tkrh gS vkSj vkjafHkd

fcUnq ^^d** ij feyrh gS A

Cykd&2 %

d&1&[k&1 js[kk xzke dUnksgk esa fcUnq ^^d&1** ls vkjaHk gksrh gS vkSj IykV la[;k 324 ds if'peh lhek ds lkFk&lkFk tkrh gS vkSj ukyk

ds iwohZ fdukjs ij fcUnq ^^[k&1** ij feyrh gS A

[k&1&x&1& js[kk xzke dUnksgk esa IykV la[;k 324] 329] 330] 331] ds mRrjh lhek ds lkFk&lkFk tkrh gS vkSj IykV la[;k 324] 348@2]

?k&1

334] 320] 311 ls gksdj IykV la[;k 310] 287 ds if'peh lhek ds lkFk&lkFk tkrh gS] IykV la[;k 287] 286] 285 ds mRrjh

lhek ds lkFk&lkFk tkrh gS] IykV la[;k 284] 283] 192] 193] 194] 191] 152] 153 ds if'peh lhek ds lkFk&lkFk tkrh gS]

IykV la[;k 147 143] 133 ds nf{k.kh lhek ds lkFk&lkFk tkrh gqbZ vkSj IykV la[;k 132 ls gksdj xqtjrh gS fiQj 102 ds

nf{k.kh lhek ds lkFk&lkFk tkrh gS] IykV la[;k 130] 129@2 ds iwohZ lhek ds lkFk&lkFk tkrh gS] IykV la[;k 129@2] 129@1

ds nf{k.kh lhek ls gksrh gqbZ tkrh gS vkSj fcUnq ^^?k&1** ij feyrh gS A

?k&1&Ä&1 js[kk xzke dUnksgk esa IykV la[;k 129@1] 128] 105] 104] 100] 99] 98] 97] 33] 34] 35] 36] 37] 38] 40 ls xqtjrh gqbZ ukyk

ds nf{k.kh fdukjs esa fcUnq ^^Ä&1** ij feyrh gS A

Ä&1&p&1 js[kk xzke dUnksgk ds IykV la[;k 40] 41] 42] 56] 57] 58] 64] 65 ds mRrjh lhek ds lkFk&lkFk tkrh gS] IykV la[;k 65]

66] 164@1] 391@3 ds iwohZ lhek ds lkFk&lkFk tkrh gS fiQj xzke fNjgVh&/euh[kqnZ ds Hkkxr% lfEefyr lhek ls gksrh gqbZ tkrh

gS vkSj fcUnq ^^p&1** ij feyrh gS A

p&1&N&1 js[kk xzke /euh[kqnZ ds IykV la[;k 11] 10] 9] 38] 8 ] 38] 40 ls gksdj xzke dUnksgk esa ços'k dj IykV la[;k 393 ls gksdj

xzke /euhdyk esa ços'k djrh gS vkSj IykV la[;k 135@1] 136 ls gksrh gqbZ fcUnq ^^N&1** ij feyrh gS A

N&1&d&1 js[kk xzke /euhdyk ds IykV la[;k 136] 134] 133] 132 ds nf{k.kh lhek ds lkFk&lkFk tkrh gS vkSj IykV la[;k 107] 106

ls gksdj xzke dUnksgk esa ços'k djrh gS vkSj IykV la[;k 402] 403] 388@2] 387] 339] 381] 382] 377] 376] 375] 374] 373]

348@2] 351] 348@2 ls gksrh gqbZ vkjafHkd fcUnq ^^d&1** ij feyrh gS A

¹iQk- la- 43015@13@2010&ihvkjvkbZMCY;w&Iº

,- ds- nkl] voj lfpo

MINISTRY OF COAL

New Delhi, the 23rd February, 2012

S.O. 808.—Whereas, by the notification of the Government of India in the Ministry of Coal number S.O. 2555,

dated 8th October, 2010, issued under sub-section (1) of Section 4 of the Coal Bearing Areas (Acquisition and Development)

Act, 1957 (20 of 1957) (hereinafter referred to as the said Act) and published in the Gazette of India, Part II, Section 3,

Sub-section (ii), dated 16th October, 2010, the Central Government gave notice of its intention to prospect for coal in

328.056 hectares (approximately) or 810.63 acres (approximately) of the lands in the locality specified in the Schedule

annexed to that notification;

And, whereas the Central Government is satisfied that coal is obtainable in a part of the said lands prescribed in

the Schedule appended to this notification;

Now, therefore, in exercise of the powers conferred by sub-section (1) of Section 7 of the said Act, the Central

Government hereby gives notice of its intention to acquire the land measuring 327.862 hectares (approximately) or 810.14

acres (approximately) as Surface Rights in or over the said lands described in the schedule appended hereto:

Note 1 : The plan bearing number SECL/ BSP/ CGM(PLG)/ LAND/ 412, dated the 26th September, 2011 of the area covered

by this notification may be inspected in the Office of the Collector, Shahdol (Madhya Pradesh) or in the Office of

the Coal Controller, 1, Council House Street, Kolkata -700001 or in the Office of the South Eastern Coalfields

Limited (Revenue Section), Seepat Road, Bilaspur-495006 (Chhattisgarh).

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

1843

Note 2 : Attention is hereby invited to the provisions of Section 8 of the said Act which provides as follows:—

Objection to acquisition:

“8(1) Any person interested in any land in respect of which a notification under Section 7(1) has been issued, may, within

thirty days of the issue of the notification, object to the acquisition of the whole or any part of the land or any rights in or

over such land.

Explanation,—

(1 ) It shall not be an objection within the meaning of this section for any person to say that he himself desires to undertake

mining operation in the land for the production of coal and that such operation should not be undertaken by the Central

Government or by any other person.

(2) Every objection under sub-section (1) shall be made to the competent authority in writing, and the competent authority

shall give the objector an opportunity of being heard either in person or by a legal practitioner and shall, after hearing all

such objections and after making such further inquiry, if any, as he thinks necessary, either makes a report in respect of the

land which has been notified under sub-section (1) of Section 7 or of rights in or over such land, or make different reports

in respect of different parcels of such land or of rights in or over such land, to the Central Government, containing his

recommendations on the objections, together with the record of the proceedings held by him, for the decision of that

Government.

(3) For the purposes of this section, a person shall be deemed to be interested in land who would be entitled to claim an

interest in compensation if the land or any rights in or over such land were acquired under this Act.”

Note 3: The Coal Controller, 1, Council House Street, Kolkata -700001, has been appointed by the Central Government as

the competent authority under Section 3 of the said Act, vide notification number S.O. 905, dated the 20th March,

1987, published in Part II, Section 3, Sub-section (ii) of the Gazette of India, dated the 4th April, 1987.

SCHEDULE

Damni Underground Mine Block, Sohagpur Area

District-Shahdol, Madhya Pradesh

( Plan bearing number SECL/BSP/CGM(PLG)/LAND/412, dated the 26th September, 2011)

(SURFACE RIGHTS :

1. Block-1:

(A) Revenue Land:

Sl. No.

Name of Village

Patwari Halka

Bandobast

Tahsil

District

Area in hectares Remarks

Number

Khairaha

203

Sohagpur

Shahdol

82.395

Part

Kandoha

Sohagpur

Shahdol

28.365

Part

Total : 110.760 hectares (approximately) or 273.69 acres (approximately)

(B) Revenue Forest Land:

Sl. No.

Name of Village

Patwari Halka

Bandobast

Tahsil

District

Area in hectares Remarks

Number

Khairaha

203

Sohagpur

Shahdol

0.182

Part

Total : 0.182 hectares (approximately) or 0.45 acres (approximately)

Sub Total : 110.942 hectares (approximately)

or 274.14 acres (approximately)

1844

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

2. Block-2:

(A) Revenue Land:

Sl. No.

Name of Village

Patwari Halka

Bandobast

Tahsil

District

Area in hectares Remarks

Number

Kandoha

Sohagpur

Shahdol

184.145

Part

Dhamnikala

469

Sohagpur

Shahdol

8.015

Part

Dhamnikhurd

468

Sohagpur

Shahdol

8.448

Part

Total : 200.608 hectares (approximately) or 495.70 acres (approximately)

(B) Revenue Forest Land:

Sl. No.

Name of Village

Patwari Halka

Bandobast

Tahsil

District

Area in hectares Remarks

Number

Kandoha

Sohagpur

Shahdol

12.901

Part

Dhamnikhurd

468

Sohagpur

Shahdol

3.411

Part

Total : 16.312 hectares (approximately) or 40.30 acres (approximately)

Sub Total : 216.920 hectares (approximately)

or 536.00 acres (approximately)

Total Revenue land :— 110.760 + 200.608 = 311.368 hectares (approximatley)

or 769.39 acres (approximately)

Total Revenue Forest land :— 0.182 + 16.312 = 16.494 hectares (approximatley)

or 40.75 acres (approximatley)

Grand Total (Blocks 1+2):-110.942 + 216.920 hectares = 327.862 hectares (approximately)

or 274.14 + 536.00 acres = 810.14 acres (approximately)

1. Plot Numbers to be acquired in village Khairaha (Part): 55(P), 215(P), 216, 217, 240, 241(P), 243(P), 244 to 268, 269(P),

270(P), 271(P), 299(P), 303(P), 304(P), 316 to 326, 327(P), 328 to 339, 340(P), 341(P), 342 to 352, 353(P), 354(P), 355(P), 356(P),

357(P), 398(P), 441 (P), 442, 443(P), 446 to 468, 469(P), 470(P), 472(P), 473(P), 474, 475(P), 476 to 506, 507(P), 508 to 519, 1129,

1130(P).

2. Plot Numbers to be acquired in village Kandoha (Part): 7(P), 8 to 18, 19(P), 20(P), 21 (P), 22, 23, 24(P), 26(P), 27 to 32,

33(P) to 40(P), 41 to 103, 104(P), 105(P), 106, 107(P), 108 to 115, 116(P), 117(P), 118(P), 128(P), 129/1(P), 129/2, 130, 132(P),

133, 143 to 148, 151 to 194, 216(P), 217(P), 218(P), 222(P), 283 to 310, 311(P), 312, 320(P), 324(P), 325 to 331, 334(P), 335 to 347,

348/1, 348/2(P), 349, 350, 351 (P), 373(P) to 377(P), 378 to 380, 381 (P), 382(P), 387(P), 388/1, 388/2(P), 389, 390, 391/3 to

391/8, 391/12 to 391/14, 392(P), 393(P), 394 to 401, 402(P), 403(P), 173/410, 115/411 (P), 348/412.

3. Plot Numbers to be acquired in village Dhamnikala (Part): 106(P), 107(P), 132 to 134, 135/1(P), 135/2, 136(P).

4. Plot Numbers to be acquired in village Dhamnikhurd (Part): 1 to 7, 8(P) to 11 (P), 38(P), 40(P), 4/165.

Boundary Description:

Block-1 :

A-B

Line starts from point ‘A’ in village Khairaha and passes along western boundary of plot number 339, 319, 55 and

meets at point ‘B’ on the eastern bank of Sarpha Nullah.

B-C

Line passes in village Khairaha through plot number 55, along northern boundary of plot number 317,316,323,

through 304, 327, 269, 270, 271, 243, 241, along northern boundary of plot number 240, through 246, along

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

1845

northern boundary of plot number 217, through 215, 507 and meets at point ‘C’ on the common boundary of

villages Khairaha-Kandoha.

C-D

Line passes in village Kandoha along western boundary of plot number 30, 31, 30, 14, 12, 11, 9, 8, northern

boundary of plot number 8, 7, 19 and meets at point ‘D’.

D-E

Line passes in village Kandoha through plot number 19, 20, 21, 24/1, 24/2, 26, 33, 107, along eastern boundary of

plot number 106, through 105, along eastern boundary of plot number 115, through 411, 116, 117, 118, 216, 217,

218, 222, 223, 322 and meets at point “E” on the common boundary of villages Khairaha-Kandoha.

E-A

Line passes in village Khairaha and passes along southern boundary of plot number 517, 519, 446, through 443,

along western boundary of plot number 441, through 470, 469, 472, 473, 475, 398, 1130, 355, 354, 353, 356, 357, 341,

340, along southern boundary of plot number 340, 339 and meets at starting point ‘A’.

Block - 2:

A-1-B-1 Line starts from point ‘A-1’ in village Kandoha and passes along western boundary of plot number 324 and meets

at point ‘B-1’ on the eastern bank of Nullah.

B-1-C-1 Line passes in village Kandoha along northern boundary of plot number 324, 329, 330, 331, through 324, 348/2,

D-1

334, 320, 311, western boundary of plot number 310, 287, northern boundary of plot number 287, 286, 285, western

boundary of plot number 284, 283, 192, 193, 194, 191, 152, 153, southern boundary of plot number 147, 143, 133,

through 132, southern boundary of plot number 102, eastern boundary of plot number 130, 129/2, southern

boundary of plot number 129/2,129/1 and meets at point “D-1”.

D-1-E-1 Line passes in village Kandoha through plot number 129/1, 128, 105, 104, 100, 99, 98, 97, 33, 34, 35, 36, 37, 38, 40

and meets at point “E-1” on the southern bank of nullah.

E-1-F-1 Line passes in village Kandoha along northern boundary of plot number 40, 41, 42, 56, 57, 58, 64, 65, eastern

boundary of plot number 65, 66, 164/1, 391/3 then along partly common boundary of villages Chhirhiti-Dhamnikhurd

and meets at point “F-1” .

F-1-G-1 Line passes in village Dhamnikhurd through plot number 11, 10, 9, 38, 8, 38, 40 then enter in village Kandoha and

passes through 393 then enter in village Dhamnikala and passes through plot number 135/1, 136 and meets at

point “G-1”.

G-1-A-1 Line passes in village Dhamnikala along southern boundary of plot number 136, 134, 133, 132, through 107, 106

then enter in village Kandoha and passes through 402, 403, 388/2, 387, 339, 381, 382, 377, 376, 375, 374, 373,

348/2, 351, 348/2 and meets at starting point “A-1” .

[F. No. 43015/13/2010-PRIW-I]

A. K. DAS, Under Secy.

ubZ fnYyh] 24 iQjojh] 2012

dk-vk- 809-—dsUnzh; ljdkj dks ;g çrhr gksrk gS fd] blls mikc¼ vuqlwph esa o£.kr Hkwfe esa dks;yk vfHkçkIr fd, tkus dh

laHkkouk gS _

mDr vuqlwph esa of.kZr Hkwfe ds vUrxZr vkus okys {ks=k ds C;kSjs js[kkad la[;k ,lbZlh,y@ch,lih@th,e(ih,yth)@Hkwfe@416]

rkjh[k 4 uoEcj] 2011 dk fujh{k.k] dysDVj] 'kgMksy (eè; izns'k) ds dk;kZy; esa ;k dks;yk fu;a=kd] 1] dkmafly gkml LVªhV]

dksydkrk&700001 ds dk;kZy; esa ;k lkmFk bZLVuZ dksyiQhYM~l fyfeVsM (jktLo vuqHkkx)] lhir jksM] fcykliqj&495006 (NRrhlx<+) ds

dk;kZy; esa fd;k tk ldrk gS_

vr%] vc] dsUæh; ljdkj] dks;yk /kjd {ks=k (vtZu vkSj fodkl) vf/fu;e] 1957 (1957 dk 20) (ftls blesa blds i'pkr~

mDr vf/fu;e dgk x;k gS) dh /kjk 4 dh mi&/kjk (1) n~okjk çnRr 'kfDr;ksa dk ç;ksx djrs gq,] mDr vuqlwph esa o£.kr Hkwfe esa dks;ys

dk iwosZ{k.k djus ds vius vk'; dh lwpuk nsrh gS _

mDr vuqlwph esa fofgr Hkwfe esa fgrc¼ dksbZ O;fDr] bl vf/lwpuk ds jkti=k esa çdk'ku dh rkjh[k ls uCcs fnu ds Hkhrj]

Hkkjlk/d vf/dkjh ;k foHkkxkè;{k (jktLo)] lkmFk bZLVuZ dksyiQhYM~l fyfeVsM] lhir jksM] fcykliqj&495006 (NRrhlx<+) ds le{kµ

1846

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

(i) laiw.kZ Hkwfe ;k mlds fdlh Hkkx ds vtZu ;k ,slh Hkwfe esa ;k ml ij ds fdUgha vf/dkjksa ds izfr ij vk{ksi dj ldsxk_ ;k

(ii) Hkwfe esa ds çfrdj esa fdlh fgr dk ;k ,slh Hkwfe esa ;k ml ij ds fdUgha vf/dkjksa dk nkok dj ldsxk_ ;k

(iii) çHkkoghu gks xbZ iwosZ{k.k vuqKfIr;ksa] [kuu iV~Vksa ds v/hu v£tr fd;s tkus ij vf/dkjksa ds fy;s çfrdj dh ekax dj

ldsxk vkSj mDr vf/fu;e dh /kjk 13 dh mi&/kjk (7) esa fofu£"V Hkwfe ds dksjksa ls laxzg.k ;k vU; [kfut uewuksa rFkk

muds lE;d~ fo'ys"k.k dks rFkk fdlh vU; lqlaxr vfHkys[k ;k lkefxz;ksa dh fufeZfr ls lacaf/r lHkh ekufp=k] pkVZ vkSj

vU; nLrkost ifjnÙk dj ldsxk A

vuqlwph

flagiqj Cykd] lksgkxiqj {ks=k]

ftyk&'kgMksy] eè; çns'k

(js[kkad la[;k ,lbZlh,y@ch,lih@th,e(ih,yth)@Hkwfe@416] rkjh[k 4 uoEcj] 2011)

Ø-la-

xzke dk uke

iVokjh gYdk la[;k

rglhy dk uke

ftyk dk uke

{ks=kiQy gsDVj esa fVIif.k;ka

flagiqj

lksgkxiqj

'kgMksy

1377-903

laiw.kZ

iMefu;k [kqnZ

lksgkxiqj

'kgMksy

328-238

laiw.kZ

,sUrk>j

lksgkxiqj

'kgMksy

565-391

laiw.kZ

tks/iqj

lksgkxiqj

'kgMksy

791-794

laiw.kZ

uxeyk

lksgkxiqj

'kgMksy

182-714

Hkkx

mjgk

lksgkxiqj

'kgMksy

95-000

Hkkx

nw/h

lksgkxiqj

'kgMksy

589-977

laiw.kZ

iMfj;k

151

lksgkxiqj

'kgMksy

395-010

laiw.kZ

iMefu;k dyk

lksgkxiqj

'kgMksy

295-422

Hkkx

10-

ujxh

lksgkxiqj

'kgMksy

389-582

laiw.kZ

11-

feBkSjh

lksgkxiqj

'kgMksy

125-000

Hkkx

dqy % 5136-031 gsDVj (yxHkx)

;k 12691-13 ,dM+ (yxHkx)

lhek o.kZu %

d&[k

js[kk xzke tks/iqj&varjk ds lfEefyr lhek esa fcUnq ^d* ls vkjaHk gksrh gS vkSj xzke tks/iqj ds if'peh lhek] xzke nw/h ds if'peh

vkSj mRrjh lhek ls xqtjrh gqbZ fcUnq ^[k* ij feyrh gS A

[k&x

js[kk xzke mjgk ds Hkkxr% if'peh lhek ,oa xzke mjgk vkSj ijefu;kdyk ds eè; Hkkx ls xqtjrh gqbZ xzke ujxh ds mRrjh lhek

ls gksrh gqbZ fcUnq ^x* ij feyrh gS A

x&?k

js[kk xzke ujxh] iMfj;k ds iwohZ lhek vkSj xzke uxeyk ds Hkkxr% iwohZ lhek ls gksrh gqbZ fcUnq ^?k* ij feyrh gS A

?k&d

js[kk xzke uxeyk ds eè; Hkkx vkSj xzke flagiqj ds Hkkxr% nf{k.kh lhek] xzke feBkSjh ds mRrjh Hkkx] xzke tks/iqj ds nf{k.kh lhek

ls gksrh gqbZ vkjafHkd fcUnq ^d* ij feyrh gS A

¹iQk- la- 43015@18@2011&ihvkjvkbZMCY;w&Iº

,- ds- nkl] voj lfpo

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

1847

New Delhi, the 24th February, 2012

S.O. 809.—Whereas it appears to the Central Government that Coal is likely to be obtained from the lands in the

locality described in the Schedule annexed hereto;

And whereas, the plan bearing number SECL/BSP/ GM (PLG)/ LAND/ 416, dated the 4th November, 2011

containing details of the area of land described in the said Schedule may be inspected at the office of the Collector,

Shahdol (Madhya Pradesh) or at the office of the Coal Controller, 1, Council House Street, Kolkata-700001 or at the office

of the South Eastern Coalfields Limited (Revenue Section), Seepat Road, Bilaspur-495006 (Chhattisgarh);

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) (hereinafter referred to as the said Act), the Central Government

hereby gives notice of its intention to prospect for coal from lands described in the said Schedule;

Any person interested in the land described in the said Schedule, may—

(i) object to the acquisition of the whole or any part of the land, or of any rights in or over such land; or

(ii) claim an interest in compensation if the land or any rights in or over such land; or

(iii) seek compensation for prospecting licences ceasing to have effect, rights under mining lease being acquired,

and deliver all maps, charts and other documents relating to the land, collection from the land of cores or

other mineral samples and due analysis thereof and the preparation of any other relevant record or materials

referred to in sub-section (7) of Section 13 of the said Act,

to the Officer-In-Charge or Head of the Department (Revenue), South Eastern Coalfields Limited, Seepat Road,

Bilaspur-495006 (Chhattishgarh) within a period of ninety days from the date of publication of this notification in the

Official Gazette.

SCHEDULE

Singhpur Block, Sohagpur Area,

District-Shahdol, Madhya Pradesh.

(Plan bearing number SECLBSP/GM (PLG)/LAND/ 416, dated the 4th November, 2011)

S1.

Name of

Patwari Halka

Name of

Area (in hectares)

Remarks

No.

Village

Number

Tahsil

District

Singhpur

Sohagpur

Shahdol

1377.903

Full

Parmaniya Khurd

Sohagpur

Shahdol

328.238

Full

Aintajhar

Sohagpur

Shahdol

565.391

Full

Jodhpur

Sohagpur

Shahdol

791.794

Full

Nagmala

Sohagpur

Shahdol.

182.714

Part

Uraha

Sohagpur

Shahdol

95.000

Part

Dudhi

Sohagpur

Shahdol

589.977

Full

Padariya

151

Sohagpur

Shahdol

395.010

Full

Parmaniya Kala

Sohagpur

Shahdol

295.422

Part

10.

Nargi

Sohagpur

Shahdol

389.582

Full

11.

Mithaori

Sohagpur

Shahdol

125.000

Part

Total : 5136.031 hectares (approximately)

or 12691.13 acres (approximately)

1848

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

BOUNDARY DESCRIPTION

A-B

Line starts from point “A’ on the common boundary of villages Jodhpur-Antara and passes along western

boundary of village Jodhpur, western and northern boundary of village Dudhi and meets at point ‘B’ on the same

boundary.

B-C

Line passes along partly western boundary of village Uraha, through middle part of village Uraha, Parmania Kala,

along northern boundary of village Nargi and meets at point “C’.

C-D

Line passes along eastern boundary of village Nargi, Padaria, partly eastern boundary of village Nagmala and

meets at point “D’’.

D-A

Line passes through middle part of village Nagmala, along partly southern boundary of village Singhpur, through

northern part of village Mithaori, along southern boundary of village Jodhpur and meets at starting point “A’.

[F. No. 43015/18/2011-PRIW-I]

A. K. DAS, Under Secy.

isVªksfy;e vkSj çkÑfrd xSl ea=kky;

ubZ fnYyh] 24 iQjojh] 2012

dk-vk- 810-—Hkkjr ljdkj us isVªksfy;e vkSj [kfut ikbiykbu (Hkwfe esa mi;ksx ds vf/dkj dk vtZUk) vf/fu;e] 1962

(1962 dk 50) dh /kjk 2 ds [k.M (d) ds vuqlj.k esa eSllZ xsy (bafM;k) fyfeVsM }kjk ikbiykbu fcNkus ds fy;s mDr vf/fu;e ds

v/hu layXu lwph ds dkye (1) esa o£.kr O;fDr dks dkye (2) esa o£.kr {ks=k esa l{ke çkf/dkjh ds ÑR;ksa dk ikyu djus ds fy,

fu;qDr djrh gS A

vuqlwph

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vf/dkfjrk dk {ks=k

Jherh ehuk{kh flag] la;qDr dysDVj]

lEiw.kZ

eSllZ xsy (bafM;k) fyfeVsM esa çfrfu;qfDr ij

jktLFkku jkT;

¹iQk- la- ,y&14014@4@12&th-ih-º

,- xksLokeh] voj lfpo

MINISTRY OF PETROLEUM AND NATURAL GAS

New Delhi, the 24th February, 2012

S.O. 810.—Whereas, in pursuance of clause (a) of Section 2 of the Petroleum and Minerals Pipelines (Acquisition

of Right of User in Land) Act, 1962 (50 of 1962), the Government of India hereby authorizes the person mentioned in

column (1) of the schedule given below to perform the functions of the Competent Auhtority under the said Act for laying

pipelines by the said M/s. Gail (India) Limited in the Area mentioned in column (2) of the said schedule.

SCHEDULE

Name and Address of the Person

Area of Jurisdiction

Shrimati Meenakshi Singh,

Whole State of Rajasthan

Joint Collector.

On deputation basis to

M/s. GAIL (India) Limited,

[F. No. L-14014/4/12-G.P.]

A. GOSWAMI, Under Secy.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

1849

Je vkSj jkst+xkj ea=ky;

ubZ fnYyh] 18 tuojh] 2012

dkñvkñ- 811.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947

dk 14½ dh èkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,DldfVo

bUthfu;j] ij;koju voke fcgw vjtu ijk[k.M jkt?kkV yfyriqj

ds izcaèr= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp

vuqcaè esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vfèdj.k dkuiqj ds iapkV ¼lanHkZ la[;k 31@ 2011½ dks izdkf'kr

djrh gS tks dsUnzh; ljdkj dks 18&01&2012 dks izkIr gqvk Fkk

[lañ ,y&42012@267@2010&vkbZ vkj ¼Mh ;w ½]

tksgu rksiuks] voj lfpo

MINSTRY OF LABOUR AND EMPLOYMENT

New Delhi, the 18th January, 2012

S.O. 811.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 31/2011)

of the Central Government Industrial Tribunal-cum-Labour

Court Kanpur as shown in the Annexure, in the Industrial

Dispute between the Excutive Engineer, Paryavaran Avam

Bhu Arjan Prakhand, Rajgat, Lalitpur and their workman,

which was received by the Central Government on

18.01.2012.

[No. L-42012/267/2010-IR(DU)]

JOHAN TOPNO, Under Secretary

ANNEXURE

BEFORE SRI RAM PARKASH, HJS, PRESIDING

OFFICER, CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL CUM LABOUR COURT, KANPUR

Industrial Dispute No. 31 of 2011

Sri Rama Kant Malviya

S/o Sri Babu Lal Malviya

R/o Village Buncha, Post Dailwara,

Lalitpur.

And

The Excutive Engineer,

Paryavaran Avam Bhu Arjan Prakhand,

Rajghat,

Lalitpur.

AWARD

1. Central Government, Mol, New Delhi vide

notification L-42012/267/2010/IR(UD) dated 10.05.11 has

reference the following dispute for adjudication to this

tribunal.

2. Whether the action of Ardh Bandh Prakhand and

Paryavaran avam Bhu Arjan Prakhand Rajghat Lalitpur in

terminating the service of Sri Ramakant Malviya son of

Sri Babu Lal Malviya with effect from 20.10.81 is legal and

justified? What relief the workman is entitled to?

3. In the instant case after receipt of reference from

the Ministry registered notices were sent to the parties to

file their statement of claim and counter claim. But the

registered notices so sent at the address of the workman

were not received in the office of the tribunal therefore it

will be presumed that the notices were duly served on the

workman, still he failed either to make his presence before

the tribunal or to file his claim before the tribunal.

4. Therefore, in the given circumstances, the tribunal

is bound to believe that the workman is least interested in

prosecuting his case. As such the tribunal is not having

any option but to award relief against the workman holding

that he is not entitled to any relief pursuant to the present

reference order.

5. Reference is therefore answered against the

workman and in favour of the management.

RAM PARKASH, Presiding Officer

ubZ fnYyh] 31 tuojh] 2012

dkñvkñ- 812.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947

dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj eustesUV vkQ

dksy Mke gkbMªks bySDVªfd ikoj izkstDV ,.M vnZl izcaèra= ds

lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqcaè esa fufnZ"V

vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèdj.k paMhx<+ ds

iapkV ¼lanHkZ la[;k 182]183]184]190]194@2K 11½ dks izdkf'kr

djrh gS] tks dsUnzh; ljdkj dks 31&01&2012 dks izkIr gqvk FkkA

[Qkñ lañ ,y&42012@268]297]298]272]295@2010 vkbZ

vkj ¼Mh ;w½]

jes'k flag] MsLd vfèdkjh

New Delhi, the 31st January, 2012

S.O. 812.—In pursuance of Section 17 of the

Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No.

182,183,184,190,194/2K11) of the Central Government

Industrial Tribunal-cum-Labour Court No. II Chandigarh

as shown in the Annexure, in the Industrial Dispute between

the employers in relation to the management of KOI Dam

Hydro Electric Power Project & Others and their workman,

which was received by the Central Government on

31.01.2012.

[No. L-42012/268,297,298,272,295/2010-IR(DU)]

RAMESH SINGH, Desk Officer

1850

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

ANNEXURE

IN THE CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT-II CHANDIGARH

Present: Sri A.K. Rastogi, Presiding Officer.

1. Case No. ID No. 182/2011

Registered on 8.6.2011

Sh. Kuldeep Kumar, S/O Sh. Ranjeet Singh, Village

and PO Dhar Tatoh, Tehsil Sadar, Bilaspur.

2. ID No. 183/2011

Registered on 8.6.2011

Sh. Surjeet Singh, S/O Sh. Joginder Singh, Village

Vijaypur, PO Samoh, Tehsil Jhandutta, Bilaspur.

3. ID No. 184/2011

Registered on 8.6.2011

Sh. Amarjeet Kumar, S/O Sh. Ram Swaroop, Village

and PO Ghanouli, Tehsil and Distt. Ropar (PB).

4. ID No. 190/2011

Registered on 8.6.2011

Sh. Mahesh Kumar, S/O Sh. Chaman Lal, Village

and PO Jhakhera, Tehsil Una, Una (HP).

5. ID No. 194/2011

Registered on 8.6.2011

Sh. Jai Singh, S/o Sh. Phinu Ram, Village Durgrian

PO Kanaid, Tehsil Sundernagar, Mandi (HP).

APPLICANTS

Versus

1. The General Manager, Kol Dam Hydro Electric

Power Project NTPC, VPO Barmana, Bilaspur.

2. Project Manager, Italian Thai Development Co.

Ltd. Kol Dam Hydro Electric Power Project Village Kayan,

PO Slapper, Teh. Sundernagar, Mandi

3. M/s U.R Infrastructure Company Private Ltd.,

Village Chamb, Post Office Harnora, Bilaspur.

RESPONDENTS

APPEARANCES

For the workman

None

For the Management

Sh.

Singh

for

respondent No. 1, Sh.

Shamsher

Singh

for

respondent No. 2

AWARD

PASSED ON JAN 06. 2012

The Central Government vide Notification No. L-

42012/268/2010 IR(UD) dated 6.5.2011, No. L-42012/297/

2010 IR(UD) dated 5.5.2011, No. L-42012/298/2010 IR(UD)

dated 5.5.2011, No. L-42012/272/2010 IR(UD) dated 6.5.2011

and No. L-42012/295/2010 IR(UD) dated 9.5.2011, by

exercising its power under Section 10 Sub-Section 1 Clause

(d) and Sub-Section (2A) of the Industrial Disputes Act

1947 (in Short Act) has referred the following disputes for

adjudication to this Tribunal.

1. ID No. 182/2011

"Whether retrenchment of services of Sh. Kuldeep

Kumar S/o Ranjeet Singh w.e.f 14.8.2008 by M/s U.R.

Infrastructure Company Private Limited, Chamb,

Bilaspur, a sub-contractor of M/s Italian Thai

Development Public Limited, a contractor of M/s

NTPC Limited without following the principle of ‘last

come first go' is legal and justified? What relief the

workman is entitled to?"

2. ID No. 183/2011

"Whether retrenchment of services of Sh. Surjeet

Singh, S/o Sh. Joginder Singh, w.e.f 3.9.2008 by the

managment M/s U.R. Infrastructure Company Private

Limited, Chamb, Bilaspur, a sub-contractor of M/s

Italian Thai Development Public Limited, a contractor

of M/s NTPC Limited without following the principle

of last come first go' is legal and justified? What

relief the workman is entitled to from the above

employer?"

3. ID No. 184/2011

"Whether retrenchment of services of Sh.

Amarjeet Kumar, S/o Sh. Ram Swaroop w.e.f 3.9.2008

by M/s U.R. Infrastructure Company Private Limited,

Chamb, Bilaspur, a sub-contractor of M/s Italian Thai

Development Public Limited, a contractor of M/s

NTPC Limited without following the principle of 'last

come first go' is legal and justified? What relief the

workman is entitled to from the above employer?"

4. ID No. 190/2011

"Whether retrenchment of services of Sh. Mahesh

Kumar, S/o Sh. Chaman Lal w.e.f 14.8.2008 by M/s

U.R. Infrastructure Company Private Limited, Chamb,

Bilaspur, a sub-contractor of M/s Italian Thai

Development Public Limited, a contractor of M/s

NTPC Limited without following the principle of 'last

come first go' is legal and justified? What relief the

workman is entitled to?"

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

1851

5. ID No. 194/2011

"Whether retrenchment of services of Sh. Jai Singh,

S/o Sh. Phinu Ram w.e.f 3.9.2008 by the management

of M/s U.R. Infrastructure Company Private Limited,

Chamb, Bilaspur, a sub-contractor of M/s Italian Thai

Development Public Limited, a contractor of M/s

NTPC Limited without following the principle of 'last

come first go' is legal and justified? What relief the

workman is entitled to from the above employer?"

After receiving the references notices were issued

to the parties. Respondent No.1 and 2 put in their

appearances but workmen did not turn up and file claim

statement despite notice sent to them by registered post

on 11.11.2011. Service was presumed on the workmen. They

failed to file claim statement despite sufficient service of

notices. Hence a 'No Dispute' award is passed in all the five

IDs viz ID No. 182,183,184, 190 and 194 of 2011. Original

copy of the Award be placed on the record of ID No. 182 of

2011 and a copy of the award be placed on the record of ID

No. 183,184 190 and 194 of the 2011 each. Two copies of the

award be sent to the Central Government for further

necessary action.

ASHOK KUMAR RASTOGI, Presiding Officer

ubZ fnYyh] 31 tuojh] 2012

dkñvkñ- 813.—vkS|ksfxd fookn vfèfu;e 1947 ¼1947

dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj eustesUV vkQ

dksy Mke gkbMªks bySDVªfd ikoj izkstdV ,.M vnZl izcaè r= ds

lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqcaè esa fufnZ"V

vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèdj.k paMhx<+ ds

iapkV ¼lanHkZ la[;k 181]186@2K 11½ dks izdkf'kr djrh gS tks

dsUnzh; ljdkj dks 31&01&2012 dks izkIr gqvk FkkA

[Qkñ lañ ,y&42012@263 vkSj 264@2010&vkbZ vkj ¼Mh;w½]

jes'k flag] MsLd vfèdkjh

New Delhi, the 31st January, 2012

S.O..813.—In pursuance of Section 17 of the

Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 181,

186/2K11) of the Central Government Industrial Tribunal-

cum-Labour Court No. II Chandigarh as shown in the

Annexure in the Industrial Dispute between the employers

in relation to the management of KOI Dam Hydro Electric

Power Project & Others and their workman, which was

received by the Central Government on 31.01.2012.

[No. L-42012/263 & 264/2010-IR(DU)]

RAMESH SINGH, Desk Officer

ANNEXURE

IN THE CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT-II,

Chandigarh.

Present: Shri A.K. Rastogi, Presiding Officer.

1. Case No. ID No. 181/2011

Registered on 8.6.2011.

Sh. Mast Ram, S/o Sh. Khazana Ram, Village

Chhattar, PO Dhawa, Tehsil Sunder Nagar, Mandi (HP).

2. ID No. 186/2011

Registered on 8.6.2011.

Sh. Garja Ra, S/o Sh. Paras Ram, Village Ropa, PO

Seri Kothi, Tehsil Sunderagar, Mandi (HP).

Applicants

Versus

1. The General Manager, Kol Dam Hydro Electric

Power Project, NTPC, VPO Barmana, Bilaspur.

2. The Managing Director, M/s AKS Engineers and

Contractors Kol Dam Hydra Electric Power Project, Sanjay

Sadan, Chhota Shimla.

3. Project Manager, Italian Thai Development Co.

Ltd. Kol Dam Hydra Electric Power Porject, Village Kayan,

PO Slapper, Teh Sunder Nagar, Mandi.

Respondents

APPEARANCES

For the workman

None

For the Management

Shri

Singh

for

respondent

No. 1, Sh. Shamsher Singh

for respondent No. 3

AWARD

PASSED ON JAN. 06, 2012

The Central Government vide Notification No. L-

42012/263/2010 [(IR(DU)] dated 11.5.2011 and No. L-42012/

264/2010 IR(DU) dated 6.5.2011 by exercising its power

under Section 10 Sub-Section 1 Clause (d) and Sub-Section

(2A) of the Industrial Disputes Act 1947 (in short Act) has

referred the following dispute for adjudication to this

Tribunal.

1852

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

ID No. 181/2011

"Whether the action of M/s AKS Engineers and

Contractors working on behalf of M/s Italian Thai

Development Public Company Limited, who are the

Project Managers for the Principal Employer, viz;

National Thermal Power Corporation Limited in

terminating the services of Sh. Mast Ram S/o Sh.

Khazana Ram, Chhater, Sundernagar, Mandi (HP) on

the grounds of alleged misconduct vide letter dated

13.9.2008, is legal and justified? What relief the

workman is entitled to from the above employer?"

ID No. 186/2011

"Whether the action of the management of M/s AKS

Engineers and Contractors in terminating the service

of Sh. Garja Ram, S/o Sh. Paras Ram, Ropa,

Sundernagar vide order dated 10.10.2008 is legal and

justified? What relief the workman is entitled to?"

After receiving the references the notices were issued

to the parties. Respondent No. 1 and 3 put in their

appearances. Workman did not turn up and file statement

despite notice sent by registered post on 11.11.2011.

Notices not received back undelivered. Hence service was

presumed on them. As the workmen failed to appear and

the file claim statement a 'No Dispute' award is passed in

both the cases viz. in ID No. 181 of 2011 and ID No. 186 of

2011. A copy of the Award be placed on the record of ID

No. 186 of 2001 and original Award will remain on the record

of ID No. 181 of 2011. Two copies of the Award be sent to

Central Government for further necessary action.

A.K. Rastogi, Presiding Officer

ubZ fnYyh] 31 tuojh] 2012

dkñvkñ- 814.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj eustesUV vkQ

dksy Mke gkbMªks bySfDVªd ikoj izkstDV ,.M vnlZ izca/k ra= ds

lac) fu;kstdksa vkSj deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd

fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k paMhx<+ ds iapkV lanHkZ

la[;k & 188@2K11µµdks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks

31&01&2012 izkIr gqvk FkkA

[Qkñlañ ,y&42012@258@2010&vkbZ vkj ¼Mh ;w½]

jes'k flag] MsLd vf/kdkjh

New Delhi, the 31st January, 2012

S.O. 814.—In pursuance of Section 17 of the

Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 188/

2K11) of the Central Government Industrial Tribunal cum

Labour Court No. 1 Chandigarh as shows in the Annexure,

in the Industrial dispute between the employers in relation

to the management of KOI Dam Hydro Electric Power

Project & Others and their workman, which was received

by the Central Government on 31.01.2012.

[F.No. L-42012/258/2010-IR(DU)]

Ramesh Singh, Desk Officer

ANNEXURE

IN THE CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT-II, CHANDIGARH.

PRESENT:

Sri A.K. Rastogi, Presiding Officer.

Case No. ID No. 188/2011

Registered on 8.6.2011.

Sh. Krishan Singh, S/o Prabhu Dayal Singh, Village

Pung, PO and Tehsil Sunder Nagar, Mandi (HP).

Applicant

Versus

1. The General Manager, Kol Dam Hydro Electric

Power Project, NTPC VPO Barmana, Bilaspur.

2. Project Manager, Italian Thai Development Co.

Ltd., Kol Dam Hydra Electric Power Project, Village Kayan,

PO Slapper, Teh, Sundernagar, Mandi.

3. The Project Manager, M/s ITD Cementation India

Ltd., Kol Dam Hydro Electric Power Project, Village Kayan,

PO Slapper, Tehsil. Sundernagar. Mandi (HP).

Respondents

APPEARANCES

For the workman

None

For the Management

Sh.

Singh

for

respondent

No. 1, Shamsher Singh for

respondent No. 2

AWARD

PASSED ON JAN. 06, 2012

The Central Government vide Notification No. L.-

42012/258/2010 [IR(DU)] dated 6.5.2011 by exercising its

power under Section 10 Sub-section 1 Clause (d) and Sub-

Section (2A) of the Industrial Disputes Act 1947 (in short

Act) has referred the following dispute for adjudication to

this Tribunal.

"Whether retrenchment of services of Sh. Krishan

Singh S/o Sh. Prabhu Dayal Singh, Pung,

Sundernagar by the Project Manager, M/s ITD

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

1853

Cementation India Ltd., Kyan Sundernagar vide order

dated 29/12/2007 without following principle of 'last

come first go' is legal and justified? What relief the

workman is entitled to?"

After receiving the reference notices were issued to

the parties. The workman failed to appear and file claim

statement despite notices sent by registered post on

11.11.2011. Notices were not received back undelivered.

Hence service is presumed on him. As the workman failed

to appear and file claim statement despite notices sent to

him by registered post hence a 'No Dispute' award is passed

in the case. Two copies of the Award be sent to Central

Government for futher necessary action.

A.K. Rastogi Presiding Officer

ubZ fnYyh] 1 Qjojh] 2012

dkñvkñ- 815.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj okbl pkalyj]

bfUnjk xka/kh us'kuy vksiu ;wfuoflZVh izca/k ra= ds laca) fu;kstdksa

vkSj muds deZdkjksa ds chp vuqca/k eas fufnZ"V vkS|ksfxd fookn esa

dsUnzh; ljdkj vkS|ksfxd vf/kdj.k fnYyh] ds iapkV ¼lanHkZ la[;k

& 14@2010µµµµµµµµµµµµµµµµ dks izdkf'kr djrh gS] tks

dsUnzh; ljdkj dks 01@02@2012 izkIr gqvk FkkA

[Qkñ lañ ,y 42012@104@2009&vkbZ vkj ¼Mh ;w½]

jes'k flag] MsLd vf/kdkjh

New Delhi, the 1st February, 2012

S.O. 815.—In pursuance of Section 17 of the

Industrial Dispute Act, 1947 (14 of 1947), the Central

Government

hereby

publishes

the

award

(Ref. No. 14/2010) of the Central Government Industrial

Tribunal cum Labour Court No. 1 New Delhi as showin in

the Annexure, in the Idnsutrial dispute between the Vice

Chancellor, Indira Gandhi National Open University and

their workman, which was received by the Central

Government on 01.02.2012.

[F.No. L-42012/104/2009-IR(DU)]

Ramesh Singh, Desk Officer

ANNEXURE

BEFORE DR. R.K. YADAV, PRESIDING OFFICER,

CENTRAL GOVT. INDUSTRIAL TRIBUNAL NO. 1,

KARKARDOOMA COURTS COMPLEX: DELHI

I.D. NO. 14/2010

Shri Munna Lal S/o Shri Pyare Lal

H.No. 353, Prajapat Mohalla,

Vill. Maidan Garhi,

New Delhi-63.

CLAIMANT

Versus

The Vice Chancellor,

Indira Ganhi National Open University,

R.No. 1, Block No. 8, Maidan Garhi,

New Delhi-110068.

Management

AWARD

Indira Gandhi National Open University (herein after

referred to as the University) was established in the year

1985 to provide cost effective and quality education to

large sections of people, including those living in remote

and far flung areas, through distance education

programmes. The University functions not only within the

boarders of the country but offers education programmes

in at least 35 countries. Besides Regional Centres across

the country and in foreign countries, the University has its

Central Campus at Maidan Garhi, New Delhi, which is spread

over an area 151.32 acres of land. At its Central Campus,

the University has a strength of about 800 officers/officials

working there.

2. The University requires considerable man-power

to carry out housekeeping services, which includes cleaning

and sanitation activities. Housekeeping services are out-

sourced by the University through a private contractor. In

the year 2004, the University awarded contract for

housekeeping services to Sybex Computer Systems (Pvt.)

Ltd. (in short the contractor). The Contractor engaged

around 70 sweepers and cleaners to carry out its contractual

obligations. On 1st November 2007, the University awarded

contract for housekeeping services to Spick & Span

Facilities Management (Pvt..) Ltd. (In Short the New

Contractor) Initially the New Contractor decided to retain

services of the sweepers and clearners engaged by the

Contractor. But negotiations between the New Contractor

and employees of the Contractor turned into a complete

fiasco.Sweepers and clearners resorted to agitation and

sat on "dharna" outside the gate of Maidan Garhi Campus

of the University. Legal wrangle started between the

University and the agitators. Efforts were made from either

side to wrench one's opponent.

3. Resort to the jurisdiction of Conciliation Officer

was taken by the sweepers and cleaners, by way of filing

their respective claim statements. Conciliation Officer

initiated conciliation proceedings, as contemplated by sub-

section (1) of section 12 of the industrial Disputes Act,

1947 (in short the Act). No settlement could arrive at between

the parties and a failure report was submitted to the

appropriate Government. On consideration of the failure

report, submitted, the appropriate Government referred the

dispute to this Tribunal for adjudication, working its powers

1854

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

under clause (d) of sub-section (1) of section 10 of the

Act, vide order No. L-42012/104/2009-IR(DU) New Delhi

dated 28th January, 2010, with following terms:

"Whether the action of the management of Indira

Gandhi National Open University, in terminating the

services of their workman Shri Munna Lal w.e.f.

01/11/2007 is legal and justified? If not, what relief

the workman is entitled to?"

4. Shri Munna Lal claims in his claim statement that

he was working with the University as "Safai Karamchari"

in its housekeeping department since 1.3.1994. He had

rendered more than 240 days continuous service with the

University. At the time of entering into the services of the

University, he was asked to fill in certain forms, which forms

duly filled and signed by his are in the custody of the

University. No appointment letter was issued in his favour,

inspite of his request in that behalf. Since inception of his

engagement, the University had indulged into unfair labour

practices and flouted implementation of labour laws

concerning his service conditions. At times he, alongwith

his colleagues, was kept at its rolls by the University, while

during intermittent spells his services were transferred at

the roll of one contractor or the other. This device was

adopted with a view to discount his continuity in service

and seniority in employment so that liability to pay

retrenchment compensation under the Act and other

benefits under various labours laws may be avoided.

5. Contributions towards social securities, namely,

ESI, medical benefits and provided fund were deducted

from his wages by the University, pleads the claimant.

Despite payment of contributions towards above social

securities, the University never issued any medical card

and provident fund statement or account number, but

passed on that responsibility on the shoulders of the

Contractor. Facility of earned, annual, privileged, casual,

weekly off, festival and medical leaves were not accorded.

Though work was taken on Sundays and holidays from

him but no compensatory leave or overtime wages were

given to him. He used to get wages at the rate of Rs. 172/-

per days, amounting to somewhere near to Rs. 4500/- per

month.

6. On 1st November 2007, the University decided to

place his services at the disposal of a contractor, whose

engagement for housekeeping work was neither

communicated nor he was introduced to him. To his utter

surprise a contractor surfaced on scene and told him and

his colleagues that he will pay them Rs. 3470/- each per

month. He announced that interested persons may stay at

work-place and others may leave for good. The claimant

and his colleagues wanted to see the Vice-Chancellor to

appraise him of their grievances, but they were stopped at

the gate of the University campus. Services of the claimant

and others were terminated. The University called some

anti-social elements and got sever beatings administered

to him and his colleagues at their hands. Police was also

called by the University authorities, to keep their hands

clean.

7. The University had not served one month notice

nor paid wages in lieu of the notice. Retrenchment

compensation was also not paid to him. His services were

not done away on infliction of punishment for a disciplinary

action, hence action of the University is violative of the

provsions of the Act and principles of natural justice. He

claims reinstatement in the services of the University with

continuity and consequential benefits.

8. The University demurs the claim pleading that the

claimant was never employed by it. No salary/wages or

other emoluments were paid by it to the claimant. There

existed no relationship of employer and employee between

the parties. Hence there was no occasion for the University

to terminate services of the claimant. In view of these facts,

reference order is improper and claim statement is liable to

be rejected, pleads the University.

9. To outsource housekeeping services, the

University engaged services of the Contractor, vide

agreement dated 01.11.2004, which agreement was extended

upto 31.10.2007. The claimant was working with the

Contractor to provide housekeeping services at the campus

of the University. The Contractor is essential and proper

party, pleads the University. In agreement entered into

between the Contractor and the University it was stipulated

that employees of the Contractor at no point of time would

be treated as employees of the University. The University

laid emphasis on a few clauses of the agreement, which are

extracted thus:

"12. Provider shall continue to be responsible for the

personnel employed by him, in respect of terms and

conditions of their service, payments, attendance,

medical care, other disciplinary matters etc. who shall

remain fully under the administrative and financial

control and supervision of the Provider, except that

the University shall be the sole Arbitrator in respect

of nature of the duties to be entrusted to and the

manner of performance of their duties for the purpose

of this Agreement.

13. The temporary personnel deployed by the

Provider to IGNOU shall at no time be treated as the

employees of the University and also shall have no

claim to be regularized in the services of the

University. But the provider will not change the

personnel once deployed by it in the University

without prior permission of the University as the

frequent changes in deployment of termporary may

hamper the day to day work of the University.

23. There is no privity of contract by and between

the Provider and the University. The Temporary shall have

no right to make any claim against the University directly

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

1855

or indirectly, monetary including wages or otherwise. The

Temporary shall also have no right to claim for any

regularization. The Temporary shall also have no claim

against the University of any dues, statutory or otherwise.

Similarly, even the representative of any Temporary who

have worked in the University shall have no right or claim

against the University.

24. The Provider has to ensure that the Temporaries

deployed are not forming any Association/Forum in respect

of IGNOU matter nor they should be allowed to join in any

Association/forum of IGNOU.

25. The Provider has to ensure timely deployed of

Temporaries as required by IGNOU and fulfil other

obligation stated in the above said terms and conditions

failing which penalty will be imposed by the University on

case to case basis from time to time. The decision of the

University will be final."

10. When contract, referred above, expired with efflux

of time, contract for housekeeping services was awarded

to the New Contractor, who initially sought to retain the

services of housekeeping staff for his own contract.

However, owing to illegal and unjutified demands of the

housekeeping staff, the New Contractor did not engage

the claimant and his other colleagues. The claimant and his

colleagues resorted to illegal demonstration in the

University premises. A civil suit being CS(OS) No. 83 of

2008 was instituted before High Court of Delhi. The High

Court passed an interim junction order on 15.1.2008 against

the housekeeping staff and ultimately decreed the suit on

13.3.2009.

11. The University had denied all allegations levelled

by the claimant in his claim statement. It is pleaded that the

claimant knew his status, being an employee of the

Contractor. His services were terminated by the Contractor

and the University has no role to play in so called

termination of his services. His claim against the University

is illegal, unwarranted and unjustified. It is pleaded that his

claim may be dismissed.

12. An application moved by the University, to

implead the Contractor as a party, was declined vide order

dated 20.4.2010.

13. On pleadings of the parties, following issues were

settled:

Whether there was relationship of employer and

employee between the claimant and the

management?

Whether the claimant was an employee of Sybex

Computer System Pvt. Ltd., the Contractor?

As in terms of reference.

Relief.

14. To discharge onus resting on him, the claimant

examined himself and closed his evidence. The University

examined Smt. Bimla Madan, Shri Shiv Prakash, Dr. S.S.

Bisht and Shri Ashok Kumar Gupta to substantiate its case.

15. Arguments were heard at the bar at length.

Shri V.N. Kaushik, assisted by Ms. Sulekha Thakur,

authorised representative, advance arguments on behalf

of the claimant. Shri V.K. Rao, assisted by Shri Aly Mirza,

authorised representative and Vibhas Vaibhav, Asstt.

Registrar (Law), raised submissions on behalf of the

University. I have given my careful considerations to the

submissions made at the bar and cautiously perused the

record. My findings on issues involved in the controversy

are as follows:

Issue No. 1 & 2

16. Affidavit Ex. WW1/A was tendered as evidence

on behalf of the claimant, wherein he sweared that he was

in the employment of the University as "Safai Karamchari"

since 1.3.1994. It has been projected in Ex. WW1/A that he

rendered more than 11 years service with the University.

Except his new fact, other facts detailed in Ex.WW1/A are

facsimile of contents of claim statement, which has been

proved as Ex.WW1/M1. He candidly admitted his

signatures on documents Ex.WW1/M2 to Ex.WW1/M8.

17. Smt. Bimla Madan unfolds that Regional Office

of the Employers' Provident Fund Organisation had given

code number as DL-24878 to the Contractor, while code

number 2132 was given to Shri Munna Lal, the employee of

the above company. Name of Munna Lal appears in

statements of contributions Ex.WW1/1 and Ex.WW1/2, filed

by his employer for the period 1.4.2005 to 31.3.2006 and

1.4.2006 to 31.3.2007 respectively.

18. Shri Shiv Prakash entered the witness box to

prove copy of plaint, filed by the University before High

Court of Delhi, written statement of defendant No. 3 to 6,

affidavit of Shri U.S. Tolia tendered as evidence in that

case, interim order dated 15.1.2008 and judgement dated

13.3.2009 passed by Justice Ms. Rekha Sharma. These

documents are proved as Ex.WW2/1 to MW2/5

respectively. He clarified that no appeal was preferred

against the judgement Ex.WW2/5.

19. Dr. S.S. Bisht tendered his affidavit Ex.WW3/A

as evidence, wherein he announced that the claimant was

never appointed by the University in its services. No salary

was ever paid to him. Services of the Contractor were availed

to outsource housekeeping services vide agreement dated

1.11.2004, which was subsequently extended upto

31.10.2007. The claimant was working with the Contractor.

With effect from 1.11.2007 contract to provide housekeeping

services was awarded to the New Contractor. He projects

that when he was not engaged by the New Contractor, he

alongwith his colleagues resorted to illegal demonstration

in the premises of the Univerity. Story of filing civil suit

1856

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

and orders thereon have been re-affirmed by Dr. Bisht.

Being an employee of the Contractor, he had filed a wrong

claim statement, which is liable to be dismissed, asserts

Dr. Bisht.

20. Shri Ashok Kumar Gupta details that the

University was maintaining an account with Maidan Garhi

branch of the Punjab National Bank. The University had

issued cheques in favour of the Contractor, details of those

cheques are given in Ex.MW4/A. He identifies signatures

of Shri Mohan Lal, Branch Manager, on Ex.MW3/21 and

announces that contents of that document are true and

correct, as he himself had checked the records.

21. When facts testified by the claimant, Smt. Bimla

Madan, Dr. S.S. Bisht and Ashok Kumr Gupta are

appreciated, it came to light that the claimant had detailed

that he was in the service of the University since 1.3.1994.

Self-serving words, deposed by the claimant, could not

withstand rigors of cross-examination, wherein he admitted

that Ex.WW1/M2, Ex.WW1/M3, Ex.WW1/M4, Ex.WW1/

M5, Ex.WW1/M6, Ex.WW1/M7 and Ex.WW1/M8 bear his

signatures. When perused it came to light that Ex.WW1/

M4 to Ex.WW1/M8 are wage-sheets of the Contractor,

though which salary of the claimant and his colleagues

were released by the former in their favour. These documents

project him to be an employee of the Contractor. Thus by

an admission of his signatures on above documents he

allowed a fact to spill over, which demolishes his case of

being an employee of the University. Ex.WW1/M2 is also

photocopy of scrolls through which payments were

released by the Contractor to the claimant and his

colleagues. In the end he gave in and deposed that he was

not aware as to who engaged him. However he made a faint

attempt to project his cause when he asserted that he used

to work for the University. Conspectus of above facts spill

the beans and announce him to be an employee of the

Contractor.

22. Dr. S.S. Bisht erected castle for the University

brick by brick when he deposed that the claimant was

working with the Contractor, whom housekeeping services

were outsourced vide agreement dated 1.11.2004, copy of

which is Ex. MW3/1. This agreement was extended upto

31.10.2007. When aforesaid contract expired, contract for

housekeeping services was awarded to the New Contractor,

vide agreement Ex. MW3/2. When New Contractor did not

engage the services of the claimant and his colleagues,

they resorted to illegal demonstration in the premises of

the University. The Contractor used to raise his bills, to

whom payments were made through cheques Ex. MW3/5,

Ex. MW3/6, Ex. MW3/7, Ex. MW3/8, Ex. MW3/9 and Ex.

MW3/10, deposes the witness. Some of the bills raised by

the Contractor, besides sanction accorded by the

University are Ex. MW3/11, Ex. MW3/12, Ex. MW3/13, Ex.

MW3/14, Ex. MW3/15, Ex. MW3/16, Ex. MW3/17, Ex.

MW3/18 and Ex. MW3/19, Dr. Bisht detailed. Payments

were made to the Contractor through cheques, which were

honoured and cleared and letter Ex. MW3/21 was written

by the bank in that regard. He had proved list of contractors

as Ex. MW3/W2, to whom the work was awarded by the

University since 16.12.1991 till date. Out of facts unfolded

by Dr. Bisht it came over the record that the University had

outsourced housekeeping services since 16.12.1991. On

1.11.2004 work was awarded to the Contractor and on

1.11.2007 it was awarded to the New Contractor. Claimant

was an employee of the Contractor, who used to pay wages

to him. Smt. Bimla Madan gives re-affirmation to facts

unfolded by Dr. Bisht. She had proved statements of

contribution, filed by the Contractor in the Regional Office

of the Employees' Provident Fund Organisation, in which

statements name of the claimant does appear as an

employee of the Contractor. Shri Ashok Kumar Gupta proves

various payments made by the University to the Contractor,

details of which are enlisted in Ex. MW3/21. Sequences of

events, brought over the record through the depositions

of aforesaid witnesses and documents proved by them,

highlight that the claimant was an employee of the

Contractor, who used to make payment of his salaries to

him. It was the Contractor who was his pay master.

23. Whether the claimant, who was an employee of

the Contractor, can maintain a dispute against the

University? For an answer to this proposition, the Tribunal

has to take note of the law contained in section 10 of the

Contract Labour (Regulation and Abolition), Act, 1970 (in

short the Contract Labour Act), which makes provision for

prohibition of employment of contract labour. For sake of

convenience provisions of section 10 of the Contract

Labour Act are reproduced thus:

"10. Prohibition of employment of contract labour:—

(1) Notwithstanding anything contained in this Act,

the appropriate Government may, after consultation with

the Central Board or, as the case may be, a State Board,

prohibit, by notification in the Official Gazette, employment

of contract labour in any process, operation or other work

in any establishment.

(2) Before issuing any notification under sub-section

(1) in relation to an establishment, the appropriate

Government shall have regard to the conditions of work

and benefits provided for the contract labour in that

establishment and other relevant factors, such as—

(a) whether the process, operation or other work is

incidental to, or necessary for the industry, trade,

business, manufacture or occupation that is carried

on in the establishment,

(b) whether it is of perennial nature, that is to say, it is of

sufficient duration having regard to the nature of

industry, trade, business, manufacture or occupation

carried on in that establishment;

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in that establishment or an establishment similar

thereto;

(d) whether it is sufficient to employ considerable number

of whole-time workmen.

Explanation—If a question arises whether any

process or operation or other work is of perennial

nature, the decision of the appropriate Government

thereon shall be final."

24. As emerge out of the provisions of sub-section

(1) of section 10 of the Contract Labour Act, the appropriate

Government may, by notification in the official gazette,

prohibit employment of contract labour in any process,

operation or other work in any establishment. When

employment of contract labour is prohibited, by issuance

of a notification in offical gazette by the appropriate

Government, what would be the status of the contract

labour employed in the establishment? Such a question

arose before the Apex Court in Steel Authority of India Ltd.

[2007 (7) S.C.C.I]. The Apex Court ruled therein that there

cannot be automatic absorption of contract labour by

principal employer on issuance of notification by the

appropriate Government on abolition of contract labour

system, under sub section (1) of section 10 of the Contract

Labour Act. It would be expedient to reproduce the law laid

by the Apex Court, which is extracted thus:

".....they fall in three classes: (1) 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 adjudicator/

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 contract labour working in the

establishment was ordered, (2) where contract was

found to be a sham and nominal, rather a camouflage,

in which case the contract 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

the abolition of contract labour but persent instances

wherein the court pierce the veil and declared the correct

position as a fact at the stage after employment of

contract labour stood prohibited, (3) where in

discharge of a statutory obligation of maintaining a

canteen in an establishment the principal employer

availed the services of the contractor, the courts have

held that the contract labour would indeed be

employees of the principal employer".

25. The Court ruled that neither section 10 of the

Contract Labour Act nor any other provision in that Act,

whether expressly or by necessary implication, provides

for automatic absorption of contract labour on issuance of

a notification by the appropriate Government under

sub-section (1) of section 10, prohibiting employment of

contract labour, in any process, operation or other work in

any establishment. Consequently the principal employer

cannot be required to order for absorption of the contract

labour working in the establishment concerned. It was

further ruled therein that in Saraspur Mills case [1974 (3)

SCC 66], the workman engaged for working in the canteen

run by the Cooperative Society for the appellant were the

employees of the appellant mills. In Basti Sugar Mills (AIR

1964 S.C. 355) a canteen was run in the factory by the

Cooperative Society and as such the workers working in

the canteen were held to be employees of the establishment.

The Apex Court ruled that these cases fall in class (3)

mentioned above. Judgement in Hussainbhai (1978 Lab.

I.C. 1264) was considered by the Apex Court in the said

precedent and it was ruled therein that the said precedent

falls in class (2), referred above. The Apex Court concluded

that on issuance of prohibitive notification under section

10 of the Contract Labour Act prohibiting employment of

contract labour or otherwise, in an industrial dispute

brought before it by any contract labour in regard to

conditions of service, the Industrial Adjudicator will have

to consider the question whether the contractor has been

interposed either on the ground of having undertaken to

produce any given result for the establishment or for supply

of contract labour for work of the establishment under a

genuine contract or is a mere ruse/camouflage to evade

compliance of various beneficial legislation so as to deprive

the workers of the benefit thereunder. If the contract is

found to be not genuine but a mere camouflage, the so

called contract labour will have to be treated as employees

of the principal employer who shall be directed to regularize

the services of the contract labour in the establishment

concerned, subject to the conditions as may be specified

by it for that purpose.

26. As announced by the Apex Court, on issuance of

a prohibitive notification, prohibiting employment of

contract labour or otherwise in any industrial dispute

brought before it by the contract labour in regard to

conditions of his service, the industrial adjudicator will

have to consider the question whether the contractor has

been interposed either on the ground of having undertaken

to produce any given result in the establishment or for

supply of the contract labour for the work of the

establishment under a genuine contract or it is a mere ruse/

camouflage to evade compliance of beneficial legislation

so as to deprive the workers of the benefits therein. Thus it

was ruled that a contract labour can raise a dispute before

the industrial adjudicator in regard to his conditions of

service and in case the contract is found to be not genuine

but a mere camouflage, the so called contract labour will

have to be treated as employees of the principal employer.

Also see Standard Vacuum Refining Co. of India Ltd. (1960

(II) llJ. 233), which was referred with approval in Steel

Authority of India.

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27. In Shivnandan Sharma (1955 (1) LLJ 688), the

respondent Bank entrusted its Cash Department under a

contract to the Treasures who appointed cashiers,

including the appellant Head Cashier. The question before

the Apex Court was: was the appellant an employee of the

Bank? On Construction of the agreement entered into the

Bank and the Treasure, the Court laid down:

"If a master employs a servant and authorizes him to

employ a number of persons to do a particular job

and to guarantee their fidelity and efficiency for a

cash consideration, the employees thus appointed

by the servant would be equally with the employer,

servant of the master."

In the above precedent the Apex Court for the first

time laid down the crucial test of supervision and control

for determining the relationship of employer and employee.

28. In Hussainbhai (supra) the petitioner, who was

manufacturing ropes, entrusted the work to a contractor

who engaged his own workers. When, after some time, the

workers were not engaged, they raised an industrial dispute

that they were denied employment by the petitioner. On

reference of that dispute, the labour court passed an award

against the petitioner. When matter reached the Apex Court,

on examination of various factors and applying the effective

control test, it was held that though there was no direct

relationship between the petitioner and the workers yet on

lifting the veil and looking at the conspectus of factors

governing employment, the naked truth, though drapped

in different perfect paper arrangement, was that the real

employer was the petitioner, not the immediate contractor.

The Apex Court stated law in following words:

"Where a worker or group of workers labours to

produce goods or services and these goods or

services are for the business of another, that other

is, in fact the employer. He has economic control

over the worker's subsistence, skill, and continued

employment. If he, for any reason, chokes off, the

worker is, virtually, laid off. The presence of

intermediate contrator with whom alone the workers

have immediate or direct relationship ex-contract is

of no consequence when, on lifting the veil or looking

at the conspectus of factors governing employment,

we discern the naked truth, though draped in different

perfect paper arrangement, that the real employer is

the management, not the immediate contractor***.

If the livelihood of the workmen substantially

depends on labour rendered to produce goods and

services for the benefit and satisfaction of an

enterprise the absence of direct relationship or the

presence of dubious intermediaries or the make-

believe trappings of detachment from the

management cannot snap the real-life bond. The story

may vary but the inference defies ingenuity. The

liability cannot be shaken off. Of course, if there is

total dissociation in fact between the disowning

management and the aggrieved workmen, the

employment is, in substance and real-life terms, by

another. The management's adventitious connections

cannot ripen into real employment."

As noted above, this precendent does not present

an illustration of abolition of contract labour but an instance

where the Court pierced the veil and declared the correct

position to the effect that the contract labours were

employees of the principal employer and not of the

contractor.

29. In Steel Authority of India (supra) it has been

ruled that the term "contract labour" is a species of workman.

A worman may be hired : (1) in an establishment by the

principal employer or by his agent with or without the

knowledge of the principal employer, or (2) in connection

with the work of an establishment by the principal employer

through a contractor or by a contractor with or without the

knowledge of principal employer. Where a workman is hired

in or in connection with the work of an establishment by

the principal employer through a contractor, he merely acts

as an agent so there will be master and servant relationship

between the principal employer and the workman. But when

a workman is hired in or in connection with the work of an

establishment by a contractor, either because he has

undertaken to produce a given result for the establishment

or because he supplies workmen for any work of the

establishment, a question might arise whether the

contractor is a mere camouflage as in Hussainbhai's case

(supra) and in Indian Petrochemicals Corporation case [1999

(6) S.C.C. 439] etc.; if the answer is in affirmative, the

workman will be in fact an employee of the principal

employer, but if the answer is in the negative, the workman

will be a contract labour.

In view of the legal proposition, referred above, it is

concluded that the claimant can maintain this dispute

against the University since he agitates that the contract

agreement between the University and the Contractor is

sham and nominal.

30. Whether any directions for deeming the contract

labour as having become the employees of the principal

employer can be issued, when the contractor or the principal

employer had violated the provisions of the Contract

Labour Act? To find an answer, provisions of that Act are

to be examined. The Contract Labour Act regulates

conditions of workers in contract labour system and

provides for its abolition by the appropriate Government

as provided by section 10 of that Act. In regard to regulatory

measures section 7 requires the principal employer to get

itself registered, while section 12 obliges every contractor

to obtain a licence, under the provisions of that Act. Section 9

places an embargo on the principal employer of an

establishment from employing contractor labour in the

establishment, when either it is not registered or its

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registration has been revoked. Section 12 of the Contract

Labour Act imposes a liability on a contractor not to

undertake or execute any work through contract labour

except under and in accordance with a licence. Sections 23,

24 and 25 make contraventions of the provisions of that

Act or Rules made thereunder penal. In Dena Nath (1992

Lab. I.C. 75) the Apex Court considered the question,

whether non-compliance of the provisions of sections 7

and 12 by the principal employer and the contractor

respectively would make the contract labour employed by

the principal employer as the employee of the latter. It was

ruled that only consequence of non-compliance either by

the principal employer of section 7 or by the contractor in

complying the provisions of section 12 is that they are

liable for prosecution under the said Act. But the employees

employed through the contractor cannot be deemed to be

the employees of the principal employer.

31. In the Steel Authority of India (supra) the Apex

Court laid emphasis ".....the consequence of violation of

Section 7 and 12 of the CLRA Act is explicitly provided in

Sections 23 and 25 of the CLRA Act, it is not for the High

Courts or this Court to read in some unspecified remedy in

Section 10 or substitute for penal consequences specified

in Sections 23 and 25 a different sequel, be if absorption of

contract labour in the establishment of principal employer

or a lesser or harsher punishment. Such an interpretation

of the provisions of the statute will be far beyond the

principle of ironing out the creases and the scope of

interpretative legislation and as such, clearly

impermissible". The above authoritative pronouncements

make it clear that on violations of the provisions of the

Contract Labour Act or Rules made thereunder, the contract

labour could not be deemed to have become the employee

of the principal employer.

32. Whether this Tribunal has power to order for

abolition of contract labour system in the establishment of

the University? For an answer, legal dicta is to be

considered. Before enactment of the Contract Labour Act,

the industrial adjudicator, in appropriate cases, used to

issue directions to the establishment concerned to abolish

or modify system of contract labour. Reference can be made

to precedents in United Salt Works and Industries Ltd.

[1962 (I) LLJ. 131], Shibu Metal Works [1966 (I) LLJ. 717],

National Iron & Steel Co. [1967 (II) LLJ. 23] and Ghatge and

Patil (Transport) Pvt. Ltd. [1968 (I) LLJ. 566]. The National

Commission on Labour (1966) in para 29.11 of its report,

enumerated those factors, on which aboilition of contract

labour was ordered, thus:

"29.11 Judicial awards have discouraged the practice

of employment of contract labour, particularly when

the work is (i) perennial and must go on from day to

day; (ii) incidental and necessary for the work of the

factory; (iii) sufficient to employ a considerable

number of whole time workmen; and (iv) being done

in most concerns through regular workmen. These

awards also came out against the system of

'middlemen'."

33. After Contract Labour Act was brought on statute

book, the Apex examined jurisdiction of the industrial

adjudicator to issue directions to the establishment to

abolish contract labour in Vegoils Private Ltd. [1971 (2)

S.C.C. 724] and ruled that it would be proper that the

question, whether the contract labour in the appellant

industry was to be abolished or not, be left to be dealt with

by the appropriate Government under the provisions of

that Act, if it becomes necessary. The observations made

by the Court are extracted thus:

"The appropriate Government when taking action

under Section 10 will have an overall picture of the

industries carrying on similar activities and decide

whether contact labour is to be abolished in respect

of any of the activities of that industry. Therefore, it

is reasonable to conclude that the jurisdiction to

decide about the abolition of contract labour, or to

put it differently, to prohibit the employment of

contract labour, is now to be done in accordance

with Section 10. Therefore, it is proper that the

question whether the contract labout regarding

loading and unloading in the industry of the appellant

is to be abolished or not, is left to be dealt with by

the appropriate Government under the Act, if it

becomes necessary. On this gorund, we are of the

opinion that the direction of the Industrial Tribunal

in this regard will have to be set aside. ***. The

legality of the direction given by the Industrial

Tribubal abolishing contract labour in respect of

loading and unloading from May 1, 1971, can also be

considered from another point of view. The Central

Act, as mentioned earlier, had come into force on

February 10, 1971. Under Section 10 of the said Act

the jurisdiction to decide matters connected with

prohibition of contract labour is now vested in the

appropriate Government. Therefore, with effect from

February 10, 1971, it is only the appropriate

Government. Therefore, with effect from

February 20, 1971, it is only the appropriate

Government that can prohibit contract labour by

following the procedure and in accordance with the

provisions of the Central Act. The Industrial Tribunal,

in the circumstances, will have no jurisdiction,

through its award dated November 20, 1970, to give

a direction in that respect which becomes,

enforceable after the date of the coming into force of

the Central Act. In any event, such a direction

contained in the award cannot be enforceable from a

date when abolition of contract labour can only be

done by the appropriate Government in accordance

with the provisions of the Central Act".

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34. In Gujarat Electricity Board [1995) (5) S.C.C. 27]

the same view was taken by the Apex Court holdings that

the authority to abolish the contract labour vests in the

appropriate Government and not in any court including

the industrial adjudicator. It would be opposite to reproduce

the observation of the court thus:

"53. Our conclusions and answers to the questions

raised are, therefore, as follows:

(i)

In view of the provisions of Section 10 of the Act,

it is only the appropriate Government which has

the authority to abolish geniue labour contract in

accordance with the provisions of the said Section.

No Court including the industrial adjudicator has

jurisdiction to do so.

(ii) If the contract is sham or not genuine, the

workmen of the so-called contractor can raise an

industrial dispute for declaring that they were

always the employess of the principal employer

and for claiming the appropriate service

conditions. When such dispute is raised, it is not

a dispute for abolition of the labour contract and

hence the provisions of Section 10 of the Act will

not bar either the raising or the adjudiction of the

dispute. When such dispute is raised, the

industrial adjudictor has to decide whether the

contract is sham or genuine. It is only if the

ajudicator comes to the conclusion that the

contract is sham, that he will have jurisdication to

adjudicate the dispute. If. however, he comes to

the conclusion that the contract is genuine, he

may refer the workmen to the appropriate

Government for abolition of the contract labour

under Section 10 of the Act and keep the dispute

pending. However, he can do so if the dispute is

espoused by the direct workmen of the principal

employer. If the workmen of the principal employer

have not espoused the dispute, the adjudicator,

after coming to the conclusion that the contract

is genuine, has to reject the reference, the dispute

being not an industrial dispute within the meaning

of Section 2 (k) of the ID Act. He will not be

competent to give any relief to the workmen of

the erstwhile contractor even if the labour

contract is abolished by the appropriate

Government under Section 10 of the Act.

(iii) If the labour contract is genuine a composite

industrial dispute can still raised for abolition of

the contract labour and their absorption.

However, the dispute, will have to be raised

invariably by the direct employees of the principal

employer. The industrial adjudicator, after receipt

of the reference of such dispute will have first to

direct the workmen to approach the appropriate

Government for abolition of the contract labour

under Section 10 of the Act and keep the reference

pending. If pursuant to such reference, the

contract labour is abolished by the appropriate

Government, the industrial adjudicator will have

to give opportunity to the parties to place the

necessary meterial before him to decide whether

the workmen of the erstwhile contractor should

be directed to be absorbed by the principal

employer, how many of them and on what terms.

If, however, the contract labour is not abolished,

the industrial adjudicator has to reject the

reference.

(iv) Even after the contract labour system is abolished,

the direct employees of the principal employer

can raise an industrial dispute for absorption of

the ex-contractor's workmen and the adjudicator

on the material placed before him can decide as to

who and how many of the workmen should be

absorbed and on what terms".

35. In Steel Authority of India (supra) the Apex Court

had referred the precedents in Vegoils case (supra) and

Gujarat Electricity Board (supra) with approval. Thus it

emerges that power to abolish contract labour system vests

with the appropriate Government, under Section 10 of the

Contract Labour Act, and not with any court including the

industrial adjudicator. This Tribunal has not been addled

with any responsibility to abolish contract labour in an

establishment, on parameters enacted in sub-section (2) of

section 10 of the Contract Labour Act.

36. Now I would turn to the facts of the present

controversy. It is not a case where an employee of a

contractor, employed in a statutory canteen, has invoked

the jurisdiction of this Tribunal. This matter, as projected

by the claimant, is left to be approached on the proposition

as to whether contract agreement entered into between the

University and the contractor was sham and nominal. For

an answer to this proposition, it would be expedient to

examine the contract agreement, which has been proved as

Ex.MW3/1 by Dr. Bisht. In construction of contents of

Ex.MW3/1 , this Tribunal cannot be oblivions of the rules

viz., writeen instruments shall, if possible, be so interpreted

‘‘ut res magis valeat quam pereat’’ (a liberal construction

should be put upon written instruments, so as to uphold

them, if possible) and that such a meaning shall be given to

it as may carry out and effectuate to the fullest extent the

intention of parties.

37. Elementary principle of law relative to contracts

is that parties to contracts are to be allowed to regulate

their rights and liabilities themselves and the Courts will

only give effect to the intention of the parties as it is

expressed by the contract. However the law in some cases

overrides the will of the individual and renders ineffective

and futile his expressed intention of contract. No court or

tribunal will lend its aid to a man who founds his cause of

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action upon an immoral or an illegal act. A contract cannot

be made the subject of an action if it be impeachable on the

grounds of dishonesty, or as being opposed to public

policy, it it be either contra bonos mores, or forbidden by

law. No court or tribunal will allow itself to be made the

instrument of enforcing obligations alleged to arise out of

a contract or transaction which is illegal.

38. Whether Ex.MW3/1 contains clauses which are

contra bonos mores or forbidden by law? When perused,

clause 24 of Ex.MW3/1 makes it clear that right to form or

join an association, in respect of IGNOU matter, has been

denied to an employee of the Contractor. For sake of

convenience contents of that clause are reproduced thus:

"24. The provider has to ensure that the Temporaries

deployed are not forming any Association/Forum in

respect of IGNOU matter nor they should be allow to

join in any Association/Forum of IGNOU."

39. Right to form associations or unions is a

fundamental right guaranteed to every citizen by clause (1)

right to form an association or union has to be read with

clause (4) of the aforesaid Article, which permits imposition

of legal restrictions on the right in so far as such restrictions

may be reasonably required in the interest of the

sovereignty and integrity of India, public order and morality.

The right to form associations or unions refers not only to

the initial commencement of the association but also to

continuation of the association as such, as it is abvious

that if an association has to be dissolved the movment it

has been formed, it cannot be said that the members have

the right to form the association. The restriction imposed

by the University on employees of the Contractor does

not answer the requirement of clause (4) of Article 19 of the

Constitution and is violative of the fundamental right

guaranted to the claimant and his colleagues.

40. There is other facet of the coin. The Act is a

legislation relating to what is know as "collective

bargaining" in the economic field. This policy is implicit in

the definition of " industrial dispute". See Titagarh Jute

Co. Ltd. (1979 Lab. I.C. 513). ‘‘An agreement between a

single employer or an association of employers on one

hand and a labour union on the other, which regulates the

terms and conditions of employment’’ is known as

collective bargaining agreement. The Policy behind and

concept of collective bargaining is to protect workmen as

class against unfair labour practices. A dispute of an

individual workman would acquire status of an industrial

dispute if it affects the rights of the workmen as a class. An

industrial dispute denotes two qualities which distinguish

it from an individual dispute, namely (i) that the dispute

relates to industrial matter, and (ii) that on one side at least

of the dispute the disputant are a body of men acting

collectively and not individually. The clause, referred

above, puts restriction on the claimant and his collegues

to act collectively as a body of men to protect their rights,

while working with the Contractor, who had engaged them

to produce a given result in terms of agreememt Ex.MW3/

1. Contents of clause 24 of Ex.MW3/1 , being unlawful,

cannot be supported at law.

41. A restriction is imposed on the claimant and his

colleagues from making any claim against the University

directly or indirectly, monetary including wages or

otherwise as contained in clause 23 of Ex.MW3/1, which is

not in conformity with the provisions of the Contract Labour

Act. Primary responsibility to pay wages to an employee

employed by a contractor rests upon the latter. But on his

failure to make payment of wages within the prescribed

period or in the event of making short payment, the principal

employer has been saddled with the responsibility to make

payment of wages in full or the unpaid balance due, as the

case may be, to the contract labour, enacts sub-section (4)

of section 21 of the Contract Labour Act. Consequently

this part of clause 23 of Ex.MW3/1 is to be discarded, being

violative of law.

42. In mercantile transactions stipulations are agreed

upon between the parties on principal to principal or

principal to agent basis. In both the propositions there is

privity of contract between them. Absence of privity of

contract would make them strangers to each other, in respect

of alleged covenanted or parol agreement, as the case may

be. In caluse 23 of Ex.MW3/1 it is projected that there is no

privity of contract by and between the Provider (the

Contractor) and the University. The proposition referred

above is absurd. Privity of contract is the relation which

exists between the immediate parties to a contract, which is

necessary to enable one person to sue another on it. It is a

relationship between persons arising under a contract.

There may be (1) privity of contract, or (2) privity of estate.

When Ex.MW3/1 is read, privity of contract between the

contractor and the University emerge out. Proposition,

referred above, cannot be given effect to.

43. " Consideration’’ of some sort or other is so

necessary to the formation of a contract. A nudum pactum,

or agreement to do or pay something on one side, without

any consideration on the other, will not at all support any

action, and a man cannot be compelled to perform it. To

constitute consideration, there must be an act, abstinence

or promise on the part of promisee or some other person at

the desire of the promisor. A consideration must be valuable

and not superficial, it must be material and not sentimental

or imaginary. It must be a material detriment to the promisee

or a benefit to the promisor. Section 2 of the Contract Act

defines consideration: "When at the desire of the promisor,

the promisee or any other person, has done or abstained

from doing, or does or abstains from doing something,

such act or abstinence or promise is called a consideration

for the promise".

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44. The consideration for a promise must have some

tangible value in the eye of law. Its adequacy is not material.

Though adequacy of consideration will not be examined

by the courts, yet it must not be colourable merely nor

illusory. A mere moral obligation arising from a past benefit

not conferred at the request of the defendant is not a good

consideration. However consideration derived from moral

obligation, in which there has been a legal right deprived

of legal remedy, the defendant would be held liable, without

putting moral duty at par with legal consideration. These

propositions may require a court or a tribunal to examine

whether there was legal consideration for the promise.

45. whether there is any legal consideration for the

promise made by the Contractor to the University? For an

answer contents of clause 15 of Ex MW3/1 are to be

examined, which are extracted thus:

"15. In consideration of the obligation undertaken

by the Provider, under this Agreement, the University

shall pay Provider charges on the basis of number of

such personnel actually deployed by the Provider

for the effective operation of this Agreement, on the

rates quoted by the Provider in their Tender based

on the direction and guidelines issued by the Local

Government (NCT of Delhi). The rates mentioned in

Tenders are as follows:"

46. As detailed above charges on the basis of number

of personnel deployed on the rates quoted by the Contractor

in Tender based on the direction and guidelines issued by

the Local Government (NCT of Delhi) where to be paid to

him by the University. In Ex.MW3/1 those rates are not

detailed. Thus tender document becomes a part of Ex.MW3/

1 . It has not been placed before the Tribunal. As detailed

above, adequacy of consideration, may prove to be beyond

the pale of jurisdiction of a civil court. But this Tribunal

has to examine adequacy of consideration to ascertain as

to whether Ex.MW3/1 is genuine and not sham and nominal.

The Tribunal is supposed to examine as to whether the

charges on the basis of number of personnel deployed on

rates quoted in tender document project minimum wages

to be paid to contract labours, besides remunerations

derived by the Contractor. Assessment of these factors

may enable the Tribunal to reach a conclusion whether the

Contractor had put his hands to Ex.MW3/1 on principal to

principal or agent to principal basis. Absence of tender

document created a vacuum. Parol evidence was brought

or record to the effect as to what payments were made to

the contractor from time to time. But absence of facts, as to

what were the rates of minimum wages, what number of

contract labours worked in a particular month, on how many

days in a month a contract labour worked, whether overtime

work was performed by a contract labour in that month,

whether a contract labour worked on Sundays, holidays

and weekly off days in a month, would leave the Tribunal

in lurch.

47. Wages sheet Ex.WW1/M4 to Ex.WW1/M9

project total work days of the respective months for which

the claimant worked, besides the number of days on which

he remained on leave without pay. These documents project

minimum rates of wages paid to him in a month, out of

which deductions towards E.P.F. and E.S.I. subscriptions

were made. Bill raised by the Contractor and sanction

accorded by the University are proved as Ex.MW3/11 to

Ex.MW3/19. Cheques issued in favour of the Contractor

are proved as Ex.MW3/5 to Ex.MW3/10. Despite my best

efforts to reconcile contents of documents referred above,

I could not work out the rates on which the Contractor was

paid by the Univesity for services rendered by him. Thus

adequacy of consideration for services rendered by the

Contractor has not surfaced over the record. Vacuum of

evidence in that regard made me to comment that the

University could not establish factors in favour of

genuineness of contract agreement Ex.MW3/1.

48. Now it would be seen whether it was the

Contractor who exercised his control or supervision on the

claimant? Factors of such control and supervision were

described in various precedents, which would be noted

herein under. In Chintaman Rao [1958(II)LLJ252] the Apex

Court ruled that the concept of employment involves three

ingredients: (1) employer (2) employee, and (3) the contract

of employment. The employer is one who employs, that is,

one who engages the services of other persons. The

employee is one who works for another for hire. The

employment is the contract of service between the employer

and employee where under the employee agrees to serve

the employer subject to his control and supervision. In

Food Corporation of India [1985(ii)LLj4] Justice Desai,

speaking for the Apex Court, announced that a contract of

employment "discloses a relationship of command and

obedience between them". Where a Contractor employs a

workman to do the work which he contracted with a third

person to accomplish, the workman of the Contractor would

not without something more become the workman of third

person.

49. In Dharangadhara Chemical Works Limited

[1957(1)LLJ477], the Apex Court ruled that test of

"supervision and control may be taken as the prima facie

test for determining the relationship of employment". It

was further laid that existence of the right in the master to

supervise and control the work to be done by the servant,

not only matter of directing that work the servant is to do

but also the manner in which he shall do his work is the

prima facie test for determining the existence of master

and servant relationship. It was suggested that correct

method of approach, would be to consider whether having

regard to the nature of work there was due control and

supervision by the employer. The greater amount of direct

control exercised over the person rendering the services

by the person contracting for them, the stronger the ground

for holding it to be a contract of service. The control and

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supervision test was reaffirmed by the Appex Court in

Chintaman Rao (supra), wherein it was ruled that "worker"

was a person employed by the management and there must

be contract of service and a relationship of master and

servant between them. In Shankar Balaji Waje [1962(1)LLJ

119], the Apex Court clarified that "control of the

management, which is necessary element of the relationship

of master and servant is not directed towards providing or

dictating the nature of the article to be produced or the

work to be done,but refers to the other incidents having a

bearing on the process of work the person carries out in

the execution of the work. The manner of work is to be

distinguished from the type of work to be performed. In

V.P. Gopala Rao [1970(11)LLJ 59], the Apex Court said that

it is the question of fact in each case whether the

relationship of master and servant exists between the

management and the workman and there is no abstract a

priori test of the work control required for establishing the

contract of service. It was laid therein that for holding that

the persons employed in the factory were workers within

the meaning of sub section (1) of section (2) of the Factories

Act 1948, it is to be considered that the fact that the

workman had to work in the factory implied certain amount

of supervision by the management and the nature and extent

of control varied in different industries and that when the

operation was of a simple nature, the control could be

exercised at the end of the day by the method of rejecting

the bidis which did not come up to the proper standard. It

is, therefore, not surprising that in recent years, the control

test, as traditionally formulated, has not been treated as an

exclusive test. In Silver Jubilee Tailoring House [1973 (11)

LLJ 495] the Apex Court ordained that " it is in its application

to skilled and particularly professional work that control

test in its traditional form has really broken down. It has

been said that in interpreting "control" as meaning the

power to direct how the servant should do the work, the

court has been applying the concept suited to a past age."

50. During the last three decades emphasis in the

field has shifted and no longer rests so strongly upon the

question of control. Control is obviously an important factor

and in many cases it may still be a decessive factor, but it

would be wrong to say that in every case it is a decessive

factor. In Shining Tailors [1983 (11) LLJ 143], the Apex Court

held that the prices rated workers working for a big tailoring

establishment were workman for the establishment. It was

observed therein that the "right of removal of the workman

or not to give work as an element of control and

supervision" which was amply satisfied to announce that

those piece rated workers were the workman for the

establishment. The Court concluded that the proposition

that "piece rate" itself indicates relationship of independent

contract, is not correct. A servant who has full liberty to

attend to his work according to his pleasure and not

according to orders of his master, is an independent

contractor. A gold smith engaged to finish jewels within a

given time and when it was open to such goldsmith to

finish jewels within the given time or earlier and engage

themselves or other of their own were held to be

independent contractors, in K. Keswa Reddiar [1957 (1)

LLJ 645] in the like manner a goldsmith who undertook the

manufacture of ornaments like other goldsmith which he

was asked to manufacture and was entitled to receive

remuneration which would depend upon the nature of the

work done, was held to be not under the order or control of

the proprietor of the concern for whom he was doing the

work, in Achuta Achar [1968(1)LLJ 500]. An agreement for

selling milk on commission was held to be a contract for

service and not a contract of service, in Abad Dairy Doodh

Vitran Kendra Sanchalak Mandal, Ahmedabad (1989

Lab.I.C. 1770). The Tiny Deposit Agents employed in

deposit mobilization activity of the bank have been held to

be falling within the definition of the workman and not an

independent contractor in the precedent in the

Management of Indian Bank [1990(1)LLJ 50].

51. As emerge out, element of control or supervision

of employer in respect of detail of work would be an

identifying mark of the servant. Where an employer retains

the power, not only of directing what work is to be done

but also of controlling the manner of doing the work, these

factors would be determinative of his status as of a master.

His control is not directed towards providing or dictating

the nature of work to be done but refers to other incidents

having a bearing on the process of work the person carries

out in the execution of the work. Control test postulates a

combination of managerial and technical functions.

52. Whether elements of control or supervision of

the University in respect of details of work of the claimant

emerge out of contract agreement Ex.MW3/1? For an

answer, a few clauses of Ex. MW3/1 are to be scanned,

which are extracted thus:

"12. Provider shall continue to be responsible for the

personnel employed by him, in respect of terms and

conditions of their service, payments, attendance, medical

care, other disciplinery matters etc. who shall remain fully

under the administrative and financial control and

supervision of the provider, except that the University shall

be the sole Arbitrator in respect of nature of the duties to

be entrusted to and the manner of performance of their

duties for the purpose of this Agreement.

13. The temporary personnel deployed by the

Provider to IGNOU shall at no time be treated as the

employees of the University and also shall have no claim

to be regularized in the services of the University. But the

provider will not change the personnel once deployed by

it in the University without prior permission of the

University, as the frequent changes in deployment of

temporary may hamper the day to day work of the

University.

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[PART II—SEC. 3(ii)]

14. The provider shall have to change over or replace

the temporary personnel as and when required by the

University whether or not such personnel are found guilty

of any misconduct. It shall not be necessary for the

University to assign any reason to the Provider or the

concerned Person or any other person in respect of any

such change and replacement required of the University."

53. As projected above clause12 announces that

personnel employed by the Contractor shall remain fully

under the administrative and financial control and

supervision of the Contractor. However an exception is

there to this general proposition to the effect that the

University shall be sole arbitrator in respect of nature of

duties to be entrusted to and the manner of performance of

their duties for the purpose of the agreement under

consideration. Another exception is contained in clause 13

wherein the Contractor has been constrained not to change

the personnel once deployed without prior permission of

the University. Further exception is contained in clause 14

wherein the Contractor is obliged to change or replace the

temporary personnel as and when required by the

University. The factors enumerated in the clause, referred

above, make it apparent that the University retained the

power, not only of directing what work was to be done by

the claimant, but also of controlling him in respect of manner

of doing the work. Power of the Contractor to replace the

claimant from his work place was made subject to permission

of the University. Despite the choice of the Contractor to

replace the claimant he could not do so, in case University

showed its unwillingness in that regard. Contra to it, the

Contractor was duty bound to change an employee if so

commanded by the University. Such a proposition was not

dependent on a contingency of the employee being found

guilty of any misconduct. Mere wish of the University was

to prevail in the matter. Thus it is crystal clear that the

University retained power of allocation of duties, besides

right to control the manner of performance of such duties

by the claimant. The claimant was to work with the

University till its pleasure. The Contractor could not exercise

his earnest will to change him, if not, consented by the

University. If the University decided to get him changed,

for any reasons whatsoever, the Contractor could not

impose him on the former, no matter his work and conduct

were satisfactory. Conspectus of these elements make it

clear that administrative control on the claimant was with

the University and not with the Contractor.

54. Contract agreement Ex. MW3/1 does not contain

any obligation on the part of the Contractor to supervise

the work of the claimant. No clause is there in the document

to show that the Contractor deployed some personnel to

supervise the work of the claimant and his other 69

colleagues. Who used to the mark attendance of the

claimant and his colleagues Ex. MW3/1 draws a blank? No

parol evidence was brought in to suggest that it was the

Contractor who supervised his work. Vacuum of facts in

Ex. MW3/1 and conspicuous absence of any ocular

evidence in that regard leave no doubt to conclude that it

were the University authorities who used to supervise the

work of the claimant and his colleagues.

55. Disciplinary control is exercised by an employer

on his employees by way of codifying rules of conduct for

them. He engrafts acts of misconduct in those rules. He

punishes his employees for their blameworthy conduct. It

is so done by him with a view to maintain discipline at the

work place and to deter potential delinquent from doing

improper behavior or to come in conflict with rules of

standard of behaviour. Right to coin an act as an improper

behaviour, falling within the ambit of misconduct, was

retained by the University. It has been detailed in clause 22

of Ex. MW3/1 that "the University shall be sole judge as to

what is against the interest of the University and as to

what constitutes misconduct''. This authority to define a

behaviour to be a misconduct for a contract employee

projects that the University had clothed itself with a right

to declare a code of conduct for the claimant and his

associates. This right is an attribute of disciplinary control

exercised by an employer on his employees.

56. Construction adopted on contents of Ex. MW3/1is

based on the standards of presumed intent of parties. The

construction, so put, with an idea to preserve the will of

the parties to Ex. MW3/1. It is the duty of a court or tribunal

to give effect to the intention of the parties in construing a

written instrument. Ascertaining general scope of Ex. MW3/1,

intention of the parties contained therein, nataure of the

instrument and legal right of the parties thereto, it is

concluded that efforts were made by the University to hide

the truth with a view to project a make-believe instrument

of engaging personnel through the Contractor. In fact the

University retained administrative and disciplinary control

over the contract employees. When veil was lifted, it

emerged that Ex. MW3/1 is sham and bogus. There are

realties of relationship of employer and employees between

the University and the claimant and his other 69 colleagues.

In view of the forgoing reasons, it is concluded that the

veil of Ex. MW3/1 is a smoke-screen, which would not

snap relationship between the University and the claimant

and his colleagues. Aforesaid two issues are accordingly

answered.

Issue No. 3

57. Dr. S.S. Bisth announces that with effect from

1.11.2007 contract for providing housekeeping services was

given to the New Contractor. He asserts that owing to

illegal demands of the claimant and his colleagues, the

New Contractor did not engage them. Thereafter

housekeeping staff, including the claimant, resorted to

illegal demonstration. A suit of injunction was filed, which

was decreed by the High Court of Delhi. Certified copy of

judgment dated 13.3.2009 has been proved as Ex. MW2/5,

by Shri Shiv Prakash.

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58. Whether above facts would espouse the cause

of the University? Answer lies in negative. As held above,

the claimant was an employee of the University, which

proposition restrains the University from awarding

housekeeping services to the New Contractor. In the garb

of award of housekeeping services to the New Contractor,

the University dispensed with the services of the claimant

and his colleagues. Action of the University squarely falls

within the ambit of definition of retrenchment, as contained

in sub-section (oo) of section 2 of the Act. No case was

projected that the case of University falls within the

exeptions, contained therin. Therefore, it is crystal clear

that the action of the University amounts to retrenchment.

As per own admission of the University, the claimant

rendered services w.e.f. 1.11.2004 till 31.10.2007, as an

employee of the Contractor. Thus it is clear that he rendered

continuous service of more than 240 days in a calendar

year, as contemplated by section 25-B of the Act. When an

employee renders services of more than one year, he is

entitled to protection/benefits contained in section 25-F of

the Act. Out of facts of the present controversy, it emerges

that services of the claimant were done away in violation

of the provisions of section 25-F of the Act. It is not the

case of the University that one month's notice or pay in

lieu thereof and retrenchment compensation was paid to

the claimant and other similarly situated employees.

Requirements contained in section 25-F of the Act are

mandatory and non-compliance thereof makes the action

of the employer illegal. Hence action of the University in

terminating services of the claimant, in the garb of awarding

contract of housekeeping services to the New Contractor,

is illegal and unjustified.

59. Whether judgement Ex. MW2/5 would come to

the rescue of the University? Answer lies in negative. Memo

of parties tell that neither the claimant nor his colleagues

were part to that suit. The suit was filed in respect of a

cause of action of civil nature. Even otherwise judgement

ex MW2/5 would not operate as res-judicata in the present

controversy. Law contained in section 11 of the Code of

Civil Procedure 1908 (in short the Code) embodies the

doctrine of res-udicata or the rule of conclusiveness of a

judgement, as to the point decided either of fact, or of law,

or of fact and law, in every subsequent suit between the

same parties. It enacts that once a matter is finally decided

by a competent court, no party can be permitted to reopen

it in a subsequent litigation. The doctrine of res-judicata

has been explained in the simplest possible manner by Das

Gupta J. in the case of Statyadhan Chosal (AIR 1960 S.C.

841) in the following words:

"The principle of res-judicata is based on the need

of giving a finality to judicial decision. What it says

is that one a res-is judicata, it shall not be adjudged

again. Primarily it applies as betweenn past litigation

and future litigation. When a matter-whether on a

question of fact or a question of law-has been

decided between two parties in one suit or proceeding

and the decision is final, either because no appeal

was taken to a higher court or because the appeal

was dismissed, or no appeal lies, neither party will be

allowed in a future suit or proceedings between the

same parties to convass the matter again."

60. It is not every matter decided in a former suit that

will operate as res-judicata in a subsequent suit. To

constitute a matter as res-judicata under section 11 of the

Code, the following conditions must be satisifed:

1. The matter directly and substantially in issue in

the subsequent suit must be the same matter

which was directly and substantially in issue

either actually or constructively in the former.

2. The former suit must have been a suit between

the same parties or between parties under whom

they or any of them claim.

3. Such parties must have been litigating under the

same title in the former suit.

4. The court which decided the former suit must be

a court competent to try the subsequent suit or

the suit in which such issue in subsequently

raised.

5. The matter directly and substantially in issue in

the subsequent suit must have been heard and

finally decided by the court in the former suit.

61. Section 11 of the Code bars trial of any suit as

well as an issue which had been decided in a former suit.

Issues are of three kinds: (i) issue of act; (ii) Issue of law:

and (iii) Mixed issues of law and facts. A decision on an

issue of fact, however erroneous it, may be, constitutes

res judicata between the parties to the previous suit and

cannot be reagitated in collateral proceedings. Law to this

effect was laid in Mathura Prashad (1970 (1) SCC 613). A

mixed issue of law and fact also, for the same reasons,

operates as res-judicata.

62. To invoke plea of res-judicata it should be shown

that the court which decided the former suit must have

been a court competent to try the subsequent suit. Thus,

the decision in a previous suit by a court competent to try

subsequent suit, will not operate as res-judicata. The

expression "competent to try" means "competent to try

the subsequent suit if brought at the time the first suit was

brought." In other words, the relevant point of time for

deciding the question of competence of the court is the

date when the former suit was broguht and not the date

when the subsequent suit was filed. In order that a decision

in a former suit may operate as res-judicata, the court

which decided that suit must have been—(a) a court of

exclusive jurisdiction, or (b) a court of limited jurisdiction;

or (c) a court of concurrent jurisdiction.

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[PART II—SEC. 3(ii)]

In Industrial jurisdiction principles analogus of

res-judicata are applicable.

63. Now it would be considered as to whether the

High Court is competent to try on industrial dispute, relating

to rights and liabilities created under the Act. Such

proposition was raised before the Apex Court in Premier

Automobiles Ltd. (1975 (II) L5. 445), wherein following

principles were enunciated:

"(I) If the dispute is not an industrial dispute, nor

does it relate to enforcement of any other right

under the Act the remedy lies only in the Civil

Court.

(II) If the dispute is an industrial dispute arising out

of a right or liability under general or common law

and not under the Act, the jurisdiction of the Civil

Court is alternative, leaving it to the election of

the suiter concerned to choose his remedy for

relief which is competent to be granted in a

particular remedy.

(III) If the industrial dispute relates to the enforcement

of right or an obligation created under the Act,

then the only remedy available to the suiter is to

get an adjudication under the Act.

(IV) If the right which is sought to be enfored is a

right created under the Act such as Chapter V-A

then the remedy for enforcement is either section

33-C or the raising of an industrial dispute, as the

case may be."

However, in relation to Principle No. 2, the Court

added that "there will hardly be a dispute which will be an

"industrial dispute" within the meaning of section 2(k) of

the Act and yet will be arising out of a right or liability

under the general or common law only and not under the

Act".

64. In Rajasthan State Road Transport Corporation

(1995 Lab. I.C. 2241), the Apex Court analysed the earlier

dicta and re-stated the law as follows:

"(1) Where the dispute arise from general law of

contract, i.e., where reliefs are claimed on the basis of the

general law of contract, a suit filed in civil court cannot be

said to be not maintainable, even though such a dispute

may also constitute an "industrial dispute" within the

meaning of Section 2(k) or Section 2-A of the Industrial

Disputes Act, 1947.

(2)Where, however, the dispute involves recognition

observance or enforcement of any of the rights or

obligations created by the Industrial Disputes Act, the only

remedy is to approach the forums created by the said Act.

(3)Similarly, where the dispute involves the

recognition, observance or enforcement of rights and

obligations created by enactments like Industrial

Employment (Standing Orders) Act, 1946—which can be

called 'sister enactments' to industrial Disputes Act—and

which do not provide a forum for resolsution of such

disputes, the only remedy shall be to approach the formus

created by the Industrial Disputes Act provided they

constitute industrial disputes within the meaning of

Section 2(K) and section 2-A of Industrial Disputes Act or

where such enactment says that such dispute shall be either

treated as an Industrial Disputes Act. Otherwise, recource

to Civil Court is open.

(4)It is not correct to say that the remedies provided

by the Industrial Disputes Act are not equally effective for

the reason that access to the forum depends upon a

reference being made by the appropriate government. The

power to make a reference conferred upon the government

is to be exercised to effectuate the object of the enactment

and hence not unguided. The rule is to make a reference

unless, of course, the dispute raised is totally frivolous

one ex-facie. The power conferred is the power to refer and

not the power to decide, though it may be that the

government is entitled to examine whether the dispute is

ex facie frivolous, not meriting an adjudication.

(5) Consistent with the policy of law aforesaid, we

commend to the Parliament and State Legislatures to make

a provision enabling a workman to approach the Labour

Court/Industrial Tribunal directly-i.e., without the

requirement of a reference by the Government-in case of

industrial disputes covered by Section 2-A of the Industrial

Disputes Act. This would go a long way in removing the

misgivings with respect to the effectiveness of the

remedies provided by the industrial Disputes Act.

(6)The certified Standing Orders framed under and

in accordance with the Industrial Employment (Standing

Orders) Act, 1946 are statutorily imposed conditions of

service and re binding both upon the employees, though

they do not amount to "statutory provisions". Any

violation of these Standing Orders entitles an employee

to appropriate relief either before the forums created by

the Industrial Disputes Act or the Civil Court where

recourse to Civil Court is open according to the principles

indicated therein.

(7)The policy of law emerging from Industrial

Disputes Act and its sister enactments is to provide an

alternative dispute resolution mechanism to the workmen,

a mechanism which is speedy, inexpensive, informal and

un-encumbered by the plethora of procedural laws and

appeals and revision applicable to civil courts. Indeed,

the powers of the Courts and Tribunals under the Industrial

Disputes Act are far more extensive in the sense that they

can grant such relief as they think appropriate in the

circumstances for putting an end to an industrial dispute."

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Same view was taken by the Apex Court in Steel

Authority of India (Supra).

65. Facts detailed in preceeding sections make out

that the rights which the claimant claim and obligations

which are imposed on the University arise out of rights

and obligations created by the Act. An industrial dispute

within the meaning of section 2(k) was referred for

adjudication by the appropriate Government to this

Tribunal, invoking its powers under clause (d) of sub-

section (1) of section 10 of the Act. High Court is not

competent to adjudicate an industrial dispute. Hence,

Prinicple 2, referred in para 63 and Principle 1 referred in

para 64 do not come into play. Therefore, judgement

Ex.MW2/5 cannot operate as res-judicata. It would not

restrain the claimant in any manner, from agitating his claim

against the University.

66. It is well settled that negative language used in

section 25-F of the Act imposes a mandatory duty on the

employer, which is condition precedent to retrenchment

of a workman. Contravention of mandatory requirements

of section 25-F of the Act would invalidate the retrenchment

and render it void ab initio. Reference can be made to the

precedents in Auro Engineering (Pvt.) Ltd., Nasik (1992

Lab I.C. 1364) and Ollur Regional Imitation Diamond

Manufacturing Industrial Co-op. Society Ltd. (1993 (II)

LL 174). As detailed above, retrenchment of the claimant is

illegal and void ab inito. Issue is therefore, answered in

favour of the claimant and against the University.

Relief.

67. As concluded above, the claimant was engaged

by the University through the Contractor by way of creation

of make believe contract agreement, which was a perfect

paper arrangement. On lifting of veil, the University was

found to be the real employer. His services were disengaged

under the grab of award of housekeeping service

agreement to the New Contractor. His retrenchment was

found to be void ab initio. He, being an employee of the

University cannot be retrenched by the Contractor or the

New Contractor. He is deemed to be in the service of the

University Question comes whetheres he is entitled to

full back wages. For an answer in his favour, he was under

an obligation to establish that he remained un-employed

since the date of his retrenchment. No evidence has been

adduced by the climant on that point. Thus it cannot be

said that he remained unemployed, since the date of

dispensing with his services by the Universty. The Apex

Court and High Courts dealt with the issue of award of

compensation, when reinstatement in service was not found

expedient. Those precedents may help the Tribunal in

ascertaining the quantum of back wages, which may be

awarded to the claimant. In S.S. Shetty (1957(11) LLJ696).

The Apex Court indicated some relevant factors which an

adjudicator has to take into account in computing

compensation in lieu of reinstatement, in the following

words:

"The industrial Tribunal would have to take into

account the terms and conditions of employment,

the tenure of service, the possibility of termination

of the employment at the instance of either party, the

possibility of retrenchment by the employer or

resignation or retirement by the workman and even

of the employer himself ceasing to exist or of the

workman being awarded various benefits including

reinstatement under the terms of future awards by

industrial Tribunal in the event of industrial disputes

arising between the parties in future...in computing

the money values of the benefits of reinstatement,

the industrial adjudicator would also have to take

into account the present value of what his salary,

benefit etc. would be till he attained the age of

superannuation and the value of such benefits would

have to be computed as from the date when such

reinstatement was ordered under the terms of the

award.

Having regard to the considerations detailed above,

it is impossible to compute the money value of this

benefit of reinstatement awarded to the appellant

with mathemathical exactitude and the best that any

tribunal or court would to under the circumstances

would be to make as correct as estimate as is possible

bearing, of course in mind all the relevant factors pro

and con".

68. A Divisional Bench of the Patna High Court in

B.Choudhary (1983) Lab. 1.1755 (1758) deduced certain

guidelines which have to be borne in mind in determining

the quantum of compensation viz. (i) the back wages

receivable (ii) compensation for deprivation of the job with

future prospect and obtainability of alternative

employment; (iii) employee's age (iv) Length of service in

the establishment (v) capacity of the employer to pay and

the nature of the employer's business (vi) gainful

employment in mitigation of damages; and (viii)

circumstances leading to the disengagement and the past

conduct. These factors are only illustrative and not

exhausitive. In addition to the amount of compensation, it

is also within the jurisdiction of the Tribunal to award

interest on the amount determined as compensation.

Furthermore, the rate of such interest is also in the discretion

of the Tribunal. Reference can be made to Tabesh Process,

Shivakashi. (1989 Lab. I.C. 1887)

69. In Assam Oil Co. Ltd. (1960) (1) (LLJ587) the Apex

Court took into account countervailing facts that the

employer had paid certain sums to the workmen and her

own earning in the alternative employment and ordered

that "it would be fair and just ot direct the appellant a

substantial sum as compensation to her". In Utkal

Machinery Ltd. (1966 (1) LL J 398) the amount of

compensation equivalent to two year salary of the

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THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

employee awarded by the industrial Tribunal was reduced

by the Supreme Court to an amount equivalent to one

year salary of the employee in view of the fact that she

had been in service with the employer only for 5 months

and also took into consideration the unusual manner of

her appointment at the instance of the Chief Minister of

the State. In A.K. Roy (1970 (1) LLJ 228) compensation

equivalent to two years salary last drawn by the workmen

was held to be fair and proper to meet the ends of justice.

In Anil Kumar Chakaraborty (1962 (II) LLJ 483) the Court

converted the award of reinstatement into compensation

of a sum of Rs. 50000/- as just and fair compensation in full

satisfaction of all his claims for wrongful dismissal from

service. In O.P. Bhandari (1986 (II) LLJ 509), the Apex Court

observed that it was a fit case for grant of compensation in

view of reinstatement. The Court awarded compensation

equivalent to 3.33 years salary as reasonable. In M.K.

Aggarwal (1988 Lab.I.C.380), the Apex Court though

confirmed the order of reinstatement yet restricted the back

salary to 50% of what would otherwise be payable to the

employee. In Yashveer Singh (1993 Lab.I.C.44) the court

directed payment of Rs. 75000/- in view of reinstatement

with back wages. In Naval Kishore (1984 (II) LLJ 473) the

Apex Court observed that in view of the special

circumstances of the case adequate compensation would

be in the interest of appellant. A sum of Rs. 2 lac was

awarded as compensation in lieu of reinstatement. In

Sant Raj (1985 (II) LLJ 19) a sum of Rs. 2 lac was awarded as

compensation in lieu of reinstatement. In Chandu Lal (1985

Lab.I.C.1225) a compensation of Rs. 2 lac by way of back

wages in lieu of reinstatement was awarded. In Ras Bihari

(1988 Lab.I.C.107) a compensation of Rs. 65000/- was

granted in lieu of reinstatement, since the employee was

gainfully employed elsewhere. In V.V. Rao (1991

Lab.I.C.1650) a compensation of Rs. 2.50 lac was awarded

in lieu of reinstatement.

70. The claimant rendered continuous four years'

service to the University, when he was illegally retrenched.

He had to fight for about four years for redressal of his

grievances. The circumstances in which he was retrenched

and mass unemployment prevalent in economic field which

may come in the way when some one goes for an alternative

employment, besides other factors of this case persuade

me to award 20 percent back wages from the date of

retrenchment till the date the award becomes operative

under section 17-A of the Act, besides reinstatement of the

claimant in the service of the University, with continuity

and all consequential benefits. An award is, accordingly,

passed. It be sent to the appropriate Government for

publication.

DR. R.K. YADAV, Presiding Officer

Dated: 09.12.2011.

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New Delhi, the 1st February, 2012

S.O... 816.—In pursuance of Section 17 of the

Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 16/2010)

of the Central Government Industrial Tribunal cum Labour

Court No. 1 New Delhi as shown in the Annexure, in the

Industrial dispute between the Vice Chancellor, Indira

Gandhi National Open University and their workman, which

was received by the Central Government on 01.02.2012.

[F.No.L-42012/105/2009-IR(DU)]

RAMESH SINGH, Desk Officer

ANNEXURE

BEFORE DR. R.K. YADAV, PRESIDING OFFICER,

CENTRAL GOVT. INDUSTRIAL TRIBUNAL NO.1,

KARKARDOOMA COURTS COMPLEX: DELHI

I.D.No. 16/2010

Smt. Monika W/o Shri Ram Ashish,

H.No. 853, Balmiki Basti,

Maidan Garhi,

New Delhi.

Claimant

Versus

The Vice Chancellor,

Indira Gandhi National Open University,

R.No. 1, Block No. 8, Maidan Garhi,

New Delhi-110068.

Management

AWARD

Indira Gandhi National Open University (hereinafter

referred to as the University) was established in the year

1985 to provide cost effective and quality education to

large sections of people, including those living in remote

and far flung areas, through distance education

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1869

programmes. The University functions not only within the

boarders of the country but offers education programmes

in at least 35 countries. Besides Regional Centres across

the country and in foreign countries, the University has its

Central Campus at Maidan Garhi, New Delhi, which is spread

over an area of 151.32 acres of land. At its Central Campus,

the University has a strength of about 800 officers/officials

working there.

2. The University requires considerable man-power

to carry out housekeeping services, which includes cleaning

and sanitation activities. Housekeeping services are out-

sourced by the University through a private contractor. In

the year 2004, the University awarded contract for

housekeeing services to Sybex Computer Systems (Pvt.)

Ltd. (in short the Contractor). The Contractor engaged

around 70 sweepers and cleaners to carry out its contractual

obligations. On 1st November 2007, the University awarded

contract for housekeeping services to Spick & Span

Facilities Management (Pvt.) Ltd. (in short the New

Contractor). Initially the New Contractor decided to retain

services of the sweepers and cleaners engaged by the

Contractor. But negotiations between the New Contractor

and employees of the Contractor turned into a complete

fiasco. Sweepers and cleaners resorted to agitation and sat

on "dharna" outside the gate of Maidan Garhi Campus of

the University. Legal wrangle started between the

University and the agitators. Efforts were made from either

side to wrench one's opponent.

3. Resort to the jurisdiction of Conciliation Officer

was taken by the sweepers and cleaners, by way of filing

their respective claim statements. Conciliation Officer

initiated conciliation proceedings, as contemplated by sub-

section (1) of section 12 of the Industrial Disputes Act,

1947 (in short the Act.) No settlement could arrive at between

the parties and a failure report was submitted to the

appropriate Government. On consideration of the failure

report, so submitted, the appropriate Government referred

the dispute to this Tribunal for adjudication, invoking its

powers under clause (d) of sub-section (1) of section 10 of

the Act, vide order No. L-42012/105/2009-IR(DU) New Delhi

dated 28th January, 2010, with following terms:

"Whether the action of the management of Indira

Gandhi National Open University, in terminating the

services of their workman Smt. Monika w.e.f. 01/11/

2007 is legal and justified? If not, what relief the

workman is entitled to?"

4. Smt. Monika claims in her claim statement that she

was working with the University as "Safai Karamchari" in

its housekeeping department since October, 2006. She had

rendered more than 240 days continuous service with the

University. At the time of entering into the services of the

University, she was asked to fill in certain forms, which

forms duly filled and signed by her are in the custody of

the University. No appointment letter was issued in her

favour, inspite of her request in that behalf. Since inception

of her engagement, the University had indulged into unfair

labour practices and flouted implementation of labour laws

concerning her service conditions. At times she, alongwith

her colleagues, was kept at its rolls by the University, while

during intermittent spells her services were transferred at

the roll of one contractor or the other. This device was

adopted with a view to discount her continuity in service

and seniority in employment so that liability to pay

retrenchment compensation under the Act and other

benefits under various labours laws may be avoided.

5. Contributions towards social securities, namely,

ESI, medical benefits and provided fund were deducted

from her wages by the University, pleads the claimant.

Despite payment of contributions towards above social

securities, the University never issued any medical card

and provident fund statement or account number, but

passed on that responsibility on the shoulders of the

Contractor. Facility of earned, annual, privileged, casual,

weekly off, festival and medical leaves were not accorded.

Though work was taken on Sundays and holidays from

her but no compensatory leave or overtime wages were

given to her. She used to get wages at the rate of Rs. 172/-

per days, amounting to somewhere near to Rs. 4500/- per

month.

6. On 1st November 2007, the University decided to

place her services at the disposal of a contractor, whose

engagement for housekeeping work was neither

communicated nor he was introduced to her. To her utter

surprise a contractor surfaced on scene and told her and

her colleagues that he will pay them Rs. 3470/- each per

month. He announced that interested persons may stay at

work-place and others may leave for good. The claimant

and her colleagues wanted to see the Vice-Chancellor to

appraise him of their grievances, but they were stopped at

the gate of the University campus. Services of the claimant

and others were terminated. The University called some

anti-social elements and got sever beatings administered

to her and her colleagues at their hands. Police was also

called by the University authorities, to keep their hands

clean.

7. The University had not served one month notice

nor paid wages in lieu of the notice. Retrenchment

compensation was also not paid to her. Her services were

not done away on infliction of punishment for a disciplinary

action, hence action of the University is violative of the

provisions of the Act and principles of natural justice. She

claims reinstatement in the services of the University with

continuity and consequential benefits.

8. The University demurs the claim pleading that the

claimant was never employed by it. No salary/wages or

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[PART II—SEC. 3(ii)]

other emoluments were paid by it to the claimant. There

existed no relationship of employer and employee between

the parties. Hence there was no occasion for the University

to terminate services of the claimant. In view of these facts,

reference order is improper and claim statement is liable to

be rejected, pleads and University.

9. To outsource housekeeping services, the

University engaged services of the Contractor, vide

agreement dated 1.11.2004, which agreement was extended

upto 31.10.2007. The claimant was working with the

Contractor to provide housekeeping services at the campus

of the University. The Contractor is essential and proper

party, pleads the University. In agreement entered into

between the Contractor and the University it was stipulated

that employees of the Contractor at no point of time would

be treated as employees of the University. The University

laid emphasis on a few clauses of the agreement, which are

extracted thus:

"12. Provider shall continue to be responsible for the

personnel employed by him, in respect of terms and

conditions of their service, payments, attendance,

medical care, other disciplinary matters etc. who shall

remain fully under the administrative and financial

control and supervision of the Provider, except that

the University shall be the sole Arbitrator in respect

of nature of the duties to be entrusted to and the

manner of performance of their duties for the purpose

of this Agreement.

13. The temporary personnel deployed by the

Provider to IGNOU shall at no time be treated as the

employees of the University and also shall have no claim

to be regularized in the services of the University. But the

Provider will not change the personnel once deployed by

it in the University without prior permission of the

University as the frequent changes in deployment of

temporary may hamper the day to day work of the

University.

23. There is no privity of contract by and between

the Provider and the University. The Temporary shall have

no right to make any claim against the University directly

or indirectly, monetary including wages or otherwise. The

Temporary shall also have no right to claim for any

regularization. The Temporary shall also have no claim

against the University of any dues, statutory or otherwise.

Similarly, even the representative of any Temporary who

have worked in the University shall have no right or claim

against the University.

24. The Provider has to ensure that the Temporaries

deployed are not forming any Association/Forum in respect

of IGNOU matter nor they should be allowed to join in any

Association/forum of IGNOU.

25. The Provider has to ensure timely deployment of

Temporaries as required by IGNOU and fulfil other

obligation stated in the above said terms and conditions

failing which penalty will be imposed by the University on

case to case basis from time to time. The decision of the

University will be final.''

10. When contract, referred above, expired with efflux

of time, contract for housekeeping services was awarded

to the New Contractor, who initially sought to retain the

services of houskeeping staff for his own contract.

However, owing to illegal and unjustified demands of the

housekeeping staff, the New Contractor did not engage

the claimant and her other colleagues. The claimant and

her colleagues resorted to illegal demonstration in the

University premises. A civil suit being CS(OS) No. 83 of

2008 was instituted before High Court of Delhi. The High

Court passed an interim injunction order on 15.1.2008

against the housekeeping staff and ultimately decreed the

suit on 13.3.2009.

11. The University had denied all allegations levelled

by the calimant in her claim statement. It is pleaded that the

claimant knew her status, being an employee of the

Contractor. Her services were terminated by the Contractor

and the University has no role to play in so called

termination of her services. Her claim against the University

is illegal, unwarranted and unjustified. It is pleaded that

her claim may be dismissed.

12. An application moved by the University, to

implead the Contractor as a party, was declined vide order

dated 20.4.2010.

13. On pleadings of the parties, following issues were

settled:

1. Whether there was relationship of employer and

employee between the claimant and the

management?

2. Whether the claimant, was an employee of Sybex

Computer System Pvt. Ltd., the Contractor?

3. As in terms of reference.

4. Relief.

14. To discharge onus resting on her, the claimant

examined herself and closed her evidence. The University

examined Smt. Bimla Madan, Shri Shiv Prakash,

Dr. S.S. Bisht and Shri Ashok Kumar Gupta to substantiate

its case.

15. Arguments were heared at the bar at length.

Shri V.N. Kaushik, assisted by Ms. Sulekha Thakur,

authorised representative, advance arguments on behalf

of the claimant, Shri V.K. Rao, assisted by Shri Aly Mirza,

authorised representative and Vibhas Vaibhav, Asstt.

Registrar (Law), raised submissions of behalf of the

University. I have given my careful considerations to the

submissions made at the bar and cautiously perused the

record. My findings on issues involved in the controversy

are as follows:

Issue No. 1 & 2.

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16. Affidavit Ex. WW1/A was tendered as evidence

on behalf of the claimant, wherein she sweared that she

was in the employment of the University as "Safai

Karamchari'' since October 2006. It has been projected in

Ex. WW1/A that she rendered more than 240 days service

with the University. Except this new fact, other facts detailed

in Ex. WW1/A are facsimile of contents of claim statement,

which has been proved as Ex WW1/M1. She candidly

admitted her signatures on documents Ex. WW1/M2 to

Ex. WW1/M7.

17. Smt. Bimla Madan unfolds that Regional Office

of the Employees' Provident Fund Organisation had given

code number as DL-24878 to the Contractor, while code

number 2950 was given to Smt. Monika, the employee of

the above company. Name of Monika appears in statements

of contributons Ex. MW1/1 and Ex. MW/1/2, filed by her

employer for the period 1.4.2006 to 31.3.2007 respectively.

18. Shri Shiv Prakash entered the witness box to

prove copy of plaint, filed by the University before High

Court of Delhi, written statement of defendant No. 3 to 6,

affidavit of Shri U.S. Tolia tendered as evidence in that

case, interim order dated 15.1.2008 and judgement dated

13.3.2009 passed by Justice Ms. Rekha Sharma. These

documents are proved as Ex. MW2/1 to MW2/5

respectively. He clarified that no appeal was preferred

against the judgement Ex. MW2/5.

19. Dr. S.S. Bisht tendered his affidavit Ex. MW3/A

as evidence, wherein he announced that the claimant was

never appointed by the University in its services. No salary

was ever paid to her. Services of the Contractor were availed

to outsource housekeeping services vide agreement dated

1.11.2004, which was subsequently extended upto

31.10.2007. The claimant was working with the Contractor.

With effect from 1.11.2007 contract to provide housekeeping

services was awarded to the New Contractor. He projects

that when she was not engaged by the New Contractor,

she alongwith her colleagues resorted to illegal

demonstration in the premises of the University. Story of

filing civil suit and orders thereon have been re-affirmed

by Dr. Bisht. Being an employee of the contractor, she had

filed a wrong claim statement, which is liable to be

dismissed, asserts Dr. Bisht.

20. Shri Ashok Kumar Gupta details that the

University was maintaining an account with Maidan Garhi

branch of the Punjab National Bank. The University had

issued cheques in favour of the Contractor, details of those

cheques are given in Ex. MW4/A. He identifies signatures

of Shri Mohan Lal, Branch Manager, on Ex. MW3/21 and

announces that contents of that document are true and

correct, as he himself had checked the records.

21. When facts testified by the claimant, Smt. Bimla

Madan, Dr. S.S.Bisht and Ashok Kumar Gupta are

appreciated, it came to light that the claimant had detailed

facts which are inconsistent to each other. In her claim

statement she projected a case that she was in the service

of the University since October 2006. Self-serving words,

deposed by the claimant, could not withstand rigors of

cross-examination, wherein she admitted that Ex.WW1/M2,

Ex. WW1/M3, Ex WW1/M4, Ex.WW1/M5, Ex. WW1/M6

and Ex. WW1/M7 bear her signatures. When perused it

came to light that Ex WW1/M4 to Ex. WW1/M7 are wage-

sheets of the Contractor, though which salary of the

claimant and her colleagues were released by the former in

their favour. These documents project her to be an employee

of the Contractor. Thus by an admission of her signatures

on above documents she allowed a fact to spill over, which

demolishes her case of being an employee of the University.

Ex. WW1/M2 and Ex.WW1/M3 are also photocopy of

scrolls through which payments were released by the

Contractor to the claimant and her colleagues. In the end

she gave in and deposed that she was not aware as to who

engaged her. However she made a faint attempt to project

her cause when she asserted that she used to work for the

University. Conspectus of above facts spill the beans and

announce her to be an employee of the Contractor.

22. Dr. S.S. Bisht erected castle for the University

brick by brick when he deposed that the claimant was

working with the Contractor, whom housekeeping services

were outsourced vide agreement dated 1.11.2004, copy of

which is Ex.MW3/1. This agreement was extended upto

31.10.2007. When aforesaid contract expired, contract for

housekeeping services was awared to the New Contractor,

vide agreement EXMW3/2. When New Contractor did not

engage the services of the claimant and her colleagues,

they resorted to illegal demonstration in the premises of

the University. The Contractor used to raise his bills, to

whom payments were made through cheques Ex.MW3/5,

Ex.MW3/6, Ex.MW3/7, Ex.MW3/8, Ex.MW3/9, and

Ex.MW3/10, deposes the witness. Some of the bills raised

by the Contractor, besides sanction accorded by the

University are Ex.MW3/11, Ex.MW3/12, Ex.MW3/13,

Ex.MW3/14, Ex.MW3/15, Ex.MW3/16, Ex.MW3/17,

Ex.MW3/18, and Ex.MW3/19 , Dr. Bisht detailed. Payments

were made to the Cotractor through cheques, which were

honoured and cleared and Letter Ex.MW3/21, was written

by the bank in that regard. He had proved list of contractors

as Ex.MW3/W2, to whom the work was awarded by the

University since 16.12.1991 till date. Out of facts unfolded

by Dr. Bisht it came over the record that the University had

outsourced housekeeping services since 16.12.1991. On

1.11.2004 work was awarded to the Contractor and on

1.11.2007 it was awarded to the New Contractor. Claimant

was an employee of the Contractor, who used to pay wages

to her. Smt. Bimla Madan gives re-affirmation to facts

unfolded by Dr. Bisht. She had proved statements of

contribution, filed by the Contractor in the Regional Office

of the Employees' Provident Fund Organisation, In which

statements name of the claimant does appear as an

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[PART II—SEC. 3(ii)]

employee of the Contractor. Shri Ashok Kumar Gupta proves

various payments made by the University to the Contractor,

details of which are enlisted in Ex.MW3/21. Sequences of

events, brough over the record through the depositions of

aforesaid witnesses and documents proved by them,

highlight that the claimant was an employee of the

Contractor, who used to make payment of her salaries to

her. It was the Contractor who was her pay master.

23. Whether the claimant, who was an employee of

the Contractor, can maintain a dispute against the

University? For an answer to this proposition, the Tribunal

has to take note of the law contained in section 10 of the

Contract Labour (Regulation and Abolition) Act, 1970 (in

short the Contract Labour Act), which makes provison for

prohibition of employment of contract labour. For sake of

convenience provisons of section 10 of the Contract Labour

Act are reproduced thus:

"10. Prohibition of employment of contract labour:—

(1)Notwithstanding anything contained in this Act,

the appropriate Government may, after consultation with

the Central Board or, as the case may be, a State Board,

prohibit, by notification in the Official Gazette, employment

of contract labour in any process, operation or other work

in any establishment.

(2)Before issuing any notification under sub-section

(1) in relation to an establishment, the appropriate

Government shall have regard to the conditions of work

and benefits provided for the contract labour in that

establishment and other relevant factors, such as—

(a) whether the process, operation or other work is

incidental to, or necessary for the industry, trade,

business, manufacture or occupation that is

carried on in the establishment,

(b) whether it is of perennial nature that is to say, it is

of sufficient duration having regard to the nature

of industry, trade, business, manufacture or

occupation carried on in that establishment;

workmen in that establishment or an establishment

similar thereto;

(d) whether it is sufficient to employ considerable

number of whole-time workmen. Explanation—if

a question arises whether any process or operation

or other work is of perennial nature, the decision

of the appropriate Government there shall be

final."

24. As emerge out of the provisions of sub-section

(1) of section 10 of the Contract Labour Act, the appropriate

Government may, by notification in the official gazette,

prohibit employment of contract labour in any process,

operation or other work in any establishment. When

employment of contract labour is prohibited, by issuance

of a notification in official gazette by the appropriate

Governent, what would be the status of the contract labour

employed in the establishment? Such a question arose

before the Apex Court in steel Authority of India Ltd. [2001

(7) S.C.C.]. The Apex Court ruled therein that there cannot

be automatic absorption of contract labour by principal

employer on issuance of notification by the appropriate

Government on abolition of contract labour system, under

sub section (1) of section 10 of the contract labour Act. It

would be expedient to reproduce the law laid by the Apex

Court, which is extracted thus:

"....they fall in three classes : (1) 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 adjudicator/

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 contract labour working in the

establishment was ordered (2) where contract was

found to be a sham and nominal, rather a camouflage,

in which case the contract labour working in the

establishment of the principal employer were held, in

fact an in reality, the employees of the principal

employer himself. Indeed such cases do not relate to

the abolition of contract labour but present instances

wherein the court pierce the veil and declared the

correct position as a fact at the stage after

employment of contract labour stood prohibited, (3)

where in discharge of a statutory obligation of

maintaining a canteen in establishment the principal

employer availed the services of the contractor, the

courts have held that the contract labour would

indeed be employees of the principal employer''.

25. The Court ruled that neither section 10 of the

Contract Labour Act nor any other provision in that Act,

whether expressly or by necessary implication, provides

for automatic absorption of contract labour on issuance of

a notification by the appropriate Government under sub

section (1) of section 10, prohibiting employment of

contract labour, in any process, operation or other work in

any establishment. Consequently the principal employer

cannot be required to order for absorption of the contract

labour working in the establishment concerned. It was

further ruled therein that in Saraspur Mills case [1974(3)

SSC 66], the workman engaged for working in the canteen

run by the Cooperative Society for the appellant were the

employees of the appellant mills. In Basti Sugar Mills (AIR

1964 S.C. 355) a canteen was run in the factory by the

Cooperative Society and as such the workers working in

the canteen were held to be employees of the establishment.

The Apex Court ruled that these cases fall in class (3)

mentioned above. Judgement in Hussainbhai (1978 Lab.

I.C. 1264) was considered by the Apex Court in the said

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precedent and it was ruled therein that the said precedent

falls in class (2), referred above. The Apex Court concluded

that on issuance of prohibitive notification under section

10 of the Contract Labour Act prohibiting employment of

contract labour or otherwise, in an industrial dispute

brought before it by any contract labour in regard to

conditions of service, the Industrial Adjudicator will have

to consider the question whether the contractor has been

interposed either on the gorund of having undertaken to

produce any given result for the establishment or for supply

of contract labour for work of the establishment under a

genuine contract or is a mere ruse/camouflage to evade

compliance of various beneficial legislation so as to deprive

the workers of the benefit thereunder. If the contract is

found to be not genuine but a mere camouflage, the so

called contract labour will have to be treated as employees

of the principal employer who shall be directed to regularize

the services of the contract labour in the establishment

concerned, subject to the conditions as may be specified

by it for that purpose.

26. As announced by the Apex Court, on issuance of

a prohibitive notification prohibiting employment of

contract labour or otherwise in any industrial dispute

brought before it by the contract labour in regard to

conditions of his service, the industrial adjudicator will

have to consider the question whether the contractor has

been interposed either on the ground of having undertaken

to produce any give result in the establishment or for supply

of the contract labour for the work of the establishment

under a genuine contract or it is a mere ruse/camouflage to

evade compliance of beneficial legislation so as to deprive

the workers of the benefits therein. Thus it was ruled that a

contract labour can raise a dispute before the industrial

adjudicator in regad to his conditions of service and in

case the contract is found to be not genuine but a mere

camouflage, the so called contract labour will have to be

treated as employees of the principal employer. Also see

Standard Vacuum Refining Co. of India Ltd. [1960 (II) LLJ.

223], which was referred with approval in Steel Authority

of India.

27. In Shivnandan Sharma [1995(1) LLJ 688], the

respondent Bank entrusted its Cash Department under a

contract to the Treasures who appointed cashiers,

including the appellant Head Cashier. The question before

the Apex Court was: was the appellant an employee of the

Bank? On construction of the agreement entered into the

bank and the Treasure, the Court laid down:

"If a master employs a servant and authorizes him to

employ a number of persons to do a particular job

and to guarantee their fidelity and efficiency for a

cash consideration, the employees thus appointed

by the servant would be equally with the employer,

servant of the master."

In the above precedent the Apex Court for the first

time laid down the crucial test of supervision and control

for determining the relationship of employer and employee.

28. In Hussainbhai (supra) the petitioner, who was

manufacturing ropes, entrusted the work to a contractor

who engaged his own workers. When, after some time, the

workers were not engaged, they raised an industrial dispute

that they were denied employment by the petitioner. On

reference of that dispute, the labour court passed an award

against the petitioner. When matter reached the Apex Court,

on examination of various factors and applying the effective

control test, it was held that though there was not direct

relationship between the petitioner and the workers yet on

lifting the veil and looking at the conspectus of factors

governing employment, the naked truth, though draped in

different perfect paper arrangement, was that the real

employer was the petitioner, not the immediate contrator.

The Apex Court stated law in following words:

"Where a worker of group of workers labours of

produce goods or services and these goods of

services are for the business of another, that other

is, in fact, the employer. He has economic control

over the workers' subsistance, skill, and continued

employment. If he, for any reason, chokes off, the

workers is, virtually, laid off. The presence of

intermediate contractor with whom alone the workers

have immediate or direct relationship ex-contractu is

of no consequence when, on lifting the veil or looking

at the conspectus of factors governing employment,

we discern the naked truth, though draped in different

perfect paper arrangement, that the real employer is

the management, not the immediate contractor***.

If the livelihood of the workmen substantially

depends on labour rendered to produce goods and

services for the benefit and satisfaction of an

enterprise, the absence of direct relationship or the

presence of dubious intermediaries or the make-

believe trappings of detachment from the

management cannot snap the real-life bond. The story

may vary but the inference defies ingenuity. The

liability cannot be shaken off. Of course, if there is

total dissociation in fact between the disowning

management and the aggrieved workmen, the

employment is, in substance and real-life terms, by

another. The management's adventitious connections

cannot ripen into real employment."

As noted above, this precedent does not present an

illustration of abolition of contract labour but an instance

where the Court pierced the veil and declared the correct

position to the effect that the contract labours were

employees of the principal employer and not of the

contractor.

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29. In Steel Authority of India (supra) it has been

ruled that the term "contract labours" is a species of

workman. A workman may be hired: (1) in an establishment

by the principal employer or by his agent with or without

the knowledge of the principal employer, or (2) in

connection with the work of an establishment by the

principal employer through a contractor or by a contractor

with or without the knowledge of principal employer. Where

a workman is hired in or in connection with the work of an

establishment by the principal employer through a

contractor, he merely acts as an agent so there will be master

and servant relationship between the principal employer

and the workman. But when a workman is hired in or in

connection with the work of an establishment by a

contractor, either because he has undertaken to produce a

given result for the establishment or because he supplies

workmen for any work of the establishment, a question

might arise whether the contractor is a mere camouflage as

in Hussainbhai's case (supra) and in Indian Petrochemicals

Corporation case [1999 (6) S.C.C. 439] etc.; if the answer is

in affirmative, the workman will be in fact an employee of

the principal employer, but if the answer is in the negative,

the workmen will be a contract labour.

In view of the legal proposition, referred above, it is

concluded that the claimant can maintain this dispute

against the University since he agitates that the contract

agreement between the University and the Contractor is

sham and nominal.

30. Whether any directions for deeming the contract

labour as having become the employees of the principal

employer can be issued, when the contractor or the principal

employer had violated the provisions of the Contract

Labour Act? To find an answer, provisions of that Act are

to be examined. The Contract Labour Act regulates

conditions of workers in contract labour system and

provides for its abolition by the appropriate Government

as provided by section 10 of that Act. In regard to regulatory

measures section 7 requires the principal employer to get

itself registered, while section 12 obliges every contractor

to obtain a licence, under the provisions of that Act. Section

9 places embargo on the principal employer of an

establishment from employing contractor labour in the

establishment, when either it is not registered or its

registration has been revoked. Section 12 of the Contract

Labour Act imposes a liability on a contractor not to

undertake or execute any work through contract labour

except under and in accordance with a licence. Sections 23,

24 and 25 make contraventions of the provisions of that

Act or Rules made thereunder penal. In Dena Nath [1992

Lab. I.C. 75] the Apex Court considered the question,

whether non-compliance of the provisions of section 7

and 12 by the principal employer and the contractor

respectively would make the contract labour employed by

the principal employer as the employee of the latter. It was

ruled that only consequence of non-compliance either by

the principal employer of section 7 or by the contractor in

complying the provisions of section 12 is that they are

liable for prosecution under the said Act. But the employees

employed through the contractor cannot be deemed to be

the employees of the principal employer.

31. In the Steel Authority of India (supra) the Apex

Court laid imphasis ".... the consequence of violation of

Sections 7 and 12 of the CLRA Act is explicitly provided in

Sections 23 and 25 of the CLRA Act, it is not for the High

Courts or this Court to read in some unspecified remedy in

Seciton 10 or substitute for penal consequence specified

in Secitons 23 and 25 a different sequel, be if absorption of

contract labour in the establishment of principal employer

of a lesser or harsher punishment. Such an interpretation

of the provisions of the statute will be far beyond the

principle of ironing out the creases and the scope of

interpretative legislation and as such, clearly

impermissible". The above authoritative pronouncements

make it clear that on violations of the provisions of the

Contract Labour Act or Rules made thereunder, the contract

labour could not be deemed to have become the employee

of the principal employer.

32. Whether this Tribunal has power to order for

abolition of contract labour system in the establishment of

the University? For an answer, legal dicta is to be

considered. Before enactment of the Contract Labour Act,

the industrial adjudicator, inappropriate cases, used to

issue directions to the establishment concerned to abolish

or modify system of contract labour. Reference can be made

to precedents in United Salt Works and Industries Ltd.

[1962(I) LLJ. 131], Shibu Metal Works [1966(I) LLJ. 717],

National Iron & Steel Co. [1967(II) LLJ. 23] and Ghatge and

Patil (Transport) Pvt. Ltd. [1962(I) LLJ. 566], The National

Commission on Labour (1966) in para 29.11 of its report,

enumerated those factors, on which abolition of contract

labour was ordered, thus:

"29.11. Judicial awards have discouraged the practice

of employment of contract labour, particularly when

the work is (i) perennial and must go on from day to

day; (ii) incidental and encessary for the work of the

factory; (iii) sufficient to employ a considerable

number of whole time workmen; and (iv) being done

in most concerns through regular workmen. These

awards also came out against the system of

' middlemen'."

33. After Contract Labour Act was brought on statute

book, the Apex examined jurisdiction of the industrial

adjudicator to issue directions to the establishment to

abolish contract labour in Vegoils Private Ltd. [1971 (2)

S.C.C. 724] and ruled that it would be proper that the

question, whether the contract labour in the appellant

industry was to be abolished or not, be left to be dealt with

by the appropriate Government under the provisions of

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that Act, if it becomes necessary. The observations made

by the Court are extracted thus:

"The appropirate Government when taking action

under Section 10 will have an overall picture of the

industries carrying on similar activities and decide

whether contract labour is to be abolished in respect

of any of the activities of that industry. Therefore, it

is reasonable to conclude that the jurisdiction to

decide about the abolition of contract labour, or to

put it differently, to prohibit the employment of

contract labour, is now to be done in accordance

with Section 10. Therefore, it is proper that the

question whether the contract labour regarding

loading and unloading in the industry of the appellant

is to be abolished or not, is left to be dealt with by

the appropriate Government under the Act, if it

becomes necessary. On this ground, we are of the

opinion that the direction of the Industrial Tribunal

in this regard will have to be set aside.***. The

legality of the direction given by the Industrial

Tribunal abolishing contract labour in respect of

loading and unloading from May 1, 1971, can also be

considered from another point of view. The Central

Act, as mentioned earlier, had come into force on

February 10, 1971. Under Section 10 of the said Act

the jurisdiction to decide matters connected with

prohibition of contract labour is now vested in the

appropriate Government. Therefore, with effect from

February 10, 1971, it is only the appropriate

Government that can prohibit contract labour by

following the procedure and in accordance with

provision of the Central Act. The Industrial Tribunal,

in the circumstances, will have no jurisdiction,

through its award dated November 20, 1970, to give

a direction in that respect which becomes,

enforceable after the date of the coming into force of

the Central Act. In any event, such a direction

contained in the award cannot be enforceable from a

date when abolition of contract labour can only be

done by the appropriate Government in accordance

with the provisions of the Central Act."

34. In Gujrat Electricity Board [1995(5) S.C.C. 27] the

same view was taken by the Apex Court holdings that the

authority to abolish the contract labour vests in the

appropriate Government and not in any court including

the industrial adjudicator. It would be apposite to reproduce

the observation of the court thus:

"53. Our conclusions and answers to the questions

raised are, therefore, as follows:

(i) In view of the provisions of Section10 of the Act,

it is only the appropriate Government which has

the authority to abolish genuine labour contract

in accordance with the provisions of the said

Section. No Court including the industrial

adjudicator has jurisdiction to do so.

(ii) If the contract is sham or not genuine, the

workmen of the so-called contractor can raise an

industrial dispute for declaring that they were

always the employees of the principal employer

and for claiming the appropriate service

conditions. When such disupte is raised, it is not

a dispute for abolition of the labour contract and

hence the provisions of Section 10 of the Act will

not bar either the raising or the adjudication of

the dispute. When such dispute is raised, the

industrial adjudicator has to decide whether the

contract is sham or genuine. It is only if the

adjudicator comes to the conclusion that the

contract is sham, that he will have jurisdiction to

adjudicate the dispute. If, however, he comes to

the conclusion that the contract is genuine, he

may refer the workmen to the appropriate

Government for abolition of the contract labour

under Section 10 of the Act and keep the dispute

pending. However, he can do so if the dispute is

espoused by the direct workmen of the principal

employer. If the workmen of the principal employer

have not espoused the dispute, the adjudicator,

after coming to the conclusion that the contract

is genuine, has to reject the reference, the dispute

being not an industrial within the meaning of

Section 2(k) of the ID Act. He will not be competent

to give any relief to the workmen of the erstwhile

contractor even if the labour contract is abolished

by the appropriate Government under Section 10

of the Act.

(iii) If the labour contract is genuine a composite

industrial dispute can still be raised for abolition

of the contract labour and their absorption.

However, the dispute, will have to be raised

invariably by the direct employees of the principal

employer. The industrial adjudicator, after receipt

of the reference of such dispute will have first to

direct the workmen to approach the appropriate

Government for abolition of the contract labour

under Section 10 of the Act and keep the reference

pending. If pursuant to such reference contract

labour is abolished by the appropriate

Government, the industrial adjudicator will have

to give opportunity to the parties to place the

necessary material before him to decide whether

the workmen of the erstwhile contractor should

be directed to be absorbed by the principal

employer, how many of them and on what terms.

If, however, the contract labour is not abolished,

the industrial adjudicator has to reject the

reference.

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(iv) Even after the contract labour system is abolished,

the direct employees of the principal employer

can raise an industrial dispute for absorption of

the ex-contractor's workmen and the adjudicator

on the material placed before him can decide as to

who and how many of the workmen should be

absorbed and on what terms."

35. In Steel Authority of India (supra) the Apex Court

had referred the precedents in Vegoils case (supra) and

Gujrat Eelctricity Board (supra) with approval. Thus it

emerges that power to abolish contract labour system vests

with the appropriate Government, under Section 10 of the

Contract Labour Act, and not with and court including the

industrial adjudicator. This Tribunal has been saddled with

any responsibility to abolish contract labour in an

establishment, on parameters enacted in sub-section (2) of

Section 10 of the Contract labour Act.

36. Now I would turn to the facts of the present

controversy. It is not a case where an employee of a

contractor, employed in a statutory canteen, has invoked

the jurisdiction of this Tribunal. This matter, as projected

by the claimant, is left to be approached on the proposition

as to whether contract agreement entered into between the

University and the Contractor was sham and nominal. For

an answer to this propostion, it would be expendient to

examine the contract agreement, which has been proved as

Ex.MW3/1 by Dr. Bisht, In construction of contents of

Ex. MM3/1, this Tribunal cannot be oblivions of the rulex

viz., written instrument shall, if possible, be so interpreated

"ut res magic valeat quam pereat" ( a liberal construction

should be put upon written instruments, so as to uphold

them, if possible) and that such meaning shall be given to

it as may carry out and effectuate to the fullest extent the

intention of the parties.

37. Elementary principle of law relative to contracts

is that parties to contracts are to be allowed to regulate

their rights and liabilites themselves and the Courts will

only give effect to the intention of the parties as it is

expressed by the contract. However the law in some cases

overrides the will of the individual and renders ineffective

and futile his expressed intention or contract. No court or

tribunal will lend its aid to a man who founds his cause of

action upon an immoral or an illegal act. A contract cannot

be made the subject of an action if it be impeachable on the

grounds of dishonesty, or as being opposed to public

policy, if it be either contra bonos mores, or forbidden by

law. No court tribunal will allow itself to be made the

instrument of enforcing obligations alleged to arise out of

a contract or transaction which is illegal.

38. Whether Ex. MW3/1 contains clauses which are

contra bonos more of forbidden by law? When persued,

clause 24 of Ex. MW3/1 makes it clear that right to form or

join an association, in respect of IGNOU matter, has been

denied to an employee of the Contractor. For sake of

convenience contents of that clause are reproduce thus:

"24. The provider has to ensure that the Temporaries

deployed are not forming any Association/Forum in

respect of IGNOU matter nor they should be allowed

to join in any Association/Forum of IGNOU."

39. Right to form association or unions is a

fundamental right guaranteed to every citizen by clause

(1)(c) of Article 19 of the Constitution of India. Guarantee

of right to form an association or union has to be read with

cause (4) of the aforesaid Article, which permits imposition

of legal restrictions on the right in so far as such restrictions

may be reasonably required in the interest of the

sovereignty and integrity of India, public order and morality.

The right to form associations or unions refers not only to

the initial commencement of the association but also to

continuation of the association as such, as it is obvious

that if association has to be dissolved the movement it has

been formed it cannot be said that the members have the

right to form the association. The restriction imposed by

the University on employees of the Contractor does not

answer the requirement of clause (4) of Article 19 of the

Constitution and is violative of the fundamental right

guaranted to the claimant and her colleagues.

40. There is other facet of the coin. The Act is

legislation relating to what is known as "collective

bargaining" in the economic field. This policy is implict in

the defintion of "industrial dispute". See Titagarh Jute Co.

Ltd. (1979 lab. I.C. 513). "An agreement between a single

employer or an association of employers on one hand and

a labour union on the other, which regulates the terms and

conditions of employment" is known as collective

bargaining agreement. The policy behind the concept of

collective bargaining is to protect workmen as a class

against unfair labour practices. A dispute of an individual

workman would acquire status of an industrial dspute if it

affects the rights of the workean as a class. An industrial

dispute denotes two qualities which distinguish it from an

individual dispute, namely (i) that the dispute relates to

industrial matter, and (ii) that on one said at least of the

dispute the disputant are a body of men acting collectively

and not individually. The clause, referred above, puts

restriction on the claimant and her colleagues to act

collectively as a body of men to protect their rights, while

working with the Contractor, who had engaged them to

produce a given result it terms of agreement Ex. MW3/1.

Contents of clause 24 of Ex. MW3/1, being unlawful, cannot

be supported at law.

41. A restriction is imposed on the claimant and her

colleagues from making any claim against the University

directly or indirectly, monetary including wages or

otherwise as contained in clause 23 of Ex. NW3/1, which is

not in conformity with the provisions of the Contract Labour

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Act. Primary responsibility to pay wages to an employee

employed by a contractor rest upon the latter. But on his

failure to make payment of wages within the prescribed

period or in the event of making short payment, the principal

employer has been saddled with the responsibility to make

payment of wages in full or unpaid balance due, as the

case may be, to the contract labour, enacts sub-section (4)

of section 21 of the Contract Labour Act. Consequently

this part of clause 23 of Ex. MW3/1 is to be discarded,

being violative of law.

42. In mercantile transaction stipulations are agreed

upon between the parties on principal to principal or

principal to agent basis. In both the propositions there is

privity of contract between them. Absence of privity of

contract would make them strangers to each other, in

respect of alleged covenanted or parol agreement, as the

case may be. In clause 23 of Ex.MW3/1 it is projected that

there is no privity of contract by and between the Provider

(the Contractor) and the University. The proposition

referred above is absurd. Privity of contract is the relation

which exists between the immediate parties to a contract,

which is necessary to enable one person to sue another on

it. It is a relationship between persons arising under a

contract. There may be (1) privity of contract, or (2) privity

of estate. When Ex. MW3/1 is read, privity of contract

between the contractor and the University emerge out.

Proposition, referred above, cannot be given effect to.

43. "Consideration" of some sort or other is so

necessary to the formation of a contract. A nudum pactum,

or agreement to do or pay something on one side, without

any consideration on the other, will not at all support any

action, and a man cannot be compelled to perform it. To

constitute consideration, there must be an act, abstinence

or promise on the part of promisee or some other person at

the desire of the promisor. A consideration must be valuable

and not superficial, it must be material and not sentimental

or imaginary. It must be a material deteriment to the promisee

or a benefit to the promisor. Section 2 of the Contract Act

defines consideration: "when at the desire of the promisor,

the promisee or any other person, has done or abstained

from doing, or does or abstains from doing something,

such act or abstinence or promise is called a consideration

for the promise".

44. The consideration for a promise must have some

tangible value in the eye of Law. Is adequacy is not material.

Though adequacy of consideration will not be examined

by the courts, yet it must not be colourable merely nor

illusory. A mere moral obligation arising from a past benefit

not conferred at the request of the defendant is not a good

consideration. However consideration derived from moral

obligations, in which there has been a legal right deprived

of legal remedy, the defendant would be held liable, without

putting moral duty at par with legal consideration. These

propositions may require a court or a tribunal to examine

whether there was legal consideration for the promise.

45. Whether there is any legal consideration for the

promise made by the Contractor to the University? for an

answer contents of clause 15 of Ex. MW3/1 are to be

examined, which are extracted thus:

"15. In consideration of the obligation undertaken

by the Provider, under this Agreement, the University

shall pay Provider charges on the basis of number of

such personnel actually deployed by the provider

for the effective operation of this Agreement, on the

rates quoted by the Provider in their Tender based

on the direction and guidelines issued by the Local

Government (NCT of Delhi). The rates mentioned in

Tenders are as folllows:"

46. As detailed above charges on the basis of number

of personnel deployed on the rates quoted by the Contractor

in Tender based on the direction and guidelines issued by

the Local Government (NCT of Delhi) where to be paid to

him by the University. In Ex. MW3/1 those rates are not

detailed. Thus tender document becomes a part of Ex.NW3/

1. It has not been placed before the Tribunal. As detailed

above, adequacy of consideration, may prove to be beyond

the pale of jurisdiction of a civil court. But this Tribunal

has to examine adequacy of consideration to ascertain as

to whether Ex. MW3/1 is genuine and not sham and

nominal. The Tribunal is supposed to examine as to whether

the charges on the basis of number of personnel deployed

on rates quoted in tender document project minimum wages

to be paid to contract labours, besides remunerations

derived by the Contractor. Assessment of these factors

may enable the Tribunal to reach conclusion whether the

Contractor had put his hands to Ex. MW3/1 on principal to

principal or agent to principal basis. Absence of tender

document created a vacuum. Parol evidence was brought

on record to the effect as to what payments were made the

Contractor from time to time. But absence of facts, as to

what were the rates of minimum wages what number of

contract labours worked in a particular month, on how many

days in months a contract labour worked, whether overtime

work was performed by a contract labour in that month,

whether a contract labour worked on Sundays, holidays

and weekly off days in a month, whole level the Tribunal in

lurch.

47. Wages sheet Ex..WW1/M4 to Ex. WW1/M7

project total work days of the respective months for which

the claimant worked, besides the number of days on which

she remained on leave without pay. These document

project minimum rates of wages paid to her in a month, out

of which deductions towards E.P.F. and E.S.I. subscriptions

were made. Bills raised by the Contractor and snactioned

accorded by the University are proved as Ex. MW3/5 to

Ex. MW3/19. Cheques issued in favour of the Contractor

are proved as Ex. MW3/5 to Ex. MW3/10. Despite my best

efforts to reconcile contents of documents referred above,

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I could not work out the rates on which the Contractor was

paid by the University for services rendered by him. Thus

adequacy of consideration for services rendered by the

Contractor has not surfaced over the record. Vaccum of

evidence in that regard made me to comment that the

University could not establish factors in favour of

genuiness of contract agreement Ex. MW3/1.

48. Now it would be seen whether it was the

Contractor who exercised his control or supervision on the

claimant? Factors of such control and supervision were

described in various precedents, which would be noted

herein under. In Chintaman Rao (1958 (II) LLJ 252) the Apex

Court ruled that the concept of employment involves three

ingredients: (1) employer, (2) employee, and (3) the contract

of employent. The employes is one who employs, that is,

one who engages the services of other persons. The

employer is one who works for another for hire. The

employment is the contract of service between the employer

and employee where under the employee agrees to serve

the employer subject to his control and supervision. In

Food Corporation of India (1985 (II LLJ 4) Justice Desai,

speaking for the Apex Court, announced that a contract of

employment "discloses a relationship of command and

obedience between them". Where a Contractor employs a

workman to do the work which he contracted with a third

person to accomplish, the workman of the Contractor would

not without something more become the workman of third

person.

49. In Dharangadhara Chemical Works Limited (1957

(1) LLJ 477), the apex Court ruled that test of "Supervision

and control may be taken as the prima facie test for

determining the relationship of employment". It was further

laid that existence of the right in the master to supervise

and control the work to be done by the servant, not only

matter of directing that work the servant is to do but also

the manner in which he shall do his work is the prina facie

test for determining the existence of master and servant

relationship. It was suggested that correct method of

approach, would be to consider whether having regard to

the nature of work there was due control and supervision

by the employer. The greater amount of direct control

exercised over the person rendering the services by the

person contracting for them, the stronger the ground for

holding it to be a contract of service. The control and

supervision test was reaffirmed by the Apex Court in

Chintaman Rao (supra), wherein it was ruled that "worker"

was a person employed by the management and there must

be contract of service and a relationship of master and

servant between them. In Shankar Balaji Waje (1962 (1) LLJ

119), the Apex Court clarified that "control of the

management, which is a necessary element of the

relationship of master and servant is not directed towards

providing or dictating the nature of the article to be

produced or the work to be done, but refers to the other

incidents having a bearing on the process of work the

person carries out in the execution of the work. The manner

of work is to be distinguished from the type of work to be

performed. In V.P. Gopala Rao (1970 (11) LLJ 59), the Apex

Court said that it is the question of fact in each case whether

the relationship of master and servant exists between the

management and the workman and there is no abstract a

priori test of the work control required for establishing the

contract of service. It was laid therein that for holding that

the person employed in the factory were workers within

the meaning of sub section (1) of section (2) of the Factories

Act 1948, it is to be considered that the fact that the

workman had to work in the factory implied certain amount

of supervision by the management and the nature and extent

of control varied in different industries and that when the

operation was of a simple nature, the control could be

exercised at the end of the day by the method of rejecting

the bidis which did not come up to the proper standard. It

is, therefore, not surprising that in recent years, the control

test, as traditionally formulated, has not been treated as an

exclusive test. In Silver Jubilee Tailoring House (1973 (11)

LLJ 495) the Apex Court ordained that "it is in its application

to skilled and particularly professional work that control

test in its traditional form has really broken down. It has

said that in interpreting "control" as meaning the power to

direct how the servant should do the work, the court has

been applying the concept suited to a past age".

50. During the last three decades emphasis in the

field has shifted and no longer rests so strongly upon the

question of control. Control is obviously an important factor

and in many cases it may still be decessive factor, but it

would be wrong to say that in every case it is a decessive

factor. In Shining Tailors (1983 (11) LLJ 143), the Apex

Court held that the piece rated workers working for a big

tailoring establishment were workmen for the establishment

It was observed therein that the "right of removal of the

workman or not to give work as an element of control and

supervision" which was amply satisfied to announce that

those peiece rated workers were the workmen for the

establishment. The Court concluded that the proposition

that "piece rate" itself indicates relationship of independent

contract, is not correct. A servant who has full liberty to

attend to his work according to his pleasure and not

according to orders of his master, is an independent

contractor A gold smith engaged to finish jewels within a

given time and when it was open to such goldsmith to

finish jewels within the given time or earlier and engage

themselves or others of their own were held to be

independent contractors, in K. Keswa Reddiar (1957 (1)

LLJ 645). In the like manner a goldsmith who undertook the

manufacture of ornaments like other goldsmith which he

was asked to manufacture and was entitled to receive

remuneration which would depend upon the nature of the

work done, was held to be not under the order or control of

the proprietor of the concern for whom he was doing the

work, in Achuta Achar [1968 (1) LLJ 500]. An agreement for

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selling milk on commission was held to be a contract for

service and not a contract of service, in Abad Dairy Doodh

Vitran Kendra Sanchalak Mandal, Ahmedabad (1989

Lab.I.C. 1770). The Tiny Deposit Agents employed in

deposit mobilization activity of the bank have been held to

be falling within the definition of the workman and not an

independent contractor in the precedent in the

Management of Indian Bank [1990 (1) LLJ 50].

51. As emerge out, element of control or supervision

of employer in respect of detail of work would be an

indentifying mark of the servant. Where an employer retains

the power, not only of directing what work is to be done

but also of controlling the manner of doing the work, these

factors would be determinative of his status as of a master.

His control is not directed towards providing or dictating

the nature of work to be done but refers to other incidents

having a bearing on the process of work the person carries

out the execution of the work. Control test postulates a

combination of managerial and technical funtions.

52. Whether elements of control or supervision of

the University in respect of details of work of the claimant

emerge out of contract agreement Ex. MW3/1? For an

answer, a few clauses of Ex. MW3/1 are to be scanned,

which are extracted thus:

"12. Provider shall continue to be responsible for the

personnel employed by him, in respect of terms and

conditions of their service, payments, attendance, medical

care, other disciplinary matters etc. who shall remain fully

under the administrative and financial control and

supervision of the Provider, except that the University shall

be the sole Arbitrator in respect of nature of the duties to

be entrusted to and the manner of performance of their

duties for the purpose of this Agreement.

13. The temporary personnel deployed by the

Provider to IGNOU shall at no time be treated as the

employees of the University and also shall have no claim

to be regularized in the services of the University. But the

Provider will not change the personnel once deployed by

it in the University without prior permission of the

University, as the frequent changes in deployment of

temporary may hamper the day to day work of the

University.

14. The Provider shall have to change over or replace

the temporary personnel as and when required by the

University whether or not such personnel are found guilty

of any misconduct. It shall not be necessary for the

University to assign any reason to the Provider or the

concerned Person or any other person in respect of any

such change and replacement required by the University."

53. As projected above, clause 12 announces that

personnel employed by the Contractor shall remain fully

under the administrative and financial control and

supervision of the Contractor. However an exception is

there to this general proposition to the effect that the

University shall be sole arbitrator in respect of nature of

duties to be entrusted to and the manner of performance of

their duties for the purpose of the agreement under

consideration. Another exception is contained in clause 13

wherein the Contractor has been constrained not to change

the personnel once deployed without prior permission of

the University. Further exception is contained in clause 14

wherein the Contractor is obliged to change or replace the

temporary personnel as and when required by the

University. The factors enumerated in the clauses, referred

above, make it apparent that the University retained the

power, not only of directing what work was to be done by

the claimant, but also of controlling her in respect of manner

of doing the work. Power of the Contractor to replace the

claimant from her work place was made subject to permission

of the University. Despite the choice of the Contractor to

replace the claiment he could not do so, in case university

showed its unwillingness in that regard. Contra to it, the

Contractor was duty bound to change an employee if so

commanded by the University. Such a proposition was not

dependent on a contingency of the employee being found

guilty of any misconduct. Mere wish of the University was

to prevail in the matter. Thus it is crystal clear that the

University retained power of allocation of duties, besides

right to control the manner of performance of such duties

by the claimant. The claiment was to work with the

University till its pleasure. The Contractor could not exercise

his earnest will to change her, if not consented by he

University. If the University decided to get her changed,

for any reasons whatsoever, the Contractor could not

impose her on the former, no matter her work and conduct

were satisfactory. Conspectus of these elements make it

clear that administrative control on the claimant was with

the University and not with the Contractor.

54. Contract agreement Ex.MW3/1 does not contain

any obligation on the part of the Contractor to supervise

the work of the claimant. No clause is there in the document

to show that the Contractor deployed some personnel to

supervise the work of the claimant and her other 69

colleagues. Who used to the mark attendance of the

claimant and her colleagues Ex. MW3/1 draws a blank? No

parol evidence was brought in to suggest that it was the

Contractor who supervised her work. Vaccum of facts in

Ex.MW3/1 and conspicuous absence of any ocular

evidence in that regard leave no doubt to conclude that it

were the University authorities who used to supervise the

work of the claimant and her colleagues.

55. Disciplinary control is exercised by an employer

on his employees by way of codifying rules of conduct for

them. He engrafts acts of misconduct in those rules. He

punishes his employees for their blameworthy conduct. It

is so done by him with a view to maintain discipline at the

work place and to deter potential delinquent from doing

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improper behavior or to come in conflict with rules of

standard of behaviour. Right to coin an act as a improper

behaviour, falling within the ambit of misconduct, was

retained by the University. It has been detailed in clause 22

of Ex. MW3/1 that "the University shall be sole judge as to

what is against the interest of the University and as to

what constitutes misconduct".

This authority to define a behaviour to be a

misconduct for a contract employee projects that the

University had clothed itself with a right to declare a code

of conduct for the claimant and her associates. This right

is an attribute of disciplinary control exercised by an

employer on his employees.

56. Construction adopted on contents of Ex. MW3/1

is based on the standards of presumed intent of parties.

The construction, so put, with an idea to preserve the will

of the parties to Ex. MW3/1. It is the duty of a court or

tribunal to give effect to the intention of the parties in

construing a written instrument. Ascertaining general scope

of Ex. MW3/1, intention of the parties contained therein,

nature of the instrument and legal right of the parties

thereto, it is concluded that efforts were made by the

University to hide the truth with a view to project a make-

believe instrument of engaging personnel through the

Contractor. In fact the University retained administrative

and disciplinary control over the contract employees.

When veil was lifted, it emerged that Ex.MW3/1 is sham

and bogus. There are realties of relationship of employer

and employees between the University and the claimant

and her other 69 colleagues. In view of the forgoing

reasons, it is concluded that the veil of Ex.MW3/1 is a

smoke-screen, which would not snap relationship between

the University and the claimant and her colleagues.

Aforesaid two issues are accordingly answered. Issue

No. 3

57. Dr. S.S. Bisth announces that with effect from

1.11.2007 contract for providing housekeeping services was

given to the New Contractor. He asserts that owing to

illegal demands of the claimant and her colleagues, the

New Contractor did not engage them. Thereafter

housekeeping staff, including the claimant, resorted to

illegal demonstration. A suit of injunction was filed, which

was decreed by the High Court of Delhi. Certified copy of

judgement dated 13.3.2009 has been proved as Ex. MW2/5,

by Shri Shiv Prakash.

58. Whether above facts would espouse the cause

of the University ? Answer lies in negative. As held above,

the claimant was an employee of the University, which

proposition restains the University from awarding

housekeeping services to the New Contractor. In the garb

of award of housekeeping services to the New Contractor,

the University dispensed with the services of the claimant

and her colleagues. Action of the University squarely falls

within the ambit of definition of retrenchment, as contained

in sub-section (oo) of section 2 of the Act. No case was

projected that the case of University falls within the

exceptions, contained therein. Therefore, it is crystal clear

that the action of the University amounts to retrenchment.

As per own admission of the University, the claimant

rendered services w.e.f. 1.11.2004 till 31.10. 2007, as an

employee of the Contractor. Thus it is clear that she

rendered continuous service of more than 240 days in a

calendar year, as contemplated by section 25-B of the Act.

When an employee renders services of more than one year,

he is entitled to protention/benefits contained in section

25-F of the Act. Out of facts of the present controversy, it

emerges that services of the claimant were done away in

violation of the provision of section 25-F of the Act. It is

not the case of the University that one month's notice or

pay in lieu thereof and retrenchment compensation was

paid to the claimant and other similarly situated employees.

Requirements contained in section 25-F of the Act are

mandatory and non-compliance thereof makes the action

of the employer illegal. Hence action of the University in

terminating services of the claimant, in the garb of awarding

contract of housekeeping services to the New Contractor,

is illegal and unjustified.

59. Whether judgement Ex. MW2/5 would come to

the rescue of the University? Answer lies in negative. Memo

of parties tell that neither the claimant nor her colleagues

were party to that suit. The suit was filed in respect of a

cause of action of civil nature. Even otherwise judgement

Ex.MW2/5 would not operate as res-judicata in the present

controversy. Law contained in section 11 of the Code of

Civil Procedure 1908 (in short the Code) embodies the

doctrine of res-judicata or the rule or conclusiveness of a

judgement, as to the point decided either of fact, or of law,

or of fact and law, in every subsequent suit between the

same parties. It enacts that once a matter is finally decided

by a competent court, no party can be permitted to reopen

it in a subsequent litigation. The doctrine of res-judicata

has been explained in the simplest possible manner by Das

Gupta J. in the case of Statyadhyan Chosal (AIR 1960 S.C.

941) in following words:

"The principle of res-judicata is based on the need

of giving a finality to judicial decision. What it says is that

once a res-is judicata, it shall not be adjudged again.

Primarily it applies as between past litigation and future

litigation. When a matter—whether on a question of fact

or a question of law-has been decided between two parties

in one suit or proceeding and the decision is final, either

because no appeal was taken to a higher court or because

the appeal was dismissed, or no appeal lies, neither party

will be allowed in a future suit or proceedings between the

same parties to convass the matter again."

60. It is not every matter decided in a former suit that

will operate as res-judicata in a subsequent suit. To

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constitute a matter as res-judicata under section 11 of the

Code, the following conditions must be satisfied:

1. The matter directly and substantially in issue in

the subsequent suit must be the same matter

which was directly and substantially in issue

either actually or constructively in the former.

2. The former suit must have been a suit between

the same parties or between parties under whom

they or any of them claim.

3. Such parties must have been litigating under the

same title in the former suit.

4. The court which decided the former suit must be

a court competent to try the subsequent suit or

the suit in which such issue is subsequently

raised.

5. The matter directly and substantially in issue in

the subsequent suit must have been heard and

finally decided by the court in the former suit.

61.Section 11 of the Code bars trial of any suit as

well as an issue which had been decided in a former suit.

Issues are of three kinds: (i) Issue of fact; (ii) Issue of law;

and (iii) Mixed issues of law and fact. A decision on an

issue of fact, however erroneous it may be, constitutes

resjudicata between the parties to the previous suit and

cannot be reagitated in collateral proceedings. Law to this

effect was laid in Mathura Prashad [1970 (1) SCC 613]. A

mixed issue of law and fact also, for the same reasons,

operates as res-judicata.

62.To invoke plea of res judicata it should be shown

that the court which decided the former suit must have

been a court competent to try the subsequent suit. Thus,

the decision in a previous suit by a court, not competent to

try the subsequent suit, will not operate as res judicata.

The expression "competent to try" means "competent to

try the subsequent suit if brought at the time the first suit

was brought". In other words, the relevant point of time for

deciding the question of competence of the court is the

date when the former suit was brought and not the date

when subsequent suit was filed. In order that a decision in

a former suit may operate as res judicata, the court which

decided that suit must have been either—(a) a court of

exclusive jurisdiction, or (b) a court of limited jurisdiction;

or (c) a court of concurrent jurisdiction. In industrial

jurisdiction principles analogus to re-judicata are

applicable.

63.Now it would be considered as to whether the

high Court is competent to try on industrial dispute, relating

to rights and liabilities created under the Act. Such

proposition was raised before the Apex Court in Premier

Automobiles Ltd. [1975 (II) LLI. 445], wherein following

principles were enunciated:

"(I) If the dispute is not an industrial dispute, nor

does it relate to enforcement of any other right

under the Act the remedy lies only in the Civil

Court.

(II) If the dispute is an industrial dispute arising out

of a right or liability under general or common law

and not under the Act, the jurisdiction of the

Civil Court is alternative, leaving it to the election

of the suiter concerned to choose his remedy for

relief which is competent to be granted in a

particular remedy.

(III) If the industrial dispute relates to the enforcement

of a right or an obligation created under the Act,

then the only remedy available to the suiter is to

get an adjudication under the Act.

(IV) If the right which is sought to be enforced is a

right created under the Act such as Chapter V-A

then the remedy for enforcement is either

section 33-C or the raising of an industrial dispute,

as the case may be."

However, in relation to Principle No. 2, the Court

added that "there will hardly be a dispute which will be an

"industrial dispute" within the meaning of section 2(k) of

the Act and yet will be arising out of a right or liability

under the general or common law only and not under the

Act."

64. In Rajasthan State Road Transport Corporation

(1995 Lab. I.C. 2241), the Apex Court analysed the earlier

dicta and re-stated the laws as follows:

"(1) Where the dispute arises from general law of

contract, i.e., where reliefs are claimed on the basis of the

general law of contract, a suit filed in civil court cannot be

said to be not maintainable, even though such a dispute

may also constitute an "industrial dispute" within the

meaning of Section 2(k) or Section 2-A of the Industrial

Disputes Act, 1947.

(2)Where, however, the dispute involves

recognition, observance or enforcement of any of the rights

or obligations created by the Industrial Disputes Act, the

only remedy is to approach the forums created by the said

Act.

(3) Similarly, where the dispute involves the

recognition, observance or enforcement of rights and

obligations created by enactments like Industrial

Employment (Standing Orders) Act, 1946—which can be

called 'sister enactments' to industrial Disputes Act—and

which do not provide a forum for resolution of such

disputes, the only remedy shall be to approach the forums

created by the Industrial Disputes Act provided they

constitute industrial disputes within the meaning of Section

2(k) and Section 2-A of Industrial Disputes Act or where

such enactment says that such dispute shall be either

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[PART II—SEC. 3(ii)]

treated as an Industrial dispute or says that it shall be

adjudicated by any of the forum created by the industrial

Disputes Act. Otherwise, recourse to Civil Court is open.

(4)It is not correct to say that the remedies provided

by the Industrial Disputes Act are not equally effective for

the reason that access to the forum depends upon a

reference being made by the appropriate government. The

power to make a reference conferred upon the government

is to be exercised to effectuate the object of the enactment

and hence not unguided. The rule is to make a reference

unless, of course, the dispute raised is a totally frivolous

one ex-facie. The power conferred is the power to refer and

not the power to decide, though it may be that the

government is entitled to examine whether the dispute is ex

facie frivolous, not meriting an adjudication.

(5) Consistent with the policy of law aforesaid, we

commend to the Parliament and State Legislatures to make

a provision enabling a workman to approach the Labour

Court/Industrial Tribunal directly — i.e., without the

requirement of a reference by the Government — in case of

industrial disputes covered by Section 2-A of the Industrial

Disputes Act. This would go a long way in removing the

misgivings with respect to the effectiveness of the remedies

provided by the Industrial Disputes Act.

(6) The certified Standing Orders framed under and

in accordance with the Industrial Employment (Standing

Orders) Act, 1946 are statutorily imposed conditions of

service and are binding both upon the employers and

employees, though they do not amount to "statutory

provisions". Any violation of these Standing Orders

entitles an employee to appropriate relief either before the

forums created by the Industrial Disputes Act or the Civil

Court where recourse to Civil Court is open according to

the principles indicated herein.

(7) The policy of law emerging from Industrial

Disputes Act and its sister enactments is to provide an

alternative dispute resolution mechanism to the workmen,

a mechanism which is speedy, inexpensive, informal and

un-encumbered by the plethora of procedural laws and

appeals and revisions applicable to civil courts. Indeed,

the powers of the Courts and Tribunals under the Industrial

Disptues Act are far more extensive in the sense that they

can grant such relief as they think appropriate in the

circumstances for putting an end to an industrial dispute".

Same view was taken by the Apex Court in Steel

Authority of India (Supra).

65. Facts detailed in preceding sections make out

that the rights which the claimant claim and obligations

which are imposed on the University arise out of rights

and obligations created by the Act. An Industrial dispute

within the meaning of section 2(k) was referred for

adjudication by the appropriate Government to this

Tribunal, invoking its powers under clause (d) of sub-

section (1) of section 10 of the Act. High Court is not

competent to adjudicate an industrial dispute. Hence,

Principle 2, referred in para 63 and Principle 1, referred in

para 64, do not come into play. Therefore, judgement

Ex.MW2/5 cannot operate as res-judicata. It would not

restrain the claimant in any manner, from agitating her claim

against the University.

66. It is well settled that negative language used in

section 25-F of the Act imposes a mandatory duty on the

employer, which is condition precedent to retrenchment of

a workman. Contravention of mandatory requirements of

section 25-F of the Act would invalidate the retrenchment

and render it void ab initio. Reference can be made to the

precedents in Auro Engineering (Pvt.) Ltd., Nasik (1992

Lab I.C. 1364) and Ollur Regional Imitation Diamond

Manufacturing Industrial Co-op. Society Ltd. (1993 (II) LLI

174). As detailed above, retrenchment of the claimant is

illegal and void ab initio. Issue is, therefore, answered in

favour of the claimant and against the University.

Relief.

67. As concluded above, the claimant was engaged

by the University through the Contractor by way of creation

of make believe contract agreement, which was a perfect

paper arrangement. On lifting of veil, the University was

found to be the real employer. Her services were disengaged

under the garb of award of housekeeping service agreement

to the New Contractor. Her retrenchment was found to be

void initio. She, being an employee of the University cannot

be retrenched by the Contractor or the New Contractor.

She is deemed to be in the service of the University

Question comes whether she is entitled to full back wages.

For an answer in her favour, she was under an obligation to

establish that she remained unemployed since the date of

her retrenchment. No evidence has been adduced by the

claimant on that point. Thus it cannot be said that she

remained unemployed, since the date of dispensing with

her services by the University. The Apex Court and High

Courts dealt with the issue of award of compensation, when

reinstatement in service was not found expedient. Those

precedents may help the Tribunal in ascertaining the

quantum of back wages, which may be awarded to the

claimant. In S.S. Shetty (1957 (11) LLI 696) the Apex Court

indicated some relevant factors which an adjudicator has

to take into account in computing compensation in lieu of

reinstatement, in the following words:

"The industrial Tribunal would have to take into

account the terms and conditions of employment,

the tenure of service, the possibility of termination

of the employment at the instance of either party, the

possibility or retrenchment by the employer or

resignation or retirement by the workman and even

of the employer himself ceasing to exit or of the

workman being awarded various benefits including

reinstatement under the terms of future awards by

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Industrial Tribunal in the event of industrial disputes

arising between the parties in future... In computing

the money value of the benefits of reinstatement, the

industrial adjudicator would also have to take into

account the present value of what his salary, benefits

etc. would be till he attained the age of superannuation

and the value of such benefits would have to be

computed as from the date when such reinstatement

was ordered under the terms of the award.

Having regard to the considerations detailed above,

it is impossible to compute the money value of this

benefit of reinstatement awarded to the appellant

with mathematical exactitude and the best that any

tribunal or court would do under the circumstances

would be to make as correct as estimate as is possible

bearing, of course in mind all the relevant factors pro

and con".

68. A Division Bench of the Patna High Court in

B. Choudhary (1983) Lab.I.1755 (1758) deduced certain

guidelines which have to be borne in mind in determining

the quantum of compensation viz. (i) the back wages

receivable (ii) compensation for deprivation of the job with

future prospect and obtainability of alternative

employment; (iii) employee's age (iv) Length of service in

the establishment (v) capacity of the employer to pay and

the nature of the employer's business (vi) gainful

employment in mitigation of damages; and (viii)

circumstances leading to the disengagement and the past

conduct. These factors are only illustrative and not

exhaustive. In addition to the amount of compensation, it

is also within the jurisdiction of the Tribunal to award

interest on the amount determined as compensation.

Furthermore, the rate of such interest is also in the

discretion of the Tribunal. Reference can be made to Tebesh

Process, Shivakashi (1989 Lab.I.C.1887).

69. In Assam Oil Co. Ltd. (1960 (1) LLI 587) the Apex

Court took into account countervailing facts that the

employer had paid certain sums to the workmen and her

own earning in the alternative employment and ordered

that "it would be fair and just to direct the appellant a

substantial sum as compensation to her". In Utkal

Machinery Ltd. (1966 (1) LLI 398) the amount of

compensation equivalent to two year salary of the employee

awarded by the Industrial Tribunal was reduced by the

Supreme Court to an amount equivalent to one year salary

of the employee in view of the fact that she had been in

service with the employer only for 5 months and also took

into consideration the unusual manner of her appointment

at the instance of the Chief Minister of the State. In

A.K. Roy (1970 (1) LLI (228) compensation equivalent to

two years salary last drawn by the workmen was held to be

fair and proper to meet the ends of justice. In Anil Kumar

Chakaraborty (1962 (II) LLI 483) the Count converted the

award of reinstatement into compensation of a sum of

Rs. 50000/- as just and fair compensation in full satisfaction

of all his claims for wrongful dismissal from service. In O.P.

Bhandari (1986 (II) LLI 509), the Apex Court observed that

it was a fit case for grant of compensation in view of

reinstatement. The Court awarded compensation equivalent

to 3.33 years salary as reasonable. In M.K. Aggarwal (1988

Lab.I.C.380), the Apex Court though confirmed the order of

reinstatement yet restricted the back salary to 50% of what

would otherwise be payable to the employees. In Yashveer

Singh (1993Lab.I.C.44) the court directed payment of

Rs. 75000/- in view of reinstatement with back wages. In

Naval Kishor (1984 (II) LLI 473) the Apex Court observed

that in view of the special circumstances of the case

adequate compensation would be in the interest of the

appellant. A sum of Rs. 2 lac was awarded as compensation

in lieu of reinstatement. In Sant Raj (1985 (II) LLI 19) a sum

of Rs. 2 lac was awarded as compensation in lieu of

reinstatement. In Chandu Lal (1985 Lab.I.C.1225) a

compensation of Rs. 2 lac by way of back wages in lieu of

reinstatement was awarded. In Ras Bihari (1988Lab.I.C.107)

a compensation of Rs. 65000/- was granted in lieu of

reinstatement, since the employee was gainfully employed

elsewhere. In V.V. Rao (1991 Lab.I.C.1650) a compensation

of Rs. 2.50 lac was awarded in lieu of reinstatement.

70. The claimant rendered continuous one year

service to the University, when she was illegally retrenched.

She had to fight for about four years for redressal or her

grievances. The circumstances, in which she was

retrenched and mass unempolyment prevalent in economc

field, which may come in the way when some one goes for

an alternative employment, besides other factors of this

case, persuade me to award 20 per cent back wages from

the date of retrenchment till the date the award becomes

operative under section 17-A of the Act, besides

reinstatement of the claimant in the service of the

University, with continuity and all consequential benefits.

An award is, accordingly, passed. It be sent to the

appropriate Government for publication.

DR. R.K. YADAV, Presiding Officer

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1884

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[PART II—SEC. 3(ii)]

15@2010½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 01&02&2012

dks izkIr gqvk FkkA

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New Delhi, the 1st February, 2012

S.O. 817.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 15/2010)

of the Central Government Industrial Tribunal cum Labour

Court No. I, New Delhi as shown in the Annexure, in the

Industrial dispute between the Vice Chancellor, Indira

Gandhi National Open University and their workman,

which was received by the Central Government on

01.02.2012.

[F.No. L-42012/106/2009-IR(DU)]

RAMESH SINGH, Desk Officer

ANNEXURE

BEFORE DR. R. K. YADAV, PRESIDING OFFICER,

CENTRAL GOVT. INDUSTRIAL TRIBUNAL NO. 1,

KARKARDOOMA COURTS COMPLEX, DELHI

I.D. No. 15/2010

Shri Ram Sahai S/o Shri Bhike Lal,

H.No. 204, Gali No. 1,

Dhani Ram Colony,

Vill. Maidan Garhi,

New Delhi-63.

CLAIMANT

Versus

The Vice Chancellor,

Indira Gandhi National Open University,

R.No. 1, Block No. 8, Maidan Garhi,

New Delhi-110068.

Management

AWARD

Indira Gandhi National Open University (herein after

referred to as the University) was established in the year

1985 to provide cost effective and quality education to

large sections of people, including those living in remote

and far flung areas, through distance education

programmes. The University functions not only within the

boarders of the country but offers education programmes

in at least 35 countries. Besides Regional Centres across

the country and in foreign countries, the University has its

Central Campus at Maidan Garhi, New Delhi, which is spread

over an area of 151.32 acres of land. At its Central Campus,

the University has a strength of about 800 offices/officials

working there.

2. The University requires considerable man-power

to carry out housekeeping services, which includes cleaning

and sanitation activities. Housekeeping services are out-

sourced by the University through a private contractor. In

the year 2004, the University awarded contract for

housekeeping services to Sybex Computer Systems (Pvt.)

Ltd. (in short the Contractor). The Contractor engaged

around 70 sweepers and cleaners to carry out its contractual

obligations. On 1st November 2007, the University awarded

contract for housekeeping services to Spick & Span

Facilities Management (Pvt.) Ltd. (in short the New

Contractor). Initially the New Contractor decided to retain

services of the sweepers and cleaners engaged by the

Contractor. But negotiations between the New Contractor

and employees of the Contractor turned into a complete

fiasco. Sweepers and cleaners resorted to agitation and sat

on "dharna" outside the gate of Maidan Garhi Campus of

the University. Legal wrangle started between the

University and the agitators. Efforts were made from either

side to wrench one's opponent.

3. Resort to the jurisdiction of Conciliation Officer

was taken by the sweepers and cleaners, by way of filing

their respective claim statements. Conciliation Officer

initiated conciliation proceedings, as contemplated by sub-

section (1) of section 12 of the Industrial Disputes Act,

1947 (in short the Act). No settlement could arrive at between

the parties and a failure report was submitted to the

appropriate Government. On consideration of the failure

report, so submitted, the appropriate Government referred

the dispute to this Tribunal for adjudication, invoking its

powers under clause (d) of sub-section (1) of section 10 of

the Act, vide order No. L-42012/106/2009-IR(DU) New Delhi

dated 28th January, 2010, with following terms:

"Whether the action of the management of Indira

Gandhi National Open University, in terminating the

services of their workman Shri Ram Sahai w.e.f.

01/11/2007 is legal and justified? If not, what relief

the workman is entitled to?"

4. Shri Ram Sahai claims in his claim statement that

he was working with the University as "Safai Karamchari"

in its housekeeping department since 1.05.1985. He had

rendered more than 240 days continuous service with the

University. At the time of entering into the services of the

University, he was asked to fill in certain forms, which forms

duly filled and signed by his are in the custody of the

University. No appointment letter was issued in his favour,

inspite of his request in that behalf. Since inception of his

engagement, the University had indulged into his request

in that behalf. Since inception of his engagement, the

University had indulged into unfair labour practices and

flouted implementation of labour laws concerning his

service conditions. At times he, alongwith his colleagues,

was kept at its rolls by the University, while during

intermittent spells his services were transferred at the roll

of one contractor or the other. This device was adopted

with a new to discount his continuity in service and seniority

in employment so that liability to pay retrenchment

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compensation under the Act and other benefits under

various labours laws may be avoided.

5. Contributions towards social securities, namely,

ESI, medical benefits and provided fund were deducted

from his wages by the University, pleads the claimant.

Despite payment of contributions towards above social

securities, the University never issued any medical card

and provident fund statement or account number, but

passed on that responsibility on the shoulders of the

Contractor. Facility of earned, annual, privileged, casual,

weekly off, festival and medical leaves were not accorded.

Though work was taken on Sundays and holidays from

him but no compensatory leave or overtime wages were

given to him. He used to get wages at the rate of Rs. 172/-

per days, amounting to somewhere near to Rs. 4500/- per

month.

6. On 1st November 2007, the University decided to

place his services at the disposal of a contractor, whose

engagement for housekeeping work was neither

communicated nor he was introduced to him. To his utter

surprise a contractor surfaced on scene and told him and

his colleagues that he will pay them Rs. 3470/- each per

month. He announced that interested persons may stay at

work-place and others may leave for good. The claimant

and his colleagues wanted to see the Vice-Chancellor to

appraise him of their grievances, but they were stopped at

the gate of the University campus. Services of the claimant

and other were terminated. The University called some anti-

social elements and got sever beatings administered to

him and his colleagues at their hands. Police was also called

by the University authorities, to keep their hands clean.

7. The University had not served one month notice

nor paid wages in lieu of the notice. Retrenchment

compensation was also not paid to him. His services were

not done away on infliction of punishment for a disciplinary

action, hence action of the University is violative of the

provisions of the Act and principles of natural justice. He

claims reinstatement in the services of the University with

continuity and consequential benefits.

8. The University demurs the claim pleading that the

claimant was never employed by it. No salary/wages or

other emoluments were paid by it to the claimant. There

existed no relationship of employer and employee between

the parties. Hence there was no occasion for the University

to terminate services of the claimant. In view of these facts,

reference order is improper and claim statement is liable to

be rejected, pleads the University.

9. To outcome housekeeping services, the University

engaged services of the Contractor, vide agreement dated

1.11.2004, which agreement was extended upto 31.10.2007.

The claimant was working with the Contractor to provide

housekeeping services at the campus of the University.

The Contractor is essential and proper party, pleads the

University. In agreement entered into between the

Contractor and the University it was stipulated that

employees of the Contractor at no point of time would be

treated as employees of the University. The University laid

emphasis on a few clauses of the agreement, which are

extracted thus:

"12. Provider shall continue to be responsible for the

personnel employed by him, in respect of terms and

conditions of their service, payments, attendance,

medical care, other disciplinary matters etc. who shall

remain fully under the administrative and financial

control and supervision of the Provider, except that

the University shall be the sole Arbitrator in respect

of nature of the duties to be entrusted to and the

manner of performance of their duties for the purpose

of this Agreement.

13. The temporary personnel deployed by the

Provider to IGNOU shall at no time be treated as the

employees of the University and also shall have no claim

to be regularized in the services of the University. But the

Provider will not change the personnel once deployed by

it in the University without prior permission of the

University as the frequent changes in deployment of

temporary may hamper the day to day work of the

University.

23. There is no privity of contract by and between

the Provider and the University. The Temporary shall have

no right to make any claim against the University directly

or indirectly, monetary including wages or otherwise. The

Temporary shall also have no right to claim for any

regularization. The Temporary shall also have no claim

against the University of any dues, statutory or otherwise.

Similarly, even the representative of any Temporary who

have worked in the University shall have no right or claim

against the University.

24. The Provider has to ensure that the Temporaries

deployed are not forming any Association/Forum in respect

of IGNOU matter nor they should be allowed to join in any

Association/forum of IGNOU.

25. The Provider has to ensure timely deployment of

Temporaries as required by IGNOU and fulfil other

obligation stated in the above said terms and conditions

failing which penalty will be imposed by the University on

case to case basis from time to time. The decision of the

University will be final."

10. When contract, referred above, expired with efflux

of time, contract for housekeeping services was awarded

to the New Contractor, who initially sought to retain the

services of housekeeping staff for his own contract.

However, owing to illegal and unjustified demands of the

housekeeping staff, the New Contractor did not engage

the claimant and his other colleagues. The claimant and his

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colleagues resorted to illegal demonstration in the

University premises. A civil suit being CS(OS) No. 83 of

2008 was instituted before High Court of Delhi. The High

Court passed an interim injunction order on 15.1.2008

against the housekeeping staff and ultimately decreed the

suit on 13.3.2009.

11. The University had denied all allegations levelled

by the claimant in his claim statement. It is pleaded that the

claimant knew his status, being an employee of the

Contractor. His services were terminated by the Contractor

and the University has no role to play in so called

termination of his services. His claim against the University

is illegal, unwarranted and unjustified. It is pleaded that

this claim may be dismissed.

12. An application moved by the University, to

implead the Contractor as a party, was declined vide order

dated 20.4.2010.

13. On pleadings of the parties, following issues were

settled:

1. Where there was relationship of employer and

employee between the claimant and the

management?

2. Whether the claimant was an employee of Sybex

Computer System Pvt. Ltd., the Contractor?

3. As in terms of reference.

4. Relief.

14. To discharge onus resting on him, the claimant

examined himself and closed his evidence. The University

examined Smt. Bimla Madan, Shri Shiv Prakash, Dr. S.S.

Bisht and Shri Ashok Kumar Gupta to substantiate its case.

15. Arguments were heard at the bar at length. Shri

V.N. Kaushik, assisted by Ms. Sulekha Thakur, authorised

representative, advanced arguments on behalf of the

claimant. Shri V.K. Rao, assisted by Shri Aly Mirza,

authorised representative and Vibhas Vaibhav, Asstt.

Registrar (Law), raised submissions on behalf of the

University. I have given my careful considerations to the

submissions made at the bar and cautiously perused the

record. My findings on issues involved in the controversy

are as follows:

Issue No. 1 & 2.

16. Affidavit Ex. WW1/A was tendered as evidence

on behalf of the claimant, wherein he sweared that he was

in the employment of the University as "Safai Karamchari"

since 1.05.1985. It has been projected in Ex. WW1/A that

he rendered more than 11 years service with the University.

Other facts detailed in Ex. WW1/A are fascimile of contents

of claim statement, which has been proved as

Ex. WW1/M1. He candidly admitted his signatures on

documents Ex. WW1/M2 to Ex. WW1/M7.

17. Smt. Bimbla Madan unfolds that Regional Office

of the Employers' Provident Fund Organisation had given

code number as DL-24878 to the Contractor, while code

number 2127 was given to Shri Prabhu Dayal, the employee

of the above company. Name of Prabhu Dayal appears in

statements of contributions Ex. MW1/M1 and Ex. MW1/2,

filed by his employer for the period 1.4.2005 to 31.3.2006

and 1.4.2006 to 31.3.2007 respectively.

18. Shri Shiv Prakash entered the witness box to

prove copy of plaint, filed by the University before High

Court of Delhi, written statement of defendant No. 3 to 6,

affidavit of Shri U.S. Tolia tendered as evidence in that

case, interim order dated 15.1.2008 and judgment dated

13.3.2009 passed by justice Ms. Rekha Sharma. These

documents are proved as Ex. MW2/1 to Ex. MW2/5

respectively. He clarified that no appeal was preferred

against the judgment Ex. MW2/5.

19. Dr. S.S. Bisht tendered his affidavit Ex. MW3/A

as evidence, wherein he announced that the claimant was

never appointed by the University in its services. No salary

was ever paid to him.. Services of the Contractor were

availed to outsource housekeeping services vide agreement

dated 1.11.2004, which was subsequently extended upto

31.10.2007. The claimant was working with the Contractor.

With effect from 1.11.2007 contract to provide housekeeping

services was awarded to the New Contractor. He projects

that when he was engaged by the New Contractor, he

alongwith his colleagues resorted to illegal demonstration

in the premises of the University. Story of filling civil suit

and orders thereon have been re-affirmed by Dr. Bisht.

Being an employee of the Contractor, he had filed a wrong

claim statement, which is liable to be dismissed, asserts

Dr. Bisht.

20. Shri Ashok Kumar Gupta details that the

University was maintaining an account with Maidan Garhi

branch of the Punjab National Bank. The University had

issued cheques in favour of the Contractor, details of those

cheques are given in Ex. MW4/A. He identifies signatures

of Shri Mohan Lal, Branch Manager, on Ex. MW3/21 and

announces that contents of that document are true and

correct, as he himself had checked the records.

21. When facts testified by the claimant, Smt. Bimla

Madan, Dr. S.S.Bisht and Ashok Kumar Gupta are

appreciated, it came to light that the claimant had detailed

that he was in the service of the University since 1.05.1985.

Self-serving words, deposed by the claimant, could not

withstand rigors of cross-examination, wherein he admitted

that Ex. WW1/M2, Ex. WW1/M3, Ex. WW1/M4, Ex. WW1/

M5, Ex. WW1/M6 and Ex. WW1/M7 bear his signatures.

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When perused it came to light that Ex. WW1/M2, to Ex.

WW1/M7 are wage-sheets of the Contractor, though which

salary of the claimant and his colleagues were released by

the former in their favour. These documents project him to

be an employee of the Contractor. Thus by an admission of

his signatures on above documents he allowed a fact to

spill over, which demolishes his case of being an employee

of the University Ex. WW1/M2 is also photocopy of scrolls

through which payments were released by the Contractor

to the claimant and his colleagues. In the end he gave in

and deposed that he was not aware as to who engaged

him. However he made a faint attempt to project his cause

when he asserted that he used to work for the University.

Conspectus of above facts spill the beans and announce

him to be an employee of the Contractor.

22. Dr. S.S. Bisht erected castle for the University

brick by brick when he deposed that the claimant was

working with the Contractor, whom housekeeping services

were outsourced vide agreement dated 1.11.2004, copy of

which is Ex. MW3/1. This agreement was extended upto

31.10.2007. When aforesaid contract expired, contract for

housekeeping services was awarded to the New Contractor,

vide agreement Ex. MW3/2. When New Contractor did not

engage the services of the claimant and his colleagues,

they resorted to illegal demonstration in the premises of

the University. The Contractor used to raise his bills, to

whom payments were made through cheques Ex. MW3/5,

Ex. MW3/6, Ex. MW3/7, Ex. MW3/8, Ex. MW3/9 and Ex.

MW3/10, deposes the witness. Some of the bills raised by

the Contractor, besides sanction accorded by the

University are Ex. MW3/11, Ex. MW3/12, Ex. MW3/13, Ex.

MW3/14, Ex. MW3/15, Ex. MW3/16, Ex. MW3/17, Ex.

MW3/18 and Ex. MW3/19, Dr. Bisht detailed. Payments

were made to the Contractor through cheques, which were

honoured and cleared and letter Ex. MW3/21 was written

by the bank in that regard. He had proved list of contractors

as Ex. MW3/W2, to whom the work was awarded by the

University since 16.12.1991 till date. Out of facts unfolded

by Dr. Bisht it came over the record that the University had

outsourced housekeeping services since 16.12.1991. On

1.11.2004 work was awarded to the Contractor and on

1.11.2007 it was awarded to the New Contractor. Claimant

was an employee of the Contractor, who used to pay wages

to him. Smt. Bimla Madan gives re-affirmation to facts

unfolded by Dr. Bisht. She had proved statements of

contribution, filed by the Contractor in the Regional Office

of the Employees' Provident Fund Organisation, in which

statements name of the claimant does appear as an

employee of the Contractor. Shri Ashok Kumar Gupta proves

various payments made by the University to the Contractor,

details of which are enlisted in Ex. MW3/21. Sequences of

events, brought over the record through the depositions

of aforesaid witness and documents proved by them,

highlight that the claimant was an employee of the

Contractor, who used to make payment of his salaries to

him. It was the Contractor who was his pay master.

23. Whether the claimant, who was an employee of

the Contractor, can maintain a dispute against the

University? For an answer to this proposition, the Tribunal

has to take not of the law contained in section 10 of the

Contract Labour (Regulation and Abolition) Act, 1970 (in

short the Contract Labour Act), which makes provision for

prohibition of employment of contract labour. For sake of

convenience provisions of section 10 of the Contract

Labour Act are reproduced thus:

"10. Prohibition of employment of contract labour:—

(1) Notwithstanding anything contained in this Act,

the appropriate Government may, after consultation with

the Central Board or, as the case may be, a State Board,

prohibit, by notification in the Official Gazette, employment

of contract labour in any process, operation or other work

in any establishment.

(2) Before issuing any notification under sub-section

(1) in relation to an establishment, the appropriate

Government shall have regard to the conditions of work

and benefits provided for the contract labour in that

establishment and other relevant factors, such as—

(a) whether the process, operation or other work is

incidental to, or necessary for the industry, trade,

business, manufacture or occupation that is

carried on in the establishment.

(b) whether it is of perennial nature, that is to say, it is

of sufficient duration having regard to the nature

of industry, trade, business, manufacture or

occupation carried on in that establishment;

workmen in that establishment or an establishment

similar thereto;

(d) whether it is sufficient to employ considerable

number of whole-time workmen. Explanation—If

a question arises whether any process or operation

or other work is of perennial nature, the decision

of the appropriate Government thereon shall be

final."

24. As emerge out of the provisions of sub-section

(1) of section 10 of the Contract Labour Act, the appropriate

Government may, by notification in the official gazette,

prohibit employment of contract labour in any process,

operation or other work in any establishment. When

employment of contract labour is prohibited, by issuance

of a notificaion in official gazette by the appropriate

Government, what would be the status of the contract

labour employed in the establishment? Such a question

arose before the Apex Court in Steel Authority of India Ltd.

[2001 (7) S.C.C.I]. The Apex Court rule therein that there

cannot be automatic absorption of contract labour by

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principal employer on issuance of notification by the

appropriate Government on abolition of contract labour

system, under sub-section (1) of section 10 of the Contract

Labour Act. It would be expedient to reproduce the law laid

by the Apex Court, which is extracted thus:

"...........they fall in three classes: (1) 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

adjudicator/court ordered abolition of contract labour

or because the appropriate Government issued

notification under sectin 10(1) of the CLRA Act, no

automatic absorption of contract labour working in

the establishment was ordered, (2) where contract

was found to be a sham and nominal, rather a

camouflage, in which case the contract 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 the abolition of contract labour but

present instances wherein the court pierce the veil

and declared the correct position as a fact at the

stage after employment of contract labour stood

prohibited, (3) where in discharge of a statutory

obligation of maintaining a canteen in an

establishment the principal employer availed the

services of the contractor, the courts have held that

the contract labour would indeed be employees of

the principal employer".

25. The Court ruled that neither section 10 of the

Contract Labour Act nor any other provision in that Act,

whether expressly or by necessary implication, provides

for automatic absorption of contract labour on issuance of

a notification by the appropriate Government under sub-

section (1) of section 10, prohibiting employment of

contract labour, in any process, operation or other work in

any establishment. Consequently the principal employer

cannot be required to order for absorption of the contract

labour working in the establishment concerned. It was

further ruled therein that in Saraspur Mills case [1974 (3)

SCC 66], the workman engaged for working in the canteen

run by the Cooperative Society for the appellant were the

employees of the appellant mills. In Basti Sugar Mills (AIR

1964 S.C. 355) a canteen was run in the factory by the

Cooperative Society and as such the workers working in

the canteen were held to be employees of the establishment.

The Apex Court ruled that these case fall in class (3)

mentioned above. Judgment in Hussainbhai (1978 Lab. I.C.

1264) was considered by the Apex Court in the said

precedent and it was ruled therein that the said precedent

falls in class (2), referred above. The Apex Court concluded

that on issuance of prohibitive notification under section

10 of the Contract Labour Act prohibiting employment of

contract labour or otherwise, in an industrial dispute

brought before it by any contract labour in regard to

conditions of service, the Industrial Adjudicator will have

to consider the question whether the contractor has been

interposed either on the ground of having undertaken to

produce any given result for the establishment or for supply

of contract labour for work of the establishment under a

genuine contract or is a mere ruse/camouflage to evade

compliance of various beneficial legislation so as to deprive

the workers of the benefit thereunder. If the contract is

found to be not genuine but a mere camouflage, the so

called contract labour will have to be treated as employees

of the principal employer who shall be directed to regularize

the services of the contract labour in the establishment

concerned, subject to the conditions as may be specified

by it for that purpose.

26. As announced by the Apex Court, on issuance of

a prohibitive notification, prohibiting employment of

contract labour or otherwise in any industrial dispute

brought before it by the contract labour in regard to

conditions of his service, the industrial adjudicator will

have to consider the question whether the contractor has

been interposed either on the ground of having undertaken

to produce any given result in the establishment or for

supply of the contract labour for the work of the

establishment under a genuine contract or it is a mere ruse/

camouflage to evade compliance of beneficial legislation

so as to deprive the workers of the benefits therein. Thus it

was ruled that a contract labour can raise a dispute before

the industrial adjudicator in regard to his conditions of

service and in case the contract is found to be not genuine

but a mere camouflage, the so called contract labour will

have to be treated as employees of the principal employer.

Also see Standard Vacuum Refining Co. of India Ltd. (1960

(II) LLI. 233) which was referred with approval in Steel

Authority of India.

27. In Shivnandan Sharma (1955(1) LLI 688), the

respondent Bank entrusted its Cash Department under a

contractor to the Treasures who appointed cashiers,

including the appellant Head Cashier. The question before

the Apex Court was: was the appellant an employee of the

Bank? On construction of the agreement entered into the

Bank and the Treasure, the Court laid down:

"If a master employs a servant and authorizes him to

employ a number of persons to do a particular job

and to guarantee their fidelity and efficiency for a

cash consideration, the employees thus appointed

by the servant would be equally with the employer,

servant of the master."

In the above precedent the Apex Court for the first

time laid down the crucial test of supervision and control

for determining the relationship of employer and employee.

28. In Hussainbhai (supra) the petitioner, who was

manfacturing ropes, entrusted the work to a contractor

who engaged his workers. When, after some time, the

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workers were not engaged, they raised an industrial dispute

that they were denied employment by the petitioner. On

reference of that dispute, the labour court passed an award

against the petitioner. When matter reached the Apex Court,

on examination of various factors and applying the effective

control test, it was held that though there was no direct

relationship between the petition and the workers yet on

lifting the veil and looking at the conspectus of factors

governing employment, the naked truth, though drapped

in different perfect paper arrangement, was that the real

employer was the petitioner, not the immediate contractor.

The Apex Court stated law in following words:

"Where a worker or group of workers labours to

produce goods or services and these goods or

services are for the business of another, that other

is, the employer. He has economic control over the

worker's subsistence, skill, and continued

employment. If he, for any reason, chokes off, the

worker is, virtually, laid off. The presence of

intermediate contractor with whom, alone the workers

have immediate or direct relationship ex-contractu is

of no consequence when, on lifting the veil or looking

at the conspectus of factors governing employment,

we discern the naked truth, though draped in different

perfect paper arrangement, that the real employer is

the management, not the immediate contractor***.

If the livelihood of the workmen substantially

depends on labour rendered to produce goods and

services for the benefit and satisfaction of an

enterprise, the absence of direct relationship or the

presence of dubious intermediaries or the make-

believe trappings of detachment from the

management cannot snap the real-life bond. The story

may vary but the inference defies ingenuity. The

liability cannot be shaken off. Of course, if there is

total dissociation in fact between the disowning

management and the aggrieved workmen, the

employment is, in substance and real life terms, by

another. The management's adventitious connections

cannot ripen into real employment."

As noted above, this precedent does not present an

illustration of abolition of contract labour but an instance

where the Court pierced the veil and declared the correct

position to the effect that the contract labours were

employees of the principal employer and not of the

contractor.

29. In Steel Authority of India (supra) it has been

ruled that the term "contract labour" is a species of workman.

A workman may be hired: (1) in an establishment by the

principal employer or by his agent with or without the

knowledge of the principal employer, or (2) in connection

with the work of an establishment by the principal employer

through a contractor or by a contractor with or without the

knowledge of principal employer. Where a workman is hired

in or in connection with the work of an establishment by

the principal employer through a contractor, he merely acts

as an agent so there will be master and servant relationship

between the principal employer and the workman. But when

a workman is hired in or in connection with the work of an

establishment by a contractor, either because he has

undertaken to produce a given result for the establishment

or because he supplies workmen for any work of the

establishment, a question might arise whether the

contractor is a mere camouflage as in Hussainbhai's case

(supra) and in Indian Petrochemicals Corporation case (1999

(6) S.C.C. 439) etc.; if the answer is in affirmative, the

workman will be in fact an employee of the principal

employer, but if the answer is in the negative, the workman

will be a contract labour.

In view of the legal proposition, referred above, it is

concluded that the claimant can maintain this dispute

against the University since he agitates that the contract

agreement between the University and the Contractor is

sham and nominal.

30. Whether any directions for deeming the contract

labour as having become the employees of the principal

employer can be issued, when the contractor or the principal

employer had violated the provisions of the Contract

Labour Act? To find an answer, provisions of that Act are

to be examined. The Contract Labour Act regulates

conditions of workers in contract labour system and

provides for its abolition by the appropriate Government

as provided by section 10 of that Act. In regard to regulatory

measures section 7 requires the principal employer to get

itself registered, while section 12 obliges every contractor

to obtain a licence, under the provisions of that Act. Section

9 places an embargo on the principal employer of an

establishment from employing contactor labour in the

establishment, when either it is not registered or its

registration has been revoked. Section 12 of the Contract

Labour Act imposes a liability on a contractor not to

undertake or execute any work through contract labour

except under and in accordance with a licence. Sections 23,

24 and 25 make contraventions of the provisions of that

Act or Rules made thereunder penal. In Dena Nath (1992

Lab. I.C. 75) the Apex Court considered the question,

whether non-compliance of the provisions of sections 7

and 12 by the principal employer and the contractor

respectively would make the contract labour employed by

the principal employer as the employee of the latter. It was

ruled that only consequence of non-compliance either by

the principal employer of section 7 or by the contractor in

complying the provisions of section 12 is that they are

liable for prosecution under the said Act. But the employees

employed through the contractor cannot be deemed to be

the employees of the principal employer.

31. In the Steel Authority of India (supra) the Apex

Court laid emphasis "..........the consequence of violation

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of Section 7 and 12 of the CLRA Act is explicitly provided

in Section 23 of and 25 of the CLRA Act, it is not for the

High Courts or this Court to read in some unspecified

remedy in Section 10 or substitute for penal consequences

specified in Sections 23 and 25 a different sequel, be if

absorption of contract labour in the establishment of

principal employer or a lesser or harsher punishment. Such

an interpretation of the provisions of the statute will be far

beyond the principle of ironing out the creases and the

scope of interpretative legislation and as such, clearly

impermissible". The above authoritative pronouncements

make it clear that on violations of the provisions of the

Contract labour Act or Rules made thereunder, the contract

labour could not be deemed to have become the employee

of the principal employer.

32. Whether this Tribunal has power to order for

abolition of contract labour system in the establishment of

the University? For an answer, legal dicta is to be

considered. Before enactment of the Contract labour Act,

the industrial adjudicator, in appropriate cases, used to

Issue directions to the establishment concerned to abolish

or modify system of contract labour. Reference can be made

to precedents in United Salt Works and Industries ltd. (1962

(I) LLJ. 131), Shibu Metal Works (1966 (I) LLJ. 717), National

Iron & Steel Co. (1967 (II) LLJ. 23) and Ghatge and Patil

(Transport) Pvt. Ltd. (1968 (I) LLJ. 566). The National

Commission on labour (1966) in para 29.11 of its report,

enumerated those factors, on which abolition of contract

labour was ordered, thus:

"29.11. Judicial awards have discouraged the practice

of employment of contract labour, particularly when

the work is (i) perennial and must go on from day to

day; (ii) incidental and necessary for the work of the

factory; (iii) sufficient to employ a considerable

number of whole time workmen; and (iv) being done

in most concerns through regular workmen. These

awards also came out against the system of

'middlemen'."

33. After Contract Labour Act was brought on statute

book, the Apex examined jurisdiction of the industrial

adjudicator to issue directions to the establishment to

abolish contract labour in Vegoils Private ltd. (1971 (2) S.C.C.

724) and ruled that it would be proper that the question,

whether the contract labour in the appellant industry was

to be abolished or not, be left to be dealt with by the

appropriate Government under the provisions of that Act,

if it becomes necessary. The observations made by the

Court are extracted thus:

"The appropriate Government when taking action

under Section 10 will have an overall picture of the

industries carrying on similar activities and decide

whether contract labour is to be abolished in respect

of any of the activities of that industry. Therefore, it

is reasonable to conclude that the jurisdiction to

decide about the abolition of contract labour, or to

put it differently, to prohibit the employment of

contract labour, is now to be done in accordance

with Section 10. Therefore, it is proper that the

question whether the contract labour regarding

loading and unloading in the industry of the appellant

is to be abolished or not, is left to be dealt with by

the appropriate Government under the Act, if it

becomes necessary. On this ground, we are of the

opinion that the direction of the Industrial Tribunal

in this regard will have to be set aside.***. The

legality of the direction given by the Industrial

Tribunal abolishing contract labour in respect of

loading and unloading from May 1, 1971, can also be

considered from another point of view. The Central

Act, as mentioned earlier, had come into force on

February 10, 1971. Under Section 10 of the said Act

the jurisdiction to decide matters connected with

prohibition of contract labour is now vested in the

appropriate Government. Therefore, with effect from

February 10, 1971, it is only the appropriate

Government that can prohibit contract labour by

following the procedure and in accordance with the

provisions of the Central Act. The Industrial Tribunal,

in the circumstances, will have no jurisdiction,

through its award dated November 20, 1970, to give

a direction in that respect which becomes,

enforceable after the date of the coming into force of

the Central Act. In any event, such a direction

contained in the award cannot be enforceable from a

date when abolition of contract labour can only be

done by the appropriate Government in accordance

with the provisions of the Central Act".

34. In Gujrat Electricity Board (1995 (5) S.C.C. 27) the

same view was taken by the Apex Court holdings that the

authority to abolish the contract labour vests in the

appropriate Government and not in any court including

the industrial adjudicator. It would be apposite to reproduce

the observation of the court thus:

53. Our conclusions and answers to the questions

raised are, therefore, as follows:—

(i) In view of the provisions of Section 10 of the Act,

it is only the appropriate Government which has

the authority to abolish genuine labour contract

in accordance with the provisions of the said

Section. No Court including the industrial

adjudicator has jurisdiction to do so.

(ii) If the contract is sham or not genuine, the

workmen of the so-called contractor can raise an

industrial dispute for declaring that they were

always the employess of the principal employer

and for claiming the appropriate service

conditions. When such dispute is raised, it is not

a dispute for abolition of the labour contract and

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hence the provisions of Section 10 of the Act will

not bar either the raising or the adjudication of

the dispute. When such dispute is raised, the

industrial adjudicator has to decide whether the

contract is sham or genuine. It is only if the

adjudicator comes to the conclusion that the

contract is sham, that he will have jurisdiction to

adjudicate the dispute. If, however, he comes to

the conclusion that the contract is genuine, he

may refer the workmen to the appropriate

Government for abolition of the contract labour

under Section 10 of the Act and keep the dispute

pending. However, he can do so if the dispute is

espoused by the direct workmen of the principal

employer. If the workmen of the principal employer

have not espoused the dispute, the adjudicator,

after coming to the conclusion that the contract

is genuine, has to reject the reference, the dispute

being not an industrial dispute within the meaning

of Section 2 (k) of the ID Act. He will not be

competent to give any relief to the workmen of

the erstwhile contractor even if the labour

contract is abolished by the, appropriate

Government under Section 10 of the Act.

(iii) If the labour contract is genuine a composite

industrial dispute can still be raised for abolition

of the contract labour and their absorption.

However, the dispute, will have to be raised

invariably by the direct employees of the principal

employer. The industrial adjudicator, after receipt

of the reference of such dispute will have first to

direct the workmen to approach the appropriate

Government for abolition of the contract labour

under Section 10 of the Act and keep the reference

pending. If pursuant to such reference, the

contract labour is abolished by the appropriate

Government, the industrial adjudicator will have

to give opportunity to the parties to place the

necessary material before him to decide whether

the workmen of the erstwhile contractor should

be directed to be absorbed by the principal

employer, how many of them and on what terms.

If, however, the contract labour is not abolished,

the industrial adjudicator has to reject the

reference.

(iv) Even after the contract labour system is abolished,

the direct employees of the principal employer

can raise an industrial dispute for absorption of

the ex-contractor's workmen and the adjudicator

on the material placed before him can decide as to

who and how many of the workmen should be

absorbed and on what terms".

35. In Steel Authority of India (supra) the Apex Court

had referred the precedents in Vegoils case (supra) and

Gujrat Electricity Board (supra) with approval. Thus it

emerges that power to abolish contract labour system vests

with the appropriate Government, under section 10 of the

Contract Labour Act, and not with any court including the

industrial adjudicator. This Tribunal has not been saddled

with any responsibility to abolish contract labour in an

establishment, on parameters enacted in sub-section (2) of

section 10 of the Contract labour Act.

36. Now I would turn to the facts of the present

controversy. It is not a case where an employee of a

contractor, employed In a statutory canteen, has invoked

the jurisdiction of this Tribunal. This matter, as projected

by the claimant, is left to be approached on the proposition

as to whether contract agreement entered into between the

University and the Contractor was sham and nominal. For

an answer to this proposition, it would be expedient to

examine the contract agreement, which has been proved as

Ex.MW3/1 by Dr. Bisht. In construction of contents of

Ex.MW3/1 this Tribunal cannot be oblivions of the rules

viz., written instruments shall, if possible, be so interpreted

"ut resimagis valeat quam pereat" (a liberal construction

should be put upon written instruments, so as to uphold

them, if possible) and that such a meaning shall be given to

it as may carry out and effectuate to the fullest extent the

intention of the parties.

37. Elementary principle of law relative to contracts

is that parties to contracts are to be allowed to regulate

their rights and liabilities themselves and the Courts will

only give effect to the intention of the parties as it is

expressed by the contract. However the law in some cases

overrides the will of the individual and renders ineffective

and futile his expressed intention or contract. No court or

tribunal will lend its aid to a man who founds his cause of

action upon an immoral or an illegal act. A contract cannot

be made the subject of an action if it be impeachable on the

grounds of dishonesty, or as being opposed to public

policy, if it be either contra bonos mores, or forbidden by

law. No court or tribunal will allow itself to be made the

instrument of enforcing obligations alleged to arise out of

a contract or transaction which is illegal.

38. Whether Ex.MW3/1 contains clauses which are

contra bonos mores or forbidden by law? When perused,

clause 24 of Ex.MW3/1 makes it clear that right to form or

join an association, in respect of IGNOU matter, has been

denied to an employee of the Contractor. For sake of

convenience contents of that clause are reproduced thus:

"24. The provider has to ensure that the Temporaries

deployed are not forming any Association/Forum in

respect of IGNOU matter nor they should be allowed

to join in any Association/Forum of IGNOU."

39. Right to form associations or unions is a

fundamental right guaranteed to every citizen by clause

(l)(c) of Article 19 of the Constitution of India. Guarantee of

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right to form an association or union has to be read with

clause (4) of the aforesaid Article, which permits imposition

of legal restrictions on the right in so far as such restrictions

may be reasonably required in the interest of the

sovereignty and integrity of India, public order and morality.

The right to form associations or unions refers not only to

the initial commencement of the association but also to

continuation of the association as such, as it is obvious

that if an association has to be dissolved the moment it has

been formed, it cannot be said that the members have the

right to form the association. The restriction imposed by

the University on employees of the Contractor does not

answer the requirement of clause (4) of Article 19 of the

Constitution and is violative of the fundamental right

guaranted to the claimant and his colleagues.

40. There is other facet of the coin. The Act is a

legislation relating to what is known as "collective

bargaining" in the economic field. This policy is implicit in

the definition of "industrial dispute". See Titagarh Jute Co.

Ltd. (1979 lab. I.C. 513). "An agreement between a single

employer or an association of employers on one hand and

a labour union on the other, which regulates the terms and

conditions of employment" is known as collective

bargaining agreement. The policy behind the concept of

effective bargaining is to protect workmen as a class against

unfair labour practices. A dispute of an individual workman

would acquire status of an industrial dispute if it affects

the rights of the workmen as a class. An industrial dispute

denotes two qualities which distinguish it from an individual

dispute, namely (i) that the dispute relates to industrial

matter, and (ii) that on one side at least of the disputant are

a body of men acting collectively and not individually. The

clause, referred above, puts restriction on the claimant and

his colleagues to act collectively as a body of men to protect

their rights, while working with the Contractor, who had

engaged them to produce a given result in terms of

agreement Ex. MW3/1. Contents of clause 24 of

Ex. MW3/1, being unlawful, cannot be supported at law.

41. A restriction is imposed on the claimant and his

colleagues from making any claim against the University

directly or indirectly, monetary including wages or

otherwise as contained in clause 23 of Ex.MW3/1, which is

not in conformity with the provisions of the Contract Labour

Act. Primary responsibility to pay wages to an employee

employed by a contractor rests upon the latter. But on his

failure to make payment of wages within the prescribed

period or in the event of making short payment, the principal

employer has been saddled with the responsibility to make

payment of wages in full or the unpaid balance due, as the

case may be, to the contract labour, enacts sub-section (4)

of section 21 of the Contract Labour Act. Consequently

this part of clause 23 of Ex.MW3/1, is to be discarded,

being violative of law.

42. In mercantile transactions stipulations are agreed

upon between the parties on principal to principal or

principal to agent basis. In both the propositions there is

privity of contract between them. Absence of privity of

contract would make them strangers to each other, in respect

of alleged covenanted or parol agreement, as the case may

be. In clause 23 of Ex.MW3/1 it is projected that there is no

privity of contract by and between the Provider (the

Contractor) and the University. The proposition referred

above is absurd. Privity of contract is the relation which

exists between the immediate parties to a contract, which is

necessary to enable one person to sue another on it. It is a

relationship between persons arising under a contract.

There may be (1) privity of contract, or (2) privity of estate.

When Ex. MW3/1 is read, privity of contract between the

contractor and the University emerge out. Proposition,

referred above, cannot be given effect to.

43. "Consideration" of some sort or other is so

necessary to the formation of a contract. A nudum pactum,

or agreement to do or pay something on one side, without

any consideration on the other, will not at all support any

action, and a man cannot be compelled to perform it. To

constitute consideration, there must be an act, abstinence

or promise on the part of promisee or some other person at

the desire of the promisor. A consideration must be valuable

and not superficial, it must be material and not sentimental

or imaginary. It must be a material detriment to the promisee

or a benefit to the promisor. Section 2 of the Contract Act

defines cosideration: "when at the desire of the promisor,

the promisee or any other person, has done or abstained

from doing, or does or abstains from doing something,

such act or abstinence or promise is called a consideration

for the promise."

44. The consideration for a promise must have some

tangible value in the eye of law. Its adequacy is not material.

Though adequacy of consideration will not be examined

by the courts, yet it must not be colourable merely nor

illusory. A mere moral obligation arising from a past benefit

not conferred at the request of the defendant is not a good

consideration. However, consideration derived from moral

obligations, in which there has been a legal right deprived

of legal remedy, the defendant would be held liable, without

putting moral duty at par with legal consideration. These

propositions may require a court or a tribunal to examine

whether there was legal consideration for the promise.

45. Whether there is any legal consideration for the

promise made by the Contractor to the University? For an

answer contents of clause 15 of Ex.MW3/1 are to be

examined, which are extracted thus:

"15. In consideration of the obligation undertaken

by the Provider, under this Agreement, the University

shall pay Provider charges on the basis of number of

such personnel actually deployed by the Provider

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for the effective operation of this Agreement, on the

rates quoted by the Provider in their Tender based

on the direction and guidelines issued by the Local

Government (NCT of Delhi). The rates mentioned in

Tenders are as follows:"

46. As detailed above charges on the basis of number

of personnel deployed on the rates quoted by the Contractor

in Tender based on the direction and guidelines issued by

the Local Government (NCT of Delhi) where to be paid to

him by the University. In Ex. MW3/1 those rates are not

detailed. Thus tender document becomes a part of

Ex. MW3/1. It has not been placed before the Tribunal. As

detailed above, adequacy of consideration, may prove to

be beyond the pale of jurisdiction of a civil court. But this

Tribunal has to examine adequacy of consideration to

ascertain as to whether Ex. MW3/1 is genuine and not

sham and nominal. The Tribunal is supposed to examine as

to whether the charges on the basis of number of personnel

deployed on rates quoted in tender document project

minimum wages to be paid to contract labours, besides

remunerations derived by the Contractor. Assessment of

these factors may enable the Tribunal to reach a conclusion

whether the Contractor had put his hands to

Ex. MW3/1 on principal to principal or agent to principal

basis. Absence of tender document created a vacuum. Parol

evidence was brought on record to the effect as to what

payments were made to the Contractor from time to time.

But absence of facts, as to what were the rates of minimum

wages, what number of contract labours worked in a

particular month, on how many days in a month a contract

labour worked, whether overtime work was performed by a

contract labour in that month, whether a contract labour

worked on Sundays, holidays and weekly off days in a

month, would leave the Tribunal in lurch.

47. Wages sheet Ex.WW1/M4 to Ex.WW1/M7

project total work days of the respective months for which

the claimant worked, besides the number of days on which

he remained on leave without pay. These documents project

minimum rates of wages paid to him in a month, out of

which deductions towares E.P.F. and E.S.I subscription were

made. Bills raised by the Contractor and sanction accorded

by the University are proved as Ex. MW3/11 to

Ex. MW3/19. Cheques issued in favour of the Contractor

are proved as Ex. MW3/5 to Ex. MW3/10. Despite my best

efforts to reconcile contents of documents referred above,

I could not work out the rates on which the Contractror

was paid by the University for services rendered by him.

Thus adequacy of consideration for servies rendered by

the Contractor has not surfaced over the record. Vacuum

of evidence in that regard made me to comment that the

University could not establish factors in favour of

genuinesness of contract agreement Ex. MW3/1.

48. Now it would be seen whether it was the

Contractor who exercised his control or supervision on the

claimant? Factors of such control and supervision were

described in various precedents, which would be noted

herein under. In Chintaman Rao (1958 (II) LLJ 252) the Apex

Court ruled that the concept of employment involves three

ingredients: (1) employer, (2) employee, and (3) the contract

of employment. The employer is one who employs, that is,

one who engages the services of other persons. The

employee is one who work for another for hire. The

employment is the contract of service between the employer

and employee where under the employee agrees to serve

the employer subject to his control and supervision. In

Food Corporation of India (1985 (II) LLJ4) Justice Desai,

speaking for the Apex Court, announced that a contract of

employment "discloses a relationship of command and

obedience between them." Where a Contractor employs a

workman to do the work which he contracted with a third

person to accomplish, the workman of the Contractor would

not without something more become the workman of third

persons.

49. In Dharangadhara Chemical Works Limited (1957

(1) LLJ 477), the Apex Court ruled that test of "supervision

and control may be taken as the prima facie test for

determining the relationship of employment". It was further

laid that existence of the right in the master to supervise

and control the work to be done by the servant, not only

matter of directing that work the servant is to do but also

the manner in which he shall do his work in the prima facie

test for determining the existence of master and servant

relationship. It was suggested that correct method of

approach, would be to consider whether having regard to

the nature of work there was due control and supervision

by the employer. The greater amount of direct control

exercised over the person rendering the services by the

person contracting for them, the stronger the ground for

holding it to be a contract of service. The control and

supervision test was reaffirmed by the Apex Court in

Chintaman Rao (supra), wherein it was ruled that "worker"

was a person employed by the management and there must

be contract of service and a relationship of master and

servant between them in Shankar Balaji Waje (1962 (1) LLJ

119), the Apex Court clarified that "control of management,

which is a necessary element of the relationship of master

and servant is not directed towards providing or dictating

the nature of the article to be produced or the work to be

done, but refers to the other incidents having a bearing on

the process of work the person carries out in the execution

of the work. The manner of work is to be distinguished

from the type of work to be performed. In V.P. Gopala Rao

(1970 (11) LLJ 59), the Apex Court, said that it is the question

of fact in each case whether the relationship of master and

servant exists between the management and the workman

and there is no abstract a priori test of the work control

required for establishing the contract of service. It was laid

therein that for holding that the persons employed in the

factory were workers within the meaning of sub section (1)

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of section (2) of the Factories Act 1948, it is to be considered

that the fact that the workman had to work in the factory

implied certain amount of supervision by the management

and the nature and extent of control varied in different

industries and that when the operation was of a simple

nature, the control could be exercised at the end of the day

by the method of rejecting the bidis which did not come up

to the proper standard. It is, therefore, not surprising that

in recent years, the control test, as traditionally formulated,

has not been treated as an exclusive test. In Silver Jubilee

Tailoring House (1973 (11) LLJ 495) the Apex Court ordained

that "it is in its application to skilled and particularly

professional work that control test in its traditional form

has really broken down. It has been said that in interpreting

"control" as meaning the power to direct how the servant

should do the work, the court has been applying the

concept suited to a past age".

50. During the last three decades emphasis in the

field has shifted and no longer rests so strongly upon the

question of control. Control is obviously an important factor

and in many cases it may still be a decessive factor, but it

would be wrong to say that in every case it is a decessive

factor. In Shining Tailors (1983 (11) LLJ 143), the Apex Court

held that the piece rated workers working for a big tailoring

establishment were workmen for the establishment. It was

observed therein that the "right of removal of the workman

or not to give work as an element of control and

supervision" which was amply satisfied to announce that

those piece rated workers were the workmen for the

establishment. The Court concluded that the proposition

that "piece rate" itself indicates relationship of independent

contract, is not correct. A servant who has full liberty to

attend to his work according to his pleasure and not

according to orders of his master, is an independent

contractor. A gold smith engaged to finish jewels within a

given time and when it was open to such goldsmith to

finish jewels within the given time or earlier and engage

themselves or others of their own were held to be

independent contractors, in K. Keswa Reddiar (1957(1) LLJ

645). In the like manner a goldsmith who undertook the

manufacture of ornaments like other goldsmith which he

was asked to manufacture and was entitled to receive

remuneration which would depend upon the nature of the

work done, was held to be not under the order or control of

the proprietor of the concern for whom he was doing the

work, in Achuta Achar (1968(1)LLJ 500). An agreement for

selling milk on commission was held to be a contract for

service and not a contract of service, in Abad Diary Doodh

Vitran Kendra Sanchalak Mandal, Ahmedabad (1989 Lab.

I.C. 1770). The Tiny Deposit Agents employed in deposit

mobilization activity of the bank have been held to be failling

within the definition of the workman and not an independent

contractor in the precedent in the Management of Indian

Bank (1990(1) LLJ 50).

51. As emerge out, element of control or supervision

of employer in respect of detail of work would be an

identifying mark of the servant. Where an employer retains

the power, not only of directing what work is to be done

but also of controlling the manner of doing the work, these

factors would be determinative of his status as of a master.

His control is not directed towards providing or dictating

the nature of work to be done but refers to other incidents

having a bearing on the process of work the person carries

out in the execution of the work. Control test postulates a

combination of managerial and technical functions.

52. Whether elements of control or supervision of

the Unviersity in respect of details of work of the claimant

emerge out of contract agreement Ex. MW3/1 ? For an

answer, a few clauses of Ex. MW3/1 are to be scanned,

which are extracted thus:

"12. Provider shall continue to be responsible for the

personnel employed by him, in respect of terms and

conditions of their service, payments, attendance, medical

care, other disciplinary matters etc. who shall remain fully

under the administrative and financial control and

supervision of the Provider, except that the University shall

be the sole Arbitrator in respect of nature of the duties to

be entrusted to and the manner of performance of their

duties for the purpose of this Agreement.

13. The temporary personnel deployed by the

Provider to IGNOU shall at no time be treated as the

employees of the University and also shall have no claim

to be regularized in the services of the University. But the

Provider will not change the personnel once deployed by

it in the University without prior permission of the

University, as the frequent chagnes in deployment of

temporary may hamper the day to day work of the

University.

14. The Provider shall have to change over or replace

the temporary personnel as and when required by the

University whether or not such personnel are found guilty

of any misconduct. It shall not be necessary for the

University to assign any reason to the Provider or the

concerned Person or any other person in respect of any

such change and replacement required by the University".

53. As projected above, clause 12 announces that

personnel employed by the Contractor shall remain fully

under the administrative and financial control and

supervision of the Contractor. However an exception is

there to this general proposition to the effect that the

University shall be sole arbitrator in respect of nature of

duties to be entrusted to and the manner of performance of

their duties for the purpose of the agreement under

consideration. Another exception is contained in clause 13

wherein the Contractor has been constrained not to change

the personnel once deployed without prior permission of

the University. Further exception is contained in clause 14

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wherein the Contractor is obliged to change or replace the

temporary personnel as and when required by the

University. The factor enumerated in the cluases, referred

above, make it apparent that the University retained the

power, not only of directing what work was to be done by

the claimant, but also of controlling him in respect of manner

of doing the work. Power of the Contractor to replace the

claimant from his work place was made subject to permission

of the University. Despite the choice of the Contractor to

replace the claimant he could not do so, in case University

showed its unwillingness in that regard. Contra to it, the

Contractor was duty bound to change an employee if so

commanded by the University. Such a proposition was not

dependent on a contingency of the employee being found

guilty of any misconduct. Mere wish of the University was

to prevail in the matter. Thus it is crystal clear that the

University retained power of allocation of duties, besides

right to control the manner of performance of such duties

by the claimant. The claimant was to work with the

University till its pleasure. The Contractor could not exercise

his earnest will to change him, if not consented by the

University decided to get him changed, for any reasons

whatsoever, the Contractor could not impose him on the

former, no matter his work and conduct were satisfactory.

Consepectus of these elements make it clear that

administrative control on the claimant was with the

University and not with the Contractor.

54. Contract agreement Ex.MW3/1 does not contain

any obligation on the part of the Contractor to supervise

the work of the claimant. No clause is there in the document

to show that the Contractor deployed some personnel to

supervise the work of the claimant and his other 69

colleagues. Who used to the mark attendance of the

claimant and his colleagues Ex.MW3/1 draws a blank? No

parol evidence was brought in to suggest that it was the

Contractor who supervised his work. Vacuum of facts in

Ex.MW3/1 and conspicuous absence of any ocular

evidence in that regard leave no doubt to conclude that it

were the University authorities who used to supervise the

work of the claimant and his colleagues.

55. Disciplinary control is exercised by an employer

on his employees by way of codifying rules of conduct for

them. He engrafts acts of misconduct in those rules. He

punishes his employees for their blameworthy conduct. It

is so done by him with a view to maintain discipline at the

work place and to deter potential delinquent from doing

improper behaviour or to come in conflict with rules of

standard of behaviour. Right to coin an act as improper

behaviour, falling within the ambit of misconduct, was

retained by the University. It has been detailed in clause 22

of Ex.MW3/1 that "the University shall be sle judge as to

what is against the interest of the University and as to

what constitutes misconduct". This authority to define a

behaviour to be a misconduct for a contract employee

projects that the University had clothed itself with a right

to declare a code of conduct for the claimant and his

associates. That right is an attribute of disciplinary control

exercised by an employer on his employees.

56. Construction adopted on contents of Ex.MW3/1

is based on the standards of presumed intent of parties.

The construction, so put, with an idea to preserve the will

of the parties to Ex.MW3/1. It is the duty of a court or

tribunal to give effect to the intention of the parties in

construing a written instrument. Ascertaining general scope

of Ex.MW3/1, intention of the parties contained therein,

nature of the instrument and legal right of the parties

thereto, it is concluded that efforts were made by the

University to hide the truth with a view to project a make-

believe instrument of engaging personnel through the

Contractor. In fact the University retained administrative

and disciplinary control over the contract employees.

When veil was lifted, it emerged that Ex.MW3/1 is sham

and bogus. There are realties of relationship of employer

and employees between the University and the claimant

and his other 69 colleagues. In view of the forgoing

reasons, it is concluded that the veil of Ex.MW3/1 is a

smoke-screen, which would not snap relationship between

the University and the claimant and his colleagues.

Aforesaid two issues are accordingly answered.

Issue No. 3

57. Dr. S.S. Bisth announces that with effect from

1.11.2007 contract for providing housekeeping services was

given to the New Contractor. He asserts that owing to

illegal demands of the claimant and his colleagues, the

New Contractor did not engage them. Thereafter

housekeeping staff, including the claimant, resorted to

illegal demonstration. A suit of injunction was filed, which

was decreed by the High Court of Delhi. Certified copy of

judgment dated 13.3.2009 has been proved as Ex.MW2/5,

by Shri Shiv Prakash.

58. Whether above facts would espouse the cause

of the University? Answer lies in negative. As held above,

the claimant was an employee of the University, which

proposition restrains the University from awarding

housekeeping services to the New Contractor. In the garb

of award of housekeeping services to the New Contractor,

the University dispensed with the services of the claimant

and his colleagues. Action of the University squarely falls

within the ambit of definition of retrenchment, as contained

in sub-section (00) of section 2 of the Act. No case was

projected that the case of University falls within the

exceptions, contained therein. Therefore, it is crystal clear

that the action of the University amounts to retrenchment.

As per own admission of the University, the claimant

rendered services w.e.f. 1.11.2004 till 31.10.2007, as an

employee of the Contractor. Thus, it is clear that he rendered

continuous service of more than 240 days in a calendar

year, as contemplated by section 25-B of the Act. When an

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[PART II—SEC. 3(ii)]

employee renders services of more than one year, he is

entitled to protection/benefits contained in section 25-F of

the Act. Out of facts of the present controversy, it emerges

that services of the claimant were done away in violation

of the provisions of section 25-F of the Act. It is not the

case of the University that one month's notice or pay in

lieu thereof and retrenchment compensation was paid to

the claimant and other similarly situated employees.

Requirements contained in section 25-F of the Act are

mandatory and non-compliance thereof makes the action

of the employer illegal. Hence action of the University in

terminating services of the Claimant, in the garb of awarding

contract of housekeeping services to the New Contractor

is illegal and unjustified.

59. Whether judgment Ex.MW2/5 would come to the

rescue of the University? Answer lies in negative. Memo

of parties tell that neither the claimant nor his colleagues

were party to that suit. The suit was filed in respect of a

cause of action of civil nature. Even otherwise judgment

Ex.MW2/5 would not operate as res-judicata in the present

controvetrsy. Law contained in section 11 of the Code of

Civil Procedure 1908 (in short the Code) embodies the

doctrine of res-judicata or the rule of conclusiveness of a

judgment, as to the point decided either of fact, or of law, or

of fact and law, in every subsequent suit between the same

parties. It enacts that once a matter is finally decided by a

competent court, no party can be permitted to reopen it in

a subsequent litigation. The doctrine or res-judicata has

been explained in the simplest possible manner by Das

Gupta J. in the case of Statyadhyan Chosal (AIR 1960 S.C.

941) in the following words:

"The principle of res-judicata is based on the need

of giving a fanality to judicial decision. What it says

is that once a res-is judicata, it shall not be adjudged

again. Primarily it applies as between past litigation

and future litigation. When a matter—whether on a

question of fact or a question of law—has been

decided between two parties in one suit or proceeding

and the decision is final, either because no appeal

was taken to a higher court or because the appeal

was dismissed, or no appeal lies, neither party will be

allowed in a future suit or proceedings between the

same parties to convass the matter again."

60. It is not every matter decided in a former suit that

will operate as res-judicata in a subsequent suit. To

constitute a matter as res-judicata under section 11 of the

Code, the following conditions must be satisfied:

1. The matter directly and substantially in issue in

the subsequent suit must be the same matter

which was directly and substantially in issue

either actually or constructively in the former.

2. The former suit must have been a suit between

the same parties or between parties under whom

they or any of them claim.

3. Such parties must have been litigating under the

same title in the former suit.

4. The court which decided the former suit must be

a court competent to try the subsequent suit or

the suit in which such issue is subsequently

raised.

5. The matter directly and substantially in issue in

the subsequent suit must have been heard and

finally decided by the court in the former suit.

61. Section 11 of the Code bars trial of any suit as

well as an issue which had been decided in a former suit.

Issues are of three kinds: (i) Issue of fact; (ii) Issue of law;

and (iii) Mixed issues of law and fact. a decision on an

issue of fact, however erroneous it may be, constitutes

res-judicata between the parties to the previous suit and

cannot be reagitated in collateral proceedings. Law to this

effect was laid in Mathura Prashad (1970(1)SCC613). A mixed

issue of law and fact also, for the same reasons, operates

as res-judicata.

62. To invoke plea of res-judicata it should be shown

that the court which decided the former suit must have

been a court competent to try the subsequent suit. Thus,

the decision in a previous suit by a court, not competent to

try the subsequent suit, will not operate as res-judicata.

The expression "competent to try" means "competent to

try the subsequent suit if brought at the time the first suit

was brought". In other words, the relevant point of time for

deciding the question of competence of the court is the

date when the former suit was brought and not the date

when the subsequent suit was filed. In order that a decision

in a former suit may operate as res-judicata, the court which

decided that suit must have been either—(a) a court of

exclusive jurisdiction, or (b) a court of limited jurisdiction;

or (c) a court of concurrent jurisdiction.

In industrial jurisdiction priciples analogus to res-

judicata are applicable.

63. Now it would be considered as to whether the

High court is competent to try on industrial dispute, relating

to rights and liabilities created under the Act. Such

proposition was raised before the Apex Court in Premier

Automobiles Ltd. (1975 (ii)LLJ. 445), wherein following

principles were enunciated:

"(i) If the dispute is not an industrial dispute, nor

does it relate to enforcement of any other right

under the Act the remedy lies only in the Civil

Court.

(ii) If the dispute is an industrial dispute arising out

of a right or liability under general or common law

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and not under the Act, the jurisdiction of the Civil

Court is alternative, leaving it to the election of

the suiter concerned to choose his remedy for

relief which is competent to be granted in a

particular remedy.

(iii) If the industrial dispute relates to the enforcement

of a right or an obligation created uinder the Act,

then the only remedy available to the suiter is to

get an adjudication under the Act.

(iv) If the right which is sought to be enforced is a

right created under the Act such as Chapter V-A

then the remedy for enforcement is either section

33-C or the raising of an industrial dispute, as the

case may be."

However, in relation to Principle No. 2, the Court

added that "there will hardly be a dispute which will be an

"industrial dispute" within the meaning of section 2(k) of

the Act and yet will be arising out of a right or liability

under the general or common law and not under the Act."

64. In Rajasthan State Road Transport Corporation

(1995 Lab. I.C. 2241), the Apex Court analysed the earlier

dicta and re-stated the law as follows:

"(1) Where the dispute arises from general law of

contract, i.e., where reliefs are claimed on the basis of the

general law of contract, a suit filed in civil court cannot be

said to be not maintainable, even thoguh such a dispute

may also constitute an industrial dispute" wither in meaning

of Section 2(k) or Section 2-A of the Industrial Disputes

Act, 1947.

(2) Where, however, the dispute involves

recognition, observance or enforcement of any othe rights

or obligations created by the Industrial Disputes Act, the

only remedy is to approach the forums created by the said

Act.

(3) Similarly, where the dispute involves the

recognition, observance or enforcement or rights and

obligations created by enactments like Industrial

Employment (Standing Orders) Act 1946—which can be

called 'sister enactments' to Industrial Disputes Act and

which do not provide a forum for resolution of such

disputes, the only remedy shall be to approach the forums

created by the Industrial Disputes Act provided they

constitute industrial disputes within the meaning of Section

2(k) and Section 2-A of Industrial Disputes Act or where

such enactment says that such dispute shall be either

treated as an Industrial dispute or says that it shall be

adjudicated by any of the forum created by the industrial

Disputes Act. Otherwise, recourse to Civil Court is open.

(4)It is not correct to say that the remedies provided

by the Industrial Disputes Act are not equally effective for

the reason that access to the forum depends upon a

reference being made by the appropriate government. The

power to make a reference conferred upon the government

is to be exercised to effectuate the object of the enactment

and hence not unguided. The rule is to make a reference

unless, of course, the dispute raised is a totally frivolous

one ex-facie. The power conferred is the power to refer and

not the power to dicide, though it may be that the

government is entitled to examine whether the dispute is

ex-facie frivolous, not meriting an adjudication.

(5)Consistent with the policy of law aforesaid, we

commend to the Parliament and State Legislatures to make

a provision enabling a workman to approach the Labour

Court/Industrial Tribunal directly—i.e., without the

requirement of a reference by the Government—in case of

industrial disputes covered by Section 2-A of the Industrial

Disputes Act. This would go a long way in removing the

misgivings with respect to the effectiveness of the remedies

pvovided by the Indfustrial Disputes Act.

(6)The certified Standing Orders framed under and

in accordance with the Industrial Employment (Standing

Orders) Act, 1946 are statutorily imposed conditions of

service and are binding both upon the employees and

employees, though they do not amount to "statutory

provisions". Any violation of these Standing Orders

entitles an employee to appropriate relief either before the

forums created by the Industrial Disputes Act or the Civil

Court where recourse to Civil Court is open according to

the principles indicated herein.

(7)The policy of law emerging from Industrial

disputes Act and its sister enactments is to provide an

alternative dispute resolution mechanism to the workmen,

a mechanism which is speedy, inexpensive, Informal and

un-encumbered by the plethora of procedural laws and

appeals and revisions applicable to civil courts. Indeed,

the powers of the Courts and Tribunals under the Industrial

Disputes Act are far more extensive in the sense that they

can grant-such relief as they think appropriate in the

circumstances for putting an end to an industrial dispute''.

Same view was taken by the Apex Court in Steel

Authority of India (supra).

65. Facts detailed in preceding sections make out

that the rights which the claimant claim and obligations

which are imposed on the University arise out of rights

and obligations created by the Act. An industrial dispute

within the meaning of section 2(k) was referred for

adjudication by the appropriate Government to this

Tribunal, invoking its powers under clause (d) of sub-

section (1) of section 10 of the Act. High Court is not

competent to adjudicate an industrial dispute. Hence,

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[PART II—SEC. 3(ii)]

Principle 2, referred in para 63 and Principle 1 referred in

para 64 do not come into play. Therefore, judgment Ex.

MW2/5 cannot operate as res-judicata. It would not restrain

the claimant in any manner, from agitating his claim against

the University.

66. It is well-settled that negative language used in

section 25-F of the Act imposes a mandatory duty on the

employer, which is condition precedent to retrenchment of

a workman. Contravention of mandatory requirements of

section 25-F of the Act would invalidate the retrenchment

and render it void ab initio. Reference can be made to the

precedents in Auro Engineering (Pvt.) Ltd., Nasik (1992

Lab. I.C. 1364) and Ollur Regional Imitation Diamond

Manufacturing Industrial Co-op. Society Ltd. (1993 (II) LLJ

174). As detailed above, retrenchment of the claimant is

illegal and void ab initio. Issue is, therefore, answered in

favour of the claimant and against the University.

Relief.

67. As concluded above, the claimant was engaged

by the University through the Contractor by way of creation

of make believe contract agreement, which was a perfect

paper arrangement. On lifting of veil, the University was

found to be the real employer. His services were disengaged

under the garb of award of housekeeping service agreement

to the New Contractor. His retrenchment was found to be

void ab initio. He, being an employee of the Unviersity

cannot be retrenched by the Contractor or the New

Contractor. He is deemed to be in the service of the

University Question comes whether he is entitled to full

back wages. For an answer in his favour, he was under an

obligation to establish that he remained un-employed since

the date of his retrenchment. No evidence has been

adduced by the claimant on that point. Thus, it cannot be

said that he remained unemployed, since the date of

dispensing with his services by the University. The Apex

Court and High Courts dealt with the issue of award of

compensation, when reinstatement in service was not

found expedient. Those precedents may help the Tribunal

in ascertaining the quantum of back wages, which may be

awarded to the claimant. In S.S. Shetty (1957 (11) LLJ 696)

the Apex Court indicated some relevant factors which an

adjudicator has to take into account in computing

compensation in lieu of reinstatement, in the following

words:

"The Industrial Tribunal would have to take into

account the terms and conditions of employment,

the tenure of service, the possibility of termination

of the employment at the instance of either party, the

possibility of retrenchment by the employer or

resignation or retirement by the workman and even

of the employer himself ceasing to exist or of the

workman being awarded various benefits including

reinstatement under the terms of future awards by

industrial Tribunal in the event of industrial disputes

arising between the parties in future.... In computing

the money value of the benefits of reinstatement, the

industrial adjudicator would also have to take into

account the present value of what his salary, benefits

etc. would be till he attained the age of superannuation

and the value of such benefits would have to be

computed as from the date when such reinstatement

was ordered under the terms of the award.

Having regard to the considerations detailed above,

it is impossible to compute the money value of this

benefit of reinstatement awarded to the appellant

with mathematical exactitude and the best that any

tribunal or court would do under the circumstances

would be to make as correct as estimate as is possible

bearing, of course in mind all the relevant factors pro

and con''.

68. A Divisional Bench of the Patna High Court in

B. Choudhary (1983) Lb. 1.1755 (1758) deduced certain

guidelines which have to be borne in mind in determining

the quantum of compensation viz. (i) the back wages

receivable (ii) compensation for deprivation of the job with

future prospect and obtainability of alternative

employment; (iii) employee's age; (iv) Length of service in

the establishment; (v) capacity of the employer to pay and

the nature of the employer's business (vi) gainful

employment in mitigation damages; and (vii) circumstances

leading to the disengagement and the past conduct. These

factors are only illustrative and not exhaustive. In addition

to the amount of compensation, it is also within the

jurisdiction of the Tribunal to award interest on the amount

determined as compensation. Furthermore, the rate of such

interest is also in the discretion of the Tribunal. Reference

can be made to Tabesh Process, Shivakashi (1989

Lab.I.C.1887).

69. In Assam Oil Co. Ltd. (1960 (1) LLJ 587) the Apex

Court took into account countervailing facts that the

employer had paid certain sums to the workmen and her

own earning in the alternative employment and ordered

that "it would be fair and just to direct the appellant a

substantial sum as compensation to her''. In Utkal

Machinery Ltd. (1956 (1) LLJ 398) the amount of

compensation equivalent to two year salasry of the

employee awarded by the industrial Tribunal was reduced

by the Supreme Court to an amount equivalent to one year

salary of the employee in view of the fact that she had been

in service with the employer only for 5 months and also

took into consideration the unusual manner of her

appointment at the instance of the Chief Minister of the

State. In A.K. Roy (1970) (1) LLJ 228) compensation

equivalent to two years salary last drawn by the workmen

was held to be fair and proper to meet the ends of justice.

In Anil Kumar Chakaraborty (1962 (II) LLJ 483) the Count

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converted the award of reinstatement into compensation

of a sum of Rs. 50000/- as just and fair compensation in full

satisfaction of all his claims for wrongfl dismissal from

service. In O.P. Bhandari (1986 (II) LLJ 509), the Apex Court

observed that it was a fit case for grant of compensation in

view of reinstatement. The Court awarded compensation

equivalent to 3.33 years salary as reasonable. In

M.K. Aggarwal (1988 Lab.I.C.380), the Apex Court though

confirmed the order of reinstatement yet restricted the back

salary to 50% of what would otherwise be payable to the

employee. In Yashveer Singh (1963 Lab.I.C.44) the court

directed payment of Rs. 75000/- in view of reinstatement

with back wages. In Naval Kishor (1984 (II) LLJ 473) the

Apex Court observed that in view of the special

circumstances of the case adequate compensation would

be in the interest of the appellante. A sum of Rs. 2 lac was

awarded as compensation in lieu of reinstatement. In Sant

Raj (1985 (II) LLJ 19) a sum of Rs. 2 lac was awarded as

compensation in lieu of reinstatement. In Chandu Lal (1985

Lab.I.C.1225) a compensation of Rs. 2 lac by way of back

wages in lieu of reinstatement was awarded. In Ras Bihari

(1988 Lab. I.C. 107) a compensation of Rs. 65000/- was

granted in lieu of reinstatement, since the employee was

gainfully employed elsewhere. In V.V. Rao (1991 Lab.

I.C.1650) a compensation of Rs. 2.50 lac was awarded in

lieu of reinstatement.

70. The claimant rendered continuous four years'

service to the University, when he was illegally retrenched.

He had to fight for about four years for redressal of his

grievances. The circumstances in which he was retrenched

and mass unemployment prevalent in economic field which

may come in the way when some one goes for an alternative

employment, besides other factors of this case persuade

me to award 20 percent back wages from the date of

retrenchment till the date the award becomes operative

under section 17-A of the Act, besides reinstatement of the

claimant in the service of the University, with continuity

and all consequential benefits. An award is, accordingly

passed. It be sent to the appropriate Government for

publication.

DR. R.K. YADAV, Presiding Officer

Dated: 09.12.2011

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New Delhi, the 1st February, 2012

S.O. 818.—In pursuance of Section 17 of the

Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 07/2010)

of the Central Government Industrial Tribunal cum Labour

Court No. 1 New Delhi as shown in the Annexure, in the

Industrial dispute between the Vice Chancellor, Indira

Gandhi National Open University and their workman,

which was received by the Central Government on

01.02.2012.

[F.No. L-42012/92/2009-IR(DU)]

RAMESH SINGH, Desk Officer

ANNEXURE

BEFORE DR. R.K. YADAV, PRESIDING OFFICER,

CENTRAL GOVT. INDUSTRIAL TRIBUNAL NO. 1,

KARKARDOOMA COURTS COMPLEX: DELHI

I.D. No.7/2010

Smt. Santosh W/o Shri Rajender Kumar

H.No. 129, Balmiki Basti,

Maidan Garhi,

New Delhi.

CLAIMANT

Versus

The Vice Chancellor,

Indira Gandhi National Open University,

R.No. 1, Block No. 8, Maidan Garhi,

New Delhi-110068.

Management

AWARD

Indira Gandhi National Open University (herein after

referred to as the University) was established in the year

1985 to provide cost effective and quality education to

large sections of people, including those living in remote

and far flung areas, through distance education

programmes. The University functions not only within the

boarders of the country but offers education programmes

in at least 35 countries. Besides Regional Centres across

the country and in foreign countries, the University has its

Central Campus at Maidan Garhi, New Delhi, which is

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THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

spread over an area of 151.32 acres of land. At its Central

Campus, the University has a strength of about 800 officers/

officials working there.

2. The University requires considerable man-power

to carry out housekeeping services, which includes cleaning

and sanitation activities. Housekeeping services are out-

sourced by the University through a private contractor. In

the year 2004, the University awarded contract for

housekeeping services to Sybex Computer Systems (Pvt.)

Ltd. (in short the Contractor). The Contractor engaged

around 70 sweepers and cleaners to carry out its contractual

obligations. on 1st November 2007, the University awarded

contract for housekeeping services to Spick & Span

Facilities Management (Pvt.) Ltd. (in short the New

Contractor). Initially the New Contractor decided to retain

services of the sweepers and cleaners engaged by the

Contractor. But negotiations between the New Contractor

and employees of the Contractor turned into a complete

fiasco. Sweepers and cleaners resorted to agitation and sat

on "dharna" outside the gate of Maidan Garhi Campus of

the University. Legal wrangle started between the

University and the agitation. Efforts were made from either

side to wrench one's opponent.

3. Resort to the jurisdiction of Conciliation Officers

was taken by the sweepers and cleaners, by way of filing

their respective claim statements. Conciliation Officer

initiated conciliation proceedings, as contemplated by sub-

section (1) of section 12 of the Industrial Disputes Act,

1947 (in Short the Act). No settlement could arrive at between

the parties and failure report was submitted to the

appropriate Government. On consideration of the failure

report, so submitted, the appropriate Government referred

the dispute to this Tribunal for adjudication, invoking its

powers under clause (d) of sub-section (1) of section 10 of

the Act, vide order No. L-42012/92/2009-IR (DU) New Delhi

dated 7th January, 2010, with following terms:

"Whether the action of the management of

Indira Gandhi National Open University, in

terminating the services of their workman Smt.

Santosh w.e.f. 01/11/2007 is legal and justified? If

not, what relief the workman is entitled to?"

4. Smt. Santosh claims in her claim statement that

she was working with the University as "Safai Karamchari"

in its housekeeping department since 1998. She has

rendered more than 240 days continuous service with the

University. At the time of entering into the services of the

University, she was asked to fill in certain forms, which

forms duly filled and signed by her are in the custody of

the University. No appointment letter was issued in her

favour, inspite of her request in that behalf. Since inception

of her engagement, the University had indulged into unfair

labour practices and flouted implementation of labour laws

concerning her service conditions. At times she, alongwith

her colleagues, was kept at its rolls by the University, while

during intermittent spells her services were transferred at

the roll of one contractor or the other. This device was

adopted with a view to discount her continuity in service

and seniority in employment so that liability to pay

retrenchment compensation under the Act and other

benefits under various labours laws may be avoided.

5. Contributions towards social securities, namely,

ESI, medical benefits and provided fund were deducted

from her wages by the University, pleads the claimant.

Despite payment of contributions towards above social

securities, the University never issued any medical card

and provident fund statement or account number, but

passed on that responsibility on the shoulders of

Contractor. Facility of earned, annual, privileged, casual,

weekly off, festival and medical leaves were not accorded.

Though work was taken on Sundays and holidays from

her but no compensatory leave or overtime wages were

given to her. She used to get wages at the rate of Rs. 172-

per days, amounting to somewhere near to Rs. 4500/- per

month.

6. On 1st November 2007, the University decided to

place her services at the disposal of a contractor, whose

engagement for housekeeping work was neither

communicated nor he was introduced to her. To her utter

surprise a contractor surfaced on scene and told her and

her colleagues that he will pay them Rs. 3470/- each per

month. He announced that interested persons may stay at

work-place and others may leave for good. The claimant

and her colleagues wanted to see the Vice-Chancellor to

appraise him of their grievances, but they were stopped at

the gate of the University Campus. Services of the claimant

and others were terminated. The University called some

anti-social elements and got sever beatings administered

to her and her colleagues at their hands. Police was also

called by the University authorities, to keep their hands

clean.

7. The University had not served one month notice

nor paid wages in lieu of the notice Retrenchment

compensation was also not paid to her. Her services were

not done away on infliction of punishment for a disciplinary

action, hence action of the University is violative of the

provisions of the Act and principles of natural justice. She

claims reinstatement in the services of the University with

continuity and consequential benefits.

8. The University demurs the claim pleading that the

claimant was never employed by it. No. salary/wages or

other emoluments were paid by it to the claimant. There

existed no relationship of employer and employee between

the parties. Hence there was no occasion for the University

to terminate services of the claimant. In view of these facts,

reference order is improper and claim statements is liable to

be rejected, pleads the University.

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9. To outsource housekeeping services, the

University engaged services of the Contractor, vide

agreement dated 1.11.2004, which agreement was extended

upto 31.10.2007. The claimant was working with the

Contractor to provide housekeeping services at the campus

of the University.The Contractor to provide housekeeping

services at the campus of the University. In agreement

entered into between the Contractor and the University it

was stipulated that employees of the Contractor at no point

of time would be treated as employees of the University.

The University laid emphasis on a few clauses of the

agreement, which are extracted thus:

"12. Provider shall continue to be responsible for the

personnel employed by him, in respect of terms and

conditions of their service, payments attendance, medical

care, other disciplinary matters etc. who shall remain fully

under the administrative and financial control and

supervision of the Provider, except that the University shall

be the sole Arbitrator in respect of nature of the duties to

be entrusted to and the manner of performance of their

duties for the purpose of this Agreement.

13. The temporary personnel deployed by the

Provider to IGNOU shall at no time be treated as the

employees of the University and also shall have no claim

to be regularized in the services of the University. But the

Provider will not change the personnel once deployed by

it in the University without prior permission of the

University as the frequent changes in deployment of

temporary may hamper the day to day work of the

University.

23. There is no privity of contract by and between

the Provider and the University. The Temporary shall have

no right to make any claim against the University directly

or indirectly, monetary including wages or otherwise. The

Temporary shall also have no right to claim for any

regularization. The Temporary shall also have no claim

against the University of any dues, statutory or otherwise.

Similarly, even the representative of any Temporary who

have worked in the University shall have no right or claim

against the University.

24. The Provider has to ensure that the Temporaries

deployed are not forming any Association/Forum in respect

of IGNOU matter nor they should be allowed to join in any

Association/forum of IGNOU.

25. The Provider has to ensure timely deployment of

Temporaries as required by IGNOU and fulfil other

obligation stated in the above said terms and conditions

failing which penalty will be imposed by the University on

case to case basis from time to time. The decision of the

University will be final."

10. When contract, referred above, expired with efflux

of time contract for housekeeping services was awarded to

the New Contractor, who initially sought to retain the

services of housekeeping staff for his own contract.

However, owing to illegal and unjustified demands of the

housekeeping staff, the New Contractor did not engage

the claimant and her other colleagues. The claimant and

her colleagues resorted to illegal demonstration in the

University premises. A civil suit being CS(OS) No. 83 of

2008 was instituted before High Court of Delhi. The High

Court passed an interim injunction order on 15.1.2008

against the housekeeping staff and ultimately decreed the

suit on 13.3.2009.

11. The University had denied all allegations levelled

by the claimant in her claim statement. It is pleaded that the

claimant knew her status, being an employee of the

Contractor. Her services were terminated by the Contractor

and the University has no role to play in so-called

termination of her services. Her claim against the University

is illegal, unwarranted and unjustified. It is pleaded that

her claim may be dismissed.

12. An application moved by the University, to

implead the Contractor as a party, was declined vide order

dated 20.4.2010.

13. On pleadaings of the parties, following issues

were settled:

1. Whether there was relationship of employer and

employee betwen the claimant and the

management?

2. Whether the claimant was an employee of Sybex

Computer System Pvt. Ltd., the Contractor?

3. As in terms of reference.

4. Relief.

14. To discharge onus resting on her, the claimant

examined herself and closed her evidence. The University

examined Smt. Bimla Madan, Shri Shiv Prakash, Dr. S.S.

Bisht and Shri Ashok Kumar Gupta to substantiate its case.

15. Arguments were heard at the bar at length. Shri

V.N. Kaushik, assisted by Ms. Sulekha Thakur, authorised

representaative, advanced arguments on behalf of the

claimant. Shri V.K. Rao, assisted by Shri Aly Mirza,

authorised representative and Vibhas Vaibhav, Asstt.

Registrar (Law), raised submissions on behalf of the

University. I have given my careful considerations to the

submisions made at the bar and cautiously perused the

record. My findings on issues involved in the controversy

are as follows:

Issue No. 1 & 2.

16. Affidavit Ex. WW1\A was tendered as evidence

on behalf of the claimant, wherein she sweared that she

was in the employment of the University as "Safai

Karamchari" since 1998. It has been projected in Ex. WW1\A

that she rendered more than 1 years service with the

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University. Other facts detailed in Ex. WW1/A are facsimile

of contents of claim statement, which has been proved as

WW1/M1. Shri candidly admitted her signatures on

documents Ex. WW1/M2 to Ex. WW1/M6.

17. Smt. Bimla Madan unfolds that Regional Office

of the Employers' Provident Fund Organisation had given

code number as Dl-24878 to the Contractor, while code

number 2130 was given to Smt. Santosh, the employee of

the above company. Name of Santosh appears in

statements of contributions Ex. WM1/1 and Ex. MW1/2,

filed by her employer for the period 1.4.2005 to 31.3.2006

and 1.4.2006 to 31.3.2007 respectively.

18. Shri Shiv Prakash entered the witness box to

prove copy of plaint, filed by the University before High

Court of Delhi, written statement of defendant No. 3 to 6,

affidavit of Shri U.S. Tolia tendered as evidence in that

case, interim order dated 15.1.2008 and judgement dated

13.3.2009 passed by justice Ms. Rekha Sharma. These

documents are proved as Ex. MW2/1 to Ex. MW2/5

respectively. He clarified that no appeal was prefered

against the judgement Ex. MW2/5.

19. Dr. S.S. Bisht tendered his affidavit Ex. MW3/A

as evidence, wherein he announced that the claimant was

never appointed by the University in its services. No salary

was ever paid to her. Services of the Contractor were availed

to outsource housekeeping services vide agreement dated

1.11.2004, which was subsequently extended upto

31.10.2007. The claimant was working with the Contractor.

With effect from 1.11.2007 contract to provide housekeeping

services was awarded to the New Contractor. He projects

that when she was not engaged by the New Contractor,

she alongwith her colleagues resorted to illegal

demonstration in the premises of the University. Story of

filling civil suit and orders thereon have been re-affirmed

by Dr. Bisht. Being an employee of the Contractor, she had

filed a wrong claim statement, which is liable to be

dismissed, asserts Dr. Bisht.

20. Shri Ashok Kumar Gupta details that the

University was maintaining an account with Maidan Garhi

branch of the Punjab National Bank. The University had

issued cheques in favour of the Contractor, details of those

cheques are given in Ex. MW4/A. He identifies signatures

of Shri Mohan Lal, Branch Manager, on Ex. MW3/21 and

announces that contents of that document are true and

correct, as he himself had checked the records.

21. When facts testified by the claimant, Smt. Bimla

Madan, Dr. S.S. Bisht and Ashok Kumar Gupta are

appreciated, it came to light that the claimant had detailed

facts which are inconsistent to each other. In her claim

statement she projected a case that she was in the service

of the University since 1998. In her affidavit Ex. WW1/A

she tried to re-affirm those very facts. But during the course

of her cross-examination she concedes that in her claim

statement, filed before the Concilation Officer, she had

asserted that she was in the service of the University since

1st May, 2005. This piece of her deposition is contrary to

facts pleaded by her in claim statement as Ex. WW2/M1.

Her swinger does not find any corroboration from any other

piece of evidence, direct or circumstantial. Self-serving

words, deposed by the claimant, could not withstand rigors

of cross-examination, wherein she admitted that Ex. WW1/

M2, Ex. WW1/M3, Ex.WW1/M4, Ex.WW1/M5 and

Ex.WW1/M6 bear her signature. When perused it came to

light that Ex.WW1/M4 to Ex.WW1/M6 are wage-sheets of

the Contractor, though which salary of the claimant and

her colleagues were released by the former in their favour.

These documents project her to be an employee of the

Contractor. Thus by an admission of her signatures on

above documents she allowed a fact to spill over, which

demolishes her case of being an employee of the University.

Ex.WW1/M2 and Ex.WW1/M3 are also photocopy of

scrolls through which payments were released by the

Contractor to the claimant and her colleagues. In the end

she gave in and deposed that she was not aware as to who

engaged her. However she made a faint attempt to project

her cause when she asserted that she used to work for the

University. Conspectus of above facts spill the beans and

announce her to be an employee of the Contractor.

22. Dr. S.S. Bisht erected castle for the University

brick by brick when he deposed that the claimant was

working with the Contractor, whom housekeeping services

were outsourced vide agreement dated 1.11.2004, copy of

which is Ex.MW3/1. This agreement was extended upto

31.10.2007. When aforesaid contract expired, contract for

housekeeping services was awarded to the New Contractor,

vide agreement Ex.MW3/2. When New Contractor did not

engage the services of the claimant and her colleagues,

they resorted to illegal demonstration in the premises of

the University. The Contractor used to raise his bills, to

whom payments were made through cheques Ex.MW3/5,

Ex.MW3/6, Ex.MW3/7, Ex.MW3/8, Ex.MW3/9 and

Ex.MW3/10, deposes the witness. Some of the bills raised

by the Contractor, besides sanction accorded by the

University are Ex.MW3/11, Ex.MW3/12, Ex.MW3/13,

Ex.MW3/14, Ex.MW3/15, Ex.MW3/16, Ex.MW3/17,

Ex.MW3/18 and Ex.MW3/19, Dr. Bisht detailed. Payments

were made to the Contractor through cheques, which were

made to the contractor through cheques, which were

honoured and cleared and letter Ex.MW3/21 was written

by the bank in that regard. He had proved list of contractors

as Ex.MW3/W2, to whom the work was awarded by the

University since 16.12.1991 till date. Out of facts unfolded

by Dr. Bisht it came over the record that the University had

outsourced housekeeping services since 16.12.1991. On

1.11.2004 work was awarded to the Contractor and on

1.11.2007 it was awarded to the New Contractor. Claimant

was an employee of the Contractor, who used to pay wages

to her. Smt. Bimla Madan gives re-affirmation to facts

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unfolded by Dr. Bisht. She had proved statements of

contribution, filed by the Contractor in the Regional Office

of the Employees' Provident Fund Organisation, in which

statements name of the claimant does appear as an

employee of the Contractor. Shri Ashok Kumar Gupta proves

various payments made by the University to the Contractor,

details of which are enlisted in Ex.MW3/W21. Sequences

of events, brought over the record through the depositions

of aforesaid witnesses and documents proved by them,

highlight that the claimant was an employee of the

Contractor, who used to make payment of her salaries to

her. It was the Contractor who was her pay master.

23. Whether the claimant, who was an employee of

the Contractor, can maintain a dispute against the

University? For an answer to this proposition, the Tribunal

has to take note of the law contained in section 10 of the

Contract Labour (Regulation and Abolition) Act, 1970 (in

short the Contract Labour Act), which makes provision for

prohibition of employment of contract labour. For sake of

convenience provisions of section 10 of the Contract

Labour Act are reproduced thus:

"10. Prohibition of employment of contract labour:

(1)Notwithstanding anthing contained in this Act,

the appropriate Government may, after consultation with

the Central Board or, as the case may be, a State Board,

prohibit, by notification in the Official Gazette, employment

of contract labour in any process, operation or other work

in any establishment.

(2)Before issuing any notification under sub-section

(1) in relation to an establishment, the appropriate

Government shall have regard to the conditions of work

and benefits provided for the contract labour in that

establishment and other relevant factors, such as-

(a) whether the process, operation or other work is

incidental to, or necessary for the industry, trade,

business, manufacture or occupation that is

carried on in the establishment.

(b) whether it is of perennial nature, that is to say, it is

of sufficient duration having regard to the nature

of industry, trade, business, manufacture or

occupation carried on in that establishment;

workmen in that establishment or an establishment

similar thereto;

(d) whether it is sufficient to employ considerable

number of whole-time workmen. Explanation — If

a question arises whether any process or operation

or other work is of perennial nature, the decision

of the appropriate Government thereon shall be

final."

24. As emerge out of the provisions of sub-section

(1) of Section 10 of the Contract Labour Act, the appropriate

Government may, by notification in the Official Gazette,

prohibit employment of contract labour in any process,

operation or other work in any establishment. When

employment of contract labour is prohibited, by issuance

of a notification in Official Gazette by the appropriate

Government, what would be the status of the contract

labour employed in the establishment? Such a question

arose before the Apex Court in Steel Authority of India Ltd.

(2201 (7) S.C.C.I). The Apex Court rules therein that there

cannot be automatic absorption of contract labour by

principal employer on issuance of notification by the

appropriate Government on abolition of contract labour

system, under sub-section (1) of section 10 of the Contract

Labour Act. It would be expedient to reproduce the law laid

by the Apex Court, which is extracted thus:

"... they fall in three classes: (1) 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 adjudicator/

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 contract labour working in the

establishment was ordered, (2) where contract was

found to be a sham and nominal, rather a camouflage,

in which case the contract 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

the abolition of contract labour but present instances

wherein the court pierce the veil and declared the

correct position as a fact at the stage after

employment of contract labour stood prohibited, (3)

where in discharge of a statutory obligation of

maintaining a canteen in an establishment the

principal employer availed the services of the

contractor, the courts have held that the contract

labour would indeed be employees of the principal

employer".

25. The Court rules that neither section 10 of the

Contract Labour Act nor any other provison in that Act,

whether expressly or by necessary implication, provides

for authomatic absorption of contract labour on issuance

of a notification by the appropriate Government under sub-

section (1) of section 10, prohibiting employment of

contract labour, in any process, operation or other work in

any establishment. Consequently the principal employer

cannot be required to order for absorption of the contract

labour working in the establishment concerned. It was

further ruled therein that in Saraspur Mills case (1974 (3)

SSC 66), the workman engaged for working in the canteen

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[PART II—SEC. 3(ii)]

run by the Cooperative Society for the appellant were the

employees of the appellant mills. In Basti Sugar Mills (AIR

1964 S.C. 355) a canteen was run in the factory by the

Cooperative Society and as such the workers working in

the canteen were held to be employees of the establishment.

The Apex Court rules that these cases fall in class (3)

mentioned above. Judgement in Hussainbhai (1978 Lab.

I.C. 1264) was considered by the Apex Court in the said

precedent and it was ruled therein that the said precedent

falls in class (2), referred above. The Apex Court concluded

that on issuance of prohibitive notification under section

10 of the Contract Labour Act prohibiting employment of

contract labour or otherwise, in an industrial dispute

brought before it by any contract labour in regard to

conditions of service, the Industrial Adjudicator will have

to consider the question whether the contractor has been

interposed either on the ground of having undertaken to

produce any given result for the establishment or for supply

of contract labour for work of the establishment under a

genuine contract or is a mere ruse/camouflage to evade

compliance of various beneficial legislation so as to deprive

the workers of the benefit thereunder. If the contract is

found to be not genuine but a mere camouflage, the so-

called contract labour will have to be treated as employees

of the principal employer who shall be directed to regularize

the services of the contract labour in the establishment

concerned, subject to the conditions as may be specified

by it for that purpose.

26. As announced by the Apex Court, on issuance of

a prohibitive notification, prohibiting employment of

contract labour or otherwise in any industrial dispute

brought before it by the contract labour in regard to

conditions of his service, the industrial adjudictor will have

to consider the question whether the contractor has been

interposed either on the ground of having undertake to

produce any given result in the establishment or for supply

of the contract labour for the work of the establishment

under a genuine contract or it is a mere ruse/camoulfage to

evade compliance of beneficial legislation so as to deprive

the workers of the benefits therein. Thus it was ruled that a

contract labour can raise a dispute before the industrial

adjudicator in regard to his conditions of service and in

case the contract is found to be not genuine but a mere

camouflage, the so called contract labour will have to be

treated as employees of the principal employer. Also see

Standard Vacuum Refining Co. Of India Ltd. (1960(II) LLJ.

233), which was referred with approval in Steel Authority

of India.

27. In Shivnandan Sharma (1955(1) LL 688), the

respondent Bank entrusted its Cash Department under a

contract to the Treasures who appointed cashiers,

including the appellant Head Cashier. The question before

the Apex Court was: was the appellant an employee of the

Bank? On construction of the agreement entered into the

Bank and the Treasure, the Court laid down:

"If a master employs a servant and authorizes him to

employ a number of persons to do a particular job

and to guarantee their fidelity and efficiency for a

cash consideration, the employees thus appointed

by the servant would be equally with the employer,

servant of the master."

In the above precedent the Apex Court for the first

time laid down the crucial test of supervision and control

for determining the relationship of employer and employee.

28. In Hussainbhai (supra) the petitioner, who was

manufacturing ropes, entrusted the work to a contractor

who engaged his own workers. When, after some time, the

workers were not engaged, they raised an industrial dispute

that they were denied employment by the petitioner. On

reference of that dispute, the labour court passed an award

against the petitioner. When matter reached the Apex

Court, on examination of various factors and applying the

effective control test, it was held that though there was no

direct relationship between the petitioner and the workers

yet on lifting the veil and looking at the conspectus of

factors governing employment, the naked truth, though

drapped in different perfect paper arrangement, was that

the real employer was the petitioner, not the immediate

contractor. The Apex Court stated law in following words:

"Where a worker or group of workers labours to

produce goods or services and these goods or

services are for the business of another, that others

is, in fact, the employer. He has economic control

over the workers' subsistence, skill, and continued

employment. If he, for any reason, chokes off, the

worker is, virtually, laid off. The presence of

intermediate contractor with whom alone the workers

have immediate or direct relationship ex-contractu is

of no consequence when, on lifting the veil or looking

at the conspectus of factors governing employment,

we discern the naked truth, though draped in

different perfect paper arrangement, that the real

employer is the management, not the immediate

contractor***. If the livelihood of the workmen

substantially depends on labour rendered to produce

goods and services for the benefit and satisfaction

of an enterprise, the absence of direct relationship or

the presence of dubious intermediaries or the make-

believe trappings of detachment from the

management cannot snap the real-life bond. The story

may very but the inference befies ingenuity. The

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liability cannot be shaken off. Of course, if there is

total dissociation in fact between the disowning

management and the aggrieved workmen, the

employment is, in substance and real-life terms by

another. The management's adventitious

connections cannot ripen into real employment."

As noted above this precedent does not present an

illustration of abolition of contract labour but an instance

where the Court pierced the veil and declared the correct

position to the effect that the contract labours were

employees of the principal employer and not of the

contractor.

29. In Steel Authority of India (supra) it has been

ruled that the term "contract labour" is a species of workman.

A workman may be hired; (1) in an establishment by the

principal employer or by his agent with or without the

knowledge of the principal employer, or (2) in connection

with the work of an establishment by the principal employer

through a contractor or by a contractor with or without the

knowledge of principal emplolyer. Where a workman is

hired in or in connection with the work of an establishment

by the principal employer through a contractor, he merely

acts as an agent so there will be master and servant

relationship between the principal employer and the

workman. But when a workman is hired in or in connection

with the work of an establishment by a contractor, either

because he has undertaken to produce a given/result for

the establishment or because he supplies workmen for any

work of the establishment, a question might raise whether

the contractor is a mere camoulage as in Hussinbhai's case

(supra) and in Indian Petrochemicals Corporation case

(1999(6)S.C.C. 439) etc.' if the answer is in affirmative, the

workman will be in fact an employee of the principal

employer, but if the answer is in the negative, the workman

will be a contract labour.

In view of the legal proposition, referred above, it is

concluded that the claimant can maintain this dispute

against the University since she agitates that the contract

agreement between the University and the Contractor is

sham and nominal.

30. Whether any directions for deeming the contract

labour as having become the employees of the principal

employers can be issued, when the contractor or the

principal employer had violated the provisions of the

Contract Labour Act? To find an answer, provisions of the

Act are to be examined. The Contract Labour Act regulates

conditions of workers in contract labour system and

provides for its abolition by the appropriate Government

as provided by section 10 of that Act. In regard to regulatory

measures section 7 requires the principal employer to get

itself registered, while 12 obliges every contractor to obtain

a licence, under the provisions of that Act. Section 9 places

an embargo on the principal employer of an establishment

from employing contractor labour in the establishment,

when either it is not registered or its registration has been

revoked. Section 12 of the Contract Labour Act imposes a

liability on a contractor not to undertake or execute any

work through contract labour except under and in

accordance with a licence. Sections 23, 24, 25 make

contraventions of the provisions of that Act or Rules made

thereunder penal. In Dena Nath (1992 Lab. I.C. 75) the Apex

Court considered the question, whether non-compliance

of the provisions of sections 7 and 12 by the principal

employer and the contractor respectively would make the

contract labour employed by the principal employer as the

employee of the latter. It was rules that only consequence

of non-compliance either by the principal employer of

section 7 or by the contractor in complying the provisions

of section 12 is that they are liable for prosecution under

the said Act. But the employees employed through the

contractor cannot be deemed to be the employees of the

principal employer.

31. In the Steel Authority of India (supra) the Apex

Court laid emphasis ".....the consequence of violation of

Section 7 and 12 of the CLRA Act is explicitly provided in

Section 23 and 25 of the CLRA Act, it is not for the High

Courts or this Court to read in some unspecified remedy in

Section 10 or substitute for penal consequences specified

in Sections 23 and 25 a different sequel, be if absorption of

contract labour in the establishment of principal employer

or a lesser or harsher punishment. Such an interpretation

of the provisions of the statute will be far beyond the

principle or ironing out the creases and the scope of

interpretative legislation and as such, clearly impressible."

The above authoritative pronouncements make it clear that

on violations of the provisions of the Contract Labour Act

or Rules made thereunder, the contract labour could not

be deemed to have become the employee of the principal

employer.

32. Whether this Tribunal has power to order for

abolition of contract labour system in the establishment of

the University? For an answer, legal dicta is to be

considered. Before enactment of the Contract Labour Act,

the industrial adjudicator, in appropriate cases, used to

issue directions to the establishment concerned to abolish

or modify system of contract labour. Reference can be

made to precedents in United Salt Works and Industries

Ltd. (1962 (1) LLJ.131), Shibu Metal Works (1996 (I)LLJ.717)

National Iron & Steel Co. (1967 (II) ILJ. 23) and Ghatge and

Patil (Transport) Pvt. Ltd. (1968 (I) LLJ, 566). The National

Commission on Labour (1966) in para 29.11 of its report,

enumerated those factors, on which abolition of contract

labour was ordered, thus:

"29.11 Judicial awards have discouraged the practice

of employment of contract labour, particularly when

the work is(i) perennial and must go on from day to

day; (ii) incidental and necessary for the work of the

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[PART II—SEC. 3(ii)]

factory; (iii) sufficient to employ a considerable

number of whole time workmen; and (iv) being done

is most concerns through regular workmen. These

awards also came out against the system of

'middlemen'."

33. After Contract Labour Act was brought on statute

book, the Apex examined jurisdiction of the industrial

adjudicator to issue directions to the establishment to

abolish contract labour in Vegoils Private Ltd.

(1971(2)S.C.C. 724) and ruled that it would be proper that

the question, whether the contract labour in the appellant

industry was to be abolished or not, be left to be dealt with

by the appropriate Government under the provisions of

that Act, if it becomes necessary. The observations made

by the Court are extracted thus:

"The appropriate Government when taking action

under Section 10 will have an overall picture of the

industries carrying on similar activities and decide

whether contract labour is to be abolished in respect

of any of the activities of that industry. Therefore, it

is reasonable to conclude that the jurisdiction to

decide about the abolition of contract labour, or to

put it differently, to prohibit the employment of

contract labour, is now to be done in accordance

with Section 10. Therefore, it is proper that the

question whether the contract labour regarding

loading and unloading in the industry of the appellant

is to be abolished or not, is left to be dealt with by

the appropriate Government under the Act, if it

becomes necessary. On this ground, we are of the

opinion that the direction of the Industrial Tribunal

in this regard will have to be set aside***.The legality

of the direction given by the Industrial Tribunal

abolishing contract labour in respect of loading and

unloading from May 1, 1971, can also be considered

from another point of view. The Central Act, as

mentioned earlier, had come into force on February

10, 1971. Under Section 10 of the said Act the

jurisdiction to decide matters connected with

prohibition of contract labour is now vested in the

appropriate Government. Therefore, with effect from

February 10, 1971, it is only the appropriate

Government that can prohibit contract labour by

following the procedure and in accordance with the

provision of the Central Act. The Industrial Tribunal,

in the circumstances, will have no jurisdiction,

through its awrard dated November 20, 1970 to give

a direction in that respect which becomes,

enforceable after the date of the coming into force of

the Central Act. In any event such a direction

contained in the award cannot be enforceable from a

date when abolition of contract labour can only be

done by the appropriate Government in accordance

with the provisions of the Central Act."

34. In Gujrat Electricity Board (1995 (5) S.C.C. 27) the

same view was taken by the Apex Court holdings that the

authority to abolish the contract labour vests in the

appropriate Government and not in any court including

the industrial adjudicator. It would be apposite to reproduce

the observation of the court thus:

"53. Our conclusions and answers to the questions

raised are, therefore, as follows:

(i) In view of the provisions of Section 10 of the Act,

it is only the appropriate Government which has

the authority to abolish genuine labour contract

in accordance with the provisions of the said

Section. No Court including the industrial

adjudicator has jurisdiction to do so.

(ii) If the contract is sham or not genuine, the

workman of the so-called contractor can raise an

industrial dispute for declaring that they were

always the employess of the principal employer

and for claiming the appropriate service

conditions. When such dispute is raised, it is not

a dispute for abolition of the labour contract and

hence the provisions of Section 10 of the Act will

not bar either the raising or the adjudication of

the dispute. When such dispute is raised, the

industrial adjudicator has to decide whether the

contract is sham or genuine. It is only if the

adjudicator comes to the conclusion that the

contract is sham, that he will have jurisdiction to

adjudicate the dispute, if, however, he comes to

the conclusion that the contract is genuine, he

may refer the workman to the appropriate

Government for abolition of the contract labour

under Section 10 of the Act and keep the dispute

pending. However, he can do so if the dispute is

espoused by the direct workmen of the principal

employer. If the workmen of the principal employer

have not espoused the dispute, the adjudicator,

after coming to the conclusion that the contract

is genuine, has to reject the reference, the dispute

being not an industrial dispute within the meaning

of Section 2 (k) of the ID Act. He will not be

competent to give any relief to the workmen of

the erstwhile contractor even if the labour

contract is abolished by the appropriate

Government under Section 10 of the Act.

(iii) If the labour contract is genuine a composite

industrial dispute can still be raised for abolition

of the contract labour and their absorption.

However, the dispute, will have to be raised

invariably by the direct employees of the principal

employer. The industrial adjudicator, after receipt

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of the reference of such dispute will have first to

direct the workmen to approach the appropriate

Government for abolition of the contract labour

under Section 10 of the Act and keep the reference

pending. If pursuant to such reference, the

contract labour is abolished by the appropriate

Government, the industrial adjudicator will have

to give opportunity to the parties to place the

necessary material before him to decide whether

the workmen of the erstwhile contractor should

be directed to be absorbed by the principal

employer, how many of them and on what terms.

If, however, the contract labour is not abolished,

the industrial adjudicator has to reject the

reference.

(iv) Even after the contract labour system is abolished,

the direct employees of the principal employer

can raise an industrial dispute for absorption of

the ex-contractor's workmen and the adjudicator

on the material placed before him can decide as to

who and how many of the workmen should be

absorbed and on what terms."

35.In Steel Authority of India (supra) the Apex Court

had referred the precedents in Vegoils case (supra) and

Gujrat Electricity Board (supra) with approval. Thus it

emerges that power to abolish contract labour system vests

with the appropriate Government, under section 10 of the

Contract Labour Act, and not with any court including the

industrial adjudicator. This Tribunal has not been saddled

with any responsibility to abolish contract labour in an

establishment, on parameters enacted in sub-section (2) of

section 10 of the Contract Labour Act.

36. Now I would turn to the facts of the present

controversy. It is not a case where an employee of a

contractor, employed in a statutory canteen, has invoked

the jurisdiction of this Tribunal. This matter, as projected

by the claimant, is left to be approached on the proposition

as to whether contract agreement entered into between the

University and the Contractor was sham and nominal. For

an answer to this proposition, it would be expedient to

examine the contract agreement, which has been proved as

Ex.MW3/1 by Dr. Bisht. In construction of contents of

Ex.MW3/1, this Tribunal cannot be oblivions of the rules

viz., written instruments shall, if possible be so interpreted

"ut res magis valeat quam pereat". (a liberal construction

should be put upon written instruments so as to uphold

them, if possible) and that such a meaning shall be given

to it as may carry out and effectuate to the fullest extent the

intention of the parties.

37. Elementary principle of law relative to contracts

is that parties to contracts are to be allowed to regulate

their rights and liabilities themselves and the Courts will

only give effect to the intention of the parties as it is

expressed by the contract. However the law in some cases

overrides the will of the individual and renders ineffective

and futile his expressed intention or contract. No court or

tribunal will lend its aid to a man who founds his cause of

action upon an immoral or an illegal Act. A contract cannot

be made the subject of an action if it be impeachable on the

grounds of dishonesty, or as being opposed to public

policy, if it be either contra bonos mores, or forbidden by

law. No court or tribunal will allow itself to be mde the

instrument of enforcing obligations alleged to arise out of

a contract or transaction which is illegal.

38. Whether Ex.MW3/1 contains clauses which are

contra bonos mores or forbidden by law? When perused,

clause 24 of Ex.MW3/1 makes it clear that right to form or

join an association, in respect of IGNOU matter, has been

denied to an employee of the Contractor. For sake of

convenience contents of that clause are reproduced thus:

"24. The provider has to ensure that the Temporaries

deployed are not forming any Association/Forum is

respect of IGNOU matter nor they should be allowed

to join in any Association/Forum of IGNOU."

39. Right to form associations or unions is a

fundamental right guaranteed to every citizen by clause

(1)(c) ofArticle 19 of the Constitution of India. Guarantee

of right to form an association or union has to be read with

clause (4) of the aforesaid Article, which permits imposition

of legal restrictions on the right in so far as such restrictions

may be reasonably required in the interest of the

sovereignty and integrity of India, public order and morality.

The right to form associations or unions refers not only to

the initial commencement of the association but also to

continuation of the association as such, as it is obvious

that if an association has to be dissolved the moment it has

been formed, it cannot be said that the members have the

right to form the association. The restriction imposed by

the University on employees of the Contractor does not

answer the requirement of clause (4) of Article 19 of the

Constitution and is violative of the fundamental right

guaranted to the claimant and her colleagues.

40. There is other facet of the coin. The Act is a

legislation relating to what is known as "collective

bargaining" in the economic field. This policy is implicit in

the definition of "industrial dispute". See Titagarh Jute Co.

Ltd. (1979 Lab. I.C. 513). "An Agreement between a single

employer or an association of employers on one hand and

a labour union on the other, which regulates the terms and

conditions of employment" is known as collective

bargaining agreement. The policy behind the concept of

collective bargaining is to project workmen as a class

against unfair labour practices. A dispute of an individual

workmen would acquire status of an industrial dispute if it

affects the rights of the workman as a class. An industrial

dispute denotes two qualities which distinguish it from an

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individual dispute, namely (i) that the dispute relates to

industrial matter, and (ii) that on one side at least of the

dispute the disputant are a body of men acting collectively

and not individually. The clause, referred above, puts

restriction on the claimant and her colleagues to act

collectively as a body of men to protect their rights, while

working with the Contractor, who had engaged them to

produce a given result in terms of agreement Ex. MW3/1.

Contents of clause 24 of Ex. MW3/1, being unlawful, cannot

be supported at law.

41. A restriction is imposed on the claimant and her

colleagues from making any claim against the University

directly or indirectly, monetary including wages or

otherwise as contained in clause 23 of Ex. MW3/1, which is

not in conformity with the provisions of the Contract

Labour Act. Primary responsibility to pay wages to an

employee employed by a contractor rests upon the latter.

But on his failure to make payment of wages within the

prescribed period or in the event of making short payment,

the principal employer has been saddled with the

responsibility to make payment of wages in full or the unpaid

balance due, as the case may be, to the contract labour,

enacts sub-section (4) of section 21 of the Contract Labour

Act. Consequently this part of clause 23 of Ex. MW3/1 is

to be discarded, being violative of law.

42. In mercantile transactions stipulations are agreed

upon between the parties on principal to princial or principal

to agent basis. In both the propositions there is privity of

contract between them. Absence of privity of contract

would make them strangers to each other, in respect of

alleged convenanted or parol agreement, as the case may

be. In clause 23 of Ex. MW3/1 it is projected that there is no

privity of contract by and betwen the Provider (the

Contractor) and the University. The proposition referred

above is absurd. Privity of contract is the relation which

exists between the immediate parties to a contract, which is

necessary to enable one person to sue another on it. It is a

relationship between persons arising under a contract.

There may be: (1) privity of contract, or (2) privity of estate.

When Ex. MW3/1 is read, privity of contract between the

contractor and the University emerge out. Proposition,

referred above cannot be given effect to.

43. "Consideration" of some sort or other is so

necessary to the formation of a contract. A nudum pactum,

or agreement to do or pay something on one side, without

any consideration on the other, will not at all support any

action, and a man cannot be compelled to perform it. To

constitute consideration, there must be an act, abstinence

or promise on the part of promisee or some other person at

the desire of the promisor. A consideration must be valuable

and not superficial, it must be material and not sentimental

or imaginary. It must be a material detriment to the promosee

or a benefit to the promisor. Section 2 of the Contract Act

defines consideration: "when at the desire of the promisor,

the promisee or any other person, has done or abstained

from doing, or does or abstains from doing something,

such act or abstinence or promise is called a consideration

for the promise".

44. The consideration for a promise must have some

tangible value in the eye of law. Its adequacy is not material.

Though adequacy of consideration will not be examined

by the courts, yet it must not be colourable merely nor

illusory. A mere moral obligation arising from a past benefit

not conferred at the request of the defendant is not a good

consideration. However, consideration derived from moral

obligations, in which there has been a legal right deprived

of legal remedy, the defendant would be held liable, without

putting moral duty at par with legal consideration. These

propositions may require a court or a tribunal to examine

whether there was legal consideration for the promise.

45. Whether there is any legal consideration for the

promise made by the Contractor to the University? For an

answer contents of clause 15 of Ex. MW3/1 are to be

examined, which are extracted thus:

"15. In consideration of the obligation undertaken

by the Provider, under this Agreement, the University

shall pay Provider charges on the basis of number of

such personnel actually deployed by the Provider

for the effective operation of this Agreement, on the

rates quoted by the Provider in their Tender based

on the direction and guidelines issued bythe Local

Government (NCT of Delhi). The rates mentioned in

Tenders are as follows:"

46. As detailed above charges on the basis of number

of personnel deployed on the rates quoted by the Contractor

in Tender based on the direction and guidelines issued by

the Local Government (NCT of Delhi) where to be paid to

him by the University. In Ex. MW3/1 those rates are not

detailed. Thus tender document becomes a part of Ex. MW3/

1. It has not been placed before the Tribunal. As detailed

above, adequacy of consideration, may prove to be beyond

the pale of jurisdiction of a civil court. But this Tribunal

has to examine adequacy of consideration to ascertain as

to whether Ex. MW3/1 is genuine and not sham and nominal.

The Triubnal is supposed to examine as to whether the

charges on the basis of number of personnel deployed on

rates quoted in tender document project minimum wages

to be paid to contract labours, besides remunerations

derived by the Contractor. Assessment of these factors

may enable the Tribunal to reach a conclusion whether the

Contractor had put his hands to Ex. MW3/1 on principal to

principal or agent to principal basis. Absence of tender

document created a vacuum. Parol evidence was brought

on record to the effect as to what payments were made to

the Contractor from time to time. But absence of facts, as to

what were the rates of minimum wages, what number of

contract labours worked in a particular month, on how many

days in a months a contract labour worked, whether

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overtime work was performed by a contract labour in that

month, whether a contract labour worked on Sundays,

holidays and weekly off days in a month, would leave the

Tribunal in lurch.

47. Wages sheet Ex. WW1/M4 to Ex. WW1/M6

project total work days of the respective months for which

the claimant worked, besides the number of days on which

she remained on leave without pay. These documents

project minimum rates of wages paid to her in a month, out

of which deductions towards E.P.F. and E.S.I. subscriptions

were made. Bills raised by the Contractor and sanction

accorded by the University are proved as Ex. MW3/11 to

Ex. MW3/19. Cheques issued in favour of the Contractor

are proved as Ex. MW3/5 to Ex. MW3/10. Despite my best

efforts to reconcile contents of documents referred above,

I could not work out the rates on which the Contractor was

paid by the University for services rendered by him. Thus

adequacy of consideration for services rendered by the

Contractor has not surfaced over the record. Vacuum of

evidence in that regard made me to comment that the

University could not establish factors in favour of

genuineness of contract agreement Ex. MW3/1.

48. Now it would be seen whether it was the

Contractor who exercised his control or supervision on the

claimant? Factors of such control and supervision were

described in various precedents, which would be noted

herein under. In Chintaman Rao (1958 (II) LLJ 252) the Apex

Court ruled that the concept of employment involves three

ingredients: (1) employer, (2) employee, and (3) the contract

of employment. The employer is one who employs, that is,

one who engages the services of other persons. The

employee is one who works for another for hire. The

employment is the contract of service between the employer

and employee where under the employee agrees to serve

the employer subject to this control and supervision. In

Food Corporation of India (1985 (II) LLJ 4) Justice Desai,

speaking for the Apex Court, announced that a contract of

employment "discloses a relationship of command and

obedience between them". Where a Contractor employs a

workman to do the work which he contracted with a third

person to accomplish, the workman of the Contractor would

not without something more become the workman of third

person.

49. In Dharangadhara Chemical Works Limited (1957

(I) LLJ 477), the Apex Court ruled that test of "supervision

and control may be taken as the prima facie test for

determining the relationship of employment". It was further

laid that existence of the right in the master to supervise

and control the work to be done by the servant, not only

matter of directing that work the servant is to do but also

the manner is which he shall do his work is the prima facie

test for determining the existence of master and servant

relationship. It was suggested that correct method of

approach, would be to consider whether having regard to

the nature of work where was due control and supervision

by the employer. The greater amount of direct control

exercised over the person rendering the services by the

person contracting for them, the stronger the ground for

holding it to be a contract of service. The control and

supervision test was reaffirmed by the Apex Court In

Chintaman Rao (supra), wherein It was ruled that "worker"

was a person employed by the management and there must

be contract of service and a relationship of master and

servant between them. In Shankar Balaji Waje (1962(1) LLJ

119), the Apex Court clarified that "control of the

management, which is a necessary element of the

relationship of master and servant is not directed towards

providing or dictating the nature of the article to be

produced or the work to be done, but refers to the other

incidents having a bearing on the process of work the

person carries out in the execution of the work. The manner

of work is to be distinguished from the type of work to be

performed. In V.P.Gopala Rao (1970 (11) LLJ 59), the Apex

Court said that it is the question of fact in each case whether

the relationship of master and servant exists between the

management and the workman and there is no abstract a

priori test of the work control required for establishing the

contract of service. It was laid therein that for holding that

the persons employed in the factory were workers within

the meaning of sub section (1) of section (2) of the Factories

Act 1948, it is to be considered that the fact that the

workman had to work in the factory implied certain amount

of supervision by the management and the nature and extent

of control varied in different industries and that when the

operation was of a simple nature, the control could be

exercised at the end of the day by the method of rejecting

the bidis which did not come up to the proper standard. It

is, therefore, not surprising that in recent years, the control

test, as traditionally formulated, has not been treated as an

exclusive test. In Silver Jubilee Tailoring House (1973 (11)

LLJ 495) the Apex Court ordained that "it is in its application

to skilled and particularly professional work that control

test in its traditional form has really broken down. It has

been said that in interpreting "control" as meaning the

power to direct how the servant should do the work, the

court has been applying the concept suited to a past age".

50. During the last three decades emphasis in the

field has shifted and no longer rests so strongly upon the

question of control. Control is obviously an important factor

and in many cases it may still be a decessive factor, but it

would be wrong to say that in every case it is a decessive

factor. In Shining Tailors (1983 (11) LLJ 143), the Apex Court

held that the piece rated workers working for a big tailoring

establishment were workmen for the establishment. It was

" observed therein that the "right of removal of the workman

or not to give work as an element of control and

supervision" which was amply satisfied to announce that

those piece rated workers were the workmen for the

establishment. The Court concluded that the proposition

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[PART II—SEC. 3(ii)]

that "piece rate" itself indicates relationship of independent

contract, is not correct. A servant who has full liberty to

attend to his work according to his pleasure and not

according to orders of his master, is an independent

contractor. A gold smith engaged to finish jewels within a

given time and when it was open to such goldsmith to

finish jewels within the given time or earlier and engage

themselves or others of their own were held to be

independent contractors, in K.Keswa Reddiar (1957 (1) LLJ

645). In the like manner a goldsmith who undertook the

manufacture of ornaments like other goldsmith which he

was asked to manufacture and was entitled to receive

remuneration which would depend upon the nature of the

work done, was held to be not under the order or control of

the proprietor of the concern for whom he was doing the

work, in Achuta Achar (1968(1) LLJ 500). An agreement for

selling milk on commission was held to be a contract for

service and not a contract of service, in Abad Dairy Doodh

Vitran Kendra Sanchalak Mandal, Ahmedabad (1989

Lab.I.C.1770). The Tiny Deposit Agents employed in

deposit mobilization activity of the bank have been held to

be falling within the definition of the workman and not an

independent contractor in the precedent in the

Management of Indian Bank (1990 (1) LLJ 50).

51. As emerge out, element of control or supervision

of employer in respect of detail of work would be an

identifying mark of the servant. Where an employer retains

the power, not only of directing what work is to be done

but also of controlling the manner of doing the work, these

factors would be determinative of his status as of a master.

His control is not directed towards providing or dictating

the nature of work to be done but refers to other incidents

having a bearing on the process of work the person carries

out in the execution of the work. Control test postulates a

combination of managerial and technical functions.

52. Whether elements of control or supervision of

the University in respect of details of work of the claimant

emerge out of contract agreement Ex.MW3/1 ? For an

answer, a few clauses of Ex.MW3/1 are to be scanned,

which are extracted thus:

"12. Provider shall continue to be responsible for the

personnel employed by him, in respect of terms and

conditions of their service, payments, attendance,

medical care, other disciplinary matters etc. who shall

remain fully under the administrative and financial

control and supervision of the Provider, except that

the University shall be the sole Arbitrator in respect

of nature of the duties to be entrusted to and the

manner of performance of their duties for the purpose

of this Agreement.

13. The temporary personnel deployed by the

Provider to IGNOU shall at no time be treated as the

employees of the University and also shall have no claim

to be regularized in the services of the University. But the

Provider will not change the personnel once deployed by

it in the University without prior permission of the

University, as the frequent changes in deployment of

temporary may hamper the day to day work of the

University.

14. The Provider shall have to change over or replace

the temporary personnel as and when required by the

University whether or not such personnel are found guilty

of any misconduct. It shall not be necessary for the

University to assign any reason to the provider or the

concerned Person or any other person in respect of any

such change and replacement required by the University".

53. As projected above, clause 12 announces that

personnel employed by the Contractor shall remain fully

under the administrative and financial control and

supervision of the Contractor. However an exception is

there to this general proposition to the effect that the

University shall be sole arbitrator in respect of nature of

duties to be entrusted to and the the manner of performance

of their duties for the purpose of the agreement under

consideration. Another exception is contained in clause 13

wherein the Contractor has been constrained not to change

the personnel once deployed without prior permission of

the University. Further exception is contained in clause 14

wherein the Contractor is obliged to change or replace the

temporary personnel as and when required by the

University. The factors enumerated in the clauses, referred

above, make it apparent that the University retained the

power, not only of directing what work was to be done by

the claimant, but also of controlling her in respect of manner

of doing the work. Power of the Contractor to replace the

claimant from her work place was made subject to permission

of the University. Despite the choice of the Contractor to

replace the claimant he could not do so, in case University

showed its unwillingness in that regard. Contra to it, the

Contractor was duty bound to change an employee if so

commanded by the University. Such a proposition was not

dependent on a contingency of the employee being found

guilty of any misconduct. Mere wish of the University was

to prevail in the matter.Thus it is crystal clear that the

University retained power of allocation of duties, besides

right to control the manner of performance of such duties

by the claimant. The claimant was to work with the

University till its pleasure. The Contractor could not exercise

his earnest will to change her, if not consented by the

University. If the University decided to get her changed,

for any reasons whatsoever, the Contractor could not

impose her on the former, no matter her work and conduct

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were satisfactory. Conspectus of these elements make it

clear that administrative control on the claimant was with

the University and not with the Contractor.

54. Contract agreement Ex.MW3/1 does not contain

any obligation on the part of the Contractor to supervise

the work of the claimant. No clause is there in the document

to show that the Contractor deployed some personnel to

supervise the work of the claimant and her other 69

colleagues. Who used to the mark attendance of the

claimant and her colleagues Ex.MW3/1 draws a blank? No

parol evidence was brought in to suggest that it was the

Contractor who supervised her work. Vacuum of facts in

Ex.MW3/1 and conspicuous absence of any ocular

evidence in that regard leave no doubt to conclude that it

were the University authorities who used to supervise the

work of the claimant and her colleagues.

55. Disciplinary control is exercised by an employer

on his employees by way of codifying rules of conduct for

them. He engrafts acts of misconduct in those rules. He

punishes his employees for their blameworthy conduct. It

is so done by him with a view to maintain discipline at the

work place and to deter potential delinquent from doing

improper behavior or to come in conflict with rules of

standard of behaviour. Right to coin an act as an improper

behavionur, falling within the ambit of misconduct, was

retained by the University. It has been detailed in caluse 22

of Ex. MW3/1 that "the University shall be sole judge as to

what is against the interest of the University and as to

what constitutes misconduct." This authority to define a

behaviour to be a misconduct for a contract employee

projects that the University had clothes itself with a right

to declare a cose of conduct for the claimant and her

associates. This right is an attribute of disciplinary control

exercised by an employer on this employees.

56. Construction adopted on contexts of Ex. MW3/1

is based on the standards of presumed intent of parties.

the construction, so put, with an idea to preserve the will

of the parties to Ex. MW3/1 . It is the duty of a court or

tribunal to give effect to the intention of the parties in

construing a written instrument. Ascertaining general scope

of Ex. MW3/1, intention of the parties contained therein,

nature of the instrument and legal right of the aprties

thereto, it is concluded that efforts were made by the

University to hide the truth with a view to project a make-

believe instrument of engaging personnel through the

Contractor. In fact the University retained adminsitrative

and disciplinary control over the contract employees.

When veil was lifted, it emerged that Ex. MW3/1 is sham

and bogus. There was relaties of relationship of employer

and employees between the University and the claimant

and her other 69 colleagues. In view of the forgoing

reasons, it is concluded that the veil of Ex. MW3/1 is a

smoke-screen, which would not snap relationship between

the University and the claimant and her colleagues.

Adoresaid two issues are accordingly answered.

57. Dr. S.S. Bisth announces that with effect from

1.11.2007 contract for providing housekeeping services wea

give to the New Contractor. He asserts that owing to illegal

demands of the claimant and her colleagues, the New

Contractor did not enagage them. Thereafter housekeeping

staff, including the claimant, resorted to illegal

demonstration. A suit of injunction was filed, which was

decreed by the High Court of Delhi. Certified copy of

judgement dated 13.3.2009 has been proved as Ex. MW3/

2/5, by Shri Shive Prakash.

58. Whether above facts would espouse the cause

of the University? Answer lies in negative. As held above,

the claimant was an employee of the University, which

proposition restrains the University from awarding

housekeeping services to the New Contractor. In the grab

of award of housekeeping services to the New Contractor,

the Universisty dispensed with the services of the claimant

and her colleagues. Action of the University squarely falls

within the ambit of definition of retrenchment, as contained

in sub-section (oo) of section 2 of the Act. No case was

projected that he case of University falls within the

exception, contained therein.Therefore, it is crystal clear

that the action of the University amounts to retrenchment.

As per own admission of the University, the claimant

rendered services w.e.f. 1.11.2004 till 31.10.2007, as an

employee of the Contractor. Thus iit is clear that she

rendered continuous service of more than 240 days in a

calendar year, as contemplated by section 25-B of the Act.

When and employee renders services of more than one

year, he is entitled to protection/benefits contained in

section 25-F of the Act. Out of facts of the present

controversy, it emerges that services of the claimant were

done away in violation of the provisions of section 35-F of

the Act. It is not the case of the University that one month's

notice or pay in lieu thereof and retrenchment

compensation was paid to the claimant and other similarly

situated employees. Requirements contained in Section

25-F of the Act are mandatory and non-compliance thereof

makes the action of the employer illegal. Hence action of

the University in terminating services of the claimant, in

the garb of awarding contract of housekeeping services to

the New Contractor, is illegal and unjustified.

59. Whether judgement Ex.MW2/5 would come to

the rescue of the University? Answer lies in negative. Memo

of aprties tell that neither the claimant nor her collagues

were party to that suit. The suit was filed in respect of a

cause of action of civil nature. Even otherwise judgement

Ex.MW2/5 would not operate as res-judicata in the present

controversy. Law contained in section 11 of the Code of

Civil Prodcedure, 1908 ( in short the Code) embodies the

doctrine of res-judicata or the rule of conclusiveness of a

judgement, as to the point decided either of fact, or of law,

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[PART II—SEC. 3(ii)]

or a of fact and law, in every subsequent suit between the

same parties. It enacts that once a matter is finally decided

by a competent court, no party can be permitted to reopen

it in a subseqeunt litigation. the doctrin of res-judicata has

been explained in the simplest possible manner by Das

Gupta. J. in the case of Statyadhyan Chosal (AIR 1960 S.C.

941) in the following words:

"The principle of res-judicata is based on the need

of giving a finality to judicial decision. What it says

is that once a res-judicata, it shall not be adjudged

again. Primarily it applies as between past litigation

and future litigation. When a matter — whether on a

question of fact or a question of law — has been

decided between two parties in one suit or proceeding

and the decision is final, either because no appeal

was taken to a higher court or because the appeal

was dismissed, or no appeal lies, neither party will be

allowed in a future suit or proceedings between the

same parties to convass the matter again."

60. It is not every matter decided in a former suit that

will operate as res- judicata in a subsequent suit. To

constitute a matter as res-judicata under section 11 of the

Code, the following conditions must be satisfied:

1. The matter directly and substantially in issue in

the subsequent suit must be the same matter

which was directly and substantially in issue

either actually or constructively in the former.

2. The former suit must have been a suit between

the same parties or between parties under whom

they or any of them claim.

3. Such parties must have been litigating under the

same title in the former suit.

4. The court which decided the former suit must be

a court competent to try the subsequent suit or

the suit in which such issue is subsequently

raised.

5. The matter directly and substantially in issue in

the subsequent suit must have been hear and

finally decided by the court in the former suit.

61. Section 11 of the code bars trial of any suit as well

as an issue which had been decided in a former suit. Issues

are for three kinds: (i) Issue of fact; (ii) issue of law; and (iii)

Mixed issues of law and fact. A decision on an issue of

fact, however erroneous it may be, constitute res-judicata

between the aprties to the previous suit and cannot be

reagitated in collateral proceedings. Law to this effect was

laid in Mathura Prashad (1970 (1) SCC 613). A mixed issue

of law and fact also, for the same reasons. operates as res-

judicata.

62. To invoke plea of res-judicata it should be shown

that the court which decided the former suit must have

been a court competent to try the subsequent suit. Thus,

the decision in a previsous suit by a court, not competent

to try the subsequent suit, will not operate as res-judicata.

The expression "competent to try" means" competent to

try the subsequent suit if brought at the time the first suit

was brought". In other words, the relevant point of time for

deciding the question of competence of the court is the

date when the former suit was brought and not the date

when the subsequent suit was filed. In order that a devision

in a former suit may operate as res judicata, the court which

decided that suit must have been either - (a) a court of

exclusive jurisdiction, or (b) a court of limited jurisdiction;

or (c) a court of concurrent jurisdiction.

In industrial jurisdiction principles analogus to res-

judicata are applicable.

63. Now it would be considered as to whether the

High Court is competent to try on industrial dispute, relating

to rights and liabilities created under the Act. Such

proposition was raised before and Apex Court in Premier

Automobiles Ltd. (1975 (II) LLJ. 445), whererin following

principles were enunciated:

"(I) If the dispute is not an industrial dispute, nor

does it relate to enforcement of any other right

under the Act the remedy lies only in the Civil

Court.

(II) If the dispute is an industrial dispute arising out

of a right or liability under general or common law

and not under the Act, the jurisdiction of the Civil

Court is alternative, leaving it to the election of

the suiter concerned to choose his remedy for

relief which is competent to be granted in a

particular remedy.

(III) If the industrial dispute relates to the enforcement

of a right or an obligation created under the Act,

then the only remedy available to the suiter is to

get an adjudication under the Act.

(IV) If the right which is sought to be enforced is a

right created under the Act such as Chapter V-A

then the remedy for enforcement is either Section

33-C or the raising of an industrial dispute, as the

case may be."

However, in relation to Principle No. 2, the Court

added that "there will hardly be a dispute which will be an

"industrial dispute" within the meaning of section 2(k) of

the Act and yet will be arising out of a rightor liability

under the general or common law only and not under the

Act.".

¹Hkkx II—[k.M 3(ii)º

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1913

64. In Rajasthan State Road Transport Corporation

(1995 Lab. I.C. 2241), the apex Court analysed the earlier

dicta and re-stated the law as follows:

"(1) Wherer the dispute arises from general law of

contract, i.e., where reliefs are claimed on the basis of the

general law of contract, a suit filed in civil court cannot be

siad to be not maintanable, even though such a dispute

may also constitute an "Industrial dispute" within the

meaning of Section 2(k) or Section 2-A of the Industrial

Disputes Act, 1947.

(2) Where, however, the dispute involves

recognition, observance or enforcement of any of the rights

or obligations created by the Industrial Disputes Act, the

only remedy is to approach the forums created by the said

Act.

(3) Similarly, where the dispute involves the

rcognition, observance or enforcement of rights and

obligations created by enactments like Industrial

Employment (Standing Orders) Act, 1946-which can be

called 'sister enactments' to Industrial Disputes Act-and

which do not provide a forum for resolution of such

disputes, the only remedy shall be to approach the forums

created by the Industrial Disputes Act provided they

constitute industrial disputes within the meaning of Section

2(k) and Section 2-A of Industrial Disputes Act or where

such enactment says that such dispute shall be either

treated as an Industrial dispute or says that it shall be

adjudicated by any of the forum created by the industrial

Disputes Act. Otherwise, recourse to Civil Court is open.

(4) It is not correct to say that the remedies provided

by the Industrial Disputes Act are not equally effective for

the reason that access to the forum depends upon a

reference being made by the appropriate government. The

power to make a reference conferred upon the government

is to be exercised to effectuate the object of the enactment

and hence not unguided. The rule is to make a reference

unless, of course, the dispute raised is a totally frivolous

one ex-facie. The power conferred is the power to refer and

not the power to decide, though it may be that the

Government is entitled to examine whether the dispute is

ex facie frivolous, not meriting an adjudication.

(5) Consistent with the policy of law aforesaid, we commend

to the Parliament and State Legislatures to make a provision

enabling a workman to approach the Labour Cort/Industrial

Tribunal directly-i.e., without the requirement of a reference

by the Government-in case of industrial disputes covered

by Section 2-A of the Industrial Disputes Act. This would

go a long way in removing the misgivings with respect to

the effectiveness of the remedies provided by the Industrial

Disputes Act.

(6) The certified Standing Orders framed under and

in accordance with the Industrial Employment (Standing

Orders) Act, 1946 are statutorily imposed conditions of

service and are binding both upon the employers and

employees, though they do not amount to "statutory

provision". Any violation of these Standing Orders entitles

an employee to appropriate relief either before the forums

created by the Industrial Disputes Act or the Civil Court

where recourse to Civil Court is open according to the

principles indicated herein.

(7) The policy of law emerging from Industrial

Disputes Act and its sister enactments is to provide an

alternative dispute resolution mechanism to the workmen,

a mechanism which is speedy, inexpensive, informal and

un-encumbered by the plethora of procedural laws and

appeals and revisions applicable to civil courts. Indeed,

the powers of the Courts andTribunals under the Industrial

Disputes Act are far more extensive in the sense that they

can grant such relief as they think appropriate in the

circumstances for putting an end to an industrial dispute".

Same view was taken by the Apex Court in Steel

Authority of India (supra).

65. Facts detailed in preceding sections make out

that the rights which the claimant claim and obligations

which are imposed on the University arise out of rights

and obligations created by the Act. An industrial dispute

within the meaning of section 2(k) was referred for

adjudication by the appropriate Government to this

Tribunal, invoking its powers under clause (d) of sub-

section (1) of section 10 of the Act. High Court is not

competent to adjudicate an industrial dispute. Hence,

Principle 2, referred in para 63 and Principle 1, referred in

para 64, do not come into play. Therefore, judgement Ex.

MW2/5 cannot operate as res-judicata. It would not restrain

the claimant in any manner, from agitating her claim against

the University.

66. It is well settled that negative language used in

section 25-F of the Act imposes a mandatory duty on the

employer, which is conditions precedent to retrenchment

of a workman. Contravention of mandatory requirements

of section 25-F of the Act would invalidate the retrenchment

and render it void ab initio. Reference can be made to the

precedents in Auro Engineering (Pvt.) Ltd., Nasik (1992

Lab. I.C. 1364) and Ollur Regional Imitation Diamond

Manufacturing Industrial Co-op. Society Ltd. (1993 (II) LLJ

174). As detailed above, retrenchment of the claimant is

illegal and void ab initio. Issue is, therefore, answered in

favour of the claimant and against the University.

Relief.

67. As concluded above, the claimant was engaged

by the University through the Contractor by way of creation

1914

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

of make believe contract agrrement, which was a perfect

paper arrangement. On lifting of veil, the University was

found to be the real employer. Her services were disengaged

under the garb of award of housekeeping service agreement

to the New Contractor. Her retrenchment was found to be

void ab initio. She, being an employee of the University

cannot be retrenched by the Contractor or the New

Contractor. She is deemed to be in the service of the

University Question comes whether she is entitled to full

back wages. For an answer in her favour, she was under an

obligation to establish that she remained unemployed since

the date of her retrenchment. No evidence has been

adduced by the claimant on that point. Thus it cannot be

said that she remained unemployed, since the date of

dispensing with her services by the University. The Apex

Court and High Courts dealt with the issue of award of

compensation, when reinstatement in service was not found

expedient. Those precedents may help the Tribunal in

ascertaining the quantum of back wages, which may be

awarded to the claimant. In S.S. Shetty (1957 (11) LLJ 696)

the Apex Court indicated some relevant factors which an

adjudicator has to take into account in computing

compensation in lieu of reinstatement, in the following

words:

"The industrial Tribunal would have to take into

account the terms and conditions of employment,

the tenure of service, the possibility of termination

of the employment at the instance of either party, the

possibility of retrenchment by the employer or

resignation or retirement by the workman and even

of the employer himself ceasing to exist or of the

workman being awarded various benefits including

reinstatement under the terms of future awards by

industrial Tribunal in the event of industrial disputes

arising between the parties in future....In computing

the money value of the benefits of reinstatement, the

industrial adjudicator would also have to take into

account the present value of what his salary, benefits

etc. would be till he attained the age of superannuation

and the value of such benefits would have to be

computed as from the date when such reinstatement

was ordered under the terms of the award.

Having regard to the considerations detailed above,

it is impossible to compute the money value of this

benefit of reinstatement awarded to the appellant

with mathematical exactitude and the best that any

tribunal or court would do under the circumstances

would be to make as correct as estimate as is possible

bearing, of course in mind all the relevant factors pro

and con".

68. A Divisional Bench of the Patna High Court in B.

Choudhary (1983) Lab. I. 1755 (1758) deduced certain

guidelines which have to be borne in mind in determining

the quantum of compensation viz (i) the back wages

receivable (ii) compensation for deprivation of the job with

future prospect and obtainability of alternative

employment; (iii) employee's age (iv) Length of service in

the establishment (v) capacity of the employer to pay and

the nature of the employer's business (vi) gainful

employment in mitigation of damages; and (viii)

circumstances leading to the disengagement and the past

conduct. These factors are only illustrative and not

exhaustive. In addition to the amount of compensation, it

is also within the jurisdiction of the Tribunal to award

interest on the amount determined as compensation.

Furthermore, the rate of such interest is also in the

discretion of the Tribunal. Reference can be made to Tabesh

Process, Shivakashi (1989 Lab. I.C. 1887).

69. In Assam Oil Co. Ltd. (1960 (1) LLJ 587) the Apex

Court took into account countervailing facts that the

employer had paid certain sums to the workmen and her

own earning in the alternative employment and ordered

that "it would be fair and just to direct the appellant a

substantial sum as compensation to her". In Utkal

Machinery Ltd. (1966 (1) LLI 398) the amount of

compensation equivalent to two year salary of the employee

awarded by the industrial Tribunal was reduced by the

Supreme Court to an amount equivalent to one year salary

of the emplyoee in view of the fact that she had been in

service with the employer only for 5 months and also took

into consideration the unusual manner of her appointment

at the instance of the Cheif Minister of the State. In A.K.

Roy [(1970 (1) IIJ 228)] compensation equivalent to two

year salary last drawn by the workmen was held to be fair

and proper to meet the ends of justice. In Anil Kumar

Chakaraborty [(1962 (II) LLJ 483)] the Count converted the

award of reinstatement into compensation of a sum of

Rs. 50000/- as just and fair compensation in full satisfaction

of all his claims for wrongful dismissal from service. In O.P.

Bhandari [(1986 (II) LLJ 509)], the Apex Court obseved that

it was a fit case for grant of compensation in view of

reinstatement. The Court awareded compensation

equivalent to 3.33 years salary as reasonable. In M.K.

Aggarwal (1988 Lab.I.C.380), the Apex Court though

confirmed the order or reinstatement yet restricted the back

salary to 50% of what would otherwise be payable to the

employee. In Yashveer Singh [(1993 Lab.I.C 44)] the court

directed payment of Rs. 75000/- in view of reinstatement

with back wages. In Naval Kishor [(1984(II) LLJ 473)] The

Apex Court observed that in view of the special

circumstances of the case adequate compensation would

be in the interest of the appellant. A sum of Rs. 2 lac was

awarded as compensation in lieu of reinstatement. In Sant

Raj [(1985 (II) LLJ 19)] a sum of Rs. 2 lac was awarded as

compensation in lieu of reinstatement. In Chandu Lal (1985

Lab I.C.1225) a compensation of Rs. 2 lac by way of back

¹Hkkx II—[k.M 3(ii)º

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1915

wages in lieu of reinstatement was awarded. In Ras Bihari

(1988 Lab I.C.107) a compensation of Rs. 65000/- was

granted in lieu of reinstatement, since the employees was

gainfully employed elsewhere. In V.V. Rao (1991

Lab.I.C.1650) a compensation of Rs. 2.50 lac was awarded

in lieu of reinstatement.

70. The claimant rendered continuous four years

service to the University, when she was illegally retrenched.

She had to fight for about four years for redressal of her

grievances. The circumstances, in which she was

retrenched and mass unemployment prevalent in economic

field, which may come in the way when some one goes for

an alternative employment, besides other factors of this

case, persuade me to award 20 percent back wages from

the date of retrenchment till the date the award becomes

operative under section 17-A of the Act, besides

reinstatement of the claimant in the service of the

University, with continuity and all consequential benefits.

An award is, accordingly, passed. It be sent to the

oppropriate Government for publication.

Dated: 09.12.2011.

Dr. R.K. YADAV, Presiding Officer

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New Delhi, the 1st February, 2012

S.O. 819.—In pursuance of Section 17 of the

Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No.17/2010)

of the Central Government Industrial Tribunal cum Labour

Court No. 1 New Delhi as shown in the Annexure, in the In

the Industrial dispute between the Vice Chancellor, Indira

Gandhi National Open University and their workman,

which was received by the Central Government on

01.02.2012.

[F. No. L-42012/103/2009-IR(DU)]

RAMESH SINGH, Desk Officer

ANNEXURE

BEFORE DR. R.K. YADAV, PRESIDING OFFICER,

CENTRAL GOVT. INDUSTRIAL TRIBUNAL NO. 1,

KARKARDOOMA COURTS COMPLEX: DELHI

I.D. No.17/2010

Smt. Santosh Devi W/o Shri Balbir,

H.N. 123, Balmik Basti,

Maidan Garhi,

New Delhi-68.

CLAIMANT

Versus

TheVice Chancellor,

Indira Gandhi National Open University,

R.No. 1, block No. 8, Maidan Garhi,

New Delhi-110068.

Management

AWARD

Indira Gandhi National Open University (herein after

referred to as the University) was established in the year

1985 to provide cost effective and quality education to

large sections of people, including those living in remote

and far flung areas, through distance education

programmes. The University functions not only within the

boarders of the country but offers education programmes

in at least 35 countries. Besides Regional Centres across

the country and in foreign countries, the University has its

Central Campus at Maidan Garhi, New Delhi, which is spread

over an area of 151.32 acres of land. At its Central Campus,

the University has a strength of about 800 officers/officials

working there.

2. The University requires considerable man-power

to carry out housekeeping services, which includes

clearning and sanitation activities. Housekeeping services

are out-sourced by the University through a private

contractor. In the year 2004, the University awarded

contract for housekeeping services to Sybex Computer

Systems (Pvt.) Ltd. (in short the Contractor). The Contractor

engaged around 70 sweepers and cleaners to carry out its

contractual obligations. On 1st November 2007, the

University awarded contract for housekeeping services to

Spick & Span Facilities Management (Pvt.) Ltd. (in short

the New Contractor). Initially the New Contractor decided

to retain services of the sweepers and cleaners engaged

by the Contractor. But negotiations between the New

Contractor and employees of the Contractor turned into a

complete fiasco. Sweepers and cleaners resorted to

agitation and sat on "dharna" outside the gate of Maidan

1916

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

Garhi Campus of the University. Legal wrangle started

between the University and the agitators. Efforts were made

from either side to wrench one's opponent.

3. Resort to the jurisdiction of Conciliation Officer

was taken by the sweepers and cleaners, by way of filing

their respective claim statements. Conciliation Officer

initiated conciliation proceedings, as contemplated by sub-

section (1) of section 12 of the Industrial Disputes Act,

1947 (in short the Act).No settlement could arrive at between

the parties and failure report was submitted to the

appropriate Government. On consideration of the failure

report, so submitted, the appropriate Government referred

the dispute to this Tribunal for adjudication, involing its

powers under clause (d) of sub-section (1) of section 10 of

the Act, vide order No. L-42012/103/2009-IR(DU) New Delhi

dated 28th January, 2010, with following terms:

"Whether the action of the management of Indira

Gandhi National Open University, in terminating the

services of their workman Smt. Santosh Devi w.e.f.

01-11-2007 is legal and justified? If not, what relief

the workman is entitled to?"

4. Smt. Santosh Devi claims in her claim statement

that she was working with the University as "Safai

Karamchari" in its housekeeping department since 1.5.2005.

She had rendered more than 240 days continuous service

with the University. At the time of entering into the services

of the University, she was asked to fill in certain forms,

which forms duly filled and signed by her are in the custody

of the University. No appointment letter was issued in her

favour, inspite of her request in that behalf. Since inception

of her engagement, the University had indulged into unfair

labour practices and flouted implementation of labour laws

concerning her service conditions. At times she, alongwith

her colleagues, was kept at its rolls by the University, while

during intermittent spells her services were transferred at

the roll of one contractor or the other. This device was

adopted with a view to discount her continuity in service

and seniority in employment so that liability to pay

retrenchment compensation under the Act and other

benefits under various labours laws may be avoided.

5. Contributions towards social seurities, namely, ESI,

medical benefits and provided fund were deducted from

wages by the University, pleads the claimant. Despite

payment of contributions towards above social sercurities,

the University never issued any medical card and provident

fund statement or account number, but passed on that

responsibility on the shoulders of the Contractor. Facility

of earned, annual, privileged, casual, weekly off, festival

and medical leaves were not accorded. Though work was

taken on Sundays and holidays from her but no

compensatory leave or overtime wages were given to her.

She used to get wages at the rate of Rs. 172/- per days,

amounting to somewhere near to Rs. 4500/- per month.

6. On 1st November 2007, the University decided to

place her services at the disposal of a contractor, whose

engagement for housekeeping work was neither

communicated nor he was introduced to her. To her utter

surprise a contractor surfaced on scene and told her and

her colleagues that he will pay them Rs. 3470/- each per

month. He announced that interested persons may stay at

work-place and others may leave for good. The claimant

and her colleagues wanted to see the Vice-Chancellor to

appraise him of their grivenances, but they were stopped

at the gate of the University campus. Services of the

claimant and others were terminated. The University called

some anti-social elements and got sever beatings

administered to he and her colleagues at their hands. Police

was also called by the University authorities, to keep their

hands clean.

7. The University had not served one month notice

nor paid wages in lieu of the notice. Retrenchment

compensation was also not paid to her. Her services were

not done away on infliction of punishment for a disciplinary

action, hence action of the University is violative of the

provisions of the Act and principles of natural justice. She

claims reinstatement in the services of the University with

continuity and consequential benefits.

8. The University demurs the claim pleading that the

claimant was never employed by it. No salary/wages or

other emoluments were paid by it to the claimant. There

existed no relationship of employer and employee between

the parties. Hence there was no occasion for the University

to terminate services of the claimant. In view of these facts,

reference order is improper and claim statement is liable to

be rejected, pleads the University .

9. To outsource housekeeping services, the

University engaged services of the Contractor, vide

agreement dated 1.11.2004, which agreement was extended

upto 31.10.2007. The claimant was working the Contractor

to provide housekeeping services at the campus of the

University. The Contractor is essential and proper party,

pleads the University. In agreement entered into between

the Contractor and the University it was stipulated that

employees of the Contractor at no point of time would be

treated as employees of the University. The University laid

emphasis on a new clauses of the agreement, which are

extracted thus:

"12. Provider shall continue to be responsible for the

personnel employed by him, in respect of terms and

conditions of their service, payments, attendance,

medical care, other disciplinary matters etc., who shall

remain fully under the administrative and financial

control and supervision of the Provider, except that

the University shall be the sole Arbitrator in respect

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

1917

of nature of the duties to be entrusted to and the

manner of performance of their duties for the purpose

of this Agreement.

13. The temporary personnel deployed by the

Provider to IGNOU shall at no time be treated as the

employees of the University and also shall have no

claim to be regularized in the services of the

University. But the Provider will not change the

personnel once deployed by it in the without prior

permission of the University as the frequent changes

in deployment of temporary may hamper the day to

day work of the University.

23. There is no privity of contract by and between

the Provider and the University . The Temporary shall

have no right to make any claim against the

University directly or indirectly, monetary including

wages or otherwise. The Temporary shall also have

no right to claim for any regularization. The Temporary

shall also have no claim against the University of

any dues, statutory or otherwise. Similarly, even the

representative of any Temporary who have worked

in the University shall have no right or claim against

the University.

24. The Provider has to ensure that the Temporaries

deployed are not forming any Association/Forum in

respect of IGNOU matter nor they should be allowed

to join in any Association/forum of IGNOU.

25. The Provider has to ensure timely deployment of

Temporaries as required by IGNOU and fulfil other

obligation stated in the above said terms and

conditions failing which penalty will be imposed by

the University on case to case from time to time. The

decision of the University will be final."

10. When contract, referred above, expired with efflux

of time, contract for housekeeping services was awarded

to the New Contractor, who initially sought to retain the

services of housekeeping staff for his own contract.

However, owing to illegal and unjustified demands of the

kousekeeping staff, the New Contractor did not engage

the claimant and her other colleagues. The claimant and

her colleagues resorted to illegal demonstration in the

University premises. A civil suit being CS (OS) No. 83 of

2008 was instituted before High Court of Delhi. The High

Court passed an interim injunction order on 15.1.2008

against the Housekeeping staff and ultimately decreed the

suit on 13.3.2009.

11. The University had denied all allegations levelled

by the claimant in her claim statement. It is pleaded that the

claimant knew her status, being an employee of the

Contractor. Her services were terminated by the Contractor

and the University has no role to play in so called

termination of her services. Her claim against the University

is illegal, unwarranted and unjustified. It is pleaded that

her claim may be dismissed.

12. An application moved by the University, to

implead to Contractor as a party, was declined vide order

dated 20.4.2010.

13. On pleadings of the parties, following issues were

settled:

1. Whether there was relationship of employee and

employee between the claimant and the

management?

2. Whether the claiment was an employee of Sybex

Computer System Pvt., Ltd., the Contractor?

3. As in terms of reference.

4. Relief.

14. To discharge onus resting on her, the claimant

examined Sh. Sudhir Arora, Shri Syed Faizal Huda and

herself and closed her evidence. The University examined

Dr. S.S. Bisht and Shri Ashok Kumar Gupta to substantiate

its case.

15. Arguments were heard at the bar at length. Shri

V.N. Kaushik, assisted by Ms. Sulekha Thakur, authorised

representative, advanced arguments on behalf of the

claimant. Shri V.K. Rao, assisted by Shri Aly Mirza,

authorised representative and Vibhas Vaibhav, Asstt.

Registrar (Law), raised submissions on behalf of the

University. I have given my careful considerations to the

submissions made at the bar and cautiously perused the

record. My findings on issues involved in the controversy

are as follows:

Issue No. 1 & 2.

16. Affidavit Ex.WW1/A was tendered as evidence

on behalf of the claimant, wherein she sweared that she

was in the employment of the University as "Safai

Karamchari" since 1.5.2005. It has been projected in

Ex. WW1/A that she rendered more than 240 days service

with the University. Except this new fact, other facts detailed

in Ex. WW1/A are facsimile of contents of claim statement,

which has been proved as Ex. WW1/M1. She candidly

admitted her signatures on documents Ex. WW1/M2 to

Ex. WW1/M9.

17. Dr. S.S. Bisht tendered his affidavit Ex. MW3/A

as evidence, he announced that the claimant was never

appointed by the University in its services. No salary was

ever paid to her. Services of the Contractor were availed to

outsource housekeeping services vide agreement dated

1.11.2004, which was subsequently extended upto

31.10.2007. The claimant was working with the Contractor,

With effect from 1.11.2007 contract to provide housekeeping

services was awarded to the New Contractor. He projects

that when she was not engaged by the New Contractor,

1918

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

she alongwith her collegues resorted to illegal

demonstration in the premises of the University. Story of

filing civil suit and orders thereon have been re-affirmed

by Dr. Bisht. Being an employee of the Contractor, she had

filed a wrong claim statement, which is liable to be

dismissed, asserts Dr. Bisht.

18. Shri Ashok Kumar Gupta details that the

University was maintaining an account with Maidan Garhi

branch of the Punjab National Bank. The University had

issued cheques in favour of the Contractor, details of those

cheques are given in Ex.MW4/A. He identifies signatures

of Shri Mohan Lal, Branch Manager, on Ex. MW3/21 and

announces that contents of that document are true and

correct, as he himself had checked the records.

19. When facts testified by the claimant, Dr. S. S.Bisht

and Ashok Kumar Gupta are appreciated, it came to light

that the claimant had detailed facts which are inconsistent

to each other. In her testimony hse deposes that she was

working with the University from last three years. Contra

to it, she projects in her claim statement that the University

at times transferred her services at the roll of one contractor

or the other. Thus it is evident that discrepant facts were

recklessly uttered by her. These swingers do not find any

corrorboration from any other piece of evidence, direct or

circumstantial. Self-serving words, deposed by the claimant,

could not withstand rigors of cross-examination, wherein

she admitted that Ex. WW1/M2, Ex. WW1/3, Ex. WW1/

M4, Ex. WW1/M5, Ex. WW1/M6, Ex. WW1/M7, Ex. WW1/

M8 , Ex. WW1/M9, bear her signatures. When perused it

came to light that Ex. WW1/M4, to Ex. WW/M9, are wage-

sheets of the Contractor, though which salarly of the

claimant and her colleagues were released by the former in

their-favour. These documents project her to be an

employee of the Contractor. Thus by an admission of her

signatures on above documents she allowed a fact to spill

over, which demolishes her case of being an employee of

the University. Ex. WW1/M2, and Ex. WW1/M3, are also

potocopy of scrolls through which payments were released

by the Contractor to the claimant and her colleagues. In

the end she gave in and deposed that she not aware as to

who engaged her. However she made a faint attempt to

project her cause when she asserted that she used to work

for the University. Conspectus of above facts spill the beans

and announce her to be an employee of the Contractor.

20. Dr. S.S. Bisht erected castle for the University

brick by brick when he deposed that the claimant was

working with the Contractor, whom housekeeping services

were outsourced vide agreement dated 1.11.2004, copy of

which is Ex. MW3/1. This agreement was extended upto

31.10.2007. When aforesaid contract expired, contract for

housekeeping services was awarded to the New Contractor,

vide agreement Ex. MW3/2. When new Contractor did not

engage the services of the claimant and her colleagues,

they resorted to illegal demonstration in the premises of

the University. The Contractor used to raise his bills, to

whom payments were mae through cheques Ex. MW3/5,

Ex. MW3/6, Ex. MW3/7, Ex. MW3/8 , Ex. MW3/9 and Ex.

MW3/10, deposes the witness. Some of the bills raised by

the Contractor, besides sanction accorded by the

University are Ex. MW3/11, Ex. MW3/12, Ex. MW3/13, Ex.

MW3/14, Ex. MW3/15, Ex. MW3/16, Ex. MW3/17, Ex.

MW3/18 , and Ex. MW3/19, Dr. Bisht detailed. Payments

were made to the Contractor through cheques, which were

honoured and cleared and letter Ex. MW3/21 was written

by the bank in that regard. He had proved list of contractors

as Ex. MW3/W2, to whom the work was awarded by the

University since 16.12.1991 till date. Out of facts unfolded

by Dr. Bisht it came over the record that the University had

outsourced housekeeping services since 16.12.1991. On

1.11.2004 work was awarded to the Contractor and on

1.11.2007 it was awarded to the New Contractor. Claimant

was a employee of the Contractor, who used to pay wages

to her. Shri Ashok Kumar Gupta proves various payments

made by the University to the Contractor, details of which

are enlisted in Ex.MW3/21. Sequences of events, brought

over the record through the depositions of aforesaid

witnesses and documents proved by them, highlight that

the claimant was an employee of the Contractor, who used

to make payment of her salaries to her. It was the Contractor

who was her pay master.

21. Whether the claimant, who was an employee of

the Contractor, can maintain a dispute against the

University? For an answer to this proposition, the Tribunal

has to take note of the law contained in section10 of the

Contract Labour (Regulation and Abolition) Act, 1970 (in

short the Contract Labour Act), which makes provision for

prohibition of employment of contract labour. For sake to

convenience provisions of section 10 of the Contract

Labour Act are reproduced thus:

"10. Prohibition of employment of contract labour:—

(1) Notwithstanding anything contained in this

Act, the appropriate Government may, after consultation

with the Central Board or, as the case may be, as State

Board, prohibit, by notification in the Official Gazette,

employment of contract labour in any process, operation

or other work in any establishment.

(2) Before issuing any notification under sub-

section (1) in relation to an establishment, the appropriate

Government shall have regard to the conditions of work

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and benefits provided for the contract labour in that

establishment and other relevant factors, such as—

(a) whether the process, operation or other work is

incidental to, or necessary for the industry, trade,

business, manufacture or occuption that is carried

on in the establishment;

(b) whether it is of perennial nature, that is to say, It

is of sufficient duration having regard to the

nature of industry, trade, business, manufacture

or occupation carried on in that establishment;

workmen in that establishment or an establishment

similar thereto;

(d) whether it is sufficient to employ considerable

number of whole-time workmen.

Explanation—If a question arises whether any

process of operation or operation or other work is of

perennial nature, the decision of the appropriate

Government thereon shall be final."

22. As emerge out of the provisions of sub-section

(1) of section 10 of the Contract Labour Act, the appropriate

Government may, by notification in the official gazette,

prohibit employment of contract labour in any process,

operation or other work in any establishment. When

employment of contract labour is prohibited, by issuance

of a notification in official gazette by the appropriate

Government, what would be the status of the contract

labour employed in the establishment? Such a question

arose before the Apex Court in Steel Authority of India Ltd.

[2001 (7) S.C.C.I]. The Apex Court ruled therein that there

cannot be automatic absorption of contract labour by

principal employer on issuance of notification by the

appropriate Government on abolition of contract labour

system, under sub section (1) of section 10 of the Contract

Labour Act. It would be expedient to reproduce the law laid

by the Apex Court, which is extracted thus:

".... they fall in three classes: (1) 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 adjudicator/

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 contract labour working in the

establishment was ordered, (2) where contract was

found to be a sham and nominal, rather a camouflage,

in which case the contract 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

the abolition of contract labour but present instances

wherein the court pierce the veil and declared the

correct position as a fact at the stage after

employment of contract labour stood prohibited, (3)

where in discharge of a statutory obligation of

maintaining a canteen in an establishment the

principal employer availed the services of the

contractor, the courts have held that the contract

labour would indeed the employees of the principal

employer."

23. The Court ruled that neither section 10 of the

Contract Labour Act nor any other provision in that Act,

whether expressly or by necessary implication, provides

for automatic absorption of contract labour on issuance of

a notification by the appropriate Government under sub

section (1) of section 10, prohibiting employment of

contract labour, in any process, operation or other work in

any establishment. Consequently the principal employer

cannot be required to order for absorption of the contract

labour working in the establishment concerned. It was

further rules therein that in Saraspur Mills case [1947 (3)

SCC 66], the workman engaged for working in the canteen

run by the Cooperative Society for the appellant were the

employees of the appellant mills. In Basti Sugar Mills (AIR

1964 S.C. 355) a canteen was run in the factory by the

Cooperative Society and as such the workers working in

the canteen were held to be employees of the establishment.

The Apex Court ruled that these cases fall in class (3)

mentioned above. Judgement in Husssainbhai (1978 Lab.

I.C. 1264) was considered by the Apex Court in the said

precedent and it was ruled therein that the said precedent

falls in calss (2), referred above. The Apex Court concluded

that on issuance of prohibitive notification under section

10 of the Contract Labour Act prohibiting employment of

contract labour or otherwise, in an industrial dispute

brought before it by the contract labour in regard to

conditions of service, the industrial Adjudicator will have

to consider the question whether the contractor has been

interposed either on the ground of having undertaken to

produce any given result for the establishment or for supply

of contract labour for work of the establishment under a

genuine contract or is a mere ruse/camouflage to evade

compliance of various beneficial legislation so as to deprive

the workers of the benefit thereunder. If the contract is

found to be not genuine but a mere camouflage, the so

called contract labour will have to be treated as emplyees

of the principal employer who shall be directed to regularize

the services of the contract labour in the establishment

concerned, subject to the conditions as may be specified

by it for that purpose.

24.As announced by the Apex Court, on issuance of

a prohibitive notification, prohibiting employment of

contract labour or otherwise in any industrial dispute

brought before it by the contract labour in regard to

conditions of his service, the industrial adjudicator will

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[PART II—SEC. 3(ii)]

have to consider the question whether the contractor has

been interposed either on the ground of having undertaken

to produce any given result in the establishment or for

supply of the contract labour for the work of the

establishment under a genuine contract or it is a mere ruse/

camouflage to evade compliance of beneficial legislation

so as to deprive the workers of the benefits therein. Thus it

was ruled that a contract labour can raise a dispute before

the industrial adjudicator in regard to his conditions of

service and in case the contract is found to be not genuine

but a mere camouflage, the so called contract labour will

have to be treated as employees of the principal employer.

Also see Standard Vacuum Refining Co. of India Ltd. [1960

(II) LLJ. 233], which was referred with approval in Steel

Authority of India.

25. In Shivnandan Sharma [1955(1) LLJ. 688], the

respondent Bank entrusted its Cash Department under a

contract to the Treasures who appointed cashiers,

including the appellant Head Cashier. The question before

the Apex Court was: was the appellant an employee of the

Bank? On construction of the agreement entered into the

Bank and the Treasure, the Court laid down:

"If a master employs a servant and authorizers him

to employ a number of persons to do a particular job

and to guarantee their fidelity and efficiency for a

cash consideration, the employees thus appointed

by the servant would be equally with the employer,

servant of the master."

In the above precedent the Apex Court for the first

time laid down the crucial test of supervision and control

for determining the relationship of employer and employee.

26. In Hussainbhai (supra) the petitioner, who was

manufacturing ropes, entrusted the work to a contractor

who engaged his own workers. When, after some time the

workers were not engaged, they raised an industrial dispute

that they were denied employment by the petitioner. On

reference of that dispute, the labour court passed an award

against the petitioner. When matter reached the Apex Court,

on examination of various factors and applying the effective

control test, it was held that though there was no direct

relationship between the petitioner and the workers yet on

lifting the veil and looking at the conspectus of factors

governing employment, the naked truth, though drapped

in different perfect paper arrangement, was that the real

employer was the petitioner, not the immediate contractor.

The Apex Court stated law in following words:

"Where a worker or group of workers labours to

produce goods or services and these goods or

services are for the business of another, that other

is, in fact, the employer. He has economic control

over the workers' subsistence skill, and continued

employment. If he, for any reason, chokes off, the

worker is, virtually, laid off. The presence of

intermediate contractor with whom alone the workers

have immediate or direct relationship ex-contractu is

of no consequence when, on lifting the veil or looking

at the conspectus of factors govering employment,

we discern the naked truth, though draped in different

perfect paper arrangement, that the real employer is

the management, not the immediate contractor***.

If the livelihood of the workmen substantially

depends on labour rendered to produce goods and

services for the benefit and satisfaction of an

enterprise, the absence of direct relationship or the

presence of dubious intermediaries or the make-

believe trappings of detachment from the

management cannot snap the real-life bond. The story

may vary but the inference defies ingenuity. The

liability cannot be shaken off. Of course, if there is

total dissociation in fact between the disowning

management and the aggrieved workmen, the

employment is, in substance and real-life terms, by

another. The management's adventitious connections

cannot ripen into real employment."

As noted above, this precedent does not present an

illustration of abolition of contract labour but an instance

where the Court pierced the veil and declared the correct

position to the effect that the contract labours were

employees of the principal employer and not of the

contractor.

27. In Steel Authority of India (supra) it has been

ruled that the term "contract labour" is a species of workman.

A workman may be hired: (1) in an establishment by the

principal employer or by his agent with or without the

knowledge of the principal employer, or (2) in connection

with the work of an establishment by the principal employer

through a contractor or by a contractor with or without the

knowledge of principal employer. Where a workman is hired

in or in connection with the work of an establishment by

the principal employer through a contractor, he merely acts

as an agent so there will be master and servant relationship

between the principal employer and the workman. But when

a workman is hired in or in connection with the work of an

establishment by a contractor, either because he has

undertaken to produce a given result for the establishment

or because he supplies workman for any work of the

establishment, a question might arise whether the

contractor is a mere camouflage as in Hussainbhai's case

(supra) and in Indian Petrochemicals Corporation case [1999

(6) S.C.C. 439] etc., if the answer is in affirmative, the

workman will be in fact an employee of the principal

employer, but if the answer is in the negative, the workman

will be a contract labour.

In view of the legal proposition, referred above, it is

concluded that the claimant can maintain this dispute

against the University since she agitates that the contract

agreement between the University and the Contractor is

sham and nominal.

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28. Whether any directions for deeming the contract

labour as having become the employees of the principal

employer can be issued, when the contractor or the principal

employer had violated the provisions of the Contract

Labour Act? To find an answer, provisions of that Act are

to be examined. The Contract Labour Act regulates

conditions of workers in contract labour system and

provides for its abolition by the appropriate Government

as provided by section 10 of that Act. In regard to regulatory

measures section 7 requires the principal employer to get

itself registered, while section 12 obliges every contractor

to obtain a licence, under the provisions of that Act. Section

9 places an embargo on the principal employer of an

establishment from employing contactor labour in the

establishment, when either it is not registered or its

reistration has been revoked. Section 12 of the Contract

Labour Act imposes a liability on a contractor not to

undertake or execute any work through contract labour

except under and in accordance with a licence. Sections 23,

24 and 25 make contraventions of the provisions of that

Act or Rules made thereunder penal. In Dena Nath (1992

Lab. I.C. 75) the Apex Court considered the question,

whether non-compliance of the provisions of sections 7

and 12 by the principal employer and the contractor

respectively would make the contract labour employed by

the principal employer as the employee of the latter. It was

ruled that only consequence of non-compliance either by

the principal employer of section 7 or by the contractor in

complying the provisions of section 12 is that they are

liable for prosecution under the said Act. But the employees

employed through the contractor cannot be deemed to be

the employees of the principal employer.

29. In the Steel Authority of India (supra) the Apex

Court laid emphasis "....the consequence of violation of

Section 7 and 12 of the CLRA Act is explicitly provided in

Section 23 and 25 of the CLRA Act, it is not for the High

Courts or this Court to read in some unspecified remedy in

Section 10 or substitute for penal consequences specified

in Sections 23 and 25 a different sequel, be if absorption of

contract labour in the establishment of principal employer

or a lesser or harsher punishment. Such as interpretation

of the provisions of the statute will be far beyond the

principle of ironing out the creases and the scope of

interpretative legislation and as such, clearly impermissble".

The above authoritative pronouncements make it clear that

on violations of the provisions of the Contract Labour Act

or Rules made thereunder, the contract labour could not be

deemed to have become the employee of the principal

employer.

30. Whether this Tribunal has power to order for

abolition of contract labour system in the establishment of

the University? For an answer, legal dicta is to be

considered. Before enactment of the Contract Labour Act,

the industrial adjudicator, in appropriate cases, used to

issue directions to the establishment concerned to abolish

or modify system of contract labour. Reference can be made

to precedents in United Salt Work and Industries Ltd. [1962

(I) LLJ. 131], Shibu Metal Works [1966 (I) LLJ. 717] National

Iron & Steel Co. [1967 (II) LLJ. 23] and Ghage and Patil

(Transport) Pvt. Ltd. [1968(I) LLJ. 556]. The National

Commission on Labour (1966) in para 29.11 of its report,

enumerated those factors, on which abolition of contract

labour was ordered, thus:

"29.11 Judicial awards have discouraged the practice

of employment of contract labour, particularly when

the work is (i) perennial and must go on from day to

day; (ii) incidental and necessary for the work of the

factory; (iii) sufficient to employ a considerable

number of whole time workmen; and (iv) being done

is most concerns through regular workmen. These

awards also came out against the system of

'middlemen'."

31. After Contract Labour Act was brought on statute

book, the Apex examined jurisdiction of the industrial

adjudicator to issue directions to the establishment to

abolish contract labout in Vegoils Private Ltd. [1971 (2)

S.C.C. 724] and ruled that it would be proper that the

question, whether the contract labour in the appellant

industry was to be abolished or not, be left to be dealt with

by the appropriate Government under the provisions of

that Act, if it becomes necessary. The observations made

by the Court are extracted thus:

"The appropriate Government when takeing action

under Section 10 will have an overall picture of the

industries carrying on similar activities and decide

whether contact labour is to be abolished in respect

of any of the activities of that industry. Therefore, it

is reasonable to conclude that the jurisdiction to

decide about the abolition of contract labour, or to

put it differently, to prohibit the employment of

contract labour, is now to be done in accordance

with Section 10. Therefore, it is proper that the

question whether the contract labour regarding

loading and unloading in the industry of the appellant

is to be abolished or not, is left to be death with by

the appropriate Government under the Act, if it

becomes necessary. On this ground, we are of the

opinion that the direction of the Industrial Tribunal

in this regard will have to be set aside.**** The

legality of the direction given by the Industrial

Tribunal abolishing contract labour in respect of

loading and unloading from May 1, 1971, can also be

considered from another point of view. The Central

Act, as mentioned earlier, had come into force on

February 10, 1971. Under Section 10 of the said Act

the jurisdiction to decide matters connected with

prohibition of contract labour is now vested in the

appropriate Government. Therefore, with effect from

February 10. 1971, it is only the appropriate

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[PART II—SEC. 3(ii)]

Government that can prohibit contract labour by

following the procedure and in accordance with the

provisions of the Central Act. The Industrial Tribunal,

in the circumstances, will have no jurisdiction,

through its award dated Novermber 20, 1970, to give

a direction in that respect which becomes,

enforceable after the date of the coming into force of

the Central Act. In any event, such a direction

contained in the award cannot be enforceable from a

date when abolition of contract labour can only be

done by the appropriate Government in accordance

with the provisions of the Central Act".

32. In Gujrat Electricity Board [1995 (5) S.C.C. 27] the

same view was taken by the Apex Court holdings that the

authority to abolish the contract labour vests in the

appropriate Government and not in any court including

the industrial adjudicator. It would be apposite to reproduce

the observation of the court thus:

"53.Our conclusions and answers to the questions

raised are, therefore, as follows:

(i) In view of the provisions of Section 10 of the Act,

it is only the appropriate Government which has

the authority to abolish genuine labour contract

in accordance with the provisions of the said

Section. No Court including the Industrial

adjudicator has jurisdiction to do so.

(ii) If the contract is sham or not genuine, the

workmen of the so-called contractor can raise an

industrial dispute for declaring that they were

always the employees of the principal employer

and for claiming the appropriate service

conditions. When such dispute is raised, it is not

a dispute for abolition of the labour contract and

hence the provisions of Section 10 of the Act will

not bar either the raising or the adjudication of

the dispute. When such dispute is raised, the

industrial adjudicator has to decide whether the

contract is sham or genuine. It is only if the

adjudicator comes to the conclusion that the

contract is sham, that he will have jursdiction to

adjudicate the dispute. If however, he comes to

the conclusion that the contract is genuine, he

may refer the workmen to the appropriate

Government for abolition of the contract labour

under Section 10 of that Act and keep the dispute

pending. However, he can do so if the dispute is

espoused by the direct workmen of the principal

employer. If the workmen of the principal employer

have not espoused the dispute, the adjudicator,

after coming to the conclusion that the contract

is genuine, has to reject the reference, the dispute

being not an industrial dispute within the meaning

of Section 2 (k) of the ID Act. He will not be

competent to give any relief to the workmen of

the erstwhile contractor even if the labour

contract is abolished by the appropriate

Government under Section 10 of the Act.

(iii) If the labour contract is genuine a composite

industrial dispute can still be raised for abolition

of the contract labour and their absorption.

However, the dispute, will have to be raised

invariably by the direct employees of the principal

employer. The industrial adjudicator, after receipt

of the reference of such dispute will have first to

direct the workmen to approach the appropriate

Government for abolition of the contract labour

under Section 10 of the Act and keep the reference

pending. If pursuant to such reference, the

contract labour is abolished by the appropriate

Government, the industrial adjudicator will have

to give opportunity to the parties to place the

necessary material before him to decide whether

the workmen of the esrtwhile contractor should

be directed to be absorbed by the principal

employer, how many of them and on what terms.

If, however, the contract labour is not abolished,

the industrial adjudicator has to reject the

reference.

(iv) Even after the contract labour system is abolished,

the direct employees of the principal employer

can raise an industrial dispute for absorption of

the ex-contractor's workmen and the adjudicator

on the material placed before him can decide as to

who and how many of the workmen should be

absorbed and on what terms".

33. In Steel Authority of India (supra) the Apex Court

had referred the precedents in Vegoils case (supra) and

Gujrat Electricity Board (supra) with approval. Thus it

emerges that power to abolish contract labour system with

the appropriate Government, under section 10 of the

Contract Labour Act, and not with any court including the

industrial adjudicator. This Tribunal has not been saddled

with any responsibility to abolish contract labour in an

establishment, on parameters enacted in sub-section (2) of

section 10 of the Contract Labour Act.

34. Now I would turn to the facts of the present

controversy. It is not a case where an employee of a

contractor, employed in a statutory canteen, has invoked

the jurisdiction of this Tribunal. This matter, as projected

by the claimant, is left to be approached on the proposition

as to whether contract agreement entered into between the

University and the Contractor was sham and nominal. For

an answer to this proposition, it would be expedient to

examine the contract agreement, which has been proved as

Ex.MW3/1 by Dr. Bisht. In construction of contents of

Ex.MW3/1, this Tribunal cannot be oblivions of the rules

viz., written instruments shall, if possible, be so interpreted

"ut res magis valeat quam pereat" (a liberal construction

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should be put upon written instruments, so as to uphold

them if possible) and that such a meaning shall be given to

it as may carry out and effectuate to the fullest extent the

intention of the parties.

35. Elementary principle of law relative to contracts

is that parties to contracts are to be allowed to regulate

their rights and liabilities themselves and the Courts will

only give effect to the intention of the parties as it is

expressed by the contract. However the law in some cases

overrides the will of the individual and renders ineffective

and futile his expressed intention on contract. No court or

tribunal will lend its aid to a man who founds his cause of

action upon an immoral or an illegal act. A contract cannot

be made the subject of an action if it be impeachable on the

grounds of dishonesty, or as being opposed to public

policy, if it be either contra bonos mores, or forbidden by

law. No court or tribunal will allow itself to be made the

instrument of enforcing obligations alleged to arise out of

a contract or transaction which is illegal.

36. Whether Ex.MW3/1 contains clauses which are

contra bonos mores or forbidden by law? When perused,

clause 24 of Ex.MW3/1 makes it clear that right to form or

join an association, in respect of IGNOU matter, has been

denied to an employee of the Contractor. For sake of

convenience contents of that clause ar reproduced thus:

"24. The provider has to ensure that the Temporaries

deployed are not forming any Association/Forum in

respect of IGNOU matter nor they should be allowed

to join in any Association/Forum of IGNOU."

37. Right to form associations or unions is a

fundamental right guaranteed to every citizen by clause

(1)(c) of Article 19 of the Constitution of India. Guarantee

of right to form an association or union has to be read with

clause (4) of the aforesaid Article, which permits imposition

of legal restrictions on the right in so far as such restrictions

may be reasonably required in the interest of the

sovereignty and integrity of India, public order and morality.

The right to form associations or unions refers not only to

the initial commencement of the association but also to

continuation of the association as such, as it is obvious

that if an association has to be dissolved the moment it

has been formed, it cannot be said that the members have

the right to form the association. The restriction imposed

by the University on employees of the Contractor does

not answer the requirement of clause (4) of Article 19 of the

Constitution and is violative of the fundamental right

guaranted to the claimant and her colleagues.

38. There is other facet of the coin. The Act is a

legislation relating to what is known as "collective

bargaining" in the economic field. This policy is implicit in

the definition of "Industrial dispute". See Titagarh Jute

Co. Ltd. (1979 Lab. I.C. 513). "An agreement between a

single employer or an association of employers on one

hand and a labour union on the other, which regulates the

terms and conditions of employment" is known as collective

bargaining agreement. The policy behind the concept of

collective bargaining is to be protect workmen as a class

against unfair labour practices. A dispute of an individual

workman would acquire status of an industrial dispute if it

affected the rights of the wokmen as a class. An industsrial

dispute denotes two qualities which distinguish it from an

individual dispute, namely (i) that the dispute relates to

industrial matter, and (ii) that on one side at least of the

dispute the disputant are a body of men acting collectively

and no individually. The clause, referred above, puts

restriction on the claimant and her colleagues to act

collectively as a body of men to protect their rights, while

working with the Contractor, who had engaged them to

produce a given result in terms of agreement Ex.MW3/1.

Contents of clause 24 of Ex.MW3/1, being unlawful, cannot

be supported at law.

39. A restriction is imposed on the claimant and her

colleagues from making any claim against the University

directly or indirectly, monetary including wages or

otherwise as contained in clause 23 of Ex.MW3/1, which is

not in conformity with the provisions of the Contract Labour

Act. Primary responsibility to pay wages to an employee

employed by a contractor rests upon the latter. But on his

failure to make payment of wages within the prescribed

period or in the event of making short payment, the principal

employer has been saddled with the responsibility to make

payment of wages in full or the unpaid balance due, as the

case may be, to the contract labour, enacts sub-section (4)

of section 21 of the Contract Labour Act. Consequently

this part of cluase 23 of Ex.MW3/1 is to be discarded, being

violative of law.

40. In mercantile transactions stipulations are agreed

upon between the parties on principal to principal to agent

basis. In both the propositions there is a privity of contract

between them. Absence of privity of contract would make

them strangers to each other, in respect of alleged

convenanted or parol agreement, as the case may be. In

clause 23 of Ex.MW3/1 it is projected that there is no privity

of contract by and between the Provider (the Contractor)

and the University. The proposition referred above is

absured. Privity of contract is the relation which exists

between the immediate parties to a contract, which is

necessary to enable one person to sue another on it. It is a

relationship between persons arising under a contract.

There may be (1) privity of contract, or (2) privity of estate.

When Ex.MW3/1 is read, privity of contract between the

contractor and the University emerge out. Proposition,

referred above, cannot be given effect to.

41. "Consideration" of some sort or other is so

necessary to the formation of a contract. A nudum pactum,

or agreement to do or pay something on one side, without

any consideration on the other, will not at all support any

action, and a man cannot be complled to perform it.To

constitute consideration, there must be an act, absitnence

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THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

or promise on the part of promisee or some other person at

the desire of the promisor. A consideration must be valuable

and not superficial, it must be material and not sentimental

or imaginary. It must be a material detriment to the promisee

or a benefit to the promisor. Section 2 of the Contract Act

defines consideration: "when at the desire of the promise,

the promis or any other person, has done or abstained

from doing, or does or abstains from doing something,

such act or abstinence or promise is called a consideration

for the primise".

42. The consideration for a promise must have some

tangible value in the eye of law. Its adequacy is not material.

Though adequancy of consideration will not be examined

by the courts, yet it must not be colourable merely nor

illusory.A mere moral obligations arising from a past benefit

not conferred at the request of the defendant is not a good

considertion. However consideration derived from moral

obligations, in which there has been a legal right deprived

of legal remedy, the defendant would be held liable without

putting moral duty at par with legal consideration. These

propositions may require a court or a tribunal to examine

whether there was legal consideration for the promise.

43. Whether there is any legal consideration for the

promise made by the Contractor to the University? For an

answer contents of clause 15 of Ex.MW3/1 are to be

examined, which are extracted thus:

"15. In consideration of the the obligation undertaken

by the Provider, under this Agreement, the University shall

pay Provider charges on the basis of number of such

personnel actually deployed by the provider for the

effective operation of this Agreement, on the rates quoted

by the Provider in their Tender based on the direction and

guidelines issued by the Local Government (NCT of Delhi).

The rates mentioned in Tenders are as follows:"

44. As detailed above charges on the basis of number

of personnel deployed on rates quoted by the Controctor in

Tender based on the direction and guidelines issued by the

Local Government (NCT of Delhi) where to be paid to him by

the University. In Ex. MW3/1 those rates are not detailed.

Thus tender document becomes a part of Ex. MW3/1. It has

not been placed before the Tribunal. As detailed above,

adequacy of consideration, may prove to be beyond the

pale of jurisdiction of a civil court. But this Tribunal has to

examine adequacy of consideration to ascertain as to where

Ex. MW3/1 is genuine and not sham and nominal. The

Tribunal is supposed to examine as to whether the charges

on the basis of number of personnel deployed on rates quoted

in tender document project minimum wages to be paid to

contract labours, besides remunerations derived by the

Contractor. Assessment of these factors may enable the

Tribunal to reach a conclusion whether the Contractor had

put his hands to Ex. MW3/1 on principal to principal or

agent to principal basis. Absnece of tender document created

a vacuum. Parol evidence was brought on record to the

effect as to what payments were made to the Contractor

from time to time. But absence of facts, as to what were the

rates of minimum wages, what number of contract labours

worked in a particular month, on how many days in a month

a contract labour worked, whether overtime work was

performed by a contract labour in that month, whether a

contract labour worked on Sundays, holidays and weekly

off days in a month, would leave the Tribunal in lurch.

45. Wages sheet Ex. WW1/M4 to Ex. WW1/M9

project total work days of the respective months for which

the claimant worked, besides the number of days on which

she remained on leave without pay. These documents

project minimum rates of wages paid to her in a month, out

of which deductions towards E.P.F. and E.S.I. subscriptions

were made. Bills raised by the Contractor and sanction

accorded by the University are proved as Ex. MW3/11 to

Ex. MW3/19. Cheques issued in favour of the Contractor

are proved as Ex. MW3/5 to Ex. MW3/10. Despite my best

efforts to reconcile contents of documents referred above,

I could not work out the rates on which the Contractor was

paid by the University for services rendered by him. Thus

adequacy of consideration for services rendered by the

Contractor has not surfaced over the record. Vacuum of

evidence in that regard made me to comment that the

University could not establish factors in favour of

genuiness of contract agreement Ex. MW3/1.

46. Now it would be seen whether it was the Contractor

who exercised his control or supervision on the claimant?

Factors of such control and supervision were described in

various precedents, which would be noted herein under. In

Chintaman Rao [1958 (II) LLJ 252] the Apex Court ruled that

the concept of employment involves three ingredients: (1)

employer, (2) employee, and (3) the contract of employment.

The employer is one who employs, that is, one who engages

the services of other persons. The employee is one who

works for another for hire. The employment is the contract

of service between the employer and employee where under

the employee agrees to serve the employer subject to his

control and supervision. In Food Corporation of India

[1985(II) LLJ4] Justice Desai, speaking for the Apex Court,

announced that a contract of employment "discloses a

relationship of command and obedience between them".

Where a Contractor employs a workman to do the work

which he contracted with a third person to accomplish, the

workman of the Contractor would not without something

more become the workman of third person.

47. In Dharangadhara Chemical Works Limited [1957

(1) LLJ 477], the Apex Court ruled that test of "supervision

and control may be taken as the prima facie test for

determining the relationship of employment". It was further

laid that existence of the right in the master to supervise

and control the work to be done by the servant, not only

matter of directing that work the servant is to do but also

the manner in which he shall do his work is the prima facie

test for determining the existence of master and servant

¹Hkkx II—[k.M 3(ii)º

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1925

relationship. It was suggested that correct method of

approach, would be to consider whether having regard to

the nature of work there was due control and supervision

by the employer. The greater amount of direct control

exercised over the person rendering the services by the

person contracting for them, the stronger the ground for

holding it to be a contract of service. The control and

supervision test was reaffirmed by the Apex Court in

Chintaman Rao (supra), wherein it was ruled that "worker"

was a person employed by the management and there must

be contract of service and a relationship of master and

servant between them. In shankar Balaji Waje

[1962(1)LLJ119], the Apex Court clarified that "control of

the management, which is a necessary element of the

relationship of master and servant is not directed towards

providing or dictating the nature of the article to be

produced or the work to be done, but refers to the other

incidents having a bearing on the process of work the

person carries out in the execution of the work. The manner

of work is to be distinguished from the type of work to be

performed. In V.P. Gopala Rao [1970 (11) LLJ 59], the Apex

Court said that it is the question of fact in each case whether

the relationship of master and servant exists between the

management and the workman and there is no abstract a

priori test of the work control required for establishing the

contract of service. It was laid therein that for holding that

the persons employed in the factory were workers within

the meaning of sub section (1) of section (2) of the Factories

Act 1948, it is to be considered that the fact that the

workman had to work in the factory implied certain amount

of supervision by the management and the nature and extent

of control varied in different industries and that when the

operation was of a simple nature, the control could be

exercised at the end of the day by the method of rejecting

the bidis which did not come up to the proper standard. It

is, therefore, not surprising that in recent years, the control

test, as traditionally formulated, has not been treated as an

exclusive test. In Silver Jubilee Tailoring House [1973 (11)

LLJ 495] the Apex Court ordained that "it is in its application

to skilled and particularly professional work that control

test in its traditional form has really broken down. It has

been said that in interpreting "control" as meaning the

power to direct how the servant should do the work, the

court has been applying the concept suited to a past age".

48. During the last three decades emphasis in the

field has shifted and no longer rests so strongly upon the

question of control. Control is obviously an important factor

and in many cases it may still be a decessive factor, but it

would be wrong to say that in every case it is a decessive

factor. In Shining Tailors [1983 (11) LLJ 143], the Apex Court

held that the piece rated workers working for a big tailoring

establishment were workmen for the establishment. It was

observed therein that the "right of removal of the workman

or not to give work as an element of control and supervison"

which was amply satisfied to announce that those piece

rated workers were the workmen for the establishment. The

Court concluded that the proposition that "piece rate" itself

indicates relationship of independent contract, is not

correct. A servant who has full liberty to attend to his work

according to his pleasure and not according to orders of

his master, is an independent contractor. A goldsmith

engaged to finish jewels within a given time and when it

was open to such goldsmith to finish jewels within the

given time or earlier and engage themselves or others of

their own were held to be independent contractors, in K.

Keswa Reddiar [1957 (1) LLJ 645]. In the like manner a

goldsmith who undertook the manufacture of ornaments

like other goldsmith which he was asked to manufacture

and was entitled to receive remuneration which would

depend upon the nature of the work done, was held to be

not under the order or control of the proprietor of the

concern for whom he was doing the work, in Achuta Achar

[1968(1) LLJ 500]. An agreement for selling milk on

commission was held to be a contract for service and not a

contract of service, in Abad Dairy Doodh Vitran Kendra

Sanchalak Mandal, Ahmedabad (1989 Lab.I.C. 1770). The

Tiny Deposit Agents employed in deposit mobilization

activity of the bank have been held to be a falling within

the definition of the workman and not an independent

contractor in the precedent in the Management of Indian

Bank [1990 (1) LLJ 50].

49. As emerge out, element of control or supervision

of employer in respect of detail of work would be an

identifying mark of the servant. Where an employer retains

the power, not only of directing what work is to be done

but also of controlling the manner of doing the work, these

factors would be determinative of his status as of a master.

His control is not directed towards providing or dictating

the nature of work to be done but refers to other incidents

having a bearing on the process of work the person carries

out in the execution of the work. Control test postulates a

combination of managerial and technical functions.

50. Whether elements of control or supervision of

the University in respect of details of work of the claimant

emerge out of contract agreement Ex. MW3/1? For an

answer, a few clauses of Ex. MW3/1 are to be scanned,

which are extracted thus:

"12. Provider shall continue to be responsible for the

personnel employed by him, in respect of terms and

conditions of their service, payments, attendance, medical

care, other disciplinary matters etc. who shall remain fully

under the administrative and financial control and

supervision of the Provider, except that the University shall

be the sole Arbitrator in respect of nature of the duties to

be entrusted to and the manner of performance of their

duties for the purpose of this Agreement.

13. The temporary personnel deployed by the Provider

to IGNOU shall at no time be treated as the employees of the

University and also shall have no claim to be regularized in

the services of the University. But the Provider will not

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[PART II—SEC. 3(ii)]

change the personnel once deployed by it in the University

without prior permission of the University, as the frequent

changes in deployment of temporary may hamper the day to

day work of the University.

14. The Provider shall have to change over or replace

the temporary personnel as and when required by the

University whether or not such personnel are found guilty

of any misconduct. It shall not be necessary for the

University to assign any reason to the Provider or the

concerned Person or any other person in respect of any

such change and replacement required by the University".

51. As projected above, clause 12 announces that

personnel employed by the Contractor shall remain fully

under the administrative and financial control and

supervision of the Contractor. However an exception is

there to this general proposition to the effect that the

University shall be sole arbitrator in respect of nature of

duties to be entrusted to and the manner of performance of

their duties for the purpose of the agreement under

consideration. Another exception is contained in clause 13

wherein the Contractor has been constrained not to change

the personnel once deployed without prior permission of

the University. Further exception is contained in clause 14

wherein the Contractor is obliged to change or replace the

temporary personnel as and when required by the

University. The factors enumerated in the clauses, referred

above, make it apparent that the University retained the

power, not only of directing what work was to be done by

the claimant, but also of controlling her in respect of manner

of doing the work. Power of the Contractor to replace the

claimant from her work place was made subject to permission

of the University. Despite the choice of the Contractor or

replace the claimant he could not do so, in case University

showed its unwillingness in that regard. Contra to it, the

Contractor was duty bound to change an employee if so

commanded by the University. Such a proposition was not

dependent on a contingency of the employee being found

guilty of any misconduct. Mere wish of the University was

to prevail in the matter. Thus it is crystal clear that the

Univesity retained power of allocation of duties, besides

right to control the manner of performance of such duties

by the claimant. The claimant was to work with the

University till its pleasure. The Contractor could not exercise

his earnest will to change her, if not consented by the

University. If the University decided to get her changed,

for any reasons whatsoever, the Contractor could not

impose her on the former, no matter her work and conduct

were satisfactory. Conspectus of these elements make it

clear that administrative control on the claimant was with

the University and not with the Contractor.

52. Contract agreement Ex. MW3/1 does not contain

any obligation on the part of the Contractor to supervise

the work of the claimant. No clause is there in the document

to show that the Contractor deployed some personnel to

supervise the work of the claimant and her other 69

colleagues. Who used to the mark attendance of the

claimant and her colleagues Ex. MW3/1 draws a blank? No

parol evidence was brought in to suggest that it was the

Contractor who supervised her work. Vacuum of facts in

Ex. MW3/1 and conspicuous absence of any ocular

evidence in that regard leave no doubt to conclude that it

were the University authorities who used to supervise the

work of the claimant and her colleagues.

53. Disciplinary control is exercised by an employer

on his employees by way of codifying rules of conduct for

them. He engrafts acts of misconduct in those rules. He

punishes his employees for their blameworthy conduct. It

is so done by him with a view to maintain discipline at the

work place and to deter potential delinquent from doing

improper behaviour or to come in conflict with rules of

standard of behaviour. Right to coin an act as an improper

behaviour, falling within the ambit of misconduct, was

retained by the University. It has been detailed in clause 22

of Ex. MW3/1 that "the University shall be sole judge as to

what is against the interest of the University and as to

what constitutes misconduct". This authority to define a

behaviour to be a misconduct for a contract employee

projects that the University had clothed itself with a right

to declare a code of conduct for the claimant and her

associates. This right is an attribute of disciplinary control

exercised by an employer on his employees.

54. Construction adopted on contents of Ex. MW3/1

is based on the standards of presumed intent of parties.

The construction, so put, with an idea to preserve the will

of the parties to Ex. MW3/1. It is the duty of a court or

tribunal to give effect to the intention of the parties in

construing a written instrument. Ascertaining general scope

of Ex. MW3/1, intention of the parties contained therein,

nature of the instrument and legal right of the parties

thereto, it is concluded that efforts were made by the

University to hide the truth with a view to project a make-

believe instrument of engaging personnel through the

Contractor. In fact the University retained administrative

and disciplinary control over the contract employees.

When veil was lifted, it emerged that Ex. MW3/1 is sham

and bogus. There are realties of relationship of employer

and employees between the University and the claimant

and her other 69 colleagues. In view of the forgoing

reasons, it is concluded that the veil of Ex. MW3/1 is a

smoke-screen, which would not snap relationship between

the University and the claimant and her colleagues.

Aforesaid two issues are accordingly answered.

Issue No. 3

55. Dr. S.S. Bisht announces that with effect from

1.11.2007 contract for providing housekeeping services was

given to the New Contractor. He asserts that owing to

illegal demands of the claimant and her colleagues, the

New Contractor did not engage them. Thereafter

housekeeping staff, including the claimant, resorted to

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

1927

illegal demonstration. A suit of injunction was filed, which

was decreed by the High Court of Delhi. Certified copy of

judgement dated 13.3.2009 has been proved as Ex. MW2/5,

by Shri Shiv Prakash.

56. Whether above facts would espouse the cause

of the University? Answer lies in negative. As held above,

the claimant was an employee of the University, which

proposition restrains the University from awarding

housekeeping services to the New Contractor. In the garb

of award of housekeeping services to the New Contractor,

the University dispensed with the services of the claimant

and her colleagues. Action of the University squarely falls

within the ambit of definition of retrenchment, as contained

in sub-section (oo) of section 2 of the Act. No case was

projected that the case of University falls within the

exceptions, contained therein. Therefore, it is crystal clear

that the action of the University amounts to retrenchment.

As per own admission of the University, the claimant

rendered services w.e.f. 1.05.2005 till 31.10.2007, as an

employee of the Contractor. Thus it is clear that she

rendered continuous service of more than 240 days in a

calender year, as contemplated by section 25-B of the Act.

When an employee renders services of more than one year,

he is entitled to protection/benefits contained in section

25-F of the Act. Out of facts of the present controversy, it

emerges that services of the claimant were done away in

violation of the provisions of section 25-F of the Act. It is

not the case of the University that one month's notice or

pay in lieu thereof and retrenchment compensation was

paid to the claimant and other similarly situated employees.

Requirements contained in section 25-F of the Act are

mandatory and non-compliance thereof makes the action

of the employer illegal. Hence action of the University in

terminating services of the claimant, in the garb of awarding

contract of housekeeping services to the New Contractor,

is illegal and unjustified.

57. It is well settled that negative language used in

section 25-F of the Act imposes a mandatory duty on the

employer, which is condition precedent to retrenchment of

a workman. Contravention of mandatory requirements of

section 25-F of the Act would invalidate the retrenchment

and render it void ab initio. Reference can be made to the

precedents in Auro Engineering (Pvt.) Ltd., Nasik (1992

Lab. I.C. 1364) and Ollur Regional Imitation Diamond

Manufacturing Industrial Co-op. Society Ltd. [1993 (II) LLJ

174]. As detailed above, retrenchment of the claimant is

illegal and void ab initio. Issue is, therefore, answered in

favour of the claimant and against the University.

Relief.

58. As concluded above, the claimant was engaged

by the University through the Contractor by way of creation

of make believe contract agreement, which was a perfect

paper arrangement. On lifting of veil, the University was

found to be the real employer. Her services were disengaged

under the garb of award of housekeeping service agreement

to the New Contractor. Her retrenchment was found to be

void ab initio. She, being an employee of the University

cannot be retrenched by the Contractor or the New

Contractor. She is deemed to be in the service of the

University Question comes whether she is entitled to full

back wages. For an answer in her favour, she was under an

obligation to establish that she remained un-employed since

the date of her retrenchment. No evidence has been adduced

by the claimant on that point. Thus it cannot be said that she

remained unemployed, since the date of dispensing with her

services by the University. The Apex Court and High Courts

dealt with the issue of award of compensation, when

reinstatement in service was not found expedient. Those

precedents may help the Tribunal in ascertaining the quantum

of back wages, which may be awarded to the claimant. In

S.S. Shetty [1957 (11) LLJ 696] the Apex Court indicated

some relevant factors which an adjudicator has to take into

account in computing compensation in lieu of reinstatement,

in the following words:

"The industrial Tribunal would have to take into

account the terms and conditions of employment,

the tenure of service, the possibility of termination

of the employment at the instance of either party, the

possibility of retrenchment by the employer or

resignation or retirement by the workman and even

of the employer himself ceasing to exist or of the

workman being awarded various benefits including

reinstatement under the terms of future awards by

industrial Tribunal in the event of industrial disputes

arising between the parties in future ...In computing

the money value of the benefits of reinstatement, the

industrial adjudicator would also have to take into

account the present value of what his salary, benefits

etc. would be till he attained the age of superannuation

and the value of such benefits would have to be

computed as from the date when such reinstatement

was ordered under the terms of the award.

Having regard to the considerations detailed above, it

is impossible to compute the money value of this

benefit of reinstatement awarded to the appellant with

mathematical exactitude and the best that any tribunal

or court would be under the circumstances would be

to made as correct as estimate as is possible bearing,

of course in mind all the relevant factors pro and con".

59. A Divisional Bench of the Patna High Court in

B. Choudhary (1983) Lab. 1.1755 (1758) deduced certain

guidelines which have to be borne in mind in determing the

quantum of compensation viz. (i) the back wages receivable

(ii) compensation for deprivation of the job with future

prospect and obtainability of alternative employment; (iii)

employee's age (iv) Length of service in the establishment

(v) capacity of the employer to pay and nature of the

employer's business (vi) gainful employment in mitigation

of damages; and (viii) circumstances leading to the

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THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

disengagement and the past conduct. These factors are

only illustrative and not exhaustive. In addition to the

amount of compensation, it is also within the jurisdication

of the Tribunal to award interest on the amount determined

as compensation. Furthermore, the rate of such interest is

also in the discretion of the Tribunal. Reference can be

made to Tabesh Process, Shivakashi (1989 Lab.I.C. 1887).

60. In Assam Oil Co. Ltd. [1960 (1) LLJ 587] the Apex

Court took into account countervailing facts the employer

had paid certain sums to the workmen and her own earning

in the alternative employment and ordered that "it would

be fair and just to direct the appellant a substantial sum as

compensation to her". In Utkal Machinery Ltd. [1966 (1)

LLJ 398] the amount of compensation equivalent to two

year salary of the employee awarded by the industrial

Tribunal was reduced by the Supreme Court to an amount

equivalent to one year salary of the employee in view of

the fact that she had been in service with the employer

only for 5 months and also took into consideration the

unusual manner of her appointment at the instance of the

Chief Minister of the State. In A.K. Roy [1970 (1) LLJ 228]

compensation equivalent to two years salary last drawn

by the workmen was held to be fair and proper to meet the

ends of justice. In Anil Kumar Chakaraborty [1962 (II) LLJ

483] the Court converted the award of reinstatement into

compensation of a sum of Rs. 50000/- as just and fair

compensation in full satisfaction of all his claims for

wrongful dismissal from service. In O.P. Bhandari [1986 (II)

LLJ 509], the Apex Court observed that it was a fit case for

grant of compensation in view of reinstatement. The Court

awarded compensation equivalent to 3.33 years salary as

reasonable. In M.K. Aggarwal (1988 lab. I.C. 380), the Apex

Court though confirmed the order of reinstatement yet

restricted the back salary to 50% of what would otherwise

be payable to the employee. In Yashveer Singh (1993 Lab.I.C.

44) the court directed payment of Rs. 75000/- in view of

reinstatement with back wages. In Naval Kishor [1984 (II)

LLJ 473] the Apex Court observed that in view of the special

circumstances of the case adequate compensation would

be in the interest of the appellant. A sum of Rs. 2 lac was

awarded as compensation in lieu of reinstatement. In

Sant Raj [1985 (II) LLJ 19] a sum of Rs. 2 lac was awarded as

compensation in lieu of reinstatment. In Chandu Lal (1985

Lab. I.C.1225) a compensation of Rs. 2 lac by way of back

wages in lieu of reinstatement was awarded. In Ras Bihari

(1988 Lab. I.C. 107) a compensation of Rs. 65000/- was

granted in lieu of reinstatement, since the employee was

gainfully employed elsewhere. In V.V. Rao (1991 Lab.I.C.

1650) a compensation of Rs. 2.50 lac was awarded in lieu of

reinstatement.

61. The claimant rendered continuous two and a half

years' service to the University, when she was illegally

retrenched. She had to fight for about four years for

redressal of her grievances. The circumstances, in which

she was retrenched and mass unemployment prevalent in

economic field, which may come in the way when some

one goes for an alternative employment, besides other

factors of this case, persuade me to award 20 percent back

wages from the date of retrenchment till the date the award

become operative under section 17-A of the Act, besides

reinstatement of the claimant in the service of the

University, with continuity and all consequential benefits.

An award is, accordingly, passed. It be sent to the

appropriate Government for publication.

DR. R.K. YADAV, Presiding Officer

Dated: 9-12-2011

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New Delhi, the 1st February, 2012

S.O. 820.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947, (14 of 1947) the Central

Government hereby publishes the Award (Ref. No. 09/2010)

of the Central Government Industrial Tribunal cum Labour

Court No. 1 New Delhi as shown in the Annexure, in the

Industrial dispute between the Vice Chancellor, Indira

Gandhi National Open University and their workman, which

was received by the Central Government on 01/02/2012.

[F.No. L-42012/90/2009-IR(DU)]

RAMESH SINGH, Desk Officer

ANNEXURE

BEFORE DR. R.K. YADAV, PRESIDING OFFICER,

CENTRAL GOVT. INDUSTRIAL TRIBUNAL NO. 1,

KARKARDOOMA COURTS COMPLEX: DELHI

I.D. NO. 9/2010

Shri Pappu Singh S/o Shri Attar Singh,

H.No. 153, Harijan Basti,

Vill. Nebsarai,

New Delhi.

CLAIMANT

Versus

The Vice Chancellor,

Indira Gandhi National Open University,

R. No. 1, Block No. 8, Maidan Garhi,

New Delhi-110068.

Management

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AWARD

Indira Gandhi National Open University (herein after

referred to as the University) was established in the year

1985 to provide cost effective and quality education to large

sections of people, including those living in remote and far

flung areas, through distance education programmes. The

University functions not only within the boarders of the

country but offers education programmes in at least 35

countries. Besides Regional Centres across the country and

in foreign countries, the University has its Central Campus

at Maidan Garhi, New Delhi, which is spread over an area of

151.32 acres of land. At its Central Campus, the University

has a strength of about 800 officers/officials working there.

2. The University requires considerable man-power

to carry out housekeeping services, which includes cleaning

and sanitation activities. Housekeeping services are

out-sourced by the University through a private contractor.

In the year 2004, the University awarded contract for

housekeeping services to Sybex Computer Systems (Pvt.)

Ltd. (in short the Contractor). The Contractor engaged

around 70 sweepers and cleaners to carry out its contractual

obligations. On 1st Novermber 2007, the University awarded

contract for housekeeping services to Spick & Span

Facilities Management (Pvt.) Ltd. (in short the New

Contractor). Initially the New Contractor decided to retain

services of the sweepers and cleaners engaged by the

Contractor. But negotiations between the New Contractor

and employees of the Contractor turned into a complete

fiasco. Sweepers and cleaners resorted to agitation and sat

on"dharna" outside the gate of Maidan Garhi Campus of

the University. Legal wrangle started between the

University and the agitators. Efforts were made from either

side to wrench one's opponent.

3. Resort to the jurisdiction of Conciliation Officer

was taken by the sweepers and cleaners, by way of filing

their respective claim statements. Conciliation Officer

initiated conciliation proceedings, as contemplated by sub-

section (1) of section 12 of the Industrial Disputes Act,

1947 (in short the Act). No settlement could arrive at between

the parties and a failure report was submitted to the

appropriate Government. On consideration of the failure

report, so submitted, the appropriate Government referred

the dispute to this Tribunal for adjudication, invoking its

powers under clause (d) of sub-section (1) of section10 of

the Act, vide order No. L-42012/90/2009-IR(DU) New Delhi

dated 07th January, 2010, with following terms:

"Whether the action of the management of Indira

Gandhi National Open University, in terminating the

services of their workman Shri Pappu Singh w.e.f.

01/11/2007 is legal and justified? If not, what relief

the workman is entitle to?"

4. Shri Pappu Singh claims in his claim statement

that he was working with the University as "Safai

Karamchari" in its housekeeping department since

1.11.2004. He had rendered nore than 240 days continuous

service with the University. At the time of entering into the

services of the University, he was asked to fill in certain

forms, which forms duly filled and signed by his are in the

custody of the University. No appointment letter was issued

in his favour, inspite of his request in that behalf. Since

inception of his engagement, the University had indulged

into unfair labour practices and flouted implementation of

labour laws concerning his service conditions. At times

he, alongwith his colleagues, was kept at its rolls by the

University, while during intermittent spells his services were

transferred at the roll of one contractor or the other. This

device was adopted with a view to discount his continuity

in service and seniority in employment so that liability to

pay retrenchment compensation under the Act and other

benefits under various labours laws may be avoided.

5. Contributions towards social securities, namely, ESI,

medical benefits and provided fund were deducted from his

wages by the University, pleads the claimant. Despite

payment of contributions towards above social securities,

the University never issued any medical card and provident

fund statement or account number, but passed on that

responsibility on the shoulders of the Contractor. Facility of

earned, annual, privileged, casual, weekly off, festival and

medical leaves were not accorded. Though work was taken

on Sundays and holidays from him but no compensatory

leave or overtime wages were given to him. He used to get

wages at the rate of Rs. 172/- per days, amounting to

somewhere near to Rs. 4500/- per month.

6. On 1st November 2007, the University decided to

place his services at the disposal of a contractor, whose

engagement for housekeeping work was neither

communicated nor he was introduced to him. To his utter

surprise a contractor surfaced on scene and told him and his

colleagues that he will pay them Rs. 3470/- each per month.

He announced that interested persons may stay at work-

place and others may leave for good. The claimant and his

colleagues wanted to see the Vice-Chancellor to appraise

him of their grievances, but they were stopped at the gate of

the University campus. Services of the claimant and others

were terminated. The University called some anti-social

elements and got sever beatings administered to him and his

colleagues at their hands. Police was also called by the

University authorities, to keep their hands clean.

7. The University had not served one month notice

nor paid wages in lieu of the notice. Retrenchment

compensation was also not paid to him. His services were

not done away on infliction of punishment for disciplinary

action, hence action of the University is violative of the

provisions of the Act and principles of natural justice. He

claims reinstatement in the services of the University with

continuity and consequential benefits.

8. The University demurs the claim pleading that the

claimant was never exployed by it. No salary/wages or

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other emoluments were paid by it to the claimant. There

existed no relationship of employer and employee between

the parties. Hence there was no occasion for the University

to terminate services of the claimant. In view of these facts,

reference order is improper and claim statement is liable to

be rejected pleads the University.

9. To outsource housekeeping services, the University

engaged services of the Contractor, vide agreement dated

1.11.2004, which agreement was extended upto 31.10.2007.

The claimant was working with the Contractor to provide

housekeeping services at the campus of the University. The

Contractor is essential and proper party, pleads the

University. In agreement entered into between in Contractor

and the University it was stipulated that employees of the

Contractor at no point of time would be treated as employees

of the University. The University laid emphasis on a few

clauses of the agreement, which are extracted thus:

"12. Provider shall continue to be responsible for the

personnel employed by him, in respect of terms and

conditions of their service, payments, attendance, medical

care, other disciplinary matters etc. who shall remain fully

under the administrative and financial control and

supervision of the Provider, except that the University shall

be the sole Arbitrator in respect of nature of the duties to

be entrusted to and the manner of performance of their

duties for the purpose of this Agreement.

13. The temporary personnel deployed by the Provider

to IGNOU shall at no time be treated as the employees of the

University and also shall have no claim to be regularized in

the services of the University. But the Provider will not

change the personnel once deployed by it in the University

without prior permission of the University as the frequent

changes in deployment of temporary may hamper the day to

day work of the University.

23. There is no privity of contract by and between

the Provider and the University. The Temporary shall have

no right to make any claim against the University directly

or indirectly, monetary including wages or otherwise. The

Temporary shall also have no right to claim for any

regularization. The Temporary shall also have no claim

against the University of any dues, statutory or otherwise.

Similarly, even the representative of any Temporary who

have worked in the University shall have no right or claim

against the University.

24. The Provider has to ensure that the Temporaries

deployed are not forming any Association/Forum in respect

of IGNOU matter nor they should be allowed to join in any

Association/forum of IGNOU.

25. The provider has to ensure timely deployment of

Temporaries as required by IGNOU and fulfil other

obligation stated in the above said terms and conditions

failing which penalty will be imposed by the University on

case to case basis from time to time. The decision of the

University will be final."

10. When contract, referred above, expired with efflux

of time, contract for housekeeping services was awarded

to the New Contractor, who initially sought to retain the

services of housekeeping staff for his own contract.

However, owing to illegal and unjustified demands of the

housekeeping staff, the New Contractor did not engage

the claimant and his other colleagues. The claimant and his

colleagues resorted to illegal demonstration in the

University premises. A civil suit being CS(OS) No. 83 of

2008 was instituted before High Court of Delhi. The High

Court passed an interim injunction order on 15.1.2008

against the housekeeping staff and ultimately decreed the

suit on 13.3.2009.

11. The University had denied all allegations levelled

by the claimant in his claim statement. It is pleaded that the

claimant knew his status, being an employee of the

Contractor. His services were terminated by the Contractor

and the University has no role to play in so called

termination of his services. His claim against the University

is illegal, unwarranted and unjustified. It is pleaded that

this claim may be dismissed.

12. An application moved by the University, to

implead the Contractor as a party, was declined vide order

dated 20.4.2010.

13. On pleadings of the parties, following issues were

settled:

1. Whether there was relationship of employer and

employee between the claimant and the

management?

2. Whether the claimant was an employee of Sybex

Computer System Pvt. Ltd., the Contractor?

3. As in terms of reference.

4. Relief.

14. To discharge onus resting on him, the claimant

examined himself and closed his evidence. The University

examined Smt. Bimla Madan, Shri Shiv Prakash ,

Dr. S.S. Bisht and Shri Ashok Kumar Gupta to substantiate

its case.

15. Arguments were heard at the bar at length. Shri

V.N. Kaushik, assisted by Ms. Sulekha Thakur, authorised

representative, advanced arguments on behalf of the

claimant. shri V.K Rao, assisted by Shri Aly Mirza,

authorised respresentative and Vibhas Vaibhav, Asstt.

Registrar (Law), raised submissions on behalf of the

University. I have given my careful considerations to the

submissions made at the bar and cautiously perused the

record. My findings on issues involved in the controversy

are as follows:

Issue No. 1 & 2.

16. Affidavit Ex. WW1/A was tendered as evidence

on behalf of the claimant, wherein he sweared that he was

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in the employment of the University as "Safai Karamchari"

since 1.11.2004. It has been projected in Ex. WW1/A that

he rendered more than 240 days service with the University.

Other facts detailed in Ex. WW1/A are facsimile or content

of claim statement, which has been proved as Ex.

WW1/M1. He candidly admitted his signatures on

documents Ex. WW1/M2 to Ex. WW1/M5.

17. Smt. Bimla Madan unfolds that Regional Office

of the Employers' Provident Fund Organisation had given

code number as DL-24878 to the Contractor, while code

number 2141 was given to Shri Pappu Singh, the employee

of the above company. Name of Pappu Singh appears in

statements of contributions Ex. MW1/1 and Ex. MW1/2,

filed by his employer for the period 1.4.2005 to 31.3.2006

and 1.4.2006 to 31.3.2007 respectively.

18. Shri Shiv Prakash entered the witness box to

prove copy of plaint, filed by the University before High

Court of Delhi, written statement of defendant No. 3 to 6,

affidavit of Shri U.S. Tolia tendered as evidence in the case,

interim order dated 15.1.2008 and judgement dated 13.3.2009

passed by Justice Ms. Rekha Sharma. These documents

are proved as Ex. MW2/1 to MW2/5 respectively. He

clarified that no appeal was preferred against the judgement

Ex. MW2/5.

19. Dr. S.S. Bisht tendered his affidavit Ex. MW3/A

as evidence, wherein he announced that the claimant was

never appointed by the University in its services. No salary

was ever paid to him. Services of the Contractor were availed

to outsource housekeeping services vide agreegment dated

1.11.2004, which was subsequently extended upto

31.10. 2007. The claimant was working with the Contractor.

With effect from 1.11.2007 contract to provide housekeeping

services was awarded to the New Contractor. He projects

that when he was not engaged by the New Contractor, he

alongwith his colleagues resorted to illegal demonstration

in the premises of the University. Story of filing civil suit

and orders thereon have been re-affirmed by Dr. Bisht.

Being an employee of the Contractor, he had filed a wrong

claim statement, which is liable to be dismissed, asserts

Dr. Bisht.

20. Shri Ashok Kumar Gupta details that the

University was maintaining an account with Maidan Garhi

branch of the Punjab National Bank. The University had

issued cheques in favour of the Contractor, details of those

cheques are given in Ex. MW4/A. He identifies signatures

of Shri Mohan Lal, Branch Manager, on Ex. MW3/21 and

announces that contents of that document are true and

correct, as he himself had checked the records.

21. When facts testified by the claimant, Smt. Bimla

Madan Dr. S.S. Bisht and Ashok Kumar Gupta are

appreciated, it came to light that the claimant had detailed

that he was in the service of the University since 1.11.2004.

Self-serving words,, deposed by the claimant, could not

withstand rigors of cross-examination, wherein he admitted

that Ex. WW1/M2, Ex. WW1/M3, Ex. WW1/M4 and Ex.

WW1/M5 bear his signatures. When perused it came to

light that Ex. WW1/M4 to Ex. WW1/M5 are wage-sheets

of the Contractor, though which salary of the claimant and

his colleagues were released by the former in their favour.

These documents project him to be an employee of the

Contractor. Thus by an admission of his signatures on

above documents he allowed a fact to spill over, which

domolishes his case of being an employee of the University.

Ex. WW1/M2 is also photocopy of scrolls through which

payments were released by the Contractor to the claimant

and his colleagues. In the end he gave in and deposed that

he was not aware as to who engaged him. However he

made a faint attempt to project his cause when he asserted

that he used to work for the University. Conspectus of

above facts spill the bean and announce him to be an

employee of the Contractor.

22. Dr. S.S. Bisht erected castle for the University

brick by brick when he deposed that the claimant was

working with the Contractor, whom housekeeping services

were outsourced vide agreement dated 1.11.2004, copy of

which is Ex. MW3/1. This agreement was extended upto

31.10.2007. When aforesaid contract expired, contract for

housekeeping services was awarded to the New Contractor,

vide agreement Ex. MW3/2. When New Contractor did not

engage the services of the claimant and his colleagues,

they resorted to illegal demonstration in the premises of

the University. The Contractor used to raise his bills, to

whom payments were made through cheques Ex. MW3/5,

Ex. MW3/6, Ex. MW3/7, Ex. MW3/8, Ex. MW3/9 and Ex.

MW3/10 deposes the witness. Some of the bills raised by

the Contractor, besides sanction accorded by the

University are Ex. MW3/11, Ex. MW3/12, Ex. MW3/13, Ex.

MW3/14, Ex. MW3/15, Ex. MW3/16, Ex. MW3/17, Ex.

MW3/18 and Ex. MW3/19, Dr. Bisht detailed. Payments

were made to the contractor through cheques, which were

honoured and cleared and letter Ex. MW3/21 was written

by the bank in that regard. He had proved list of contractors

as Ex. MW3/W2, to whom the work was awarded by the

University since 16.12.1991 till date. Out of facts unfolded

by Dr. Bisht it came over the record that the University had

outsourced housekeeping services since 16.12.1991. On

1.11.2004 work was awarded to the Contractor and on

1.11.2007 it was awarded to the New Contractor. Claimant

was an employee of the Contractor, who used to pay wages

to him. Smt. Madan gives re-affirmation to facts unfolded

by Dr. Bisht. She had proved statements of contribution,

filed by the Contractor in the Regional Office of the

Employees' Provident Fund Organisation, in which

statements name of the claimant does appear as an

employee of the Contractor. Shri Ashok Kumar Gupta proves

various payments made by the University to the Contractor,

details of which are enlisted in Ex. MW3/21. Sequences of

events, brought over the record through the depositions

of adoresaid witnesses and documents proved by them,

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highlight that the claimant was an employee of the

Contractor, who used to make payment of his salaries to

him. It was the Contractor who was his pay master.

23. Whether the claimant, who was an employee of

the Contractor, can maintain a dispute against the

University? For an answer to this proposition, the Tribunal

has to take note of the law contained in section 10 of the

Contract Labour (Regulation and Abolition) Act, 1970 (in

short the Contract Labour Act), which makes provision for

prohibition of employment of contract labour. For sake of

convenience provisions of section 10 of the Contract Labur

Act are reproduced thus:

"10. Prohibition of employment of contract labour:—

Notwithstanding anything contained in the Act, the

appropriate Government may, after consultation with the

Central Board or, as the case may be, a State Board, prohibit,

by notification in the Official Gazette, employment of

contract labour in any process, operation or other work in

any establishment.

(2) Before issuing any notification under

sub-section (1) in relation to an establishment, the

appropriate Government shall have regard to the conditions

of work and benefits provided for the contract labour in

that establishment and other relevant factors, such as—

(a) whether the process, operation or other work is

incidental to, or necessary for the industry, trade,

business, manufacture or occupation that is

carried on in the establishment,

(b) whether it is of perennial nature, that is to say, it is

of sufficient duration having regard to the nature

of industry, trade, business, manufacture or

occupation carried on in that establishment;

workmen in that establishment or an establishment

similar thereto;

(d) whether it is sufficient to employ considerable

number of whole-time workmen. Explanation — If

a question arises whether any process or operation

or other work is of perennial nature the decision

of the appropriate Government thereon shall be

final."

24. As emerge out of the provisions of sub-section

(1) of section 10 of the Contract Labour Act, the appropriate

Government may, by notification in the official gazette,

prohibit employment of contract labour in any process,

operation or other work in any establishment. When

employment of contract labour is prohibited, by issuance

of a notification in official gazette by the appropriate

Government, what would be the status of the contract

labour employed in the establishment? Such a question

arose before the Apex Court in Steel Authority of India Ltd.

(2001 (7) S.C.C.I.). the Apex Court ruled therein that there

cannot be automatic absorption of contract labour by

principal employer on issuance of notification by the

appropriate Government on abolition of contract labour

system, under sub section (1) of section 10 of the Contract

Labour Act. It would be expedient to reproduce the law laid

by the Apex Court, which is extracted thus:

"......they fall in three classes: (1) 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

adjudicator/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 contract labour working in

the establishment was ordered, (2) where contract

was found to be a sham and nominal, rather a

comouflage, in which case the contract labour

working in the establishment of the principal employer

were held, in fact and in reality, the employee of the

principal employer himself. Indeed such cases do

not relate to the abolition of contract labour but

present instances wherein the court pierce the veil

and declared the correct position as a fact at the

stage after employment of contract labour stood

prohibited, (3) where in discharge of a statutory

obligation of maintaining a canteen in an

establishment the principal employer availed the

services of the contractor, the courts have held that

the contract labour would indeed be employees of

the principal employer".

25. The Court ruled that neither section 10 of the

Contract Labour Act nor any other provision in that Act,

whether expressly or by necessary implication, provides

for automatic absorption of contract labour on issuance of

a notification by the appropriate Government under sub

section (1) of section 10, prohibiting employment of

contract labour, in any process, operation or other work in

any establishment. Consequently the principal employer

cannot be required to order for absorption of the contract

labour working in the establishment concerned. it was

further ruled therein that in Saraspur Mills case (1974 (3)

SCC 66), the workman engaged for working in the canteen

run by the Cooperative Society for the appellant were the

employees of the appellant mills. In Basti Sugar Mills (AIR

1964 S.C. 355) a canteen was run in the factory by the

Cooperative Society and as such the workers working in

the canteen were held to be employees of the establishment.

The Apex Court ruled that these cases fall in class (3)

mentioned above. Judgement in Hussainbhai (1978 Lab.

I.C. 1264) was considered by the Apex Court in the said

precedent and it was ruled therein that the said precedent

falls in class (2), referred above. The Apex Court concluded

that on issuance of prohibitive notification under section

10 of the Contract Labour Act prohibiting employment of

contract labour or otherwise, in an industrial dispute

brought before it by any contract labour in regard to

conditions of service, the industrial Adjudicator will have

to consider the question whether the contractor has been

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interposed either on the ground of having undertaken to

produce any given result for the establishment or for supply

of contract labour for work of the establishment under a

genuine contract or is a mere ruse/camouflage to evade

compliance of various beneficial legislation so as to deprive

the workers of the benefit thereunder. It the contract is

found to be not genuine but a mere camouflage, the so

called contract labour will have to be treated as employees

of the principal employer who shall be directed to regularize

the services of the contract labour in the establishment

concerned, subject to the conditions as may be specified

by it for that purpose.

26. As announced by the Apex Court, on issuance of

a prohibitive notification, prohibiting employment of

contract labour or otherwise in any industrial dispute

brought before it by the contract labour in regard to

conditions of his service, the industrial adjudicator will

have to consider the question whether the contractor has

been interposed either on the ground of having undertaken

to produce any given result in the establishment or for

supply of the contract labour for the work of the

establishment under a genuine contract or it is a mere rulse/

camouflage to evade compliance of beneficial legislation

so as to deprive the workers of the benefits therein. Thus it

was ruled that a contract labour can raise a dispute before

the industrial adjudicator in regard to his conditions of

service and in case the contract is found to be not genuine

but a mere camouflage, the so called contract labour will

have to be treated as employees of the principal employer.

Also see Standard Vacuum Refining Co. of India Ltd. (1960

(II) LLJ 233), which was referrred with approval in steel

Authority of India.

27. In Shivnandan Sharma (1955(1) LLJ 688), the

respondent Bank entrusted its Cash Department under a

contract to the Treasures who appointed cashiers,

including the appellant Head Cashier. The question before

the Apex Court was: the appellant an employee, of the

Bank? On construction of the agreement entered into the

Bank and the Treasure, the Court laid down:

"If a master employs a servant and authorizes him to

employ a number of persons to do a particular job

and to guarantee their fidelity and efficiency for a

cash consideration, the employees thus appointed

by the servant would be equally with the employer,

servant of the master."

In the above precedent the Apex Court for the first

time laid down the crucial test of supervision and control

for determining the relationship of employer and employee.

28. In Hussainbhai (supra) the petitioner, who was

manufacturing ropes, entrusted the work to a contractor

who engaged his own workers. When, after some time, the

workers were not engaged, they raised an industrial dispute

that they were denied employment by the petitioner. On

reference of that dispute, the labour court passed an award

against the petitioner. When matter reached the Apex Court,

on examination of various factors and applying the effective

control test, it was held that though there was no direct

relationship between the petitioner and the workers yet on

lifting the veil and looking at the conspectus of factors

governing employment, the naked truth though drapped

in different perfect paper arrangement, was that the real

employer was the petitioner, not the immediate contractor.

The Apex Court stated law in following words:

"Where a worker or group of workers labours to

produce goods or services and these goods or

services are for the business of another, that other

is, in fact, the employer. He has economic control

over the workers' subsistence, skill, and continued

employment. If he, for any reason, chokes off, the

worker is, virtually, laid off. The presence of

intermediate contractor with whom alone the workers

have immediate or direct relationship ex-contractu is

of no consequence when, on lifting the veil or looking

at the conspectus of factors governing employment,

we discern the naked truth, though draped in different

perfect paper arrangement, that the real employer is

the management, not the immediate contractor***.

If the livelihood of the workmen substantially

depends on labour rendered to produce goods and

services for the benefit and staisfaction of an

enterprise, the absence of direct relationship or the

presence of dubious intermediaries or the make-

believe trappings of datachment from the

management cannot snap the real-life bond. The story

may vary but the inference defies ingenuity. The

liability cannot be shaken off. Of course, if there is

total dissociation in fact between the disowning

management and the aggrieved workmen, the

employment is, in substance and real-life terms, by

another. The management's adventitious connections

cannot ripen into real employment."

As noted above, this precedent does not present an

illustration of abolition of contract labour but an instance

where the Court pierced the veil and declared the correct

position to the effect that the contract labours were

employees of the principal employer and not of the

contractor.

29. In Steel Authority of India (supra) it has been

ruled that the term "contract labour" is a species of

workman. A workman may be hired: (1) in an establishment

by the principal employer or by his agent with or without

the knowledge of the principal employer, or (2) in

connection with the work of an establishment by the

principal employer through a contractor or by a contractor

with or without the knowledge of principal employer.

Where a workman is hired in or in connection with the

work of an establishment by the principal employer through

a contractor, he merely acts as an agent so there will be

master and servant relationship between the principal

employer and the workman. But when a workman is hired

in or in connection with the work of an establishment by

a contractor, either because he has undertaken to produce

a given result for the establishment or because he supplies

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[PART II—SEC. 3(ii)]

workmen for any work of the establishment, a question

might arise whether the contractor is a mere camouflage as

in Hussainbhai's case (supra) and in Indian Petrochemicals

Corporation case (1999 (6) S.C.C. 439) etc.; if the answer is

in affirmative, the workman will be in fact an employee of

the principal employer, but if the answer is in the negative,

the workman will be a contract labour.

In view of the legal proposition, referred above, it is

concluded that the claimant can maintain this dispute

against the University since he agitates that the contract

agreement between the University and the Contractor is

sham and nominal.

30. Whether any directions for deeming the contract

labour as having become the employees of the principal

employer can be issued, when the contractor or the principal

employer had violated the provisions of the Contract

Labour Act? To find an answer, provisions of that Act are

to be examined. The Contract Labour Act regulates

conditions of workers in contract labour system and

provides for its abolition by the appropriate Government

as provided by section 10 of that Act. In regard to regulatory

measures section 7 requires the principal employer to get

itself registered, while section 12 obliges every contractor

to obtain a licence, under the provisions of that Act. Section

9 places an embargo on the principal employer of an

establishment from employing contactor labour in the

establishment, when either it is not registered or its

registration has been revoked. Section 12 of the Contract

Labour Act imposes a liability on a contractor not to

undertake or execute any work through contract labour

except under and in accordance with a licence. Sections 23,

24 and 25 make contraventions of the provisions of that

Act or Rules made thereunder penal. In Dena Nath (1992

Lab. I.C. 75) the Apex Court considered the question,

whether non-compliance of the provisions of sections 7

and 12 by the principal employer and the contractor

respectively would make the contract labour employed by

the principal employer as the employee of the latter. It was

ruled that only consequence of non-compliance either by

the principal employer of section 7 or by the contractor in

complying the provisions of section 12 is that they are

liable for prosecution under the said Act. But the employees

employed through the contractor cannot be deemed to be

the employees of the principal employer.

31. In the Steel Authority of India (supra) the Apex

Court laid emphasis "…….the consequence of violation of

Section 7 and 12 of the CLRA Act is explicitly provided in

Sections 23 and 25 of the CLRA Act, it is not for the High

Courts or this Court to read in some unspecified remedy in

Section 10 or substitute for penal consequences specified

in Sections 23 and 25 a different sequel, be if absorption of

contract labour in the establishment of principal employer

or a lesser or harsher punishment. Such an interpretation

of the provisions of the statute will be far beyond the

principle of ironing out the creases and the scope of

interpretative legislation and as such, clearly

impermissible". The above authoritative pronouncements

make it clear that on violations of the provisions of the

Contract Labour Act or Rules made thereunder, the contract

labour could not be deemed to have become the employee

of the principal employer.

32. Whether this Tribunal has power to order for

abolition of contract labour system in the establishment of

the University? For an answer, legal dicta is to be

considered. Before enactment of the Contract Labour Act,

the industrial adjudicator, in appropriate cases, used to

issue directions to the establishment concerned to abolish

or modify system of contract labour. Reference can be made

to precedents in United Salt Works and Industries Ltd.

(1962 (I) LLJ. 131), Shibu Metal Works (1966 (I) LLJ.717),

national Iron & Steel Co. (1967 (II) LLJ. 23) and Ghatge and

Patil (Transport) Pvt. Ltd. (1968 (I) LLJ. 566). The National

Commission on Labour (1966) in para 29.11 of its report,

enumerated those factors, on which abolition of contract

labour was ordered, thus:

"29.11. Judicial awards have discouraged the practice

of employment of contract labour, particularly when

the work is (i) perennial and must go on from day to

day; (ii) incidental and necessary for the work of the

factory; (iii) sufficient to employ a considerable

number of whole time workmen; and (iv) being done

in most concerns through regular workmen. These

awards also came out against the system of

'middlemen'."

33. After Contract Labour Act was brought on statute

book, the Apex examined jurisdiction of the industrial

adjudicator to issue directions to the establishment to

abolish contract labour in Vigoils Private Ltd. (1971 (2) S.C.C.

724) and ruled that it would be proper that the question,

whether the contract labour in the appellant industry was

to be abolished or not, be left to be dealt with by the

appropriate Government under the provisions of that Act,

if it becomes necessary. The observations made by the

Court are extracted thus:

"The appropriate Government when taking action

under Section 10 will have an overall picture of the

industries carrying on similar activities and decide

whether contact labour is to be abolished in respect

of any of the activities of that industry. Therefore, it

is reasonable to conclude that the jurisdiction to

decide about the abolition of contract labour, or to

put it differently, to prohibit the employment of

contract labour, is now to be done in accordance

with Section 10. Therefore, it is proper that the

question whether the contract labour regarding

loading and unloading in the industry of the appellant

is to be abolished or not, is left to be dealt with by

the appropriate Government under the Act, if it

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becomes necessary. On this ground, we are of the

opinion that the direction of the Industrial Tribunal

in this regard will have to be set aside.***. The

legality of the direction given by the Industrial

Tribunal abolishing contract labour in respect of

loading and unloading from may 1, 1971, can also be

considered from another point of view. The Central

Act, as mentioned earlier, had come into force on

February 10, 1971. Under Section 10 of the said Act

the jurisdiction to decide matters connected with

prohibition of contract labour is now vested in the

appropriate Government. Therefore, with effect from

February 10, 1971, it is only the appropriate

Government that can prohibit contract labour by

following the procedure and in accordance with the

provisions of the Central Act. The Industrial Tribunal,

in the circumstances, will have no jurisdiction,

through its award dated November 20, 1970, to give

a direction in that respect which becomes,

enforceable after the date of the coming into force of

the Central Act. In any event, such a direction

contained in the award cannot be enforceable from a

date when abolition of contract labour can only be

done by the appropriate Government in accordance

with the provisions of the Central Act".

34. In Gujarat Electricity Board (1995(5) S.C.C. 27) the

same view was taken by the Apex Court holdings that the

authority to abolish the contract labour vests in the

appropriate Government and not in any court including

the industrial adjudicator. It would be apposite to reproduce

the observation of the court thus:

"53. Our conclusions and answers to the questions

raised are, therefore, as follows:

(i) In view of the provisions of Section 10 of the Act, it

is only the appropriate Government which has the

authority to abolish genuine labour contract in

accordance with the provisions of the said Section.

No Court including the industrial adjudicator has

jurisdiction to do so.

(ii) If the contract is sham or not genuine, the workmen

of the so-called contractor can raise an industrial

dispute for declaring that they were always the

employees of the principal employer and for claiming

the appropriate service conditions. When such

dispute is raised, it is not a dispute for abolition of

the labour contract and hence the provisions of

Section 10 of the Act will not bar either the raising or

the adjudication of the dispute. When such dispute

is raised, the industrial adjudicator has to decide

whether the contract is sham or genuine. It is only if

the adjudicator comes to the conclusion that the

contract is sham, that he will have jurisdiction to

adjudicate the dispute. If, however, he comes to the

conclusion that the contract is genuine, he may refer

the workmen to the appropriate Government for

abolition of the contract labour under Section 10 of

the Act and keep the dispute pending. However, he

can do so if the dispute is espoused by the direct

workmen of the principal employer. If the workmen

of the principal employer have not espoused the

dispute, the adjudicator, after coming to the

conclusion that the contract is genuine, has to reject

the reference, the dispute being not an industrial

dispute within the meaning of Section 2(k) of the ID

Act. He will not be competent to give any relief to

the workmen of the erstwhile contractor even if the

labour contract is abolished by the appropriate

Government under Section 10 of the Act.

(iii) If the labour contract is genuine a composite

industrial dispute can still be raised for abolition of

the contract labour and their absorption. However,

the dispute, will have to be raised invariably by the

direct employees of the principal employer. The

industrial adjudicator, after receipt of the reference

of such dispute will have first to direct the workmen

to approach the appropriate Government for abolition

of the contract labour under Section 10 of the Act

and keep the reference pending. If pursuant to such

reference, the contract labour is abolished by the

appropriate Government, the industrial adjudicator

will have to give opportunity to the parties to place

the necessary material before him to decide whether

the workmen of the erstwhile contractor should be

directed to be absorbed by the principal employer,

how many of them and on what terms. If, however,

the contract labour is not abolished, the industrial

adjudicator has to reject the reference.

(iv) Even after the contract labour system is abolished,

the direct employees of the principal employer can

raise an industrial dispute for absorption of the ex-

contractor's workmen and the adjudicator on the

material placed before him can decide as to who and

how many of the workmen should be absorbed and

on what terms".

35. In Steel Authority of India (supra) the Apex Court

had referred the precedents in Vegoils case (spura) and

Gujarat Electricity Board (supra) with approval. Thus it

emerges that power to abolish contract labour system vests

with the appropriate Government, under section 10 of the

Contract Labour Act, and not with any court including the

industrial adjudicator. This Tribunal has not been saddled

with any responsibility to abolish contract labour in an

establishment, on parameters enacted in sub-section (2) of

section 10 of the Contract Labour Act.

36. Now I would turn to the facts of the present

controversy. It is not a case where an employee of a

contractor, employed in a statutory canteen, has invoked

the jurisdiction of this Tribunal. This matter, as projected

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by the claimant, is left to be approached on the proposition

as to whether contract agreement entered into between the

University and the Contractor was sham and nominal. For

an answer to this proposition, it would be expedient to

examine the contract agreement, which has been proved as

Ex.MW3/1 by Dr. Bisht. In construction of contents of

Ex.MW3/1, this Tribunal cannot be oblivions of the rules

viz., written instruments shall, if possible, be interpreted

"ut res magis valeat quam pereat" (a liberal construction

should be put upon written instruments, so as to uphold

them if possible) and that such a meaning shall be given to

it as may carry out and effectuate to the fullest extent the

intention of the parties.

37. Elementary principle of law relative to contracts

is that parties to contracts are to be allowed to regulate

their rights and liabilities themselves and the Courts will

only give effect to the intention of the parties as it is

expressed by the contract. However the law in some cases

overrides the will of the individual and renders ineffective

and futile his expressed intention or contract. No court or

tribunal will lend its aid to a man who founds his cause of

action upon an immoral or an illegal act. A contract cannot

be made the subject of an action if it be impeachable on the

grounds of dishonesty, or as being opposed to public

policy, if it be either contra bonus mores, or forbidden by

law. No court or tribunal will allow itself to be made the

instrument of enforcing obligations alleged to arise out of

a contract or transation which is illegal.

38. Whether Ex.MW3/1 contains clauses which are

contra bonus mores or forbidden by law? When perused,

clause 24 of Ex.MW3/1 makes it clear that right to form or

join an association, in respect of IGNOU matter, has been

denied to an employee of the Contractor. For sake of

convenience contents of that clause are reproduced thus:

"24. The provider has to ensure that the Temporaries

deployed are not forming any Association/Forum in

respect of IGNOU matter nor they should be allowed

to join in any Association/Forum of IGNOU."

39. Right to form associations or unions is a

fundamental right guaranteed to every citizen by clause

(1)(c) of Article 19 of the Constitution of India. Guarantee

of right to form an association or union has to be read with

clause (4) of the aforesaid Article, which permits imposition

of legal restrictions on the right in so far as such restrictions

may be reasonably required in the interest of the

sovereignty and integrity of India, public order and morality.

The right to form associations or unions refers not only to

the initial commencement of the association but also to

continuation of the association as such, as it is obvious

that if an association has to be dissolved the moment it has

been formed, it cannot be said that the members have the

right to form the association. The restriction imposed by

the University on employees of the Contractor does not

answer the requirement of clause (4) of Article 19 of the

Constitution and is violative of the fundamental right

guaranteed to the claimant and his colleagues.

40. There is other facet of the coin. The Act is a

legislation relating to what is known as "collective

bargaining" in the economic field. This policy is implicit in

the definition of "industrial dispute". See Titagarh Jute Co.

Ltd. (1979 Lab. I.C. 513). "An agreement between a single

employer or an association of employers on one hand and

a labour union on the other, which regulates the terms and

conditions of employment" is known as collective

bargaining agreement. The policy behind the concept of

collective bargaining is to protect workmen as a class

against unfair labour practices. A dispute of an individual

workman would acquire status of an industrial dispute if it

affects the rights of the workmen as a class. An industrial

dispute denotes two qualities which distinguish it from an

individual dispute, namely (i) that the dispute relates to

industrial matter, and (ii) that on one side at least of the

dispute the disputant are a body of men acting collectively

and not individually. The clause, referred above, puts

restriction on the claimant and his colleagues to act

collectively as a body of men to protect their rights while

working with the Contractor, who had engaged them to

produce a given result in terms of agreement Ex.MW3/1.

Contents of clause 24 of Ex.MW3/1, being unlawful, cannot

be supported at law.

41. A restriction is imposed on the claimant and his

colleagues from making any claim against the University

directly or indirectly, monetary including wages or

otherwise as contained in clause 23 of Ex.MW3/1, which is

not in conformity with the provisions of the Contract Labour

Act. Primary responsibility to pay wages to an employee

employed by a contractor rests upon the latter. But on his

failure to make payment of wages within the prescribed

period or in the event of making short payment, the principal

employer has been saddled with the responsibility to make

payment of wages in full or the unpaid balance due, as the

case may be, to the contract labour, enacts sub-section (4)

of section 21 of the Contract Labour Act. Consequently

this part of clause 23 of Ex.MW3/1 is to be discarded, being

violative of law.

42. In mercantile transactions stipulations are agreed

upon between the parties on principal to principal or

principal to agent basis. In both the propositions there is

privity of contract between them. Absence of privity of

contract would make them strangers to each other, in respect

of alleged covenanted or parol agreement, as the case may

be. In clause 23 of Ex.MW3/1 it is projected that there is no

privity of contract by and between the Provider (the

Contractor) and the University. The proposition referred

above is absurd. Privity of contract is the relation which

exists between the immediate parties to a contract, which is

necessary to enable one person to sue another on it. It is a

relationship between persons arising under a contract.

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There may be (1) privity of contract, or (2) privity of estate.

When Ex.MW3/1 is read, privity of contract between the

contractor and the University emerge out. Proposition,

referred above, cannot be given effect to.

43. "Consideration" of some sort or other is so

necessary to the formation of a contract. A nudum pactum,

or agreement to do or pay something on one side, without

any consideration on the other, will not at all support any

action, and a man cannot be compelled to perform it. To

constitute consideration, there must be an act, abstinence

or promise on the part of promise or some other person at

the desire of the promisor. A consideration must be valuable

and not superficial, it must be material and not sentimental

or imaginary. It must be a material deteriment to the promise

or a benefit to the promisor. Section 2 of the Contract Act

defines consideration: "when at the desire of the promisor,

the promisee or any other person, has done or abstained

from doing, or does or abstains from doing something,

such act or abstinence or promise is called a consideration

for the promise?

44. The consideration for a promise must have some

tangible value in the eye of law. Its adequacy is not material.

Though adequacy of consideration will not be examined

by the counts, yet it must not be colourable merely nor

illusory. A mere moral obligation arising from a past benefit

not conferred at the request of the defendant is not a

good consideration. However consideration derived from

moral obligations, in which there has been a legal right

deprived of legal remedy, the defendant would be held

liable, without putting moral duty at par with legal

consideration. These propositions may require a court or a

tribunal to examine whether there was legal consideration

for the promise.

45. Whether there is any legal consideration for the

promise made by the Contractor to the University? For an

answer contents of clause 15 of Ex.MW3/1are to be

examined, which are extracted thus:

"15. In consideration of the obligation undertaken

by the Provider, under this Agreement, the

University shall pay Provider charges on the basis

of number of such personnel actually deployed by

the Provider for the effective operation of this

Agreement, on the rates quoted by the Provider in

their Tender based on the direction and guidelines

issued by the Local Government (NCT of Delhi:. The

rates mentioned in Tenders are as follows:"

46. As detailed above charges on the basis of number

of personnel deployed on the rates quoted by the Contractor

in tender based on the direction and guidelines issued by

the Local Government (NCT of Delhi) where to be paid to

him by the University. In Ex.MW3/1 those rate are not

detailed. Thus tender document becomes a part of Ex.MW3/1.

It has not been placed before the Tribunal. As detailed

above, adequacy of consideration, may prove to be beyond

the pale of jurisdiction of a civil court. But this Tribunal

has to examine adequacy of consideration to ascertain as

to whether Ex.MW3/1 is genuine and not sham and nominal.

The Tribunal is supposed to examine as to whether the

charges on the basis of number of personnel deployed on

rates quoted in tender document project minimum wages

to be paid to contract labours, besides remunerations

derived by the Contractor. Assessment of these factors

may enable Tribunal to reach a conclusion whether the

Contractor had put his hands to Ex.MW3/1 on principal to

principal or agent to principal basis. Absence of tender

document created a vacuum. Parol evidence was brought

on record to the effect as to what payments were made to

the Contractor from time to time. But absence of facts, as to

what were the rates of minimum wages, what number of

contract labours worked in a particular month, on how many

days in a month a contract labour worked, whether overtime

work was performed by a contract labour in that month,

whether a contract labour worked on Sundays, holidays

and weekly off days in a month, would leave the Tribunal

in lurch.

47. Wages sheet Ex.WW1/M4 to Ex.WW1/M5

project total work days of the respective months for which

the claimant worked, besides the number of days on which

the remained on leave without pay. These documents

project minimum rates of wages paid to him in a month, out

of which deductions towards E.P.F. and E.S.I. subscriptions

were made. Bills raised by the Contractor and sanction

accorded by the University are proved as Ex.MW3/11 to

Ex.MW3/19. Cheques issued in favour of the contractor

are proved as Ex.MW3/5 to Ex.MW3/10. Despite my best

efforts to reconcile contents of documents referred above,

I could not work out the rates on which the contractor was

paid by the University for services rendered by him. Thus

adequacy of consideration of services rendered by the

Contractor has not surfaced over the record. Vacuum of

evidence in that regard made me to comment that the

University could not establish factors in favour of

genuineness of contract agreement Ex.MW3/1.

48. Now it would be seen whether it was the

Contractor who exercised his control or supervision on the

claimant? Factors of such control and supervision were

described in various precedents, which would be noted

herein under. In Chintaman Rao (1958 (II)LLJ252) the Apex

Court ruled that the concept of employment involves three

ingredients: (1) employer, (2) employee, and (3) the contract

of employment. The employer is one who employs, that is,

one who engages the services of other persons. The

employees is one who works for another for hire. The

employment is the contract of service between the employer

and employee where under the employee agrees to serve

the employer subject to his control and supervision. In

Food Corporation of India (1985 (II) LLJ4) Justice Desai,

speaking for the Apex Court, announced that a contract of

employment "discloses a relationship of command and

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obedience between them". Where a Contractor employs a

workman to do the work which he contracted with a third

person to accomplish, the workman of the Contractor would

not without something more become the workman of third

person.

49. In Dharangadhara Chemical Works Limited (1957

(1) LLJ 477), the Apex Court ruled that test of "supervision

and control may be taken as the prima facie test for

determining the relationship of employment". It was further

laid that existence of the right in the master to supervise

and control the work to be done by the servant, not only

matter of directing that work the servant is to do but also

the manner in which he shall do his work is the prima facie

test for determining the existence of master and servant

relationship. It was suggested that correct method of

approach, would be to consider whether having regard to

the nature of work there was due control and supervision

by the employer. The greater amount of direct control

exercised over the person rendering the services by the

person contracting for them, the stronger the ground for

holding it to be a contract of service. The control and

supervision test was reaffirmed by the Apex Court in

Chintaman Rao (supra), wherein it was ruled that "worker"

was a person employed by the management and there must

be contract of service and a relationship of master and

servant between them. In Shankar Balaji Waje

(1962(1)LLJ119), the Apex Court clarified that "control of

the management, which is a necessary element of the

relationship of master and servant is not directed towards

providing or dictating the nature of the article to be

produced or the work to be done, but refers to the other

incidents having a bearing on the process of work the

person carries out in the execution of the work. The manner

of work is to be distinguished from the type of work to be

performed. In V.P. Gopala Roa (1970 (11) LLJ 59), the Apex

Court said that it is the question of fact in each case whether

the relationship of master and servant exists between the

management and the workman and there is no abstract a

priori test of the work control required for establishing the

contract of service. It was laid therein that for holding that

the persons employed in the factory were workers within

the meaning of sub section (1) of section (2) of the Factories

Act 1948, it is to be considered that the fact that the

workman had to work in the factory implied certain amount

of supervision by the management and the nature and extent

of control varied in different industries and that when the

operation was of a simple nature, the control could be

exercised at the end of the day by the method of rejecting

the bidis which did not come up to the proper standard. It

is, therefore, not surprising that in recent years, the control

test, as traditionally formulated, has not been treated as

an exclusive test. In Silver Jubilee Tailoring House (1973

(11) LLJ 495) the Apex Court ordained that "it is in its

application to skilled and particularly professional work

that control test in its traditional form has really broken

done. It has been said that in interpreting "control" as

meaning the power to direct how the servant should do

the work, the court has been applying the concept suited

to a past age.

50. During the last three decades emphasis in the

field has shifted and no longer rests so strongly upon the

question of control. Control is obviously an important

factor and in many cases it may still be a decessive factor,

but it would be wrong to say that in every case it is a

decessive factor. In shining Tailors (1983 (11) LLJ 143), the

Apex Court held that the piece rated workers working for a

big tailoring establishment were workmen for the

establishment. It was observed therein that the "right of

removal of the workman or not to give work as an element

of control and supervision" which was amply satisfied to

announce that those piece rated workers were the workmen

for the establishment. The Court concluded that the

proposition that "piece rate" itself indicates relationship

of independent contract, is not correct. A servant who has

full liberty to attend to his work according to his pleasure

and not according to orders of his master, is an independent

contractor. A gold smith engaged to finish jewels within a

given time and when it was open to such goldsmith to

finish jewels within the given time or earlier and engage

themselves or others of their own were held to be

independent contractors, in K.Keswa Reddiar (1957 (1) LLJ

645). In the like manner a goldsmith who undertook the

manufacture of ornaments like other goldsmith which he

was asked to manufacture and was entitled to receive

remuneration which would depend upon the nature of the

work done, was held to be not under the order or control of

the proprietor of the concern for whom he was doing the

work, in Achuta Achar (1968(1) LLJ 500). An agreement for

selling milk on commission was held to be a contract for

service and not a contract of service, in Abad Dairy Doodh

Vitran Kendra Sanchalak Mandal, Ahmedabad (1989

Lab.I.C.1770). The Tiny Deposit Agents employed in

deposit mobilization activity of the bank have been held to

be falling within the definition of the workman and not an

independent contract in the precedent in the Management

of Indian Bank (1990 (1) LLJ 50).

51. As emerge out, element of control or supervision

of employer in respect of detail of work would be an

identifying mark of the servant. Where an employer retains

the power, not only of directing what is to be done but also

of controlling the manner of doing the work, these factors

would be determinative of his status as of a master. His

control is not directed towards providing or dictating the

nature of work to be done but refers to other incidents

having a bearing on the process of work the person carries

out in the execution of the work. Control test postulates a

combination of managerial and technical functions.

52. Whether elements of control or supervision of

the University in respect of details of work of the claimant

emerge out of contract agreement Ex.MW3/1? for an

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answers, a few clauses of Ex.MW3/1 are to be scanned,

which are extracted thus:

"12. Provider shall continue to be responsible for the

personnel employed by him, in respect of terms and

conditions of their service, payments, attendance, medical

care, other disciplinary matters etc. who shall remain fully

under the administrative and financial control and

supervision of the Provider, except that the University

shall be the sole Arbitrator in respect of nature of the duties

to be entrusted to and the manner of performance of their

duties for the purpose of this Agreement.

13. The temporary personnel deployed by the

Provider to IGNOU shall at no time be treated as the

employees of the University and also shall have no claim

to be regularized in the services of the University. But the

Provider will not change the personnel once deployed by

it in the University without prior permission of the

University, as the frequent changes in deployment of

temporary may hamper the day to day work of the

University.

14. The Provider shall have to change over or replace

the temporary personnel as and when required by the

University whether or not such personnel are found guilty

of any misconduct. It shall not be necessary for the

University to assign any reason to the Provider or the

concerned Person or any other person in respect of any

such change and replacement required by the University".

53. As projected above, clause 12 announces that

personnel employed by the Contractor shall remain fully

under the administrative and financial control and

supervision of the Contractor. However an exception is

there to this general proposition to the effect that the

University shall be sole arbitrator in respect of nature of

duties to be entrusted to and the manner of performance of

their duties for the purpose of the agreement under

consideration. Another exception is contained in clause 13

wherein the Contractor has been constrained not to change

the personnel once deployed without prior permission of

the University. Further exception is contained in clause 14

wherein the Contractor is obliged to change or replace the

temporary personnel as and when required by the

University. The factors enumerated in the clauses, referred

above, make it apparent that the University retained the

power, not only of directing what work was to be done by

the claimant, but also of controlling him in respect of manner

of doing the work. Power of the Contractor to replace the

claimant from his work place was made subject to permission

of the University. Despite the choice of the Contractor to

replace the claimant he could not do so, in case Unversity

showed its unwillingness in that regard. Contra to it, the

Contractor was duty bound to change an employee if so

commanded by the University. Such a proposition was

not dependent on a contingency of the employee being

found guilty of any misconduct. Mere wish of the

University was to prevail in the matter. Thurs it is crystal

clear that the University retained power of allocation of

duties, besides right to control the manner of performance

of such duties by the claimant. The claimant was to work

with the University till its pleasure. The contractor should

not exercise his earnest will to change him, if not consented

by the University. If the University decided to get him

changed, for any reasons whatsoever, the contractor could

not impose him on the former, no matter his work and

conduct were satisfactory. Conspectus of these elements

make it clear that administrative control on the claimant

was with the University and not with the Contractor.

54. Contract agreement Ex.MW3/1 does not contain

any obligation on the part of the Contractor to supervise

the work of claimant. No clause is there in the document to

show that the Contractor deployed some personnel to

surpervise the work of the claimant and his other 69

colleagues. Who used to the mark attendance of the

claimant and his colleagues Ex.MW3/1 draws a blank? No

parol evidence was brought in to suggest that it was the

Contractor who supervised his work. Vacuum of facts in

Ex.MW3/1 and conspicuous absence of any ocular

evidence in that regard leave no doubt to conclude that it

were the University authorities who used to supervise the

work of the claimant and his colleagues.

55. Disciplinary control is exercised by an employer

on his employees by way of codifying rules of conduct for

them. He engrafts acts of misconduct in those rules. He

punishes his employees for their blameworthy conduct. It

is so done by him with a view to maintain discipline at the

work place and to deter potential delinquent from doing

improver behavior or to come in conflict with rules of

standard of behaviour. Right to coinur an improper

behaviour, falling within the ambit of misconduct, was

retained by the University. It has been detailed in clause 22

of Ex.MW. 3/1 that "the University shall be sole judge as

to what is against the interest of the University as to what

constitutes misconduct". This authority to define a

behaviour to be a misconduct for a contract employee

projects that the University had clothed itself with a right

to declare a code of conduct for the claimant and his

associates. This right is an attribute of disciplinary control

exercised by an employer on his employees.

56. Construction adopted on contents of Ex./MW3/1

is based on the standards of presumed intent of parties.

The construction, so put, with an ideal to preserve the will

of the parties to Ex.MW3/1. It is the duty of a court or

tribunal to give effect to the intention of the parties in

construing a written instrument. Ascertaining general of

Ex.MW3/1, intention of the parties contained therein, nature

of the instrument and legal light of the parties thereto, it is

concluded that efforts were made by the University to hide

the truth with a view to project a make-believe instrument

of engaging personnel through the contractor. In fact the

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University retained administrative and disciplinary control

over the contract employees. When veil was lifted, it

emerged that Ex./MW3/1 is sham and bogus. There are

realties of relationship of employer and employees between

the University and the claimant and his other 69 colleagues.

In view of the forging reasons, it is concluded that the veil

of Ex.MW.3/1 is a smoke-screen, which would not snap

relationship between the University and the claimant and

his colleagues. Aforesaid two issues are accordingly

answered.

Issue No. 3

57. Dr. S. S. Bisth announces that with effect from

1.11.2007 contract for providing housekeeping services was

given to the New Contractor. He asserts that owing to

illegal demands of the claimant and his colleagues, the

New Contractor did not engage them. Thereafter

housekeeping staff, including the claimant, resorted to

illegal demonstration. A suit of injunction was filed, which

was decreed by the High Court of Delhi. Certified copy of

judgment dated 13.3.2009 has been proved as Ex.MW2/5,

by Shri Shiv Prakash.

58. Whether above facts would espouse the cause

of the University? Answer lies in negative. As held above,

the claimant was an employees of the University, which

proposition restrains the University from awarding

housekeeping services to the New Contractor. In the garb

of award of housekeeping services to the New Contractor,

the University dispensed with the services of the claimant

and his colleagues. Action of the University squarly falls

within the ambit of definition of retrenchment, as contained

in sub-section (oo) of section 2 of the Act. No case was

projected that the case of University falls within the

exceptions, contained therein, Therefore, it is crystal clear

that the action of the University amounts to retrenchment.

As per own admission of the University, the claimant

rendered services w.e.f. 1.11.2004 till 31.10.2007, as an

employee of the Contractor. This it is clear that he rendered

continouos service of more than 240 days in a calendar

year, as contemplated by section 25-B of the Act. When an

employee renders services of more than one year, he is

entitled to protection/benefits contained in section 25-F

of the Act. Out of facts of the present controversy, it

emerges that services of the claimant were done away in

violation of the provisions of section 25-F of the Act. It is

not the case of the University that one month's notice or

pay in lieu thereof and retrenchment compensation was

paid to the claimant and other similarly situated employees.

Requirements contained in section 25-F of the Act are

mandatory and non-compliance thereof makes the action

of the employer illegal. Hence action of the University in

terminating services of the claimant, in the garb of a warding

contract of housekeeping services to the New Contractor,

is illegal and unjustified.

59. Whether judgment Ex. MW2/5 would come to

the rescue of the University? Answer lies in negative. Memo

of parties tell that neither the claimant nor his colleagues

were party to that suit. The suit was filed in respect of a

cause of action of civil nature. Even otherwise judgment

Ex. MW2/5 would not operate as res-judicata in the present

controversy. Law contained in section 11 of the Code of

Civil Procedure 1908 (in short the Code) embodies the

doctrine of res-judicata or the rule of conclusiveness of a

judgment, as to the point decided either of fact, or of law, or

of fact and law, in every subsequent suit between the same

parties. It enacts that once a matter is finally decided by a

competent court, no party can be permitted to reopen it in

a subsequent litigation. The doctrine of res-judicata has

been explained in the simplest possible manner by

Das Gupta J. in the case of Statyadhyan Chosal (AIR 1960

S.C. 941) in the following words:

"The principle of res-judicata is based on the need

of giving a finality to judicial decision. What it says

is that once a res-is judicata, it shall not be adjudged

againt. Primarily it applies as between past litigation

and future litigation. When a matter-whether on a

question of fact or a question of law—has been

decided between two parties in one suit or proceeding

and the decision is final, either because no appeal

was taken to a higher court or because the appeal

was dismissed, or no appeal lies, neither party will be

allowed in a future suit or proceedings between the

same parties to convass the matter again."

60. It is not every matter decided in a former suit that

will operate as res judicata in a subsequent suit. To

constitute a matter as res-judicata under section 11 of the

Code, the following conditions must be satisfied:

1. The matter directly and substantially in issue in

the subsequent suit must be the same matter which was

directly and substantially in issue either actually or

constructively in the former.

2. The former suit must have been a suit between the

same parties or between parties under whom they or any of

them claim.

3. Such parties must have been litigating under the

same title in the former suit.

4. The court which decided the former suit must be a

court competent to try the subsequent suit or the suit

inwhich such issue is subsequently raised.

5. The matter directly and substaintially in issue in

the subsequent suit must have been heard and finally

decided by the court in the former suit.

61. Section 11 of the Code bars trial of any suit as

well as an issue which had been decided in a former suit.

Issues are of three kinds: (i) Issue of fact; (ii) Issue of law;

and (iii) Mixed isues of law and fact. A decision on an issue

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of fact, however erroneous it may be, constitutes res

judicata between the parties to the previous suit and cannot

be reagitated in collateral proceedings. Law to this effect

was laid in Mathura Prashad (1970 (1) SCC 613). A mixed

issue of law and fact also, for the same reasons, operates

as res-judicata.

62. To invoke plea of res judicata it should be shown

that the court which decided the former suit must have

been a court competent to try the subsequent suit. Thus,

the decision in a previous suit by a court, not competent to

try the subsequent suit, will not operate as res judicata.

The expression "competent to try" means "competent to

try the subsequent suit if brought at the time the first suit

was brought". In other words, the relevant point of time for

deciding the question of competence of the court is the

date when the former suit was brought and not the date

when the subsequent suit was filed. In order that a decision

in a former suit may operate as res judicata, the court which

decided that suit must have been either - (a) a court of

exclusive jurisdiction, or (b) a court of limited jurisdiction;

or (c) a court of concurrent jurisdiction.

In industrial jurisdiction principles analogus to res-

judicata are applicable.

63. Now it would be considered as to whether the

High Court is competent to try on industrial dispute, relating

to rights and liabilities created under the Act. Such

proposition was raised before the Apex Court in Premier

Automobiles Ltd. (1975 (ii) LLJ. 445), wherein following

principles were enunciated:

"(i) If the dispute is not an industrial dispute, nor does it

relate to enforcement of any other right under the

Act the remedy lies only in the Civil Court.

(ii) If the dispute is an industrial dispute arising out of a

right or liability under general or common law and

not under the Act, the jurisdiction of the Civil Court

is alternative, leaving it to the election of the suiter

concerned to choose his remedy for relief which is

competent to be granted in a particular remedy.

(iii) If the industrial dispute relates to the enforcement of

a right or an obligation created under the Act, then

the only remedy available to the suiter is to get an

adjudication under the Act.

(iv) If the right which is sought to be enforced is a right

created under the Act such as Chapter V-A then the

remedy for enforcement is either section 33-C or the

raising of an industrial dispute, as the case may be."

However, in relation to Principle No.2, the Court

added the "there will hardly be a dispute which will be an

"industrial dispute" within the meaning of section 2(k) of

the Act and yet will be arising out of a right or liability

under the general or common law only and not under the

Act".

64. In Rajasthan State Road Transport Corporation

(1995 Lab. I.C. 2241), the Apex Court analysed the earlier

dicta and re-stated the law as follows:

"(1) Where the dispute arises from general law of

contract, i.e., where reliefs are claimed on the basis

of the general law of contract, a suit filed in civil

court cannot be said to be not maintainable, even

though such a dispute may also constitute an

"industrial dispute" within the meaning of Section

9(k) or Section 2-A of the industrial Disputes Act,

1947.

(2) Where, however, the dispute involves

recognition, observance or enforcement of any of

the rights or obligations created by the industrial

Disputes Act, the only remedy is to approach the

forums created by the said Act.

(3) Similarly, where the dispute involves the

recognition, observance or enforcement of rights and

obligations created by enactments like industrial

Employment (Standing Orders) Act, 1946- which can

be called 'sister enactments' to industrial Disputes

Act-and which do not provide a forum for resolution

of such disputes, the only remedy shall be to

approach the forums created by the industrial

Disputes Act provided they constitute industrial

disputes within the meaning of Section 2(k) and

Section 2-A of industrial Disputes Act or where such

enactment says that such dispute shall be either

treated as an industrial dispute or says that it shall

be adjudicated by any of the forum created by the

Industrial Disputes Act. Otherwise, recourse to Civil

Court is open.

(4) It is not correct to say that the remedies provided

by the Industrial Disputes Act are not equally

effective for the reason that access to the forum

depends upon a reference being made by the

appropriate government. The power to make a

reference conferred upon the government is to be

exercised to effectuate the object of the enactment

and hence not unguided. The rule is to make a

reference unless, of course, the dispute raised is a

totally frivolous one ex-facie. The power conferred

is the power to refer and not the power to decide,

though it may be that the government is entitled to

examine whether the dispute is ex facie frivolous, not

meriting an adjudication.

(5) Consistent with the policy of law aforesaid, we

commend to the Parliament and State Legislatures to

make a provision enabling a workman to approach

the Labour Court/Industrial Tribunal directly-i.e.,

without the requirement of a reference by the

Government-in case of industrial disputes covered

by Section 2-A of the Industrial Disputes Act. This

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[PART II—SEC. 3(ii)]

would go a long way in removing the misgivings

with respect to the effectiveness of the remedies

provided by the Industrial Disputes Act.

(6) The certified Standing Orders framed under and

in accordance with the industrial Employment

(Standing Orders) Act, 196 are statutorily imposed

conditions of service and are binding both upon the

employers and employees, though they do not

amount to "statutory provisions". Any violation of

these Standing Orders entitles an employee to

appropriate relief either before the forums created by

the Industrial Disputes Act or the Civil Court where

recourse to Civil Court is open according to the

principles indicated herein.

(7) The policy of law emerging from Industrial

Disputes Act and its sister enactments is to provide

an alternative dispute resolution mechanism to the

workmen, a mechanism which is spedy, inexpensive,

informal and un-encumbered by the plethora of

procedural laws and appeals and revisions applicable

to civil courts. Indeed, the powers of the Courts and

Tribunals under the Industrial Disputes Act are far

more extensive in the sense that they can grant such

relief as they think appropriate in the circumstances

for putting an end to an industrial dispute."

Same view was taken by the Apex Court in Steel

Authority of India (supra).

65. Facts detailed in preceding sections make out

that the rights which the claimant claim and obligations

which are imposed on the University arise out of rights

and obligations created by the Act. An industrial dispute

with in the meaning of section 2(k) was referred for

adjudication by the appropriate Government to this

Tribunal, invoking its powers under clause (d) of sub-

section (1) of section 10 of the Act. High Court is not

competent to adjudicate an industrial dispute. Hence,

Principle 2, referred in para 63 and Principle 1 referred in

para 64 do not come into play. Therefore, judgement Ex.

MW2/5 cannot operate as res-judicata. It would not restrain

the claimant in any manner, from agitating his claim against

the University.

66. It is well settled that negative language used in

section 25-F of the Act imposes a mandatory duty on the

employer, which is condition precedent to retrenchment of

a workman. Contravention of mandatory requirements of

section 25-F of the Act would invalidate the retrenchment

and render it void ab initio. Reference can be made to the

precedents in Auro Engineering (Pvt.) Ltd., Nasik (1992

Lab. I.C. 1364) and Ollur Regional imitation Diamond

Manufacturing Industrial Co-op. Society Ltd. (1993 (II) LLJ

174). As detailed above, retrenchment of the claimant is

illegal and void ab initio. Issue is, therefore, answered in

favour of the claimant and against the University.

Relief.

67. As concluded above, the claimant was engaged

by the University through the Contractor by way of creation

of make believe contract agreement, which was a perfect

paper arrangement. On lifting of veil, the University was

found to be the real employer. His services were disengaged

under the garb of award of housekeeping service agreement

to the New Contractor. His retrenchment was found to be

void ab initio. He, being an employee of the University

cannot be retrenched by the Contractor or the New

Contractor. He is deemed to be in the service of the

University Question comes whether he is entitiled to full

back wages. For an answer in his favour, he was under an

obligation to establish that he remained un-employed since

the date of his retrenchment. No evidence has been

adduced by the claimant on that point. Thus it cannot be

said that he remained unemployed, since the date of

dispensing with his services by the University. The Apex

Court and High Courts dealt with the issue of award of

compensation, when reinstatement in service was not found

expedient. Those precedents may help the Tribunal in

ascertaining the quantum of back wages, which may be

awarded to the claimant. In S.S. Shetty (1957 (11) LLJ 696)

the Apex Court indicated some relevant factors which an

adjudicator has to take into account in computing

compensation in lieu of reinstatement, in the following

words:

"The industrial Tribunal would have to take into

account the terms and conditions of employment,

the tenure of service, the possibility of termination

of the employment at the instance of either party, the

possibility of retrenchment by the employer or

resignation or retirement by the workman and even

of the employer himself ceasing to exist or of the

workman being awarded various benefits including

reinstatement under the terms of future awards by

industrial Tribunal in the event of industrial disputes

arising between the parties in future.... In computing

the money value of the benefits of reinstatement, the

industrial adjudicator would also have to take into

account the present value of what his salary, benefits

etc. would be till he attained the age of superannuation

and the value of such benefits would have to be

computed as from the date when such reinstatement

was ordered under the terms of the award.

Having regard to the considerations detailed above,

it is impossible to compute the money value of this benefit

of reinstatemnt awarded to the appellant with mathematical

exactitude and the best that any tribunal or court would do

under the circumstances would be to make as correct as

estimate as is possible bearing, of course in mind all the

relevant factors pro and con".

68. A Divisional Bench of the Patna High Court in

B. Choudhary (1983) Lab.1.1755 (1758) deduced certain

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gudelines which have to be borne in mind in determining

the quantum of compensation viz. (i) the back wages

receivable (ii) compensation for deprivaton of the job with

future prospect and obtainability of alternative

employment; (iii) employee's age (iv) Length of service in

the establishment (v) capacity of the employer to pay and

the nature of the employer's business (vi) gainful

employment in mitigation of damages; and (viii)

circumstances leading to the disengagement and the past

conduct. These factors are only illustrative and not

exhaustive. In addition to the amount of compensation, it

is also within the jurisdiction of the Tribunal to award

interest on the amount determined as compensation.

Furthermore, the rate of such interest is also in the

discretion of the Tribunal. Reference can be made to Tabesh

Process, Shivakashi (1989 Lab. I.C. 1887).

69. In Assam Oil Co. Ltd. (1960 (1) LLJ 587) the Apex

Court took into account countervailling facts that the

employer had paid certain sums to the workmen and her

own earning in the alternative employment and ordered

that "It would be fair and just to direct the appellant a

substantial sum as compensation to her". In Utkal

Machinery Ltd. (1966 (1) LLJ 398) the amount of

compensation equivalent to two year salary of the employee

awarded by the industrial Tribunal was reduced by the

Supreme Court to an amount equivalent to one year salary

of the employee in view of the fact that she had been in

service with the employer only for 5 months and also took

into consideration the unusual manner of her appointment

at the instance of the Chief Minister of the State. In

A.K. Roy (1970 (1) LLJ 228) compensation equivalent to

two years salary last drawn by the workmen was held to be

fair and proper to meet the ends of justice. In Anil Kumar

Chakaraborty (1962 (II) LLJ 483) the Count converted the

award of reinstatement into compensation of a sum of

Rs. 50000/- as just and fair compensation in full satisfaction

of all his claims for wrongul dismissal from service. In

O.P. Bhandari (1986 (II) LLJ 509), the Apex Court observed

that it was a fit case for grant of compensation in view of

reinstatement. The Court awarded compensation equivalent

of 3.33 years salary as reasonable. In M.K. Aggarwal (1988

Lab. I.C. 380), the Apex Court though confirmed the order

of reinstatement yet restricted the back salary to 50% of

what would otherwise be payable to the employee. In

Yashveer Singh (1993 Lab. I.C. 44) the court directed

payment of Rs. 75000/- in view of reinstatement with back

wages. In Naval Kishor (1984 (II) LLJ 473) the Apex Court

observed that in view of the special circumstances of the

case adequate compensation would be in the interest of

the appellant. A sum of Rs. 2 lac was awarded as

compensation in lieu of reinstatement. In Sant Raj (1985 (II)

LLJ 19) a sum of Rs. 2 lac was awarded as compensation in

lieu of reinstatement. In Chandu Lal (1985 Lab. I.C. 1225) a

compensation of Rs. 2 lac by way of back wages in lieu of

reinstatement was awarded. In Ras Bihari (1988 Lab.I.C. 107)

a compensation of Rs. 65000/- was granted in lieu of

reinstatement, since the employee was gainfully employed

elsewhere. In V.V. Rao (1991 Lab.I.C.1650) a compensation

of Rs. 2.50 lac was awarded in lieu of reinstatement.

70. The claimant rendered continuous four years'

service to the University, when he was illegally retrenched.

He had to fight for about four years for redressal of his

grievances. The circumstances in which he was retrenched

and mass unemployment prevalent in economic field which

may come in the way when some one goes for an alternative

employment, besides other factors of this case persuade

me to award 20 percent back wages from the date of

retrenchment till the date the award becomes operative

under section 17-A of the Act, besides reinstatement of the

claimant in the service of the University, with continuity

and all consequential benefits. An award is, accordingly,

passed. It be sent to the appropriate Government for

publication.

Dr. R.K. YADAV, Presiding Officer

Dated: 09.12.2011

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New Delhi, the 1st February, 2012

S.O. 821.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947(14 of 1947) the Central

Government hereby publishes the award (Ref. No. 10/2010)

of the Central Government Industrial Tribunal cum Labour

Court No. 1 New Delhi as shown in the Annexure in the

Industrial Dispute between the Vice Chancellor, Indira

Ghandhi National Open University and their workman,

which was received by the Central Government on

01.02.2012.

[F. No. L-42012/91/2009-IR(DU)]

Ramesh Singh, Desk Officer

ANNEXURE

Before Dr. R.K. Yadav, Presiding Officer, Central

Govt. Industrial Tribunal No.1, Karkardooma Courts

Complex: Delhi

I.D. No. 10/2010

Shri Prabhu Dayal S/o Shri Kali Charan,

H.No. 204, Gali No.1,

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[PART II—SEC. 3(ii)]

Dhani Ram Colony,

VIII. Maidan Garhi,

New Delhi-63

Claimant

The Vice Chancellor,

Indira Gandhi National Open University,

R.No.1, Block No.8 Maidan Garhi,

New Delhi-110068.

Management

AWARD

Indira Gandhi National Open University (herein after

referred to as the University) was established in the year

1985 to provide cost effective and quality education to

large sections of people, including those living in remote

and far flung areas, through distance education

programmes. The University functions not only within the

boarders of the country but offers education programmes

in at least 35 countries. Besides Regional Centres across

the country and in foreign countries, the University has its

Central Campus at Maidan Garhi, New Delhi, which is spread

over an area of 151.32 acres of land, At its Central Campus,

the University has a strength of about 800 officers/officials

working there.

2. The University required considerable man-power

to carry out housekeeping services, which includes cleaning

and sanitation activities. "Housekeeping services are out-

sourced by the University through a private contractor. In

the year 2004, the University awarded contract for

housekeeping services to Sybex Computer Systems (Pvt.)

Ltd. (in short the Contractor). The Contractor engaged

around 70 sweepers and cleaners to carry out its contractual

obligations. On 1st November 2007, the University awarded

contract for housekeeping services to Spick & Span

Facilities Management (Pvt.) Ltd. (in short the New

Contractor). Initially the New Contractor decided to retain

services of the sweepers and cleaners engaged by the

contractor. But negotiations between the New Contractor

and employees of the Contractor turned into a complete

fiasco. Sweepers and cleaners resorted to agitation and sat

on "dharna" outside the gate of Maidan Garhi Campus of

the University. Legal wrangle started between the

University and the agitators. Efforts were made from either

side to wrench one's opponent.

3. Resort to the jurisdiction of Conciliation Officer

was taken by the sweepers and cleaners, by way of filing

their respective claim statements. Conciliation Officer

initiated conciliation proceedings, as contemplated by sub-

section (1) of section 12 of the Industrial Disputes Act,

1947 (in short the Act). No settlement could arrive at between

the parties and a failure report was submitted to the

appropriate Government. On consideration of the failure

report, so submitted, the appropriate Government referred

the dispute to this Tribunal for adjudication, invoking its

power under clause (d) of sub-section (1) of section 10 of

the Act, vide order No.L42012/91/2009-IR(DU) New Delhi

dated 07th January, 2010 with following terms:

"Whether the action of the management of Indira

Gandhi National Open University, in terminating the

services of their workman Shri Prabhu Dayal w.e.f.

01/11/2007 is legal and justified? If not, what relief

the workman is entitled to?"

4. Shri Prabhu Dayal claims in his claim statement

that he was working with the University as "Safai

Karamchari" in its housekeeping department since

1.11.2004. He had rendered more than 240 days continuous

service with the University. At the time of entering into the

services of the University, he was asked to fill in certain

forms, which forms duly filled and signed by his are in the

custody of the University. No appointment letter was issued

in his favour, inspite of his request in that behalf. Since

inception of his engagement, the University had indulged

into unfair labour practices and flouted implementation of

labour laws concerning his service conditions. At times

he, alongwith his colleagues, was kept at its rolls by the

University, while during intermittent spells his services were

transferred at the roll of one contractor or the other. This

device was adopted with a view to discount his continuity

in service and seniority in employment so that liability to

pay retrenchment compensation under the Act and other

benefits under various labour laws may be avoided.

5. Contributions towards social securities, namely,

ESI, medical benefits and provided fund were deducted

from his wages by the University, pleads the claimant.

Despite payment of contributions towards above social

securities, the University never issued any medical card

and provident fund statement or account number, but

passed on that responsibility on the shoulders of the

Contractor. Facility of earned, annual, privileged, casual,

weekly off, festival and medical leaves were not accorded.

Though work was taken on Sundays and holidays from

him but no compensatory leave or overtime wages were

given to him. He used to get wages at the rate of Rs. 172/-

per days, amounting to somewhere near to Rs.4500/- per

month.

6. On 1st November 2007, the University decided to

place his services at the disposal of a contractor, whose

engagement for housekeeping work was neither

communicated not he was introduced to him. To his utter

surprise a contractor surfaced on scene and told himand

his colleagues that he will pay them Rs.3470/- each per

month. He announced that interested persons may stay at

work-place and others may leave for good. The claimant

and his colleagues wanted to see the Vice-Chancellor to

appraise him of their grievances, but they were stopped at

the gate of the University campus. Services of the claimant

and others were terminated. The University called some

anti-social elements and got sever beatings adminstered

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to him and his colleagues at their hands. Police was called

by the University authorities, to keep their hands clean.

7. The University had not served one month notice

nor paid wages in lieu of the notice. Retrenchment

compensation was also not paid to him. His services were

not done away on infliction of punishment for a disciplinary

action , hence action of the University is violative of the

provision of the Act and principles of natural justice. He

claims reinstatement in the services of the University with

continuity and consequential benefits.

8. The University demurs the claim pleading that the

claimant was never employed by it. No salary/wages or

other emoluments were paid by it to the claimant. There

existed no relationship of employer and employee between

the parties. Hence there was no occasion for the University

to terminate services of the claimant. In view of these facts,

reference order is improper and claim statement is liable to

be rejected, pleads the University.

9. To outsource housekeeping services, the

University engaged services of the Contractor, vide

agreement dated 1.112004, which agreement was extended

upto 31.10.2007. The claimant was working with the

Contractor to provide housekeeping services at the campus

of the University. The Contractor is essential and proper

party, pleads the University. In agreement entered into

between the Contractor and the University it was stipulated

that employees of the Contractor at no point of time would

be treated as employees of the University. The University

laid emphasis on a few clauses of the agreement, which are

extracted thus:

"12. Provider shall continue to be responsible for the

personnel employed by him, in respect of terms and

conditions of their service, payments, attendance,

medical care, other disciplinary matter etc. who shall

remain fully under the administrative and financial

control and supervision of the Provider, except that

the University shall be the sole Arbitrator in respect

of nature of the duties to be entrusted to and the

manner of performance of their duties for the purpose

of this Agreement.

13. The temporary personnel deployed by the

Provider to IGNOU shall at no time be treated as the

employees of the University and also shall have no

claim to be regularized in the services of the

University. But the Provider will not change the

personnel once deployed by it in the University

without prior permission of the University as the

frequent changes in deployment of temporary may

hamper the day to day work of the University.

23. There is no privity of contract by and between

the Provider and the University. The Temporary shall

have no right to make any claim against the

University directly or indirectly, mometary including

wages or otherwise. The Temporary shall also have

no right to claim for any regularization. The Temporary

shall also have no claim against the University for

any dues, statutory or otherwise. Similarly, every the

representative of any Temporary who have worked

in the University shall have no right or claim against

the University.

24.The Provider has to ensure that the Temporaries

deployed are not forming any Association/Forum in

respect of IGNOU matter nor they should be allowed

to join in any Association/forum of IGNOU.

25. The Provider has to ensure timely deployment

ofTemporaries as required by IGNOU and fulfil other

obligation stated in the above said terms and

conditions failing which penalty will be imposed by

the University on case to case basis from time to

time. The decision of the University will be final."

10. When contract, referred above, expired with efflux

of time, contract for housekeeping services was awarded

to the New Contractor, who initially sought to retain the

services of housekeeping staff for this own contract.

However,owing to illegal and unjustified demands of the

housekeeping staff, the New Contractor did not engage

the claimant and his other colleagues. The claimant and

his colleagues resorted to illegal demonstration in the

University premises. A civil suit being CS(OS) No.83 of

2008 was instituted before High Court of Delhi. The High

Court passed an interim injunction order on15.1.2008

against the housekeeping staff and ultimately decreed the

suit on 13.3.2009.

11. The University had denied all allegations levelled

by the claimant in his claim statement. It is pleaded that the

claimant knew his status, being an employee of the

Contractor. His services were terminated by the Contractor

and the University has no role to pay in so called termination

of his services. His claim against the University is illegal,

unwarranted and unjustified. It is pleaded that his claim

may be dismissed.

12. An application moved by the University, to

implead the Contractor as a party, was declined vide order

dated 20.4.2010.

13, On pleadings of the parties, following issues were

settled:

1. Whether there was relationship of employer and

employee between the claimant and the management?

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2. Whether the claimant was an employee of Sybex

Computer System Pvt. Ltd., the Contractor?

3. As in terms of reference.

4. Relief.

14. To discharge onus resting on him, the claimant

examined himself and closed his evidence. The University

examined Smt. Bimla Madan, Shri Shiv Prakash, Dr.S.S.Bisht

and Shri Ashok Kumar Gupta to substantiate its case.

15.Arguments were heard at the bar at length. Shri

V.N.Kaushik, assisted by Ms. Sulekha Thakur, authorised

representative, advanced arguments on behalf of the

claimant. Shri V.K.Rao, assisted by Shri Aly Mirza,

authorised representative and Vibhas Vaibhav,

Asstt.Registrar (Law), raised submissions on behalf of the

University. I have given my careful considerations to the

submissions made at the bar and cautiously perused the

record. My findings on issues involved in the controversy

are as follows:

Issue No. 1& 2

16.Affidavit Ex.WW1/A tendered as evidence on

behalf of the claimant, wherein he sweared that he was in

the employment of the University as "Safai Karamchari"

since 1.11.2004. It has been projected in Ex. WW1/A that

he rendered more than 240 days service with the University.

Other facts detailed in Ex.WW1/A are facsimile of contents

of claim statement, which has been proved as Ex.WW1.M1.

He canndidly admitted has signatures on documents

Ex WW1/M2 to Ex.WW1/M9.

17.Smt Bimla Madan unfolds that Regional Office of

the Employers' Provident Fund Organisation had given

code number as DL-24878 to the Contractor, while code

number 2127 was given to Shri Prabhu Dayal, the employee

of the above company. Name of Prabhu Dayal appears in

statements of contributions Ex.MW1/1 and Ex.MW1/2, filed

by his employer for the period 1.4.2005 to 31.3.2006 and

1.4.2006 to 31.3.2007 respectively.

18. Shri Shiv Prakash entered the witness box to

prove copy of plaint, filed by the University before High

Court of Delhi, written statement of defendant Nos. 3 to 6,

affidavit of Shri U.S. Tolia tenderd as evidence in that case,

interim order dated 15.1.2008 and judgment dated 13.3.2009

passed by justice Ms. Rekha Sharma. These documents

are proved as Ex.MW2/1 to Ex.MW2/5 respectively. He

clarified that no appeal was preferred against the judgment

Ex.MW2/5.

19. Dr.S.S. Bisht tendered his affidavit Ex.MW3/A as

evidence, wherein he announced that the claimant was

never appointed by the University in its services. No salary

was every paid to him. Services of the Contractor were

availed to outsource housekeeping services vide agreement

dated 1.11.2004, which was subsequently extended upto

31.10.2007. The Claimant was working with the Contractor.

With effect from 1.11.2007 contract to provide housekeeping

services was awarded to the New Contractor. He projects

that when he was not engaged by the New Contractor, he

alongwith his colleagues resorted to illegal demonstration

in the premises of the University. Story of filing civil suit

and orders thereon have been re-affirmed by Dr. Bisht.

Being an employee of the Contractor, he had filed a wrong

claim statement, which is liable to be dismissed, asserts Dr.

Bisht.

20. Shri Ashok Kumar Gupta details that the

University was maintaining an account with Maidan Garhi

Branch of the Punjab National Bank. The University had

issued cheques in favour of the Contractor, details of those

cheques are given in Ex.MW4/A. He identifies signatures

of Shri Mohan Lal, Branch Manager, on Ex.MW3/21 and

announces that contents of that document are true and

correct, as he himself had checked the records.

21. When facts testified by the claimant, Smt. Bimla

Madan, Dr.S.S. Bisht and Ashok Kumar Gupta are

appreciated, it came to light that the claimant had detailed

that he was in the service of the University since 1.11.2004.

Self-serving words, deposed by the claimant, could not

withstand rigors of cross-examination, wherein he admitted

that Ex.WW1/M2, ExWW1/3, Ex.WW1/M4, Ex.WW1/M5,

Ex.WW1/M6, Ex.WW1/M7,Ex.WW1/M8 and Ex. WW1/M9

bear his signatures. When perused it came to light that

Ex.WW1/M4 to Ex.WW1/M9 are wage sheets of the

Contractor, though which salary of the claimant and his

colleagues were released by the former in their favour. These

documents project him to be an employee of the Contractor.

Thus by an admission of his signatures on above

documents he allowed a fact to spill over, which demolishes

his case of being an employee of the University. Ex.WW1/

M2 is also photocopy of scrolls through which payments

were released by the Contractor to the claimant and his

colleagues. In the end he gave in and deposed that he was

not aware as to who engaged him. However he made a faint

attempt to project his cause when he asserted that he used

to work for the University. Conspectus of above facts spill

the beans and announce him to be an employee of the

Contractor.

22. Dr. S.S. Bisht erected castle for the University

brick by brick when he deposed that the claimant was

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working with the Contractor, whom housekeeping services

were outsourced vide agreement dated 1.11.2004, copy of

which is Ex. MW3/1. This agreement was extended upto

31.10.2007. When aforesaid contract expired, contract for

housekeeping services was awarded to the New Contractor,

vide agreement Ex. MW3/2. When New Contractor did not

engage the services of the claimant and his colleagues,

they resorted to illegal demonstration in the premises of

the University. The Contractor used to raise his bills, to

whom payments were made through cheques Ex. MW3/5,

Ex. MW3/6, Ex. MW3/6, Ex. MW3/7, Ex. MW3/8, Ex. MW3/9

and Ex. MW3/10, depases the witness. Some of the bills

raised by the Contractor, besides sanction accorded by

the University are Ex. MW3/11, Ex. MW3/12, Ex. MW3/13,

Ex. MW3/14, Ex. MW3/15, Ex. MW3/16, Ex. MW3/17, Ex.

MW3/18, Ex. MW3/19, Dr. Bisht detailed. Payments were

made to the Contractor through cheques, which were

honoured and cleared and letter Ex. MW3/21 was written

by the bank in that regard. He had proved list of contractor

are Ex. MW3/W2, to whom the work was awarded by the

University since 16.12.1991 till date. Out of facts unfolded

by Dr. Bisht it came over the record that the University had

outsourced housekeeping services since 16.12.1991. On

1.11.2004 work was awarded to the Contractor and on

1.11.2007 it was awarded to the New Contractor. Claimant

was an employee of the Contractor, who used to pay wages

to him. Smt. Bimla Madan gives re-affirmation to facts

unfolded by Dr. Bisht. She had proved statements of

contribution, filed by the Contractor in the Regional Office

of the Employee's Provident Fund Orginsation, in which

statements name of the claimant does appear as an

employee of the Contractor. Shri Ashok Kumar Gupta proves

various payments made by the University to the

Contractor, details of which are enlisted in Ex. MW3/21

Sequences of events, brought over the record through the

depositions of aforesaid witnesses and documents proved

by them, highlight that the claimant was an employee of

the Contractor, who used to make payment of his salaries

to him. It was the Contractor who was his pay master.

23. Whether the claimant, who was an employee of

the Contractor, can maintain a dispute against the

University? For an answer to this proposition, the Tribunal

has to take note to the law contained in section 10 of the

Contract Labour (Regulation and Abolition) Act, 1970 (in

short the Contract Labour Act), which make provision for

prohibition of employment of contract labour. For sake of

convenience provisions of section 10 of the Contract

Labour Act are reproduced thus:

"10. Prohibition of employment of contract labour:-

(1) Nowithstanding anything contained in this Act,

the appropriate Government may, after consultation with

the Central Board or, as the case may be, a State Board,

prohibit, by notification in the Official Gazette employment

of contract labour in any process, operation or other work

in any establishment.

(2) Before issuing any notification under sub-section

(1) in relation to an establishment, the appropriate

Government shall have regard to the conditions of work

and benefits provided for the contract labour in that

establishment and other relevant factors, such as—

(a) whether the process, operation or other work in

incidenial to, or necessary for the industry, trade,

business, manufacture or occupation that is carried

on in the establishment:

(b) whether it is of perennial nature, that is to say, it is of

sufficient duration having regard to the nature of

indsutry, trade, business, manufacture or occupation

carried on in that establishment;

in that establishment or an establishment similar

thereto;

(d) whetehr it is sufficient to employ considerable number

of whole-time workmen. Explanation-If a question

arises whether any process or operation or other

work is of perennial nature, the decision of the

appropriate Government thereon shall be final."

24. As emerge out of the provisions of sub-section

(1) of section 10 of Contract Labour Act, the appropriate

Government may, by notification in the official gazette,

prohibit employment of contract labour in any process,

operation or other work in any establishment. When

employment of contract labour is prohibited, by issuance

of a notification in official gazette by the appropriate

Government, what would be the status of the contract

labour employed in the establishment? Such a question

arose before the Apex Court in Steel Authority of India

Ltd. (2001 (7) S.C.C.I). The Apex Court ruled therein that

there cannot be automatic absorption of contract labour

by principal employer on issuance of notification by the

appropriate Government on abolition of contract labour

system, under sub-section (1) of section 10 of the Contract

Labour Act. It would be expedient to reproduce the law laid

by the Apex Court, which is extracted thus:

".....they fall in three claess:(1) where contract labour

is engaged in or in connection with the work of an

establishment and employment of contract labour is

prohibited either bacause the industrial adjudicator/

court ordered abolition of contrct labour or because

the appropriate Government issued notification

under section 10(1) of the CLRA Act, no automatic

absolation of contract labour working in the

establishment was ordered, (2) where contract was

found to be a sham and nominal, rather a camouflage,

in which case the contract labour working in the

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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 the abolition of contract labour but present

instances wherein the court pierce the veil and

declared the correct position as a fact at the stage

after employment of contract labour stood prohibited,

(3) where in discharge of a statutory obligation of

maintaining a canteen in an establishment the

principal employer availed the services of the

conractor, the courts have held that the contract

labour would indeed be employees of the principal

employer."

25. The Court ruled that neither section 10 of the

Contract Labour Act nor any other provision in that Act,

whether expressly or by necessary implication, provides

for automatic absorption of contract labour on issuance of

a notification by the appropriate Government under sub-

section (1) of section 10, prohibiting employment of

contract labour, in any process, operation or other work in

any establishment. Consequently the principal employer

cannot be required to order for absorption of the contract

labour working in the establishment concerned. It was

further fuled therein that in Saraspur Mills case (1974 (3)

SCC 66), the workman engaged for working in the canteen

run by the Cooperated Society for the appellant were the

employees of the appellant Mills. In Basti Sugar Mills

(AIAR 1964 S.C. 355) a canteen was run in the factory by

the Cooperative Society and as such as the workers

working in the canteen were held to be employees of the

establishment. The Apex Court ruled that these cases fall

in class (3) mentioned above. Judgement in Hussainbhai

(1978 Lab. I.C. 1264) was considered by the Apex Court in

the said precedent and it was ruled therein that the said

precedant falls in class (2), referred above. The Apex Court

concluded that on issuance of prohibitive notification

under section 10 of the Contract Labour Act prohibiting

employment of contract labour or otherwise, in an industrial

dispute brought before it by any contract labour in regard

to conditions of service, the industrial Adjudicator will have

to consider the question whether the contractor has been

interposed either on the ground of havng undertaken to

produce any given result for the establishment or for

supply of contract labour for work of the establishment

under a genuine contract or is a mere ruse/camouflage to

evade compliance of various beneficial legislation so as to

deprive the workers of the benefit thereunder. If the

contract is found to be not genuine but a mere camouflage,

the so called contract labour will have to be treated as

employees of the principal employer who shall be directed

to regularize the services of the contract labour in the

establishment concerred, subject to the conditions as may

be specified by it for that purpose.

26. As announced by the Apex Court, on issuance of

a prohibitive notification, prohibiting employment of

contract labour or other wise in any industrial dispute

brought before it by the contract labour in regard to

conditions of his service, the industrial adjudicator will

have to consider the question whether the contractor has

been interposed either on the ground of having

undertaken to produce any given result in the

establishment or for supply of the contract labour for the

work of the establishment under a genuine contract or it is

a mere ruse/camouflage to evade compliance of beneficial

legislation so as to deprive the workers of the benefit

therein. Thus it was ruled that a contract labour can raise a

dispute before the industrial adjudicator in regard to his

conditions of service and in case the contract is found to

be not genuine but a mere camouflage, that so called

contract labour will have to be treated as employees of the

principal employer. Also see Standard Vaccuum Refining

Co. of India Ltd. (1960 (II) LLJ. 233), which was referred

with approval in Steel Authority of India.

27. In Shivnandan Sharma (1955(1) LLJ 688), the

respondent Bank entrusted its Cash Department under a

contract to the Treasures who appointed cashiers,

including the appellant Head Cashier. The question before

the Apex Court was: was the appellant an employee of the

Bank? On construction of the agreement entered into the

Bank and the Treasure, the Court laid down:

"If a master employs a servant and authorizes him to

employ a number of persons to do a particular job

and to guarantee their fidelity and efficiency for a

cash consideration, the employees thus appointed

by the servant would be equally with the employers,

servant of the matter."

In the above precedent the Apex Court for the first

time laid down the crucial test of supervision and control

for determining the relationship of employer and employee.

28. In Hussainbhai (supra) the petitioner, who was

manufacturing ropes, entrusted the work to a contractor

who engaged his own workers. When, after some time,

the workers were not engaged, they raised an industrial

dispute that they denied employment by the petitioner. On

reference of that dispute, the labour court passed an award

against the petitioner. When matter reached the Apex

Court, on examination of various factors and applying the

effective control test, it was held that though there was no

direct relationship between the petitioner and the workers

yet on lifting the veil and looking at the conspectus of

factors governing employment, the naked truth, though

drapped in different perfect paper arrangement, was that

the real employer was the petitioner, not the immediate

contractor. The Apex Court stated law in following words:

"Where a worker or group of workers labours to

produce goods or services and these goods or

services are for the business of another, that other

is, in fact, the employer. He has economic control

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over the workers' subsistence, skill, and continued

employment. If he, for any reason, chokes off, the

worker is virtually, laid off. the presence of

intermediate contractor with whom alone the workers

have immediate or direct relationship ex-contractu

is of no consequence when, on lifting the veil or

looking at the conspectus of factors governing

employment, we discern the naked truth, though

draped in different perfect paper arrangement, that

the real employer is the management, not the

immediate contractor***. If the livelihood of the

workmen substantially depends on labour rendered

to produce goods and services for the benefit and

satisfaction of an enterprise, the absence of direct

relationship or the presence of dubious

intermediaries or the make-believe trappings of

detachment from the management cannot snap the

real-life bound. The story may vary but the inference

defies ingenuity. The liability cannot be shaken off.

Of course, if there is total dissociation in fact between

the disowning management and the aggrieved

workmen, the employment is, in substance and real-

life terms, by another. The management's adventitious

connections cannot ripen into real employment."

As noted above, this precedent does not present an

illustration of abolition of contract labour but an instance

where the Court pierced the veil and declared the correct

position to the effect that the contract labours were

employees of the principal employer and not of the

contractor.

29. In Steel Authority of India (supra) it has been

ruled that the term "contract labour" is a species of workman.

A workman may be hired: (1) in an establishment by the

principal employer or by his agent with or without the

knowledge of the principal employer, or (2) in connection

with the work of an establishment by the principal employer

through a contractor or by a contractor with or without the

knowledge of principal employer. Where a workman is hired

in or in connection with the work of an establishment by

the principal employer through a contractor, he merely

acts as an agent so there will be master and servant

relationship between the principal employer and the

workman. But when a workman is hired in or in connection

with the work of an establishment by a contractor, either

because he has undertaken to produce a given result for

the establishment or because he supplied workmen for

any work of the establishment, a question might arise

whether the contractor is a mer camouflage as in

Hussainbhai's case (supra) and in Indian Petrochemicals

Corporation case (1999 (6) S.C.C. 439) etc.; if the answer is

in affirmative, the workman will be in fact an employee of

the principal employer, but if the answer is in the negative,

the workman will be a contract labour.

In view of the legal proposition, referred above, it is

concluded that the claimant can maintain this dispute

against the University since he agitates that the contract

agreement between the University and the Contractor is

sham and nominal.

30. Whether any directions for deeming the contract

labour as having become the employees of the principal

employer can be issued, when the contractor or the principal

employer had violated the provisions of the Contract

Labour Act? To find an answer, provisions of that Act are

to be examined. The Contract Labour Act regulates

conditions of workers in contract labour system and

provides for its abolition by the appropriate Government

as provided by section 10 of that Act. In regard to

regulatory measures section 7 requires the principal

employer to get itself registered, while section 12 obliges

every contractor to obtain a licence, under the provisions

of that Act. Section 9 places an embargo on the principal

employer of an establishment from employing contractor

labour in the establishment, when either it is not registered

or its registration has been revoked. Section 12 of the

Contract Labour Act imposes a liability on a contractor not

to undertake or execute any work through contract labour

except under and in accordance with a licence. Sections 23,

24 and 25 make contravention of the provisions of that Act

or Rules made thereunder penal. In Dena Nath (1992 Lab.

I.C. 75) the Apex Court considered the question, whethr

non-compliance of the provisions of sections 7 and 12 by

the principal employer and the contractor respectively

would make the contract labour employed by the principal

employer as the employee of the latter. It was ruled that

only consequence of non-compliance either by the principal

employer of section 7 or by the contractor is complying

the provisions of section 12 is that they are liable for

prosecution under the said Act. But the employees

employed through the contractor cannot be deemed to be

the employees of the principal employer.

31. In the Steel Authority of India (supra) the Apex

Court laid emphasis ".....the consequence of violation of

Sections 7 and 12 of the CLRA Act is explicitly provided in

Sections 23 and 25 of the CLRA Act, it is not for the High

Courts or this Court to read in some unspecified remedy in

Section 10 or substitute for penal consequences specified

in Sections 23 and 25 a different sequel, be if absorption of

contract labour in the establishment of principal employer

or a lesser or harsher punishment. Such an interpretation

of the provisions of the statute will be far beyond the

principle of ironing out the creases and the scope of

interpretatiave legislation and as such, clearly

impermissible.". The above authoritative pronouncements

make it clear that on violations of the provisions of the

Contract Labour Act or Rules made thereunder, the contract

labour could not be deemed to have become the employee

of the principal employer.

32. Whether this Tribunal has power to order for

abolition of contract labour system in the establishment of

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the University? For an answer, legal dicta is to be

considered. Before enactment of the Contract Labour Act,

the industrial adjudicator, in appropriate cases, used to

issue directions to the establishment concerned to abolish

or modify system of contract labour. Reference can be

made to precedents in United Salt Works and Industries

Ltd. (1962 (I) LLJ. 131), Shibu Metal Works (1966 (I) LLJ.

717), National Iron & Steel Co. (1967 (II) LLJ. 23) and Ghatge

and Patil (Transport) Pvt. Ltd. (1968 (I) LLJ. 566). The

National Commission on Labour (1966) in para 29.11 of its

report, enumerated those factors, on which abolition of

contract labour was ordered, thus:

"29.11 Judicial awards have discouraged the practice

of employment of contract labour, particularly when

the work is (i) perennial and must go on from day to

day; (ii) incidental and necessary for the work of the

factory; (iii) sufficient to employ a considerable

number of whole time workmen; and (iv) being done

in most concerns through regular workmen. These

awards also came out against the system of

'middlemen'."

33. After Contract Labour Act was brought on

statute book, the Apex examined jurisdiction of the industrial

adjudicator to issue directions to the establishment to

abolish contract labour in Vegoils Private Ltd. (1971 (2)

S.C.C. 724) and ruled that it would be proper that the

qeustion, whether the contract labour in the appellant

industry was to be abolished or not, be left to be dealt with

the by the appropriate Government under the provisions

of that act, if it becomes necessary. The observation made

by the Court ae extracted thus:

"The appropriate Government when taking action

under Section 10 will have an overall picture of the

industries carrying on similar activities and decide

whether contact labour is to be abolished in respect

of any of the activities of that industry. Therefore, it

is reasonable to conclude that the jurisidction to

decide about the abolition of contract labour, or to

put it differently, to prohibit the employment of

contract labour, is now to be done in accordance

with Section 10. Therefore, it is proper that the

question whether the contract labour regarding

loading and unloading in the industry of the appellant

is to be abolished or not, is left to be dealt with by

the appropriate Government under the Act, if it

becomes necessary. On this ground, we are of the

opinion that the direction of the Industrial Tribunal

in this regard will have to be set aside.*** The legality

of the direction given by the Industrial Tribunal

abolishing contract labour in respect of loading and

unloading from May 1, 1971, can also be considered

from another point of view. The Central Act, as

mentioned earlier, had come into force on February

10, 1971. Under Section 10 of the said Act the

jurisdiction to decide matters connected with

prohibition of contract labour is now vested in the

appropriate Government. Therefore, with effect from

February 10, 1971, it is only the appropriate

Government that can prohibit contract labour by

following the procedure and in accordance with the

provisions of the Central Act. The Industrial Tribunal,

in the circumstances, will have no jurisdiction,

through its award dated November 20, 1970, to give

a direction in that respect which becomes,

enforceable after the date of the coming into force of

the Central Act. In any event, such a direction

contained in the award cannot be enforceable from a

date when abolition of contract labour can only be

done by the appropriate Government in accordance

with the provisions of the Central Act."

34. In Gujrat Electricity Board (1995(5) S.C.C. 27) the

same view has taken by the Apex Court holdings that the

authority to abolish the contract labour vests in the

appropriate Government and not in any court including

the industrial adjudicator. It would be apposite to reproduce

the observation of the court thus:

"53. Our conclusions and answers to the questions

raised are, therefore, as follows:

(i) In view of the provisions of Section 10 of the Act, it

is only the appropriate Government which has the

authority to abolish genuine labour contract in

accordance with the provisions of the said Section.

No Court including the industrial adjudicator has

jurisdiction to do so.

(ii) If the contract is sham or not genuine, the workmen

of the so-called contractor can raise an industrial

dispute for declaring that they were always the

employees of the principal employer and for claiming

the appropriate service conditions. When such

dispute is raised, it is not a dispute for abolition of

the labour contract and hence the provisions of

Section 10 of the Act will not bar either the raising or

the adjudication of the dispute. When such dispute

is raised, the industrial adjudicator has to decide

whether the contract is sham or genuine. It is only if

the adjudicator comes to the conclusion that the

contract is sham, that he will have jurisdiction to

adjudicate the dispute, if however, he comes to the

conclusion that the contract is genuine, he may refer

the workmen to the appropriate Government for

abolition of the contract labour under Section 10 of

the Act and keep the dispute pending. However, he

can do so if the dispute is espoused by the direct

workmen of the principal employer. If the workmen

of the principal employer have not espoused the

dispute, the adjudicator, after the coming to the

conclusion that the contract is genuine, has to reject

the reference, the dispute being not an industrial

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dispute within the meaning of Section 2 (k) of the ID

Act. He will not be competent to give any relief to

the workmen of the erstwhile contractor even if the

labour contract is abolished by the appropriate

Government under Section 10 of the Act.

(iii) If the labour contract is genuine a composite

industrial dispute can still be raised for abolition of

the contract labour and their absorption. However,

the dispute, will have to be raised invariably by the

direct employees of the principal employer. The

industrial adjudicator, after receipt of the reference

of such dispute will have first to direct the workmen

to approach the appropriate Government for abolition

of the contract labour under Section 10 of the Act

and keep the reference pending. If pursuant to such

reference, the contract labour is abolished by the

appropriate Government, the industrial adjudicator

will have to give opportunity to the parties to place

the necessary material before him to decide whether

the workmen of the erstwhile contractor should be

directed to be absorbed by the principal employer,

how many of them and on what terms. If, however,

the contract labour is not abolished, the industrial

adjudicator has to reject the reference.

(iv) Even after the contract labour system is abolished,

the direct employees of the principal employer can

raise an industrial dispute for absorption of the ex-

contractor's workmen and the adjudicator on the

material placed before him can decide as to who and

how many of the workmen should be adsorbed and

on what terms."

35. In Steel Authority of India (supra) the Apex Court

had referred the precedents in Vegoils case (supra) and

Gujrat Electricity Board (supra) with approval. Thus it

emerges that power to abolish contract labour system vests

with the appropriate Government, under under section 10

the Contract Labour Act, and not with any court including

the industrial adjudicator. This Tribunal has not been

saddled with any responsibility to abolish contract labour

in an establishment, on parameters enacted in sub-section

(2) of section 10 of the Contract Labour Act.

36. Now I would turn to the facts of the present

controversy. It is not a case where an employee of a

contractor, employed in a statutory canteen, has invoked

the jurisdiction of this Tribunal. This matter, as projected

by the claimant, is left to be approached on the proposition

as to whether contract agreement entered into between the

University and the Contractor was sham and nominal. For

an answer to this proposition, it would be expedient to

examine the contract agreement, which has been proved as

Ex.MW3/1 by Dr. Bisht. In construction of contents of

Ex.MW3/1, this Tribunal cannot be oblivions of the rules

viz., written instruments shall, if possible, be so interpreted

"ut res magis valeat quam pereat" (a liberal construction

should be put upon instruments, so as to uphold them, if

possible) and that such a meaning shall be given to it as

may carry out and efectuate to the fullest extent the

intention of the parties.

37. Elementary principle of law relative to contracts

is that parties to contracts are to be allowed to regulate

their rights and liabilities themselves and the Court will

only give effect to the intention of the parties as it is

expressed by the contract. However the law in some cases

overrides the will of the individual and renders ineffective

and futile his expressed intention or contract. No court or

tribunal will end its aid to a man who founds his cause of

action upon an immoral or an illegal act. A contract cannot

be made the subject of an action if it be impeachable on the

grounds of dishonesty, or as being opposed to public

policy, if it be either contra bonos mores, or forbidden by

law. No court or tribunal will allow itself to be made the

instrument of enforcing obligations alleged to arise out of

a contract or transaction which is illegal.

38. Whether Ex.MW3/1 contains clauses which are

contra bonos mores or forbidden by law? When perused,

clause 24 of Ex.MW3/1 makes it clear that right to form or

join an association, in respect of IGNOU matter, has been

denied to an employee of the Contractor. For sake of

convenience contents of that clause are reproduced thus:

"24. The provider has to ensure that the Temporaries

deployed are not forming any Association/Forum in

respect of IGNOU matter nor they should be allowed

to joint in any Association/Forum of IGNOU."

39. Right to form association or unions sis a

funamental right guaranteed to every citizen by clause (1)(c)

of Article 19 of the Constitution of India. Guarantee of right

to form an association or union has to be read with clause

(4) of the aforesaid Article, which permits imposition of

legal restrictions on the right in so far as such restrictions

may be reasonably required in the interest of the

sovereignty and integrity of India, public order and morality.

The right to form associations or unions refers not only to

the initial commencement of the association but also to

contination of the association as such, as it is obvious that

if an association has to be dissolved the moment it has

been formed, it cannot be said that the members have the

right to form the association. The restriction imposed by

the University on employees of the Contractor does not

answer the requirement of clause (4) of Article 19 of the

Constitution and is violative of the fundamental right

guaranted to the claimant and his colleagues.

40. There is other facet of the coin. The Act is a

legislation relating to what is known as "collective

bargaining" in the economic field. This policy is implicit in

the definition of "industrial dispute". See Titagarh Jute Co.

Ltd. (1979 Lab. I.C. 513). "An agreement between a single

employer or an association of employers on one hand and

a labour union on the other, which regulates the terms and

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conditions of employment" is known as collective

bargaining agreement. The policy behind the concept of

collective bargaining is to protect workmen as a class

against unfair labour practices. A dispute of an individual

workman would acquire status of an industrial dispute if it

affects the rights of the workmen as a class. An industrial

dispute denotes two qualities which distinguish it from an

individual dispute, namely (i) that the dispute relates of

industrial matter, and (ii) that on one side at least of the

dispute the disputant are a body of men acting collectively

and not individually. The clause, referred above, puts

restriction on the claimant and his colleagues to act

collectively as a body of men to protect their rights, while

working with the Contractor, who had engaged them to

produce a given result in terms of agreement Ex.MW3/1.

Contents of clause 24 of Ex.MW3/1, being unlawful, cannot

be supported at law.

41. A restriction is imposed on the claimant and his

colleagues from making any claim against the University

directly or indirectly, monetary including wages or

otherwise as contained in clause 23 of Ex.MW3/1, which is

not in conformity with the provisions of the Contract Labour

Act. Primary responsibility to pay wages to an employee

employed by a contractor rests upon the latter. But on his

failure to make payment of wages within the prescribed

period or in the even of making short payment, the principal

employer has been saddled with the responsibility to make

payment of wages in full or the unpaid balance due, as the

case may be, to the contract labour, enacts sub-section (4)

of section 21 of the Contract Labour Act. Consequently

this part of clause 23 of Ex.MW3/1 is to be discarded, being

violative of law.

42. In mercantile transactions stipulations are agreed

upon between the parties on principal to principal or

principal to agent basis. In both the propositions there is

privity of contract between them. Absence of privity of

contract would make them strangers to each other, in respect

of alleged covenanted or parol agreement, as the case may

be. In clause 23 of Ex.MW3/1 it is projected that there is no

privity of contract by and between the Provider (the

Contractor) and the University. The proposition referred

above is absurd. Privity of contract is the relation which

exists between the immediate parties to a contract, which is

necessary to enable one person to sue another on it. It is a

relationship between persons arising under a contract.

There may be (1) privity of contract, or (2) privity of estate.

When Ex.MW3/1 is read, privity of contract between the

contractor and the University emerge out. Proposition,

referred above, cannot be given effect to.

43. "Consideration" of some sort or other is so

necessary to the formation of a contract. A nudum

pactum, or agreement to do or pay something on one

side, without any consideration on the other, will not

at all support any action, and a man cannot be

compelled to perform it. To constitute consideration,

there must be an act, abstinence or promise on the

part of promisee or some other person at the desire

of the promisor. A consideration must be valuable

and not superficial, it must be material and not

sentimental or imaginary. It must be a material

detriment to the promisee or a benefit to the promisor.

Section 2 of the Contract Act defines consideration:

"when at the desire of the promisor, the promisee or

any other person, has done or abstained from doing,

or does or abstains from doing something, such act

or abstinence or promise is called a consideration for

the promise."

44. The consideration for a promise must have some

tangible value in the eye of law. Its adequacy is not material.

Though adequacy of consideration will not be examined

by the courts, yet it must not be colourable merely nor

illusory. A mere moral obligation arising from a past benefit

not conferred at the request of the defendant is not a good

consideration. However consideration derived from moral

obligations, in which there has been a legal right deprived

of legal remedy, the defendant would be held liable, without

putting moral duty at par with legal consideration. These

propositions may require a court or a tribunal to examine

whether there was legal consideration for the promise.

45. Whether there is any legal consideration for the

promise made by the Contractor to the University? For an

answer contents of clause 15 of Ex.MW3/1 are to be

examined, which are extracted thus:

"15. In consideration of the obligation undertaken

by the Provider, under this Agreement, the University

shall pay Provider charges on the basis of number of

such personnel actually deployed by the Provider

for the effective operation of this Agreement, on the

rates quoted by the Provider in their Tender based

on the direction and guidelines issued by the Local

Government (NCT of Delhi). The rates mentioned in

Tenders are as follows:"

46. As detailed above charges on the basis of number

of personnel deployed on the rates quoted by the Contractor

in Tender based on the direction and guidelines issued by

the Local Government (NCT of Delhi) where to be paid to

him by the University. In Ex.MW3/1 those rates are not

detailed. Thus tender document becomes a part of Ex.MW3/1.

It has not been placed before the Tribunal. As detailed

above, adequacy of consideration, may prove to be beyond

the pale of jurisdiction of a civil court. But this Tribunal

has to examine adequacy of consideration to ascertain as

to whether Ex.MW3/1 is genuine and not sham and nominal.

The Tribunal is supposed to examine as to whether the

charges on the basis of number of personnel deployed on

rates quoted in tender document project minimum wages

to be paid to contract labours, besides remunerations

derived by the Contractor. Assessment of these factors

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may enable the Tribunal to reach a conclusion whether the

Contractor had put his hands to Ex.MW3/1 on principal to

principal or agent to principal basis. Absence of tender

document created a vacuum. Parol evidence was brought

on record to the effect as to what payments were made to

the Contractor from time to time. But absence of facts, as to

what were the rates of minimum wages, what number of

contract labours worked in a particular month, on how many

days in a month a contract labour worked, whether overtime

work was performed by a contract labour in that month,

whether a contract labour worked on Sundays, holidays

and weekly off days in a month, would leave the Tribunal

in lurch.

47. Wages sheet Ex.WW1/M4 to Ex.WW1/M9

project total work days of the respective months for which

the claimant worked, besides the number of days on which

he remained on leave without pay. These documents project

minimum rates of wages paid to him in a month, out of

which deductions towards E.P.F. and E.S.I. subscriptions

were made. Bills raised by the Contractor and sanction

accorded by the University are proved as ex.MW3/11 to

Ex.MW3/19. Cheques issued in favour of the Contractor

are proved as Ex.MW3/5 to Ex.MW3/10. Despite my best

efforts to reconcile contents of documents referred above,

I could not work out the rates on which the Contractor was

paid by the University for services rendered by him. Thus,

adequacy of consideration for services rendered by the

Contractor has not surfaced over the record. Vacuum of

evidence in that regard made me to comment that the

University could not establish factors in favour of

genuineness of contract agreement Ex.MW3/1.

48. Now it would be seen whether it was the

Contractor who exercised his control or supervision on the

claimant? Factors of such control and supervision were

described in various precedents, which would be noted

herein under. In Chintaman Rao (1958 (II) LLJ 252) the Apex

Court ruled that the concept of employment involves three

ingredients: (1) employer, (2) employee, and (3) the contract

of employment. The employer is one who employs, that is,

one who engages the services of other persons. The

employee is one who works for another for hire. The

employment is the contract of service between the employer

and employee where under the employee agrees to serve

the employer subject to his control and supervision. In

Food Corporation of India (1985 (II) LLI 4) Justice Desai,

speaking for the Apex Court, announced that a contract of

employment "discloses a relationship of command and

obedience between them". Where a Contractor employs a

workman to do the work which he contracted with a third

person to accomplish, the workman of the Contractor would

not without something more become the workman of third

person.

49. In Dharangadhara Chemical Works Limited (1957

(1) LLJ 477), the Apex Court ruled that test of "supervision

and control may be taken as the prima facie test for

determining the relationship of employment". It was further

laid that existence of the right in the master to supervise

and control the work to be done by the servant, not only

matter of directing that work the servant is to do but also

the manner in which he shall do his work is the prima facie

test for determining the existence of master and servant

relationship. It was suggested that correct method of

approach, would be to consider whether having regard to

the nature of work there was due control and supervision

by the employer. The greater amount of direct control

exercised over the person rendering the services by the

person contracting for them, the stronger the ground for

holding it to be a contract of service. The control and

supervision test was reaffirmed by the Apex Court in

Chintaman Rao (supra), wherein it was ruled that "worker"

was a person employed by the management and there must

be contract of service and a relationship of master and

servant between them. In Shankar Balaji Waje (1962(1)LLJ

119), the Apex Court clarified that "control of the

management, which is a necessary element of the

relationship of master and servant is not directed towards

providing or dictating the nature of the article to be

produced or the work to be done, but referes to the other

incidents having a bearing on the process of work the

person carries out in the execution of the work. The manner

of work is to be distinguished from the type of work to be

performed. In V.P. Gopala Rao (1970 (11) LLJ 59), The Apex

Court said that it is the question of fact in each case

whether the relationship of master and servant exists

between the management and the workman and there is no

abstract a priori test of the work control required for

establishment the contract of service. It was laid therein

that the holding that the persons employed in the factory

were workers within the meaning of sub-section (1) of

section (2) of the Factories Act 1948, it is to be considered

that the fact that the workman had to work in the factory

implied certain amount of supervision by the management

and the nature and extent of control varied in different

industries and that when the operation was of a simple

nature, the control could be exercised at the end of the day

by the method of rejecting the bid which did not come in to

the proper standard. It is, therefore, not surprising that in

recent years, the control test, as traditionally formulated,

has not been treated as an exlcusive test. In Silver Jubilee

Tailoring House (1973 (11) LLJ 495) the Apex Court

ordained that "it is in its application to skilled and

particularly professional work that control test in its

traditional form has really broken down. It has been said

that in interpreting "control'' as meaning the power to direct

how the servant should do the work, the court has been

applying the concept suited to past age''.

50. During the last three decades emphasis in the

field and shifted and no longer rests so strongly upon the

question of control. Control is obviously an important factor

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and in many cases it may still be a decessive factor, but it

would be wrong to say that in every case it is a decesive

factor. In Shining Tailors (1993 (11) LLJ 143), the Apex Court

held that the piece rated workers working for a big tailoring

establishment were workmen for the establishment. It was

observed therein that the "right of removal of the workman

or not to give work as an element of control and

supervision'' which was amply satisfied to announce that

those piece rated workers were the workmen for the

establishment. The Court concluded that the proposition

that" piece rate" itself indicates relationship of independent

contract, is not correct. A servant who has full liberty to

attend to his work according to his pleasure and not

according to orders of his master, is an independent

contractor. A gold smith engaged to finish jewels within a

given time and when it was open to such goldsmith to

finish jewels within the given time or earlier and engage

themselves or others of their own were held to be

independent contractors, in K. Keswa Reddiar (1957 (1)

LLJ 645). In the like manner a goldsmith who undertook the

manufacture of ornaments like other goldsmith which he

was asked to manufcture and was entitled to receive

remuneration which would depend upon the nature of the

work done, was held to be not under the order or control of

the proprietor of the concern for whom he was doing the

work, in Achuta Achar (1968 (1) LLJ500). An agreement for

selling milk on commission was held to be a contract for

service and not a contract of service, in Abad Dairy Doodh

Vitran Kendra Sanchalak Mandal, Ahmedabad (1989

Lab.I.C. 1970). The Tiny Deposit Agents employed in

deposit mobilzation activity of the bank have been held to

be failling within the definition of the workman and not an

independent contractor in the precedent in the

Management of Indian Bank (1990(1) LLJ 50).

51. As emerge out, element of control or supervision

of employer in respect of detail of the work would be an

identifying mark of the servant. Where an employer retains

the power, not only of directing what work is to be done

but also of controlling the manner of doing the work, these

factors would be determinative of his status as of a master.

His control is not directed towards providing or dictating

the nature of work to be done but refers to other incidents

having a bearing on the process of work the person carries

out in the execution of the work. Control test postulates a

combination of managerial and technical functions.

52. Whether elements of control or supervision of

the University in respect of details of work of the claimant

emerge out of contract agreement Ex.MW3/1? For an

answer, a few clauses of Ex. MW3/1 are to be scanned,

which are extracted thus:

"12. Provider shall continue to be responsible for the

personnel employed by him, in respect of terms and

conditions of their service, payments, attendance,

medical care, other disciplinary matters etc. who shall

remain fully under the administrative and financial

control and supervision of the Provider, except that

the University shall be the sole Arbitrator in respect

of nature of the duties to be entrusted to and the

manner of performance of their duties for the purpose

of this Agreement.

13. The temporary personnel deployed by the

Provider to IGNOU shall at no time be treated as the

employees of the University and also shall have no

claim to be regularized in the services of the

University. But the Provider will not change the

personnel once deployed by it in the University

without prior permission of the University, as the

frequent changes in deployment of temporary may

hamper the day to day work of the University.

14. The Provider shall have to change over or replace

the temporary personnel as and when required by

the University whether or not such personnel are

found guilty of any misconduct. It shall not be

necessary for the University to assign any reason to

the Provider or the concerned Person or any other

person in respect of any such change and

replacement required by the University."

53. As projected above, clause 12 announces that

personnel employed by the Contractor shall remain fully

under the administrative and financial control and

supervision of the Contractor. However an exception is

there to this general proposition to the effect that the

University shall be sole arbitrator in respect of nature of

duties to be entrusted to and the manner of performance of

their duties for the purpose of the agreement under

consideration. another exception is contained in clause 13

wherein the Contractor has been constrained not to change

the personnel once deployed without prior permission of

the University. Further exception is contained in clause 14

wherein the Contractor is obliged to change or replace the

temporary personnel as and when required by the

University. The factors enumerated in the clauses, referred

above, make it apparent that the University retained the

power, not only of directing what was to be done by the

claimant, but also of controlling him in respect of manner

of doing the work was to be done by the claimant, but also

of controlling him in respect of manner of doing the work.

Power of the Contractor to replace the claimant from his

work place was made subject to permission of the University.

Despite the choice of the Contractor to replace the claimant

he could not do so, in case University showed its

unwillingness in that regard. Contra to it, the Contractor

was duty bound to change an employee if so commanded

by the University. Such a proposition was not dependent

on a contingency of the employee being found guilty of

any misconduct. Mere wish of the University was to prevail

in the matter. Thus, it is crystal clear that the University

retained power of allocation of duties, besides right to

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control the manner of performance of such duties by the

claimant. The claimant was to work with the University till

its pleasure. The Contractor could not exercise his earnest

will to change him, if not consented by the University. If

the University decided to get him changed, for any reasons

whatsover, the Contractor could not impose him on the

former, no matter his work and conduct were satisfactory.

Conspectus of these elements make it clear that

administrative control on the claimant was with the

University and not with the Contractor.

54. Contract agreement Ex.MW3/1 does not contain

any obligation on the part of the Contractor to supervise

the work of the claimant. No clause is there in the document

to show that the Contractor deployed some personnel to

supervise the work of the claimant and his other 69

colleagues. Who used to the mark attendance of the

claimant and his colleagues Ex. MW3/1 draws a blank? No

parol evidence was brought in to suggest that it was the

contractor who supervised his work. Vacuum of facts in

Ex.MW3/1 and conspicous absence of any ocular evidence

in that regard leve no doubt to conclude that it were the

University authorities who used to supervise the work of

the claimant and his colleagues.

55. Disciplinary contnrol is exercised by an employer

on his employees by way of codifying rules of conduct for

them. He engrafts acts of misconduct in those rules. He

punishe his employees for their blameworthy conduct. It is

so done by him with a view to maintain discipline at the

work place and to deter potential delinquent from doing

improper behaviour or to come in conflict with rules of

standard of behaviour. Right to coin an act as an improper

behaviour, failing within the ambit of misconduct, was

retained by the University. It has been detailed in clause

22 of Ex.MW3/1 that "the University shall be sole judge as

to what is against the interest of the University and as to

what constitutes misconduct". This authority to define a

behaviour to be a misconduct for a contract employee

projects that the University had clothed itself with a right

to declare a code of conduct for the claimant and his

associates. This right is an attribute of disciplinary control

exercised by an employer on his employees.

56. Construction adopted on contents of Ex.MW3/1

is based on the standards of presumed intent of parties.

The construction, so put, with an idea to perserve the will

of the parties to Ex.MW3/1. It is the duty of a court or

tribunal to give effect to the intention of the parties in

constructing a written instrument. Ascertaining general

scope of Ex.MW3/1, intention of the parties contained

therein, nature of the instrument and legal right of the

parties thereto, it is concluded the efforts were made by

the University to hide the truth with a view to project a

make-believe instrument of engaging personnel through

the Contractor. In fact the University retained

administrative and disciplinary control over the contract

employees. When veil was lifted, it emerged that Ex.MW3/

1 is sham and bogus. There are realties of relationship of

employer and employees between the University and the

claimant and his other 69 colleagues. In view of the forgoing

reasons, it is concluded that the veil of Ex.MW3/1 is a

smoke-screen, which would not snap relationship between

the University and the claimant and his colleagues.

Aforesaid two issues are accordingly answered.

Issue No. 3

57. Dr. S.S. Bisth announces that with effect from

1.11.2007 contract for providing housekeeping services

was given to the New Contractor. He asserts that owing to

illegal demands of the claimant and his colleagues, the

New Contractor did not engage them. Thereafter

housekeeping staff, including the claimant, resorted to

illegal demonstration. A suit of injunction was filed, which

was decreed by the High Court of Delhi. Certified copy of

judgement dated 13.3.2009 has been proved as Ex.MW3/1,

by Shri Shiv Prakash.

58. Whether above facts would espouse the cause

of the University? Answer lies in negative. As held above,

the claimant was an employee of the University, which

proposition restrains the University from awarding

housekeeping services to the New Contractor. In the garb

of award of housekeeping services to the New Contractor,

the University dispensed with the services of the claimant

and his colleagues. Action of the University squarely falls

within the ambit of definition of retrenchment, as contained

in sub-section (00) of section 2 of the Act. No case was

projected that the case of University falls within the

exceptions, contained therein. Therefore, it is crystal clear

that the action of the University amounts to retrenchment.

As per own admission of the University, the claimant

rendered services w.e.f. 1.11.2004 till 31.10.2007, as an

employee of the Contractor. Thus it is clear that he rendered

continuous service of more than 240 days in a calendar

year, as contemplated by section 25-B of the Act. When an

employee renders services Of more than one year, he is

entitled to protection/benefits contained in section 25-F of

the Act. Out of facts of the present controversy, it emerges

that services of the claimant were done away in violation

of the provisions of section 25-F of the Act. It is not the

case of the University that one month's notice or pay in

lieu thereof and retrenchment compensation was paid to

the claimant and other similarly situated employees.

Requirements contained in section 25-F of the Act are

mandatory and non-compliance thereof makes the action

of the employer illegal. Hence action of the University in

terminating services of the claimant, in the garb of awarding

contract of housekeeping services to the New contractor,

is illegal and unjustified.

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59. Whether judgment Ex. MW/5 would come to the

rescue of the University? Answer lies in negative. Memo

of parties tell that neither the claimant nor his colleagues

were party to that suit. The suit was field in respect of a

cause of action of civil nature. Even otherwise judgment

Ex.MW2/5 would not operate as res-judicata in the present

controversy. Law contained in section 11 of the Code of

Civil Procedure 1908 (in short the Code) embodies the

doctrine of res-judicata or the rule of conclusiveness of a

judgement, as the point decided either of fact, or of law, or

of fact and law, in every subsequent suit between the same

parties. It enacts that once a matter is finally decided by a

competent court, no party can be permitted to reopen it in

a subsequent litigation. The doctrine of res-judicata has

been explained in the simplest possible manner by Das

Gupta J. in the case of Statyadhyan Chosal (AIR 1960 S.C.

941) in the following words:

"The principle of re-judicata is based on the need of

giving a finality to judicial decision. What it says is

that once a res-is judicata, it shal not be adjudged

again. Primarily it applies as between past litigation

and future litigation. When a matter—whether on a

question of fact or a question of law—has been

decided between two parties in one suit or proceeding

and the decision is final, either because no appeal

was taken to a higher court or because the appeal

was dismissed, or no appeal lies, neither party will be

allowed in a future suit or proceedings between the

same parties to convass the matter again''.

60. It is not every matter decided in a former suit that

will operate as res-judicata in a subsequent suit. To

constitute a matter res-judicata under section 11 of the

Code, the following condition must be satisfied:

1. The matter directly and substantially in issue in

the subsequent suit must be the same matter which was

directly and substantially in issue either actually or

constructively in the former.

2. The former suit must have been a suit between the

same parties or between parties under whom they or any of

them claim.

3. Such parties must have litigating under the same

title in the former suit.

4. The court which decided the former suit must be a

court competent to try the subsequent suit or the suit in

which such issue is subsequently raised.

5. The matter directly and substantially in issue in

the subsequent suit must have been heard and finally

decided by the court in the former suit.

61. Section 11 of the Code bars trial of any suit as

well as an issue which had been decided in a former suit.

Issues are of three kinds: (i) Issue of fact; (ii) Issue of law;

and (iii) Mixed issues of law and fact. A decision on an

issue of fact, however erroneous it may be, constitutes

res-judicata between the parties to the previous suit and

cannot be reagitated in collateral proceedings. Law to this

effect was laid in Mathura Prashad (1970 (1) SCC 613). A

mixed issue of law and fact also, for the same reasons,

operates as res-judicata.

62. To invoke-plea of res judicata it should be shown

that the court which decided the former suit must have

been a court competent to try the subsequent suit. Thus,

the decision in a previous suit by a court, not competent to

try the subsequent suit, will not operate as res judicata.

The expression ''competent to try'' means "competent to

try the subsequent suit if brought at the time the first suit

was brought''. In other words, the relevant point of time for

deciding the question of competence of the court is the

date when the former suit was brought and not the date

when the subsequent suit was filed. In order that a decision

in a former suit May operate as res judicata, the court which

decided that suit must have been either—(a) a court of

exclusive jurisdiction, or (b) a court of limited jurisdiction;

or (c) a court of concurrent jurisdiction.

In industrial jurisdiction principles analogus to

res-judicata are applicable.

63. Now it would be considered as to whether the

hight Court is competent to try on industrial dispute, relating

to rights and liabilities created under the Act. Such

proposition was raised before the Apex Court in Premier

Authomobiles Ltd. (1975 (II) LLJ. 445), wherein following

principles were enunciated:

"(I) If the dispute is not an industrial dispute, nor does it

relate to enforcement of any other right under the

Act the remedy lies only in the Civil Court.

(II) If the dispute is an industrial dispute arising out of a

right or liability under general or common law and

not under the Act, the jurisdiction of the Civil Court

is alternative, leaving it to the election of the suiter

concerned to choose his remedy for relief which is

competent to be granted in a particular remedy.

(III) If the industrial disptue relates to the enforcement of

a right or an lbligation created under athe Act, then

the only remedy available to the suiter is to get an

adjudication under the Act.

(IV) If the right which is sought to be enforced is a right

created under the Act such as Chapter V-A then the

remedy for enforcement is either section 33-C or the

raising of an industrial dispute, as the case may be.''

However, in relation to Principle No. 2, the Court

added that "there will hardly be a dispute which will be an

"industrial dispute'' within the meaning of section 2(k) of

the Act and yet will be arising out of a right or liability

under the general or common law only and not under the

Act''.

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64. In Rajasthan State Road Transport Corporation

(1955 Lab. I.C. 2241), the Apex Court analysed the earlier

dicta and re-stated the law a sfollows:

"(1) where the dispute arises from general law of

contract, i.e., where reliefs are claimed on the basis

of the general law of contract, a suit filed in civil

court cannot be said to be not maintainable, even

though such a dispute may also constitute an

"industrial dispute'' within the meaning of Section 2(k)

or Section 2-A of the Industrial Disputes Act, 1947.

(2) Where, however, the dispute involves

recognition, observance or enforcement of any of the rights

or obligations created by the Industrial Disputes Act, the

only remedy is to approach the forums created by the said

Act.

(3) Similarly, where the dispute involves the

recognition, observance or inforcement of rights and

obligations created by enactments like Industrial

Employment (Standing Orders) Act, 1946 which can be called

'sister enactments' to Industrial Disputes Act and which

do not provide a forum for resolution of such disputes, the

only remedy shall be to approach the forums created by

the Industrial Disputes Act provided they constitute

industrial disputes within the meaning of Section 2(k) and

Section 2-A of Industrial Disputes Act or where such

enactment says that such dispute shall be either treated as

an Industrial dispute or says that it shall be adjudicated by

any of the forum created by the industrial Disputes Act.

Otherwise, recourse to Civil Court is open.

(4) It is not correct to say that the remedies provided

by the Industrial Disputes Act are not equally effective for

the reason that access to the forum depends upon a

reference being made by the appropriate government. The

power to make a reference conferred upon the government

is to be exercised to effectuate the object of the enactment

and hence not unguided. The rule is to make a reference

unless, of course, the dispute raised is a totally frivolous

one ex-facie. The power conferred is the power to refer and

not the power to decide, though it may be that the

government is entitled to examine whether the dispute is

ex- facie frivolous, not meriting an adjudication.

(5) Consistent with the policy of law aforesaid, we

commend to the Parliament and State Legislatures to make

a provision enabling a workman to approach the Labour

Court/Industrial Tribunal directly—i.e., without the

requirement of a reference by the Government—in case of

industrial disputes covered by Section 2-A of the Industrial

Disputes Act. This would go a long way in removing the

misgivings with respect to the effectiveness of the remedies

provided by the Industrial Disputes Act.

(6) The certified Standing Orders framed under and

in accordance with the Industrial Employment (Standing

Orders) Act, 1946 are statutorily imposed conditions of

service and are binding both upon the employers and

employees, though they do not amount to "statutory

provisions". Any violation of these Standing Orders

entitles an employee to appropriate relief either before the

forums created by the Industrial Disputes Act or the Civil

Court where recourse to Civil Court is open according to

the principles indicated herein.

(7) The policy of law emerging from Industrial

Disputes Act and its sister enactments is to provide an

alternative dispute resolution mechanism to the workmen,

a mechanism which is speedy, inexpensive, informal and

un-encumbered by the plethora of procedural laws and

appeals and revisions applicable to civil courts. Indeed,

the powers of the Courts and Tribunals under the Industrial

Disputes Act are far more extensive in the sense that they

can grant such relief as they think appropriate in the

circumstances for putting an end to an industrial dispute."

65. Facts detailed in preceding sections make out

that the rights which the claimant claim and obligations

which are imposed on the University arise out of rights

and obligations created by the Act. An industrial dispute

within the meaning of section 2(k) was referred for

adjudication by the appropriate Government to this

Tribunal, invoking its powers under clause (d) of sub-

section (1) of section 10 of the Act, High Court is not

competent to adjudicate an industrial dispute. Hence,

Principle 2, referred in para 63 and Principle 1 referred in

para 64 do not come into play. Therefore, judgment Ex.MW2/

5 cannot operate as res-judicata. It would not restrain the

claimant in any manner, from agitating his claim against the

Univsersity.

66. It is well settled that negative language used in

section 25-F of the Act imposes a mandatory duty on the

employer, which is condition precedent to retrenchment of

a workman. Contravention of mandatory requirements of

section 25-F of the Act would invalidate the retrenchment

and render it void ab initio. Reference can be made to the

precedents in Auro Engineering (Pvt.) Ltd., Nasik (1992

Lab. I.C. 1364) and Ollur Regional lmitation Diamond

Manufacturing Industrial Co-op. Society Ltd. (1933 (ii) LLJ

174). As detailed above, retrenchment of the claimant is

illegal and void ab initio. Issue is, therefore, answered in

favour of the claimant and against the University.

Relief.

67. As concluded above, the claimant was engaged

by the University through the Contractor by way of creation

of make believe contract agreement, which was a perfect

paper arrangement. On lifting of veil, the University was

found to be the real employer. His services were disengaged

under the garb of award of housekeeping service agreement

to the New Contractor. His retrenchment was found to be

void ab initio. He, being an employee of the University

cannot be retrenched by the Contractor or the New

S-3\E\4735RR\4735RR

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THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

Contractor. He is deemed to be in the service of the

University Question comes whether he is entitled to full

back wages. For an answer is his favour, he was under an

obligation to establish that he remained un-employed since

the date of his retrenchment. No evidence has been

adduced by the claimant on that point. Thus it cannot be

said that he remained unemployed, since the date of

dispensing with his services by the University. The Apex

Court and High Courts dealt with the issue of award of

compensation, when reinstatement in service was not found

expedient. Those precedents may help the Tribunal in

ascertaining the quantum of back wages, which may be

awarded to the claimant. In S.S. Shetty (1957 (11) LLI 696)

the Apex Court indicated some relevant factors which an

adjudicator has to take into account in computing

compensation in lieu of reinstatement, in the following

words:

"The industrial Tribunal would have to take into

account the terms and conditions of employment,

the tenure of service, the possibility of termination

of the employment at the instance of either party, the

possibility of retrenchment by the employer or

resignation or retirement by the workman and even

of the employer himself ceasing to exist or of the

workman being awarded various benefits including

reinstatement under the terms of future awards by

industrial Tribunal in the event of industrial disputes

arising between the parties in future....In computing

the money value of the benefits of reinstatement, the

industrial adjudicator would also have to take into

account the present value of what his salary, benefits

etc. would be till he attained the age of superannuation

and the value of such benefits would have to be

computed as from the date when such reinstatement

was ordered under the terms of the award.

Having regard to the considerations detailed above,

it is impossible to compute the money value of this benefit

of reinstatement awarded to the appellant with mathematical

exactitude and the best that any tribunal or court would do

under the circumstances would be to make as correct as

estimate as is possible bearing, of course in mind all the

relevant factors pro and con".

68. A Divisional Bench of the Patna High Court in B.

Choudhary (1983) Lab. I.1755 (1758) deduced certain

guidelines which have to be borne in mind in determining

the quantum of compensation viz. (i) the back wages

receivable; (ii) compensation for deprivation of the job with

future prospect and obtainability of alternative

employment; (iii) employee's age (iv) Length of service in

the establishment; (v) capacity of the employer to pay and

the nature of the employer's business; (vi) gainful

employment in mitigation of damages; and (viii)

circumstances leading to the disengagement and the past

conduct. These factors are only illustrative and not

exhaustive. In addition to the amount of compensation, it

is also within the jurisdiction of the Tribunal to award

interest on the amount determined as compensation.

Furthermore, the rate of such interest is also in the

discretion of the Tribunal. Reference can be made to Tabesh

Process, Shivakashi (1989 Lab.I.C.1887).

69. In Assam Oil Co. Ltd. [1960 (1) LLJ 587] the Apex

Court took into account countervailing facts that the

employer had paid certain sums to the workmen and her

own earning in the alternative employment and ordered

that "it would be fair and just to direct the appellant a

substantial sum as compensation to her". In Utkal

Machinery Ltd. [1966 (1) LLJ 398] the amount of

compensation equivalent to two year salary of the employee

awarded by the industrial Tribunal was reduced by the

Supreme Court to an amount equivalent to one year salary

of the employee in view of the fact that she had been in

service with the employer only for 5 months and also took

into consideration the unusual manner of her appointment

at the ibnstance of the Chief Minister of the State. In

A.K. Roy [1970 (1) LLJ 228] compensation equivalent to

two years salary last drawn by the workmen was held to be

fair and proper to meet the ends of justice. In Anil Kumar

Chakaraborty [1962 (ii) LLJ 483] the Court converted the

award of reinstatement into compensation of a sum of Rs.

50,000/- as just and fair compensation in full satisfaction of

all his claims for wrongful dismissal from service. In O.P.

Bhandari [1986 (ii) LLJ 509], the Apex Court observed that

it was a fit case for grant of compensation in view of

reinstatement. The Court awarded compensation equivalent

to 3.33 years salary as reasonable. In M.K. Aggarwal

(1988 Lab.I.C.380), the Apex Court though confirmed the

order of reinstatement yet restricted the back salary to 50%

of what would otherwise be payable to the employee. In

Yashveer Singh (1933 Lab.I.C.44) the court directed

payment of Rs. 75,000/- in view of reinstatement with back

wages. In Naval Kishor [1984 (ii) LLJ 473] the apex Court

observed that in view of the special circumstances of the

case adequate compensation would be in the interest of

the appellant. A sum of Rs. 2 lac was awarded as

compensation in lieu of reinstatement. In Sant Raj

[1985 (ii) LLJ 19] a sum of Rs. 2 lac was awarded as

compensation in lieu of reinstatement. In Chandu Lal

(1985 Lab.I.C.1225) a compensation of Rs. 2lac by way of

back wages in lieu of reinstatement was awarded. In Ras

Bihari (1988 Lab.I.C.107) a compensation of Rs. 65,000/-

was granted in lieu of reinstatement, since the employee

was gainfully employed elsewhere. In V.V. Rao (1991

Lab.I.C.1650) a compensation of Rs. 2.50 lac was awarded

in lieu of reinstatement.

70. The claimant rendered continuous four years'

service to the University, when he was illegally retrenched.

He had to fight for about four years for redressal of his

grievances. The circumstances in which he was retrenched

and mass unemployment prevalent in economic field which

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may come in the way when some one goes for an alternative

employment, besides other factors of this case persuade

me to award 20 percent back wages from the date of

retrenchment till the date the award becomes operative

under section 17-A of the Act, besides reinstatement of the

claimant in the service of the University, with continuity

and all consequential benefits. An award is, accordingly,

passed. It be sent to the appropriate Government for

publication.

Dr. R.K. YADAV, Presiding Officer

Dated: 09-12-2011.

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New Delhi, the 1st February, 2012

S.O..822.—In pursuance of Section 17 of the

Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 08/2010)

of the Central Government Industrial Tribunal cum Labour

court No.1 New Delhi as shown in the Annexure, in the

Industrial dispute between the Vice Chancellor, Indira

Ghandhi National Open University and their workman,

which was received by the Central Government on

01.02.2012.

[F. No. L-42012/93/2009-IR(DU)]

RAMESH SINGH, Desk Officer

ANNEXURE

BEFORE DR. R.K. YADAV, PRESIDING OFFICER,

CENTRAL GOVT. INDUSTRIAL TRIBUNAL NO. 1,

KARKARDOOMA COURTS COMPLEX: DELHI

I.D. No. 8/2010

Shri Suraj S/o Shri Ram Sarup,

H.No. 129, Balmiki Basti,

Vill. Maidan Garhi

New Delhi-63.

Versus

Claimant

The vice Chancellor,

Indira Gandhi National Open University,

R.No. 1, Block No. 8, Maidan Garhi,

New Delhi-110068.

Management

AWARD

Indira Gandhi National Open University (herein after

referred to as the University) was established in the year

1985 to provide cost effective and quality education to

large sections of people, including those living in remote

and far flung areas, through distance education

programmes. The University functions not only within the

boarders of the country but offers education programmes

in at least 35 countries. Besides Regional Centres across

the country and in foreign countries, the University has its

Central Campus at Maidan Garhi, New Delhi, which is spread

over an area of 151.32 acres of land. At its Central Campus,

the University has a strength of about 800 officers/officials

working there.

2. The University requires considerable man-power

to carry out housekeeping services, which includes cleaning

and sanitation activities, Hosekeeping services are out-

sourced by the University through a private contractor. In

the year 2004, the University awarded contract for

housekeeping services to Sybex Computer Systems (Pvt.)

Ltd. (in short the Contractor). The Contractor engaged

around 70 sweepers and cleaners to carry out its contractual

obligations. On 1st November 2007, the University awarded

contract for housekeeping services to Spick & Span

Facilities Management (Pvt.) Ltd. (in short the New

Contractor). Initially the New Contractor decided to retain

services of the sweepers and cleaners engaged by the

Contractor. But negotiations between the New Contractor

and employees of the Contractor turned into a complete

fiasco. Sweepers and cleaners resorted to agitation and sat

on "dharna" outside the gate of Maidan Garhi Camput of

the University. Legal wrangle started between the

University and the agitators. Efforts were made from either

side to wrench one's opponent.

3. Resort to the jurisdiction of Conciliation Officer

was taken by the sweepers and cleaners, by way of filing

their respective claim statements. Conciliation Officer

initiated conciliation proceedings, as contemplated by sub-

section (1) of section 12 of the Industrial Disputes Act,

1947 (in short the Act). No settlement could arrive at between

the parties and a failure report was submitted to the

appropriate Government. On consideration of the failure

report. submitted, the appropriate Government referred the

dispute to this Tribunal for adjudication, invoking its powers

under clause (d) of sub-section (1) of section 10 of the Act,

vide order No. L-42012/93/2009-IR(DU) New Delhi

dated 07th January, 2010, following terms:

"Whether the Action of the management of Indira

Gandhi National Open University, in terminating the

services of their workman Shri Suraj w.e.f. 01/11/2007

is legal and justified? If not, what relief the workman

is entitled to?"

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THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

4. Shri Suraj claims in his claim statement that he was

working with the University as "Safai Karmchari" in its

hosuekeeping department since 1.11.999. He had rendered

more than 240 days continuous service with the University.

At the time of entering into the services of the University,

he was asked to fill in certain forms, which forms duly filled

and signed by his are in the custody of the University. No

appointment letter was issued in his favour, inspite of his

request in that behalf. Since inception of his engagement,

the University had indulged into unfair labour practices

and flouted implementation of labour laws concerning his

service conditions. At times he, alongwith his colleagues,

was kept at its rolls by the University, while during

intermittent spells his services were transferred at the roll

of one contractor or the other. This device was adopted

with a view to discount his continuity in service and

seniority in employment so that liability to pay retrenchment

compensation under the Act and other benefits under

various labours laws may be avoided.

5. Contributions towards social securities, namely,

ESI, medical benefits and provided fund were deducted

from his wages by the University, pleads the claimant.

Despite payment of contribution towards above social

securities, the University never issued any medical card

and provident fund statement or account number, but

passed on that responsibility on the shoulders of the

Contractor. Facility of earned annual, privileged, casual,

weekly off, festival and medical leaves were not accorded.

Though work was taken on Sundays and holidays from

him but no compensatory leave or overtime wages were

given to him. He used to get wages at the rate of Rs. 172/-

per days, amounting to somewhere near to Rs. 4500/- per

month.

6. On 1st November 2007, the University decided to

place his services at the disposal of a contractor, whose

engagement for housekeeping work was neither

communicated nor he was introduced to him. To his uttar

surprise a contractor saurfaced on scene and told him and

his colleagues that he will pay them Rs. 3470/- each per

month. He announced that interested persons may stay at

work-place and other may leave for good. The claimant

and his colleagues wanted to see the Vice-Chancellor to

appraise him of their grievances, but they were stopped at

the gate of the University campus. Services of the claimant

and others were terminated. The University called some

anti-social elements and got sever beatings administered

to him and his colleagues at their hands. Police was also

called by the University authorities, to keep their hands

clean.

7. The University had not served one month notice

nor paid wages in lieu of the notice. Retrenchment

corporation was also not paid to him. His services were

not done away on infliction of punishment for a disciplinary

action, hence action of the University is violative of the

provision of the Act and principles of natural justice. He

claims reinstatement in the services of the University with

continuity and consequential benefits.

8. The University demurs the claim pleading that the

claimant was never employed by it. No salary/wages or

other emoluments were paid by it to the claimant. There

existed no relationship of employer and employee between

the parties. Hence there was no occasion for the University

to terminate services of the claimant. In view of these facts,

reference order is improper and claim statement is liable to

be rejected, pleads the University.

9. To outsource housekeeping services, the

University engaged services of the Contractor, vide

agreement dated 1.11.2004, which agreement was extended

upto 31.10.2007. The claimant was working with the

Contractor to provide housekeeping services at the campus

of the University. The Contractor is essential and proper

party, pleads the University. In agreement entered into

between the Contractor and the University it was stipulated

that employees of the Contractor at no point of time would

be treated as employees of the University. The University

laid emphasis on a few clauses of the agreement, which are

extracted thus:

"12. Provider shall continue to be responsible for the

personnel employed by him, in respect of terms and

conditions of their service, payment, attendance, medical

care, other disciplinary matters etc. who shall remain fully

under the administrative and financial control and

supervision of the Provider, except that the University shall

be the sole Arbitrator in respect of nature of the duties to

be entrusted to and the manner of performance of their

duties for the purpose of this Agreement.

13. The temporary personnel deployed by the

Provider of IGNOU shall at no time be treated as the

employees of the University and also shall have no claim

to be regularized in the services of the University. But the

Provider will not change the personnel once deployed by

it in the University without prior permission of the

University as the frequent changes in deployment of

temporary may hamper the day to day work of the

University.

23. There is no privity of contract by and between

the Provider and the University. The Temporary shall have

no right to make any claim against the University directly

or indirectly, monetary including wages or otherwise. The

Temporary shall also have no right to claim for any

regularization. The Temporary shall also have no claim

against the University of any dues, statutory or otherwise.

Similarly, even the representative of any Temporary who

have worked in the University shall have no right or claim

against the University.

24. The Provider has to ensure that the Temporaries

deployed are not forming any Association/Forum in respect

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of IGNOU matter nor they should be allowed to join in any

Association/forum of IGNOU.

25. The Provider has to ensure timely deployment of

Temporaries as required by IGNOU and fulfil other

obligation stated in the above said terms and conditions

failing which penalty will be imposed by the University on

case tocase basis from time to time. The decision of the

University will be final."

10. When contract, referred above, expired with

efflux of time, contract for housekeeping services was

awarded to the New Contractor, who initially sought to

retain the services of housekeeping staff for his own

contract. However, owing to illegal and unjustified demands

of the housekeeping staff, the New Contractor did not

engage the claimant and his other colleagues. The claimant

and his colleagues resorted to illegal demonstration in the

University premises. A civil suit being CS(OS) No. 83 of

2008 was instituted before High Court of Delhi. The High

Court passed an interim injunction order on 15.1.2008

against the housekeeping staff and ultimately decreed the

suit on 13.3.2009.

11. The University had denied all allegations levelled

by the claimant in his claim statement. It is pleaded that

the claimant knew his status, being an employee of the

Contractor. His services were terminated by the Contractor

and the University has no role to pay in so called termination

of his services. His claim against the University is illegal,

unwarranted and unjustified. It is pleaded that his claim

may be dismissed.

12. An application moved by the University, to

implead the Contractor as a party, was declined vide order

dated 20.4.2010.

13. On pleadings of the parties, following issues were

settled:

1. Whether there was relationship of employe and

employee between the claimant and the management?

2. Whether the claimant was an employer of Sybex

computer System Pvt. Ltd., the Contractor?

3. As in terms of reference.

4. Relief.

14. To discharge onus resting on him, the claimant

examined himself and closed his evidence. The University

examined Smt. Bimla Madan, Shri Shiv Prakash, Dr. Bisht

and Shri Ashok Kumar Gupta to substantiate its case.

15. Arguments were heard at the bar at length. Shri

V.N. Kaushik, assisted by Ms. Sulekha Thakur, authorised

representative, advanced arguments on behalf of the

claimant. Shri V.K. Rao, assisted by Shri Aly Mirza,

authorised representative and Vibhas Vaibhav, asstt.

Registrar (Law), raised submission on behalf of the

University. I have given my careful considerations to the

submissions made at the bar and cautiously perused the

record. My findings on issues involved in the controversy

are as follows:

Issue No. 1` & 2.

16. Affidavit Ex. WW1/A was tendered as evidence

on behalf of the claimant, wherein he sweared that he was

in the employment of the University as "Safai Karamchari"

since 1.11.1999. It has been projected in Ex. WW1/A that

he rendered more than 11 years service with the University

Other facts detailed in Ex. WW1/A are facsimile of contents

of claim statement, which has been proved as Ex. WW1/

M1. He candidly admitted his signatures on documents Ex.

WW1/M2 to Ex. WW1/M11.

17. Smt. Bimla Madan unfolds that Regional Office

of the Employers' Provident fund Organisation had given

code number as DL-24878 to the Contractor, while code

number 2136 was given to Shri Suraj, the employee of the

above company. Name of Suraj appears in statements of

contributions Ex. MW1/1 and Ex. MW1/2, filed by his

employer for the period 1.4.2005 to 31.3.2006 and 1.4.2006

to 31.3.2007 respectively.

18. Shri Shiv Prakash entered the witness box to

prove copy of plaint, filed by the University before High

Court of Delhi, written statement of defendant No. 3 to 6,

affidavit of Shri U.S. Tolia tendered as evidence in that

case, interim order dated 15.1.2008 and judgment dated

13.3.2009 passed by Justice Ms. Rekha Sharma. These

documents are proved as Ex. MW2/1 to MW2/5

respectively. He clarified that no appeal was preferred

against the judgment Ex. MW2/5.

19. Dr. S.S. Bisht tendered his affidavit Ex. MW3/A

as evidence, wherein he announced that the claimant was

never appointed by the University in its services. No salary

was ever paid to him. Services of the Contractor were availed

to outsource housekeeping services vide agreement dated

1.11.2004, which was subsequently extended upto

31.10.2007. The claimant was working with the Contractor.

With effect from 1.11.2007 contract to provide housekeeping

services was awarded to the New Contractor. He projects

that when he was not engaged by the New Contractor, he

alongwith his colleagues resorted to illegal demonstration

in the premises of the University. Story of filing civil suit

and orders thereon have been re-affirmed by Dr. Bisht. Being

and employee of the Contractor, he had filed a wrong claim

statement, which is liable to be dismissed, asserts Dr. Bisht.

20. Shri Ashok Kumar Gupta details that the

University was maintaining an account with Maidan Garhi

branch of the Punjab National Bank. The University had

issued cheques in favour of the Contractor, details of

those cheques are given Ex. MW4/A. He identifies

signatures of Shri Mohan Lal, Branch Manager, on Ex.

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MW3/21 and announces that contents of that document

are true and correct, as he himself had checked the records.

21. When facts testified by the claimant, Smt. Bimla

Madan, Dr. S.S. Bisht and Ashok Kumar Gupta are

appreciated, it came to light that the claimant had detailed

that he was in the service of the University since 1999.

Self-serving words, deposed by the claimant, could not

withstand rigors of cross-examination, wherein he admitted

that Ex.WW1/M2, Ex WW1/M3, Ex. WW1/M4, Ex. WW1/

M5, Ex. WW1/M6. Ex. WW1/M7, Ex. WW1/M8, Ex. WW1/

M9, Ex. WW1/M10 and Ex. WW1/M11 bear his signature.

When perused it came to light that Ex. WW1/M4 to Ex.

WW1/M11 are wage-sheets of the Contractor, though

which salary of the claimant and his colleagues were

released by the former in their favour. These documents

project his to be an employee of the Contractor. Thus by

an admission of his signatures on above document he

allowed a fact to spill over, which demolishes his case of

being an employee of the University. Ex. WW1/M2 is also

photocopy of scrolls through which payments were

released by the Contractor to the claimant and his

colleagues. In the end he gave in and deposed that he was

not aware as to who engaged him. However he made a

faint attempt to project his cause when he asserted that he

used to work for the University. Conspectus of above facts

spill the beans and announce him to be an amployee of the

Contractor.

22. Dr. S.S. Bisht erected castle for the University

brick by brick when he deposed that the claimant was

working with the Contractor, whom housekeeping services

were outsourced vide agreement dated 1.11.2004, copy of

which is Ex. MW3/1. This agreement was extended upto

31.10.2007. When aforesaid contract expired, contract for

housekeeping services was awarded to the New Contractor,

vide agreement Ex. MW3/2. When New Contractor did not

engage the services of the claimant and his colleagues,

they resorted to illegal demonstration in the premises of

the University. The Contractor used to raise his bills, to

whom payment were made through cheques Ex. MW3/5,

Ex. MW3/6, Ex. MW3/7, Ex. MW3/8, Ex. MW3/9 and Ex.

MW3/10, deposes the witness. Some of the bills raised by

the Contractor, besides sanction accorded by the

University are Ex. MW3/11, Ex. MW3/12, Ex. MW3/13, Ex.

MW3/14, Ex. MW3/15, Ex. MW3/16, Ex. MW3/17, Ex. MW3/

18 and Ex. MW3/19, Dr. Bisht detailed. Payments were made

to the Contractor through cheques, which were honoured

and cleared and letter Ex. MW3/21 was written by the bank

in that regard. He had proved list of contractor as Ex. MW3/

W2, to whom the work was awarded by the University

since 16.12.1991 till date. Out of facts unfolded by Dr.

Bisht it came over the record that the University had

outsourced housekeeping services since 1.6.12.1991. On

1.11.2004 work was awarded to the Contractor and on

1.11.2007 it was awarded to the New Contractor. Claimant

was an employee of the Contractor, who used to pay wages

to him. Smt. Bimla Madan gives re-affirmation to facts

unfolded by Dr. Bisht. She had proved statements of

contribution, filed by the Contractor in the Regional Office

of the Employees' Provident Fund Organisation, in which

statement name of the claimant does appear as an employee

of the Contractor. Shri Ashok Kumar Gupta proves various

payments made by the University to the Contractor, details

of which are enlisted in Ex. MW3/21. Sequence of events,

brought over the record through the depositions of

aforesaid witnesses and documents proved by them,

highlight that the claimant was an employee of the

contractor, who used to make payment of his salaries to

him. It was the contractor who was his pay master.

23. Whether the claimant, who was an employee of

the Contractor, can maintain a dispute against the

University? For an answer to this proposition, the Tribunal

has to take note of the law contained in senction 10 of the

Contract Labour (Regulation and Abolition) Act, 1970 (in

short the Contract Labour Act), which makes provision for

prohibition of employment of contract labour. For sake of

convenience provisions of section 10 of the Contract

Labour Act are reproduced Thus:

"10. Prohibition of employment of contract labour:—

(1) Notwithstanding anyting contained in this Act,

the appropriate Government may, after consultation with

the Central Board or, as the case may be, a State Board,

prohibit, by notification in the Official Gazette, employment

of contract labour in any process, operation or other work

in any establishment.

(2) Before issuing any notification under sub-section

(1) in relation to an establishment, the appropriate

Government shall have regard to the conditions of work

and benefits provided for the contract labour in that

establishment and other relevant factors, such as—

(a) whether the process, operation or other work is

incidental to, or necessary for the industry, trade,

business, manufacture or occupation that is carried

on in the establishment,

(b) whether it is of perennial nature, that is to say, it is of

sufficient duration having regard to the nature of

industry, trade, business, manufacture or occupation

carried on in that establishment;

in that establishment or an establishment similar

thereto;

(d) whether it is sufficient to employ considerable

number of whole-time workmen. Explanation — If a

question arises whether any process or opereation

or other work is of perennial nature, the decision of

the appropriate Government thereon shall be final."

24. As emerge out of the provisions of sub-section

(1) of section 10 of the Contract Labour Act, the appropriate

government may, by notification in the official gazette,

prohibit employment of contract labour in any process, in

any process, operation or other work in any establishment.

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When employment of contract labour is prohibited, by

issuance of a notification in official gazettee by the

appropriate Government, what would be the status of the

contract labour employed in the establishment? Such a

question arose before the Apex Court in Steel Authority of

India Ltd. [2001 (7) S.C.CI]. The Apex Court ruled therein

that therein that there cannot be automatic absorption of

contract labour by prncipal employer on issuance of

notification by the appropriate Government on abolition of

contract labour system, under sub section (1) of section 10

of the Contract Labour Act. It would be expedition to

reproduce the law laid by the Apex Court, which is extracted

thus:

"..........they fall in three classes: (1) 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

adjudicator/court ordered abolition of contract labour

or because appropriate Government issued

notification under section 10(1) of the CLRA Act,

no automatic absorption of contract labour working

in the establishment was ordered, (2) where contract

was found to be a sham and nominal, rather a

camouflage, in which case the contract 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 case do not relate to the abolition of contrract

labour but present instance wherein the court pierce

the veil and declared the contract position as a fact

at the stage after employment of contract labour

stood prohibited, (3) where in discharge of a statutory

obligation of maintaining a canteen in an

establishment the principle employer availed the

services of the contractor the courts have held that

the contract labour would indeed be employees of

the principal employer."

25. The Court ruled that neither section 10 of the

Contract Labour Act nor any other provision in that Act,

whether expressly or by necessary implication, provides

for automatic absorption of contract labour on issuance of

a notification by the appropriate Government under sub

section (1) of section 10, prohibiting employment of

contract labour, in any process, operation or other work in

any establishment. Consequently the principal employer

cannot be required to order for absorption of the contract

labour working in the establishment concerned. It was

further ruled therein that in Saraspur Mills case [1974 (3)

SCC 66], the workman engaged for working in the canteen

run by the Cooperative Society for the appellant were the

employees of the appellant mills. In Basti Sugar Mills (AIR

1964 S.C. 355) a canteen was run in the factory by the

Cooperative Society and as such the workers working in

the canteen were held to be employees of the establishment.

The Apex Court ruled that these cases fall in class (3)

mentioned above. Judgment in Hussainbhai (1978 Lab. I.C.

1264) was considered by the Apex Court in the said

precedent and it was ruled therein that the said precedent

falls in class (2), referred above. The Apex Court concluded

that on issuance of prohibitive notification under section

10 of the Contract Labour Act prohibiting employment of

contract labour or otherwise, in an industrial dispute

brought before it by any contract labour in regard to

conditions of service, the Industrial Adjudicator will have

to consider the question whether the contractor has been

interposed either on the ground of having undertaken to

produce any given result for the establishment or for supply

of contract labour for work of the establishment under a

genuine contract or is a mere ruse/camouflage to evade

compliance of vaious beneficial legislation so as to deprive

the workers of the benefit thereunder. If the contract to be

not genuine but a mere camouflage, the so called contract

labour will have to be treated as employees of the principal

employer who shall be directed to regularize the services

of the contract labour in the establishment concerned,

subject to the conditions as may be specified by it for that

purpose.

26. As announced by the Apex Court, on issuance of

a prohibitive notification, prohibiting employment of

contract labour or otherwise in any industrial dispute

brought before it by the contract labour in regard to

conditions of his service, the industrial adjudicator will

have to consider the question whether the contrctor has

been interposed eitther on the ground of having undertaken

to produce any given result in the establishment or for

supply of the contract labour for the work of the

establishment under a genuine contract or it is a mere ruse/

camouflage to evade compliance of beneficial legislation

so as to deprive the workers of the benefits therein. Thus it

was ruled that a contract labour can raise a dispute before

the industrial adjudicator in regard to his conditions of

service and in case the contract is found to be not genuine

but a mere camouflage, the so called contract labour will

have to be treated as employees of the principal employer.

Also see Standard Vacuum Refining Co. of India Ltd. [1960

(II) LLI. 233], which was referred with approval in Steel

Authority of India.

27. In Shivnandan Sharma [1955(1) LLI 688], the

respondent Bank entrusted its Cash Department under a

contract to the Treasures who appointed cashiers,

including the appellant Head Cashier. The question before

the Apex Court Was: was the appellant a employee of the

Bank? On construction of the agreement entered into the

Bank and the Treasure, the Court laid down:

"If a master employs a servant and authorizes him to

employ a number of persons to do a particular job

and to guarantee their fidelity and efficieny for a

cash consideration, the employees thus appointed

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by the servant would be equally with the employer,

servant of the master."

In the above precedent the Apex Court for the first

time laid down the crucial test of supervision and control

for determining the relationship of employer and employee.

28. In Hussainbhai (supra) the petitioner, who was

manufacturing ropes, entrusted the work to a contractor

who engaged his own workers. When, after some time, the

workers were not engaged, they raised an industrial dispute

that they were denied employment by the petitioner. On

reference of that dispute, the labour court passed an award

against the petitioner. When matter reached the Apex Court,

on examinaion of various factors and applying the effective

control test, it was held that though there was no direct

relationship between the petitioner and the workers yet on

lifting the veil and looking at the conspectus of factors

governing employment, the naked truth, though drapped

in different perfect paper arrangement, was that the real

employer was the petitioner, not the immediate contractor.

The Apex Court stated law in following words:

"Where a worker or group of workers labours to

produce goods or services and these goods or

services are for the business of another, that other

is, in fact, the employer. He has economic control

over the workers' subsistence, skill, and continued

employment. If he, for any reason, chokes off, the

worker is, virtually, laid off. The presence of

intermediate contractor with whom alone the workers

have immediate or direct relationship ex-contractu is

of no consequence when, on lifting the veil or looking

at the conspectus of factors governing employment,

we discern the naked truth, though draped in different

perfect paper arrangement, that the real employer is

the management, not the immediate contractor***.

If the livelihood of the workmen substantially

depends on labour rendered to produce goods and

services for the benefit and satisfaction of an

enterprise, the absence of direct relationship or the

presence of dubious intermediaries or the make-

believe trappings of detachment from the

management cannot snap the real-life bond. The story

may vary but the inference defies ingenuity. The

liability cannot be shaken off. Of course, if there is

total dissociation in fact between the disowning

management and the aggrieved workmen, the

employment is, in substance and real-life terms by

another. The management's adventitious connections

cannot riden into real employment."

As noted above, this precedent does not present an

illustration of abolition of contract labour but an instance

where the Court pierced the veil and declared the correct

position to the effect that the contract labours were

employees of the principal employer and not of the

contractor.

29. In Steel Authority of India (supra) it has been

ruled that term "contact labour" is a species of workman. A

workman may be hired: (1) in an establishment by the

principal employer or by his agent with or without the

knowledge of the principal employer, or (2) in connection

with the work of an establishment by the principal employer

through a contractor or by a contractor with or without the

knowledge of principal employer. Where a workman is hired

in or in connection with the work of an establishment by

the principal employer through a contractor, he merely acts

as an agent so there will be master and servant relationship

between the principal employer and the workman. But when

a workman is hired in or in connection with the work of an

establishment by a contractor, either because he has

undertaken to produce a given result for the establishment

or because he supplies workmen for any work of the

establishment, a question might arise whether the

contractor is a mere camouflage as in Hussainbhai's case

(supra) and in Indian Petrochemicals Corporation case

[1999 (6) S.C.C. 439] etc.; if the answer is in affirmative, the

workman will be in fact an employee of the principal

employer, but if the answer is in the negative, the workman

will be a contract labour.

In view of the legal proposition, referred above, it is

concluded that the claimant can maintain this dispute

against the University since he agitates that the contract

agreement between the University and the Contractor is

sham and nominal.

30. Whether any directions for deeming the contract

labour as having become the employees of the principal

employer can be issued, when the contractor or the principal

employer had violated the provisions of the Contract

Labour Act? To find an answer, provisions of that Act are

to be examined. The Contract Labour Act regulates

conditions of workers in contract labour system and

provides for its abolition by the appropriate Government

as provided by section 10 of that Act. In regard to regulatory

measures section 7 requires the principal employer to get

itself registered, while section 12 obliges every contractor

to obtain a licence, under the provisions of that Act. Section

9 places an embargo on the principal employer of an

establishment from employing contactor labour in the

establishment, when either it is not registered or its

registration has been revoked. Section 12 of the Contract

Labour Act imposes a liability on a contractor not to

undertake or execute any work through contract labour

except under and in accordance with a licence. Sections 23,

24 and 25 make contraventions of the provisions of that

Act or Rules made thereunder penal. In Dena Nath (1992

Lab. I.C. 75) the Apex Court considered the question,

whether non-compliance of the provisions of sections 7

and 12 by the principal employer and the contractor

respectively would make the contract labour employed by

the principal employer as the employee of the latter. It was

ruled that only consequence of non-compliance either by

the principal employer of section 7 or by the contractor in

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complying the provisions of section 12 is that they are

liable for prosecution under the said Act. But the employees

employed through the contractor cannot be deemed to be

the employees of the principal employer.

31. In the Steel Authority of India (supra) the Apex

Court laid emphasis ".....the consequence of violation of

Section 7 and 12 of the CLRA Act is explicity provided in

Section 23 and 25 of the CLRA Act, it is not for the High

Courts or this Court to read in some unspecified remedy in

Section 10 or substitute for penal consequences specified

in Sections 23 and 25 a different sequel, be if absorption of

contract labour in the establishment of principal employer

or a lesser or harsher punishment. Such an interpretation

of the provisions of the statute will be far beyond the

principal of ironing out the creases and the scope of

interpretative legislation and as such, clearly

impermissible." The above authoritative pronouncements

make it clear that on violations of the provisions of the

Contract Labour Act or Rules made thereunder, the contract

labour could not be deemed to have become the employees

of the principal employer.

32. Whether this Tribunal has power to order for

abolition of contract labour system in the establishment of

the University? For an answer, legal dicta is to be

considered. Before enactment of the Contract Labour Act,

the industrial adjudicator, in appropriate cases, used to

issue directions to the establishment concerned to abolish

or modity system of contract labour. Reference can be made

to precedents in United Salt Works and Industries Ltd.

(1962 (I) LLJ. 131), Shibu Metal Works (1966 (I) LLJ. 717),

National Iron & Steel Co. (1967 (II) LLJ. 23) and Ghatge and

Patial (Transport) Pvt. Ltd. (1968 (I) LLJ. 566). The National

Commission on Labour (1966) in para 29.11 of its report,

enumerated those factors, on which abolition of contract

labour was ordered, thus:

"29.11. Judicial awards have discouraged the practice

of employment of contract labour, particularly when the

work is (i) perennial and must go on from day to day; (ii)

incidental and necessary for the work of the factory; (iii)

sufficient to employ a considerable number of whole time

workmen; and (iv) being done in most concerns through

regular workmen. These awards also came out against the

system of "middlemen."

33. After Contract Labour Act was brought on statute

book, the Apex count examined jurisdiction of the industrial

adjudicator to issue directions to the establishment to

abolish contract labour in Vegoils Private Ltd. (1971(2)

S.C.C. 724) and ruled that it would be proper that the

question, whether the contract labour in the appellant

industry was to be abolished or not, be left to be dealt with

by the appropriate Government under the provisions of

that Act, if it becomes necessary. The observations made

by the Court are extracted thus:

"The appropriate Government when taking action

under Section 10 will have an overall picture of the

industries carrying on similar activities and decide

whether contact labour is to be abolished in respect

of any of the activities of that industry. Therefore, it

is reasonable to conclude that jurisdiction to decide

about the abolition of contract labour, or to put

differently, to prohibit the employment of contract

labour, is now to be done in accordance with Section

10. Therefore, it is proper that the question whether

the contract labour regarding loading and unloading

in the the industry of the appellant is to be abolished

or not, is left to be dealt with by the appropriate

Government under the Act, if it becomes necessary.

On this ground, we are of the opinion that the

direction of the Industrial Tribunal in this regard will

have to be set aside.*** The legality of the direction

given by the Industrial Tribunal abolishing contract

labour in respect of loading and unloading from

May 1 1971, can also be considered from another

point of view. The Central Act, as mentioned earlier,

had come into force on February 10, 1971. Under

Section 10 of the said Act the jurisdiction to decide

matters connected with prohibition of contract labour

is now vested in the appropriate Government.

Therefore, with effect from February 10, 1971, it is

only the appropriate Government that can probibit

contract labour by following the procedure and in

accordance with the provisions of the Central Act.

The Industrial Tribunal, in the circumstances, will

have no jurisdiction, through its award dated

November 20, 1970, to give a direction in that respect

which becomes, enforceable after the date of the

coming into force of the Central Act. In any event,

such a direction contained in the award cannot be

enforceable from a date when abolition of contract

labour can only be done by the appropriate

Government in accordance with the provisions of

the Central Act."

34. In Gujrat Electricity Board (1995 (5) S.C.C. 27) the

same view was taken by the Apex Court holding that the

authority to abolish the contract labour vests in the

appropriate Government and not in court including the

industrial adjudicator. It would be apposite to reproduce

the observation of the court thus:

"53. Our conclusions and answers to the questions

raised are, therefore, as follows:

(i) In view of the provisions of Section 10 of the Act, it

is only the appropriate Government which has the

authority to abolish genuine labour contract in

accordance with the provisions of the said Section.

No Court including the industrial adjudicator has

jurisdiction to do so.

(ii) If the contract is sham or not genuine, the workmen

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of the so-called contractor can raise an industrial

dispute for declaring that they were always the

employess of the principal employer and for claiming

the appropriate service conditions. When such

dispute is raised, it is not a dispute for abolition of

the labour contract and hence the provisions of

Section 10 of the Act will not bar either the raising or

the adjudication of the dispute. When such dispute

is raised, the industrial adjudicator has to decide

whether the contract is sham or genuine. It is only if

the adjudicator comes to the conclusion that the

contract is sham, that he will have jurisdiction to

adjudicate the dispute. If, however, he comes to the

conclusion that the contract is genuine, he may refer

the workmen to the appropriate Government for

abolition of the contract labour under Section 10 of

the Act and keep the dispute pending. However, he

can do so if the dispute is espoused by the direct

workmen of the principal employer. If the workmen

of the principal employer have not espaused the

dispute, the adjudicator, after coming to the

conclusion that the contract is genuine, has to reject

the reference, the dispute being not an industrial

dispute within the meaning of Section 2 (k) of the ID

Act. He will not be competent to give any relief of

the workmen of the erstwhile contractor even if the

labour contract is abolished by the appropirate

Government under Section 10 of the Act.

(iii) If the labour contract is genuine a composite

industrial dispute can still be raised for abolition of

the contract labour and their adsorption, However,

the dispute, will have to be raised invariably by the

direct employees of the principal employer. The

industrial adjudicator, after receipt of the reference

of such dispute will have first to direct the workmen

to approach the appropriate Government for abolition

of the contract labour under Section 10 of the Act

and keep the reference pending. If pursuant to such

referene, the contract labour is abolished by the

appropriate Government, the industrial adjudicator

will have to give opportunity to the parties to place

the necessary material before him to decide whether

the workmen of the erstwhile contractor should be

directed to be absorbed by the principal employer,

how many of them and on what terms. If, however,

the contract labour is not abolished, the industrial

adjudicator has to reject the reference.

(iv) Even after the contract labour system is abolished,

the direct employees of the principal employer raise

an industrial dispute for absorption of the ex-

contractor's workmen and the adjudicator on the

material placed before him can decide as to who and

how many of the workmen should be absorbed and

on what terms".

35. In Steel Authority of India (supra) and Apex Court

had referred the precedents in Vegoils case (supra) and

Gujrat Electricity Board (supra) with approval. Thus it

emerges that power to abolish contract labour system vests

with the appropriate Government, under section 10 of the

Contract Labour Act, and not with any court including the

industrial adjudicator. This Tribunal has not been saddled

with any responsibility to abolish contract labour in an

establishment, on parameters enacted in sub-section (2) of

section10 of the Contract Labour Act.

36. Now I would turn to the facts of the present

controversy. It is not a case where an employees of a

contractor, employed in a statutory canteen, has invoked

the jurisdiction of this Tribunal. This matter, as projected

by the claimant, is left to be approached on the propostion

as to whether contract agreement entered into between the

University and the Contractor was sham and nominal. For

an answer to this proposition, it would be expendient to

examine the contract agreement which has been proved as

Ex. MW3/1 by Dr. Bisht. In construction of contents of

Ex. MW3/1, this Tribunal cannot be oblivions of the rules

viz., written instruments shall, if possible, the so interpreted

other magis valeat quam pereat" ( a liberal cosntruction

should be put upon written instruments, so as to uphold

them, if possible) and that such a meaning shall be given to

it as may carry out and effectuate to the fullest extent the

intention of the parties.

37. Elementary principle of law relative to contracts

is that parties to contracts are to be allowed to regulate

their rights and liabilities themselves and the Courts will

only give effect to the intention of the parties as it is

expressed by the contract. However the law in some cases

overrides the will of the individual and renders ineffective

and futile his expressed intention or contract. No court or

tribunal will lend its aid to a man who founds his cause of

action upon an immoral or an illegal act. A contract cannot

be made the subject of an action if it be immpeachable on

the grounds of dishonesty, or as being opposed to public

policy, if it be either cotra bonos mores, or forbidden by

law. No court or tribunal will allow itself to be made the

instrument of enforcing obligations alleged to arise out of

a contract or transaction which is illegal.

38. Whether Ex. MW3/1 contains clauses which are

contra bonos mores or forbidden by law? When perused,

clause 24 of Ex. MW3/1 makes it clear that right to form or

join an association, in respect of IGNOU matter, has been

denied to an employee of the Contractor. For sake of

convenience contents of that clause are reporduced thus:

"24. The provider has to ensure that the Temporaries

deployed are not forming any Association/Forum in

respect of IGNOU matter nor they should be allowed

to join in any Association/Forum of IGNOU."

39. Right to form association or unions is a

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fundamental right guaranteed to every citizen by clause

(1)(c) of Article 19 of the Constitution of India. Guarantee

of right to form an association or union has to be read with

clause (4) of the aforesaid Article, which permits imposition

of legal restrictions on the right in so far as such restrictions

may be reasonably reqquired in the interest of the

sovereignty and integrity of India, public order and morality.

The right to form associations or unions refers not only to

be initial commencement of the association but also to

continuation of the association as such, as it is obvious

that if an association has to be dissolved the moment it has

been formed, it cannot be said that the members have the

right to form the association. The restriction imposed by

the University on employees of the Contractor does not

answer the requirement of clause (4) of Article 19 of the

Constitution and is violative of the fundamental right

guaranted to the claimant and his colleagues.

40. There is other facet of the coin. The Act is a

legislation relating to what is known as "collective

bargaining" in the economic field. This policy is implicit in

the definition of "industrial dispute". See Titagarh Jute co.

Ltd. (1979 Lab. I.C. 513)." "An agreement between a single

employer or an association of employer on one hand and a

labour union on the other, which regulates the terms and

conditions of employment" is known as collective

bargaining agreement. The policy behind the concept of

collective bargaining is to protect workmen as a class

against unfair labour practices. A dispute of an individual

workman would acquire status of an industrial dispute if it

affect the rights of the workmen as a class. An industrial

dispute denotes two qualities which distinguish it from an

individual disput, namely (i) that the dispute relates to

industrial matter, and (ii) that on one side at least of the

dispute the disputant are a body of men acting collectively

and not individually. The clause, referred above, puts

restriction on the claimant and his colleagues to act

collectively as a body of men to protect their rights, while

working with the Contractor, who had engaged them to

produce a given result in terms of agreement Ex. MW3/1.

Contents of clause 24 of Ex. MW3/1, being unlawful, cannot

be supported at law.

41. A restriction is imposed on the claimant and his

colleagues from making any claim against the University

directly or indirectly, monetary including wages or

otherwise as contained in clause 23 of Ex.MW3/1, which is

not in conformity with the provisions of the Contract Labour

Act. Primary responsibility to pay wages to an employee

employed by a contractor rests upon the latter. But on his

failure to make payment of wages within the prescribed

period or in the event of making short payment, the principal

employer has been saddled with the responsibility to make

payment of wages in full or the unpaid balance due, as the

case may be, to the contract labour, enacts sub-section (4)

of section 21 of the Contract Labour Act. consequently

this Part of clause 23 of Ex. MW3/1 is to be discarded,

ebing violative of law.

42. In mercantile transactions stipulations are agreed

upon between the parties on principal to principal or

principal to agent basis. In both the propositions there is

privity of contract between them. Absence of privity of

contract would make them strangers to each other, in respect

of alleged covenanted or parol agreement, as the case may

be. In clause 23 of Ex. MW3/1 it is projected that there is no

privity of contract by and between the Provider (the

Contractor) and the University. The proposition referred

above is absured. Privity of contract is the relation which

exists between the immediate parties to a contract, which is

necessary to enable one person to sue another on it. It is a

relationship between persons arising under a contract.

There may be (1) privity of contract, or (2) privity of estate.

When Ex. MW3/1 is read, privity of contract between the

contractor and the Univesity emerge out. Proposition,

referred above, cannot be given effect to.

43. "Consideration" of some sort or other is so

necessary to the formation of a contract. A nudum pactum,

or agreement to do orpay something on onne side, without

any consideration on the other, will not at all support any

action, and a man cannot be compelled to perform it. To

constitute consideration, there must be an act, abstinence

or promise ont he part of promisee or some other person at

the desire of the promisor. A consideration must be valuable

and not superficial, it must be material and not sentimental

or imaginary. It must be a material detriment to the promisee

or a benefit to the promisor. Section 2 of the Contract Act

defines consideration" "when at the desire of the promisor,

the promisee or any other person, has done or abstained

from doing, or does or abstains from doing something,

such act or abstinence or promise is called a consideration

for the promise".

44. The consideration for a promise must have some

tangible value in the eye of law.Its adequacy is nto material

Though adequacy of consideration will not be examined

by the courts, yet it must not be colourable merely not

illusory. A mere more obligation arising from a past benefit

not conferred at the request of the defendant is not a good

consideration. However consideration derived from moral

obligations, in which there has been a legal right deprived

of legal remedy, the defendant would be held liable, without

putting moral duty at par with legal consideration. These

propositions may require a court or a tribunal to examine

whether there was legal consideration for the promise.2

45. Whether there is any legal consideration for the

promise made by the Contractor to the University? For an

answer contents of clause 15 of Ex. MW3/1 are to be

examined, which are extracted thus:

"15. In consideration of the obligation undertaken

by the Provider, under this Agreement, the University

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shall pay Provider charges on the basis of number of

such personnel actually deployed by the Provider

for the effective operation of this Agreement, on the

rates quoted by the Provider in their Tender based

on the direction and guidelines issued by the Local

Government (NCT ofDelhi). The rates mentioned in

Tenders are as follows:"

46. As detailed above charges on the basis of number

of personnel deployed on the rates quoted by the Contractor

in Tender based on the direction and guidelines issued by

the Local Government (NCT of Delhi) where to be paid to

him by theUnviersity. In Ex. MW3/1 those rates are not

detailed. Thus tender document becomes a part of Ex. MW3/1.

It has not been placed before the Tribunal. As detailed

above, adequacy of consideration, may prove to be beyond

the pale of jurisdiction of a civil court. But this Tribunal

has to examine adequacy of consideration to ascertain as

to whether Ex. MW3/1 is genuine and not sham and nominal.

The Tribunal is supposed to examine as to whether the

charges on the basis of number of personnel deployed on

rates quoted in tender document project minimum wages

to be paid to contract labours, besides remunerations

derived by the Contractor. Assessment of these factors

may enable the Tribunal to reach a conclusion whether the

Contractor had put his hands to Ex.MW3/1 on principal to

principal or agent to principal basis. Absence to tender

document created a vacuum. Parol evidence was brought

on record to the effect as to what payments were made to

the Contractor from time to time. But absence of facts, as to

what were the rates of minimum wages, what number of

contract labours worked in particular month, on how many

days in a month a contract labour worked, whether overtime

work was performed by a contract labour in that month,

whether a contract labour worked on Sundays, holidays

and weekly off days in a month, would leave the Tribunal

in lurch.

47. Wages that Ex. WW1/M4 to Ex. WW1/M11

project total work days of the respective months for which

the claimant worked, besides the number of days on which

remained on leave without pay. these docuemnts project

minimum rates of wages paid to him in month, out of which

deductions towards E.P.F. and E.S.O. subscriptions were

made. Bills raised by the Contractor and sanction accorded

by the University are proved as Ex. MW3/11 to Ex. MW3/

19. Cheques issued in favour of the Contractor are proved

as Ex. MW3/5 to Ex.MW/10. Despite my best efforts to

reconcile contents of documents referred above, I could

not work out the rates on which the Contractor was paid

by the University for services rendered by him. Thus

adequacy of consideration for services rendered by the

Contractor has not surfacted over the record. Vacuum of

evidence in that regard made me to comment that the

University could not establish factors in favour of

genuineness of contract agreement Ex. MW3/1.

48. Now it would be seen whether it was the

Contractor who exercised his control or supervision on the

claimant? Factors of such control and supervision were

described in various precedents, which would be noted

herein under. In Chintaman Rao (1958 (II) LLJ 252) the Apex

Court ruled that the concept of employment invovles there

ingredients: (1) employer, (2) employee, and (3) the contract

of employment. The employer is one who employs, that is,

one who engages the services of other persons. The

employee is one who works for another for hire. The

employment is the contract of service between the employer

and employee where under the employee agrees to serve

the employer subject to his control and supervision. In

Food Corporation of India (1985(II) LLJ 4) Justice Desai,

speaking for the Apex Court, announced that a contract of

employment "discloses a relationship of command and

obedience between them". Where a Contractor employs a

workman to do the work which he contracted with a third

person to accomplish, the workman of the Contractor would

not without something more become the workman of third

person.

49. In Dharangadhara Chemical Works Limited (1957

(1) LLJ 477), the Apex Court ruled that test of "supervision

and control may be taken as the prima facie test for

determining the relationship of employment." It was further

laid that existence of the right in the master to supervise

and control and work to be done by the servant, not only

matter of directing that work and servant is to do but also

the manner in which he shall do his work is the prima facie

test for determining the existence of master and servant

relationship. It was suggested that correct method of

approach, would be to consider whether having regard to

the nature of work there was due control and supervision

by the employer. The greater amount of direct control

exercise over the person rendering the services by the

person contracting for them, the stronger the ground for

holding it to be a contract of service. The control and

supervision test was realffirmed by the Apex Court in

Chintaman Rao (supra), wherein it was ruled that "worker"

was a person employed by the management and there must

be contract of service and a relationship of master and

servant between them. In Shankar Balaji Waje

(1962(1) LL 119), the Apex Court clarified that control of

management, which is a necessary element of the

relationship of master and servant is not directed towards

providing or dictating the nature of the article to be

produced or the work tobe done, but referes to the other

incidents having a bearing on theprocess of work the

person carries out in the execution of the work. The manner

of work is to be distinguished from the type of work to be

performed. In V.P. Gopala Rao (1970 (11) LLJ 59), the Apex

Court said that it is the question of fact in each case whether

the relationship of master and servant existing between

the management and the workman and there is no abstract

a priori test of the work control required for establishing

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the contract of service. It was laid therein that for holding

that the person employed in the factory were workers within

them earning of sub-section (1) of section of the Factories

Act 1948, it is to be considered that the fact that the

workman had to work in the factory implied certain amount

of supervision by the management and the nature and extent

of control varied indifferent Industries and that when the

operation was of a simple nature, the control could be

exercised at the end of the day by the method of rejecting

the bidis which did not come up to the proper standard. It

is, therefore, not surprising that in recent years, the control

test, as traditionally formulated, has not been treated as an

exclusive test. In Silver Jubilee Tailoring House (1973 (11)

LLJ 495) the Apex Court ordained that "it is in its application

to skilled and particularly professional work that control

test in its traditional form has really broken down. It has

been said that in interpreting "control" as meaning the

power to direct how the servant should do the work, the

court has been applying the concept suited to a past age".

50. During the last three decades emphasis in the

field has shifted and no longer rests so strongly upon the

question of control. Control is obviously an important factor

and in many cases it may still be a decessive factor, but it

would be wrong th say that in every case it is a decessive

factor. In Shining Tailors (1983 (11) LLJ 143), the Apex court

held that the piece rated workers working for a big tailoring

establishment were worken for the establishment. It was

observed therein that the "right of removal of the workman

or not to give work as an element of control and

supervision" which was amply satisfied to announce that

those piece rates workers were the workmen for the

establishment. The court concluded that the proposition

that "piece rate" itself indicates relationship of independent

contract, is not correct. A servant who has full liberty to

attend to his work according to his pleasure and not

according to orders of his master, is a independent

contractor. A gold smith engaged to finish jewels within a

given time and when it was open to such goldsmith to

finish jewels within the given time or earlier and engaged

themselves or others of their own were held to be

independent contractors, in K. Keswa Reddiar (1957 (1)

LLJ 645). In the like manner a goldsmith who undertook the

manufacture of ornaments like other goldsmith which he

was asked to manufacture and was entitled to receive

remuneration which would depend upon the nature of the

work done, was held to be not under the order or control of

the proprietor of the concern for whom he was doing the

work, in Achuta Achar (1968 91) LLJ 500). An agreement for

selling milk on commission wes held to be a contact for

service and not a contract of service, in Abad Dairy Doodh

Vitran Kendra Sanchalak Mandal, Ahemdabad (1989

Lab.I.C. 1770). The Tiny Deposit Agents employed in

deposit mobilization activity of the bank have been held to

be falling within the definition of the workman and not an

independent contractor in the precedent in the

Management of Indian Bank (1990 (1) LLJ 50).

51. As emerge out, element of control or supervision

of employer in respect of detail of work would be an identify

in mark of the servant. Where an employer retains the

power, not only of directing what work is to be done but

also of controlling the manner of doing the work, these

factors would be determinative of his status as of a master.

His control is not directed towards providing or dictating

the nature of work to be done but refers to other incidents

having a bearing on the process of work the person carries

out in the execution of the work. Control test postulates a

combination of managerial and technical functions.

52. Whether element of control or supervision of the

University in respect of details of work of the claimant

emerge out of contract agreement Ex.MW3/1? For an

answer, a few clauses of Ex.MW3/1 are to be scanned,

which are extracted thus:

"12. Provider shall continue to be responsible for the

personnel employed by him, in respect of terms and

conditions of their service, payments, attendance,

medical care, other disciplinary matters etc. who shall

remain fully under the administrative and financial

control and supervision of the Provider, except that

the University shall be the sole Arbitrator in respect

of nature of the duties to be entrusted to and the

manner of performance of their duties for the propose

of this Agreement.

13. The temporary personnel deployed by the

Provider to IGNOU shall at no time be treated as the

employees of the University and also shall have no claim

to be regularized in the services of the University. But the

Provider will not change the personnel once deployed by

it in the University without prior permission of the

University, as the frequent changes in deployment of

temporary may hamper the day to day work of the

University.

14. The Provider shall have to change over or replace

the temporary personnel as and when required by the

University whether or not such personnel are found guilty

of any misconduct. It shall not be necessary for the

University to assign any reason to the Provider or the

concerned Person or any other person in respect of any

such change and replacement required by the University".

53. As project above, clause 12 announces that

personnel employed by the Contractor shall remain fully

under the administrative and financial control and

supervision of the Contractor. However an exception is

there to this general proposition to the effect that the

University shall be sole arbitrator in respect of nature of

duties to be entrusted to and the manner of performance of

their duties for the purpose of the agreement under

consideration. Another exception is contained in clause 13

wherein the Contractor has been constrained not to change

the personnel once deployed without prior permission of

the University. Further exception is contained in clause 14

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wherein the Contractor is obliged to change or replace the

temporary personnel as and when required by the

University. The factors enumerated in the clauses, referred

above, make it apparent that the University retained the

power, not only of directing what work was to be done by

the claimant, but also of controlling him in respect of manner

of doing the work. Power of the Contractor to replace the

claimant from his work place was made subject to permission

of the University. Despite the choice to the Contractor to

replace the claimant he cold not do so, in case University

showed its unwillingness in that regard. Contra to it, the

Contractor was duty bound to change an employee if so

commanded by the University. Such a proposition was

not dependent on a contingency of the employee being

found guilty of any misconduct. Mere wish of the

University was to prevail in the matter. Thurs it is crystal

clear that the University retained power of allocation of

duties, besides right to control the manner of performance

of such duties by the claimant. The claimant was to work

with the University till its pleasure. The contractor could

not exercise his earnest will to change him, if not consented

by the University. If the University decided to get him

changed, for any reasons whatsoever, the contractor could

not impose him on the former, no matter his work and

conduct were satisfactory. Conspectus of these elements

make it clear that administrative control on the claimant

was with the University and not with the Contractor.

54. Contract agreement Ex.MW3/1 does not contain

any obligation on the part of the Contractor to supervise

the work of claimant. No clause is there in the document to

show that the Contractor deployed some personnel to

surpervise the work of the claimant and his other 69

colleagues. Who used to the mark attendance of the

claimant and his colleagues Ex.MW3/1 draws a blank? No

parol evidence was brought in to suggest that it was the

Contractor who supervised his work. Vacuum of facts in

Ex.MW3/1 and conspicuous absence of any ocular

evidence in that regard leave no doubt to conclude that it

were the University authorities who used to supervise the

work of the claimant and his colleagues.

55. disciplinary control is exercised by an employer

on his employees by way of codifying rules of conduct for

them. He engrafts acts of misconduct in those rules. He

punishes his employees for their blameworthy conduct. It

is so done by him with a view to maintain discipline at the

work place and to deter potential delinquent from doing

improper behavior or to come in conflict with rules of

standard of behaviour. Right to coin an act as an improper

behaviour, falling within the ambit of misconduct, was

retained by the University. It has been detailed in clause 22

of MW. 3/1 that "the University shall be sole judge as to

what is against the interest of the University as to what

constitutes misconduct". This authority to define a

behaviour to be a misconduct for a contract employee

projects that the University had clothed itself with a right

to declare a code of conduct for the claimant and his

associates. This right is an attribute of disciplinary control

exercised by an employer on his employees.

56. Construction adopted on contents of Ex/MW3/1

is based on the standards of presumed intent of parties.

The construction, so put, with an ideal to preserve the will

of the parties to Ex.MW3/1. It is the duty of a court or

tribunal to give effect to the intention of the parties in

construing a written instrument. Ascertaining general scope

of Ex.MW3/1, intention of the parties contained therein,

nature of the instrument and legal light of the parties thereto,

it is concluded that efforts were made by the University to

hide the truth with a view to project a make-believe

instrument of engaging personnel through the contractor.

In fact the University retained administrative and

disciplinary control over the contract employees. When

veil was lifted, it emerged that Ex/MW3/1 is sham and

bogus. There are realties of relationship of employer and

employees between the University and the claimant and

his other 69 colleagues. In view of the forgoing reasons, it

is concluded that the veil of Ex.MW.3/1 is a smoke-screen,

which would not snap relationship between the University

and the claimant and his colleagues. Aforesaid two issues

are accordingly answered.

57. Dr. S. S. Bisth announces that with effect from

1.11.2007 contract for providing housekeeping services was

given to the New Contractor. He asserts that owing to

illegal demands of the claimant and his colleagues, the

New Contractor did not engage them. Thereafter

housekeeping staff, including the claimant, resorted to

illegal demonstration. A suit of injunction was filed, which

was decreed by the High Court of Delhi. Certified copy of

judgment dated 13.3.2009 has proved as Ex.MW2/5, by

Shri Shiv Prakash.

58. Whether above facts would espouse the cause

of the University/ Answer lies in negative. As held above,

the claimant was an employees of the University, which

proposition restrains the University from awarding

housekeeping services to the New Contractor. In the garb

of award of housekeeping services to the New Contractor,

the University dispensed with the services of the claimant

and his colleagues. Action of the University sqularely falls

within the ambit of definition of retrenchment, as contained

in sub-section (oo) of section 2 of the Act. No case was

projected that the case of University falls within the

exceptions, contained therein, Therefore, it is crystal clear

that the action of the University amounts to retrenchment.

As per own admission of the University, the claimant

rendered services w.e.f. 1.11.2004 till 31.10.2007, as an

employee of the Contractor. This it is clear that he rendered

continous service of more than 240 days in a calendar

year, as contemplated by section 25-B of the Act. When an

employees renders services of more than one year, he is

entitled to protection/benefits contained in section 25-F

of the Act. Out of facts of the present controversy, it

emerges that services of the claimant were done away in

violation of the provisions of section 25-F of the Act. It is

not the case of the University that one month's notice or

pay in lieu thereof and retrenchment compensation was

paid to the claimant and other similarly situated employees.

Requirements contained in section 25-F of the Act are

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mandatory and non-compliance thereof makes the action

of the employer illegal. Hence action of the University in

terminating services of the claimant, in the garb of warding

contract of housekeeping services to the New Contractor,

is illegal and unjustified.

59. Whether judgment Ex. MW2/5 would come to

the rescue of the University? Answer lies in negative. Memo

of parties tell that neither the claimant nor his colleagues

were party to that suit. The suit was filed in respect of a

cause of action of civil nature. Even otherwise judgment

Ex. MW2/5 would not operate as res-judicata in the present

controversy. Law contained in section 11 of the Code of

Civil Procedure 1908 (in short the Code) embodies the

doctrine of res-judicata or the rule of conclusiveness of a

judgment, as to the point decided either of fact, or of law, or

of fact and law, in every subsequent suit between the same

parties. It enacts that once a mater is finally decided by a

competent court, no party can be permited to reopen it in a

subsequent litigation. The doctrine of res-judicata has been

explained in the simplest possible manner by Das Gupta J.

in the case of Statyadhyan Chosal (AIR 1960 S.C. 941) in

the following words:

"The principle of res-judicata is based on the need

of giving a finality to judicial decision. What it saya

is that once a res-is judicata, it shall not be adjudged

again. Primarily it applies as between past litigation

and future litigation. When a matter-whether on a

question of fact or a question of law—has been

decided between two parties in one suit or proceeding

and the decision is final, either because no appeal

was taken to a higher court or because the appeal

was dismissed, or no appeal lies, neither party will be

allowed in a future suit or proceedings between the

same parties to convass the matter again."

60. It is not every matter decided in a former suit that

will operate as res judicata in a subsequent suit. To

constitute a matter as res-judicata under section 11 of the

Code, the following conditions must be satisfied:

1. The matter directly and substantially in issue in

the subsequent in issue either actually or constructively in

the former.

2. The former suit must have been a suit between the

same parties or between parties under whom they or any of

them claim.

3. Such parties must have been litigating under the

same title in the former suit.

4. The court which decided the former suit must be a

court competent to try the subsequent suit or the suit in-

which such issue is subsequenty raised.

5. The matter directly and substaintially in issue in

the subsequent suit must have been heard and finally

decided by the court in the former suit.

61. Section 11 of the Code bars trial of any suit as

well as an isue which had been decided in a former suit.

Issues are of three kinds: (i) Issue of fact; (ii) Issue of law;

and (iii) Mixed issues of law and fact. A decision on an

issue of fact, however erroneous it may be, constitutes res

judicata between the parties to the previous suit and cannot

be reagitated in collateral proceedings. Law to this effect

was laid in Mathura Prashad (1970 (1) SCC 613). A mixed

issue of law and fact also, for the same reasons, operates

as res-judicata.

62. To invoke plea of res judicata it should be shown

that the court which decided the former suit must have

been a court competent to try the subsequent suit. Thus,

the decision in a previous suit by a court, not competent to

try the subsequent suit, will not operate as res judicata.

The expression "competent to try" means "competent to

try the subsequent suit if brought at the time the first suit

was brought". In other words, the relevant point of time for

deciding the question of competence of the court is the

date when the former suit was brought and not the data

when the subsequent suit was filed. In order that a decision

in a former suit may operate as res judicata, the court which

decided that suit must have been either—(a) a court of

exclusive jurisdiction, or (b) a court of limited jurisdiction;

or (c) a court of concurrent jurisdiction.

In industrial jurisdiction principles analogus to res-

judicata are applicable.

63. Now it would be considered as to whether the

High Court is competent to try on industrial dispute, relating

to right and liabilities created under the Act. Such

proposition was raised before the Apex Court in Premier

Automobiles Ltd.(1975(II)LLJ. 445), wherein following

principles were enunciated:

"(I) If the dispute is not an industrial dispute, not does it

relate to enforcement of any other right under the

Act the remedy lies only in the Civil Court.

(II) If the dispute is an industrial dispute arising out of a

right or liability under general or common law and

not under the Act, the jurisdiction of the Civil Court

is alternative, leaving it to the election of the suiter

concerned to choose his remedy for relief which is

competent to be granted in a particular remedy.

(III) If the industrial dispute relates to the enforcement of

a right or an obligation created under the Act, then

the only remedy available to the suiter is to get an

adjudication under the Act.

(IV) If the right which is sought to be enforced is a right

created under the Act such as Chapter V-A then the

remedy for enforcement is either section 33-C or the

raising of an industrial dispute, as the case my be."

However, in relation to Principle No.2, the Court

added that "there will hardly be a dispute which will be an

"industrial dispute" within the meaning of section 2(k) of

the Act and yet will be arising out of a right or liability under

the general or common law only and not under the Act".

64. In Rajasthan State Road Transport Corporation

(1995 Lab.IC.2241), the Apex Court analysed the earlier dicta

and re-stated the law as follows:—

"'(1) Where the dispute arises from general law of

contract i.e., where reliefs are claimed on the basis of the

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general law of contract, a suit filed in civil court cannot be

said to be not maintainable, even though such a dispute

may also constitute an "industrial dispute" within the

meaning of Section 2(k) or Section 2-A of the Industrial

Disputes Act, 1947.

(2) Where, however, the dispute involves

recognition,observance or enforcement of any of the rights

or obligations created by the Industrial Disputes Act, the only

remedy is to approach the forums created by the said Act.

(3) Similarly, where the dispute involves the

recognition,observance or enforcement of rights and

obligations created by enactments like Industrial

Employment (Standing Orders) Act, 1946-which can be

called 'sister enactments' to Industrial Disputes Act— and

which do not provide a forum for resolution of such

disputes, the only remedy shall be to approach the forums

created by the Industrial Disputes Act provided they

constitute industrial disputes within the meaning of Section

2(k) and Section 2-A of Industrial Disputes Act or where

such enactment says that such dispute shall be either

treated as an Industrial dispute or says that it shall be

adjudicated by any of the forum created by the Industrial

Disputes Act.Otherwise, recourse to Civil Court is open.

(4) It is not correct to say that the remedies provided

by the Industrial Disputes Act are not equally effective for

the reason that access to the forum depends upon a

reference being made by the appropriate government. The

power to make a reference conferred upon the government

is to be exercised to effectuate the object of the enactment

and hence not unguided. The rule is to make a reference

unless, of course, the dispute raised is a totally frivolous

one ex-facie. The power conferred is the power to refer and

not the power to decide, though it may be that the

government is entitled to examine whether the dispute is

ex facie frivolous, not meriting an adjudication.

(5) Consistent with the policy of law aforesaid, we

commend to the Parliament and State Legislatures to make

a provision enabling a workman to approach the Labour

Court/Industrial Tribunal directly i.e., without the

requirement of a reference by the Government-in case of

industrial dispute covered by Section 2-A of the Industrial

Disputes Act. This would go a long way in removing the

misgivings with respect to the effectiveness of the remedies

provided by the Industrial Disputes Act.

(6) The certified STanding Orders framed under and

in accordance with the Industrial Employment (Standing

Orders) Act, 1946 are statutorily imposed conditions of

service and are binding both upon the employers and

employees, though they do not amount to "statutory

provisions". Any violation of these Standing Orders

entitles an employee to appropriate relief either before the

forums created by the Industrial Disputes Act or the Civil

Court where recourse to Civil Court is open according to

the principles indicated herein.

(7) the policy of law emerging from Industrial Disputs

Act and its sister enactments to provide an alternative

dispute resolution mechanism to the workmen, a

mechanism whic is speedy, inexpensive, informal and un-

encumbered by the plethora of procedural laws and appeals

and revisions applicable to civil courts. Indeed, the powers

of the Courts and Tribunals under the Industrial Disputes

Act are are more extensive in the sense that they can grant

such relief as they think appropriate in the circumstances

for putting an end to an industrial dispute."

65. Facts detailed in preceding sections make out

that the rights which the claimant claim and obligations

which are imposed on the University arise out of rights

and obligations created by the Act. An industrial dispute

within the meaning of section 2(k) was referred for

adjudication by the appropriate Government to this

Tribunal,invoking its power under clause (d) of sub-section

(1) of section 10 of the Act. High Court is not competent to

adjudcate an industrial dispute. Hence, principle 2, referred

in para 63 and Principle 1, referred in para 64, do not come

into play. Therefore, judgement Ex. MW2/5 cannot operate

as re-Judicata. It would not restrain the claimant in any

manner, from agitating her claim against the University.

66. It is well settled that negative language used in

section 25-F of the Act imposes a mandatory duty on the

employer, which is condition precedent to retrenchment of

a workman. Contravention of mandatory requirements of

section 25-F of the Act imposes a mandatory duty on the

employer, which is condition precedent to retrenchment of

a workman. Contravention of mandatory requirements of

section 25-F of the Act would invalidate the retrenchment

and render it void ab initio. Reference can be made to the

precedents in Auro Engineering (Pvt.) Ltd., Nasik (1992

Lab. I.C. 1364) and Ollur Regional lmitation Diamond

Manufacturing Industrial Co-op. Society Ltd. (1993 (II) LLJ

174). As detailed above, retrenchment of the claimant is

illegal and void ab initio. Issue is, therefore, answered in

favour of the claimant and against the University.

Relief.

67. As concluded above, the claimant was engaged

by the University through the Contractor by way of creation

of make believe contract agreement, which was a perfect

paper arrangement. On lifting of veil, the University was

found to be the real employer. His services were disengaged

under the garb of award of housekeeping service agreement

to the New Contractor. His retrenchment was found to be

void ab initio. He, being an employee of the University

cannot be retrenched by the Contractor or the New

Contractor. He is deemed to be in the service of the

University Question comes whether he is entitled to full

back wages. For an answer in his favour, he was under an

obligation to establish that he remained un-employed since

the date of his retrenchment. No evidence has been

adduced by the claimant on that point. Thus it cannot be

said that he remained unemployed, since the date of

dispensing with his services by the University. The Apex

Court and High Courts dealt with the issue of award of

compensation, when reinstatement in service was not found

S-3\E\4734RR2\4734RR2A_86-126

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1973

expedient. Those precedents may help the Tribunal in

ascertaining the quantum of back wages, which may be

awarded to the claimant. In S.S. Shetty (1957 (11) LLJ 696)

the Apex Court indicated some relevant factors which an

adjudicator has to take into account in computing

compensation in lieu of reinstatement, in the following words:

"The Industrial Tribunal would have to take into

account the terms and conditions of employment,

the tenure of service, the possibility of termination

of the employment at the instance of either party, the

possibility of retrenchment by the employer or

resignation or retirement by the workman and even

of the employer himself ceasing to exist or of the

workman being awarded various benefits including

reinstatement under the terms of future awards by

Industrial Tribunal in the event of industrial disputes

arising between the parties in future .... In computing

the money value of the benefits of reinstatement, the

industrial adjudicator would also have to take into

account the present value of what his salary, benefits

etc. would be till he attained the age of superannuation

and the value of such benefits would have to be

computed as from the date when such reinstatement

was ordered under the terms of the award.

Having regard to the considerations detailed above,

it is impossible to compute the money value of this benefit

of reinstatement awarded to the appellant with mathematical

exactitude and the best that any tribunal or court would do

under the circumstances would be to make as correct as

estimate as is possible bearing, of course in mind all the

relevant factors pro and con".

68. A Divisional Bench of the Patna High Court in B.

Choudhary (1983) Lab. 1.1755 (1758) deduced certain

guidelines which have to be borne in mind in determining

the quantum of compensation viz (i) the back wages

receivable (ii) compensation for deprivation of the job with

future prospect and obtainability of alternative

employment; (iii) employee's age (iv) Length of service in

the establishment (v) capacity of the employer to pay and

the nature of employer's business (vi) gainful employment

in mitigation of damages; and (viii) circumstances leading

to the disengagement and the past conduct. These factors

are only illustrative and not exhaustive. In addition to the

amount of compensation, it is also within the jurisdiction

of the Tribunal to award interest on the amount determined

as compensation. Furthermore, the rate of such interest is

also in the discretion of the Tribunal. Reference can be

made to Tabesh Process, Shivakashi (1989 Lab.I.C. 1887).

69. In Assam Oil Co. Ltd. (1960 (1) LLJ 587) the Apex

Court took into account countervailing facts that the

employer had paid certain sums to the workmen and her

own earning in the alternative employment and ordered

that "it would be fair and just to direct the appellant a

substantial sum as compensation to her". In Utkal

Machinery Ltd. (1966 (1) LLJ 398) the amount of

compensation equivalent to two year salary of the employee

awarded by the Industrial Tribunal was reduced by the

Supreme Court to an amount equivalent to one year salary

of the employee in view of the fact that she had been in

service with the employer only for 5 months and also took

into consideration the unusual manner of her appointment

at the instance of the Chief Minister of the State. In A.K.

Roy (1970) (1) LLJ 228) compensation equivalent to two

years salary last drawn by the workmen wad held to be fair

and proper to meet the ends of justice. In Anil Kumar

Chakaraborty (1962 (II) LLJ 483) the Count converted the

award of reinstatement into compensation of a sum of Rs.

50000/- as just and fair compensation in full satisfaction of

all his claims for wrongful dismissal from service. In O.P.

Bhandari (1986 (II) LLI 509), the Apex Court observed that

it was a fit case for grant of compensation in view of

reinstatement. The Court awarded compensation equivalent

to 3.33 years salary as reasonable. In M.K. Aggarwal (1988

Lab. I.C. 380), the Apex Court though confirmed the order

of reinstatement yet restricted the back salary to 50% of

what would otherwise be payable to the employee. In

Yashveer Singh (1993 Lab. I.C. 44) the court directed

payment of Rs. 75000/- in view of reinstatement with back

wages. In Naval Kishor (1984 (II) LLJ 473) the Apex Court

observed that in view of the special circumstances of the

case adequate compensation would be in the interest of

the appellant. A sum of Rs. 2 lac was awarded as

compensation in lieu of reinstatement. In Sant Raj (1985 (II)

LLJ 19) a sum of Rs. 2 lac was awarded as compensation in

lieu of reinstatement. In Chandu Lal (1985 Lab. I.C. 1225) a

compensatiuon of Rs. 2 lac by way of back wages in lieu of

reinstatement was awarded. In Ras Bihari (1988 Lab. I.C.

107) a compensation of Rs. 65000/- was granted in lieu of

reinstatement, since the employee was gainfully employed

elsewhere. In V.V. Rao (1991 Lab. I.C. 1650) a compensation

of Rs. 2.50 lac was awarded in lieu of reinstatement.

70. The claimant rendered continuous four years'

service to the University, when he was illegally retrenched.

He had to fight for about four years for redressal of his

grievances. The circumstances in which he was retrenched

and mass unemployment prevalent in economic field which

may come in the way when some one goes for an alternative

employment, besides other factors of this case persuade

me to award 20 percent back wages from the date of

retrenchment till the date the award becomes operative

under section 17-A of the Act, besides reinstatement of the

claimant in the service of the University, with continuity

and all consequential benefits. An award is, accordingly,

passed. It be sent to the appropriate Government for

publication.

DR. R.K. YADAV, Presiding Officer

Dated: 09.12.2011

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THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

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New Delhi, the 1st February, 2012

S.O. 823.—In pursuance of Section 17 of the

Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref.

No. 06/2010) of the Central Government Industrial Tribunal

cum Labour Court No. 1 New Delhi as shown in the

Annexure, in the Industrial dispute between the Vice

Chancellor, Indira Ghandhi National Open University and

their workman, which was received by the Central

Government on 01.02.2012.

[F.No. L-42012/94/2009-IR(DU)]

Ramesh Singh, Desk Officer

ANNEXURE

DR. R.K. YADAV, PRESIDING OFFICER, CENTRAL

GOVT. INDUSTRIAL TRIBUNAL NO. 1,

KARKARDOOMA COURTS COMPLEX: DELHI

I.D. No. 6/2010

Smt. Mukesh W/o Shri Surender

H.No. 129, Balmiki Basti,

Maidan Garhi,

New Delhi.

Versus

Claimant

The Vice Chancellor,

Indira Gandhi National Open Unicersity,

R.No. 1, Block No. 8, Maidan Garhi,

New Delhi-110068.

MANAGEMENT

AWARD

Indira Gandhi National Open University (herein after

referred to as the University) was established in the year

1985 to provide cost effective and quality education to

large sections of people, including those living in remote

and far flung areas, through distance education

programmes. The University functions not only within the

boarders of the country but offers education programmes

in at least 35 countries. Besides Regional Centres across

the country and in foreign countries, the University has its

Central Campus at Maidan Garhi, New Delhi, which is spread

over an area of 151.32 acres of land. At its Central Campus,

the University has a strength of about 800 officers/officials

working there.

2. The University requires considerable man-power

to carry out housekeeping services, which includes cleaning

and sanitation activites. Housekeeping services are out-

sourced by the University through a private contractor. In

the year 2004, the University awarded contract for

housekeeping services to Sybex Computer Systems (Pvt.)

Ltd. (in short the Contractor). The Contractor engaged

around 70 sweepers and cleaners to carry out its

contractural obligations. On 1st November, 2007, the

University awarded contract for housekeeping services to

Spick & Span Facilities Management (Pvt.) Ltd. (in short

the New Contractor). Initially the New Contractor decided

to retain services of the sweepers and cleaners engaged

by the Contractor. But negotiations between the New

Contractor and employees of the Contractor turned into a

complete fiasco. Sweepers and cleaners resorted to

agitation and sat on "dharna" outside the gate of Maidan

Garhi Campus of the University. Legal wrangle started

between the University and the agitators. Efforts were made

from either side to wrench one's opponent.

3. Resort to the jurisdiction of Conciliation Officer

was taken by the sweepers and cleaners, by way of filing

their respective claim statements. Conciliation Officer

initiated conciliation proceedings, as contemplated by sub-

section (1) of section 12 of the Industrial Disputes Act,

1947 (in short the Act). No settlement could arrive at between

the parties and a failure report was submitted to the

appropriate Government. On consideration of the failure

report, so submitted, the appropriate Government referred

the dispute to this Tribunal for adjudication, invoking its

powers under clause (d) of sub-section (1) of section 10 of

the Act, vide order No. L-42012/94/2009-IR(DU) New Delhi

dated 7the January, 2010, with following terms:

"Whether the action of the management of Indira

Gandhi National Open University, in terminating the

services of their workman Smt. Mukesh w.e.f.

01.11.2007 is legal and justified? If not, what relief

the workman is entitled to?"

4. Smt. Mukesh claims in her claim statement that

she was working with the University as "Safai Karamchari"

in its housekeeping department since 1.6.1996. She had

rendered more than 240 days continuous service with the

University. At the time of entering into the services of the

University, she was asked to fill in certain forms, which

forms duly filled and signed by her are in the custody of

the University. No appointment letter was issued in her

favour, inspite of her request in that behalf. Since inception

of her engagement, the University had indulged into unfair

labour practices and flouted implementation of labour laws

concerning her service conditions. At times she, alongwith

her colleagues, was kept at its rolls by the University, while

during intermittent spells her services were transferred at

the roll of one contractor or the other. This device was

adopted with a view to discount her continuity in service

and seniority in employment so that liability to pay

retrenchment compensation under the Act and other

benefits under various labours laws may be avoided.

5. Contributions towards social securities, namely,

ESI, medical benefits and provided fund were deducted

¹Hkkx II—[k.M 3(ii)º

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1975

from her wages by the University, pleads the claimant.

Despite payment of contributions towards above social

securities, the University never issued any medical card

and provident fund statement or account number, but

passed on that responsibility on the shoulders of the

Contractor. Facility of earned, annual, privileged, casual,

weekly off, festival and medical leaves were not accorded.

Though work was taken on Sundays and holidays from

her but no compensatory leave or overtime wages were

given to her. She used to get wages at the rate of Rs. 172/-

per days, amounting to somewhere near to Rs. 4500/- per

month.

6. On 1st November 2007, the University decided to

place her services at the disposal of a contractor, whose

engagement for housekeeping work was neither

communicated nor he was introduced to her. To her utter

surprise a contractor surfaced on scene and told her and

her colleagues that he will pay them Rs. 3470/- each per

month. He announced that interested persons may stay at

work-place and others may leave for good. The claimant

and her colleagues wanted to see the Vice-Chancellor to

appraise him of their grievances, but they were stopped at

the gate of the University campus. Services of the claimant

and others were terminated. The University called some

anti-social elements and got sever beatings administered

to her and her colleagues at their hands. Police was also

called by the University authorities, to keep their hands

clean.

7. The University had not served one month notice

nor paid wages in lieu of the notice. Retrenchment

compensation was also not paid to her. Her services were

not done away on infliction of punishment for a disciplinary

action, hence action of the University is violative of the

provisions of the Act and principles of natural justice. She

claims reinstatement in the services of the University with

continuity and condesuential benefits.

8. The University demurs the claim pleading that the

claimant was never employed by it. No salary/wages or

other emoluments were paid by it to the claimant. There

existed no relationship of employer and employee between

the parties. Hence there was no occasion for the Univeristy

to terminate services of the claimant. In view of these facts,

reference order is improper and claim statement is liable to

be rejected, pleads the University.

9. To outsource housekeeping services, the

University engaged services of the Contractor, vide

agreement dated 1.11.2004, which agreement was extended

upto 31.10.2007. The claimant was working with the

Contractor to provide housekeeping services at the campus

of the University. The Contractor is essential and proper

party, pleads the University. In agreement entered into

between the Contractor and the University it was stipulated

that employees of the Contractor at no point of time would

be treated as employees of the University. The University

laid emphasis on a few clauses of the agreement, which are

extracted thus:

"12. Provider shall continue to be responsible for the

personnel employed by him, in respect of terms and

conditions of their service, payments, attendance, medical

care, other disciplinary matters etc. who shall remain fully

under the administrative and financial control and

supervision of the Provider, except that the University shall

be the sole Arbitrator in respect of nature of the duties to

be entrusted to and the manner of performance of their

duties for the purpose of this Agreement.

13. The temporary personnel deployed by the

Provider to IGNOU shall at no time be treated as the

employees of the University and also shall have no claim

to be regularized in the services of the University. But the

Provider will not change the personnel once deployed by

it in the University without prior permission of the

University as the frequent changes in deployment to

temporary may hamper the day to day work of the

University.

23. There is no privity of contract by and between

the Provider and the University. The Temporary shall have

no right to make any claim against the University directly

or indirectly, monetary including wages or otherwise. The

Temporary shall also have no right to claim for any

regularization. The Temporary shall also have no claim

against the University of any dues, statutory or otherwise.

Similarly, even the representative of any Temporary who

have worked in the University shall have no right or claim

against the University.

24. The Provider has to ensure that the Temporaries

deployed are not forming any Association/Forum in respect

of IGNOU matter nor they should be allowed to join in any

Association/forum of IGNOU.

25. The Provider has to ensure timely deployment of

Temporaries as required by IGNOU and fulfil other

obligation stated in the above said terms and conditions

failing which penalty will be imposed by the University on

case to case basis from time to time. The decision of the

University will be final."

10. When contract, referred above, expired with efflux

of time, contract for housekeeping services was awarded

to the New Contractor, who initially sought to retain the

services of housekeeping staff for his own contract.

However, owing to illegal and unjustified demands of the

housekeeping staff, the New Contractor did not engage

the claimant and her other colleagues. The claimant and

her colleagues resorted to illegal demonstration in the

University premises. A civil suit being CS(OS) No. 83 of

2008 was instituted before High Court of Delhi. The High

Court passed an interim injunction order on 15.1.2008

against the housekeeping staff and ultimately decreed the

suit on 13.3.2009.

1976

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

11. The University had denied all allegations levelled

by the claimant in her claim statement. It is pleaded that the

claimant knew her status, being an employee of the

Contractor. Her services were terminated by the Contractor

and the University has no role to play in so called

termination of her services. Her claim against the University

is illegal, unwarranted and unjustified. It is pleaded that

her claim may be dismissed.

12. An application moved by the University, to

implead the Contractor as a party, was declined vide order

dated 20.4.2010.

13. On pleadings of the parties, following issues were

settled:

1. Whether there was relationship of employer and

employee between the claimant and the management?

2. Whether the claimant was an employee of Sybex

Computer System Pvt. Ltd., the Contractor?

3. As in terms of reference.

4. Relief.

14. To discharge onus resting on her, the claimant

exained herself and closed her evidence. The University

examined Smt. Bimla Madan, Shri Shiv Prakash,

Dr. S.S. Bisht and Shri Ashok Kumar Gupta to substantiate

its case.

15. Arguments were heard at the bar at length.

Shri V.N. Kaushik, assisted by Ms. Sulekha Thakur,

authorised representative, advanced arguments on behalf

of the claimant. Shri V.K. Rao, assisted by Shri Aly Mirza,

authorised representative and Vibhas Vaibhav, Asstt.

Registrar (Law), raised submissions on behalf of the

University. I have given my careful considerations to the

submissions made at the bar and cautiously perused the

record. My findings on issues involveed in the controversy

are as follows:

Issue No. 1 & 2.

16. Affidavit Ex. WW1/A was tendered as evidence

on behalf of the claimant, wherein she sweared that she

was in the employment of the University as "Safai

Karamchari" since 1.6.1996. Facts detailed in Ex. WW1/A

are facsimile of contents of claim statement, which has

been proved as Ex. WW1/M1. However she admits in her

cross-examination that she is serving the University since

2004. She candidly admitted her signatures on documents

Ex.WW1/M2 to ExWW1/M8.

17. Smt. Bimla Madan unfolds that Regional Office

of the Employer's Provident Fund Organisation had given

code number as DL-24878 to the Contractor, while code

number 2126 was given to Smt. Mukesh, the employee of

the above company. Name of Mukesh appears in

statements of contributions Ex.MW1/1 and ExMW1/2, filed

by her employer for the period 1.4.2005 to 31.3.2006 and

1.4.2006 to 31.3.2007 respectively.

18. Shri Shiv Prakash entered the witness box to

prove copy of plaint, filed by the University before High

Court of Delhi, written statement of defendant No. 3 to 6,

affidavit of Shri U.S. Tolia tendered as evidence in that

case, interim order dated 15.1.2008 and judgement dated

13.3.2009 passed by Justice Ms. Rekha Sharma. These

documents are proved as Ex.MW2/1 to MW2/5

respectively. He clarified that no appeal was preferred

against the judgements Ex.MW2/5.

19. Dr. S.S. Bisht tendered his affidavit Ex.MW3/A as

evidence, wherein he announced that the claimant was

never appointed by the University in its services. No salary

was ever paid to her. Services of the Contractor were availed

to outsource housekeeping services vide agreement dated

1.11.2004, which was subsequently extended upto

31.10.2007. The claimant was working with the Contractor.

With effect from 1.11.2007 contract to provide housekeeping

services was awarded to the New Contractor. He projects

that when she was not engaged by the New Contractor,

she alongwith her colleagues resorted to illegal

demonstration in the premises of the University. Story of

filing civil suit and orders thereon have been re-affirmed

by Dr. Bisht. Being an employee of the Contractor, she had

filed a wrong claim statement, which is liable to be

dismissed, asserts Dr. Bisht.

20. Shri Ashok Kumar Gupta details that the

University was maintaining an account with Maidan Garhi

branch of the Punjab National Bank. The University had

issued cheques in favour of the Contractor, details of those

cheques are given in Ex.MW4/A. He identifie signatures

of Shri Mohan Lal, Branch Manager, on Ex.MW3/21 and

announces that contents of that document are true and

correct, as he himself had checked the records.

21. When facts testified by the claimant, Smt. Bimla

Madan, Dr. S.S. Bisht and Ashok Kumar Gupta are

appreciated, it came to light that the claimant had detailed

facts which are inconsistent to each other. In her claim

statement she projected a case that she was in the service

of the University since 01.06.1996. In her affidavit Ex.WW1/A

too, she tried to assert that she was in the services of the

University since 1.6.1996. However, during the course of

her cross-examination she asserts that she is serving the

University since December 2004. This swinger does not

find any corroboration from any other piece of evidence,

direct or circumstantial. Self-serving words, deposed by

the claimant, could not withstand rigors of cross-

examination, wherein she admitted that Ex.WW1/M2,

Ex.WW1/M3, Ex.WW1/M4, Ex.WW1/M5, Ex.WW1/

M6, Ex.WW1/M7, and Ex.WW1/M8 bear her signatures.

When perused it came to light that Ex.WW1/M4, to

Ex.WW1/M8 are wage-sheets of the Contractor, though

which salary of the claimant and her colleagues were

released by the former in their favour. These documents

project her to be an employee of the Contractor. Thus by

¹Hkkx II—[k.M 3(ii)º

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1977

an admission of her signatures on above documents she

allowed a fact to spill over which demolishes her case of

being an employee of the University. Ex.WW1/M2, and

Ex.WW1/M3 are also photocopy of scrolls through which

payments were released by the Contractor to the claimant

and her colleagues. In the end she gave in and deposed

that she was not aware as to who engaged her. However

she made a faint attempt to project her cause when she

asserted that she used to work for the University.

Conspectus of above facts spill the beans and announce

her to be an employee of the Contractor.

22. Dr. S.S. Bisht erected castle for the University

brick by brick when he deposed that the claimant was

working with the Contractor, who housekeeping services

were outsourced vide agreement dated 1.11.2004, copy of

which is Ex.MW3/1. This agreement was extended upto

31.10.2007. When aforesaid contract expired, contract for

housekeeping services was awarded to the New Contractor,

vide agreement Ex.MW3/2. When New Contractor did not

engage the services of the claimant and her colleagues,

they resorted to illegal demonstration in the premises of

the University. The Contractor used to raise his bills, to

whom payments were made through cheques Ex.MW3/

M5, Ex.MW3/M6, Ex.MW3/7, Ex.MW3/8, Ex.MW3/9 and

Ex.MW3/10, deposes the witness. Some of the bills raised

by the Contractor, besides sanction accorded by the

University are Ex.MW3/11, Ex.MW3/12, Ex.MW3/13,

Ex.MW3/14, Ex.MW3/15, Ex.MW3/16, Ex.MW3/17,

Ex.MW3/18 and Ex.MW3/19, Dr. Bisht detailed. Payments

were made to the Contractor through cheques, which were

honoured and cleared and letter Ex.MW3/21 was written

by the bank in that regard. He had proved list of contractors

as Ex.MW3/2, to whom the work was awarded by the

University since 16.12.1991 till date. Out of facts unfolded

by Dr. Bisht it came over the record that the University had

outsourced housekeeping services since 16.12.1991. On

1.11.2004 work was awarded to the Contractor and on

1.11.2007 it was awarded to the New Contractor. Claimant

was an employee of the Contractor, who used to pay wages

to her Smt. Bimla Madan gives re-affirmation to facts

unfoled by Dr. Bisht. She had proved statements of

contribution, filed by the Contractor in the Regional Office

of the Employees' Provident Fund Organisation, in which

statements name of the claimant does appear as an

employee of the Contractor. She Ashok Kumar Gupta

proves various payments made by the University to the

Contractor, details of which are enlisted in Ex.MW3/21.

Sequences of events, brought over the record through the

depositions of aforesaid witnesses and documents proved

by them, highlight that the claimant was an employee of

the Contractor, who used to make payment of her salaries

to her. It was the Contractor who was her pay master.

23. Whether the claimant, who was an employee of

the Contractor, can maintain a dispute against the

University? For an answer to this proposition, the Tribunal

has to take note of the law contained in section 10 of the

Contract Labour (Regulation and Abolition) Act,. 1970 (in

short the Contract Labour Act),which makes provisions

for prohibition of employment of contract labour. For sake

of convenience provision of section 10 of the Contract

Labour Act are reproduced this:

"10. Prohibition of employment of contract labour:

(1)Notwithstanding anything contained in this Act,

the appropriate Government may, after consultation with

the Central Board or, as they case may be, a State Board,

prohibit by notification in the Official Gazette, employment

of contract labour in any process, operation or other work

in any establishment.

(2)Before issuing any notification under sub-section

(1) in relation to an establishment, the appropriate

Government shall have regard to the conditions of work

and benefits provided for the contract labour in that

establishment and other relevant factors, such as —

(a) whether the process, operation or other work is

incidental to, or necessary for the industry, trade

business, manufacture or occupation that is carried

on in the establishment,

(b) whether it is a perennial nature, that is to say, it is of

sufficient duration having ragard to the nature of

industry, trade, business, manufacture or occupation

carried on in that establishment;

in that establishment or an extablishment similar

thereto;

(d) whether it is sufficient to employ considerable number

of whole-time workmen. Explanation — if a question

arises whether any process or operation or other

work is of perennial nature, the decision of the

appropriate Government thereon shall be final."

24. As emerge out of the provisions of sub-section

(1) of section 10 of the Contract Labour Act, the appropriate

Government may, by notification in the official gazette,

prohibit employment of contract labour in any process,

operation or other work in any establishment. When

employment of contract labour is prohibited, by issuance

of a notification in official gazette by the appropriate

Government, what would be the status of the contract

labour employed in the establishment? Such a question

arose before the Apex Court in Steel Authority of India Ltd.

(2001(7) S.C.C.I). The Apex Court rules therein that there

cannot be automatic absorptionof contract labour by

principal employer or issuance of notification by the

appropriate Government on abolition of contract labour

system, under sub section (1) of section 10 of the Contract

Labour Act. It would be expedient to reproduce the law laid

by the Apex Court, which is extracted thus:

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[PART II—SEC. 3(ii)]

"....they fall in three classes: (1) 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 adjudicator/

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 contract labour working in the

establishment was ordered, (2) where contract was

found to be a sham and nominal, rather a camouflage,

in which case the contract 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

the abolition of contract labour out present instances

wherein the court pierce the veil and declared the

corrrect position as a fact at the stage after

employment of contract labour stood prohibited, (3)

where in discharge of a statutory obligation of

maintaining a canteen in an establishment the

principal employer availed the services of the

contractor, the court have held that the contract

labour would indeed be employees of the princiapl

employer."

25. The Court rules that neither section 10 of the

Contract Labour Act nor any other provision in that Act,

whether expressly or by necessary implication, provides

for automatic absorption of contract labour on issuance of

a notification by the appropriate Government under sub

section (1) of section 10, prohibiting employment of

contract labour, in any process, operation or other work in

any establishment. Consequently the principal employer

cannot be required to order for absorption of the contract

labour working in the establishment concerned. It was

further rules therein that in Saraspur Mills case (1974(3)

SCC66), the workman engaged for working in the canteen

run by the Cooperative Society for the appellant were the

employees of the appellant mills. In Basti Sugar Mills (AIR

1964 S.C. 355) a canteen was run in the factory by the

Cooperative Society and as such the workers working in

the canteen were held to be employees of the establishment.

The Apex Court ruled that these cases fall in class (3)

mentioned above. Judgement in Hussainbhai (1978 Lab.

I.C. 1264) was considered by the Apex Court in the said

precedent and it was ruled therein that the said precedent

falls in class (2), referred above. The Apex Court concluded

that on issuance of prohibitive notification under section

10 of the Contract Labour Act prohibiting employment of

contract labour or otherwise, in an industrial dispute

brought before it by any contract labour in regard to

conditions of service, the Industrial Adjudicator will have

to consider the question whether the contractor has been

interposed either on the ground of having undertaken to

produce any given result for the establishment or for supply

of contract for work of the establishment under a genuine

contract or is a mere ruse/camouflage to evade compliance

of various beneficial legislation so as to deprive the workers

of the benefit thereunder. If the contract is found to be not

genuine but a mere camouflage, the so called contract labour

will have to be treated as employees of the principal

employer who shall be directed to regularize the services

of the contract labour in the establishment concerned,

subject to the conditions as may be specified by it for that

purpose.

26. As announced by the Apex Court, on issuance of

a prohibitive notification, prohibiting employment of

contract labour or otherwise in any industrial dispute

brought before it by the contract labour in regard to

conditions of his service, the industrial adjudicator will

have to consider the question whether the contractor has

been interposed either on the ground of having undertaken

to produce any given result in the establishment or for

supply of the contract labour for the work of the

establishment under a genuine contract or it is a mere ruse/

camouflage to evade compliance of beneficial so as to

deprive the workers of the benefits therein. Thus it was

ruled that a contract labour can raise a dispute before the

industrial adjudicator in regard to his conditions of service

and in case the contract is found to be not genuine but a

mere camouflage, the so called contract labour will have to

be treated as employees of the principal employer. Also

see Standard Vaccum Refining Co. of India Ltd. (1960 (II)

LLJ. 233), which was referred with approval in Steel

Authority of India.

27. In Shivnandan Sharma (1955(1) LLJ 688) the

respondent Bank entrusted its Cash Department under a

contract to the Treasures who appointed cashiers,

including the appellant Head Cashier. The question before

the Apex Court was: was the appellant an employee of the

Bank? On construction of the agreement entered into the

Bank and the Treasure, the Court laid down:

"If a master employs a servant and authorizes him to

employ a number of persons to do a particular job

and to gurantee their fidelity and efficiency for a

cash consideration, the employees thus appointed

by the servant would be equally with the employer,

servant of the master."

In the above precedent the Apex Court for the first

time laid down the crucial test of supervision and control

for determining the relationship of employer and employee.

28. In Hussainbhai (supra) the petitioner, who was

manufacturing ropes, entrusted the work to a contractor

who engaged his own workers. When after some time, the

workers were not engaged, they raised an industrial dispute

that they were denied employment by the petitioner. On

reference of that dispute, the labour court passed an award

against the petitioner. When matter reached the Apex

Court, on examination of various factors and applying the

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effective control test, it was held that though there was no

direct relationship between the petitioner and the workers

yet on lifting the veil and looking at the conspectus of

factors governing employment, the naked truth, though

drapped in different perfect paper arrangement, was that

the real employer was the petitioner, not the immediate

contractor. The Apex Court stated law in following words:

"Where a worker or group of workers labours to

produce goods or services and these goods or

services are for the business of another, that other

is, in fact, the employer. He has economic control

over the workers' subsistence, skill, and continued

employment. If he, for any reason, chokes off, the

worker is, virtually,laid off. The presence of

intermediate contractor with whom alone the workers

have immediate or direct relationship ex-contractu is

of no consequence when, on lifting the veil or looking

at the conspectus of factors governing employment,

we discern the naked truth, though draped in different

perfect paper arrangement, that the real employer is

the management, not the immediate contractor***.

If the livelihood of the workmen substantially

depends on labour rendered to produce goods and

services for the benefit and satisfaction of an

enterprise, the absence of direct relationship or the

presence of dubious intermediaries or the make-

believe trappings of detachment from the

management cannot snap the real-life bond. The story

may vary but the inference defies ingenuity. The

liability cannot be shaken off. Of course, if there is

total dissociation in fact between the disowning

management and the aggrieved workmen, the

employment is, in substance and real-life terms, by

another. The management's adventitious connections

cannot ripen into real employment."

As noted above, the precedent does not present an

illustration of abolition of contract labour but an instance

where the Court pierced the veil and declared the correct

position to the effect that the contract labours were

employees of the principal employer and not of the

contractor.

29. In Steel Authority of India (supra) it has been

ruled that the term "contract labour" is a species of workman.

A workman may be hired: (1) in an establishment by the

principal employer or by his agent with or without the

knowledge of the principal employer, or (2) in connection

with the work of an establishment by the principal employer

through a contractor or by a contractor with or without the

knowledge of principal employer. Where a workman is hired

in or in connection with the work of an establishment by

the principal employer through a contractor, he merely acts

as an agent so there will be master and servant relationship

between the principal employer and the workman. But when

a workman is hired in or in connection with the work of an

establishment by a contractor, either because he has

undertaken to produce a given result for the establishment

or because he supplies workmen for any work of the

establishment, a question might arise whether the

contractor is a mere camouflage as in Hussainbhai's case

(supra) and in Indian Petrochemicals Corporation case (1999

(6) S.C.C. 439) etc.; if the answer is in affirmative, the

workman will be in fact an employee of the principal

employer, but if the answer is in the negative, the workman

will be a contract labour.

In view of the legal proposition, referred above, it is

concluded that the claimant can maintain this dispute

against the University since she agitates that the contract

agreement between the University and the Contractor is

sham and nominal.

30. Whether any directions for deeming the contract

labour as having become the employees of the principal

employer can be issued, when the contractor or the principal

employer had violated the provisions of the Contract

Labour Act? To find an answer, provisions of that Act are

to be examined. The Contract Labour Act regulates

conditions of workers in contract labour system and

provides for its abolition by the appropriate Government

as provided by section 10 of that Act. In regard to regulatory

measures section 7 requires the principal employer to get

itself registered, while section 12 obliges every contractor

to obtain a licence, under the provisions of that Act. Section

9 places an embargo on the principal employer of an

establishment from employing contractor labour in the

establishment, when either it is not registered or its

registration has been revoked. Section 12 of the Contract

Labour Act imposes a liability on a contractor not to

undertake or execute any work through contract labour

except under and in accordance with a licence. Sections 23,

24 and 25 make contraventions of the provisions of that

Act or Rules made thereunder penal. In Dena Nath (1992

Lab. I.C. 75) the Apex Court considered the question,

whether non-compliance of the provisions of sections 7

and 12 by the principal employer and the contractor

respectively would make the contract labour employed by

the principal employer as the employee of the latter. It was

ruled that only consequence of non-compliance either by

the principal employer of section 7 or by the contractor in

complying the provisions of section 12 is that they are

liable for prosecution under the said Act. But the employees

employed through the contractor cannot be deemed to be

the employees of the principal emmployer.

31. In the steel Authority of India (supra) the Apex

Court laid emphasis ".....the consequence of violation of

Sections 7 and 12 of the CLRA Act is explicity provided in

Sections 23 and 25 of the CLRA Act, it is not for the High

Courts or this Court to read in some unspecified remedy in

Section 10 or substitute for penal consequences specified

in Sections 23 and 25 a different sequel, be if absorption of

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[PART II—SEC. 3(ii)]

contract labour in the establishment of principal employer

or a lesser or harsher punishment. Such an interpretation

of the provisions of the statute will be far beyond the

principle of ironing out the creases and the scope of

interpretative legislation and as such, clearly

impermissible". The above authoritative pronouncements

make it clear that on violations of the provisions of the

Contract Labour Act or Rules made thereunder, the contract

labour could not be deemed to have become the employee

of the principal employer.

32. Whether this Tribunal has power to order for

abolition of contract labour system in the establishment of

the University? For an answer, legal dicta is to be

considered. Before enactment of the Contract Labour Act,

the industrial adjudicator, in appropriate cases, used to

issue directions to the establishment concerned to abolish

or modify system of contract labour. Reference can be made

to precedents in United Salt Works and Industries Ltd.

(1962) (I) LLJ. 131), Shibu Metal Works (1966 (I) LLJ, 717),

National Iron & Steel Co. (1967 (II) LLJ. 23) and Ghatge and

Patil (Transport) Pvt. Ltd. (1968 (I) LLJ. 566). The National

Commission on Labour (1966) in para 29.11 of its report,

enumerated those factors, on which abolition of contract

labour was ordered, thus:

"29.11. Judicial awards have discouraged the practice

of employment of contract labour, particularly when

the work is: (i) perennial and must go on from day to

day; (ii) incidental and necessary for the work of the

factory; (iii) sufficient to employ a cosiderable number

of whole time workmen; and (iv) being done in most

concerns through regular workmen. These awards

also came out against the system of 'middlemen'."

33. After Contract Labour Act was brought on statute

book, the Apex examined jurisdiction of the industrial

adjudicator to issue directions to the establishment to

abolish contract labour in Vegoils Private Ltd. (1971 (2)

S.C.C. 724) and ruled that it would be proper that the

question, whether the contract labour in the appellant

industry was to be abolished or not, be left to be dealt with

by the appropriate Government under the provisions of

that Act, if it becomes necessary. The observations made

by the Court are extracted thus:

"The appropriate Government when taking action

under Section 10 will have an overall picture of the

industries carrying on similar activities and decide

whether contact labour is to be abolished in respect

of any of the activities of that industry. Therefore, it

is reasonable to conclude that the jurisdiction to

decide about the abolition of contract labour, or to

put it differently, to prohibit the employment of

contract labour, is now to be done in accordance

with Section 10. Therefore, it is proper that the

question whether the contract labour regarding

loading and unloading in the industry of the appellant

is to be abolished or not, is left to be dealt with by

the appropriate Government under the Act, if it

becomes necessary. On this ground, we are of the

opinion that the direction of the Industrial Tribunal

in this regard will have to be set aside.***. The

legality of the direction given by the Industrial

Tribunal abolishing contract labour in respect of

loading and unloading from May 1, 1971 can also be

considered from another point of view. The Central

Act, as mentioned earlier, had come into force on

February 10, 1971. Under Section 10 of the said Act

the jurisdiction to decide matters connected with

prohibition of contract labour is now vested in the

appropriate Government. Therefore, with effect from

February 10, 1971, it is only the appropriate

Government that can prohibit contract labour by

following the procedure and in accordance with the

provisions of the Central Act. The Industrial Tribunal,

in the circumstances, will have no jurisdiction,

through its award dated November 20, 1970, to give

a direction in that respect which becomes,

enforceable after the date of coming into force of the

Central Act. In any event, such a direction contained

in the award cannot be enforceable from a date when

abolition of contract labour can only be done by the

appropriate Government in accordance with the

provisions of the Central Act."

34. In Gujarat Electricity Board (1995 (5) S.C.C. 27)

the same view was taken by the Apex Court holdings that

the authority to abolish the contract labour vests in the

appropriate Government and not in any court including

the industrial adjudicator. It would be apposite to reproduce

the observation of the court thus:

"53. Our conclusions and answers to the questions

raised are, therefore, as follows:

(i) In view of the provisions of Section 10 of the Act, it

is only the appropriate Government which has the

authority to abolish genuine labour contract in

accordance with the provisions of the said Section.

No Court including the industrial adjudicator has

jurisdiction to do so.

(ii) If the contract is sham or not genuine, the workmen

of the so-called contractor can raise an industrial

dispute for declaring that they were always the

employees of the principal employer and for claiming

the appropriate service conditions. When such

dispute is raised, it is not a dispute for abolition of

the labour contract and hence the provisions of

Section 10 of the Act will not bar either the raising or

the adjudication of the dispute. When such dispute

is raised, the industrial adjudicator has to decide

whether the contract is sham or genuine. It is only if

the adjudicator comes to the conclusion that the

contract is sham, that he will have jurisdiction to

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adjudicate the dispute. If, however, he comes to the

conclusion that the contract is genuine, he may refer

the workmen to the appropriate Government for

abolition of the contract labour under Section 10 of

the Act and keep the dispute pending. However, he

can do so if the dispute is espoused by the direct

workmen of the principal employer. If the workmen

of the principal employer have not espoused the

dispute, the adjudicator, after coming to the

conclusion that the contract is genuine, has to reject

the reference, the dispute being not an industrial

dispute within the meaning of Section 2 (k) of the ID

Act. He will not be competent to give any relief to

the workmen of the erstwhile contractor even if the

labour contract is abolished by the appropriate

Government under Section 10 of the Act.

(iii) If the labour contract is genuine a composite

industrial dispute can still be raised for abolition of

the contract labour and their absorption. However,

the dispute, will have to be raised invariably by the

direct employees of the principal employer. The

industrial adjudicator, after receipt of the reference

of such dispute will have first to direct the workmen

to approach the appropriate Government for abolition

of the contract labour under Section 10 of the Act

and keep the reference pending. If pursuant to such

reference, the contract labour is abolished by the

appropriate Government, the industrial adjudicator

will have to give opportunity to the parties to place

the necessary material before him to decide whether

the workmen of the erstwhile contractor should be

directed to be absorbed by the principal employer,

how many of them and on what terms. If, however,

the contract labour is not abolished, the industrial

adjudicator has to reject the reference.

(iv) Even after the contract system is abolished, the direct

employees of the principal employer can raise an

industrial dispute for absorption of the ex-

contractor's workmen and the adjudicator on the

material placed before him can decide as to who and

how many of the workmen should be absorbed and

on what terms".

35. In Steel Authority of India (supra) the Apex Court

had referred the precedents in Vegoils case (supra) and

Gujrat Electricity Board (supra) with approval. Thus it

emerges that power to abolish contract labour system vests

with the appropriate Government, under section 10 of the

Contract Labour Act, and not with any court including the

industrial adjudicator. This Tribunal has not been saddled

with any responsibility to abolish contract labour in an

establishment, on parameters enacted in sub-section (2) of

section 10 of the Contract Labour Act.

36. Now I would turn to the facts of the present

controversy. It is not a case where an employee of a

contractor, employed in a statutory canteen, has invoked

the jurisdiction of this Tribunal. This matter, as projected

by the claimant, is left to be approached on the proposition

as to whether contract agreement entered into between the

University and the Contractor was sham and nominal. For

an answer to this proposition, it would be expedient to

examine the contract agreement, which has been proved as

Ex.MW3/1 by Dr. Bisht. In construction of contents of

Ex.MW3/1, this Tribunal cannot be oblivions of the rules

viz., written instruments shall, if possible, be so interpreted

"ut res magis valeat quam pereat" (a liberal construction

should be put upon written instruments, so as to uphold

them, if possible) and that such a meaning shall be given to

it as may carry out and effectuate to the fullest extent the

intention of the parties.

37. Elementary principle of law relative to contracts

is that parties to contracts are to be allowed to regulate

their rights and liabilities themselves and the Courts will

only give effect to the intention of the parties as it is

expressed by the contract. However, the law in some cases

overrides the will of the individual and renders ineffective

and futile his expressed intention or contract. No court or

tribunal will lend its aid to a man who founds his cause of

action upon an immoral or an illegal act. A contract cannot

be made the subject of an action if it be impeachable on the

grounds of dishonesty, or as being opposed to public

policy, if it be either contra bonos mores, or forbidden by

law. No court or tribunal will allow itself to be made the

instrument of enforcing obligations alleged to arise out of

a contract or transaction which is illegal.

38. Whether Ex.MW3/1 contains clauses which are

contra bonos mores or forbidden by law? When perused,

clause 24 of ex.MW3/1 makes it clear that right to form or

join an association, in respect of IGNOU matter, has been

denied to an employee of the Contractor. For sake of

convenience contents of that clause are reproduced thus:

"24. The provider has to ensure that the Temporaries

deployed are not forming any Association/Forum in

respect of IGNOU matter nor they should be allowed

to join in any Association/Forum of IGNOU."

39. Right to form associations or unions is a

fundamental right guaranteed to every citizen by clause

(1)(c) of Article 19 of the Constitution of India. Guarantee

of right to form an association or union has to be read with

clause (4) of the aforesaid Article, which permits imposition

of legal restrictions on the right in so far as such restrictions

may be reasonably required in the interest of the

sovereignty and integrity of India, public order and morality.

The right to form associations or unions refers not only to

the initial commencement of the association but also to

continuation of the association as such, as it is obvious

that if an association has to be dissolved the moment it has

been formed, it cannot be said that the members have the

right to form the association. The restriction imposed by

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[PART II—SEC. 3(ii)]

the University on employees of the Contractor does not

answer the requirement of clause (4) of Article 19 of the

Constitution and is violative of the fundamental right

guaranted to the claimant and her colleagues.

40. There is other facet of the coin. The Act is a

legislation relating to what is known as "collective

bargaining" in the economic field. This policy is implicit in

the definition of "industrial dispute". See Titagarh Jute Co.

Ltd. (1979 Lab. I.C. 513). "An agreement between a single

employer or an association of employers on one hand and

a labour union on the other, which regulates the terms and

conditions of employment" is known as collective

bargaining agreement. The policy behind the concept of

collective bargaining is to protect workmen as a class

against unfair labour practices. A dispute of an individual

workman would acquire status of an industrial dispute if it

affects the rights of the workmen as a class. An industrial

dispute denotes two qualities which distinguish it from an

individual dispute, namely (i) that the dispute relates to

industrial matter, and (ii) that on one side at least of the

dispute the disputant are a body of men acting collectively

and not individually. The clause, referred above, puts

restriction on the claimant and her colleagues to act

collectively as a body of men to protect their rights, while

working with the Contractor, who had engaged them to

produce a given result in terms of agreement Ex. MW3/1.

Contents of clause 24 of Ex. MW3/1, being unlawful, cannot

be supported at law.

41. A restriction is imposed on the claimant and her

colleagues from making any claim against the University

directly or indirectly, monetary including wages or

otherwise as contained in clause 23 of Ex. MW3/1, which is

not in conformity with the provisions of the Contract Labour

Act. Primary responsibility to pay wages to an employee

employed by a contractor rests upon the latter. But on his

failure to make payment of wages within the prescribed

period or in the event of making short payment, the principal

employer has been saddled with the responsibility to make

payment of wages in full or the unpaid balance due, as the

case may be, to the contract labour, enacts sub-section (4)

of section 21 of the Contract Labour Act. Consequently

this part of clause 23 of Ex. MW3/1 is to be discarded,

being violative of law.

42. In mercantile transactions stipulations are agree

upon between the parties on principal to principal or

principal to agent basis. In both the propositions there is

privity of contract between them. Absence of privity of

contract would make them strangers to each other, in respect

of alleged covenanted or parol agreement, as the case may

be. In clause 23 of Ex. MW3/1 it is projected that there is no

privity of contract by the between the Provider (the

Contractor) and the University. The proposition referred

above is absurd. Privity of contract is the relation which

exists between the immediate parties to a contract, which is

necesary to enable one persons to sue another on it. It is a

relationship between persons arising under a contract.

There may be (1) privity of contract, or (2) privity of estate.

When Ex. MW3/1 is read, privity of contract between the

contractor and the University emerge out. Proposition,

referred above, cannot be given effect to.

43. "Consideration" of some sort or other is so

necessary to the formation of a contract. A nudum pactum,

or agreement to do or pay something on one side, without

any consideration on the other, will not at all support any

action, and a main cannot be compelled to perform it. To

constitute consideration, there must be an act, abstinence

or promise on the part of promisee or some other person at

the desire of the promisor. A consideration must be valuable

and not superficial, it must be material and not sentimental

or imaginary. It must be a material detriment to the promisee

or a benefit to the promisor. Section 2 of the Contract Act

defines consideration. "When at the desire of the promisor,

the promisee or any other persons, has done or abstained

from doing, or does or abstains from doing something,

such act or abstinence or promise is called a consideration

for the promise".

44. The consideration for a promise must have some

tangible value in the eye of law. Its adequacy is not material.

Though adequacy of consideration will not be examined

by the courts, yet it must not be colourable merely nor

illusory. A mere moral obligation arising from a past benefit

not conferred at the request of the defendant is not a good

consideration. However consideration derived from moral

obligations, in which there has been a legal right deprived

of legal remedy, the defendant would be held liable, without

putting moral duty at par with legal consideration. There

propositions may require a court or a tribunal to examine

whether there was legal consideration for the promise.

45. Whether there is any legal consideration for the

promise made by the Contractor to the University? For an

answer constents of clause 15 of Ex. MW3/1 are to be

examined, which are extracted thus:

"15. In consideration of the obligation undertaken

by the Provider, under this Agreement, the University

shall pay Provider charges on the basis of number of

such personnel actually deployed by the Provider

for the effective operation of this Agreement, on the

rates quoted by the Provider in their Tender based

on the direction and guidelines issued by the Local

Government (NCT of Delhi). The rates mentioned in

Tenders are as follows".

46. As detailed above charges on the basis of number

of personnel deployed on the rates quoted by the Contractor

in Tender based on the direction and guidelines isued by

the Local Government (NCT of Delhi) where to be paid to

him by the University. In Ex. MW3/1 those rates are not

detailed. Thus tender document becomes a part of Ex. MW3/1.

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It has not been placed before the Tribunal. As detailed

above, adequacy of consideration, may prove to be beyond

the pale of jurisdiction of a civil court. But this Tribunal

has to examine adequacy of consideration to ascertain as

to whether Ex. MW3/1 is genuine and not sham and nominal.

The Tribunal is supposed to examine as to whether the

charges on the basis of number of personnel deployed on

rates quoted in tender document project minimum wages

to be paid to contract labours, besides remunerations

derived by the Contractor. Assessment of these factors

may enable the tribunal to reach a conclusion whether the

Contractor had put his hands to Ex. MW3/1 on principal to

principal or agent to principal basis. Absence of tender

document created a vacuum. Parol evidence was brought

on record to the effect as to what payments were made to

the Contractor from time to time. But absence of facts, as to

what were the rates of minimum wages, what number of

contract labours worked in a particular month, on how many

days in a month a contract labour worked, whether overtime

work was performed by a contract labour in the month,

whether a contract labour worked on Sunday, holidays

and weekly off days in a month, would leave the Tribunal

in lurch.

47. Wages sheet Ex. WW1/M4 to Ex. WW1/1M8

project total work days of the respective months for which

the claimant worked, besides the number of days on which

she remained on leave without pay. These documents

project minimum rates of wages paid to her in a month, out

of which deductions towards E.P.F and E.S.I subscriptions

were made. Bills raised by the Contractor and sanction

accorded by the University are proved as Ex. MW3/11 to

Ex. MW3/19. Cheques issued in favour of the Contractor

are proved as Ex. MW3/5 to Ex. MW3/10. Despite my best

efforts to reconcile contents of documents referred above,

I could not work out the rates on which the Contractor was

paid by the University for services rendered by him. Thus

adequacy of consideration for services rendered by the

Contractor has not surfaced over the record. Vacuum of

evidence in that regard made me to comment that the

University could not establish factors in favour of

genuineness of contract agreement Ex. MW3/1.

48. Now it would be seen whether it was the

Contractor who exercised his control or supervision on the

claimant? Factors of such control and supervision were

described in various precedents, which would be noted

herein under. In Chintaman Rao [1958 (II) LLJ 252] the Apex

Court ruled that the concept of employment involves three

ingredients : (1) employer, (2) employee, and (3) the contract

of employment. The employer is one who employs, that is,

one who engages the services of other persons. The

employee is one who works for another for hire. The

employment is the contract of service between the employer

and employee where under the employee agrees to serve

the employer subject to his control and supervision. In

Food Corporation of India [1985 (II) LLI 4] justice Desai,

speaking for the Apex Court, announced that a contract of

employment "discloses a relationship of command and

obedience between them". Where a Contractor employs a

workman to do the work which he contracted with a third

person to accomplish, the workman of the Contractor would

not without something more become the workman of third

person.

49. In Dharangadhara Chemical Works Limited [1957

(1) LLJ 477], the Apex Court ruled that test of "supervision

and control may be taken as the prima facie test for

determining the relationship of employment". It was further

laid that existence of the right in the master to supervise

and control the work to be done by the servant, not only

matter of directing that work the servant is to do but also

the manner in which he shall do his work is the prima facie

test for determining the existence of master and servant

relationship. It was suggested that correct method of

approach, would be to consider whether having regard to

the nature of work there was due control and supervision

by the employer. The greater amount of direct control

exercised over the person rendering the services by the

person contracting for them, the stronger the ground for

holding it to be a contract of service. The control and

supervision test was reaffirmed by the Apex Court in

Chintaman Rao (supra), wherein it was ruled that "worker"

was a person employed by the management and there must

be contract of service and a relationship of master and

servant betweent them. In Shankar Balaji Waje [1962 (1)

LLJ 119], the Apex Court clarified that "control of the

management, which is a necessary element of the

relationship of master and servant is not directed towards

providing or dictating the nature of the article to be

produced or the owrk to be done, but refers to the other

incidents having a bearing on the process of work the

person carries out in the execution of the work. The manner

of work is to be distinguished from the type of work to be

performed. In V.P. Gopala Rao [1970 (11) LLI 59], the Apex

Court said that it is the question of fact in each case whether

the relationship of master and servant exists between the

management and the workman and there is no abstract a

prior test of the work control required for establishing the

contract of service. It was laid therein that for holding that

the persons employed in the factory were workers within

the meaning of sub-section (1) of section (2) of the Factories

Act 1948, it is to be considered that the fact that the

workman had to work in the factory implied certain amount

of spervision by the management and the nature and extent

of control varied in different industries and that when the

operation was of a simple nature, the control could be

exercised at the end of the day by the method of rejecting

the bidis which did not come up to the proper standard. It

is, therefore, not surprising that in recent years, the control

test, as traditionally formulated, has not been treated as an

exclusive test. In Silver Jubilee Tailoring House [1973 (11)

LLJ 495] the Apex Court ordained that "it is in its application

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to skilled and particularly professional work that control

test in its traditional form has really broken down. It has

been said that in interpreting "control" as meaning the

power to direct how the servant should do the work, the

court has been applying the concept suited to a past age."

50. During the last three decades emphasis in the

field has shifted and no longer rests so strongly upon the

question of control. Control is obviously an important factor

and in many cases it may still be a decessive factor, but it

would be wrong to say that in every case it is a decessive

factor. In Shining Tailors [1983 (11) LLJ 143], the Apex Court

held that the piece rated workers working for a big tailoring

establishment were workman for the establishment. It was

observed therein that the "right of removal of the workman

or not to give work as an element of control and

supervision" which was amply satisfied to announce that

those piece rated workers were the workmen for the

establishment. The Court concluded that the proposition

that "piece rate" itself indicates relationship of independent

contract, is not correct. A servant who has full liberty to

attend to his work according to his pleasure and not

according to orders of his master, is an independent

contractor. A goldsmith engaged to finish jewels within a

given time and when it was open to such goldsmith to

finish jewels within a given time or earlier and engage

themselves or others of their own were held to be

independent contractors, in K. Keswa Raddiar [1957 (1)

LLJ 645]. In the like manner a goldsmith who undertook the

manufacture of ornaments like other goldsmith which he

was asked to manufacture and was entitled to receive

remuneration which would depend upon the nature of the

work done, was held to be not under the order or control of

the proprietor of the concern for whom he was doing the

work, in Achuta Achar [1968 (1) LLJ 500]. An agreement for

selling milk on commission was held to be a contract for

service and not a contract of service, in Abad Dairy Doodh

Vitran Kendra Sanchalak Mandal, Ahmedabad (1989 Lab.

I.C. 1770). The Tiny Deposit Agents employed in deposit

mobilization activity of the bank have been held to be falling

within the definition of the workman and not an independent

contractor in the precedent in the Management of Indian

Bank [1990 (1) LLJ 50].

51. As emerge out, element of control or supervision

of employer in respect of detail of work would be an

identifying mark of the servant. Where an employer retains

the power, not only of directing what work is to be done

but also of controlling the manner of doing the work, these

factors would be determinative of his status as of a master.

His control is not directed towards providing or dictating

the nature of work to be done but refers to other incidents

having a bearing on the proces of work the person carries

out in the execution of the work. Control test postulates a

combination of managerial and technical functions.

52. Whether elements of control or supervision of

the University in respect of details of work of the claimant

emerge out of contact agreement Ex. MW3/1? For an answer,

a few clauses of Ex. MW3/1 are to be scanned, which are

extracted thus:

"12. Provider shall continue to be responsible for the

personnel employed by him, in respect of terms and

conditions of their service, payments, attendance,

medical care, other disciplinary matters etc. who shall

remain fully under the administrative and financial

control and supervision of the Provider, except that

the University shall be the sole Arbitrator in respect

of nature of the duties to be entrusted to and the

manner of performance of their duties for the purpose

of this Agreement.

13. The temporary personnel deployed by the

Provider to IGNOU shall at no time be treated as the

employees of the University and also shall have no

claim to be regularized in the services of the

university. But the Provider will not change the

personnel once deployed by it in the University

without prior permission of the University, as the

frequent changes in deployement of temporary may

hamper the day to day work of the University.

14. The Provider shall have to change over or replace

the temporary personnel as and when required by

the University whether or not such personnel are

found guilty of any misconduct. It shall not be

necessary for the University to assign any reason to

the Provider or the concerned Person or any other

person in respect of any such change and

replacement required by the University."

53. As projected above, clause 12 announces that

personnel employed by the Contractor shall remain fully

under the administrative and financial control and

supervision of the Contractor. However an exception is

there to this general proposition to the effect that the

University shall be sole arbitrator in respect of nature of

duties to be entrusted to and the manner of performance of

their duties for the purpose of the agreement under

consideration. Another exception is contained in clause 13

wherein the Contractor has been constrained not to change

the personnel once deployed without prior permission of

the University. Further exception is contained in clause 14

wherein the Contractor is obliged to change or replace the

temporary personnel as and when required by the

University. The factors enumerated in the clauses, referred

above, make it apparent that the University retained the

power, not only of directing what work was to be done by

the claimant, but also of controlling her in respect of manner

of doing the work. Power of the Contractor to replace the

claimant from her work place was made subject to permission

of the University. Despite the choice of the Contractor to

replace the claimant he could not do so, in case University

showed its unwillingness in that regard. Contra to it, the

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Contractor was duty bound to change an employee if so

commanded by the University. Such a proposition was not

dependent on a contingency of the employee being found

guilty of any misconduct. Mere wish of the University was

to prevail in the matter. Thus it is crystal clear that the

University retained power of allocation of duties, besides

right to control the manner of performance of such duties

by the claimant. The claimant was to work with the

University till its pleasure. The Contractor could not exercise

his earnest will to change her, if not consented by the

University. If the University decided to get her changed,

for any reasons whatsoever, the Contractor could not

impose her on the former, no matter her work and conduct

were satisfactory. Conspectus of these elements make it

clear that administrative control on the claimant was with

the University and not with the Contractor.

54. Contract agreement Ex. MW3/1 does not contain

any obligation on the part of the Contractor to supervise

the work of the claimant. No clause is there in the document

to show that the Contractor deployed some personnel to

supervise the work of the claimant and her other 69

colleagues. Who used to the mark attendance of the

claimant and her colleagues Ex. MW3/1draws a blank? No

parol evidence was brought in to suggest that it was the

Contractor who supervised her work. Vaccum of facts in

Ex. MW3/1 and conspicuous absence of any ocular

evidence in that regard leave no doubt to conclude that it

were the University authorities who used to supervise the

work of the claimant and her colleagues.

55. Discplinary control is exercised by an employer

on his employees by way of codifying rules of conduct for

them. He engrafts acts of misconduct in those rules. He

punishes his employees for their blameworthy conduct. It

is so done by him with a view to maintain discipline at the

work place and to deter potential delinquent from doing

improper behavior or to come in conflict with rules of

standard of behaviour. Right to coin an act as an improper

behaviour, falling within the ambit of misconduct, was

retained by the University. It has been detailed in clause 22

of Ex. MW3/1 that "the University shall be sole judge as to

what is against the interest of the University and as to

what constitutes misconduct". This authority to define a

behaviour to be a misconduct for a contract employee

projects that the University had clothed itself with a right

to declare a code of conduct for the claimant and her

associates. This right is an attribute of disciplinary control

exercised by an employer on his employees.

56. Construction adopted on contents of Ex. MW3/1

is based on the standards of presumed intent of parties.

The construction, so put, with an idea to preserve the will

of the parties to Ex. MW3/1. It is the duty of a court or

tribunal to give effect to the intention of the parties in

construing a written instrument. Ascertaining general scope

of Ex. MW3/1, intention of the parties contained therein,

nature of the instrument and legal right of the parties

thereto, it is concluded that efforts were made by the

University to hide the truth with a view to project a make-

believe instrument of engaging personnel through the

Contractor. In fact the University retained administrative

and disciplinary control over the contract employees.

When veil was lifted, it emerged that Ex. MW3/1 is sham

and bogus. There are realities of relationship of employer

and employees between the University and the claimant

and her other 69 colleagues. In view of the forgoing

reasons, it is concluded that the veil of Ex. MW3/1 is a

smoke-screen, which would not snap relationship between

the University and the claimant and her colleagues.

Aforesaid two issues are accordingly answered.

Issue No. 3

57. Dr. S.S. Bisth announces that with effect from

1.11.2007 contract for providing housekeeping services was

given to the New Contractor. He asserts that owing to

illegal demands of the claimant and her colleagues, the

New Contractor did not engage them. Thereafter

housekeeping staff, including the claimant, resorted to

illegal demonstration. A suit of injunction was filed, which

was decreed by the High Court of Delhi. Certified copy of

judgement dated 13.3.2009 has been proved as Ex. MW2/5,

by Shri Shiv Prakash.

58. Whether above facts would espouse the cause

of the University? Answer lies in negative. As held above,

the claimant was an employee of the University, which

proposition restrains the University from awarding

housekeeping services to the New Contractor. In the garb

of award of housekeeping services to the New Contractor,

the University dispensed with the services of the claimant

and her colleagues. Action of the University squarely falls

within the ambit of definition of retrenchment, as contained

in sub-section (oo) of section 2 of the Act. No case was

projected that the case of University falls within the

exceptions, contained therein. Therefore, it is crystal clear

that the action of the University amounts to retrenchment.

As per own admission of the University, the claimant

rendered services w.e.f. 1.11.2004 till 31.10.2007, as an

employee of the Contractor. Thus it is clear that she

rendered continuous service of more than 240 days in a

calendar year, as contemplated by section 25-B of the Act.

When an employee renders services of more than one year,

he is entitled to protection/benefits contained in section

25-F of the Act. Out of facts of the present controversy, it

emerges that services of the claimant were done away in

violation of the provisions of section 25-F of the Act. It is

not the case of the University that one month's notice or

pay in lieu thereof and retrenchment compensation was

paid to the claimant and other similarly situated employees.

Requirements contained in section 25-F of the Act are

mandatory and non-compliance thereof makes the action

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[PART II—SEC. 3(ii)]

of the employer illegal. Hence action of the University in

terminating services of the claimant, in the garb of awarding

contract of housekeeping services to the New Contractor,

is illegal and unjustified.

59. Whether judgement Ex. MW2/5 would come to

the rescue of the University? Answer lies in negative. Memo

of parties tell that neither the claimant nor her colleagues

were party to that suit. The suit was filed in respect of a

cause of action of civil nature. Even otherwise judgement

Ex. MW2/5 would not operate as res-judicata in the present

controversy. Law contained in section 11 of the Code of

Civil Procedure 1908 (in short the Code) embodies the

doctrine of res-judicata or the rule of conclusiveness of a

judgement, as to the point decided either of fact, or of law,

or of fact and law, in every subsequent suit between the

same parties. It enacts that once a matter is finally decided

by a competent court, no party can be permitted to reopen

it in a subsequent litigation. The doctrine of res-judicata

has been explained in the simplest possible manner by Das

Gupta J. in the case of Statyadhyan Chosal (AIR 1960 S.C.

941) in the following words:

"The principle of res-judicata is based on the need

of giving a finality to judicial decision. What it says

is that once a res-judicata, it shall not be adjudged

again. primarily it applies as between past litigation

and future litigation. When a matter—wither on a

question of fact or a question of law—has been

decided between two parties in one suit or proceeding

and the decision is final, either because no appeal

was taken to a higher court or because the appeal

was dismissed, or no appeal lies, neither party will be

allowed in a future suit or proceedings between the

same parties to convass the matter again."

60. It is not every matter decided in a former suit that

will operate as res judicata in a subsequent suit. To

constitute a matter as res-judicata under section 11 of the

Code, the following conditions must be satisfied:

1. The matter directly and substantially in issue in

the subsequent suit must be the same matter which was

directly and substantially in issue either actually or

constructively in the former.

2. The former suit must have been a suit between

the same parties or between parties under whom they or

any of them claim.

3. Such parties must have been litigating under the

same title in the former suit.

4. The court which decided the former suit must be

a court competent to try the subsequent suit or the suit in

which such issue is subsequently raised.

5. The matter directly and substantially in issue in

the subsequent suit must have been heard and finally

decided by the court in the former suit.

61. Section 11of the Code bars trial of any suit as well

as an issue which had been decided in a former suit. Issues

are of three kinds: (i) Issue of fact; (ii) Issue of law; and (iii)

Mixed issues of law and fact. A decision on an issue of

fact, however erroneous it may be, constitutes res- judicata

between the parties to the previous suit and cannot be

reagitated in collateral proceedings. Law to this effect was

laid in Mathura Prashad (1970 (1) SSC 613). A mixed issue

of law and fact also, for the same reasons, operates as res-

judicata.

62. To invoke plea of res-judicata it should be shown

that the court which decided the former suit must have

been a court competent to try the subsequent suit. Thus,

the decision in a previous suit by a court, not competent to

try the subsequent suit, will not operate as res-judicata.

The expression "competent to try" means "competent to

try the subsequent suit if brought at the time the first suit

was brought". In other words, the relevant point of time for

deciding the question of competence of the court is the

date when the former suit was brought and not the date

when the subsequent suit was filed. In order that a decision

in a former suit may operate as res-judicata, the court which

decided that suit must have been either - (a) a court of

exclusive jurisdiction; or (b) a court of limited jurisdiction;

or (c) a court of concurrent jurisdiction.

In industrial jurisdiction principles analogus to res-

judicata are applicable.

63. Now it would be considered as to whether the

High Court is competent to try on industrial dispute,

relatinag to rights and liabilities created under the Act.

Such proposition was raised before the Apex Court in

Premier Automobiles Ltd. (1975 (II) LLJ. 445), wherein

following principles were enunciated:

"(I) If the dispute is not an industrial dispute, nor does it

relate to enforcement of any other right under the

Act the remedy lies only in the Civil Court.

(II) If the dispute is an industrial dispute arising out of a

right or liability under generl or common law and not

under the Act, the jurisdiction of the Civil Court is

alternative, leaving it to the election of the suiter

concerned to choose his remedy for relief which is

competent to be granted in a particular remedy.

(III) If the industrial dispute relates to the enforcement of

a right or an obligation created undeer the Act, then

the only remedy available to the suiter is to get an

adjudication under the Act.

(IV) If the right which is sought to be enforced is a right

created under the Act such as Chapter V-A then the

remedy for enforcement is either sectin 33-C or the

raising of an industrial dispute, as the case may be."

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However, in relation to Principle No. 2, the Court

added taht "there will hardly be a dispute which will be an

"industrial dispute" within the meaning of section 2(k) of

the Act and yet will be arising out of a right or liability

under the general or common law only and not under the

Act".

64. In Rajasthan State Road Transport Corporation

(1995 Lab. I.C. 2241), the Apex Court analysed the earlier

dicta and re-stated the law as follows:

"(1) Where the dispute arises from general law of

contract, i.e. where reliefs are claimed on the basis of

the general law of contract, a suit filed in civil court

cannot be said to be not maintainable, even though

such a dispute may also constitute an "industrial

dispute" within the meaning of Section 2(k) or Section

2-A of the Industrial Disputes Act, 1947.

(2) Where, however, the dispute involves

recognition, observance or enforcement of any of

the rights or obligations created by the Industrial

Disputes Act, the only remedy is to approach the

forums created by the said Act.

(3) Similarly, where the dispute involves the

recognition, observance or enforcement of rights and

obligations created by enactments like Industrial

Employment (Standing Orders) Act, 1946- which can

be called 'sister enactments' to Industrial Disputes

Act— and which do not provide a forum for resolution

of such disputes, the only remedy shall be to

approach the forums created by the Industrial

Disputes Act provided they constitute industrial

disputes within the meaning of Section 2(k) and

Section 2-A of Industrial Disputes Act or where such

enactment says that such Dispute shall be either

treated as an Industrial dispute or says that it shall

be adjudicated by any of the forum created by the

industrial Disputes Act. Otherwise, recourse to Civil

Court is open.

(4) It is not correct to say that the remedies provided

by the Industrial Disputes Act are not equally

effective for the reason that access to the forum

depends upon a reference being made by the

appropriate Government. The power to make a

reference conferred upon the government is to be

exercised to effectuate the object of the enactment

and hence not unguided. The rule is to make a

reference unless, of course, the dispute raised is a

totally frivolous one ex-facie. The power conferred

is the power to refer and not the power to decide,

though it may be that the government is entitled to

examine whether the dispute is ex-facie frivolous,

not meriting an adjudication.

(5) Consistent with the policy of law aforesaid, we

commend to the Parliament and State Legislatures to

make a provision enabling a workman to approach

the Labour Court/Industrial Tribunal directly - i.e.

without the requirement of a reference by the

Government — in case of industrial disputes covered

by Section 2-A of the Industrial Disputes Act. This

would go a long way in removing the misgivings

with respect to the effectiveness of the remedies

provided by the Industrial Disputes Act.

(6) The certified Standing Orders framed under and

in accordance with the Industrial Employment

(Standing Orders) Act, 1946 are statutorily imposed

conditions of service and are binding both upon the

employers and employees, though they do not

amount to "statutory provisions". Any violation of

these Standing Orders entitles an employee to

appropriate relief either before the forums created by

the Industrial Disputes Act or the Civil Court where

recourse to Civil Court is open according to the

principles indicated herein.

(7) This policy of law emerging from Industrial

Disputes Act and its sister enactments is to provide

an alternative dispute resolution mechanism to the

workmen, a mechanism which is speedy, inexpensive,

informal and un-encumbered by the plethora of

procedural laws and appeals and revisions applicable

to civil courts. Indeed, the powers of the Courts and

Tribunals under the Industrial Disputes Act are far

more extensive in the sence that they can grant such

relief as they think appropriate in the circumstances

for putting an end to an industrial dispute."

Same view was taken by the Apex Court in Steel

Authority of India (supra).

65. Facts detailed in preceding sections make out

that the rights which the claimant claim and obligations

which are imposed on the University arise out of rights

and obligations created by the Act. An industrial dispute

within the meaning of section 2(k) was referred for

adjudication by the appropriate Government to this

Tribunal, invoking its powers under clause (d) of sub-

section (1) of section 10 of the Act. High Court is not

competent to adjudicate an industrial dispute. Hence,

Principle 2, referred in para 63 and Principle 1, referred in

Para 64, do not come into play. Therefore, judgement

Ex. MW2/5 cannot operate as res-judicata. It would not

restrain the claimant in any manner, from agitating her claim

against the University.

66. It is well settled that negative language used in

section 25-F of the Act imposes a mandatory duty on the

employer, which is condition precedent to retrenchment of

a workman. Contravention of mandatory requirements of

section 25-F of the Act would invalidate the retrenchment

and render it void ab initio. Reference can be made to the

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precedents in Auro Engineering (Pvt.) Ltd., Nasik (1992

Lab. I.C. 1364) and Ollur Regional Imitation Diamond

Manufacuring Industrial Co-op. Society Ltd. [1993 (II) LLJ

174]. As detailed above retrenchment of the claimant is

illegal and void ab initio. Issue is, therefore, answered in

favour of the claimant and against the University.

Relief

67. As concluded above, the claimant was engaged

by the University through the Contractor by way of creation

of make believe contract agreement, which was a perfect

paper arrangement. On lifting of veil, the University was

found to be the real employer. Her services were disengaged

under the garb of award of housekeeping service agreement

to the New Contractor. Her retrenchment was found to be

void ab initio. She, being an employee of the University

cannot be retrenched by the Contractor or the New

Contractor. She is deemed to be in the service of the

University Question comes whether she is entitled to full

back wages. For an answer in her favour, show was under

an obligation to establish that she remained un-employed

since the date of her retrenchment. No evidence has been

adduced by the claimant on that point. Thus it cannot be

said that she remained unemployed, Since the date of

dispensing with her services by the University. The Apex

Court and High Courts deal with the issue of award of

compensation, when reinstatement in service was not found

expedient. Those precedents may help the Tribunal in

ascertaining the quantum of back wages, which may be

awarded to the claimant. In S.S. Shetty [1957 (11) LLJ 696]

the Apex Court indicated some relevant factors which an

adjudicator has to take into account in computing

compensation in lieu of reinstatement, in the following

words:

"The industrial Tribunal would have to take into

account the terms and conditions of employment,

the tenure of service, the possibility of termination

of the employment at the instance of either party, the

possibility of retrenchment by the employer or

resignation or retirement by the workman and even

of the employer himself ceasing to exist or of the

workman being awarded various benefits including

reinstatement under the terms of future awards by

Industrial Tribunal in the event of industrial disputes

arising between the parties in future...... In computing

the money value of the benefits of reinstatement, the

industrial adjudicator would also have to take into

account the present value of what his salary, benefits

etc., would be till he attained the age of

superannuation and the value of such benefits would

have to be computed as from the date when such

reinstatement was ordered under the terms of the

award.

Having regard to the considerations detailed above,

it is impossible to compute the money value of this benefit

of reinstatement awarded to the appellant with mathematical

exactitude and the best that any tribunal or court would do

under the circumstances would be to make as correct as

estimate as is possible bearing, of course in mind all the

relevant factors pro and con."

68. A Divisional Bench of the Patna High Court in B.

Choudhary (1993) Lab. 1.1755 (1758) deduced certain

guidelines which have to be borne in mind in determining

the quantum of compensation viz. (i) the back wages

receivable; (ii) compensation for deprivation of the job with

future prospect and obtainability of alternative

employment; (iii) employee's age; (iv) Length of service in

the establishment; (v) capacity of the employer to pay and

the nature of the employer's business; (vi) gainful

employment in mitigation of damages; and (viii)

circumstances leading to the disengagement and the past

conduct. These factors are only illustrative and not

exhaustive. In addition to the amount of compensation, it

is also within the jurisdiction of the Tribunal to award

interest on the amount determined as compensation.

Furthermore, the rate of such interest is also in the

discretion of the Tribunal. Reference can be made to Tabesh

Process, Shivakashi (1989 Lab. I.C. 1887).

69. In Assam Oil Co. Ltd. [1960 (1) LLJ 587] the Apex

Court took into account countervailing facts that the

employer had paid certain sums to the workmen and her

own earning in the alternative employment and ordered

that "it would be fair and just to direct the appellant a

substantial sum as compensation to her". In Utkal

Machinery Ltd. [1966 (1) LLJ 398] the amount of

compensation equivalent to two year salary of the employee

awarded by the industrial Tribunal was reduced by the

Supreme Court to an amount equivalent to one years salary

of the employee in view of the fact that she had been in

service with the employer only for 5 months and also took

into consideration the unusual manner of her appointment

at the instance of the Chief Minister of the State. In

A.K. Roy [1970 (1) LLJ 228] compensation equivalent to

two years salary last drawn by the workmen was held to be

fair and proper to meet the ends of justice. In Anil Kumar

Chakaraborty (1962 (I1) LLJ 483) the Court converted the

award of reinstatement into compensation of a sum of

Rs. 50000/- as just and fair compensation in full satisfaction

of all his claims for wrongful dismissal from service. In

O.P. Bhandari (1986 (1) LLJ 509), the Apex Court observed

that it was a fit case for grant of compensation in view

reinstatement. The Court awarded compensation equivalent

to 3.33 years salary as reasonable. In M.K. Aggarwal (1988

Lab.1.C. 380 ), the Apex Court through confirmed the order

of reinstatement yet restricted the back salary to 50% of

what would otherwise be payable to the employee. In

Yashveer Singh (1993 Lab. I. C.44) the court directed

payment of Rs. 75000/- in view of reinstatement with back

¹Hkkx II—[k.M 3(ii)º

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1989

wages. In Naval Kishor (1984 (1I) LLJ 473) the Apex Court

observed that in view of the special circumstances of the

case adequeate compensation would be in the interest of

the appellant. A sum of Rs. 2 lac was awarded as

compensation in lieu of reinstatement. In Sant Raj (1985 (ii)

LLJ 19) a sum of Rs. 2 lac was awarded as compensation in

lieu of reinstatement. In Chandu Lal (1985 Lab.I.C. 1225) a

compensation of Rs. 2 lac by way of back wages in lieu of

reinstatement was awarded. In Ras Bihari (1988 Lab. I.C.

107) a compensation of Rs. 65000/-was granted in lieu of

reinstatement, since the employee was gainfully employed

elsewhere. In V.V. Rao (1991 Lab. I.C. 1650) a compensation

of Rs. 2.50 lac was awarded in lieu of reinstatement.

70. The claimant rendered continuous four years

service to the University, when shw was illegally retrenched.

She had to fight for about four years for redressal of her

grievances. The circumstances, in which she was

retrenched and mass unemployment prevalent in economic

field, which may come in the way when some one goes for

an alternative employment, besides other factors of this

case, persuade me to award 20 percent back wages from

the date of retrenchment till the date the award becomes

operative under section 17-A of the Act, besides

reinstatement of the climant in the service of the University,

with continuity and all consequential benefits. An award

is, accordingly, passed. It be sent to the appropriate

Government for publication.

DR. R.K. YADAV,

Presiding Officer

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New Delhi, the 1st February, 2012

S.O. 824.—In pursuance of Section 17 of the

Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 05/2010)

of the Central Government Industrial Tribunal cum Labour

Court No.1 New Delhi as shown in the Annexure, in the

Industrial dispute between the Vice Chancellor, Indira

Ghandhi National Open University and their workman

which was received by the Central Government on

01.02.2012.

[F.No. L-42012/95/2009-IR(DU)]

RAMESH SINGH, Desk Officer

ANNEXURE-B

BEFORE R.K. YADAV, PRESIDING OFFICER,

CENTRAL GOVT. INDUSTRIAL TRIBUNAL NO. 1,

KARKARDOOMA COURT COMPLEX: DELHI

I.D. No.5/2010

Smt. Babita W/o Shri Ravinder Kumar

H.No. A 1st F\ 158, Mandangir,

New Delhi.

Claimant

Versus

The Vice Chancellor,

Indira Gandhi National Open University,

R.No. 1, Block No. 8, Maidan Garhi,

New Delhi-110068

Management

AWARD

Indira Gandhi National Open University (herein after

referred to as the University) was established in the year

1985 to provide cost effective and quality education to

large sections of people, including those living in remote

and far flun areas, through distance education programmes.

The University functions not only within the boarders of

the country but offers education programmes in at least 35

countries. Besides Regional Centres across the country

and in foreign countries, the University has its Central

Campus at Maidan Garhi, New Delhi, which is spread over

an area of 151.32 acres of land. At its Central Campus, the

University has a strength of about 800 officers/officials

working there.

2. The University requires considerable man-power

to carry out housekeeping services, which includes

cleaning and sanitation activities. Housekeeping services

are out-sourced by the University through a private

contractor. In the year 2004, the University awarded

contract for housekeeping services to Sybex Computer

Systems (Pvt.) Ltd. (in short the Contractor). The Contractor

engaged around 70 sweepers and cleaners to carry out its

contractual obligations. On 1st November 2007, the

University awarded contract for housekeeping services to

Spick & Span Facilities Management (Pvt.) Ltd. (in short

the New Contractor). Initially the New Contractor decided

to retain services of the sweepers and cleaners engaged

by the Contractor. But negotiations between the New

Contractor and employees of the Contractor Turned into a

complete fiasco. Sweepers and cleaners resorted to

agitation and sat on "dharna" outside the gate of Maidan

Garhi Campus of the University. Legal wrangle started

between the University and the agitators. Efforts were made

from either side to wrench one's opponent.

1990

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

3. Resort to the jurisdiction of Conciliation Officer

was taken by the sweepers and cleaners, by way of filing

their respective claim statements. Conciliation Officer

initiated conciliation proceedings, as contemplated by sub-

section (1) of section 12 of the Industrial Disputes Act,

1947 (in short the Act). No settlement could arrive at between

the parties and a failure report was submitted to the

appropriate Government. On consideration of the failure

report, so submitted, the appropriate Government referred

the dispute to this Tribunal for adjudication, invoking its

powers under clause (d) of sub-section (1) of section 10 of

the Act, vide order No. L-42012/95/2009-IR(DU) New Delhi

dated 7th January, 2010, with following terms:

"Whether the action of the management of Indira

Gandhi National Open University, in terminating the

services of their workman Smt. Babita w.e.f. 01/11/

2007 is legal and justified? If not, what relief the

workman is entitled to?"

4. Smt. Babita claims in her claim statement that she

was working with the University as "Safai Karamchari" in

its housekeeping department since January 2006. She had

rendered more than 240 days continuous service with the

University. At the time of entering into the services of the

University, she was asked to fill in certain forms, which

forms duly filled and signed by her are in the custody of

the University. No appointment letter was issued in her

favour, inspite of her request in that behalf. Since inception

of her engagement, the University had indulged into unfair

labour practices and flouted implementation of labour laws

concerning her service conditions. At times she, alongwith

her colleagues, was kept at its rolls by the University, while

during intermittent spells her services were transferred at

the roll of one contractor or the other. This device was

adopted with a view to discount her continuity in service

and seniority in employment so that liability to pay

retrenchment compensation under the Act and other

benefits under various laws may be avoided.

5. Contributions towards social securities, namely,

ESI, medical benefits and provided fund were deducted

from her wages by the University, pleads the claimant.

Despite payment of contributions towards above social

securities, the University never issued any medical card

and provident fund statement or account number, but

passed on that responsibility on the shoulders of the

Contractor. Facility of earned, annual, privileged, casual,

weekly off, festival and medical leaves were not accorded.

Though work was taken on Sundays and holidays from

her but no compensatory leave or overtime wages were

given to her. She used to get wages at the rate of Rs. 172/-

per days, amounting to somewhere near to Rs. 4500/- per

month.

6. On 1st November 2007, the University decided to

place her services at the disposal of a contractor, whose

engagement for housekeeping work was neither

communicated nor he was introduced to her. To her utter

surprise a contractor surfaced on scene and told her and

her colleagues that he will pay them Rs. 3470/- each per

month. He announced that interested persons may stay at

work-place and others may leave for good. The claimant

and her colleagues wanted to see the Vice-Chancellor to

appraise him of their grievances, but they were stopped at

the gate of the University campus. Services of the claimant

and others were terminated. The University called some

anti-social elements and got sever beatings administered

to her and her colleagues at their hands. Police was lso

called by the University authorities, to keep their hands

clean.

The University had not served one month notice nor

paid wages in lieu of the notice. Retrenchment compensation

was also not paid to her. Her services were not done away

on infiction of punishment for a disciplinary action, hence

action of the University is violative of the provisions of

the Act and principles of natural justice. She claims

reinstatement in the services of the University with

continuity and consequential benefits.

8. The University demurs the claim pleading that the

claimant was never employed by it. No salary/wages or

other emoluments were paid by it to the claimant. There

existed no relationship of employer and employee between

the parties. Hence there was no occasion for the University

to terminate services of the claimant. In view of these facts,

reference order is improper and claim statement is liable to

be rejected, pleads the University.

9. To outsource housekeeping services, the

University engaged services of the Contractor. vide

agreement dated 1.11.2004, which agreement was extended

upto 31.10.2007. The claimant was working with the

Contractor to provide housekeeping services at the campus

of the University. The Contractor is essential and proper

party, pleads the University. In agreement entered into

between the Contractor and the University it was stipulated

that empolyees of the Contractor at no point of time would

be treated as employees of the University. The University

laid emphasis on a few clauses of the agreement, which are

extracted thus:

"12 Provider shall continue to be responsible for the

personnel employed by him, in respect of terms and

conditions of their service, payments, attendance,

medical care, other disciplinary matters etc. who shall

remain fully under the administrative and financial

control and supervision of the Provider, except that

the University shall be the sole Arbitrator in respect

of nature of the duties to be entrusted to and the

¹Hkkx II—[k.M 3(ii)º

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1991

manner of performance of their duties for the purpose

of this Agreement.

13. The termporary personnel deployed by the

Provider to IGNOU shall at no time be treated as the

employees of the University and also shall have no

claim to be regularized in the services of the

University. But the Provider will not change the

personnel once deployed by it in the University

without prior permission of the University as the

frequent changes in deployment of temporary may

hamper the day to day work of the University.

23. There is no privity of contract by and between

the Provider and the University. The Temporary shall

have no right to make any claim against the

Univetrsity directly or indirectly, monetary including

wages or otherwise. The Temporary shall also have

no right to claim for any regularization. The Temporary

shall also have no claim against the University of

any dues, statutory or otherwise. Similarly, even the

representative of any Temporary who have worked

in the University shall have no right or claim against

the University.

24. The Provider has to ensure that the Temporaries

deployed are not forming any Association/Forum in

respect of IGNOU matter nor they should be allowed

to join in any Association/forum of IGNOU.

25. The Provider has to ensure timely deployment of

Temporaries as required by IGNOU and fulfil other

obligation stated in the above said terms and

conditions failing which penalty will be imposed by

the University on case to case basis from time to

time. The decision of the University will be final."

10. When contract, referred above, expired with efflux

of time, contract for housekeeping services was awarded

to the New Contractor, who initially sought to retain the

services of housekeeping staff for his own contract.

However, owing to illegal and unjustified demands of the

housekeeping staff, the New Contractor did not engage

the claimant and her other colleagues. The claimant and

her colleagues resorted to illegal demonstration in the

University premises. A civil suit being CS(OS) No. 83 of

2008 was instituted before High Court of Delhi. The High

Court passed an interim injunction order on 15.1.2008

against the housekeeping staff and ultimately decreed the

suit on 13.3.2009.

11. The University had denied all allegations levelled

by the claimant in her claim statement. It is pleaded that the

claimant knew her status, being an employee of the

Contractor. Her services were terminated by the Contractor

and the University has no role to play in so called

termination of her services. Her claim against the University

is illegal, unwarranted and unjustified. It is pleaded that

her claim may be dismissed.

12. An application moved by the University, to

implead the Contractor as a party, was declined vide order

dated 20.4.2010.

13. On pleadings of the parties, following issues were

settled:

1. Whether there was relationship of employer and

employee between the claimant and the management?

2. Whether the claimant was an employee of Sybex

Computer System Pvt. Ltd., the Contractor?

3. As in terms of reference.

4. Relief.

14. To discharge onus resting on her, the claimant

examined herself and closed her evidence. The University

examined Smt. Bimla Madan, Shri Shiv Prakash, Dr. S.S.

Bisht and Shri Ashok Kumar Gupta to substantiate its case.

15. Arguments were heard at the bar at length. Shri

V.N. Kaushik, assisted by Ms. Sulekha Thakur, authorised

representative, advanced arguments on behalf of the

claimant, Shri V.K. Rao, assisted by Shri Aly Mirza,

authorised representative and Vibhas Vaibhav, Asstt.

Registrar (Law), raised submissions on behalf of the

University. I have given my careful considerations to the

submissions made at the bar and cautiously perused the

record. My findings on issues involved in the controversy

are as follows:

Issue No. 1 & 2.

16. Affidavit Ex. WW1/A was tendered as evidence

on behalf of the claimant, wherein she sweared that she

was in the employment of the University as "Safai

Karamchari" since January 2006. It has been projected in

Ex.WW1/A that she rendered more than 240 days service

with University. Except this new fact, other facts detailed

in Ex.WW1/A are facsimile of contents of claim statement,

which has been proved as Ex.WW1/M1. She candidly

admitted her signatures on documents Ex.WW1/M2 to

Ex.WW1/M9.

17. Smt. Bimla Madan unfolds that Regional Office

of the Employers' Provident Fund Organisation had given

code number as DL-24878 to the Contractor, while code

number 2645 was given to Smt. Babita, the employee of the

above company. Name of Babita appears in statements of

contributions Ex.MW1/1 and Ex.MW1/2, filed by her

employer for the period 1.4.2005 to 31.3.2006 and 1.4.2006

to 31.3.2007 respectively.

18. Shri Shiv Prakash entered the witness box to

prove copy of plaint, filed by the University before High

Court of Delhi, written statement of defendent Nos. 3 to 6,

1992

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

affidavit of Shri U.S. Tolia tendered as evidence in that

case, interim order dated 15.1.2008 and judgement dated

13.3.2009 passed by justice Ms. Rekha Sharma. These

documents are proved as Ex.MW2/1 to MW2/5

respectively. He clarified that no appeal was preferred

against the judgement Ex.MW2/5.

19. Dr. S.S. Bisht tendered his affidavit Ex.MW3/A as

evidence, wherein he announced that the claimant was

never appointed by the University in its services. No salary

was ever paid to her. Services of the Contractor were availed

to outsource housekeeping services vide agreement dated

1.11.2004, which was subsequently extended upto

31.10.2007. The claimant was working with the Contractor.

With effect from 1.11.2007 contract to provide housekeeping

services was awarded to the New Contractor. He projects

that when she was not engaged by the New Contractor,

she alongwith her colleagues resorted to illegal

demonstration in the premises of the University. Story of

filing civil suit and orders thereon have been re-affirmed

by Dr. Bisht. Being an employee of the Contractor, she had

filed a wrong claim statement, which is liable to be

dismissed, asserts Dr. Bisht.

20. Shri Ashok Kumar Gupta details that the

University was maintaining an account with Maidan Garhi

branch of the Punjab National Bank. The University had

issued cheques in favour of the Contractor, details of those

cheques are given in Ex.MW4/A. He identifies signatures

of Shri Mohan Lal, Branch Manager, on Ex.MW3/21 and

announces that contents of that document are true and

correct, as he himself had checked the records.

21. When facts testified by the claimant, Smt. Bimla

Madan, Dr. S.S. Bisht and Ashok Kumar Gupta are

appreciated, it came to light that the claimant had detailed

facts which are inconsistent to each other. In her claim

statement she projected a case that she was in the service

of the University since April, 2006. In her cross-examination

Ex.WW1/A she tried to assert that she was in the services

of the University since November 2006. Self-serving words,

deposed by the claimant, could not withstand rigors of

cross-examination, wherein she admitted that Ex.WW1/M2,

Ex.WW1/M3, Ex.WW1/M4, Ex.WW1/M5, Ex.WW1/M6,

Ex.WW1/M7 and Ex.WW1/M8 bear her signatures. when

perused it came to light that Ex.WW1/M4 to Ex.WW1/M8

are wage-sheets of the Contractor, though which salary of

the claimant and her colleagues were released by the former

in their favour. These documents project her to be employee

of the Contractor. Thus by an admission of her signatures

on above documents she allowed a fact to spill over, which

demolishes her case of being an employee of the University.

Ex.WW1/M2 and Ex.WW1/M3 are also photocopy of

scrolls through which payments were released by the

Contractor to the claimant and her colleagues. In the end

she gave in and deposed that she was not aware as to who

engaged her. However she made a faint attempt to project

her cause when she asserted that she used to work for the

University. Conspectus of above facts spill the beans and

announce her to be an employee of the Contractor.

22. Dr. S.S. Bisht erected castle for the University

brick by brick when he deposed that the claimant was

working with the Contractor, whom housekeeping services

were outsourced vide agreement dated 1.11.2004, copy of

which is Ex.MW3/1. This agreement was extended upto

31/10.2007. When aforesaid contract expired, contract for

housekeeping services was awarded to the New Contractor,

vide agreement Ex.MW3/2. When New Contractor did not

engage the services of the claimant and her colleagues,

they resorted to illegal demonstration in the premises of

the University. The contractor used to raise his bills, to

whom payments were made through cheques EX.MW3/5,

Ex.MW3/6, Ex.MW3/7, Ex.MW3/8, Ex.MW3/9 and

Ex.MW3/10, deposes the witness. Some of the bills raised

by the Contractor, besides sanction accorded by the

University are Ex.MW3/11, EX.MW3/12, Ex.MW3/13,

Ex.MW3/14, Ex.MW3/15, Ex.MW3/16, Ex.MW3/17,

Ex.MW3/18 and Ex.MW3/19 Dr. Bisht detailed. Payments

were made to the Contractor through cheques, which were

honoured and cleared and letter Ex.MW3/21 was written

by the bank in that regard. He had proved list of contractors

as Ex.MW3/W2, to whom the work was awarded by the

University since 16.12.1991 till date. Out of facts unfolded

by Dr. Bisht it came over the record that the University had

outsourced housekeeping services since 16.12.1991. On

1.11.2004 work was awarded to the Contractor and on

1.11.2007 it was awarded to the New Contractor. Claimant

was an employee of the Contractor, who used to pay wages

to her. Smt. Bimla Madan gives re-affirmation to facts

unfolded by Dr. Bisht. She had proved statements of

contribution, filed by the Contractor in the Regional Office

of the Employees' Provident Fund Organisation, in which

statements name of the claimant does appear as an

employee of the Contractor. Shri Ashok Kumar Gupta proves

various payments made by the University to the Contractor,

details of which are enlisted in Ex.MW3/21. Sequences of

events, brought over the record through the depositions

of aforesaid witnesses and documents proved by them,

highlight that the claimant was an employee of the

Contractor, who used to make payment of her salaries to

her. It was the Contractor who was her pay master.

23. Whether the claimant, who was an employee of

the Contractor, can maintain a dispute against the

University? For an answer to this proposition, the Tribunal

has to take note of the law contained in section 10 of the

Contract Labour (Regulation and Abolition) Act, 1970 (in

short the Contract Labour Act), which makes provision for

prohibition of em[ployment of contract labour. For sake of

convenience provisions of section 10 of the Contract

Labour Act are reproduced thus:

¹Hkkx II—[k.M 3(ii)º

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1993

"10. Prohibition of employment of contract labour:—

(1) Notwithstanding anything contained in this Act,

the appropriate Government may, after consultation with

the Central Board or, as the case may be, a State Board,

prohibit, by notification in the Official Gazette, employment

of contract labour in any process, operation or otehr work

in any establishment.

(2) Before issuing any notification under sub-section

(1) in relation to an establishment, the appropriate

Government shall have regard to the conditions of work

and benefits provided for the contract labour in that

establishment and other relevant factors, such as—

(a) whether the process, operation or other work is

incidental to, or necessary for the industry, trade,

business, manufacture or occupation that is carried

on in the establishment,

(b) whether it is of perennial nature, that is to say, it is of

sufficient duration having regard to the nature of

industry, trade, business, manufacture or occupation

carried on in that establishment;

in that establishment or an establishment similar

thereto;

(d) whether it is sufficient to employ considerable number

of whole-time workmen.

Explanation—If a question arises whether any

process or operation or other work is of perennial

nature, the decision of the appropriate Government

thereon shall be final."

24. As emerge out of the provisions of sub-section

(1) of section 10 of the Contract Labour Act, the appropriate

Government may, by notification in the official gazette,

prohibit employment of contract labour in any process,

operation or other work in any establishment. When

employment of contract labour is prohibited, by issuance

of a notification in official gazette by the appropriate

Government, what would be the status of the contract

labour employed in the establishment? Such a question

arose before the Apex Court in Steel Authority of India Ltd.

[2001 (7) (S.C.C.I]. The Apex Court ruled therein that there

cannot be automatic absorption of contract labour by

principal employer on issuance of notification by the

appropriate Government on abolition of contract labour

system, under sub-section (1) of section 10 of the Contract

Labour Act. It would be expedient to reproduce the law laid

by the Apex Court, which is extracted thus:

".....they fall in three classes: (1) 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 adjudicator/

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 contract labour working in the

establishment was ordered, (2) where contract was

found to be a sham and nominal, rather a comouflage,

in which case the contract 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

the abolition of contract labour but present instances

wherein the court pierce the veil and declared the

correct position as a fact at the stage after

employment of contract labour stood prohibited, (3)

where in discharge of a statutory obligation of

maintaining a canteen in an establishment the

principal employer availed the services of the

contractor, the courts have held that the contract

labour would indeed be employees of the principal

employer".

25. The Court ruled that neither section 10 of the

Contract Labour Act nor any other provision in that Act,

whether expressly or by necessary implication, provides

for automatic absorption of contract labour on issuance of

a notification by the appropriate Government under sub-

section (1) of section 10, prohibiting employment of contract

labour, in any process operation or other work in any

establishment. Consequently the principal employer connot

be required to order for absorption of the contract labour

working in the establishment concerned. It was further ruled

therein that in Saraspur Mills case [1974 (3) SCC 66], the

workman engaged for working in the canteen run by the

Cooperative Society for the appellcant were the employees

of the appellant mills. In Basti Sugar Mills (AIR 1964 S.C.

355) a canteen was run in the factory by the Cooperative

Society and as such the workers working in the canteen

were held to be employees of the establishment. The Apex

Court ruled that these cases fall in class (3) mentioned

above. Jadgment in Hussainbhai (1978 Lab. I.C. 1264) was

considered by the Apex Court in the said precedent and it

was ruled therein that the said precedent falls in class (2),

referred above. The Apex Court concluded that on issuance

of prohibitive notification under section 10 of the Contract

Labour Act prohibiting employment of contract labour or

otherwise, in an industrial dispute brought before it by any

contract labour in regard to conditions of service, the

Industrial Adjudicator will have to consider the question

whether the contractor has been interposed either on the

ground of having undertaken to produce any given result

for the establishment or for supply of contract labour for

work of the establishment under a genuine contract or is a

mere ruse/camouflage to evade compliance of various

beneficial legislation so as to deprive the workers of the

benefit thereunder. If the contract is found to be not genuine

but a mere camouflage, the so called contract labour will

1994

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

have to be treated as employees of the principal employer

who shall be directed to regularize the services of the

contract labour in the establishment concerned, subject to

the conditions as may be specified by it for that purpose.

26. As announced by the Apex Court, on issuance of

a prohibitive notification, prohibiting employment of

contract labour or otherwise in any industrial dispute

brought before it by the contract labour in regard to

conditions of his service, the industrial adjudicator will

have to consider the question whether the contractor has

been interposed either on the ground of having undertaken

to produce any given result in the establishment or for

supply of the contract labour for the work of the

establishment under a genuine contract or it is a mere ruse/

camouflage to evade compliance of beneficial legislation

so as to deprive the workers of the benefits therein. Thus it

was ruled that a contract labour can raise a dispute before

the industrial adjudicator in regard to his conditions of

service and in case the contract is found to be not genuine

but a mere camouflage, the so called contract labour will

have to be treated as employees of the principal employer.

Also see Standard Vacuum Refining Co. of India Ltd. [1960

(II) LLJ. 233], which was referred with approval in Steel

Authority of India.

27. In Shivandan Sharma [1955(1) LLJ 688], the

respondent Bank entrusted its Cash Department under a

contract to the Treasures who appointed cashier, including

the appellant Head Cashier. The question before the Apex

Court was: was the appellant an employee of the Bank? On

construction of the agreement entered into the Bank and

the Treasure, the Court laid down:

‘‘If a master employs a servant and authorizes him to

employ a number of persons to do a particular job and to

guarantee their fidelity and efficiency for a cash

consideration, the employees thus appointed by the servant

would be equally with the employer, servant of the master."

In the above precedent the Apex Court for the first

time laid down the crucial test of supervision and control

for determining the relationship of employer and employee.

28. In Hussainbhai (supra) the petitioner, who was

manufacturing ropes, entrusted the work to a contractor

who engaged his own workers. When, after some time the

workers were not engaged, they raised an industrial dispute

that they were denied employment by the petitioner. On

reference of that dispute, the labour court passed an award

against the petitioner. When matter reached the Apex Court,

on examination of various factors and applying the effective

control test, it was held that though there was no direct

relationship between the petitioner and the workers yet on

lifting the veil and looking at the conspectus of factors

governing employment, the naked truth, though drapped

in different perfect paper arrangement, was that the real

employer was the petitioner, not the immediate contractor.

The apex Court stated law in following words:

"Where a worker or group of workers labours to

produce goods or services and these goods or

services are for the business of another, that other

is, in fact, the employer. He has economic control

over the workers' subsistence, skill, and continued

employment. If he, for any reason, chokes off, the

worker is, virtually, laid off. The presence of

intermediate contractor with whom alone the workers

have immediate or direct relationship ex-contractu is

of no consquence when, on lifting the veil or looking

at the consepectus of factors governing employment,

we discern the naked truth, though draped in different

perfect paper arrangement, that the real employer is

the management, not the immediate contractor***.

If the livelihood of the workmen substantially

depends on labour rendered to produce goods and

services for the benefit and satisfaction of an

enterprise, the absence of direct relationship or the

presence of dubious intermediaries or the make-

believe trappings of detachment from the

management cannot snap the real-life bond. The story

may vary but the inference defies ingenuity. The

liability cannot be shaken off. Of course, if there is

total dissociation in fact between the disowning

management and the aggrieved workmen, the

employment is, in substance and real-life terms, by

another. The management's adventitious connections

cannot ripen into real employment."

As noted above, this precedent does not present an

illustration of abolition of contract labour but an instance

where the Court pierced the veil and declared the correct

position to the effect that the contract labours were

employees of the principal employer and not of the

contractor.

29. In Steel Authority of India (supra) it has been

ruled that the term "contract labour" is a species of workman.

A workman may be hired: (1) in an establishment by the

principal employer or by his agent with or without the

knowledge of the principal employer, or (2) in connection

with the work of an establishment by the principal employer

through a contractor or by a contractor with or without the

knowledge of principal employer. Where a workman is hired

in or in connection with the work of an establishment by

the principal employer through a contractor, he merely acts

as an agent so there will be master and servant relationship

between the principal employer and the workman. But when

a workman is hired in or in connection with the work of an

establishment by a contractor, either because he has

undertaken to produce a given result for the establishment

or because he supplies workmen for any work of the

establishment, a question might arise whether the

contractor is a mere camouflage as in Hussainbhai's case

(supra) and in Indian Petrochemicals Corproation case [1999

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(6) S.C.C. 439] etc.; if the answer is in affirmative, the

workman will be in fact an employee of the principal

employer, but if the answer is in the negative, the workman

will be a contract labour.

In view of the legal proposition, referred above, it is

concluded that the claimant can maintain this dispute

against the University since the agitates that the contract

agreement between the University and the Contractor is

sham and nominal.

30. Whether any directions for deeming the contract

labour as having become the employees of the principal

employer can be issued, when the contractor or the principal

employer had violated the provisions of the Contract

Labour Act? To find an answer, provisons of that Act are

to be examined. The Contract Labour Act regulates

conditions of workers in contract labour system and

provides for its abolition by the appropriate Government

as provided by section 10 of that Act. In regard to regulatory

measures section 7 requires the principal employer to get

itself registered, while section 12 obliges every contractor

to obtain a licence, under the provisions of that Act. Section

9 places an embargo on the principal employer of an

establishment from employing contactor labour in the

establishment, when either it is not registered or its

registration has been revoked. Section 12 of the Contract

Labour Act imposes a liability on a contractor not to

undertake or execute any work through contract labour

except under and in accordance with a licence. Sections 23,

24 and 25 make contraventions of the provisions of that

Act or Rules made thereunder penal. In Dena Nath (1992

Lab. I.C. 75) the Apex Court considered the question,

whether non-compliance of the provisions of sections 7

and 12 by the principal employer and the contractor

respectively would make the contract labour employed by

the principal employer as the employee of the latter. It was

ruled that only consequence of non-compliance either by

the principal employer of section 7 or by the contractor in

complying the provisions of section 12 is that they are

liable for prosecution under the said Act. But the employees

employed through the contractor cannot be deemed to be

the employees of the principal employer.

31. In the Steel Authority of India (supra) the Apex

Court laid emphasis ".....the consequence of violation of

Sections 7 and 12 of the CLRA Act is explicitly provided in

Section 23 and 25 of the CLRA Act, it is not for the High

Courts or this Court to read in some unspecified remedy in

Section 10 or substitute for penal consequences specified

in Section 23 and 25 a different sequel, be if absorption of

contract labour in the establishment of principal employer

or a lesser or harsher punishment. Such an interpretation

of the provisions of the statute will be far beyond the

principal of ironing out the creases and the scope of

interpretative legislation and as such, clearly

impermissible". The above authoritative pronouncements

make it clear that on violations of the provisions of the

Contract Labour Act or Rules made thereunder, the contract

labour could not be deemed to have become the employee

of the principal employer.

32. Whether this Tribunal has power to order for

abolition of contract labour system in the establishment of

the University? For an answer, legal dicta is to be

considered. Before enactment of the Contract Labour Act,

this industrial adjudicator, in appropriate cases, used to

issue directions to the establishment concerned to abolish

or modify system of contract labour. Reference can be made

to precedents in United Salt Works and Industries Ltd.

[1962(I) LLJ. 131], Shibu Metal Works [1966 (I) LLJ. 717],

National Iron & Steel Co. [1967 (II) LLJ 23] and Ghatge and

Patil (Transport) Pvt. Ltd. [1968(I) LLJ. 566]. The National

Commission on Labour (1966) in para 29.11 of its report,

enumerated those factors, on which abolition of contract

labours was ordered, thus:

"29.11. Judicial award have discouraged the practice

of employment of contract labour, particularly when

the work is (i) perennial and must go on from day to

day; (ii) incidental and necessary for the work of the

factory; (iii) sufficient to employ a considerable

number of whole time workmen; and (iv) being done

in most concerns through regular workmen. These

award also came out against the system of

'middlemen."

33. After Contract Labour Act was brought on statute

book, the Apex examined jurisdiction of the industrial

adjudicator to issue directions to the establishment to

abolish contract labour in Vegoils Private Ltd. [1971(2)

S.C.C. 724] and ruled that it would be proper that the

question, whether the contract labour in the appellant

industry was to be abolished or not, be left to be dealt with

by the appropriate Government under the provisions of

that Act, if it becomes necessary. The observations made

by the Court are extracted thus:

The appropriate Government when taking action

under Section 10 will have an overall picture of the

industries carrying on similar activities and decide whether

contract labour is to be abolished in respect of any of the

activities of that industry. Therefore, it is reasonable to

conclude that the jurisdiction to decide about the abolition

of contract labour, or to put it differently, to prohibit the

employment of contract labour, is now to be done in

accordance with Section 10. Therefore, it is proper that the

question whether the contract labour regarding loading

and unloading in the industry of the appellant is to be

abolished or not, is left to be dealt with by the appropriate

Government under the Act, if it becomes necessary. On

this ground, we are of the opinion that the direction of the

Industrial Tribunal in this regard will have to be set

aside.***. The legality of the direction given by the

Industrial Tribunal abolishing contract labour in respect of

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loading and unloading from MAY 1, 1971, can also be

considered from another point of view. The Central Act, as

mentioned earlier, had come into force on February 10, 1971

Under Section 10 of the said Act the jurisdiction to decide

matters connected with prohibition of contract labour is

now vested in the appropriate Government. Therefore, with

effect from February 10, 1971, it is only the appropriate

Government that can probibit contract labour by following

the procedure and in accordance with the provision of the

Central Act. The Industrial Tribunal, in the circumstances,

will have no jurisdiction, through its award dated November

20, 1970, to give a direction in that respect which becomes,

enforceable after the date of the coming into force of the

Central Act. In any event, such a direction contained in the

award cannot be enforceable from a date when abolition of

contract labour can only be done by the appropriate

Government in accordance with the provisions of the Central

Act''.

34. In Gujrat Electricity Board [1995 (5) S.C.C. 27] the

same view was taken by the Apex Court holdings that the

authority to abolish the contract labour vests in the

appropriate Government and not in any court including

the industrial adjudicator. It would be apposite to reproduce

the observation of the court thus:

"53. Our conclusions and answers to the questions

raised are, therefore, as follows:

(i) In view of the provisions of Section 10 of the Act, it

is only the appropriate Government which has the

authority to abolish genuine labour contract in

accordance with the provisions of the said Section.

No Court including the industrial adjudicator has

jurisdiction to do so.

(ii) If the contract is sham or not genuine, the workmen

of the so-called contractor can raise an industrial

dispute for declaring that they were always the

employees of the principal employer and for claiming

the appropriate service conditions. When such

dispute is raised, it is not a dispute for abolition of

the labour contract and hence the provisions of

Section 10 of the Act will not bar either the raising or

the adjudication of the dispute. When such dispute

is raised, the industrial adjudicator has to decide

whether the contract is sham or genuine. It is only if

the adjudicator comes to the conclusion that the

contract is sham, that he will have jurisdiction to

adjudicate the dispute. If, however, he comes to the

conclusion that the contract is genuine, he may refer

the workmen to the appropriate Government for

abolition of the contract labour under Section 10 of

the Act and keep the dispute pending. However, he

can do so if the dispute is espoused by the direct

workmen of the principal employer. If the workmen

of the principal employer have not espoused the

dispute, the adjudicator, after coming to the

conclusion that the contract is genuine, has to reject

the reference, the dispute being not an industrial

dispute within the meaning of Section 2(k) of the ID

Act. He will not be competent to give any relief to

the workmen of the erstwhile contractor even if the

labour contract is abolished by the appropriate

Government under Section 10 of the Act.

(iii) I the labour contract is genuine a composite industrial

dispute can still be raised for abolition of the contract

labour and their absorption. However, the dispute,

will have to be raised invariably by the direct

employees of the principal employer. The industrial

adjudicator, after receipt of the reference of such

dispute will have first to direct the workmen to

approach the appropriate Government for abolition

of the contract labour under Section 10 of the Act

and keep the reference pending. If pursuant to such

reference, the contract labour is abolished by the

appropriate Government, the industrial adjudicator

will have to give opportunity to the parties to place

the necessary material before him to decide whether

the workmen of the erstwhile contractor should be

directed to be absorbed by the principal employer,

how many of them and on what terms. If, however,

the contract labour is not abolished, the industrial

adjudicator has to reject the reference.

(iv) even after the contract labour system is abolished,

the direct employees of the principal employer can

raise an industrial dispute for absorption of the ex-

contractor's workmen and the adjudicator on the

material placed before him can decide as to who and

how many of the workmen should be absorbed and

on what terms".

35. In Steel Authority of India (supra) the Apex Court

had referred the precedents in Vegoils case (supra) and

Gujrat Electricity Board (supra) with approval. Thus it

emerges that power to abolish contract labour system vests

with appropriate Government, under section 10 of the

Contract Labour Act, and not with any court including the

industrial adjudicator. The Tribunal has not been saddled

with any responsibility to abolish contract labour in an

establishment, on parameters enacted in sub-section (2)

of section 10 of the Contract Labour Act.

36. Now I would turn to the facts of the present

controversy. It is not a case where an employee of a

contractor, employed in a statutory canteen, has invoked

the jurisdiction of this Tribunal . This matter, as projected

by the claimant, is left to be approached on the proposition

as to whether contract agreement entered into between

the University and the Contractor was sham and nominal.

For an answer to this proposition, it would be expedient to

examine the contract agreement, which has been proved

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as Ex.MW3/1 by Dr. Bisht. In construction of contents of

Ex.MW3/1, this Tribunal cannot be oblivions of the rules

viz., written instruments shall, if possible, be so

interpreted"ut res migis valeat quam pereat" (a liberal

construction should be put upon written instruments, so

as to uphold them, if possible) and that such a meaning

shall be given to it as may carry out and effectuate to the

fullest extent the intention of the parties.

37. Elementary principle of law relative to contracts

is that parties to contracts are to be allowed to regulate

their rights and liabilities themselves and the Courts will

only give effect to the intention of the parties as it is

expressed by the contract. However the law in some cases

overrides the will of the individual and renders ineffective

and futile his expressed intention or contract. No Court or

tribunal will lend its aid to a man who founds his cause of

action upon an immoral or an illegal act. A contract cannot

be made the subject of an action if it impeachable on the

grounds of dishonesty, or as being opposed to public

policy, if it be either contra bonos mores, or forbidden by

law. No court or tribunal will allow itself to be made the

instrument of enforcing obligations alleged to arise out of

a contract or transaction which is illegal.

38. Whether Ex.MW3/1 contains clauses which are

contra bonous mores or forbidden by law? When perused,

clause 24 of Ex.MW3/1 makes it clear that right to form or

join an association, in respect of IGNOU matter, has been

denied to an empolyee of the Constractor. For sake of

convenience contents of that clause are reproduced thus:

"24. the provider has to ensure that the Temporaries

deployed are not forming any Association/Forum in

respect of IGNOU matter nor they should be allowed

to join in any Association/Forum of IGNOU."

39. Right to form association or unions is a

fundamental right guaranteed to every citizen by clause

(1)(c) of Article 19 of the Constitution of India. Guarantee

of right to form an association or union has to be read with

clause (4) of the aforesaid Article, which permits imposition

of legal restrictions on the right in so far as such

restrictions my be reasonably required in the interest of

the sovereignty and intergrity of India, public order and

morality. The right to form associations or unions refers

not only to the initial commencement of the association

but also to continuation of the association as such, as it is

obvious that if an association has to be dissolved the

moment it has been formed, it cannot be said that the

members have the right to form the association. The

restriction imposed by the University on employees of the

Contractor does not answer the requirement of clause (4)

of Article 19 of the Constitution and is violative of the

fundamental right guaranted to the claimant and her

colleagues.

40. There is other facet of the coin. The Act is a

legislation relating to what is known as "collective

bargaining" in the economic field. This policy is implicit in

the definition of "industrial dispute". See Titagarh Jute Co.

Ltd. (1979 Lab. I.C. 513). "An agreement between a single

employer or an association of employers on one hand and

a labour union on the other, which regulates the terms and

conditions of employment" is known as collective

bargaining agreement. The policy behind the concept of

collective bargaining is to protect workmen as a class

against unfair labour practices. A dispute of an individual

workman would acquire status of an industrial dispute if it

affects the rights of the workmen as a class. An industrial

dispute denotes two qualities which distinguish it from an

individual dispute, namely (i) that the dispute relates to

industrial matter, and (ii) that on one side at least of the

dispute the disputant are a body of men acting collectively

and not individually. The clause, referred above, puts

restriction on the claimant and her colleagues to act

collectively as a body of men to protect their rights while

working with the Contractor, who had engaged them to

produce a given result in terms of agreement Ex.MW3/1,

Contents of clause 24 of Ex.MW3/1, being unlawful, cannot

be supported at law.

41. A restriction is imposed on the claimant and her

colleagues from making any claim against the University

directly or indirectly, monetary including wages or

otherwise as contained in clause 23 of Ex. MW3/1, which is

not in conformity with the provisions of the Contract Labour

Act. Primary responsibility to pay wages to an employee

employed by a contractor rests upon the latter. But on his

failure to make payment of wages within the prescribed

period or in the event of making short payment, the principal

employer has been saddled with the responsibility to make

payment of wages in full or the unpaid balance due, as the

case may be, to the contract labour, enacts sub-section (4)

of section 21 of the Contract Labour Act. Consequently

this part of clause 23 of Ex. MW3/1 is to be discarded,

being violative of law.

42. In mercantile transactions stipulations are agree

upon between the parties on principal to principal or

principal to agent basis. In both the propositions there is

privity of contract between them. Absence of privity of

contract would make them strangers to each other, in respect

of alleged covenanted or parol agreement, as the case may

be. In clause 23 pf Ex. MW3/1 it is projected that there is no

privity of contract by and between the Provider (the

Contractor) and the University. The proposition referred

above is absurd. Privity of contract is the relation which

exists between the immediate parties to a contract, which is

necessary to enable one person to sue another on it. It is a

relationship between persons arising under a contract.

There may be (1) privity of contract, or (2) privity of estate.

When ex.MW3/1 is read, privity of contract between the

contractor and the University emerge out. Proposition,

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referred above, cannot be given effect to.

43 ''Consideration'' of some sort or other is so

necessary to the formation of a contract. A nudum pactum,

or agreement to do or pay something on one side, without

any consideration on the other, will not at all supoort any

action, and a man cannot be compelled to perform it. To

constitute consideration, there must be an act, abstinence

or promise on the part of promise or some other person at

the desire of the promisor. A consideration must be valuable

and not superficial, it must be material and not sentimental

or imaginary. It must be a material detriment to the promisee

or a benefit to the promisor. Section 2 of the Contract Act

defines consideration. "When at the desire of the promisor,

the promisee or any other persons, has done or abstained

from doing, or does or abstains from doing something,

such act or abstinence or promise is called a consideration

for the promise".

44. The consideration for a promise must have some

tangible value in the eye of law. Its adequacy is not material.

Though adequacy of consideration will not be examined

by the courts, yet it must not be colourable merely nor

illusory. A mere moral obligation arising from a past benefit

not conferred at the request of the defendant is not a good

consideration. However consideration derived from moral

obligations, in which there has been a legal right deprived

of legal remedy, the defendant would be held liable, without

putting moral duty at par with legal consideration. These

propositions may require a court or a tribunal to examine

whether there was legal consideration for the promise.

45. Whether there is any legal consideration for the

promise made by the Contractor to the University? For an

answer constents of clause 15 of Ex. MW3/1 are to be

examined, which are extracted thus:

"15. In consideration of the obligation undertaken

by the Provider, under this Agreement, the University

shall pay Provider charges on the basis of number of

such personnel actually deployed by the Provider

for the effective operation of this Agreement, on the

rates quoted by the Provider in their Tender based

on the direction and guidelines issued by the Local

Government (NCT of Delhi). The rates mentioned in

Tenders are as follows:"

46. As detailed above charges on the basis of number

of personnel deployed on the rates quoted by the Contractor

in Tender based on the direction and guidelines issued by

the Local Government (NCT of Delhi) where to be paid to

him by the University. In Ex. MW3/1 those rates are not

detailed. Thus tender document becomes a part of

Ex. MW3/1. It has not been placed before the Tribunal. As

detailed above, adquacy of consideration, may prove to be

beyond the pale of jurisdiction of a civil court. But this

Tribunal has to examine adequacy of consideration to

ascertain as to whether Ex. MW3/1 is genuine and not

sham and nominal. The Tribunal is supposed to examine as

to whether the charges on the basis of number of personnel

deployed on rates quoted in tender document project

minimum wages to be paid to contract labours, besides

remunerations derived by the Contractor. Assessment of

these factors may enable the tribunal to reach a conclusion

whether the Contractor had put his hands to Ex. MW3/1

on principal to principal or agent to principal basis. Absence

of tender document created a vacuum. Parol evidence was

brought on record to the effect as to what payments were

made to the Contractor from time to time. But absence of

facts, as to what were the rates of minimum wages, what

number of contract labours worked in a particular month,

on how many days in a month a contract labour worked,

whether overtime work was performed by a contract labour

in the month, whether a contract labour worked on Sunday,

holidays and weekly off days in a month, would leave the

Tribunal in lurch.

47. Wages sheet Ex. WW1/M4 to Ex. MWW1/M8

project total work days of the respective months for which

the claimant worked, besides the number of days on which

she remined on leave without pay. These documents project

minimum rates of wages paid to her in a month, out of

which deductions towards E.P.F and E.S.I subscriptions

were made. Bills raised by the Contractor and sanction

accorded by the University are proved as Ex. MW3/11 to

Ex. MW3/19. Cheques issued in favour of the Contractor

are proved as Ex. MW3/5 to Ex. MW3/10. Despite my best

efforts to reconcile contents of documents referred above.

I could not work out the rates on which the Contractor was

paid by the University for services rendered by him. Thus

adequacy of consideration for services rendered by the

for services rendered by the Contractor has not surfaced

over the record. Vacuum of evidence in that regard made

me to comment that the University could not establish

factors in favour of genuineness of contract agreement

Ex. MW3/1.

48. Now it would be seen whether it was the

Contractor who exercised his control or supervision on the

claimant? Factors of such control and supervision were

described in various precedents, which would be noted

herein under. In Chintaman Rao [1958 (ii) LLJ 252] the Apex

Court ruled that the concept of employment involves three

ingredients : (1) employer, (2) employee, and (3) the contract

of employment. . The employer is one who employs, that

is, one who engages the services of other persons. The

employee is one who works for another for hire. The

employment is the contract of service between the employer

and employee where under the employee agrees to serve

the employer subject to his control and supervision. In

Food Corporation of India [1985 (ii) LLJ 4] Justice Desai,

speaking for the Apex Court, announced that a contract of

employment "discloses a relationship of command and

obedience between them". Where a Contractor employs a

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workman to do the work which he contracted with a third

person to accomplish, the workman of the Conractor would

not without something more become the workman of third

person.

49. In Dharangadhara Chemical Works Limited [1957

(1) LLJ 477], the Apex Court ruled that test of "supervision

and control may be taken as the prima facie test for

determining the relationship of employment". It was further

laid that existence of the right in the master to supervise

and control the work to be done by the servant, not only

matter of directing that work the servant is to do but also

the manner in which he shall do his work is the prima facie

test for determining the existence of master and servant

relationship. It was suggested that correct method of

approach, would be to consider whether having regard to

the nature of work there was due control and supervision

by the employer. The greater amount of direct control

exercised over the person rendering the services by the

person contracting for them, the stronger the ground for

holding it to be a contract of service. The control and

supervision test was reaffirmed by the Apex Court in

Chintaman Rao (supra), wherein it was ruled that "worker"

was a person employed by the management and there must

be contract of service and a relationship of master and

servant between them. In Shankar Balaji Waje [1962 (1) LLJ

119], the Apex Court clarified that "control of the

management, which is a necessary element of the

relationship of master and servant is not directed towards

providing or dictating the nature of the article to be

produced or the work to be done, but refers to the other

incidents having a bearing on the process of work the

person carries out in the execution of the work. The manner

of work is to be distinguished from the type of work to be

performed. In V.P. Gopala Rao [1970 (11) LLJ 59], the Apex

Court said that it is the question of fact in each case whether

the relationship of master and servant exists between the

management and the workman and there is no abstract a

priori test of the work control required for establishing the

contract of service. It was laid therein that for holding that

the persons employed in the factory were workers within

the meaning of sub section (1) of section (2) of the Factories

Act 1948, it is to be considered that the fact that the

workman had to work in the factory implied certain amount

of supervision by the management and the nature and extent

of control varied in different industries and that when the

operation was of a simple nature, the control could be

exercised at the end of the day by the method of rejecting

the bidis which did not come up to the proper standard. It

is, therefore, not surprising that in recent years, the control

test, as traditionally formulated, has not been treated as an

exclusive test. In Silver Jubilee Tailoring House [1973 (11)

LLJ 495] the Apex Court ordained that "it is in its application

to skilled and particularly professional work that control

test in its traditional form has really broken down. It has

been said that in interpreting "control" as meaning the

power to direct how the servant should do the work, the

court has been applying the concept suited to a past age."

50. During the last three decades emphasis in the

field has shifted and no longer rests so strongly upon the

question of control. Control is obviously an important factor

and in many cases it may still be a decessive factor, but it

would be wrong to say that in every case it is a decessive

factor. In Shining Tailors [1983 (11) LLJ 143], the Apex Court

held that the piece rated workers working for a big tailoring

establishment were workman for the establishment. It was

obserbved therein that the "right of removal of the workman

or not to give work as an element of control and

supervision" which was amply satisfied to announce that

those piece rated workers were the workmen for the

establishment. The Court concluded that the proposition

that "piece rate" itself indicates relationship of independent

contract, is not correct. A servant who has full liberty to

attend to his work according to his pleasure and not

according to orders of his master, is an independent

contractor. A gold smith engaged to finish jewels within a

given time and when it was open to such goldsmith to

finish jewels within a given time or earlier and engage

themselves or others of their own were held to be

independent contractors, in K. Keswa Raddiar [1957 (1)

LLJ 645]. In the like manner a goldsmith who undertook the

manufacture of ornaments like other goldsmith which he

was asked to manufacture and was entitled to receive

remuneration which would depend upon the nature of the

work done, was held to be not under the order or control of

the proprietor of the concern for whom he was doing the

work, in Achuta Achar [1968 (1) LLJ 500]. An agreement for

selling milk on commission was held to be a contract for

service and not a contract of service, in Abad Dairy Doodh

Vitran Kendra Sanchalak Mandal, Ahmedabad (1989 Lab.

I.C. 1770). The Tiny Deposit Agents employed in deposit

mobilization activity of the bank have been held to be falling

within the definition of the workman and not an independent

contractor in the precedent in the Management of Indian

Bank [1990 (1) LLJ 50].

51. As emerge out, element of control or supervision

of employer in respect of detail of work would be an

identifying mark of the servant. Where an employer retains

the power, not only of directing what work is to be done

but also of controlling the manner of doing the work, these

factors would be determinative of his status as of a master.

His control is not directed towards providing or dictating

the nature of work to be done but refers to other incidents

having a bearing on the process of work the person carries

out in the execution of the work, Control test postulates a

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[PART II—SEC. 3(ii)]

combination of managerial and technical functions.

52. Whether elements of control or supervision of

the University in respect of details of work of the claimant

emerge out of contract agreement Ex. MW3/1? For an

answer, a few clauses of Ex. MW3/1 are to be scanned,

which are extracted thus:

"12. Provider shall continue to be responsible for the

personnel employed by him, in respect of terms and

conditions of their service, payments, attendance,

medical care, other disciplinary matters etc. who shall

remain fully under the administrative and financial

control and supervision of the Provider, except that

the University shall be the sole Arbitrator in respect

of nature of the duties to be entrusted to and the

manner of performance of their duties for the purpose

of this Agreement.

13. The temporary personnel deployed by the

Provider to IGNOU shall at no time be treated as the

employees of the University and also shall have no

claim to be regularized in the services of the

university. But the Provider will not change the

personnel once deployed by it in the University

without prior permission of the University, as the

frequent changes indeployment of temporary may

hamper the day to day work of the University.

14. The Provider shall have to change over or replace

the temporary personnel as and when required by

the University whether or not such personnel are

found guilty of any misconduct. It shall not be

necessary for the University to assign any reason to

the Provider or the concerned Person or any other

person in respect of any such change and

replacement required by the University".

53. As projected above, clause 12 announces that

personnel employed by the Contractor shall remain fully

under the administrative and financial control and

supervision of the Contractor. However an exception is

there to this general proposition to the effect that the

University shall be sole arbitrator in respect of nature of

duties to be entrusted to and the manner of performance of

their duties for the purpose of the agreement under

consideration. Another exception is contained in clause 13

wherein the Contractor has been constrained not to change

the personnel once deployed without prior permission of

the University. Further exception is contained in clause 14

wherein the Contractor is obliged to change or replace the

temporary personnel as and when required by the

University. The factors enumerated in the clauses, referred

above, make it apparent that the University retained the

power, not only of directing what work was to be done by

the claimant, but also of controlling her in respect of manner

of doing the work. Power of the Contractor to replace the

claimant from her work place was made subject to permission

of the University. Despite the choice of the Contractor to

replace the claimant he could not do so, in case University

showed its unwillingness in that regard. Contra to it, the

Contractor was duty bound to change an employee if so

commanded by the University. Such a proposition was not

dependent on a contingency of the employee being found

guilty of any misconduct. Mere wish of the University was

to prevail in the matter. Thus it is crystal clear that the

University retained power of allocation of duties, besides

right to control the manner of performance of such duties

by the claimant. The claimant was to work with the

University till its pleasure. The Contractor could not exercise

his earnest will to change her, if not consented by the

University. If the University decided to get her changed,

for any reasons whatsoever, the Contractor could not

impose her on the former, no matter her work and conduct

were satisfactory. Conspectus of these elements make it

clear that administrative control on the claimant was with

the University and not with the Contractor.

54. Contract agreement Ex. MW3/1 does not contain

any obligation on the part of the Contractor to supervise

the work of the claimant. No clause is there in the document

to show that the Contractor deployed some personnel to

supervise the work of the claimant and her other 69

colleagues. Who used to the mark attendance of the

claimant and her colleagues Ex. MW3/1draws a blank? No

parol evidence was brought in to suggest that it was the

Contractor who supervised her work. Vaccum of facts in

Ex. MW3/1 and conspicuous absence of any ocular

evidence in that regard leave no doubt to conclude that it

were the University authorities who used to supervise the

work of the claimant and her colleagues.

55. Disciplinary control is exercised by an employer

on his employees by way of codifying rules of conduct for

them. He engrafts acts of misconduct in those rules. He

punishes his employees for their blameworthy conduct. It

is so done by him with a view to maintain discipline at the

work place and to deter potential delinquent from doing

improper behavior or to come in conflict with rules of

standard of behaviour. Right to coin an act as an improper

behaviour, falling within the ambit of misconduct, was

retained by the University. It has been detailed in clause 22

of Ex. MW3/1 that "the University shall be sole judge as to

what is against the interest of the University and as to

what constitutes misconduct". This authority to define a

behaviour to be a misconduct for a contract employee

projects that the University had clothed itself with a right

to declare a code of conduct for the claimant and her

associates. This right is an attribute of disciplinary control

exercised by an employer on his employees.

56. Construction adopted on contents of Ex. MW 3/1

is based on the standards of presumed intent of parties.

The construction, so put, with an idea to preserve the will

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of the parties to Ex. MW 3/1. It is the duty of a court or

tribunal to give effect to the intention of the parties in

construing a written instrument. Ascertaining general scope

of Ex. MW 3/1, intention of the parties contained therein,

nature of the instrument and legal right of the parties

thereto, it is concluded that efforts were made by the

University to hide the truth with a view to project a make-

believe instrument of engaging personnel through the

Contractor. In fact the University retained administrative

and disciplinary control over the contract employees.

When veil was lifted, it emerged that Ex. MW 3/1 is sham

and bogus. There are realties of relationship of employer

and employees between the University and the claimant

and her other 69 colleagues. In view of the forgoing

reasons, it is concluded that the veil of Ex. MW 3/1 is a

smoke-screen, which would not snap relationship between

the University and the claimant and her colleagues.

Aforesaid two issues are accordingly answered.

Issue No. 3

57. Dr. S.S. Bisth announces that with effect from

1.11.2007 contract for providing housekeeping services was

given to the New Contractor. He asserts that owing to

illegal demands of the claimant and her colleagues, the

New Contractor did not engage them. Thereafter

housekeeping staff, including the claimant, resorted to

illegal demonstration. A suit of injunction was filed, which

was decreed by the High Court of Delhi. Certified copy of

judgment dated 13.3.2009 has been proved as Ex. MW 2/5,

by Shri Shiv Prakash.

58. Whether above facts would espouse the cause

of the University? Answer lies in negative. As held above,

the claimant was an employee of the University, which

proposition restrains the University from awarding

housekeeping services to the New Contractor. In the garb

of award of housekeeping services to the New Contractor,

the University dispensed with the services of the claimant

and her colleagues. Action of the University squarely falls

within the ambit of definition of retrenchment, as contained

in sub-section (oo) of section 2 of the Act. No case was

projected that the case of University falls within the

exceptions, contrained therein. Therefore, it is crystal clear

that the action of the University amounts to retrenchment.

As per own admission of the University, the claimant

rendered services w.e.f. 1.11.2004 till 31.10.2007, as an

employee of the Contractor. Thus it is clear that she

rendered continuous service of more than 240 days in a

calendar year, as contemplated by section 25-B of the Act.

When an employee renders services of more than one year,

he is entitled to protection/benefits contained in section

25-F of the Act. Out of facts of the present controversy, it

emerges that services of the claimant were done away in

violation of the provisions of section 25-F of the Act. It is

not the case of the University that one month's notice or

pay in lieu thereof and retrenchment compensation was

paid to the claimant and other similarly situated employees.

Requirements contained in section 25-F of the Act are

mandatory and non-compliance thereof makes the action

of the employer illegal. Hence action of the University in

terminating services of the claimant, in the garb of awarding

contract of housekeeping services to the New Contractor,

is illegal and unjustified.

59. Whether judgement Ex. MW 2/5 would come to

the rescue of the University? Answer lies in negative. Memo

of parties tell that neither the claimant nor her colleagues

were party to that suit. The suit was filed in respect of a

cause of action of civil nature. Even othewise judgement

Ex. MW 2/5 would not operate as res-judicata in the present

controversy. Law contained in section 11 of the Code of

Civil Procedure 1908 (in short the Code) embodies the

doctrine of res-judicata or the rule of conclusiveness of a

judgement, as to the point decided either of fact, or of law,

or of fact and law, in every subsequent suit between the

same parties. It enacts that once a matter is finally decided

by a competent court, no party can be permitted to reopen

it in a subsequent litigation. The doctrine of res-judicata

has been explained in the simplest possible manner by Das

Gupta J. in the case of Statyadhyan Chosal (AIR 1960 S.C.

941) in the following words:

"The principle of res-judicata is based on the need

of giving a finality to judicial decision. What it says

is that once a res-is judicata, it shall not be adjudged

again. Primarily it applies as between part litigation

and future litigation. When a matter—whether on a

question of fact or a question of law—has been

decided between two parties in one suit or proceeding

and the decision is final, either because no appeal

was taken to a higher court or because the appeal

was dismissed, or no appeal lies, neither party will be

allowed in a future suit or proceedings between the

same parties to convass the matter again".

60. It is not every matter decided in a former suit that

will operate as res-judicata in a subsequent suit. To

constitute a matter as res-judicata under section 11 of the

Code, the following conditions must be satisfied:

1. The matter directly and substantially in issue in

the subsequent suit must be the same matter which was

directly and substantially in issue either actually or

constructively in the former.

2. The former suit must have been a suit between the

same parties or between parties under whom they or any of

them claim.

3. Such parties must have been litigating under the

same title in the former suit.

4. The court which decided the former suit must be a

court competent to try the subsequent suit or the suit in

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which such issue is subsequently raised.

5. The matter directly and substantially in issue in

the subsequent suit must have been heard and finally

decided by the court in the former suit.

61. Section 11 of the Code bars trial of any suit as

well as an issue which had been decided in a former suit.

Issues are of three kinds: (i) Issue of fact; (ii) Issue of law;

and (iii) Mixed issues of law and fact. A decision on a issue

of fact, however erroneous it may be, constitutes res

judicata between the parties to the previous suit and cannot

be reagitated in collateral proceedings. Law to this effect

was laid in Mathura Prashad [1970 (1) SCC 613]. A mixed

issue of law and fact also, for the same reasons, operates

as res-judicata.

62. To invoke plea of res-judicata it should be shown

that the court which decided the former suit must have

been a court competent to try the subsequent suit. Thus,

the decision in a previous suit by a court, not competent

to try the subsequent suit, will not operate as res-judicata.

The expression "competent to try" means "competent to

try the subsequent suit if brought at the time the first suit

was brought". In other words, the relevant point of time for

deciding the question of competence of the court is the

date when the former suit was brought and not the date

when the subsequent suit was filed. In order that a decision

in a former suit may operate as res-judicata, the court which

decided that suit must have been either-(a) a court of

exclusive jurisdiction, or (b) a court of limited jurisdiction;

or (c) a court of concurrent jurisdiction.

In industrial jurisdiction principles analogus to res-

judicata are applicable.

63. Now it would be considered as to whether the

High Court is competent to try on industrial dispute, relating

to rights and liabilities created under the Act. Such

proposition was raised before the Apex Court in Premier

Automobiles Ltd. [1975 (II) LLJ. 445], wherein following

principles were enunciated:

"(I) If the dispute is not an industrial dispute, nor does it

relate to enforcement of any other right under the

Act the remedy lies only in the Civil Court.

(II) If the dispute is an industrial dispute arising out of a

right or liability under general or common law and

not under the Act, the jurisdiction of the Civil Court

is alternative, leaving it to the election of the suiter

concerned to choose his remedy for relief which is

competent to be granted in a particular remedy.

(III) If the industrial dispute relates to the enforcement of

a right or an obligation created under the Act, then

the only remedy available to the suiter is to get an

adjudication under the Act.

(IV) If the right which is sought to be enforced is a right

created under the Act such a Chapter V-A then the

remedy for enforcement is either section 33-C or the

raising of an industrial dispute, as the case may be."

However, in relation to Principle No. 2, the Court

added that "there will hardly be a dispute which will be an

"industrial dispute" within the meaning of section 2(k) of

the Act and yet will be arising out of a right or liability

under the general or common law only and not under the

Act".

64. In Rajasthan State Road Transport Corporation

(1995 Lab. I.C. 2241), the Apex Court analysed the earlier

dicta and re-stated the law as follows:

"(1) Where the dispute arises from general law of

contract, i.e., where reliefs are claimed on the basis of the

general law of contract, a suit filed in civil court cannot be

said to be not maintainable, even though such a dispute

may also constitute an "Industrial dispute" within the

meaning of Section 2(k) or Section 2-A of the Industrial

Disputes Act, 1947.

(2) Where, however, the dispute involves

recognition, observance or enforcement of any of the rights

or obligations created by the Industrial Disputes Act, the

only remedy is to approach the forums created by the said

Act.

(3) Similarly, where the dispute involves the

recognition, observance or enforcement of rights and

obligations created by enactments like Industrial

Employment (Standing Orders) Act, 1946-which can be

called 'sister enactments' to Industrial Disputes Act-and

which do not provide a forum for resolution of such

disputes, the only remedy shall be to approach the forums

created by the Industrial Disputes Act provided they

constitute Industrial disputes within the meaning of Section

2(k) and Section 2-A of Industrial Disputes Act or where

such enactment says that such dispute shall be either

treated as an Industrial dispute or says that it shall be

adjudicated by any of the forum created by the industrial

Disputes Act. Otherwise, recourse to Civil Court is open.

(4) It is not correct to say that the remedies provided

by the Industrial Disputes Act are not equally effective for

the reason that access to the forum depends upon a

reference being made by the appropriate government. The

power to make a reference conferred upon the government

is to be exercised to effectuate the object of the enactment

and hence not unguided. The rule is to make a reference

unless, of course, the dispute raised is a totally frivolous

one ex-facie. The power conferred is the power to refer and

not the power to decide, though it may be that the

government is entitled to examine whether the dispute is

ex-facie frivolous, not meriting an adjudication.

(5) Consistent with the policy of law aforesaid, we

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commend to the Parliament and State Legislatures to make

a provision enabling a workman to approach the Labour

Court/Industrial Tribunal directly-i.e., without the

requirement of a reference by the Government-in case of

industrial disputes covered by Section 2-A of the Industrial

Disputes Act. This would go a long way in removing the

misgivings with repect to the effectiveness of the remedies

provided by the Industrial Disputes Act.

(6) The certified Standing Orders framed under and

in accordance with the Industrial Employment (Standing

Orders) Act, 1946 are statutorily imposed conditions of

service are binding both upon the employers and

employees, though they do not amount to "statutory

provisions". Any violation of these Standing Orders

entitles and employee to appropriate relief either before

the forums created by the Industrial Disputes Act or the

Civil Court where recourse to Civil Court is open according

to the principles indicated herein.

(7) The policy of law emerging from Industrial

Disputes Act and its sister enactments is to provide an

alternative dispute resolution mechanism to the workmen,

a mechanism which is speedy, inexpensive, informal and

un-encumbered by the plethora of procedural laws and

appeals and revisions applicable to civil courts. Indeed,

the powers of the Courts and Tribunals under the Industrial

Disputes Act are far more extensive in the sense that they

can grant such relief as they think appropriate in the

circumstances for putting an end to an industrial dispute".

Same view was taken by the Apex Court in Steel

Authority of India (supra).

65. Facts detailed in preceding sections make out

that the rights which the claimant claim and obligations

which are imposed on the University arise out of rights

and obligations created by the Act. An industrial dispute

within the meaning of section 2(k) was referred for

adjudication by the appropriate Government to this

Tribunal, invoking its powers under clause (d) of sub-

section (1) of section 10 of the Act. High Court is not

competent to adjudicate an indudstrial dispute. Hence,

Principle 2, referred in para 63 and Principle 1, referred in

para 64, do not come into play. Therefore, judgement Ex.

MW2/5 cannot operate as res-judicate. It would not restrain

the claimant in any manner, from agitating her claim against

the University.

66. It is well settled that negative language used in

section 25-F of the Act imposes a mandatory duty on the

employer, which is condition precedent to retrenchment of

a workman. Contravetion of mandatory requirements of

section 25-F of the Act would invalidate the retrenchment

and render it void ab initio. Reference can be made to

precedents in Auro Engineering (Pvt.) Ltd., Nasik (1922

Lab. I.C. 1364) and Ollur Regional Imitation Diamond

Manufacturing Industrial Co-op Society Ltd. [1993 (II) LLJ

174]. As detailed above, retrenchment of the claimant is

illegal and void ab initio. Issue is, therefore, answered in

favour of the claimant and against the Relief.

67. As concluded above, the claimant was engaged

by the University through the Contractor by way of creation

of make believe contract agreement, which was a perfect

paper arrangement. On lifting of veil, the University was

found to be the real employer. Her services were

disengaged under the garb of award of housekeeping

service agreement to the New Contractor. Her retrenchment

was found to be void ab initio. She, being an employee of

the University cannot be retrenched by the Contractor or

the New Contractor. She is deemed to be in the service of

the University Questions comes whether she is entitled to

full back wages. For an answer in her favour, she was under

an obligation to establish that she remained un-employed

since the date of her retrenchment. No evidence has been

addued by the claimant on that point. Thus it cannot be

said that she remained unemployed, since the date of

dispensing with her services by the University. The Apex

Court and High Courts dealt with the issue of award of

compensation, when reinstatement in service was not found

expedient. Those precedents may help the Tribunal in

ascertaining the quantum of back wages, which may be

awarded to the claimant. In S.S. Shetty [1957 (11) LLJ 696]

the Apex Court indicated some relevant factors which an

adjudicator has to take into account in computing

compensation in lieu of rinstatement, in the following words:

"The industrial Tribunal would have to take into

account the terms and conditions of employment,

the tenure of service, the possibility of termination

of the employment at the instance of either party, the

possibility of retrenchment by the employer or

resignation or retirement by the workman and even

of the employer himself ceasing to exist or of the

workman being awarded various benefits including

reinstatement under the terms of future awards by

industrial Tribunal in the event of industrial disputes

arising between the parties in future .......In computing

the money value of the benefits of reinstatement, the

industrial adjudicator would also have to take into

account the present value of what his salary, benefits

etc. would be till he attained the age of superannuation

and the value of such benefits would have to be

computed as from the date when such reinstatement

was ordered under the terms of the award.

Having regard to the considerations detailed above,

it is impossible to compute the money value of this benefit

of reinstatement awarded to th appellant with mathematical

exactitude and the best that any tribunal or court would

do under the circumstances would be to make as correct

as estimate as is possible bearing, of course in mind all the

relevant factors pro and con".

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[PART II—SEC. 3(ii)]

68. A Divisonal Bench of the Patna High Court in

B. Choudhary (1983) Lab.I.1755 (1758) deduced certain

guidelines which have to be borne in mind in determining

the quantum of compensation viz. (i) the back wages

receivable (ii) compensation for deprivation of the job with

future prospect and obtainability of alternative

employment; (iii) employee's age (iv) Length of service in

the establishment (v) capacity of the employer to pay and

the nature of the employer's business (vi) gainful

employment in mitigation of damages; and (viii)

circunstances leading to the disengagement and the past

conduct. These factors are only illustrative and not

exhaustive. In addition to the amount of compensation, it

is also within the jurisdiction of the Tribunal to award

interest on the amount determined as compensation.

Furthermore, the rate of such interest is also in the discretion

of the Tribunal. Reference can be made to Tabesh Process,

Shivakashi (1989 Lab.I.C. 1887).

69. In Assam Oil Co. Ltd. [1960 (1) LLJ 587] the Apex

Court took into account countervailing facts that the

employer had paid certain sum to the workmen and her

own earning in the alternative employment ordered that "it

would be fair and just to direct the appellant a substantial

sum as compensation to her". In Utkal Machinery Ltd.

[1966 (1) LLI 398] the amount of compensation equivalent

to two year salary of the employee awarded by the industrial

Tribunal was reduced by the Supreme Court to an amount

equivalent to one year salary of the employee in view of

the fact that she had been in service with the employer

only for 5 months and also took into consideration the

unusual manner of her appointment at the instance of the

Chief Minister of the State. In A.K. Roy [1970 (1) LLJ 228]

compensation equivalent to two years salary last drawn

by the workmen was held to be fair and proper to meet the

ends of justice. In Anil Kumar Chakaraborty [1962 (II) LLJ

483] the Count converted the award of reinstatement into

compensation of a sum of Rs. 50000/- as just and fair

compensation in full satisfaction of all his claims for

wrongful dimissal from service. In O.P. Bhandari [1986 (II)

LLJ 509], the Apex Court observed that it was a fit case for

grant of compensation in view of reinstatement. The Court

awarded compensation equivalent to 3.33 years salary as

reasonable. In M.K. Aggarwal (1988 Lab.I.C. 380), the Apex

Court though confirmed the order of reinstatement yet

restricted the back salary to 50% of what would otherwise

be payable to the employee. In Yashveer Singh (1993 Lab.I.C.

44) the court directed payment of Rs. 75000/- in view of

reinstatement with back wages. In Naval Kishor [1984 (II)

LLJ 473] the Apex Court observed that in view of the special

circumstances of the case adequate compensation would

be in the interest of the appellant. A sum of Rs. 2 lac was

awarded as compensation in lieu of reinstatement. In Sant

Raj [1985 (II) LLJ 19] a sum of Rs. 2 lac was awarded as

compensation in lieu of reinstatement. In Chandu Lal (1985

Lab.I.C. 1225) a compensation of Rs. 2 lac by way of back

wages in lieu of reinstatement was awrded. In Ras Bihari

(1988 Lab.I.C. 107) a compensation of Rs. 65000/- was

granted in lieu of reinstatement, since of the employee was

gainfully employed elsewhere. In V.V. Rao (1991 Lab. I.C.

1650) a compensation of Rs. 2.50 lac was awarded in lieu of

reinstatement.

70. The claimant rendered continuous service of more

than one year to the University, when she was illegally

retrenched. She had to fight for about four years for

redressal of her grievances. The circurstances, in which

she was retrenched and mass unemployment prevalent in

economic field, which may come in the way when some

one goes for an alternative employment, besides other

factors of this case, persuade me to award 20 percent back

wages from the date of retrenchment till the date the award

becomes operative under section 17-A of the Act, besides

reinstatement of the claimant in the service of the

University, with continuity and all consequential benefits.

An award, is accordingly, passed. It be sent to the

appropriate Government for publication.

DR. R.K. YADAV, Presiding Officer

Dated: 09.12.2011.

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New Delhi, the 1st February, 2012

S.O. 825.—In pursuance of Section 17 of the

Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 04/2010)

of the Central Government Industrial Tribunal cum Labour

Court No. I, New Delhi as shown in the Annexure, in the

Industrial dispute between the Vice Chancellor, Indira

Gandhi National Open University and their workman,

which was received by the Central Government on

01.02.2012.

[ F. No. L-42012/96/2009-IR (DU)]

RAMESH SINGH, Desk Officer

¹Hkkx II—[k.M 3(ii)º

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2005

ANNEXURE

BEFORE DR. R.K. YADAV, PRESIDING OFFICER,

CENTRAL GOVT. INDUSTRIAL TRIBUNAL NO. 1,

KARKARDOOMA COURTS COMPLEX: DELHI

I.D. No. 4/2010

Smt. Saroj W/o Shri Ram Kumar

H.No. 125, Balmiki Basti,

Maidan Garhi,

New Delhi.

Versus

Claimant

The Vice Chancellor,

Indira Gandhi National Open University,

R. No. 1, Block No. 8, Maidan Garhi,

New Delhi-110068.

Management

AWARD

Indira Gandhi National Open University (herein after

referred to as the University) was established in the year

1985 to provide cost effective and quality education to

large sections of people, including those living in remote

and far flung areas, through distance education

programmes. The University functions not only with in the

boarders of the country but offers education programmes

in at least 35 countries. Besides Regional Centres across

the country and in foreign countries, the University has its

Central Campus at Maidan Garhi, New Delhi, which is spread

over an area of 151.32 acres of land. At its Central Campus,

the University has a strength of about 800 officers/officials

working there.

2. The University requires considerable man-power

to carry out housekeeping services, which includes cleaning

and sanitation activities. Housekeeping services are out

sourced by the university through a private contractor. In

the year 2004, the University awarded contract for

housekeeping services to Sybex Computer Systems (Pvt.)

Ltd. (in short the Contractor). The Contractor engaged

around 70 sweepers and cleaners to carry out its contractual

obligations. On 1st November 2007, the University awarded

contract for housekeeping services to Spick & Span

Facilities Management (Pvt.) Ltd. (in short the New

Contractor). Initially the New Contractor decided to retain

services of the sweepers and cleaners engaged by the

Contractor. But negotiations between the New Contractor

and employees of the Contractor turned into a complete

fiasco. Sweepers and cleaners restorted to agitation and

sat on "dharna" outside the gate of Maidan Garhi Campus

of the University. Legal wrangle started between the

University and the agitators. Efforts were made from either

side to wrench one's opponent.

3. Resort to the jurisdiction of Conciliation Officer

was taken by the sweepers and cleaners, by way of filing

their respective claim statements. Conciliation Officer

initiated conciliation proceedings, as contemplated by sub-

section (1) of section 12 of the Industrial Disputes Act,

1947 (in short the Act). No settlement could arrive at between

the parties and a failure report was submitted to the

appropriate Government. On consideration of the failure

report, so submitted, the appropriate Government referred

the dispute to this tribunal for adjudication, invoking its

powers under clause (d) of sub-section (1) of section 10 of

the Act, vide order No. L-42012/96/2009-IR(DU) New Delhi

dated 7th January, 2010, with following terms:

"Whether the action of the management of Indira

Gandhi National Open University, in terminating the

services of their workman Smt. Saroj w.e.f. 01/11/2007

is legal and justified? If not, what relief the workman

is entitled to?"

4. Smt. Savita claims in her claim statement that she

was working with the University as "Safai Karamchari" in

its housekeeping department since 1998. She had rendered

more than 240 days continuous service with the University.

At the time of entering into the services of the University,

she was asked to fill in certain forms, which forms duly

filled and signed by her are in the custody of the University.

No appointment letter was issued in her favour, inspite of

her request in that behalf. Since inception of her

engagement, the University had indulged into unfair labour

practices and flouted implementation of labour laws

concerning her service conditions. At times she, alongwith

her colleagues, was kept at its rolls by the University, while

during intermittent spells her services were transferred at

the roll of one contractor or the other. This device was

adopted with a view to discount her continuity in service

and seniority in employment so that liability to pay

retrenchment compensation under the Act and other

benefits under various labours laws may be avoided.

5. Contributions towards social securities, namely,

ESI, medical benefits and provided fund were deducted

from her wages by the University, pleads the claimant.

Despite payment of contributions towards above social

securities, the University never issued any medical card

and provident fund statement or account number, but

passed on that responsibility on the shoulders of the

Contractor. Facility of earned, annual, privileged, casual,

weekly off, festival and medical leaves were not accorded.

Though work was taken on Sundays and holidays from

her but no compensatory leave or overtime wages were

given to her. She used to get wages at the rate of Rs. 172/-

per days, amounting to somewhere near to Rs. 4500/- per

month.

6. On 1st November 2007, the University decided to

place her services at the disposal of a contractor, whose

engagement for housekeeping work was neither

communicated nor he was introduced to her. To her utter

surprise a contractor surfaced on scene and told her and

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[PART II—SEC. 3(ii)]

her colleagues that he will pay them Rs. 3470/- each per

month. He announced that interested persons may stay at

work-place and others may leave for good. The claimant

and her colleagues wanted to see the Vice-Chancellor to

appraise him of their grievances, but they were stopped at

the gate of the University campus. Services of the claimant

and other were terminated. The University called some anti-

social elements and got sever beatings administered to her

and her colleagues at their hands. Police was also called by

the University authorities, to keep their hands clean.

7. The University had not served one month notice

nor paid wages in lieu of the notice. Retrenchment

compensation was also not paid to her. Her services were

not done away on infliction of punishment for a disciplinary

action, hence action of the University is violative of the

provisions of the Act and principles of natural justice. She

claims reinstatement in the services of the University with

continuity and consequential benefits.

8. The University demurs the claim pleading that the

claimant was never employed by it. No salary/wages or

other emoluments were paid by it to the claimant. There

existed no relationship of employer and employee between

the parties. Hence there was no occasion for the University

to terminate services of the claimant. In view of these facts,

reference order is improper and claim statement is liable to

be rejected, pleads the University.

9. To outsource housekeeping services, the

University engaged services of the Contractor, vide

agreement dated 1.11.2004, which agreement was extended

upto 31.10.2007. The claimant was working with the

Contractor to provide housekeeping services at the campus

of the University. The Contractor is essential and proper

party, pleads the University. In agreement entered into

between the Contractor and the University it was stipulated

that employees of the Contractor at no point of time would

be treated as employees of the University. The University

laid emphasis on a few clauses of the agreement, which are

extracted thus:

"12. Provider shall continue to be responsible for the

personnel employed by him, in respect of terms and

condition of their service, payments, attendance, medical

care, other disciplinary matters etc. who shall remain fully

under the administrative and financial control and

supervision of the Provider, except that the University shall

be the sole Arbitrator in respect of nature of the duties to

be entrusted to and the manner of performance of their

duties for the purpose of this Agreement.

13. The temporary personnel deployed by the

Provider to IGNOU shall at no time be treated as the

employees of the University and also shall have no claim

to be regularized in the services of the University. But the

Provider will not change the personnel once deployed by

it in the University without prior permission of the

University as the frequent changes in deployment of

temporary may hamper the day to day work of the

University.

23. There is no privity of contract by and between

the Provider and the University. The Temporary shall have

no right to make any claim against the University directly

or indirectly, monetary including wages or otherwise. The

Temporary shall also have no right to claim for any

regularization. The Temporary shall also have no claim

against the University of any dues, statutory or otherwise.

Similarly, even the representative of any Temporary who

have worked in the University shall have no right or claim

against the University.

24. The Provider has to ensure that the Temporaries

deployed are not forming any Association/Forum in respect

of IGNOU matter nor they should be allowed to join in any

Association/forum of IGNOU.

25. The Provider has to ensure timely deployment of

Temporaries as required by IGNOU and fulfil other

obligation stated in the above said terms and conditions

failing which penalty will be imposed by the University on

case to case basis from time time. The decision of the

University will be final."

10. When contract, referred above, expired with efflux

of time, contract for housekeeping services was awarded

to the New Contractor, who initially sought to retain the

services of housekeeping staff for his own contract.

However, owing to illegal and unjustified demands of the

housekeeping staff, the New Contractor did not engage

the claimant and her othe collenagues. The claimant and

her colleagues resorted to illegal demonstration in the

University premises. A civil suit being CS(OS) No. 83 of

2008 was instituted before High Court of Delhi. The High

Court passed an interim injunction order on 15.1.2008

against the housekeeping staff and ultimately decreed the

suit on 13.3.2009.

11. The University had denied all allegations levelled

by the claimant in her claim statement. It is pleaded that the

claimant knew her status, being an employee of the

Contractor. Her services were terminated by the Contractor

and the University has no role to play in so called

termination of her services. Her claim against the University

is illegal, unwarranted and unjustified. It is pleaded that

her claim may be dismissed.

12. An application moved by the University, to

implead the Contractor as a party, was declined vide order

dated 20.4.2010.

13. On pleadings of the parties, following issues were

settled:

1. Whether there was relationship of employer and

employee between the claimant and the management?

2. Whether the claimant was an employee of Sybex

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Computer System Pvt. Ltd., the Contractor?

3. As in terms of reference.

4. Relief.

14. To discharge onus resting on her, the claimant

examined herself and closed her evidence. The University

examined Smt. Bimla Madan, Shri Shiv Prakash, Dr. S.S.

Bisht and Shri Ashok Kumar Gupta to substantiate its case.

15. Arguments were heard at the bar at length. Shri

V.N. Kaushik, assisted by Ms. Sulekha Thakur, authorised

representative, advanced arguments on behalf of the

claimant. Shri V.K. Rao, assisted by Shri Aly Mirza,

authorised representative and Vibhas Vaibhav, Asstt.

Registrar (Law), raised submissions on behalf of the

University. I have given my careful considerations to the

submissions made at the bar and cautiously perused the

record. My findings on issues involved in the controverry

are as follows:

Issue No. 1 & 2.

16. Affidavit Ex. WW1/A was tendered as evidence

on behalf of the claimant, wherein she sweared that she

was in the employment of the University as "Safai

Karamchari" since 1998. It has been projected in Ex.WW1/A

that she rendered more than 11 years service with the

University. Other facts detailed in Ex.WW1/A are facsimile

of contents of claim statement, which has been proved as

Ex.WW1/M1. She candidly admitted her signatures on

documents Ex.WW1/M2 to Ex.WW1/M8.

17. Smt. Bimla Madan unfolds that Regional Office

of the Employers' Provident Fund organisation had given

code number as DL-24878 to the Contractor, while code

number 22120 was given to Smt. Saroj, the employee of the

above company. Name of Saroj appears in statement of

contributions Ex.MW1/1 and Ex.MW1/2, filed by her

employer for the period 1.4.2005 to 31.3.2006 and 1.4.2006

to 31.3.2007 respectively.

18. Shri Shiv Prakash entered the witness box to

prove copy of plaint, filed by the University before High

Court of Delhi, written statement of defendant No.3 to 6,

affidavit of Shri U.S. Tolia tenderd as evidence in that case,

interim order dated 15.1.2008 and judgment dated 13.3.2009

passed by Justice Ms. Rekha Sharma. These documents

are proved as Ex.MW2/1 to MW2/5 respectively. He

clarified that no appeal was preferred against the judgment

Ex.MW2/5.

19.Dr.S.S. Bisht tendered has affidavit Ex.MW3/A as

evidence, wherein he announced that the claimant was

never appointed by the University in its services. No salary

was ever paid to her. Services of the Contractor were availed

to outsource housekeeping services vide agreement dated

1.11.2004, which was subsequently extended upto

31.10.2007. The claimant was working with the Contractor.

With effect from 1.11.2007 contract to provide housekeeping

services was awarded to the New Contractor. He projects

that when she was not engaged by the New Contractor,

she alongwith her colleagues resorted to illegal

demonstration in the premises of the University. Story of

filling Civil suit and orders thereon have been re-affirmed

by Dr. Bisht. Being an employee of the Contractor, she had

filed a wrong claim statement, which is liable to be

dismissed, asserts Dr. Bisht.

20. Shri Ashok Kumar Gupta details that the

University was maintaining an account with Maidan Garhi

branch of the Punjab National Bank. The University had

issued cheques in favour of the Contractor, details of those

cheques are given in Ex.MW4/A. He identifies signatures

of Shri Mohan Lal, Branch Manager, on Ex.MW3/21 and

announces that contents of that document are true and

correct, as he himself had checked the records.

21. When facts testified by the claimant, Smt. Bimla

Madan, Dr.S.S. Bisht and Ashok Kumar Gupta are

appreciated, it came to light that the claimant had detailed

facts which are inconsistent to each other. In her claim

statement she projected a case that she was in the service

of the University since 1998. In her affidavit Ex.WW1/A

she had repeated those very facts as detailed in her claim

statement. However in her cross-examination she gives a

twist to facts deposing that she is serving the University

since 2004. This discrepant fact was recklessly uttered by

her. Her swinger does not find any corroboration from any

other piece of evidence, direct or circumstantial. Self-serving

words, deposed by the claimant, could not withstand rigors

cross-examination, where in she admitted that Ex.WW1/

M2, Ex.WW1/M3, Ex.WW1/M4, Ex.WW1/M5, Ex.WW1/

M6, Ex.WW1/M7, and Ex.WW1/M8, bear her signatures.

When perused it came to light that Ex.WW1/M4 to

Ex.WW1/M8, are wage-sheets of the Contractor, though

which salary of the claimant and her colleagues were

released by the former in their favour. These documents

project her to be an employee of the Contractor. Thus by

an admission of her signatures on above documents she

allowed a fact to spill over, which demolishes her case of

being an employee of the University. Ex.WW1/M2, and

Ex.WW1/M3, are also photocopy of scrolls through which

payments were released by the Contractor to the claimant

and her colleagues. In the end she gave in and deposed

that she was not aware as to who engaged her. However

she made a faint attempt to project her cause when she

asserted that she used to work for the University.

Conspectus of above facts spill the beans and announce

her to be an employee of the Contractor.

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[PART II—SEC. 3(ii)]

22. Dr.S.S. Bisht erected castle for the University brick

by brick when he deposed that the claimant was working

with the Contractor, whom housekeeping services were

outsourced vide agreement dated 1.11.2004, copy of which

is Ex. MW3/1. This agreement was extended upto

31.10.2007. When aforesaid contract expired, contract for

housekeeping services was awarded to the New Contractor,

vide agreement Ex.MW3/2. When New Contractor did not

engage the services of the claimant and her colleagues,

they resorted to illegal demonstration in the premises of

the University. The Contractor used to raise his bills, to

whom payments were made through cheques Ex.MW3/5,

Ex.MW3/6, Ex.MW3/7, Ex.MW3/8, Ex.MW3/9, and

Ex.MW3/10, deposes the witness. Some of the bills raised

by the contractor, besides sanction accorded by the

University are Ex.MW3/11, Ex.MW3/12, Ex.MW3/13,

Ex.MW3/14, Ex.MW3/15, Ex.MW3/16, Ex.MW3/17,

Ex.MW3/18, and Ex.MW3/19, Dr. Bisht detailed. Payments

were made to the Contractor throguh cheques, which were

honoured and cleared and letter Ex.MW3/21, was written

by the bank in that regard. He had proved list of contractors

as Ex.MW3/W2, to whom the work was awarded by the

University since 16.12.1991 till date. Out of facts unfolded

by Dr. Bisht it came over the record that the University had

outsourced housekeeping services since 16.12.1991. On

1.11.2004 work was awarded to the Contractor and on

1.11.2007 it was awarded to the New Contractor. Claimant

was an employee of the Contractor, who used to pay

wages to her. Smt. Bimla Madan gives re-affirmation to

facts unfolded by Dr. Bisht. She had proved statements of

contribution, filled by the Contractor in the Regional Office

of the Employees' Provident Fund Organisation, in which

statements name of the claimant does apear as an employee

of the Contractor. Shri Ashok Kumar Gupta proves various

payments made by the Univesity to the Contractor, details

of which are enlisted in Ex.MW3/21, Sequences of events,

brought over the record through the depositions of

aforesaid witnesses and documents proved by them,

highlight that the claimant was an employee of the

Contractor, who used to make payment of her salaries to

her. It was the Contractor who was her pay master.

23. Whether the claimant, who was an employee of

the Contractor, can maintain a dispute against the

University? For an answer to this proposition, the Tribunal

has to take note of the law contained in section 10 of the

Contract Labour (Regulation and Abolition) Act, 1970 (in

short the Contract Labour Act), Which makes provision

for prohibition of employment of contract labour. For sake

of convenience provisions of section 10 of the Contract

Labour Act are reproduced thus:

"10. Prohibition of employment of contract labour:—

(1) Notwithstanding anything contained in this Act,

the appropriate Government may, after consultation with

the Central Board or, as the case may be, a State Board,

prohibit by notification in the Official Gazette, employment

of contract labour in any process, operation or other work

in any establishment.

(2) Before issuing any notification under sub-section

(1) in relation to an establishment, the appropriate

Government shall have regard to the conditions of work

and benefits provided for the contract labour in that

establishment and other relevant factors, such as—

(a) whether the process, operation or other work in

incidental to, or necessary for the industry, trade,

business, manufacture or occupation that is carried

on in the establishment.

(b) whether it is of perennial nature, that is to say, it is of

sufficient duration having regard to the nature of

industry, trade, business, manufacture or occupation

carried on in that establishment.

in that establishment or an establishment similar

thereto;

(d) whether it is sufficient to employ considerable number

of whole-time workmen. Explanation—If a question

arises whether any process or operation or other

work is of perennial nature, the decision of the

appropriate Government thereon shall be final."

24. As emerge out of the provision of sub-section (1)

of section 10 of the Contract Labour Act, the appropriate

Government may, by notification in the official gazette,

prohibit employment of contract labour in any process,

operation or other work in any establishment. When

employment of contract labour is prohibited, by issuance

of a notification in official gazette by the appropriate

Government, what would be the status of the contract

labour employed in the establishment? Such a question

arose before the Apex Court is Steel Authority of India Ltd.

[2001 (7)S.C.C.1]. The Apex Court ruled therein that there

cannot be automatic absorption of contract labour by

principal employer on issuance of notification by the

appropriate Government on obolition of contract labour

system, under sub section (1) of section 10 of the Contract

Labour Act. It would be expedient to reproduce the law laid

by the Apex Court, which is extracted thus:

"...they fall in three classes:(1) 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 adjudicator/

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 contract labour working in the

establishment was ordered (2) where contract was

found to be a sham and nominal, rather a camouflage,

in which case the contract labour working in the

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2009

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

the abolition of contract labour but present instances

wherein the court pierce the veil and declared the

correct position as a fact at the stage after

employment of contract labour stood prohibited (3)

where in discharge of a statutory obligation of

maintaining a canteen in an establishment the

principal employer availed the service of the

contractor, the court have held that the contract

labour would indeed be employees of the principal

employer."

25. The Court ruled that neither section 10 of the

Contract Labour Act nor any other provision in that Act,

whether expressly or by necessary implication, provides

for automatic absorption of contract labour on issuance of

a notification by the appropriate Government under sub

section (1) of section 10, prohibiting employment of

contract labour, in any process, operation or other work in

any establishment. Consequently the principal employer

cannot be required to order for absorption of the contract

labour working in the establishment concerned. It was

further ruled therein that in Saraspur Mills case [1974 (3)

SCC 66], the workman engaged for working in the canteen

run by the Cooperative Society for the appellant were the

employees of the appellant mills. In Basti Sugar Mills (AIR

1964 S.C 355) a canteen was run in the factory by the

Cooperative Society and as such the workers working in

the canteen were held to be employees of the establishment.

The Apex Court ruled that these cases fall in class (3)

mentioned above. Judgment in Hussainbhai (1978 Lab. I.C.

1264) was considered by the Apex Court in the said

precedent and it was ruled therein that the said precedent

falls in class (2), referred above. The Apex Court concluded

that onissuance of prohibitive notification under section

10 of the Contract Labour Act prohibiting employment of

contract labour or otherwise, in an industrial dispute

brought before it by any contract labour in regard to

conditions of service, the Industrial Adjudicator will have

to consider the question whether the contractor has been

interposed either on the ground of having undertaken to

produce any given result for the establishment or for supply

of contract labour for work of the establishment under a

genuine contract or is a mere ruse/camouflage to evade

compiance of various beneficial legislation so as to deprive

the workers of the benefit thereunder. If the contract is

found to be not genuine but a mere camouflage, the so

called contract labour will have to be treated as employees

of the principal employer who shall be directed to regularize

the services of the contract labour in the establishment

concerned, subject to the conditions as may be specified

by it for that purpose.

26. As announced by the Apex Court, on issuance of

a prohibitive notification, prohibiting employment of

contract labour or other in any industrial dispute brought

before it by the contract labour in regard to conditions of

his service, the industrial adjudicator will have to consider

he question whether the contractor has been interposed

either on the ground of having undertaken to produce any

given result in the establishment or for supply of the

contract labour for the work of the establishment under a

genuine contract or it is a mere ruse/camouflage to evade

compliance of beneficial legislation so as to deprive the

workers of the benefits therein. Thus it was ruled that a

contract labour can raise a dispute before the industrial

adjudicator in regard to his conditions of service and in

case the contract is found to be not genuine but a mere

camouflage, the so called contract labour will have to be

treated as employees of the principal employer. Also see

Standard Vacuum Refining Co. of India Ltd. (1960 (II) LLJ.

233), which was referred with approval in Steel Authority

of India.

27. In Shivnandan Sharma (1955(1) LLJ 688), the

respondent Bank entrusted its Cash Department under a

contract to the Treasures who appointed cashiers,

including the appellant Head Cashier. The question before

the Apex Court was: the appellant an employee of the Bank?

On construction of the agreement entered into the Bank

and the Treasure, the Court laid down:

"If a master employs a servant and authorizes him to

employ a number of persons to do a particular job

and to guarantee their fidelity and efficiency for a

cash consideration, the employees thus appointed

by the servant would be equally with the employer,

servant of the master."

In the above precedent the Apex Court for the first

time laid down the crucial test of supervision and control

for determining the relationship of employer and employee.

28. In Hussainbhai (supra) the petitioner, who was

manufacturing ropes, entrusted the work to a contractor

who engaged his own workers. When, after some time, the

workers were not engaged, they raised an industrial dispute

that they were denied employment by the petitioner. On

reference of that dispute, the labour court passed an award

against the petitioner. When matter reached the Apex Court,

on examination of various factors and applying the effective

control test, it was held that though there was no direct

relationship between the petitioner and the workers yet on

lifting the veil and looking at the conspectus of factors

governing employment, the naked truth, though drapped

in different perfect paper arrangement, was that the real

employer was the petitioner, not the immediate contractor.

The Apex Court stated law in following words:

"Where a worker or group of workers labours to

produce goods or services and these goods or

services are for the business of another, that other

is, in fact, the employer. He has economic control

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[PART II—SEC. 3(ii)]

over the workers' subsistence, skill and continued

employment. If he, for any reason, chokes off, the

worker is virtually, laid off. The presence of

intermediate contractor with whom alone the workers

have immediate or direct relationship ex-contract is

of no consequence when, on lifting the veil or looking

at the conspectus of factors governing employment,

we discern the naked truth, though draped in different

perfect paper arrangement, that the real employer is

the management, not the immediate contractor***.

If the livelihood of the workmen substantially

depends on labour rendered to produce goods and

services for the benefit and satisfaction of an

enterprise, the absence of direct relationship or the

presence of dubious intermediaries or the make-

believe trappings of detachment from the

management cannot snap the real-life bond. The story

may vary but the inference defies ingenuity. The

liability cannot be shaken off. Of course, if there is

total dissociation in fact between the disowning

management and the aggrieved workmen, the

employment is, in substance and real-life terms, by

another. The management's adventitious connections

cannot ripen into real employment."

As noted above, this precedent does not present an

illustration of abolition of contract labour but an instance

where the Court pierced the veil and declared the correct

position to the effect that the contract labours were

employees of the principal employer and not of the

contractor.

29. In Steel Authority of India (supra) it has been

ruled that the term "contract labour" is a species of workman.

A workman may be hired: (1) in an establishment by the

principal employer or by his agent with or without the

knowledge of the principal employer, or (2) in connection

with the work of an establishment by the principal employer

through a contractor or by a contractor with or without the

knowledge of principal employer. Where a workman is hired

in or in connection with the work of an establishment by

the principal employer through a contractor, he merely acts

as an agent so there will be master and servant relationship

between the principal employer and the workman. But when

a workman is hired in or in connection with the work of an

establishment by a contractor, either because he has

undertaken to produce a given result for the establishment

or because he supplies workmen for any work of the

establishment, a question might arise whether the

contractor is a mere camouflage as in Hussainbhai's case

(supra) and in Indian Petrochemicals Corporation case

(1999) (6) S.C.C. 439) etc; if the answer is in affirmative, the

workman will be in fact an employee of the principal

employer, but if the answer is in the negative, the workman

will be a contract labour.

In view of the legal proposition, referred above, it is

concluded that the claimant can maintain this dispute

against the University since she agitates that the contract

agreement between the University and the Contractor is

sham and nominal.

30. Whether any directions for deeming the contract

labour as having become the employees of the principal

employer can be issued, when the contractor or the principal

employer had violated the provisions of the Contract

Labour Act? To find an answer, provisions of that Act are

to be examined. The Contract Labour Act regulates

conditions of workers in contract labour system and

provides for its abolition by the appropriate Government

as provided by section 10 of that Act. In regard to regulatory

measures section 7 requires the principal employer to get

itself registered, while section 12 obliges every contractor

to obtain a licence, under the provisions of that Act. Section

9 places an embargo on the principal employer on an

establishment from employing contractor labour in the

establishment, when either it is not registered on its

registeration has been revoked. Section 12 of the Contract

Labour Act imposes a liability on a contractor not to

undertake or execute any work through contract labour

except under and in accordance with a licence. Sections 23,

24 and 25 make contraventions of the provisions of that

Act or Rules made thereunder penal. In Dena Nath (1992

Lab. I.C. 75) the Apex Court considered the question,

whether non-compliance of the provisions of section 7

and 12 by the principal employer and the contractor

respectively would make the contract labour employed by

the principal employer as the employee of the latter. It was

ruled that only consequence of non-compliance either by

the principal employer of section 7 or by the contractor in

complying the provisions of section 12 is that they are

liable for prosecution under the said Act. But the employees

employed through the contractor cannot be deemed to be

the employees of the principal employer.

31. In the Steel Authority of India (supra) the Apex

Court laid emphasis ".....the consequence of violation of

Section 7 and 12 of the CLRA Act is explicitly provided in

Section 23 and 25 of the CLRA Act, it is not for the High

Courts or this Court to read in some unspecified remedy in

Section 10 or substitute for penal consequences specified

in Sections 23 and 25 a different sequel, be if absorption of

contract labour in the establishment of principal employer

or a lesser or harsher punishment. Such an interpretation

of the provisions of the statute will be far beyond the

principle of ironing out the creases and the scope of

interpretative legislaltion and as such, clearly

impermissible". The above authoritative pronouncements

make it clear that on violations of the provisions of the

Contract Labour Act or Rules made thereunder, the contract

labour could not be deemed to have become the employee

of the principal employer.

32. Whether this Tribunal has power to order for

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abolition of contract labour system in the establishment of

the University? For an answer, legal dicta is to be

considered. Before enactment of the Contract Labour Act,

the industrial adjudicator, in appropriate cases, used to

issue directions to the establishment concerned to abolish

or modify system of contract labour. Reference can be made

to precedents in United Salt Works and Industries Ltd.

(1962 (I) LLJ. 131), Shibu Metal Works (1966 (I) LLJ. 717),

National Iron & Steel Co. (1967 (II) LLJ. 23) and Ghatge and

Patil (Transport) Pvt. Ltd. (1968 (I) LLJ 566). The National

Commission on Labour (1966) in para 29.11 of its report,

enumerated those factors, on which abolition of contract

labour was ordered, thus:

"29.11. Judicial awards have discouraged the practice

of employment of contract labour, particularly when the

work is (i) perennial and must go on from day to day; (ii)

incidental and necessary for the work of the factory; (iii)

sufficient to employ a considerable number of whole time

workmen; and (iv) being done in most concerns through

regular workmen. These awards also came out against the

system of 'middlemen'."

33. After Contract Labour Act was brought on statute

book, the Apex examined jurisdiction of the industrial

adjudicator to issue directions to the establishment to

abolish contract labour Vegoils Private Ltd. (1971 (2) S.C.C.

724) and ruled that it would be proper that the question,

whether the contract labour in the appellant industry was

to be abolished or not, be left to be dealt with by the

appropriate Government under the provisions of that Act,

if it becomes necessary. The observations made by the

Court are extracted thus:

"The appropriate Government when taking action

under Section 10 will have an overall picture of the

industries carrying on similar activities and decide

whether contact labour is to be abolished in respect

of any of the activities and decide whether contact

labour is to be abolished in respect of any of the

activities of that industry. Therefore, it is reasonable

to conclude that the jurisdiction to decide about the

abolition of contract labour, or to put it differently, to

prohibit the employment of contract labour, is now

to be done in accordance with Section 10. Therefore,

it is proper that the question whether the contract

labour regarding loading and unloading in the

industry of the appellant is to be abolished or not, is

left to be dealt with by the appropriate Government

under the Act, if it becomes necessary. On this

ground, we are of the opinion that the direction of

the Industrial Tribunal in this regard will have to be

set aside.***. The legality of the direction given by

the Industrial Tribunal abolishing contract labour in

respect of loading and unloading from May 1, 1971,

can also be considered from another point of view.

The Central Act, as mentioned earlier, had come into

force on February 10, 1971. Under Section 10 of the

said Act the jurisdiction to decide matters connected

with prohibition of contract labour is now vested in

the appropriate Government. Therefore, with effect

from February 10, 1971, it is only the appropriate

Government that can prohibit contract labour by

following the procedure and in accordance with the

provisions of the Central Act. The Industrial Tribunal,

in the circumstances, will have no jurisdiction,

through its award dated November 20, 1970, to give

a direction in that respect which becomes,

enforceable after the date of the coming into force of

the Central Act. In any event, such a direction

contained in the award cannot be enforceable from a

date when abolition of contract labour can only be

done by the appropriate Government in accordance

with the provisions of the Central Act."

34. In Gujarat Electricity Board [1995 (5) S.C.C. 2]) the

same view was taken by the Apex Court holdings that the

authority to abolish the contract labour vests in the

appropriate Government and not in any court including

the industrial adjudicator. It would be apposite to reproduce

the observation of the court thus:

"53. Our conclusions and answers to the questions

raised are, therefore, as follows:

(i) In view of the provisions of Section 10 of the Act, it

is only the appropriate Government which has the

authority to abolish genuine labour contract in

accordance with the provisions of the said Section

No. Court including the industrial adjudicator has

jurisdiction to do so.

(ii) If the contract is sham or not genuine, the workmen

of the so-called contractor can raise an industrial

dispute for declaring that they were always the

employees of the principal employer and for claiming

the appropriate service conditions. When such

dispute is raised, it is not a dispute for abolition of

the labour contract and hence the provisions of

Section 10 of the Act will not bar either the raising or

the adjudication of the dispute. When such dispute

is raised, the industrial adjudicator has to decide

whether the contract is sham or genuine. It is only if

the adjudicator comes to the conclusion that the

contract is sham, that he will have jurisdiction to

adjudicate the dispute. If, however, he comes to the

conclusion that the contract is genuine, he may refer

the workmen to the appropriate Government for

abolition of the contract labour under Section 10 of

the Act and keep the dispute pending. However, he

can do so if the dispute is espoused by the direct

workmen of the principal employer. If the workmen

of the principal employer have not espoused the

dispute, the adjudicator, after coming to the

conclusion that the contract is genuine, has to reject

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the reference, the dispute being not an industrial

dispute within the meaning of Section 2 (k) of the ID

Act. He will not be competent to give any relief to

the workmen of the erstwhile contractor even if the

labour contract is abolished by the appropriate

Government under Section 10 of the Act.

(iii) If the labour contract is genuine a composite

industrial dispute can still be raised for abolition of

the contract labour and their absorption. However,

the dispute, will have to be raised invariably by the

direct employees of the principal employer. The

industrial adjudicator, after receipt of the reference

of such dispute will have first to direct the workmen

to approach the appropriate Government for abolition

of the contract labour under Section 10 of the Act

and keep the reference pending. If pursuant to such

reference, the contract labour is abolished by the

appropriate Government, the industrial adjudicator

will have to give opportunity to the parties to place

the necessary material before him to decide whether

the workmen of the erstwhile contractor should be

directed to be absorbed by the principal employer,

how many of them and on what terms. If, however,

the contract labour is not abolished, the industrial

adjudicator has to reject the reference.

(iv) Even after the contract labour system is abolished,

the direct employees of the principal employer can

raise and industrial dispute for absorption of the ex-

contractors workmen and the adjudicator on the

material placed before him can decide as to whom

and how many of the workmen should be absorbed

and on what terms".

35. In Steel Authority of India (supra) the Apex Court

had referred the precedents in Vegoils case (supra) and

Gujarat electricity Board (supra) with approval. Thus it

emerges that power to abolish contract labour system

vests with the appropriate Government, under Section 10

of the Contract Labour Act, and not with any court including

the industrial adjudicator. This Tribunal has not been

saddled with any responsibility to abolish contract labour

in an establishment, on parameters enacted in sub-section

(2) of section 10 of the Contract Labour Act.

36. Now I would turn to the facts of the present

controversy. It is not a case where an employee of a

contractor, employed in a statutory canteen, has invoked

the jurisdiction of this Tribunal. This matter, as projected

by the claimant, is left to be approached on the proposition

as to whether contract agreement entered into between the

University and the Contractor was sham and nominal. For

an answer to this proposition, it would be expedient to

examine the contract agreement, which has been proved

as Ex.MW3/1 by Dr. Bisht. In construction of contents of

Ex.MW3/1, this Tribunal cannot be oblivions of the rules

viz., written instruments shall, if possible, be so interpreted

"ut res magis valeat quam pereat" ( a liberal construction

should be put upon written instruments, so as to uphold

them, if possible) and that such a meaning shall be given to

it as may carry out and effectuate to the fullest extent the

intention of the parties.

37. Elementary principle of law relative to contracts

is that parties to contracts are to be allowed to regulate

their rights and liabilities themselves and the Courts will

only give effect to the intention of the parties as it is

expressed by the contract. However the law in some cases

overrides the will of the individual and renders ineffective

and futile his expressed intention or contract. No court or

tribunal will lend its aid to a man who founds his cause of

action upon an immoral or an illegal act. A contract cannot

be made the subject of an action if it be impeachable on the

grounds of dishonesty, or as being opposed to public

policy, if it be either contra bonos mores, or forbidden by

law. No court or tribunal will allow itself to be made the

instrument of enforcing obligations alleged to arise out of

a contract or transaction which is illegal.

38. Whether Ex.MW3/1 contains clauses which are

contra bonos mores for forbidden by law? When persued,

clause 24 of Ex.MW3/1 makes it clear that right to form or

join an association, in respect of IGNOU matter, has been

denied to an employee of the Contractor. For sake of

convenience contents of that clause are reproduced thus:

"24. The provider has to ensure that the Temporaries

deployed are not forming any Association/Forum in

respect of IGNOU matter nor they should be allowed

to join in any Association/Forum of IGNOU."

39. Right to form associations or unions is a

fundamental right guaranteed to every citizen by clause (1)

right to form an association or union has to be read with

clause (4) of the aforesaid Article, which permits imposition

of legal restrictions on the right insofar as such restrictions

may be reasonably required in the interest of the

sovereignty and integrity of India, public order and morality.

The right to form associations or unions refers not only to

the initial commencement of the association but also to

continuation of the association as such, as it is obvious

that if an association has to be dissolved the moment it

has been formed, it cannot be said that the members have

the right to form the association. The restriction imposed

by the University on employees of the Contractor does

not answer the requirement of clause (4) of Article 19 of the

Constitution and is violative of the fundamental right

guaranted to the claimant and her colleagues.

40. There is other facet of the coin. The Act is a

legislation relating to what is known as "collective

bargaining" in the economic field. This policy is implicit in

the definition of "Industrial dispute". See Titagarh Jute

Co. Ltd. (1979 Lab. I.C. 513). "An agreement between a

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single employer or an association of employers on one

hand and a labour union on the other, which regulates the

terms and conditions of employment" is known as collective

bargaining agreement. The policy behind the concept of

collective bargaining is to protect workmen as a class

against unfair labour practices. A dispute of an individual

workman would acquire status of an industrial dispute if it

affects the rights of the workmen as a class. An industrial

dispute denotes two qualities which distinguish it from an

individual dispute, namely (i) that the dispute relates to

industrial matter, and (ii) that on one side at least of the

dispute the disputant are a body of men acting collectively

and not individually. The clause, referred above, puts

restriction on the claimant and her colleagues to act

collectively as a body of men to protect their rights, while

working with the Contractor, who had engaged them to

produce a given result in terms of agreement Ex.MW3/1.

Contents of clause 24 of Ex.MW3/1, being unlawful, cannot

be supported at law.

41. A restriction is imposed on the claimant and her

colleagues from making any claim against the University

directly or indirectly, monetary including wages or

otherwise as contained in clause 23 of Ex.MW3/1, which is

not in conformity with the provisions of the Contract Labour

Act. Primary responsibility to pay wages to an employee

employed by a contractor rest upon the latter. But on his

failure to make payment of wages within the prescribed

period or in the event of making short payment, the principal

employer has saddled with the responsibility to make

payment of wages in full or the unpaid balance due, as the

case may be, to the contract labour, enacts sub-section (4)

of section 21 of the Contract Labour Act. Consequently

this part of clause 23 of Ex.MW3/1 is to be discarded, being

violative of law.

42. In mercantile transactions stipulations are agreed

upon between the parties on principal to principal or

principal to agent basis. In both the propostions there is

privity of contract between them. Absence of privity of

contract would make them strangers to each other, in respect

of alleged covenanted or parol agreement, as the case may

be. In clause 23 of Ex.MW3/1 it is projected that there is no

privity of contract by and between the Provider (the

Contractor) and the University. The proposition referred

above is absurd. Privity of contract is the relation which

exists between the immediate parties to a contract, which is

necessary to enable one person to sue another on it. It is

a relationship between persons arising under a contract.

There may be (1) privity of contract, or (2) privity of estate.

When Ex.MW3/1 is read, privity of contract between the

contractor and the University emerge out. Proposition,

referred above, cannot be given effect to.

43. ''Consideration'' of some sort or other is so

necessary to the formation of contract. A nudum pactum,

or agreement to do or pay something on one side, without

any consideration on the other, will not at all support any

action, and a man cannot be compelled to perform it. To

constitute consideration, there must be an act, abstinence

or promise on the part of promisee or some other person at

the desire of the promisor. A consideration must be valuable

and not superficial, it must be material and not sentimental

or imaginary. It must be a material detriment to the promisee

or a benefit to the promisor, Section 2 of the Contract Act

defines consideration: ''when at the desire of the promisor,

the promisee or any other person, has done or abstained

from doing or does or abstains from doing something, such

act or abstinence or promise is called a consideration for

the promise''.

44. The consideration for a promise must have some

tangible value in the eye of law. Its adequacy is not material.

Though adequacy of consideration will not be examined

by the courts, yet it must not be colourable merely nor

illusory. A mere moral obligation arising from a past benefit

not conferred at the request of the defendant is not a good

consideration. However consideration derived from moral

obligations, in which there has been a legal right deprived

of legal remedy, the defendant would be held liable, without

putting moral duty at par with legal consideration. These

propositions may require a court or a tribunal to examine

whether there was legal consideration for the promise.

45. Whether there is any legal consideration for the

promise made by the Contractor to the University? For an

answer contents of clause 15 of Ex. MW3/1 are to be

examined, which are extracted thus:

''15. In consideration of the obligation undertaken

by the Providor, under this agreement, the University

shall pay Provider charges on the basis of number of

such personnel actually deployed by the Providor

for the effective operation of this Agreement, on the

rates quoted by the Providor in their Tender based

on the direction and guidelines issued by the Local

Government (NCT of Delhi). The rates mentioned in

Tenders are as follows:''

46. As detailed above charges on the basis of number

of personnel deployed on the rates quoted by the Contractor

in Tender based on the direction and guidelines issued by

the Local Government (NCT of Delhi) where to be paid to

him by the University. In Ex. MW3/1 those rates are not

detailed. Thus tender document becomes a part of ex. MW3/

1. It has not been placed before the Tribunal. As detailed

above, adequacy of consideration, may prove to be beyond

the pale of jurisdiction of a civil court. But this Tribunal

has to examine adequacy of consideration to ascertain as

to whether Ex. MW3/1 is genuine and not sham and nominal.

The Tribunal is supposed to examine as to whether the

charges on the basis of number of personnel deployed on

rates quoted in tender document project minimum wages

to be paid to contract labours, besides remunerations

derived by the Contractor. Assessment of these factors

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may enable the Tribunal to reach a conclusion whether the

Contractor had put his hands to Ex. MW3/1 on principal to

principal or agent to principal basis. Absence of tender

document created a vacuum. Parol evidence was brought

on record to the effect as to what payments were made to

the Contractor from time to time. But absence of facts, as to

what were the rates of minimum wages, what number of

contract labours worked in a particular month, on how many

days in a month a contract labour worked, whether overtime

work was performed by a contract labour in that month,

whether a contract labour worked on Sundays, holidays

and weekly off days in a month, would leave the Tribunal

in lurch.

47. Wages sheet Ex. WW1/M4 to Ex. WW1/M8

project total work days of the respective months for which

the claimant worked, besides the number of days on which

she remained on leave without pay. These documents

project minimum rates of wages paid to her in a month, out

of which deductions towards E.P.F. and E.S.I. subscriptions

were made. Bills raised by the Contractor and sanction

accorded by the University are proved as Ex. MW3/11 to

Ex. MW3/19. Cheques issued in favour of the Contractor

are proved as Ex. MW3/5 to Ex. MW3/10. Despite my best

efforts to reconcile contents of documents referred above,

I could not work out the rates on which the Contractor was

paid by the University for services rendered by him. Thus

adequacy of consideration for services rendered by the

Contractor has not surfaced over the record. Vacuum of

evidence in that regard made me to comment that the

University could not establish factors in favour of

genuineness of contract agreement Ex. MW3/1.

48. Now it would be seen whether it was the

Contractor who exercised his control or supervision on the

claimant? Factors of such control and supervision were

described in various precedents, which would be noted

herein under. In Chintaman Rao [1958 (II) LLI 252] the Apex

Court ruled that the concept of employment involves three

ingredients: (1) employer, (2) employees, and (3) the

contract of employment. The employer is one who employs,

that is, one who engages the services of other persons.

The employee is one who works for another for hire. The

employment is the contract of service between the employer

and employee where under the employee agrees to serve

the employer subject to his control and supervision. In

Food Corporation of India [1985 (II) LLJ 4] Justice Desai,

speaking for the Apex Court, announced that a contract of

employment "discloses a relationship of command and

obedience between them." Where a Contractor employs a

workman to do the work which he contracted with a third

person to accomplish, the workman of the Contractor would

not without something more become the workman of third

person.

49. In Dharangadhara Chemical Works Limited [1957

(1) LLI 477], the Apex Court ruled that test of "supervision

and control may be taken as the prima facie test for

determining the relationship of employment". It was further

laid that existence of the right in the master to supervise

and control the work to be done by the servant, not only

matter of directing that work the servant is to do but also

the manner in which he shall do his work is the prima facie

test for determining the existence of master and servant

relationship. It was suggested that correct method of

approach, would be to consider whether having regard to

the nature of work there was due control and supervision

by the employer. The greater amount of direct control

exercised over the person rendering the services by the

person contracting for them, the stronger the ground for

holding it to be a contract of service. The control and

supervision test was reaffirmed by the Apex Court in

Chintaman Rao (supra), wherein it was ruled that "worker"

was a person employed by the management and there must

be contract of service and a relationship of master and

servant between them. In Shankar Balaji Waje [1962(1) LLJ

119], the Apex Court clarified that "control of the

management, which is a necessary element of the

relationship of master and servant is not directed towards

providing or dictating the nature of the article to be

produced or the work to be done, but refers to the other

incidents having a bearing on the process of work the

person carries out in the execution of the work. The manner

of work is to be distinguished from the type of work to be

performed. In V.P. Gopala Rao [1970 (11) LLI 59], the Apex

Court said that it is the question of fact in each case whether

the relationship of master and servant exists between the

management and the workman and there is no abstract a

priori test of the work control required for establishing the

contract of service. It was laid therein that for holding that

the persons employed in the factory were workers within

the meaning of sub section (1) of section (2) of the Factories

Act 1948, it is to be considered that the fact that the

workman had to work in the factory implied certain amount

of supervision by the management and the nature and extent

of control varied in different industries and that when the

operation was of a simple nature, the control could be

exercised at the end of the day by the method of rejecting

the bidis which did not come up to the proper standard. It

is, therefore, not surprising that in recent years, the control

test, as traditionally formulated, has not been treated as an

exclusive test. In Silver Jubilee Tailoring House [1973 (11)

LLI 495] the Apex Court ordained that "it is in its application

to skilled and particularly professional work that control

test in its traditional form has really broken down. It has

been said that in interpreting "control" as meaning the

power to direct how the servant should do the work, the

court has been applying the concept suited to a past age".

50. During the last three decades emphasis in the

field has shifted and no longer rests so strongly upon the

question of control. Control is obviously an important factor

and in many cases it may still be a decessive factor, but it

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would be wrong to say that in every case it is a decessive

factor. In Shining Tailors [1983 (11) LLJ 143], the Apex Court

held that the piece rated workers working for a big tailoring

establishment were workmen for the establishment. It was

observed therein that the "right of removal of the workman

or not to give work as an element of control and

supervision" which was amply satisfied to announce that

those piece rated workers were the workmen for the

establishment. The Court concluded that the proposition

that "piece rate" itself indicates relationship of independent

contract, is not correct. A servant who has full liberty to

attend to his work according to his pleasure and not

according to orders of his master, is an independent

contractor. A goldsmith engaged to finish jewels within a

given time and when it was open to such goldsmith to

finish jewels within the given time or earlier and engage

themselves or others of their own were held to be

independent contractors, in K. Keswa Reddiar [1957 (1)

LLJ 645]. In the like manner a goldsmith who undertook the

manufacture of ornaments like other goldsmith which he

was asked to manufacture and was entitled to receive

remuneration which would depend upon the nature of the

work done, was held to be not under the order or control of

the proprietor of the concern for whom he was doing the

work, in Achuta Achar [1968 (1) LLI 500]. An agreement for

selling milk on commission was held to be a contract for

service and not a contract of service, in Abad Dairy Doodh

Vitran Kendra Sanchalak Mandal, Ahmedabad (1989 Lab.

I.C. 1770). The Tiny Deposit Agents employed in deposit

mobilization activity of the bank have been held to be falling

within the definition of the workman and not an independent

contractor in the precedent in the Management of Indian

Bank [1990 (1) LLI 50].

51. As emerge out, element of control or supervision

of employer in respect of detail of work would be an

identifying mark of the servant. Where an employer retains

the power, not only of directing what work is to be done

but also of controlling the manner of doing the work, these

factors would be determinative of his status as of a master.

His control is not directed towards providing or dictating

the nature of work to be done but refers to other incidents

having a bearing on the process of work the person carries

out in the execution of the work. Control test postulates a

combination of managerial and technical functions.

52. Whether elements of control or supervision of

the University in respect of details of work of the claimant

emerge out of contract agreement Ex. MW3/1? For an

answer, a few clauses of Ex. MW3/1 are to be scanned,

which are extracted thus:

"12. Provider shall continue to be responsible for the

personnel employed by him, in respect of terms and

conditions of their service, payments, attendance, medical

care other disciplinary matters etc. who shall remain fully

under the administrative and financial control and

supervision of the Provider, except that the University shall

be the sole Arbitrator in respect of nature of the duties to

be entrusted to and the manner of performance of their

duties for the purpose of this Agreement.

13. The temporary personnel deployed by the

Provider to IGNOU shall at no time be treated as the

employees of the University and also shall have no claim

to be regularized in the services of the University. But the

Provider will not change the personnel once deployed by

it in the University without prior permission of the

University, as the frequent changes in deployment of

temporary may hamper the day to day work of the

University.

14. The Provider shall have to change over or replace

the temporary personnel as and when required by the

University whether or not such personnel are found guilty

of any misconduct. It shall not be necessary for the

University to assign any reason to the Provider or the

concerned Person or any other person in respect of any

such change and replacement required by the University".

53. As projected above, clause 12 announces that

personnel employed by the Contractor shall remain fully

under the administrative and financial control and

supervision of the Contractor. However, an exception is

there to this general proposition to the effect that the

University shall be sole arbitrator in respect of nature of

duties to be entrusted to and the manner of performance of

their duties for the purpose of the agreement under

consideration. Another exception is contained in clause 13

wherein the Contractor has been constrained not to change

the personnel once deployed without prior permission of

the University. Further exception is contained in clause 14

wherein the Contractor is obliged to change or replace the

temporary personnel as and when required by the

University. The factors enumerated in the clauses, referred

above, make it apparent that the University retained the

power, not only of directing what work was to be done by

the claimant, but also of controlling her in respect of manner

of doing the work. Power of the Contractor to replace the

claimant from her work place was made subject to permission

of the University. Despite the choice of the Contractor to

replace the claimant he could not do so, in case University

showed its unwillingness in that regard. Contra to it, the

Contractor was dity bound to change an employee if so

commanded by the University. Such a proposition was not

dependent on a contingency of the employee being found

guilty of any misconduct. Mere wish of the University was

to prevail in the matter. Thus it is crystal clear that the

University retained power of allocation of duties, besides

right to control the manner of performance of such duties

by the claimant. The claimant was to work with the

University till its pleasure. The Contractor could not exercise

his earnest will to change her, if not consented by the

University. If the University decided to get her changed,

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for any reasons whatsoever, the Contractor could not

impose her on the former, no matter her work and conduct

were satisfactory. Conspectus of these elements make it

clear that administrative control on the claimant was with

the University and not with the Contractor.

54. Contract agreement Ex. MW3/1 does not contain

any obligation on the part of the Contractor to supervise

the work of the claimant. No clause is there in the document

to show that the Contractor deployed some personnel to

supervise the work of the claimant and her other 69

colleagues. Who use to the mark attendance of the claimant

and her colleagues Ex. MW3/1 draws a blank? No parol

evidence was brought in to suggest that it was the

Contractor who supervised her work. Vacuum of facts in

Ex. MW3/1 and conspicuous absence of any ocular

evidence in that regard leave no doubt to conclude that it

were the University authorities who used to supervise the

work of the claimant and her colleagues.

55. Disciplinary control is exercised by an employer

on his employees by way of codifying rules of conduct for

them. He engrafts acts of misconduct in those rules. He

punishes his employees for their blameworthy conduct. It

is so done by him with a view to maintain discipline at the

work place and to deter potential delinquent from doing

improper behaviour or to come in conflict with rules of

standard of behaviour. Right to coin an act as an improper

behaviour, falling within the ambit of misconduct, was

retained by the University. It has been detailed in clause 22

of Ex. MW3/1 that "the University shall be sole judge as to

what is against the interest of the University and as to

what constitutes misconduct". This authority to define a

behaviour to be a misconduct for a contract employee

projects that the University had clothed itself with a right

to declare a code of conduct for the claimant and her

associates. This right is an attribute of disciplinary control

exercised by an employer on his employees.

56. Construction adopted on contents of Ex. MW3/1

is based on the standards of presumed intent of parties.

The construction, so put, with an idea to preserve the will

of the parties to Ex. MW3/1. It is the duty of a court or

tribunal to give effect to the intention of the parties in

construing a written instrument. Ascertaining general scope

of Ex. MW3/1, intention of the parties contained therein,

nature of the instrument and legal right of the parties

thereto, it is concluded that efforts were made by the

University to hide the truth with a view to project a make-

believe instrument of engaging personnel through the

Contractor. In fact the University retained administrative

and disciplinary control over the contract employees.

When veil was lifted, it emerged that Ex. MW3/1 is sham

and bogus. There are realties of rellationship of employer

and employees between the University and the claimant

and her other 69 colleagues. In view of the forgoing

reasons, it is concluded that the veil of Ex. MW3/1 is a

smoke-screen, which would not snap reiationship between

the University and the claimant and her colleagues.

Aforesaid two issues are accordingly answered.

Issue No. 3

57. Dr. S.S. Bisth announces that with effect from

1.11.2007 contract for providing housekeeping services was

given to the New Contractor. He asserts that owing to

illegal demands of the claimant and her colleagues, the

New Contractor did not engage them. Thereafter

housekeeping staff, including the claimant, resorted to

illegal demonstration. A suit of injunction was filed, which

was decreed by the High Court of Delhi. Certified copy of

judgement dated 13.3.2009 has been proved as Ex. MW2/5,

by Shri Shiv Prakash.

58. Whether above facts would espouse the cause

of the University? Answer lies in negative. As held above,

the claimant was an employee of the University, which

proposition restrains the University from awarding

housekeeping services to the New Contractor. In the garb

of award of housekeeping services to the New Contractor,

the University dispensed with the services of the claimant

and her colleagues. Action of the University squarely falls

within the ambit of definition of retrenchment, as contained

in sub-section (oo) of section 2 of the Act, No case was

projected that the case of University falls within the

exceptions, contained therein. Therefore, it is crystal clear

that the action of the University amounts to retrenchment.

As per own admission of the University, the claimant

rendered services w.e.f. 1.11.2004 till 31.10.2007, as an

employee of the Contractor. Thus it is clear that she

rendered continuous service of more than 240 days in a

calendar year, as contemplated by section 25-B of the Act.

When an employee renders services of more than one year,

he is entitled to protection/benefits contained in section

25-F of the Act. Out of facts of the present controversy, it

emerges that services of the claimant were done away in

violation of the provisions of section 25-F of the Act. It is

not the case of the University that one month's notice or

pay in lieu thereof and retrenchment compensation was

paid to the claimant and other similarly situated employees.

Requirements contained in section 25-F of the Act are

mandatory and non-compliance thereof makes the action

of the employer illegal. Hence action of the University in

terminating services of the claimant, in the garb of awarding

contract of housekeeping services to the New Contractor,

is illegal and unjustified.

59. Whether judgment Ex. MW2/5 would come to

the rescue of the University? Answer lies in negative. Memo

of parties tell that neither the claimant nor her colleagues

were party to that suit. The suit was filed in respect of a

cause of action of civil nature. Even otherwise judgement

Ex. MW2/5 would not operate as res-judicata in the present

controversy. Law contained in section 11 of the Code of

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Civil Procedure 1908 (in short the Code) embodies the

doctrine of res-judicata or the rule of conclusiveness of a

judgment, as to the point decided either of fact, or of law, or

of fact and law, in every subsequent suit between the same

parties. It enacts that once a matter is finally decided by a

competent court, no party can be permitted to reopen it in

a subsequent litigation. The doctrine of res-judicata has

been explained in the simplest possible manner by Das

Gupta J. in the case of Statyadhyan Chosal (AIR 1960 S.C.

941) in the following words:

"The principle of res-judicata is based on the need

of giving a finality to judicial decision. What it says

is that once a res-is judicata, it shall not be adjudged

again. Primarily it applies as between past litigation

and future litigation. When a matter—whether on a

question of fact or a question of law—has been

decided between two parties in one suit or proceeding

and the decision is final, either because no appeal

was taken to a higher court or because the appeal

was dismissed, or no appeal lies, neither party will be

allowed in a future suit or proceedings between the

same parties to convass the matter again".

60. It is not every matter decided in a former suit that

will operate as res judicata in a subsequent suit. To

constitute a matter as res-judicata under section 11 of the

Code, the following conditions must be satisfied:"

1. The matter directly and substantially in issue in

the subsequent suit must be the same matter which was

directly and substantially in issue either actually or

constructively in the former.

2. The former suit must have been a suit between the

same parties or between parties under whom they or any of

them claim.

3. Such parties must have been litigating under the

same title in the former suit.

4. The court which decided the former suit must be a

court competent to try the subsequent suit or the suit in

which such issue is subsequently raised.

5. The matter directly and substantially in issue in

the subsequent suit must have been heard and finally

decided by the court in the former suit.

61. Section 11 of the Code bars trial of any suit as

well as an issue which had been decided in a former suit.

Issues are of three kinds: (i) Issue of fact; (ii) Issue of law;

and (iii) Mixed Issues of law and fact. A decision on an

issue of fact, however erroneous it may be, constitutes res

judicata between the parties to the previous suit and cannot

be reagitated in collateral proceedings. Law to this effect

was laid in Mathura Prashad [1970 (1) SCC 613]. A mixed

issue of law and fact also, for the same reasons, operates

as res-judicata.

62. To invoke plea of res judicata it should be shown

that the court which decided the former suit must have

been a court competent to try the subsequent suit. Thus,

the decision in a previous suit by a court, not competent to

try the subsequent suit, will not operate as res judicata.

The expression "competent to try" means "competent to

try the subsequent suit if brought at the time the first suit

was brought". In other words, the relevant point of time for

deciding the question of competence of the court is the

date when the former suit was brought and not the date

when the subsequent suit was filed. In order that a decision

in a former suit may operate as res judicata, the court which

decided that suit must have been either — (a) a court of

exclusive jurisdiction, or (b) a court of limited jurisdication;

or (c) a court of concurrent jurisdication.

In industrial jurisdiction principles analogus to res-

judicata are applicable.

63. Now it would be considered as to whether the

High Court is competent to try on industrial dispute, relating

to rights and liabilities created under the Act. Such

proposition was raised before the Apex Court in Premier

Automobiles Ltd. [1975 (II) LLJ, 445,] wherein following

principles were enuncliated:

"(i) If the dispute is not an industrial dispute, nor does it

relate to enforcement of any other right under the

Act the remedy lies only in the Civil Court.

(ii) If the dispute is an industrial dispute arising out of a

right or liability under general or common law and

not under the Act, the jurisdiction of the Civil Court

is alternative, leaving it to the election of the suiter

concerned to choose his remedy for relief which is

competent to be granted in a particular remedy.

(iii) If the industrial dispute relates to the enforcement of

a right or an obligation created under the Act, then

the only remedy available to the suiter is to get an

adjudication under the Act.

(iv) If the right which is sought to be enforced is a right

created under the Act such as Chapter V-A then the

remedy for enforcement is either section 33-C or the

raising of an industrial dispute, as the case may be."

However, in relation to Principle No.2, the Court

added that "there will hardly be a dispute which will be an

"industrial dispute" within the meaning of section 2(k) of

the Act and yet will be arising out of a right or liability

under the general or common law only and not under the

Act".

64. In Rajasthan State Road Transport Corporation

(1995 Lab. I.C. 2241), the Apex Court analysed the earlier

dicta and re-stated the law as follows:

"(1) Where the dispute arises from general law of

contract, i.e., where reliefs are claimed on the basis

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of the general law of contract, a suit filed in civil

court cannot be said to be not maintainable, even

though such a dispute may also constitute an

"industrial dispute" within the meaning of Section

2(k) or Section 2-A of the industrial Disputes Act,

1947.

(2) Where, however, the dispute involves

recognition, observance or enforcement of any of the rights

or obligations created by the Industrial Disputes Act, the

only remedy is to approach the forms created by the said Act.

(3) Similarly, where the dispute involves the

recognition, observace or enforcement of rights and

obligations created by enactments like Industrial

Employment (Standing Orders) Act, 1946—which can be

called 'sister enactments' to Industrial Disputes Act—and

which do not provide a forum for resolution of such

disputes, the only remedy shall be to approach the forums

created by the Industrial Disputes Act provided they

constitute industrial disputes within the meaning of Section

2(k) and Section 2-A of Industrial Disputes Act or where

such enactment says that such dispute shall be either

treated as an Industrial dispute or says that it shall be

adjudicated by any of the forum created by the Industrial

Disputes Act. Otherwise, recourse to Civil Court is open.

(4) It is not correct to say that the remedies provided

by the Industrial Disputes Act are not equally effective for

the reason that access to the forum depends upon a

reference being made by the appropriate government. The

power to make a reference conferred upon the government

is to be exercised to effectuate the object of the enactment

and hence not unguided. The rule is to make a reference

unless, of course, the dispute raised is a totally frivolous

one ex-facie. The power conferred is the power to refer and

not the power to decide, though it may be that the

government is entitled to examine whether the dispute is

ex-facie frivolous, not meriting an adjudication.

(5) Consistent with the policy of law aforesaid, we

commend to the Parliament and State Legislatures to make

a provision enabling a workman to approach the Labour

Court/Industrial Tribunal directly—i.e., without the

requirement of a reference by the Government—in case of

industrial disputes covered by Section 2-A of the Industrial

Disputes Act. This would go a long way in removing the

misgivings with respect to the effectiveness of the remedies

provided by the Industrial Disputes Act.

(6) The certified Standing Orders framed under and

in accordance with the Industrial Employment (Standing

Orders) Act, 1946 are statutorily imposed conditions of

service and are binding both upon the employers and

employees, though they do not amount to"statutory

provisions". Any violation of these Standing Orders

entitles an employee to appropriate relief either before the

forums created by the Industrial Disputes Act or the Civil

Court where recourse to Civil Court is open according to

the principles indicated herein.

(7) The policy of law emerging from Industrial

Disputes Act and its sister enactments is to provide an

alternative dispute resolution mechanism to the workmen,

a mechanism which is speedy, inexpensive, informal an un-

encumbered by the plethora of procedural laws and appeals

and revisions applicable to civil courts. Indeed, the powers

of the Courts and Tribunals under the Industrial Disputes

Act are far more extensive in the sense that they can grant

such relief as they think apporpriate in the circumstances

for putting an end to an industrial dispute".

Same view was taken by the Apex Court in Steel

Authority of India (supra).

65. Facts detailed in preceding sections make out

that the rights which the claimant claim and obligations

which are imposed on the University arise out of rights

and obligations created by the Act. An Industrial dispute

within the meaning of section 2(k) was referred for

adjudication by the appropriate Government to this

Tribunal, invoking its powers under clause (d) of sub-

section (1) of section 10 of the Act. High Court is not

competent to adjudicate an industrial dispute. Hence,

Principle 2, referred in para 63 and Principle 1 referred in

para 64 do not come into play. Therefore, judgment Ex

MW2/5 cannot operate as res-judicata. It would not restrain

the claimant in any manner, from agitating her claim against

the University.

66. It is well settled that negative language used in

section 25-F of the Act imposes a mandatory duty on the

employer, which is condition precedent to retrenchment of

a workman. Contravention of mandatory requirements of

section 25-F of the Act would invalidate the retrenchment

and render it void ab initio. Reference can be made to the

precedents in Auro Engineering (Pvt.) Ltd., Nasik (1992

Lab. I.C. 1364) and Ollur Regional Limitation Diamond

Manufacturing Industrial Co-op. Society Ltd. [1993 (II) LLI

174]. As detailed above, retrenchment of the claimant is

illegal and void ab initio. Issue is, therefore, answered in

favour of the claimant and against the University.

67. As concluded above, the claimant was engaged

by the University through the Contractor by way of creation

of make belief contract agreement, which was a perfect

paper arrangement. On lifting of veil, the University was

found to be the real employer. Her services were

disengaged under the garb of award of housekeeping

service agreement to the New Contractor. Her retrenchment

was found to be void ab initio. She, being an employee of

the University cannot be retrenched by the Contractor or

the New Contractor. She is deemed to be in the service of

the University Question comes whether she is entitled to

full back wages. For an answer in her favour, she was under

an obligation to establish that the remained unemployed

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since the date of her retrenchment. No evidence has been

adduced by the claimant on that point. Thus it cannot be

said that she remained unemployed, since the date of

dispensing with her services by the University. The Apex

Court and High Courts dealt with the issue of award of

compensation, when reinstatement in service was not

found expedient. Those precedents may help the Tribunal

in ascertaining the quantum of back wages, which may be

awarded to the claimant. In S.S. Shetty [1957 (11) LLI 696]

the Apex Court indicated some relevant factors which an

adjudicator has to take into account in computing

compensation in lieu of reinstatement, in the following words:

"The industrial Tribunal would have to take into

account the terms and conditions of employment,

the tenure of service, the possibility of termination

of employment at the instance of either party, the

possibility of retrenschment by the employer or

resignation or retirement by the workman and even

of the employer himself ceasing to exist or of the

workman being awarded various benefits including

reinstatement under the terms of future awards by

industrial Tribunal in the event of industrial disputes

arising between the parties in future....In computing

the money value of the benefits of reinstatement,

the industrial adjudicator would also have to take

into account the present value of what his salary,

benefits etc. would be till he attained the age of

superannouation and the value of such benefits etc. would

have to be computed as from the date when such

reinstatement was ordered under the terms of the award.

Having regard to the considerations detailed above,

it is impossible to compute the money value of this benefits

of reinstatement awarded to the appellant with mathematical

exactitude and the best that any tribunal or court would do

under the circumstances would be to make as correct as

estimate as is possible bearing, or course in mind all the

relevant factors pro and con".

68. A Divisional Bench of the Patna High Court is

B.Choudhary (1983) Lab.1.1755 (1758) deduced certain

guidelines which have to be borne in mind in determining

the quantum of compensation viz. (i) the back wages

receivable (ii) compensation for deprivation of the job with

future prospect and obtainability of alternative

employment; (iii) employee's age (iv) Length of service in

the establishment (v) capacity of the employer to pay and

the nature of the employer's business (vi) gainful

employment in mitigation of damages; and (vii)

circumstances leading to the disengagement and the past

conduct. These factors are only illustrative and not

exhaustive. In addition to the amount of compensation, it

is also within the jurisdiction of the Tribunal to award

interest on the amount Furthermore, the rate of such interest

is also in the discretion of the Tribunal. Reference can be

made to Tabesh Process, Shivakashi (1989 Lab. I.C. 1887).

69. In Assam Oil Co. Ltd. [1960 (1) LLI 587[ the Apex

Court took into account countervailing facts that the

employer had paid certain rums to the workmen and her

own earning in the alternative employment and ordered

that "it would be fair and just to direct the appellant a

substantial sum as compensation to her". In Utkal

Machinery Ltd. [1966 (1) LLI 398] the amount to

compensation equivalent to two year salary of the employee

awarded by the industrial Tribunal was reduced by the

Supreme Court to an amount equivalent to one year salary

of the employeae in view of the fact that she had been in

service with the employer only for 5 months and also took

into consideration and unusual manner of her appointment

at the instance of the Chief Minister of the State. In A.K.

Roy [1970 (1) LLI 228] compensation equivalent to two

years salary last drawn by the workmen was held to be fair

and proper to meet the ends of justise. In Anil Kumar

Chakraborty [1962 (II( LLI 483] the Count convered the

award of reinstatement into compensation of a sum of Rs.

50000/- as just and fair compensation in full satisfaction of

all his claims for worngful dismissal from service. In O.P.

Bhandari (1986 (II) LLI 509), the Apex Court observed that

it was a fir case for grant of compensation in view of

reinstatement. The Court awarded compensation equivalent

of 3.33 years salary as reasonable. In M.K. Aggarwal [1988

Lab I.C. 380], the Apex Court though confirmed the order

of reinstatement yet restricted the back salary of 50% of

what would otherwise be payable to the employee. In

Yashveer Singh [1993 Lab. I.C. 44] the court directed

payment of Rs. 75000/- in view of reinstatement with back

wages. In Naval Kishor [1984 (II) LLI 473] the Apex Court

observed that in view of the special circumstances of the

case adequate compensation would be in the interest of

the appellant. A sum of Rs. 2 lac was awarded as

compensation in lieu of reinstatement. In Sant Raj [1985

(II)LLI 19] a sum of Rs. 2 lac was awarded as compensation

in lieu of reinstatement. In Chandu Lal [1985 Lab I.C. 1225]

a compensation of Rs. 2 lac by way of back wages in lieu of

reinstatement was awarded. In Ras Bihari [1988 Lab I.C.

107] a compensation of Rs. 65000/- was granted in lieu of

reinstatement, since the employee was gainfully employed

elsewhere. In V.V. Rao [1991 Lab I.C. 1650] a compensation

of Rs. 2.50 lac was awarded in lieu of reinstatement.

70. The claimant rendered continous four years

service to the University, when she was illegally retrenched.

She has to fight for about four years for redressal of her

grievances. The circumstances in which she was

retrenched and mass unemployment prevalent in economic

field which may come in the way when some one goes for

an alternative employment, besides other factors of this

case persuage me to award 20 percent back wages from the

date of retrenchment till the date the award becomes

operative under section 17-A of the Act, besides

reinstatement of the claimant in the service of the

Univsersity, with continuity and all consequential benefits.

An award is, accordingly, passed, it be sent to the

appropriate Government for publication.

DR. R.K. YADAV, Presiding Officer

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New Delhi, the 1st February, 2012

S.O. 826.—In pursuance of Section 17 of the

Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 03/2010)

of the Central Government Industrial Tribunal cum Labour

Court No. 1 New Delhi as shown in the Annexure, in the

Industrial dispute between the Vice Chancellor, Indira

Gandhi National Open University and their workman,

which was received by the Central Government on

01.02.2012.

[F. No. L-42012/97/2009-IR(DU)]

RAMESH SINGH, Desk Officer

ANNEXURE

BEFORE DR. R.K. YADAV, PRESIDING OFFICER,

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL

NO. 1, KARKARDOOMA COURTS COMPLEX: DELHI

I.D. No. 3/2010

Shrimati Savita W/o Shri Suresh Kumar

H. No. F-2/188, Madangir,

New Delhi

Claimant

Versus

The Vice Chancellor,

Indira Gandhi National Open University,

R. No. 1, Block No. 8, Maidan Garhi,

New Delhi-110 068.

Management

AWARD

Indira Gandhi National Open University (herein after

referred to as the University) was established in the year

1985 to provide cost effective and quality education to large

sections of people, including those living in remote and

far flung areas, through distance education programmes.

The University function not only within the boarders of

the country but offers education programmes in at least 35

countries. Besides Regional Centres across the country and

in foreign countries, the University has its Central Campus

at Maidan Garhi, New Delhi which is spread over an area

of 151.32 acres of land. At its Central Campus, the

University has a strength of about 800 officers/officials

working there.

2. The University requires considerable man-power

to carry out housekeeping services, which includes cleaning

and sanitation activities. Housekeeping services are out

sourced by the University through a private contractor. In

the year 2004, the University awarded contract for

housekeeping services to Sybex Computer Systems (Pvt.)

Ltd. (in short the Contractor). The Contractor engaged

around 70 sweepers and cleaners to carry out its contractual

obligations. On 1st November, 2007, the University

awarded contract for housekeeping services to Spick and

Span Facilities Management (Pvt.) Ltd. (in short the New

Contractor). Initially the New Contractor decided to retain

services of the sweepers and cleaners engaged by the

Contractor. But negotiations between the New Contractor

and employees of the Contractor turned into a complete

fiasco. Sweepers and cleaners resorted to agitation and sat

on "dharna" outside the gate of Maidan Garhi Campus of

the University. Legal wrangle started between the

University and the agitators. Efforts were made from either

side to wrench one's opponent.

3. Resort to the jurisdiction of Conciliation Officer

was taken by the sweepers and cleaners, by way of filing

their respective claim statements. Conciliation Officer

initiated conciliation proceedings, as contemplated by sub-

section (1) of section 12 of the Industrial Disputes Act,

1947 (in short the Act). No settlement could arrive at

between the parties and a failure report was submitted to

the appropriate Government. On consideration of the failure

report, so submitted, the appropriate Government referred

the dispute to this tribunal for adjudication, invoking its

powers under clause (d) of sub-section (1) of section 10 of

the Act, vide order No. L-42012/97-2009-IR(DU) New

Delhi dated 7th January, 2010, with following terms:

"Whether the action of the management of Indira

Gandhi National Open University, in terminating the

services of their workman Shrimati Savita w.e.f.

01/11/2007 is legal and justified? If not, what relief

the workman is entitled to?"

4. Smt. Savita claims in her claim statement that she

was working with the University as "Safai Karamchari" in

its housekeeping department since 1.3.2005. She had

rendered more than 240 days continuous service with the

University. At the time of entering into the services of the

University, she was asked to fill in certain forms, which

forms duly filled and signed by her are in the custody of

the University. No appointment letter was issued in her

favour, inspite of her request in that behalf. Since inception

of her engagement, the University had indulged into unfair

labour practices and flouted implementation of labour laws

concerning her service conditions. At times she, alongwith

her colleagues, was kept at its rolls by the University, while

during intermittent spells her services were transferred at

the roll of one contractor or the other. This device was

adopted with a view to discount her continuity in serivce

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and seniority in employment so that liability to pay

retrenchment compensation under the Act and other

benefits under various labours laws may be avoided.

5. Contributions towards social securities, namely,

ESI, medical benefits and provided fund were deducted

from her wages by the University, pleads the claimant,

Despite payment of contributions towards above social

securities, the University never issued any medical card

and provident fund statement or account number, but passed

on that responsibility on the shoulders of the Contractor.

Facility of earned, annual, privileged, casual, weekly off,

festival and medical leaves were not accorded. Though

work was taken on Sundays and holidays from her but no

compensatory leave or overtime wages were given to her.

She used to get wages at the rate of Rs. 172/- per days,

amounting to somewhere near to Rs. 4500/- per month.

6. On 1st November, 2007, the University decided

to place her services at the disposal of a contractor, whose

engagement for housekeeping work was neither

communicated nor he was introduced to her. To her utter

surprise a contractor surfaced on scene and told her and

her colleagues that he will pay them Rs. 3470/- each per

month. He announced that interested persons may stay at

work-place and others may leave for good. The Claimant

and her colleagues wanted to see the Vice-Chancellor to

appraise him of their grievances, but they were stopped at

the gate of the University campus. Services of the claimant

and others were terminated. The University called some

anti-social elements and got sever beatings administered

to her and her colleagues at their hands. Police was also

called by the University authorities, to keep their hands

clean.

The University had not served one months notice

nor paid wages in lieu of the notice. Retrenchment

compensation was also not paid to her. Her services were

not done away on infliction of punishment for a disciplinary

action, hence action of the University is violative of the

provisions of the Act and principles of natural justice. She

claims reinstatement in the services of the University with

continuity and consequential benefits.

8. The University demurs the claim pleading that the

claimant was never employed by it. No salary/wages or

other emoluments were paid by it to the claimant. There

existed no relationship of employer and employee between

the parties. Hence there was no occasion for the University

to terminate services of the claimant. In view of these facts,

reference order is improper and claim statement is liable

to be rejected, pleads the University.

9. To outsource housekeeping services, the

University engaged services of the Contractor, vide

agreement dated 1.11.2004, which agreement was extended

upto 31.10.2007. The claimant was working with the

Contractor to provide housekeeping services at the campus

of the University. The Contractor is essential and proper

party, pleads the University. In agreement entered into

between the Contractor and the University it was stipulated

that employees of the Contractor at no point of time would

be treated as employees of the University. The University

laid emphasis on a few clauses of the agreement, which

are extracted thus:

"12. Provider shall continue to be responsible for

the personnel employed by him, in respect of terms and

conditions of their service, payments, attendance, medical

care, other disciplinary matters etc. who shall remain fully

under the administrative and financial control and

supervision of the Provider, except that the University shall

be the sole Arbitrator in respect of natural of the duties to

be entrusted to and the manner of performance of their

duties for the purpose of this Agreement.

13. The temporary personnel deployed by the

Provider to IGNOU shall at no time by treated as the

employees of the University and also shall have no claim

to be regularized in the services of the University. But the

Provider will not change the personnel once deployed by

it in the University without prior permission of the

University as the frequent changes in deployment of

temporary may hamper the day to day work of the

University.

23. There is no privity of contract by and between

the Provider and the University. The Temporary shall have

no right to make any claim against the University directly

or indirectly, monetary including wages or otherwise. The

Temporary shall also have no right to claim for any

regularization. The Temporary shall also have no claim

against the University of any dues, statutory or otherwise.

Similarly, even the representative of any Temporary who

have worked in the University shall have no right or claim

against the University.

24. The Provider has to ensure that the Temporaries

deployed are not forming any Association/Forum in respect

of IGNOU matter not they should be allowed to join in

any Association/forum of IGNOU.

25. The Provider has to ensure timely deployment

of Temporaries as required by IGNOU and fulfil other

obligation stated in the above said terms and conditions

failing which penalty will be imposed by the University on

case to case basis from time to time. The decision of the

University will be final."

10. When contract, referred above, expired with

efflux of time, contract for housekeeping services was

awarded to the New Contractor, who initially sought to

retain the services of housekeeping staff for his own

contract. However, owing to illegal and unjustified demands

of the housekeeping staff, the New Contractor did not

engage the claimant and her other colleagues. The claimant

and her colleagues resorted to illegal demonstration in the

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[PART II—SEC. 3(ii)]

University premises. A civil suit being CS(OS) No. 83 of

2008 was instituted before High Court of Delhi. The High

Court passed an interim injunction order on 15.1.2008

against the housekeeping staff and ultimately decreed the

suit on 13.3.2009.

11. The University had denied all allegations levelled

by the claimant in her claim statement. It is pleaded that

the claimant knew her status, being an employee of the

Contractor. Her services were terminated by the Contractor

and the University has no role to play in so called

termination of her services. Her claim against the University

is illegal, unwarranted and unjustified. It is pleaded that

her claim may be dismissed.

12. An application moved by the University, to

implead the Contractor as a party, was declined vide order

dated 20.4.2010.

13. On pleadings of the parties, following issues were

settled:

Whether there was relationship of employer and

employee between the claimant and the

management?

Whether the claimant was an employee of Sybex

Computer System Pvt. Ltd., the Contractor?

As in terms of reference.

Relief.

14. To discharge onus resting on her, the claimant

examined herself and closed her evidence. The University

examined Smt. Bimla Madan, Shri Shiv Prakash, Dr. S.S.

Bisht and Shri Ashok Kumar Gupta to substantiate its case.

15. Arguments were heard at the bar at length. Shri

V.N. Kaushik, assisted by Ms. Sulekha Thakur, authorised

representative, advanced arguments on behalf of the

claimant. Shri V.K. Rao, assisted by Shri Aly Mirza,

authorised representative and Vibhas Vaibhav, Asstt.

Registrar (Law), raised submissions on behalf of the

University. I have given my careful considertions to the

submissions made at the bar and cautiously perused the

record. My findings on issues involved in the controversy

are as follows:

Issue No. 1 & 2.

16. Affidavit Ex. WW1/A was tendered as evidence

on behalf of the claimant, wherein she sweared that she

was in the employment of the University as "Safai

Karamchari" since 01-06-1996 It has been projected in Ex.

WW1/A that she rendered more than 11 years service with

the University. Except this new fact, other facts detailed in

Ex. WW1/A are facsimile of contents of claim statement,

which has been proved as Ex.WW1/M1. During the course

of her cross-examination, she concedes that she was

appointed by one Dharmender, the Contractor. She candidly

admitted her signatures on documents Ex.WW1/M2 to

Ex.WW1/M9.

17. Smt. Bimla Madan unfolds that Regional Office

of the employers' Provident Fund Organisation had given

code number as DL-24878 to the Contractor, while code

number 2398 was given to Smt. Savita, the employee of

the above company. Name of Savita appears in statements

of contributions Ex.MW1/1 and Ex.MW1/2, filed by her

employer for the period 1.4.2005 to 31.3.2006 and 1.4.2006

to 31.3.2007 respectively.

18. Shri Shiv Prakash entered the witness box to

prove copy of plaint, filed by the University before High

Court of Delhi, written statement of defendant No.3 to 6,

affidavit of Shri U.S. Tolia tendered as evidence in that

case, interim order dated 15.1.2008 and judgment dated

13.3.2009 passed by Justice Ms. Rekha Sharma. These

documents are proved as Ex.MW2/1 to MW2/5

respectively. He clarified that no appeal was preferred

against the judgment Ex.MW2/5.

19. Dr. S.S. Bisht tendered his affidavit Ex.MW3/A

as evidence, wherein he announced that the claimant was

never appointed by the University in its services. No salary

was ever paid to her. Services of the Contractor were availed

to outsource housekeeping services vide agreement dated

1.11.2004, which was subsequently extended upto

31.10.2007. The claimant was working with the Contractor.

With effect from 1.11.2007 contract to provide

housekeeping services was awarded to the New Contractor.

He projects that when she was not engaged by the New

Contractor, she alongwith her colleagues resorted to illegal

demonstration in the premises of the University. Story of

filing civil suit and orders thereon have been re-affirmed

by Dr. Bisht. Being an employee of the Contractor, she

had filed a wrong claim statement, which is liable to be

dismissed, asserts Dr. Bisht.

20. Shri Ashok Kumar Gupta details that the

University was maintaining an account with Maidan Garhi

branch of the Punjab National Bank. The University had

issued cheques in favour of the Contractor, details of those

cheques are given in Ex.MW4/A. He identifies signatures

of Shri Mohan Lal, Branch Manager, on Ex.MW3/21 and

announces that contents of that document are true and

correct, as he himself had checked the records.

21. When facts testified by the claimant, Smt. Bimla

Madan, Dr. S.S. Bisht and Ashok Kumar Gupta are

appreciated, it came to light that the claimant had detailed

facts which are inconsistent to each other. In her claim

statement she projected a case that she was in the service

of the University since 1.3.2005. In her affidavit Ex. WW1/A

she tried to assert that she was in the services of the

University since 1.6.1996. This piece of her deposition is

contrary to facts pleaded by her in claim statement Ex.

WW1/M1. One cannot lead evidence on a fact which is

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not pleaded. Even otherwise during the course of her cross-

examination, she gave another twist to facts and proclaimed

that initially she was appointed by one Dharmender, a

Contractor. Prior to her engagement on muster roll by the

University in the year 2004, she was an employee of the

Contractor, deposes the claimant. Thus an another

discrepant fact was recklessly uttered by her. This swinger

does not find any corroboration from any other piece of

evidence, direct or circumstantial. Self-serving words,

deposed by the claimant, could not withstand rigors of

cross-examination, wherein she admitted that Ex.WW1/

M2, Ex.WW1/M3, Ex.WW1/M4, Ex.WW1/M5,

Ex.WW1/M6, Ex.WW1/M7, Ex.WW1/M8 and Ex.WW1/

M9 bear her signatures. When perused it came to light that

Ex.WW1/M4 to Ex.WW1/M9 are wage-sheets of the

Contractor, though which salary of the claimant and her

colleagues were released by the former in their favour.

These documents project her to be an employee of the

Contractor. Thus by an admission of her signatures on above

documents she allowed a fact to spill over, which

demolishes her case of being an employee of the University.

Ex.WW1/M2 and Ex.WW1/M3 are also photocopy of

scrolls through which payments were released by the

Contractor to the claimant and her colleagues. In the end

she gave in and deposed that she was not aware as to who

engaged her. However she made a faint attempt to project

her cause when she asserted that she used to work for the

University. Conspectus of above facts spill the beans and

announce her to be an employee of the Contractor.

22. Dr. S.S. Bisht erected castle for the University

brick by brick when he deposed that the claimant was

working with the Contractor, whom housekeeping services

were outsourced vide agreement dated 1.11.2004, copy of

which is Ex.MW3/1. This agreement was extended upto

31.10.2007. When aforesaid contract expired, contract for

housekeeping services was awarded to the New Contractor,

vide agreement Ex.MW3/2. When New Contractor did not

engage the services of the claimant and her colleagues,

they resorted to illegal demonstration in the premises of

the University. The Contractor used to raise his bills, to

whom payments were made through cheques Ex.MW3/5,

Ex.MW3/6, Ex.MW3/7, Ex.MW3/8, Ex.MW3/9 and

Ex.MW3/10, deposes the witness. Some of the bills raised

by the Contractor, besides sanction accorded by the

University are Ex.MW3/11, Ex.MW3/12, Ex.MW3/13,

Ex.MW3/14, Ex.MW3/15, Ex.MW3/16, Ex.MW3/17,

Ex.MW3/18 and Ex. MW3/19, Dr. Bisht detailed.

Payments were made to the Contractor through cheques,

which were honoured and cleared and letter Ex.MW3/21,

was written by the bank in that regard. He had proved list

of contractors as Ex.MW3/W2, to whom the work was

awarded by the University since 16.12.1991 till date. Out

of facts unfolded by Dr. Bisht it came over the record that

the University had outsourced housekeeping services since

16.12.1991. On 1.11.2004 work was awarded to the

Contractor and on 1.11.2007 it was awarded to the New

Contractor. Claimant was an employee of the Contractor,

who used to pay wages to her. Smt. Bimla Madan gives re-

affirmation to facts unfolded by Dr. Bisht. She had proved

statements of contribution, filed by the Contractor in the

Regional Office of the Employees' Provident Fund

Organisation, in which statements name of the claimant

does appear as an employee of the Contractor. Shri Ashok

Kumar Gupta proves various payments made by the

University to the Contractor, details of which are enlisted

in Ex.MW3/21. Sequences of events, brought over the

record through the depositions of aforesaid witnesses and

documents proved by them, highlight that the claimant was

an employee of the Contractor, who used to made payment

of her salaries to her. It was the Contractor who was her

pay master.

23. Whether the claimant, who was an employee of

the Contractor, can maintain a dispute against the

University? For an answer to this proposition, the Tribunal

has to take note of the law contained in section 10 of the

Contract Labour (Regulation and Abolition) Act, 1970 (in

short the Contract Labour Act), which makes provision for

prohibition of employment of contract labour. For sake of

convenience provisions of section 10 of the Contract

Labour Act are reproduced thus:

"10. Prohibition of employment of contract labour:—

(1) Notwithstanding anything contained in this Act,

the appropriate Government may, after consultation with

the Central Board or, as the case may be, a State Board,

prohibit, by notification in the Official Gazette, employment

of contract labour in any process, operation or other work

in any establishment.

(2) Before issuing any notification under sub-section

(1) in relation to an establishment, the appropriate

Government shall have regard to the conditions of work

and benefits provided for the contract labour in that

establishment and other relevant factors, such as:—

(a)

whether the process, operation or other work is

incidental to, or necessary for the industry, trade,

business, manufacture or occupation that is carried

on in the establishment;

(b)

whether it is of perennial nature, that is to say, it

is of sufficient duration having regard to the nature

of industry, trade, business, manufacture or

occupation carried on in that establishment;

(c)

whether it is done ordinarily through regular

workmen in that establishment or an establishment

similar thereto;

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[PART II—SEC. 3(ii)]

(d)

whether it is sufficient to employ considerable

number

whole-time

workmen.

Explanation—If a question arises whether any

process or operation or other work is of perennial

nature, the decision of the appropriate

Government thereon shall be final."

24. As emerge out of the provisions of sub-section

(1) of section 10 of the Contract Labour Act, the appropriate

Government may, by notification in the official gazette,

prohibit employment of contract labour in any process,

operation or other work in any establishment. When

employment of contract labour is prohibited, by issuance

of a notification in official gazette by the appropriate

Government, what would be the status of the contract labour

employed in the establishment? Such a question arose

before the Apex Court in Steel Authority of India Ltd. [2001

(7) S.C.C.I.]. The Apex Court ruled therein that there cannot

be automatic absorption of contract labour by principal

employer on issuance of notification by the appropriate

Government on abolition of contract labour system, under

sub section (1) of section 10 of the Contract Labour Act. It

would be expedient to reproduce the law laid by the Apex

Court, which is extracted thus:

"..... they fall in three classes: (1) 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

adjudicator/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 contract labour working

in the establishment was ordered, (2) where contract

was found to be a sham and nominal, rather a

camouflage, in which case the contract 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 the abolition of contract

labour but present instances wherein the court pierce

the veil and declared the correct position as a fact at

the stage after employment of contract labour stood

prohibited, (3) where in discharge of a statutory

obligation of maintaining a canteen in an

establishment the principal employer availed the

services of the contractor, the courts have held that

the contract labour would indeed be employees of

the principal employer".

25. The Court ruled that neither section 10 of the

Contract Labour Act nor any other provision in that Act,

whether expressly or by necessary implication, provides

for automatic absorption of contract labour on issuance of

a notification by the appropriate Government under sub

section (1) of section 10, prohibiting employment of

contract labour, in any process, operation or other work in

any establishment. Consequently the principal employer

cannot be required to order for absorption of the contract

labour working in the establishment concerned. It was

further ruled therein that in Saraspur Mills case [1974 (3)

SCC 66], the workman engaged for working in the canteen

run by the Cooperative Society for the appellant were the

employees of the appellant mills. In Basti Sugar Mills (AIR

1964 S.C. 355) a canteen was run in the factory by the

Cooperative Society and as such the workers working in

the canteen were held to b;e employees of the establishment.

The Apex Court ruled that these cases fall in class (3)

mentioned above. Judgment in Hussainbhai (1978 Lab. I.C.

1264) was considered by the Apex Court in the said

precedent and it was ruled therein that the said precedent

falls in class (2), referred above. The Apex Court concluded

that on issuance of prohibitive notification under section

10 of the Contract Labour Act prohibiting employment of

contract labour or otherwise, in an industrial dispute

brought before it by any contract labour in regard to

conditions of service, the Industrial Adjudicator will have

to consider the question whether the contractor has been

interposed either on the ground of having undertaken to

produce any given result for the establishment or for supply

of contract labour for work of the establishment under a

genuine contract or is a mere ruse/camouflage to evade

compliance of various beneficial legislation so as to deprive

the workers of the benefit thereunder. If the contract is found

to be not genuine but a mere camouflage, the so called

contract labour will have to be treated as employees of the

principal employer who shall be directed to regularize the

services of the contract labour in the establishment

concerned, subject to the conditions as may be specified

by it for that purpose.

26. As announced by the Apex Court, on issuance of

a prohibitive notification, prohibiting employment of

contract labour or otherwise in any industrial dispute

brought before it by the contract labour in regard to

conditions of his service, the industrial adjudicator will

have to consider the question whether the contractor has

been interposed either on the ground of having undertaken

to produce any given result in the establishment or for

supply of the contract labour for the work of the

establishment under a genuine contract or it is a mere ruse/

camouflage to evade compliance of benerficial legislation

so as to deprive the workers of the benefits therein. Thus it

was ruled that a contract labour can raise a dispute before

the industrial adjudicator in regard to his conditions of

service and in case the contract is found to be not genuine

but a mere camouflage, the so called contract labour will

have to be treated as employees of the principal employers.

Also see Standard Vacuum Refinging Co. of India Ltd.

[1960 (ii) LLI. 233], which was referred with approval in

Steel Authority of India. has not been saddled with any

responsibility to abolish contract labour in an establishment,

on parameters enacted in sub-section (2) of section 10 of

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the Contract Labour Act.

27. In Shivandan Sharma [1955 (1) LLI 688], the

respondent Bank entrusted its Cash Department under a

contract to the Treasures who appointed cashiers, including

the appellant Head Cashier. The question before the Apex

Court was: was the appellant an employee of the Bank?

On construction of the agreement entered into the Bank

and the Treasure, the Court laid down:

“If a master employs a servant and authorizes him to

employ a number of persons to do a particular job

and to guarantee their fidelity and efficiency for a

cash consideration, the employees thus appointed by

the servant would be equally with the employer,

servant of the master.”

In the above precedent the Apex Court for the first

time laid down the crucial test of supervision and control

for determining the relationship of employer and employee.

28. In Hussainbhai (supra) the petitioner, who was

manufacturing ropes, entrsuted the work to a contractor

who engaged his own workers. When, after some time, the

workers were not engaged, they rasied an industrial dispute

that they were denied employment by the petitioner. On

reference of that dispute, the labour court passed an award

against the petitioner. When matter reached the Apex Court,

on examination of various factors and applying the effective

control test, it was held that though there was no direct

relationship between the petitioner and the workers yet on

lifting the veil and looking at the conspectus of factors

governing employment, the naked truth, though drapped

in different perfect paper arrangement, was that the real

employer was the petitioner, not the immediate contractor.

The Apex Court stated law in following words:

“Where a worker or group of workers labours to

produce goods or services and these goods or services

are for the business of another, that other is, in fact,

the employer. He has economic control over the

workers’ subsistence, skill and continued

employment. If he, for any reasons, chokes off, the

worker is, virtually, laid off. The presence of

intermediate contractor with whom alone the workers

have immediate or direct relationship ex-contractu

is of no consuquence when, on lifting the veil or

looking at the conspectus of factors governing

employment, we discern the naked truth, though

drapped in different perfect paper arragement, that

the real employer is the management, not the

immediate contractors***. If the livelihood of the

workmen substantially depends on labour rendered

to produce goods and services for the benefit and

satisfaction of an enterprise, the absence of direct

relationship or the presence of dubious intermediaries

or the make-believe trapping of detachment from the

management cannot snap the real-life bond. The story

may vary but the inference defies ingenuity. The

liability cannot be shaken off. Of course, if there is

total dissociation in fact between the disowning

management and the aggrieved workmen, the

employment is, in substance and real-life terms, by

another. The management’s adventitious connections

cannot ripen into real employment.”

As noted above, this precedent does not present an

illustration of abolition of contract labour but an instance

where the Court pierced the veil and declared the correct

position to the effect that the contract labours were

employees of the principal employer and not of the

contractor.

29. In Steel Authority of India (supra) it has been

ruled that the term “contract labour” is a species of

workman. A workman may be hired: (1) in an establishment

by the principal employer or by his agent with or without

the knowledge of the principal employer, or (2) in

connection with the work of an establishment by the

principal employer through a contractor or by a contractor

with or without the knowledge of principal employer.

Where a workman is hired in or in connection with the

work of an establishment by the principal employer though

a contractor, he merely acts as an agent so there will be

master and servant relationship between the principal

employer and the workman. But when a workman is hired

in or in connection with the work of an establishment by a

contractor, either because he has undertaken to produce a

given result for the establishment or because he supplies

workman for any work of the establishment, a question

might arise whether the contractor is a mere camouflage

as in Hussainbhai’s case (supra) and in Indian

Petrochemicals Corporation case [1999 (6) S.C.C. 439]

etc.; if the answer is in affirmative, the workman will be in

fact an employee of the principal employer, but if the answer

is in the negative, the workman will be a contract labour.

In view of the legal proposition, referred above, it is

concluded that the claimant can maintain this dispute

against the University since she agitates that the contract

agreement between the University and the Contractor is

sham and nominal.

30. Whether any directions for deeming the contract

labour as having become the employees of the principal

employer can be issued, when the contractor or the principal

employer has violated the provisions of the Contract Labour

Act? To find an answer, provisions of that Act are to be

examined. The Contract Labour Act regulates conditions

of workers in contract labour system and provides for its

abolition by the appropriate Government as provided by

section 10 of the Act. In regard to regulatory measures

section 7 requires the principal employer to get itself

registered, while section 12 obliges every contractor to

obtain a licence under the provisions of that Act. Section 9

places an embargo on the principal employer of an

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[PART II—SEC. 3(ii)]

establishment from employing contractor labour in the

establishment, when either it is not registered to its

registration has been revoked. Section 12 of the Contract

Labour Act imposes a liability on a contractor not to

undertake or execute any work through contract labour

except under and in accordance with a licence. Sections

23, 24 and 25 make contraventions of the provisions of

that Act of Rules made thereunder penal. In Dena Nath

(1992 Lab. I.C. 75) the Apex Court considered the question,

whether non-compliance of the provisions of sections 7

and 12 by the principal employer and the contractor

respectively would make the contract labour employed by

the principal employer as the employee of the latter. It was

ruled that only consequence of non-compliance either by

the principal employer of seciton 7 or by the contractor in

complying the priovisions of section 12 is that they are

liable for prosecution under the said Act. But the employees

employed through the contractor cannot be deemed to be

the employees of the principal employer.

31. In the Steel Authority of India (supra) the Apex

Court laid emphasis “........ the consequence of violation

of Section 7 and 12 of the CLRA Act is explicitly provided

in Section 23 and 25 of the CLRA Act, it is not for the

High Courts or this Court to read in some unspecified

remedy in Section 10 or substitute for penal consequences

specified in Sections 23 and 25 a different sequel, be if

absorption of contract labour in the establishment of

principal employer or a lesser or harsher punishment. Such

an interpretation of the provisions of the statute will be far

beyond the principle of ironing out the creases and the scope

of interpretative legislation and as such, clearly

impermissible”. The above authoritative pronouncements

make it clear that on violations of the provisions of the

Contract Labout Act or Rules made thereunder, the contract

labour could not be deemed to have become the employee

of the principal employer.

32. Whether this Tribunal has power to order for

abolition of contract labour system in the establishment of

the University? For an answer, legal dicta is to be

considered. Before enactment of the Contract Labour Act,

the industrial adjudicator, in appropriate cases, used to issue

directions to the establishment concerned to abolish or

modify system of contract labour. Reference can be made

to precedents in United Salt Works and Industries Ltd.

[1962 (I) LLI. 131], Shibu Metal Works [1966 (I) LLI.

717], National Iron & Steel Co. [1967 (II) LLI. 23] and

Ghatge and Patil (Transport) Pvt. Ltd. [1968 (I) LLI. 566].

The National Commission on Labour (1966) in para 29.11

of its report, enumerated those factors, on which abolition

of contract labour was ordered, thus:

“29.11. Judicial awards have discouraged the practice

of employment of contract labour, particularly when

the work is (i) perennial and must go on from day to

day; (ii) incidental and necessary for the work of the

factor; (iii) sufficient to employ a considerable

number of whole time workmen; and (iv) being done

in most concerns through regular workmen. These

awards also came out against the system of

‘middlemen’.”

33. After Contract Laour Act was brought on statute

book, the Apex examined jurisdiction of the Indestrial

adjudicator to issue directions to the establishment to

abolish contract labour in Vegolis Private Ltd. [1971 (2)

S.C.C. 724] and the ruled that it would be proper that the

question, whether the contract labour in the appellant

industry was to be abolished or not, be left to be dealt with

by the appropriate Government under the provisions of

that Act, if it becomes necessary. The observations made

by the Court are extracted thus:

“The appropriate Government when taking action

under Section 10 will have an overall picture of the

industries caryying on similar activities and decide

whether contract labour is to be abolished in respect

of any of the activities of that industry. Therefore, it

is reasonable to conclude that the jurisdiction to

decide about the abolition of contract labour, or to

put it differently, to prohibit the employment of

contract labour, is now to be done in accordance with

Section 10. Therefore, it is proper that the question

whether the contract labour regarding loading and

unloading in the industry of the appellant is to be

abolished or not, is left to be dealt with the

appropriate Government under the Act, if it becomes

ncessary. On this ground, we are of the opinion that

the directions of the Industrial Tribunal in this regard

will have to be set aside.***. The legality of the

direction given by the Industrial Tribunal abolishing

contract labour in respect of loading and unloading

from May 1, 1971, can also be considered from

another point of view. The Central Act, as mentioned

earlier, had come into force on February 10, 1971.

Under Section 10 of the said Act the jurisdiction to

decide matters connected with prohibition of contract

labour is now vested in the appropriate Government.

Therefore, with effect from February 10, 1971, it is

only the appropriate Government that can prohibit

contract labour by following the procedure and in

accordance with the provisions of the Central Act.

The Industrial Tribunal, in the circumstances, will

have no jurisdiction, through its award dated

November 20, 1970, to give a direction in that respect

which becomes, enforceable after the date of the

coming into force of the Central Act. In any event,

such a direction contained in the award cannot be

enforceable from a date when abolition of contract

labour can only be done by the appropriate

Government in accordance with the provisions of the

Central Act”.

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34. In Gujarat Electricity Board [1995 (5) S.C.C. 27]

the same view was taken by the Apex Court holdings that

the authority to abolish the contract labour vests in the

appropriate Government and not in any court including

the industrial adjudicator. It would be apposite to reproduce

the observation of the court thus:

“53. Our conclusions and answers to the questions

raised are, therefore, as follows:

(i)

In view of the provisions of Section 10 of the Act,

it is only the appropriate Government which has

the authority of abolish genine labour contract in

accordance with the provisions of the said Section.

No Court including the industrial adjudicator has

jurisdiction to do so.

(ii)

If the contract is sham or not genuine, the

workmen of the so-called contractor can raise an

industrial dispute for declaring that they were

always the employees of the principal employer

and for claiming the appropriate service

conditions. When such dispute is raised, it is not

a dispute for abolition of the labour contract and

hence the provisions of Section 10 of the Act will

not bar either the raising or the adjudication of

the dispute. When such dispute is raised, the

industrial adjudicator has to decide whether the

contract is sham or genuine. It is only if the

adjudicator comes to the conclusion that the

contract is sham, that he will have jurisdiction to

adjudicate the dispute. If, however, he comes to

the conclusion that the contract is genuine, he may

refer the workmen to the appropriate Government

for abolition of the contract labour under Section

10 of the Act and keep the dispute pending.

However, he cam do so if the dispute is espoused

by the direct workmen of the principal employer.

If the workmen of the principal employer have

not espoused the dispute, the adjudicator, after

coming to the conclusion that the contract is

genuine, has to reject the reference, the dispute

being not an industrial dispute within the meaning

of Seciton 2 (k) of the ID Act. He will not be

competent to give any relief to the workmen of

the erstwhile contractor even if the labour contract

is abolished by the appropriate Government under

Section 10 of the Act.

(iii)

If the labour contract is genuine a composite

industrial dispute can still be rasied for abolition

of the contract labour and their absorption.

However, the dispute, will have to be raised

invariably by the direct employees of the principal

employer. The industrial adjudicator, after receipt

of the reference of such dispute will have first to

direct the workmen to approach the appropriate

Government for abolition of the contract labour

under Section 10 of the Act and keep the reference

pending. If pursuant to such reference, the contract

labour is abolished by the appropriate

Government, the industrial adjudicator will have

to give opportunity to the parties to place the

necessary material before him to decide whether

the workmen of the erstwhile contractor should

be directed to be absorbed by the principal

employer, how many of them and on what terms.

If, however, the contract labour is not abolished,

the industrial adjudicator has to reject the

reference.

(iv)

Even after the contract labour system is abolished,

the direct employees of the principal employer

can raise an industrial dispute for absorption of

the ex-contractor’s workmen and the adjudicator

on the material placed before him can decide as

to who and how many of the workmen should be

absorved and on what terms”.

35. In Steel Authority of India (supra) the Apex Court

had referred the precedents in Vegoils case (supra) and

Gujarat Electricity Board (supra) with approval. Thus it

emerges that power to abolish contract labour sytem vests

with the appropriate Government, under section 10 of the

Contract Labout Act, and not with any court including the

industrial adjudicator. This Tribunal has not been saddled

with any responsibility to abolish contract labour in an

establishment, on parameters enacted in sub-section (2)

of section 10 of the Contract Labour Act.

36. Now I would turn to the facts of the present

controversy. It is not a case where an employee of a

contractor, employed in a statutory canteen, has invoked

the jurisdiction of this Tribunal. This matter, as projected

by the claimant, is left to be approached on the proposition

as to whether contract agreement entered into between the

University and the Contractor was sham and nominal. For

an answer to this proposition, it would be expedient to

examine the contract agreement, which has been proved

as EX. MW3/1 by Dr. Bisht. In construction of contents of

Ex. MW3/1, this Tribunal cannot be oblivions of the rules

viz., written instruments shall, if possible, be so interpreted

"ut res magis valeat quam pereat" (a liberal construction

should be put upon written instruments, so as to uphold

them, if possible) and that such a meaning shall be given

to it as may carry out and effectuate to the fullest extent the

intention of the parties.

37. Elementary principle of law relative to contracts

is that parties to contracts are to be allowed to regulate

their rights and liabilities themselves and the Courts will

only give effect to the intention of the parties as it is

expressed by the contract. However the law in some cases

overrides the will of the individual and renders ineffective

and futile his expressed intention or contract. No court or

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[PART II—SEC. 3(ii)]

tribunal will lend its aid to a man who founds his cause of

action upon an immoral or an illegal act. A contract cannot

be made the subject of an action if it be impeachable on

the grounds of dishonesty, or as being opposed to public

policy, if it be either contra bonos mores, or forbidden by

law. No court or tribunal will allow itself to be made the

instrument of enforcing obligations alleged to arise out of

a contract or transaction which is illegal.

38. Whether Ex. MW3/1 contains clauses which are

contra bonos mores or forbidden by law? When perused,

clause 24 of Ex. MW3/1 makes it clear that right to form

or join an association, in respect of IGNOU matter, has

been denied to an employee of the Contractor. For sake of

convenience contents of that clause are reproduced thus:

"24. The provider has to ensure that the Temporaries

deployed are not forming any Association/Forum in

respect of IGNOU matter nor they should be allowed

to join in any Association/Forum of IGNOU."

39. Right to form associations or unions is a

fundamental right guaranteed to every citizen by clause

(1)(c) of Article 19 of the Constitution of India. Guarantee

of right to form an association or union has to be read with

clause (4) of the aforesaid Article, which permits imposition

of legal restrictions on the right in so far as such restrictions

may be reasonably required in the interest of the sovereignty

and integrity of India, public order and morality. The right

to form associations or unions refers not only to the initial

commencement of the association but also to continuation

of the association as such, as it is obvious that if an

association has to be dissolved the moment it has been

formed, it cannot be said that the members have the right

to form the association. The restriction imposed by the

University on employees of the Contractor does not answer

the requirement of clause (4) of Article 19 of the

Constitution and is violative of the fundamental right

guaranted to the claimant and her colleagues.

40. There is other facet of the coin. The Act is a

legislation relating to what is known as "collective

bargaining" in the economic field. This policy is implicit

in the definition of "industrial dispute". See Titagarh Jute

Co. Ltd. (1979 Lab. I.C. 513). "An agreement between a

single employer or an association of employers on one

hand and a labour union on the other, which regulates the

terms and conditions of employment" is known as collective

bargaining agreement. The policy behind the concept of

collective bargaining is to protect workmen as a class

against unfair labour practices. A dispute of an individual

workman would acquire status of an industrial dispute if it

affects the rights of the workmen as a class. An industrial

dispute denotes two qualities which distinguish it from an

individual dispute, namely (i) that the dispute relates to

industrial matter, and (ii) that on one side at least of the

dispute the disputant are a body of men acting collectively

and not individually. The clause, referred above, puts

restriction on the claimant and her colleagues to act

collectively as a body of men to protect their rights, while

working with the Contractor, who had engaged them to

produce a given result in terms of agreement Ex. MW3/1.

Contents of clause 24 of Ex. MW3/1, being unlawful,

cannot be supported at law.

41. A restriction is imposed on the claimant and her

colleagues from making any claim against the University

directly or indirectly, monetary including wages or

otherwise as contained in clause 23 of Ex. MW3/1, which

is not in conformity with the provisions of the Contract

Labour Act. Primary responsibility to pay wages to an

employee employed by a contractor rests upon the latter.

But on his failure to make payment of wages within the

prescribed period or in the event of making short payment,

the principal employer has been saddled with the

responsibility to make payment of wages in full or the

unpaid balance due, as the case may be, to the contract

labour, enacts sub-section (4) of section 21 of the Contract

Labour Act. Consequently this part of clause 23 of Ex.

MW3/1 is to be discarded, being violative of law.

42. In mercantile transactions stipulations are agreed

upon between the parties on principal to principal or

principal to agent basis. In both the propositions there is

privity of contract between them. Absence of privity of

contract would make them strangers to each other, in respect

of alleged convenanted or parol agreement, as the case may

be. In clause 23 of Ex. MW3/1 it is projected that there is

no privity of contract by and between the Provider (the

Contractor) and the University. The proposition referred

above is absurd. Privity of contract is the relation which

exists between the immediate parties to a contract, which

is necessary to enable one person to sue another on it. It is

a relationship between persons arising under a contract.

There may be (1) privity of contract, or (2) privity of estate.

When Ex. MW3/1 is read, privity of contract between the

contractor and the University emerge out. Proposition,

referred above, cannot be given effect to.

43. "Consideration" of some sort or other is so

necessary to the formation of a contract. A nudum pactum,

or agreement to do or pay something on one side, without

any consideration on the other, will not at all support any

action, and a man cannot be compelled to perform it. To

constitute consideration, there must be an act, abstinence

or promise on the part of promisee or some other person at

the desire of the promisor. A consideration must be valuable

and not superficial, it must be material and not sentimental

or imaginary. It must be a material detriment to the promisee

or a benefit the he promisor. Section 2 of the Contract Act

defines consideration: "when at the desire of the promisor,

the promisee or any other person, has done or abstained

from doing, or does or abstains from doing something, such

act or abstinence or promise is called a consideration for

the promise".

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44. The consideration for a promise must have some

tangible value in the eye of law. Its adequacy is not material.

Though adequacy of consideration will not be examined

by the courts, yet it must not be colourable merely nor

illusory. A mere moral obligation arising from a past benefit

not conferred at the request of the defendant is not a good

consideration. However consideration derived from moral

obligations, in which there has been a legal right deprived

of legal remedy, the defendant would be held liable, without

putting moral duty at par with legal consideration. These

propositions may require a court or a tribunal to examine

whether there was legal consideration for the promise.

45. Whether there is any legal consideration for the

promise made by the Contractor to the University? For an

answer contents of clause 15 of Ex. MW3/1 are to be

examined, which are extracted thus:

"15. In consideration of the obligation undertaken

by the Provider, under this Agreement, the University

shall pay Provider charges on the basis of number of

such personnel actually deployed by the Provider for

the effective operation of this Agreement, on the

rates quoted by the Provider in their Tender based

on the direction and guidelines issued by the Local

Government (NCT of Delhi). The rates mentioned

in Tender are as follows:"

46. As detailed above charges on the basis of number

of personnel deployed on the rates quoted by the Contractor

in Tender based on the direction and guidelines issued by

the Local Government (NCT of Delhi) where to be paid to

him by the University. In Ex. MW3/1 those rates are not

detailed. Thus tender document becomes a part of Ex.

MW3/1. It has not been placed before the Tribunal. As

detailed above, adequacy of consideration, may prove to

be beyond the pale of jurisdiction of a civil court. But this

Tribunal has to examine adequacy of consideration to

ascertain as to whether Ex. MW3/1 is genuine and not sham

and nominal. The Tribunal is supposed to examine as to

whether the charges on the basis of number of personnel

deployed on rate quoted in tender document project

minimum wages to be paid to contract labours, besides

remunerations derived by the Contractor. Assessment of

these factors may enable the Tribunal to reach a conclusion

whether the Contractor had put his hands to Ex. MW3/1

on principal to principal or agent to principal basis. Absence

of tender document created a vacuum. Parol evidence was

brought on record to the effect as to what payments were

made to the Contractor from time to time. But absence of

facts, as to what were the rates of minimum wages, what

number of contract labours worked in a particular month,

on how many days in a month a contract labour worked,

whether overtime work was performed by a contract labour

in that month, whether a contracts labour worked on

Sundays, holidays and weekly off days in a month, would

leave the Tribunal in lurch.

47. Wages sheet Ex. WW1/M4 to Ex. WW1/M9

project total work days of the respective months for which

the claimant worked, besides the number of days on which

she remained on leave without pay. These documents

project minimum rates of wages paid to her in a month,

out of which deductions towards E.P.F. and E.S.I.

subscriptions were made. Bills raised by the Contractor

and sanction accorded by the University are provide as

Ex. MW3/11 to Ex. MW3/19. Cheques issued in favour of

the Contractor are proved as Ex. MW3/5 to Ex. MW3/10.

Despite my best efforts to reconcile contents of documents

referred above, I could not work out the rates on which the

Contractor was paid by the University for services rendered

by him. Thus adequacy of consideration for services

rendered by the Contractor has not surfaced over the record.

Vacuum of evidence in that regard made me to comment

that the University could not establish factors in favour of

genuineness of contract agreement Ex. MW3/1.

48. Now it would be seen whether it was the

Contractor who exercised his control or supervision on the

the claimant? Factors of such control and supervision were

described in various presedents, which would be noted

herein under. In Chintaman Rao [1958 (II) LLJ 252] the

Apex Court ruled that the concept of employment involves

three ingredients.\: (1) employer, (2) employee, and (3)

the contract of employment. The employer is one who

employs, that is, one who engagess the services of other

persons. The employee is one who works for another for

hire. The employment is the contract of service between

the employer and employee where under the employee

agrees to serve the employer subject to his control and

supervision. In Food Corporation of India [1985(II) LLJ4]

Justice Desai, speaking for the Apex Court, announced that

a contract of employment "discloses a relationship of

command and obedience between them". Where a Contract

employs a workman to do the work which he contracted

with a third person to accomplish, the workman of the

Contractor would not without something more become the

workman of third person.

49. In Dharangadhara Chemical Works Limited

[1957 (1) LLJ 477], the Apex Court ruled that test of

"supervision and control may be taken as the prima facie

test for determining the relationship of employment". It

was further laid that existence of the right in the master to

supervise and control the work to be done by the servant,

not only matter of directing that work the servant is to do

but also the manner in which he shall do his work is the

prima facie test for determining the existence of master

and servant relationship. It was suggested that correct

method of approach, would be to consider whether having

regard to the nature of work there was due control and

supervision by the employer. The greater amount of direct

control exercised over the person rendering the services

by the person contracting for them, the stronger the ground

for holding it to be a contract of service. The control and

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[PART II—SEC. 3(ii)]

supervision test was reaffirmed by the Apex Court in

Chintaman Rao (supra), wherein it was ruled that "worker"

was a person employed by the management and there must

be contract of service and a relationship of master and

servant between them. In Shankar Balaji Waje [1962(1)

LLJ 119], the Apex Court clarified that "control of the

management, which is a necessary element of the

relationship of master and servant is not directed towards

providing or dictating the nature of the article to be

produced or the work to be done, but refers to the other

incidents having a bearing on the process of work the person

carries out in the execution of the work. The manner of

work is to be distinguished from the type of work to be

performed. In V.P. Gopala Rao [1970 (11) LLJ59], the Apex

Court said that it is the question of fact in each case whether

the relationship of master and servant exists between the

management and the workman and there is no abstract a

prior test of the work control required for establishing the

contract of service. It was laid therein that for holding that

the persons employed in the factory were workers within

the meaning of sub section (1) of section (2) of the Factories

Act 1948, it is to be considered that the fact that workman

had to work in the factory implied certain amount of

supervision by the management and the nature and extent

of control varied in different industries and that when the

operation was of a simple nature, the control could be

exercised at the end of the day by the method of rejecting

the bidis which did not come up to the proper standard. It

is, therefore, not surprising that in recent years, the control

test, as traditionally formulated, has not been treated as an

exclusive test. In Silver Jubilee Tailoring House [1973 (11)

LLJ 495] the Apex Court ordained that "it is in its

application to skilled and particularly professional work

that control test in its traditional form has really broken

down. It has been said that in interpreting "contol" as

meaning the power to direct how the servant should do the

work, the court has been applying the concept suited to a

past age".

50. During the last three decades emphasis in the

field has shifted and no longer rests so strongly upon the

question of control. Control is obviously an important factor

and in many cases it may still be a decessive factor, but it

would be wrong to say that in every case it is a decessive

factor. In Shining Tailors [1983 (11) LLJ 143], the Apex

Court held that the piece rated workers working for a big

tailoring establishment were workmen for the

establishment. It was observed therein that the "right of

removal of the workman or not to give work as an element

of control and supervision" which was amply satisfied to

announce that those piece rated workers were the workmen

for the establishment. The Court concluded that the

proposition that piece rate" itself indicates relationship of

independent contract, is not correct. A servant who has full

liberty to attend to his work according to his pleasure and

not according to orders of his master, is an independent

contractor. A gold smith engaged to finish jewels within a

given time and when it was open to such goldsmith to finish

jewels within the given time or earlier and engage

themselves or others of their own were held to be

independent contractors, in K.Keswa Reddiar [1957 (1)

LLJ645]. In the like manner a goldsmith who undertook

the manufacture of ornaments like other goldsmith which

he was asked to manufacture and was entitled to receive

remuneration which would depend upon the nature of the

work done, was held to be not under the order or control of

the proprietor of the concern for whom he was doing the

work, in Achuta Achar [1968 (1) LLJ 500]. An agreement

for selling milk on commission was held to be a contract

for service and not a contract of service, in Abad Dairy

Doodh Vitran Kendra Sanchalak Mandal, Ahmedabad

(1989 Lab. I.C. 1770). The Tiney Deposit Agents employed

in deposit mobilization activity of the bank have been held

to be falling within the definition of the workman and not

an independent contractor in the precedent in the

Management of Indian Bank [1990 (1) LLJ 50].

51. As emerge out, element of control or supervision

of employer in respect of detail of work would be an

identifying mark of the servant. Where an employer retains

the power, not only of directing what work is to be done

but also of controlling the manner of doing the work, these

factors would be determinative of his status as of a master.

His control is not directed towards providing or dictating

the nature of work to be done but refers to other incidents

having a bearing on the process of work the person carries

out in the execution of the work. Control test postulates a

combination of managerial and technical functions.

52. Whether elements of control or supervision of

the University in respect of details of work of the claimant

emerge out of contract agreement Ex. MW3/1? For an

answer, a few clauses of Ex. MW3/1 are to be scanned,

which are extracted thus:

"12. Provider shall continue to be responsible for

the personnel employed by him, in respect of terms and

conditions of their service, payments, attendance, medical

care, other disciplinary matters etc. who shall remain fully

under the administrative and financial control and

supervision of the Providers, except that the University

shall be the sole Arbitrator in respect of nature of the duties

to be entrusted to and the manner of performance of their

duties for the purpose of this Agreement.

13. The temporary personnel deployed by the

Provider to IGNOU shall at no time be treated as the

employees of the University and also shall have no claim

to be regularized in the services of the University. But the

Provider will not change the personnel once deployed by

it in the University without prior permission of the

University, as the frequent changes in deployment of

temporary may hamper the day to day work of the

University.

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14. The Provider shall have to change over or replace

the temporary personnel as and when required by the

University whether or not such personnel are found guilty

of any misconduct. It shall not be necessary for the

University to assign any reason to the Provider or the

concerned Person or any other person in respect of any

such change and replacement required by the University."

53. As projected above, clause 12 announces that

personnel employed by the Contractor shall remain fully

under the administrative and financial control and

supervision of the Contractor. However an exception is

there to this general proposition to the effect that the

University shall be sole arbitrator in respect of nature of

duties to be entrusted to and the manner of performance of

their duties for the purpose of the agreement under

consideration. Another exception is contained in clause 13

wherein the Contractor has been constrained not to change

the personnel once deployed without prior permission of

the University. Further exception is contained in clause 14

wherein the Contractor is obliged to change or replace the

temporary personnel as and when required by the

University. The factors enumerated in the clause, referred

above, make it apparent that the University retained the

power, not only of directing what work was to be done by

the claimant, but also of controlling her in respect of manner

of doing the work. Power of the Contractor to replace the

claimant from her work place was made subject to

permission of the University. Despite the choice of the

Contractor to replace the claimant he could not do so, in

case University showed its unwillingness in that regard.

Contra to it, the Contractor was duty bound to change an

employee if so commanded by the University. Such a

proposition was not dependent on a contingency of the

employee being found guilty of any misconduct. Mere wish

of the University was to prevail in the matter. Thus it is

crystal clear that the University retained power of allocation

of duties, besides right to control the manner of

performance of such duties by the clantman. The claimant

was to work with the University till its pleasure. The

Contractor could not exercise his earnest will to change

her, if not consented by the University. If the University

decided to get her changed, for any reasons whatsover, the

Contractor could not impose her on the former, no matter

her work and conduct were satisfactory. Conspectus of these

elements make it clear that administrative control on the

claimant was with the University and not with the

Contractor.

54. Contract agreement Ex.MW3/1 does not contain

any obligation on the part of the Conractor to supervise

the work of the claimant. No clause is there in the document

to show that the Contractor deployed some personnel to

supervise the work of the claiment and her other 69

colleagues. Who used to the mark attendance of the

claimant and her colleagues Ex. MW3/1 draws a blank?

No parol evidence was brought in to suggest that it was the

Contractor who supervised her work. Vaccum of facts in

Ex. MW3/1 and conspicuous absence of any ocular

evidence in that regard leave no doubt to conclude that it

were the University authorities who used to supervise the

work of the claimant and her colleagues.

55. Disciplinary control is exercised by an employer

on his employees by way of codifying rules of conduct for

them. He engrafts acts of misconduct in those rules. He

punishes his employees for their blameworthy conduct. It

is so done by him with a view to maintain discipline at the

work place and to deter potential delinquent from doing

improper behaviour or to come in conflict with rules of

standard of behaviour. Right to coin an act as an improper

behaviour, falling within the ambit of misconduct, was

retained by the University. It has been detailed in clause

22 of Ex. MW3/1 that "the University shall be sole judge

as to what is against the interest of the University and as to

what constitutes misconduct". This authority to define a

behaviour to be a misconduct for a contract employee

projects that the University had clothed itself with a right

to declare a code of conduct for the claimant and her

associates. This right is an attribute of disciplinary control

exercised by an employer on his employees.

56. Construction adopted on contents of Ex. MW3/

it is based on the standards of presumed intent of parties.

The construction, so put, with an idea to preserve the will

of the parties to Ex. MW3/1. It is the duty of a court or

tribunal to give effect to the intention of the parties in

construing a written instrument. Ascertaining general scope

of Ex. MW3/1, intention of the parties contained therein,

nature of the instrument and legal right of the parties thereto,

it is concluded that efforts were made by the University to

hide the truth with a view to project a make-believe

instrument of engaging personnel through the Contractor.

In fact the University retained administrative and

disciplinary control over the contract employees. when veil

was lifted, it emerged that Ex. MW3/1 is sham and bogus.

There are realities of relationship of employer and

employees between the University and the claimant and

her other 69 colleagues. In view of the forgoing reasons, it

is concluded that the veil of Ex. MW3/1 is a smoke-screen,

which would not snap relationship between the University

and the claimant and her colleagues. Aforesaid two issues

are accordingly answered.

Issue No. 3

57. Dr. S.S. Bisth announces that with effect from

1.11.2007 contract for providing housekeeping services

was given to the New Contractor. He asserts that owing to

illegal demands of the claimant and her colleagues, the

New contractor did not engage them. Thereafter

housekeeping staff, including the claimant, resorted to

illegal demonstration. A suit of injunction was filed, which

was decreed by the High Court of Delhi. Certified copy of

judgement dated 13.3.2009 has been proved as Ex. MW2/

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[PART II—SEC. 3(ii)]

5, by Shri Shiv Prakash.

58. Whether above facts would espouse the cause of

the University? Answer lies in negative. As held above,

the claimant was an employee of the University, which

proposition restrains the University from awarding

housekeeping services to the New Contractor. In the garb

of award of housekeeping services to the New Contractor,

the University dispensed with the services of the claimant

and her colleagues. Action of the University squarely falls

within the ambit of definition of retrenchment, as contained

in sub-section (oo) of section 2 of the Act. No case was

projected that the case of University falls within the

exceptions, contained therein. Therefore, it is crystal clear

that the action of the University amounts to retrenchment.

As per own admission of the University, the claimant

rendered services w.e.f. 1.11.2004 till 31.10.2007, as an

employee of the Contractor. Thus it is clear that she

rendered continuous service of more than 240 days in a

calendar year, as contemplated by section 25-B of the Act.

When an employee renders services of more than one year,

he is entitled to protection/benefits contained in section

25-F of the Act. Out of facts of the present controversy, it

emerges that services of the claimant were done away in

violation of the provisions of section 25-F of the Act. It is

not the case of the University that one month's notice or

pay in lieu thereof and retrenchment compensation was

paid to the claimant and other similarly situated employees.

Requirements contained in section 25-F of the Act are

madatory and non-compliance thereof make the action of

the employer illegal. Hence action of the University in

terminating services of the claimant, in the garb of awarding

contract to housekeeping services to the New Contractor,

is illegal and unjustified.

59. Whether judgement Ex. MW2/5 would come to

the rescue of the University? Answer lies in negative. Memo

of parties tell that neither the claimant nor her colleagues

were party to that suit. The suit was filed in respect of a

cause of action of civil nature. Even otherwise judgment

Ex. MW2/5 would not operate as res-judicata in the present

controversy. Law contained in section 11 of the Code of

Civil Procedure 1908 (in short the Code) embodies the

doctrine of res-judicata or the rule of conclusiveness of a

judgment. as to the point decided either of fact, or of law,

or of fact and law, in every subsequent suit between the

same parties. It enacts that once a matter is finally decided

by a competent court, no party can be permitted to reopen

it in a subsequent litigation. The doctrine of res-judicata

has been explained in the simplest possible manner by Das

Gupta J. in the case of Statyadhyan Chosal (AIR 1960 S.C.

941) in the following words:

"The principle of res-judicata is base on the need of

giving a finality to judicial decision. What it says is

that once a res-judicata, it shall not be adjudged again.

Primarily it applies as between past litigation and

future litigation. When a matter-whether on a

question of fact or a question of law-has been decided

between two parties in one suit or proceeding and

the decision is final, either because no appeal was

taken to a higher court or because the appeal was

dismissed, or no appeal lies, neither party will be

allowed in a future suit or proceedings between the

same parties to convass the matter agains."

60. It is not every matter decided in a former suit

that will operate as res-judicata in a subsequent suit. To

constitute a matter as res-judicata under section 11 of the

Code, the following conditions must be satisfied:

The matter directly and substantially in issue in

the subsequent suit must be the same matter which

was directly and substantially in issue either

actually or constructively in the former.

The former suit must have been a suit between

the same parties or between parties under whom

they or any of them claim.

Such parties must have been litigating under the

same title in the former suit.

The court which decided the former suit must be

a court competent to try the subsequent suit or

the suit in which such issue is subsequently raised.

The matter directly and substantially in issue in

the subsequent suit must have been heard and

finally decided by the court in the former suit.

61. Section 11 of the Code bars trial of any suit was

well as an issue which had been decided in a former suit.

Issues are of three kinds: (i) Issue of fact; (ii) Issue of law;

and (iii) Mixed issues of law and fact. A decision on an

issue of fact, however erroneous it may be, constitutes res-

judicata between the parties to the previous suit and cannot

be reagitated in collateral proceedings. Law to this effects

was laid in Mathura Prashad [1970 (1) SCC 613]. A mixed

issue of law and fact also, for the same reasons, operates

as res-judicata.

62. To invoke plea of res-judicata it should be shown

that the court which decided the former suit must have been

a court competent to try the subsequent suit. Thus, the

decision in a previous suit by a court, not competent to try

the subsequent suit. Thus, the decision in a previous suit

by a court, not competent to try the subsequent suit, will

not operate as res-judicata. The expression "competent to

try" means "competent to try the subsequent suit if brought

at the time the first suit was brought". In other words, the

relevant point of time for deciding the question of

competence of the court is the date when the former suit

was brought and not the date when the subsequent suit was

filed. In order that a decision in a former suit may operate

as res-judicata, the court which decided that suit must have

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2033

been either—(a) a court of exclusive jurisdiction, or (b) a

court of limited jurisdiction; or (c) a court of concurrent

jurisdiction.

In industrial jurisdiction principles analogus to res-

judicata are applicable.

63. Now it would be considered as to whether the

High Court is competent to try on industrial dispute, relating

to rights and liabilities created under the Act. Such

proposition was raised before the Apex Court in Premier

Automobiles Ltd. [1975 (II) LLJ. 445], wherein following

principles were enunciated:

"(I)

If the dispute is not an industrial dispute, no does

it relate to enforcement of any other right under

the Act the remedy lies only the in Civil Court.

(II)

If the dispute is an industrial dispute arising out

of a right or liability under general or common

law and not under the Act, the jurisdiction of the

Civil Court is alternative, leaving it to the election

of the suiter concerned to choose his remedy for

relief which is competent to be granted in a

particular remedy.

(III)

If the industrial dispute relates to the enforcement

of a right or an obligation created under the Act,

then the only remedy available to the suiter is to

get an adjudication under the Act.

(IV)

If the right which is sought to be enforced is a

right created under the Act such as Chapter V-A

then the remedy for enforcement is either section

33-C or the raising of an industrial dispute, as the

case may be."

However, in relation to Principle No. 2, the Court

added that "there will hardly be a dispute which will be an

"industrial dispute" within the meaning of section 2(k) of

the Act and yet will be arising out of a right or liability

under the general or common law only and not under.

64. In Rajasthan State road Transport Corporation

(1995 Lab. I.C. 2241), the Apex Court analysed the earlier

dicta and re-stated the law as follows:

"(1) Where the dispute arises from general law of

contract, i.e., where reliefs are claimed on the basis of the

general law of contract, a suit filed in civil court cannot be

said to be not maintainable, even though such a dispute

may also constitute an "Industrial dispute" within the

meaning of Section 2(k) or Section 2-A of the Industrial

Disputes Act,1947.

(2) Where, however, the dispute involves recognition,

observance of enforcement of any of the rights or

obligations created by the Industrial Disputes Act, the only

remedy is to approach the forums created by the said Act.

(3) Similarly, where the dispute involves the

recognition, observance or enforcement of rights and

obligations created by enactments like Industrial

Employment (Standing Orders) Act, 1946—which can be

called 'sister enactments' to Industrial Disputes Act and

which do not provide a forum for resolution of such

disputes, the only remedy shall be to approach the forums

created by the Industrial Disputes Act provided they

constitute industrial disputes within the meaning of Section

2(k) and Section 2—A of Industiral Disputes Act or where

such enactment says that such dispute shall be either treated

as an Industrial dispute or says that it shall be adjudicated

by any of the forum created by the industrial Disputes Act.

Otherwise, recourse of Civil Court is open.

(4) It is is not correct to say that the remedies

provided by the Industrial Disputes Act are not equally

effective for the reason that access to the forum depends

upon a reference being made by the appropriate govenment.

The power to make a reference conference upon the

government is to be exercised to effectuate the object of

the enactment and hence not unguided.

The rule is to make a reference unless, of course, the

dispute raised is a totally frivolous one ex-facie. The power

conferred is the power to refer and not the power to decide,

though it may be that the government is entitled to examine

whether the dispute is ex facie frivolous, not meriting an

adjudication.

(5) Consistent with the policy of law aforesaid,we

commend to the Parliament and State Legislatures to make

a provision enabling a workman to approach the Labour

Court/Industrial Tribunal directly—i.e., without the

requirement of a reference by the Government—in case of

industrial disputes covered by Section 2-A of the Industrial

Disputes Act. This would go a long way in removing the

misgivings with respect to the effectiveness of the remedies

provided by the Industrial Disputes Act.

(6) The certified Standing Orders framed under and

in accordance with the Industrial Employment (Standing

Orders) Act,1946 are statutorily imposed conditions of

service and are binding both upon the employers and

employees, though they do not amout to "statutory

provision". Any violation of these Standing Orders entitles

an employee to appropriate relief either before the forums

created by the Industrial Disputes Act or the Civil Court

where recourse to Civil Court is open according to the

principles indicated herein.

(7) The Policy of law emerging from Industiral

Disputes Act and its sister enactments is to provide an

alternative dispute resolution mechanism to the workmen,

a mechanism which is speedly, inexpensive, informal and

un-encumbered by the plethora of procedural laws and

appeals and revisions applicable to civil courts. Indeed,

the powers of the Courts and Tribunals under the Industrial

Disputes Act are far more extensive in the sense that they

2034

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

can grant such relief as they think appropriate in the

circumstances for putting as end to an industrial dispute".

Same view was taken by the Apex Court in Steel

Authority of India (supra).

65. Facts detailed in preceding sections make out

that the rights which the claimant claim and obligations

which are imposed on the University arise out of rights

and obligations created by the Act. In industrial dispute

within the meaning of section 2(k) was referred for

adjudication by the appropriate Government to this

Tribunal, invoking its powers under clause (d) of sub-

section (1) of section 10 of the Act. High Court is not

competent to adjudicate an industrial dispute. Hence,

Principle 2, referred in para 63 and Principle 1, referred in

para 64, do not come into play. Therefore, judgment Ex.

MW2/5 cannot operate as res-judicata. It would not restrain

the claimant in any manner, from agitating her claim against

the University.

66. It is well settled that negative language used in

section 25-F of the Act imposes a mandatory duty on the

employer, which is condition precedent to retrenchment of

a workmen. Contravention of mandatory requirements of

section 25-F of the Act would invalidate the retrenchment

and render it void ab initio. Reference can be made to be

precedents in Auro Engineering (Pvt.) Ltd., Nasik (1992

Lab. I.C. 1364) and Ollur Regional Regional Imitation

Diamond Manufacturing Industrial Co-op. Society Ltd.

[1993 (II) LLI 174]. As detailed above, retrenchment of

the claimant is illegal and void ab initio. Issue is, therefore

answered in favour of the claimant and against the

University.

Relief.

67. As concluded above, the claimant was engaged

by the University through the Contractor by way of creation

of make believe contract agreement, which was a perfect

paper arrangement. On lifting of veil, the University was

found to be the real employer. Her services were disengaged

under the garb of award of housekeeping service agreement

to the New Contractor. Her retrenchment was found to be

void an initio. She, being an employee of the University

cannot be retrenched by the Contractor or the New

Contractor. She is deemed to be in the service of the

University. Question comes whether she is entitled to full

back wages. For an answer in her favour. she was under an

obligation to establish that she remained un-employed since

the date of her retrenchment. No evidence has been adduced

by the claimant on that point. Thus it cannot be said that

she remained unemployed, since the date of dispensing with

here services by the University. The Apex Court and

High Courts dealt with the issue of award of compensation,

when reinstatement in service was not found expedient.

Those precedents may help the Tribunal in ascertaining

the quantum of back wages, which may be awarded to the

claimant. In S.S. Shetty [1957 (II) LLI 696] the Apex Court

indicated some relevant factors which an adjudicator has

to take into account in computing compensation in lieu of

reinstatement, in the following words:

"The industrial Tribunal would have to take into

account the terms and conditions of employment, the

tenure of service, the possibility of termination of

the employment at the instance of either party, the

possibility of retrenchment by the employer or

resignation or retirement by the workman and even

of the employer himself ceasing to exist or of the

workman being awarded various benefits including

reinstatement under the terms of future awards by

industrial Tribunal in the event of industrial disputes

arising between the parties in future ........In

computing the money value of the benefits of

reinstatement, the industrial adjudicator would also

have to take into account the present value of what

his salary, benefits etc. would be till he attained the

age of superannuation and the value of such benefits

would have to be computed as from the date when

such reinstatement was ordered under the terms of

the award.

Having regard to the considerations detailed above,

it is impossible to compute the money value of this

benefit of reinstatement awarded to the appellant with

mathematical exactitude and the best that any tribunal

or court would do under the circumstances would be

to make as correct estimate as is possible bearing, of

course in mind all the relevant factors pro and con".

68. A Divisional Bench of the Patna High Court in

B. Choudhary (1983) Lab. I.1755 (1758) deduced certain

guidelines which have to be borne in mind in determining

the quantum of compensation viz. (i) the back wages

receivable; (ii) compensation for deprivation of the job with

future prospect and obtainability of alternative

employment; (iii) employee's age; (iv) Length of service

in the establishment (v) capacity of the employer to pay

and the nature of the employer's business; (vi) gainful

employment in mitigation of damages; and (viii)

circumstances leading to the disengagement and the past

conduct. These factors are only illustrative and not

exhaustive. In addition to the compensation, it is also within

the jurisdiction of the Tribunal to award interest on the

amount determined as compensation. Furthermore, the rate

of such interest is also in the discretion of the Tribunal.

Reference can be made to Tabesh Process, Shivakashi

(1989 Lab. I.C.1887).

69. In Assam Oil Co. Ltd. [1960 (1) LLI 587] the

Apex Court took into account countervailing facts that the

employer had paid certain sums to the workmen and her

own earning in the alternative employment and ordered

that "it would be fair and just to direct the appellant a

substantial sum as compensation to her". In Utkal

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2035

Machinery Ltd. [1996) (1) LLJ 398] the amount of

compensation equivalent to two year salary of the employee

awarded by the industrial Tribunal was reduced by the

Supreme Court to an amount equivalent to one year salary

of the employee in view of the fact she had been in service

with the employer only for 5 months and also took into

consideration the unusual manner of her appointment at

the instance of the Chief Minister of the State. In A.K. Roy

[1970 (1) LLJ 228] compensation equivalent to two years

salary last drawn by the workmen was held to be fair and

proper to meet the ends of justice. In Anil Kumar

Chakaraborty [1962 (II) LLJ 483] the Count converted the

award of reinstatement into compensation of a sum of Rs.

50000/- as just and fair compensation in full satisfaction

of all his claims for wrongful dismissal from service. In

O.P. Bhandari [1986 (II) LLJ 509], the Apex Court

observed that it was a fit case for grant of compensation in

view of reinstatement. The Court awarded compensation

equivalent to 3.33 years salary as reasonable. In M.K.

Aggarwal (1988 Lab. I.C. 380), the Apex court though

confirmed the order of reinstatement yet restricted the back

salary to 50% of what would otherwise be payable to the

employee. In Yashveer Singh (1993 Lab. I.C. 44) the court

directed payment of Rs. 75000/- in view of reinstatement

with back wages. In Naval Kisor [1984 (II) LLJ 473] the

Apex Court observed that in view of the special

circumstances of the case adequate compensation would

be in the interest of the appellant. A sum of Rs. 2 lac was

awarded as compensation in lieu of reinstantement. In Sant

Raj [1985 (II) LLJ 19] a sum of Rs. 2 lac was awarded as

compensation in lieu of reinstatement. In Chandu Lal (1985

Lab.I.C. 1225) a compensation of Rs. 2 lac by way of back

wages in lieu of reinstatement was awarded. In Ras Bihari

(1988 Lab. I.C. 107) a compensation of Rs. 65000/- was

granted in lieu of reinstatement, since the employee was

gainfully employed elsewhere. In V.V. Rao (1991 Lab. I.C.

1650) a compensation in Rs. 2.50 lac was awarded in lieu

of reinstatement.

70. The claimant rendered continuous four years

service to the University, when she was illegally reternched.

She had to fight for about four years for redressal of her

grievances. The circumstances, in which she was retrenched

and mass unemployment prevalent in economic field, which

may come in the way when some one goes for an alternative

employment, besides other factors of this case, persuade

me to award 20 percent back wages from the date of

retrenchment till the date the award becomes operative

under section 17-A of the Act, besides reinstatement of the

claimant in the service of the University, with continuity

and all consequential benefits. An award is, accordingly,

passed. It be sent to the appropriate Government for

publication.

DR. R.K. YADAV, Presiding Officer

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New Delhi, the 1st February, 2012

S.O. 827.— In pursuance of Section 17 of the

Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 18/2010)

of the Central Government Industrial Tribunal cum

Labour Court No. I New Delhi as shown in the Annexure,

in the Industrial dispute between the Vice Chancellor,

Indira Gandhi National Open University and their

workman, which was received by the Central Government

on 01.02.2012.

[F.No. L-42012/102/2009-IR(DU)]

RAMESH SINGH, Desk Officer

ANNEXURE

BEFORE DR.R.K. YADAV, PRESIDING OFFICER,

CENTRAL GOVT. INDUSTRIAL TRIBUNAL NO. 1,

KARKARDOOMA COURTS COMPLEX: DELHI

I.D. No. 18/2010

Shri Rahul S/o Shri Balbir Singh,

B-Block, Camp No. 2,

H.No. 114, JJ Colony,

Nangloi, New Delhi.

Claimant

Versus

The Vice Chancellor,

Indira Gandhi National Open University,

R.No. 1, Block No. 8, Maidan Garhi,

New Delhi-110068

Management

AWARD

Indira Gandhi National Open University (herein after

referred to as the University) was established in the year

1985 to provide cost effective and quality education to large

sections of people, including those living in remote and

far flung areas, through distance education programmes.

The University functions not only within the boarders of

the country but offers education programmes in at least 35

countries. Besides Regional Centres across the country and

in foreign countries, the University has its Central Campus

at Maidan Garhi, New Delhi, which is spread over an area

of 151.32 acres of land. At its Central Campus, the

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THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

University has a strength of about 800 officers/officials

working there.

2. The University requires considerable man-power

to carry out housekeeping services, which includes cleaning

and sanitation activities. Housekeeping services are out-

sourced by the University through a private contractor. In

the year 2004, the University awarded contract for

housekeeping services to Sybex Computer Systems (Pvt.)

Ltd. (in short the Contractor). The Contractor engaged

around 70 sweepers and cleaners to carry out its contractual

obligations. On 1st November 2007, the University

awarded contract for housekeeping services to Spick &

Span Facilities Management (Pvt.) Ltd. (in short the New

Contractor). Initially the New Contractor decided to retain

services of the sweepers and cleaners engaged by the

Contractor. But negotiations between the New Contractor

and employees of the Contractor turned into a complete

fiasco. Sweepers and cleaners resorted to agitation and sat

on "dharna" outside the gate of Maidan Garhi Campus of

the University Legal wrangle started between the University

and the agitators. Efforts were made from either side to

wrench one's opponent.

3. Resort to the jurisdiction of Conciliation Officer

was taken by the sweepers and cleaners, by way of filing

their respective claim statements. Conciliation Officer

initiated conciliation proceedings, as contemplated by sub-

section (1) of section 12 of the Industrial Disputes Act,

1947 (in short the Act). No settlement could arrive at

between the parties and failure report, was submitted to

the appropriate Government. On consideration of the failure

report, so submitted to the appropriate Government. On

consideration of the failure report, so submitted, the

appropriate Government referred the dispute to this

Tribunal for adjudication, invoking its powers under clause

(d) of sub-section (1) of section 10 of the Act, vide order

No. L-42012/102/2009-IR(DU) New Delhi dated 28th

January, 2010, with following terms:

"Whether the action of the management of Indira

Gandhi National Open University in terminating the

services of their workman Shri Rahul w.e.f. 01/11/

2007 is legal and justified? If not, what relief the

workman is entitled to?"

4. Shri Rahul claims in his claim statement that he

was working with the University as "Safai Karamchari" in

its housekeeping department since 1.05.2006. He had

rendered more than 240 days continuous service with the

University. At the time of entering into the services of the

University, he was asked to fill in certain forms, which

forms duly filled and signed by his are in the custody of

the University. No appointment letter was issued in his

favour, inspite of his request in that behalf. Since inception

of his engagement, the University had indulged into unfair

labour practices and flouted implementation of labour laws

concerning his service conditions. At time he, alongwith

his colleagues, was kept at its rolls by the University, while

during intermittent spells his services were transferred at

the roll of one contractor or the other. This device was

adopted with a view to discount his continuity in service

and seniority in employment so that liability to pay

retrenchment compensation under the Act and other benefit

under various labours laws may be avoided.

5. Contributions towards social securities, namely,

ESI, medical benefits and provided fund were deducted

from his wages by the University, pleads the claimant.

Despite payment of contributions towards above social

securities, the University never issued any medical card

and provident fund statement or account number, but passed

on that responsibility on the shoulders of the Contractor.

Facility of earned, annual, priviliged, casual, weekly off,

festival and medical leaves were not accorded. Though

work was taken on Sundays and holidays from him but no

compensatory leave or overtime wages were given to him.

He used to get wages at the rate of Rs. 172/- per days,

amounting to somewhere near to Rs. 4500/- per months.

6. On 1st November 2007, the University decided to

place his services at the disposal of a contractor, whose

engagement for housekeeping work was neither

communicated nor he was introduced to him. To his utter

surprise a contractor surfaced on scene and told him and

his colleagues that he will pay them Rs. 3470/- each per

month. He announced that interested persons may stay at

work-place and other may leave for good. The claimant

and his colleagues wanted to see the Vice-Chancellor to

appraise him of their grievances, but they were stopped at

the gate of the University campus. Services of the claimant

and others were terminated. The University called some

anti-social elements and got sever beatings administered

to him and his colleagues at their hands. Police was also

called by the University authorities, to keep their hands

clean.

7. The University had not served one month notice

nor paid wages in lieu of the notice. Retrenchment

compensation was also not paid to him. His services were

not done away on infliction of punishment for a disciplinary

action, hence action of the University is violative of the

provisions of the Act and principles of natural justice. He

claims reinstatement in the services of the University with

continuity and consequential benefits.

8. The University demurs the claim pleading that the

claimant was never employed by it. No salary/wages or

other emoluments were paid by it to the claimant. There

existed no relationship of employer and employee between

the parties. Hence there was no occasion for the University

to terminate services of the claimant. In view of these facts,

reference order is improper and claim statement is liable to

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2037

be rejected, pleads the University.

9. To outcome housekeeing services, the University

engaged services of the Contractor, vide agreement dated

1.11.2004, which agreement was extended upto

31.10.2007. The claimant was working with the Contractor

to provide housekeeping services at the campus of the

University. The Contractor is essential and proper party,

pleads the University. In agreement entered into between

the Contractor and the University it was stipulated that

employees of the Contractor at no point of time would be

treated as employees of the University. The University laid

emphasis on a few clauses of the agreement, which are

extracted thus:

"12. Provider shall continue to be responsible for

the personnel employed by him, in respect of terms and

conditions of their service, payments, attendance, medical

care, other disciplinary matters etc. who shall remain fully

under the administrative and financial control and

supervision of the Provider, except that the University shall

be the sole Arbitrator in respect of nature of the duties to

be entrusted to and the manner of performance of their

duties for the purpose of this Agreement.

13. The temporary personnel deployed by the

Provider to IGNOU shall at no time be treated as the

employees of the University and also shall have no claim

to be regularized in the services of the University. But the

Provider will not change the personnel once deployed by

it in the University without prior permission of the

University as the frequent changes in deployment of

temporary may hamper the day to day work of the

University.

23. There is no privity of contract by and between

the Provider and the University. The Temporary shall have

no right to make any claim against the University directly

or indirectly, monetary including wages or othewise. The

Temporary shall also have no right to claim for any

regularization. The Temporary shall also have no claim

against the University of any dues, statutory or otherwise.

Similary, even the representative of any Temporary who

have worked in the University shall have no right or claim

against the University.

24. The Provider has to ensure that the Temporaries

deployed are not forming any Association/Forum in respect

of IGNOU matter nor they should be allowed to join in

any Association/Forum of IGNOU.

25. The Provider has to ensure timely deployment

of Temporaries as required by IGNOU and fulfil other

obligation stated in the above said terms and conditions

failing which penalty will be imposed by the University on

case to case basis from time to time. The decision of the

University will be final."

10. When contract, referred above, expired with efflux

of time, contract for housekeeping services was awarded

to the New Contractor, who initially sought to retain the

services of housekeeping staff for his own contract.

However, owing to illegal and unjustified demands of the

housekeeping staff, the New Contractor did not engage

the claimant and his other colleagues. The claimant and his

colleagues resorted to illegal demonstration in the

University premises. A civil suit being CS(OS) No. 83 of

2008 was instituted before High Court of Delhi. The High

Court passed an interim injunction order on 15.1.2008

against the housekeeping staff and ultimately decreed the

suit on 13.3.2009.

11. The University had denied all allegations levelled

by the claimant in his claim statement. It is pleaded that

the claimant knew his status, being an employee of the

Contractor. His services were terminated by the Contractor

and the University has no role to play in so called

termination of his services. His claim against the University

is illegal, unwarranted and unjustified. It is pleaded that

his claim may be dismissed.

12. An application moved by the University, to

implead the Contractor as a party, was declined vide order

dated 20.4.2010.

13. On pleadings of the parties, following issues were

settled:

Whether there was relationship of employer and

employee between the claimant and the

management?

Whether the claimant was an employee of Sybex

Computer System Pvt. Ltd., the Contractor?

As in tems of reference.

Relief.

14. To discharge onus resting on him, the claimant

examined himself and close his evidence. The University

examined Smt. Bimla Madan, Shri Shiv Prakash, Dr. S.S.

Bisht and Shri Ashok Kumar Gupta to substantiate its case.

15. Arguments were heard at the bar at length. Shri

V.N. Kaushik, assisted by Ms. Sulekha Thakur, authorised

representative, advanced arguments on behalf of the

claimant. Shri V.K. Rao, assisted by Shri Aly Mirza,

authorised representative and Vibhas Vaibhav, Asstt.

Registrar (Law), raised submissions on behalf of the

University. I have given my careful considerations to the

submissions made at the bar and cautiously perused the

record. My findings on issues involved in the controversy

are as follows:

Issue No. 1 & 2.

16. Affidavit Ex. WW1/A was tendered as evidence

on behalf of the claimant, wherein he sweared that he was

in the employment of the University as "Safai Karamchari"

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THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

since 1.05.2008. It has been projected in Ex. WW1/A that

he rendered more than 240 days service with the University.

Other facts detailed in Ex. WW1/A are fascimile of contents

of claim statement, which has been proved as Ex. WW1/M1.

He candidly admitted his signatures on documents

Ex. WW1/M2 to Ex. WW1/M8.

17. Smt. Bimla Madam unfolds that Regional Office

of the Employers' Provident Fund Organsation had given

code number as DL-24878 to the Contractor, while code

number 2725 was given to Shri Rahul, the employee of the

above company. Name of Rahul appears in statements of

contributions Ex. MW1/1 and Ex. MW1/2, filed by his

employer for the period 1.4.2006 to 31.3.2007 respectively.

18. Shri Shiv Prakash entered the witness box to

prove copy of plaint, filed by the University before High

Court of Delhi, written statement of defendant Nos. 3 to 6,

affidavit of Shri U.S. Tolia tenderd as evidence in that

case, interim order dated 15.1.2008 and judgment dated

13.3.2009 passed by Juistice Ms. Rekha Sharma. These

documents are proved as Ex. MW 2/1 to Ex. MW 2/5

respectively. He clarified that no appeal was preferred

against the judgment Ex. WW 2/5.

19. Dr. S.S. Bisht tendered his affidavit Ex. MW

3/A as evidence, wherein he announced that the claimant

was never appointed by the University in its services. No.

salary was ever paid to him. Services of the Contractor

were availed to outsource housekeeping services vide

agreement dated 1.11.2004, which was subsequently

extended upto 31.10.2007. The claiment was working with

the Contractor. With effect from 1.11.2007 contract to

provide housekeeping services was awarded to the New

Contractor. He projects that when he was not engaged by

the New Contractor, he alongwith his colleagues resorted

to illegal demonstration in the premises of the University.

Story of filling civil suit and orders thereon have been re-

affirmed by Dr. Bisht. Being an employee of the Contractor,

he had filed a wrong claim statement, which is liable to be

dismissed, asserts Dr. Bisht.

20. Shri Ashok Kumar Gupta details that the

University was maintaining an account with Maidan Garhi

branch of the Punjab National Bank. The University had

issued cheques in favour of the Contractor, details of those

cheques are given in Ex. MW 4/A. He identifies signatures

of Shri Mohan Lal, Branch Manager, on Ex. MW 3/21 and

anounces that contents of that document are true and

correct, as he himself had checked the records.

21. When facts testified by the claimant, Smt. Bimla

Madan, Dr. S.S. Bisht and Ashok Kumar Gupta are

appreciated, it came to light that the claimant had detailed

that he was in the service of the University since 1.5.2006.

Self-serving words, deposed by the claimant, could not

withstand rigors of cross-examination, wherein he admitted

that Ex. WW 1/M2, Ex. WW 1/M3, Ex. WW 1/M4

Ex. WW 1/M5, Ex. WW 1/M6, Ex. WW 1/M7, and

Ex. WW 1/M8 are wage-sheets of the Contractor, though

which salary of the claimant and his colleagues were

released by the former in their favour. These documents

project him to be an employee of the Contractor. Thus by

an admission of his signatures on above documents he

allowed a fact to spill over, which demolishes his case of

being an employee of the University. Ex. WW 1/M2 is

also photocopy of scrpils through which payments were

released by the Contractor to the claimant and his

colleagues. In the end he gave in and deposed that he was

not aware as to who engaged him. However he made a

faint attempt to project his cause when he asserted that he

used to work for the University. Conspectus of above facts

spill the beans and announce him to be an employee of the

Contractor.

22. Dr. S.S. Bisht erected castle for the Univeristy

brick by brick when he deposed that the claimant was

working with the Contractor, whom housekeeping services

were outsourced vide agreement dated 1.11.2004, copy of

which is Ex. MW 3/1. This agreement was extended upto

31.10.2007. When aforesaid contract expired, contract for

housekeeping services was awarded to the New Contractor,

vide agreement Ex. MW 3/2. When New Contractor did

not engaged to services of the claimant and his colleagues,

they resorted to illegal demonstration in the premises of

the University. The Contractor used to raise his bills, to

whom payments were made through cheques Ex. MW

3/5, Ex. MW 3/6, Ex. MW 3/7, Ex. MW 3/8, Ex. MW

3/ and Ex. MW 3/10, deposes the witness. Some of the

bills raised by the Contractor, besides sanction accorded

by the University are Ex. MW 3/11, Ex. MW 3/12, Ex.

MW 3/13, Ex. MW 3/14, Ex. MW 3/15, Ex. MW 3/16,

Ex. MW 3/17, Ex. MW 3/18 and Ex. MW 3/19, Dr. Bisht

detailed. Payments were made to the Contractor through

cheques, which were honoured and cleared and letter

Ex. MW 3/21 was written by the bank in that regard. He

had proved list of contractors as Ex. WW 3/W2, to whom

the work as awarded by the University since 16.12.1991

till date. Out of facts unfolded by Dr. Bisht it came over

the record that the University had outsourced housekeeping

services since 16.12.1991. On 1.11.2004 work was awarded

to the Contractor and on 1.11.2007 it was awarded to the

New Contractor. Claimant was an employee of the

Contractor, who used to pay wages to him. Smt. Bimla

Madan gives re-affirmation to facts unfolded by Dr. Bisht

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She had proved statements of contribution, filed by the

Contractor in the Regional Office of the Employees'

Provident Fund Organisation, in which statements name

of the claimant does appear as an employee of the

Contractor. Shri Ashok Kumar Gupta proves various

payments made by the University to the Contractor, details

of which are enlisted in Ex. MW 3/21. Sequences of events,

brought over the record through the depositions of aforesaid

witnesses and documents proved by them, highlight that

the claimant was an employee of the Contractor, who used

to make payment of his salaries to him. It was the Contractor

who was his pay master.

23. Whether the claimant, who was an employee of

the Contractor, can maintain a dispute against the

University? For an answer to this proposition, the Tribunal

has to take note of the law contained in section 10 of the

Contract Labour (Regulation and Abolition) Act, 1970 (in

short the Contract labour Act), which makes provision for

prohibition of employment of contract labour. For sake of

convenience provisions of section 10 of the Contract

Labour Act are reproduced thus:

Prohibition of employment of contract labour:—

(1) Not withstanding anthing contained in the Act,

the appropriate Government may, after consultation with

the Central Board or, as the case may be, a State Board,

prohibit, by notification in the Official Gazette, employment

of contract labour in any process, operation or other work

in any establishment.

(2) Before issuing any notification under sub-section (1)

in relation to an establishment, the appropriate Government

shall have regard to the conditions of work and benefits

provided for the contract labour in that establishment and

other relevant factors, such as—

(a)

whether the process, operation or other work is

incidental to, or necessary for the industry, trade,

business, manufacture or occupation that is carried

on in the establishment;

(b)

whether it is of perennial nature, that is to say, it

is of sufficient duration having regard to the nature

of industry, trade, business, manufacture or

occupation carried on in that establishment;

(c)

whether it is done ordinarily through regular

workmen in that establishment or an establishment

similar thereto;

(d)

whether it is sufficient to employ considerable

number of whole-time workmen. Explanation— if

a question arises whether any process or operation

or other work is of perennial nature, the decision

of the appropriate Government thereon shall be

final."

24. As emerge out of the provisions of sub-section (1)

of section 10 of the Contractor Labour Act, the appropriate

Government may, by notification in the official gazette,

prohibit employment of contract labour in any process,

operation or other work in any establishment. When

employment of contract labour is prohibited, by issuance

of notification in official gazette by the appropriate

Government, what would be the status of the contract labour

employed in the establishment? Such a question arose

before the Apex Court in Steel Authority of India Ltd. [2001

(7) S.C.C.I]. The Apex Court rules therein that there cannot

be automatic absorption of contrat labour by principal

employer on issuance of notification by the appropriate

Government on abolition of contract labour system, under

sub-section (1) of section 10 of the Contract Labour Act. It

would be expedient to reproduce the law laid by the Apex

Court, which is extracted thus:

".....they fall in three classes: (1) 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

adjudicator/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 contract labour working

in the establishment was ordered, (2) where contract

was found to be a sham and nominal, rather a

comouflage, in which case the contract 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 the abolition of contract

labour but present instances wherein the court pierce

the veil and declared the correct position as a fact at

the stage after employment of contract labour stood

prohibited, (3) where in discharge of a statutory

obligation of maintaining a canteen in an

establishment the principal employer availed the

services of the contractor, the courts have held that

the contract labour would indeed be employees of

the principal employer."

25. The Court ruled that neither section 10 of the

Contract Labour Act nor any other provision in that Act,

whether expressly or by necessary implication, provides

for automatic absorption of contract labour on issuance of

a notification by the appropriate Government under sub-

section (1) of section 10, prohibitng employment of contract

labour, in any process, operation or other work in any

establishment. Consequently the principal employer cannot

be required to order for absorption of the contract labour

working in the establishment concerned. It was further rules

therein that in Saraspur Mills case [1974 (3) SCC 66], the

workman engaged for working in the canteen run by the

Cooperative Society for the appellant were the employees of

the appellant mills. In Basti Sugar Mills AIR 1964 S.C. 355)

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[PART II—SEC. 3(ii)]

a canteen was run in the factor by the Cooperative Society

and as such the workers working in the canteen were held

to be employees of the establishment. The Apex Court rules

that these cases fall in class (3) mentioned above. Judgment

in Hussainbhai (1978 Lab. I.C. 1264) was considered by

the Apex Court in the said precedent and it was ruled therein

that the said precedent falls in class (2), referred above.

The Apex Court concluded that on issuance of prohibitive

notification under section 10 of the Contract Labour Act

prohibiting employment of contract labour or otherwise,

in an industrical dispute brought before it by any contract

labour in regard to conditions of service, the Industrial

Adjudicator will have to consider the question whether the

contractor has been interposed either on the ground of

having undertaken to produce any given result for the

establishment or for supply of contract labour for work of

the establishment under a genuine contract or is a mere

ruse/camouflage to evade compliance of various beneficial

legislation so as to deprive the workers of the benefit

thereunder. If the contract is found to be not genuine but a

mere camouflage, the so called contract labour will have

to be treated as employees of the principal employer who

shall be directed to regularize the services of the contract

labour in the establishment concerned, subject to the

conditions as may be specified by it for that purpose.

26. As announced by the Apex Court, on issuance of

a prohibititve notification, prohibiting employment of

contract labour or otherwise in any industrial dispute

brought before it by the contract labour in regard to

conditions of his service, the industrial adjudicator will

have to consider the question whether the contractor has

been interposed either on the ground of having under taken

to produce any given result in the establishment or for

supply of the contract labour for the work of the

establishment under a genuine contract or it is a mere ruse/

camouflage to evade compliance of beneficial legislation

so as to deprive the workers of the benefits therein, Thus it

was rule that a contract labour can raise a dispute before

the industrial adjudicator in regard to his conditions of

service and in case the contract is found to be not genuine

but a mere camouflage, the so called contract labour will

have to be treated as employees of the principal employer.

Also see Standard Vacuum Refining Co. of India Ltd. [1960

(ii) LLJ. 233], which was referred with approval in Steel

Authority of India.

27. In Shivnandan Sharma [1955(1) LLJ 688), the

respondent Bank entrusted its Cash Department under a

contract to the Treasures who appointed cashiers, including

the appellant Head Cashier. The question before the Apex

Court was: was the appellant an employee of the Bank?

On construction of the agreement entered into the Bank

and the Treasure, the Court laid down:

"If a master employs a servant and authorizes him to

employ a number of persons to do a particular job

and to guarantee their fidelity and efficiency for a

cash consideration, the employees thus appointed by

the servant would be equially with the employer,

servant of the master."

In the above precedent the Apex Court for the first

time laid down the crucial test of supervision and control

for determining the relationship of employer and employee.

28. In Hussainbhai (supra) the petitioner, who was

manufacturing ropes, entrusted the work to a contractor

who engaged his own workers. When after some time, the

workers were not engaged, they raised an industrial dispute

that they were denied employment by the petitioner. On

reference of that dispute, the labour court passed an award

against the petitioner. When matter reasched the Apex

Court, on examination of various factors and applying the

effective control test, it was held that though there was not

direct relationship between the petitioner and the workers

yet on lifting the veil and looking at the conspectus of

factors governing employment, the naked truth, through

drapped in different perfect paper arrangement, was that

the real employer was the petitioner, not the immediate

contractor. The Apex Court stated law in following words:

"Where a worker or group of workers labours to

produce goods or services and these goods or services

are for the business of another, that other is, in fact,

the employer. He has economic control over the

workers' subsistence, skill, and continued

employment. If he, for any reason, chokes off, the

worker is, virtually, laid off. The presence of

intermediate contractor with whom alone the workers

have immediate or direct relationship ex-contracts

is of no consequence when, on lifting the veil or

looking at the conspectus of factors governing

employment, we discern the naked truth, though

draped in different perfect paper arrangement, that

the real employer is the management, not the

immediate contractor***. If the livelihood of the

workmen substantially depends on labour rendered

to produce goods and services for the benefit and

satisfaction of an enterprise, the absence of direct

relationship or the presence of dubious

intermediaries or the make-believe trappings of

detachment from the management cannot snap the

real-life bond. The story may vary but the inference

defies ingenuity. The liability cannot be shaken off.

Of course, if there is total dissociation in fact between

the disowning managment and the aggrived

workmen, the employment is, in substance and real-

life terms, by another. The management's adventitious

connections cannot ripen into real employment."

As noted above this precedent does not present an

illustration of abolition of contract labour but an instance

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where the Court pierced the veil and declared the correct

position to the effect that the contract labours where

employees of the principal employer and not of the

contractor.

29. In Steel Authority of India (Supra) it has been

ruled that the term "contract labour" is a species of

workman. A workman may be hired: (1) in an

establishement by the principal employer or by his agent

with or without the knowledge of the principal employer,

or (2) in connection with the work of an establishement by

the principal employer through a contractor or by a

contractor with or without the knowledge of principal

employer, Where a workman is hired in or in connection

with the work of an establishment by the principal employer

through a contractor, he merely acts as an agent so there

will be master and servant relationship between the

principal employer and the workman. But when a workman

is hired in or in connection with the work of an

establishement by a contractor, either because he has

undertaken to produce a given result for the establishment

or because he supplies workmen for any work of the

establishment, a question might arise whether the contractor

is a mere camouflage as in Hussainbhai's (supra) and in

Indian Petrochemicals Corporation case [1999(6)

S.C.C.439] etc.; if the answer is in affirmative, the workman

will be in fact an employees of the principal employer, but

if the answer is in the negative, the workman will be a

contract labour.

In view of the legal proposition, referred above, it is

concluded that the claimant can maintain this dispute

against the university since he agitates that the contract

agreement between the University and the Contractor is

sham and nominal.

30. whether any directions for deeming the contract

labour as having become the employees of the principal

employer can be issued, when the contractor or the

principal employer had violated the provisions of the

Contract Labour Act? To find an answer, provisions of

that Act are to be examined. The Contract Labour Act

regulates conditions of workers in conract labour system

and provides for its abolition by the approprivate

Government as provided by section 10 of that Act. In

regard to regulatory measures section 7 requires the

principal employer to get itself registered, while section

12 obliges every contractor to obtain a licence, under the

provisions of that Act. Section 9 places an embargo on the

principal employer of an establishment from employing

contractor labour in the establishment, when either it is

not registered or its registration has been revoked. Section

12 of the Contract Labour Act imposes a liability on a

contractor not to undertake or execute any work through

contract labour except under and a accordance with a

licence. Sections 23, 24 and 25 make contraventions of

the provisions of the Act or Rules made thereunder penal.

In Dena Nath (1992 Lab. I.C. 75) the Apex Court

considered the question, whether non-compliance of the

provisions of sections 7 and 12 by the principal employer

and the contractor respectively would make the contract

labour employed by the principal employer as the

employee of the latter. It was ruled that only consequence

of non-compliance either by the principal employer of

section 7 or by the contractor in complying the provisions

of section 12 is that they are liable for prosecution under

the said Act. But the employees employed through the

contractor cannot be deemed to be the employees of the

principal employer.

31. In the Steel Authority of India (supra) the Apex

Court laid emphasis “.......the consequence of violation of

Sections 7 and 12 of the CLRA Act is explicitly provided

in Sections 23 and 25 of the CLRA Act, it is not for the

High Courts or this Court to read in some unspecified

remedy in Section 10 or substitute for penal consequences

specified in Sections 23 and 25 a different sequel, be if

absorption of contract labour in the establishment of

principal employer or a lesser or harsher punishment. Such

an interpretation of the provisions of the statute will be far

beyond the principle of ironing out the creases and the scope

of interpretative legislation and as such, clearly

impermissible". The above authoritative pronouncements

make it clear that on violations of the provisions of the

Contract LabourAct or Rules made thereunder, the contract

labour could not be deemed to have become the employee

of the principal employer.

32. Whether this Tribunal has power to order for

abolition of contract labour system in the establishment of

the Univeristy? For an answer, legal dicta is to be

considered. Before enactment of the Contract Labour Act,

the industrial adjudicator, in appropriate cases, used to issue

directions to the establishment concerned to abolish or

modify system of contract labour. Reference can be made

to precedents in United Salt Works and Industries Ltd. 1962

(l) LLJ. 131], Shibu Metal Works (1966 (I) LLJ. 717),

National Iron & Steel Co. (1967 (II) LLJ. 23) and Ghatge

and Patil (Transport) Pvt. Ltd. (1968(I) LLJ. 566). The

National Commission on Labour (1966) in para 29.11 of

its report, enumerated those factors, on which abolition of

contract labour was ordered, thus:

"29.11. Judicial awards have discouraged the practice

of employment of contract labour, particularly when

the work is (i) perennial and must go on from day to

day; (ii) incidental and necessary for the work of the

factory; (iii) sufficient to employ a considerable

number of whole time workmen; and (iv) being done

in most concerns through regular workmen. These

awards also came out against the system of

'middlemen'."

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[PART II—SEC. 3(ii)]

33. After Contract Labour Act was brought on statute

book, the Apex examined jurisdiction of the industrial

adudicator to issue directions to the establishement to

abolish contract labour in Vegoils Private Ltd. (1971 (2)

S.C.C. 724) and ruled that it would be proper that the

question, whether the contract labour in the appellant

industry was to be abolished or not, be left to be dealt with

by the appropriate Government under the provisons of that

Act, If it becomes necessary. The observaitons made by

the Court are extracted thus:

"The appropriate Government when taking action

under Section 10 will have an overall picture of the

industries carrying on similar activities and decide whether

contract labour is to be abolished in respect of any of the

activities of that industry. Therefore, it is reasonable to

conclude that the jurisdiction to decide about the abolition

of contract labour, or to put it differently, to prohibit the

employment of contract labour, is now to be done in

accordance with Section 10. Therefore, it is proper that

the question whether the contract labour regarding loading

and unloading in the industry of the appellant is to be

abolished or not, is left to be dealt with by the appropriate

Government under the Act, if it becomes necessary. On

this ground, wer are of the opinion that the direction of the

Industrial Tribunal in this regard will have to be set

aside.***. The legality of the direction given by the

Industrial Tribunal abolishing contract labour in respect

of loading and unloading from May 1, 1971, can also be

considered from another point of view. The Central Act, as

mentioned earlier, had come into force on February 10,

1971. Under Section 10 of the said Act the jurisdiction to

decide matters connected with prohibition of contract

labour is now vested in the appropriate Government.

Therefore, with effet from February 10, 1971, it is only the

appropriate Government that can prohibit contract labour

by following the procedure and in accordance with the

provisions of the Central Act. The Industrial Tribunal, in

the circumstances, will have no jurisdiction, through its

award dated November 20, 1970, to give a direction in

that respect which becomes, enforceable after the date of

the coming into force of the Central Act. In any event, such

a direction contained in the award cannot be enforceable

from a date when abolition of contract labour can only be

done by the appropriate Government in accordance with

the provisions of the Central Act."

34. In Gujrat Electricity Board (1995 (5) S.C.c. 27)

the same view was taken by the Apex Court holdings that

the authority to abolish the contract labour vests in the

approprite Government and not in any court including the

industrial adjudicator, It would be approsite to reproduce

the observation of the court this:

"53. Our conclusions and answers to the questions

raised are, therefore, as follows:

(i)

In view of the provisons of Section 10 of the Act,

it is only the appropriate Government which has

the authority to abolish genuine labour contract

in accordance with the provisions of the said

Section. No Court including the industrial

adjudicator has jurisdiction to do so.

(ii)

If the contract is sham or not genuine,the

workmen of the so-called contractor can raise an

industrial duspute for declaring that they were

always the employees of the principal employer

and for claiming the appropriate service

conditions. When such dispute is raised, it is not

a dispute for abolition of the labour contract and

hence the provisions of Section 10 of the Act will

not bar either the raising or the ajudication of the

dispute. When such dispute is raised, the industrial

adjudicator has to decide whether the contract is

sham or genuine. It is only if the adjudicator comes

to the conclusion that the contract is sham, that

he will have jurisdiction to adjudicate the dispute.

It, however, he comes to the conclusion that the

contract is genuine, he may refer the workmen to

the appropriate Government for abolition of the

contract labour under Section 10 of the Act and

keep the dispute pending. However, he can do so

if the dispute is espoused by the direct workmen

of the principal employer. If the workmen of the

principal employer have not espoused the dispute,

the adjudicator, after coming to the conclusion

that the contract is genuine, has to reject the

reference, the dispute being not an industrial

dispute within the meaning of Section 2 (k) of the

ID Act. He will not be competent to give any relief

to the workmen of the erstwhile contractor even

if the labour contract is abolished by the

appropriate Governemnt under Section 10 of the

Act.

(iii)

If the labour contract is genuine a composite

industrial dispute can still be raised for abolition

of the contract labour and their absorption.

However, the dispute, will have to be raised

invariably by the direct employees of the principal

employer. The industrial adjudicator, after receipt

of the reference of such dispute will have first to

direct the worken to approach the appropriate

Government for abolition of the contract labour

under Section 10 of the Act and keep the reference

pending. If pursuant to such reference, the contract

labour is abolished by the appropriate

Government, the industrial adjudicator will have

to give opportunity to the parties to place the

necessary material before him to decide whether

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the workmen of the erstwhile contractor should

be directed to be absorbed by the principal

employer, how many of them and on what terms.

If, however, the contract labour is not abolished,

the industrial adjudicator has to reject the

reference.

(iv)

Even after the contract labour system is abolished,

the direct employees of the principal employer

can raise an industrial dispute for absorption of

the excontractor's workmen and the adjudicator

on the material placed before him can decide as

to who and how many of the workmen should be

absorbed and on what terms".

35. In Steel Authority of India (supra) the Apex Court

had referred the precidents in Vegoils case (supra) and

Gujarat Electricity Board (supra) with approval. Thus it

emerges that power to abolish contract labour system vests

with the appropriate Government, under section 10 of the

Contract Labour Act, and not with any court including the

industrial adjudicator. This Tribunal has not been saddled

with any responsibility to abolish contract labour in an

establishment, on parameters enacted in sub-section (2) of

section 10 of the Contract Labour Act.

36. Now I would trun to the facts of the present

controversy. It is not a case where an employee of a

contractor, employed in a statutory canteen, has invoked

the jurisdiction of this Tribunal. This matter, as projected

by the claimant, is left to be approached on the proposition

as to whether contract agreement entered into between the

University and the Contractor was sham and nominal. For

an answer to this proposition, it would be expedient to

examine the contract agreement, which has been proved

as Ex.MW3/1 by Dr. Bisht. In construction of contents of

Ex.MW3/1, this tribunal cannot be oblivions of the rules

viz., written instruments shall, if possible, be so interpreted

"ut res magis valeat quam pereat" (a liberal construction

should be put upon written instruments, so as to uphold

them, if possible) and that such a meaning shall be given

to it as may carry out and effectuate to the fullest extent the

intention of the parties.

37. Elementary principle of law relative to

contracts is that parties to contracts are to be allowed to

regulate their rights and liabilities themselves and the

Courts will only give effect to the intention of the parties

as it is expressed by the contract. However the law in

some cases overrides the will of the individual and

renders ineffective and futile his expressed intention or

contract.No court or tribunal will lend its aid to a man

who founds his cause of action upon an immoral or an

illegal act. A contract cannot be made the subject of an

action if it be impeachable on the grounds of dishonesty,

or as being opposed to public policy, if it be either contra

bonos mores, or forbidden by law. No court or tribunal

will allow itself to be made the instrument of enforcing

obligations alleged to arise out of a contract or

transaction which is illegal.

38. Whether Ex.MW3/1 contrains clauses which are

contra bonos mores or forbidden by law? When perused,

clause 24 of Ex.MW3/1 makes it clear that right to form or

join an association, in respect of IGNOU matter, has been

denied to an employee of the Contractor. For sake of

convenience contents of that clause are reproduced thus:

"24. The provider has to ensure that the Temporaries

deployed are not forming any Association/Forum in

respect of IGNOU matter nor they should be allowed

to join in any Association/Forum of IGNOU."

39. Right to form associations or unions is a

fundamental right guaranteed to every citizen by clause

(1)(c) of Article 19 of the Constitution of India. Guarantee

of right to form an association or union has to be read

with clause (4) of the aforesaid Article, which permits

imposition of legal restrictions on the right in so far as

such restrictions may be reasonably required in the interest

of the sovereignty and integrity of India, public order and

morality. The right to form associations or unions refers

not only to the initial commencement of the association

but also to continuation of the association as such, as it is

abvious that if an association has to be dissolved the

moment it has been formed, it cannot be said that the

members have the right to form the association. The

restriction imposed by the University on employees of

the Contractor does not answer the requirement of clause

(4) of Article 19 of the Constitution and is violative of

the fundamental right guaranted to the claimant and his

colleagues.

40. There is other facet of the coin. The Act is a

legislation relating to what is known as "collective

bargaining" in the economic field. This policy is implicit

in the definition of "industrial dispute". See Titagarh Jute

Co. Ltd. (1979 Lab. I.C. 513). "An agreement between a

single employer or an association of employers on one hand

and a labour union on the other, which regulates the terms

and conditions of employment" is known as collective

bargaining agreement. The policy behind the concept of

collective bargaining is to protect workmen as a Class

against unfair labour practices. A dispute of an individual

workman would acquire status of an industrial dispute if it

affects the rights of the workmen as a class. An industrial

dispute denotes two qualities which distinguish it from an

individual dispute, namely (i) that the dispute relates to

industrial matter, and (ii) that on one side atleast of the

dispute the disputant are a body of men acting collectively

and not individually. The clause, referred above, puts

restriction on the claimant and his colleagues to act

collectively as a body of men to protect their rights, while

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[PART II—SEC. 3(ii)]

working with the contractor, who had engaged them to

produce a given result in terms of agreement Ex.MW3/1.

Contents of clause 24 of Ex.MW3/1, being unlawful, cannot

be supported at law.

41. A restriction is imposed on the claimant and his

colleagues from making any claim against the University

directly or indirectly, monetary including wages or

otherwise as contained in clause 23 of Ex.MW3/1, which

is not inconformity with the provisions of the Contract

Labour Act. Primary responsibility to pay wages to an

employee employed by a contractor rests upon the latter.

But on his failure to make payment of wages within the

prescribed period or the event of making short payment,

the principal employer has been saddled with the

responsibility to make payment of wages in full or the

unpaid balance due, as the case may be, to the contract

labour, enacts sub-section (4) of section 21 of the Contract

Labour Act. Consequently this part of clause 23 of

Ex.MW3/1 is to be discarded, being violative of law.

42. In mercantile transactions stipulations are agreed

upon between the parties on principal to principal or

principal to agent basis. In both the propositions there is

privity of contract between them. Absence of privity of

contract would make them strangers to each other, in respect

of alleged covenanted or parol agreement, as the case may

be. In clause 23 of Ex.MW3/1 it is projected that there is

no privity of contract by and between the Provider (the

Contractor) and the University. The proposition referred

above is absurd. Privity of contract is the relation which

exists between the immediate parties to a contract, which

is necessary to enable one person to sue another on it. It is

a relationship between persons arising under a contract.

There may be (1) privity of contract, or (2) privity of estate.

When Ex.MW3/1 is read, privity of contract between the

contractor and the University emerge out. Proposition,

referred above, cannot be given effect to.

43. "Consideration" of some sort or other is so

necessary to the formation of a contract. A nudum pactum,

or agreement to do or pay something on one side, without

any consideration on the other, will not at all support any

action, and a man cannot be compelled to perform it. To

constitute consideration, there must be an act, abstinence

or promise on the part of promisee or some other person at

the desire of the promisor. A consideration must be valuable

and not superficial, it must be material and not sentimental

or imaginary. It must be a material detriment to the promisee

or a benefit to the promisor, Section 2 of the Contract Act

defines consideration: "when at the desire of the promisor,

the promisee or any other person, has done or abstained

from doing, or does or abstains from doing something, such

act or abstinence or promise is called a consideration for

the promise".

44. The consideration for a promise must have some

tangible value in the eye of law. Its adequacy is not material.

Though adequacy of consideration will not be examined

by the courts, yet it must not be colourable merely nor

illusory. A mere moral obligation arising from a past benefit

not conferred at the request of the defendant is not a good

consideration. However consideration derived from moral

obligations, in which there has been a legal right deprived

of legal remedy, the defendant would be held liable, without

putting moral duty at par with legal consideration. There

propositions may require a court or a tribunal to examine

whether there was legal consideration for the promise.

45. Whether there is any legal consideration for the

promise made by the Contractor to the University? For an

answer contents of clause 15 of Ex.MW3/1 are to be

examined, which are extracted thus:

"15. In consideration of the obligation undertaken

by the Provider, under this Agreement, the University

shall pay Provider charges on the basis of number of

such personnel actually deployed by the Provider for

the effective operation of this Agreement, on the rates

quoted by the Provider in Their Tender based on the

direction and guidelines issued by the Local

Government (NCT of Delhi). The rates mentioned

in Tenders are as follows."

46. As detailed above charges on the basis of number

of personnel deployed on the rates quoted by the Contractor

in Tender based on the direction and guidelines issued by

the Local Government (NCT of Delhi) where to be paid to

him by the University. In Ex.MW3/1 those rates are not

details. Thus tender document becomes a part of Ex.MW3/1.

It has not been placed before the Tribunal. As detailed

above, adequacy of consideration, may prove to be beyond

the pale of jurisdiction of a civil, court. But this Tribunal

has to examine adequacy of consideration to ascertain as

to whether Ex.MW3/1 is genuine and not sham and

nominal. The Tribunal is supposed to examine as to whether

the charges on the basis of number of personnel deployed

on rates quoted in tender document project minimum wages

to be paid to contract labours, besides remunerations

derived by the Contractor. Assessment of these factors may

enable the Tribunal to reach a conclusion whether the

Contractor had put his hands to Ex.MW3/1 on prinicpal to

prinicpal or agent to principal basis. Absence of tender

document created a vacuum. Parol evidence was brought

on record to the effect as to what payments were made to

the Contractor from time to time. But absence of facts, as

to what were the rates of minimum wages, what number of

contract labours worked in a particular month, on how many

days in a month a contract labour worked, whether overtime

work was performed by a contract labour in that month,

whether a contract labour worked on Sundays, holidays

and weekly off days in a month, would leave the Tribunal

in lurch.

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47. Wages sheet Ex.WW1/M4 to Ex.WW1/M8

project total work days of the respective months for which

the claimant worked, besides the number of days on which

he remained on leave without pay. These documents project

minimum rates of wages paid to him in month, out of which

deductions towards E.P.F. and E.S.I. subscription were made.

Bills raised by the Contractor and sanction accorded by the

University are proved as Ex.MW3/11 to Ex.MW3/19.

Cheques issued in favour of the Contractor are proved as

Ex.MW3/5 to Ex.MW3/10. Despite my best efforts to

reconcile contents of documents referred above, I could

not work out the rates on which the Contractor was paid

by the University for services rendered by him. Thus

adequacy of consideration for services rendered by the

Contractor has not surfaced over the record. Vacuum of

evidence in that regard made me to comment that the

University could not establish factors in favour of

genuineness of contract agreement Ex.MW3/1.

48. Now it would be seen whether it was the

Contractor who exercised his control or supervision on the

claimant? Factors of such control and supervision were

described in various precedents, which would be noted

herein under. In Chintaman Rao [1958(II)LLI 252] the

Apex Court ruled that the concept of employment involves

three ingredients: (1) employer, (2) employee, and (3) the

contract of employment. The employer is one who employs,

that is, one who engages the services of other persons. The

employee is one who works for another for hire. The

employment is the contract of service between the employer

and employee where under the employee agrees to serve

the employer subject to his control and supervision. In Food

Corporation of India [1985(II)LLI 4] Justice Desai,

speaking for the Apex Court, announced that a contract of

employment "discloses a relationship of command and

obedience between them". Where a Contractor employees

a workman to do the work which he contracted with a third

person to accomplish, the workman of the Contractor would

not without something more become the workman of third

person.

49. In Dharangadhara Chemical Works Limited

[1957 (1) LLI 447], the Apex Court ruled that test of

"supervision and control may be taken as the prima facie

test for determining the relationship of employment". It

was futher laid that existence of the right in the master to

supervise and control the work to be done by the servant,

not only matter of directing that work the servant is to do

but also the manner in which he shall do his work is the

prima facie test for determining the existence of master

and servant relationship. It was suggested that correct

method of approach, would be to consider whether having

regard to the nature of work there was due control and

supervision by the employer. The greater amount of direct

control exercised over the person rendering the services

by the person contracting for them, the stronger the ground

for holding it to be a contract of service. The control and

supervision test was reaffirmed by the Apex Court in

Chintaman Rao (supra), wherein it was ruled that "worker"

was a person employed by the management and there must

be contract of service and a relationship of master an servant

between them. In Shankar Balaji Waje [1962 (1) LLI 119],

the Apex Court clarified that "control of the management,

which is a necessary element of the relationship of master

and servant is not directed towards providing or dictating

the nature of the article to be produce or the work to be

done, but refers to the other incidents having a bearing on

the processs of work the person carries out in the execution

of the work. The manner of work is to be distinguished

from the type of work to be performed. In V.P. Gopala Rao

[1970 (11) LLI 59], the Apex Court said that it is the

question of fact in each case whether the relationship of

master and servant exists between the management and

the workman and there is no abstract a priori test of the

work control required for establishing the contract of

service. It was laid therein that for holding that the persons

employed in the factory were workers within the meaning

of sub section (1) of section (2) of the Factories Act 1948,

it is to be considered that the fact that the workman had to

work in the factory implied certain amount of supervision

by the management and the nature and extent of control

varied in different industries and that when the operation

was of a simple nature, the control could be exercised at

the end of the day by the method of rejecting the bidis

which did not come up to the proper standard. It is, therefor,

not surprising that in recent years, the control test, as

traditionally formulated, has not been treated as an

exclusive test. In Silver Jubilee Tailoring House [1973 (11)

LLI 495] the Apex court ordained that "it is in its application

to skilled and particularly professional work that control

test in its traditional from has really broken down. It has

been said that in interpreting "control" as meaning the

power to direct how the servant should do the work, the

court has been applying the concept suited to a past age".

50. During the last three decades emphasis in the

field has shifted and no longer rests so strongly upon the

question of control. Control is obviously and important

factor and in many cases it may still be a decessive factor,

but is would be wrong to say that in every case it is a

decessive factor. In Shining Tailors [1983 (11) LLI 143],

the Apex Court held that the piece rated workers working

for a big tailoring establishment were workmen for the

establishment. It was observed therein that the "right of

removal of the workman or not to give work as an element

of control and supervision" which was amply satisfied to

announce that those piece rated workers were the workmen

for the establishment. The Court concluded that the

proposition that "piece rate" itself indicates relationship

of independent contract, is not correct. A servant who has

full liberty to attend to his work according to his pleasure

and not according to orders of his master, is an independent

contractor. A gold smith engaged to finish jewels within a

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[PART II—SEC. 3(ii)]

given time and when it was open to such goldsmith to

finish jewels within the given time or earlier and engage

themselves or other of their own were held to be

independent contractors, in K. Keswa Reddiar [1957 (1)

LLI 645]. In the like manner a goldsmith who undertook

the manufacture of ornaments like other goldsmith which

he was asked to manufacture and was entitled to receive

remuneration which would depend upon the nature of the

work done, was held to be not under the order or control of

the proprietor of the concern for whom he was doing the

work, in Achuta Achar [1968 (1) LLI 500]. An agreement

for selling milk on commission was held to be a contract

for service and not a contract of service, in Abad Dairy

Doodh Vitran Kendra Sanchalak Mandal, Ahmedabad

[1989 Lab.I.C.1770]. The Tiny Deposit Agents employed

in deposit mobilization activity of the bank have been held

to be falling within the definition of the workman and not

an independent contractor in the precedent in the

Management of Indian Bank [1990 (1) LLI 50].

51. As emerge out element of control or supervision

of employer in respect of detail of work would be an

indentifying mark of the servant. Where an employer retains

the power, not only of directing what work is to be done

but also of controlling the manner of doing the work, these

factors would be determinative of his status as of a master.

His control is not directed towards providing or dictating

the nature of work to be done but refers to other incidents

having a bearing on the process of work the person carries

out in the execution of the work. Control test postulats a

combination of managerial and technical function.

52. Whether elements of control or supervision of

the University in respect of details of work of the claimant

emerge out of contract agreement Ex.MW3/1 ? For an

answer, a few clauses of Ex.MW3/1 are to be scanned,

which are extracted thus:

"12. Provider shall continue to be responsible for

the personnel employed by him, in respect of terms

and conditions of their service, payments, attendance,

medical care, other disciplinary matters etc. who shall

remain fully under the administrative and financial

control and supervision of the Provider, except that

the University shall be the sole Arbitrator in respect

of nature of the duties to be entrusted to and the

manner of performance of their duties for the purpose

of this Agreement.

13. The temporary personnel deployed by the

Provider to IGNOU shall at no time be treated as the

employees of the University and also shall have no

claim to be regularized in the services of the

University. But the Provider will not change the

personnel once deployed by it in the University

without prior permission of the University, as the

frequent changes in deployment of temporary may

hamper the day to day work of the University.

14. The Provider shall have to change over or replace

the temporary personnel as and when required by

the University whether or not such personnel are

found guilty of any misconduct. It shall not be

necessary for the University to assign any reason to

the Provider or the concerned Person or any other

person in respect of any such change and replacement

required by the University".

53. As projected above, caluse 12 announces that

personnel employed by the Contractor shall remain fully

under the administrative and financial control and

supervision of the Contractor. However an exception is

there to this general proposition to the effect that the

University shall be sole arbitrator in respect of nature of

duties to be entrusted to and the manner performance of

their duties for the purpose of the agreement under

consideration. Another exception is contained in clause 13

wherein the Contractor has been constrained not to change

the personnel once deployed without prior permission of

the University. Further exception is contained in clause 14

wherein the Contractor is obliged to change or replace the

temporary personnel as and when required by the

University. The factors enumerated in the clauses, referred

above, make it apparent that the University retained the

power, not only of directing what work was to be done by

the claimant, but also of controlling him in respect of

manner of doing the work. Power of the Contractor to

replace the claimant from his work place was made subject

to permission of the University. Despite the choice of the

Contractor to replace the claimant he could not do so, in

case University showed its unwillingness in that regard.

Contra to it, the Contractor was duty bound to change an

employee if so commanded by the Univesity. Such a

proposition was not dependent on a contingency of the

employee being found guilty of any misconduct. Mere wish

of the University was to prevail in the matter. Thus it is

crystal clear that the University retained power of allocation

of duties, besides right to control the manner of performance

of such duties by the claimant. The claimant was to work

with the University till its pleasure. The Contractor could

not execise his earnest will to change him, if not consented

by the University. If the University decided to get him

changed, for any reasons whatsoever, the contractor could

not impose him on the former, no matter his work and conduct

were satisfactory. Conspectus of these elements make it clear

that administrative control on the claimant was with the

University and not with the Contractor.

54. Contract agreement Ex.MW3/1 does not contain

any obligation on the part of the Contractor to supervise

the work of the claimant. No clause is there in the document

to show that the Contractor deployed some personnel to

supervise the work of the claimant and his other 69

colleagues. Who use to the mark attendance of the claimant

and his collegues Ex.MW3/1 draws a blank? No parol

evidence was brought in to suggest that it was the

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Contractor who supervised his work. Vaccum of facts in

Ex.MW3/1 and conspicuous absence of any ocular

evidence in that regard leave no doubt to conclude that it

were the University authorities who used to supervise the

work of the claimant and his colleagues.

55. Disciplinary control is exercise by an employer

on his employees by way of codifying rules of conduct for

them. He engrafts acts of misconduct in those rules. He

punishes his employees for their blameworthy conduct. It

is so done by him with a view to maintain discipline at the

work place and to deter potential delinquent from doing

improper behaviour or to come in conflict with rules of

standard of behaviour. Right to coin an act as an improper

behaviour, falling within the ambit of misconduct, was

retained by the University. It has been detailed in clause

22 of Ex.MW3/1 that "the University shall be sole judge

as to what is against the interest of the University and as to

what constitutes misconduct". This authority to define a

behaviour to be a misconduct for a contract employee

projects that the University had clothed itself with a right

to declare a code of conduct for the claimant and his

associates. This right is an attribute of disciplinary control

exercised by an employer on his employees.

Construction adopted on contents of Ex.MW3/1 is

based on the standards of presumed intent of parties. The

construction, so put, with an idea to preserve the will of

the parties to Ex.MW3/1. It is the duty of a court or tribunal

to give effect to the intention of the parties in construing a

written instrument. Asertaining general scope of Ex.MW3/

1, intention of the parties contained therein, nature of the

instrument and legal right of the parties thereto, it is

concluded that efforts were made by the University to hide

the truth with a view to project a make-believe instrument

of engaging personnel through the Contractor. In fact the

University retained adminstrative and disciplinary control

over the contract employees. When veil was lifted, it

emerged that Ex.MW3/1 is sham and bogus. There are

realties of relationship of employer and employees between

the University and the claimant and his other 69 colleagues.

In view of the forgoing reasons, it is concluded that the

veil of Ex.MW3/1 is a smoke-screen, which would not snap

relationship between the University and the claimant and

his colleagues. Aforesaid two issues are accordingly

answered.

Issue No. 3

57. Dr. S.S. Bisth announces that with effect from

1.11.2007 contract for providing housekeeping services

was given to the New Contractor. He asserts that owing to

ilegal demands of the claimant and his colleagues, the New

Contractor did not engage them. Thereafter housekeeping

staff, including the claimant, resorted to illegal

demonstration. A suit of injunction was filed, which was

decreed by the High Court of Delhi. Certified copy of

judgement dated 13.3.2009 has been proved as Ex.MW2/

5, by Shri Shiv Prakash.

58. Whether above facts would espouse the cause of

the University? Answer lies in negative. As held above,

the claimant was an employee of the University, which

propostion restrains the University from awarding

housekeeping services to the New Contractor. In the grab

of award of housekeeping services to the New Contractor,

the University dispensed with the services of the claimant

and his colleagues. Action of the University squarely falls

within the ambit of definition of retrenchment, as contained

in sub-section (oo) of section 2 of the Act. No case was

projected that the case of University falls within the

exceptions, containd therein. Therefore, it is crystal clear

that the action of the University amounts to retrenchment.

As per own admision of the University, the claimant

rendered services w.e.f. 1.11.2004 till 31.10.2007, as an

employee of the Contractor. Thus it is clear that he rendered

continuous service of more than 240 days in a calendar

year, as contemplated by section 25-B of the Act. When an

employee renders services of mroe than one year, he is

entitled to protection/benefits contained in section 25-F of

the Act. Out of facts of the present controversy, it emerges

that services of the claimant were done away in violation

of the provisions of section 25-F of the Act. It is not the

case of the University that one month's notice or pay in

lieu thereof and retrenchment compensation was paid to

the claimant and other similarly situated employees.

Requirements contained in section 25-F of the Act are

mandatory and non-compliance thereof makes the action

of the employer illegal. Hence action of the University in

terminating services of the claimant, in the grab of awarding

contract of housekeeping services to the New Contractor,

is illegal and unjustified.

59. Whether judgement Ex. MW2/5 would come to

the resuce of the University? Answer lies in negative. Memo

of parties till that neither the claimant nor his colleagues

were party to that suit. The suit was filed in respect of a

cause of action of civil nature. Even otherwise judgement

Ex. MW2/5 would not operate as res-judicata in the present

controversy. Law contained in section 11 of the Code of

Civil Procedure 1908 (in short the Code) embodies the

doctrine of res-judicata or the rule of conclusiveness of a

judgement, as to the point decided either of fact, or of law,

or of fact and law, in every subsequent suit between the

same parties. It enacts that once a matter is finally decided

by a competent court, no party can be permitted to reopen

it in a subsequent litigation. The doctrine of res-judicata

has been explained in the simplest possible manner by Das

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[PART II—SEC. 3(ii)]

Gupta J. in the case of Statyadhyan Chosal (AIR 1960 S.C.

941) in the following words:

"The principle of res-judicata is based on the need

of giving a finality to judicial decision. What it says

is that once a res-is-judicata, it shall not be adjudged

again. Primarily it applies as between past-litigation

and future litigation. When a matter-whether on a

question of fact or a question of law-has been decided

between two parties in one suit or proceeding and

the decision is final, either because no appeal was

taken to a higher court or because the appeal was

dismissed, or no appeal lies, neither party will be

allowed in a future suit or proceedings between the

same parties to convass the matter again".

60. It is not every matter decided in a former suit

that will operate as res-judicata in a subsequent suit. To

constitute a matter as res-judicata under secton 11 of the

Code, the following conditions must be satisfied:

The matter directly and substantially in issue in

the subsequent suit must be the same matter which

was directly and substantially in issue either

actually or constructively in the former.

The former suit must have been a suit between

the same parties or between parties under whom

they or any of them claim.

Such parties must have been litigating under the

same title in the former suit.

The court decided the former suit must be a court

competent to try the subsequent suit or the suit in

which such issue is subsequently raised.

The matter directly and substantially in issue in

the subsequent suit must have been heard and

finally decided by the court in the former suit.

61. Section 11 of the Code bars trial of any suit as

well as an issue which had been decided in a former suit.

Issues are of three kinds: (i) Issue of fact; (ii) Issue of law;

and (iii) Mixed issues of law and fact. A decision on an

issue of fact, however, erroneous it may be, constitutes res-

judicata between the parties to the previous suit and cannot

be reagitated in collateral proceedings. Law to this effect

was laid in Mathrua Prashad [1970 (1) SCC 613]. A mixed

issue of law and fact also, for the same reasons, operates

as res-judicata.

62. To invoke plea of res-judicata it should be shown

that the court which decided the former suit must have been

a court cmpetent to try the subsequent suit. Thus, the

decision in a previous suit by a court, not competent to try

the subsequent suit will not operate as res-judicata. The

expression "competent to try" means "competent to try the

subsequent suit if brought at the time the first suit was

brought". In other words, the relevant point of time for

deciding the question of competence of the court is the

date when the former suit was brought and not the date

when the subsequent suit was filed. In order that a decision

in a former suit may operate as res-judicata, the court which

decided that suit must have been either — (a) a court of

exclusive jurisdiction, or (b) a court of limited jurisdiction;

or (c) a court of concurrent jurisdiction.

In industrial jurisdiction principles analogus to res-

judicata are applicable.

63. Now it would be considered as to whether the

High Court is competent to try on industrial dispute, relating

to rights and liabilities created under the Act. Such

proposition was raised before the Apex Court in Premier

Automobilies Ltd. [1975 (II) LLI. 445], wherein following

principles were enunciated.

"(I)

If the dispute is not an industrial dispute, nor does

it relate to enforcement of any other right under

the Act the remedy lies only in the Civil Court.

(II)

If the dispute is an industrial dispute arising out

of a right or liability under general or common

law and not under the Act, the jurisdiction of the

Civil Court is alterenative, leaving it to the election

of the suiter concerned to choose his remedy for

relief which is competent to be granted in a

particular remedy.

(III)

If the industrial dispute relates to the enforcement

of a right or an obligation created under the Act,

then the only remedy available to the suiter is to

get an adjudication under the Act.

(IV)

If the right which is sought to be enforced is a

right created under the Act such as Chapter V-A

then the remedy for enforcement is either section

33-C or the raising of an industrial dispute, as the

case may be."

However, in relation to Principle No. 2, the Court

added that "there will hardly be a dispute which will be an

"industrial dispute" within the meaning of section 2(k) of

the Act and yet will be arising out of a right or liability

under the general or common law only and not under the

Act".

64. In Rajasthan State Road Transport Corporation

(1995 Lab. I.C. 2241), the apex Court analysed the earlier

dicta and re-stated the law as follow:

"(1) Where the dispute arises from general law of

contract, i.e., where relief are claimed on the basis of the

general law of contract, a suit filed in civil court cannot be

said to be not maintainable, even though such a dispute

may also constitute an "industrial dispute" within the

meaning of Section 2(k) or section 2-A of the Industrial

Disputes Act, 1947.

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(2) Where, however, the dispute involves recognition,

observance or enforcement of any of rights or obligations

created by the Industrial Disputes Act, the only remedy is

to approach the forums created by the said Act.

(3) Similarly, where the dispute involves the

recognition, observance or enforcement of rights and

obligations created by enactments like Industrial

Employment (Standing Orders) Act, 1946—which can

be called 'sister enactments' to Industrial Disputes Act—

and which do not provide a forum for resolution of such

disputes, the only remedy shall be to approach the forums

created by the Industrial Disputes Act provided they

constitute industrial disputes within the meaning of Section

2(k) and Section 2-A of Industrial Disputes Act or where

such enactment says that such dispute shall be either treated

as an Industrial dispute or says that is shall be adjudicated

by any of the forum created by the industrial Disputes Act.

Otherwise, recourse to Civil Court is open.

(4) It is not correct to say that the remedies provided

by the Industrial Disputes Act are not equally effective for

the reason that access to the forum depends upon a

reference being made by the appropriate government. The

power to make a reference conferred upon the government

is to be exercised to effectuate the object of the enactment

and hence not unguided. The rule is to make a reference

unless, of course, the dispute raised is a totally frivolous

one ex-facie. The power conferred is the power to refer

and not the power to decide, though it may be that the

government is entitled is to examine whether the dispute

is ex facie frivolous, not meriting an adjudication.

(5) Consistent with the policy of law aforesaid, we

commend to the Parliament and State Legislatures to make

a provision enabling a workm,an to approach the Labour

Court/Industrial Tribunal directly—i.e., without the

requirement of a reference by the Government-in case of

industrial disputes covered by Section 2-A of the Industrial

Disputes Act. This would go a long way in removing the

misgivings with respect to the effectiveness of the remedies

provided by the Industrial Disputes Act.

(6) The certified Standing Orders framed under and

in accordance with the Industrial Employment (Standing

Orders) Act, 1946 are statutorily imposed conditions of

service and are binding both upon the employers and

employees, though they do not amount to "statutory

provisions". Any violation of these Standing Orders entitles

an employee to appropriate relief either before the forums

created by the Industrial Disputes Act or the Civil Court

where recourse to Civil Court is open according to the

principles indicated herein.

(7) The policy of law emerging from Industrial

Disputes Act and its sister enactments is to provide an

alternative dispute resolution mechanism to the workmen,

a mechanism which is speedy, inexpensive, informal and

un-encumbered by the plethora of procedural laws and

appeals and revisions applicable to civil courts. Indeed,

the powers of the Courts and Tribunals under the Industrial

Disputes Act are far more extensive in the sense that

they can grant such relief as they think appropriate in the

circumstances for putting an end to an industrial dispute".

Same view was taken by the Apex Court in Steel

Authority of India (supra).

65. Facts detailed in preceding sections make out

that the rights which the claimant claim and obligations

which are imposed on the University arise out of rights

and obligations created by the Act. An industrial dispute

within the meaning of section 2(k) was referred for

adjudication by the appropriate Government to this

Tribunal, invoking its powers under clause (d) of sub-

section (1) of section 10 of the Act. High Court is not

competent to adjudicate an industrial dispute. Hence,

Principle 2, referred in para 63 and Principle 1 referred in

para 64 do not come into play. Therefore, judgment Ex.

MW2/5 cannot operate as res-judicata. It would not

restrain the claimant in any manner, from agitating his

claim against the University.

66. It is well settled that negative language used

section 25-F of the Act imposes a mandatory duty on the

employer, which is condition precedent to retrenchment of

a workman. Contravention of mandatory requirements of

section 25-F of the Act would invalidate the retrenchment

and render it void ab initio. Reference can be made to the

precedents in Auro Engineering (Pvt.) Ltd., Nasik (1992

Lab. I.C., 1364) and Ollur Regional Imitation Diamond

Manfacturing Industrial Co-op.Society Ltd. [1993 (II) LLI

174]. As detailed above, retrenchment of the claimant is

illegal and void ab initio. Issue is, therefore, answered in

favour of the claimant and against the University.

Relief.

67. As concluded above, the claimant was engaged

by the University through the Contractor by way of

creation of make believe contract agreement, which was a

perfect paper arrangment. On lifting of veil, the University

was found to be the real employer. His services were

disengaged under the garb of award of housekeeing service

agreement to the New Contractor. His retrenchment was

found to be void ab initio. He, being an employee of the

University cannot be retrenched by the Contractor or the

New Contractor. He is deemed to be in the service of the

University Question comes whether he is entitled to full

back wages.For an answer in his favour, he was under an

obligation to establish that he remained un-employed since

the date of his retrenchment. No evidence has been adduced

by the claimant on that point. Thus it cannot be said that

he remained unemployed , since the date of dispensing with

his services by the University. The Apex Court and High

Courts dealt with the issue of award of compensation,

2050

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

when reinstatement in service was not found expedient.

Those precedents may help the Tribunal in ascertaining

the quantum of back wages, which may be awarded to the

claimant. In S.S. Shetty [1957 (11) LLI 696] the Apex Court

indicated some relevant factors which an adjudicator has

to take into account in computing compensation in lieu of

reinstatement, in the following words:

"The industrial Tribunal would have to take into

account the terms and conditions of employment, the

tenure of service, the possibility of termination of

the employment at the instance of either party, the

possibility of retrenchment by the employer or

resignation or retirement by the workman and even

of the employer himself ceasing to exist or of the

workman being awarded various benefits including

reinstatement under the terms of furture awards by

industrial Tribunal in the event of industrial disputes

arising between the parties in future....In computing

the money value of the benefits of reinstatement, the

industrial adjudicator would also have to take into

account the present value of what his salary, benefits

etc. would be till he attained the age of

superannuation and the value of such benefits would

have to be computed as from the date when such

reinstatement was ordered under the terms of the

award.

Having regard to the considerations detailed above,

it is impossible to compute the money value of this

benefit of reinstatement awarded to the appellant with

mathematical exactitude and the best that any tribunal

or court would do under the circumstances would be

to make as correct as estimate as is possible bearing,

of course in mind all the relevant factors pro and

con".

68. A Divisional Bench of the Patna High Court in

B. Choudhary (1983) Lab.I.1755 (1758) deduced certain

guidelines which have to be borne in mind in determining

the quantum of compensation viz. (i) the back wages

receivable (ii) compensation for deprivation of the job with

future prospect and obtainability of alternative

employment; (iii) employee's age (iv) Length of service in

the establishment (v) capacity of the employer to pay and

the nature of the employer's business (vi) gainful

employment in mitigation of damages; and (vii)

circumstances leading to the disengagement and the

past conduct. These factors are only illustrative and not

exhaustive. In addition to the amount of compensation, it

is also within the jurisdiction of the Tribunal to award

interest on the amount determined as compensation.

Furthermore, the rate of such interest is also in the discretion

of the tribunal. Reference can be made to Tabesh Process,

Shivakashi (1989 Lab.I.C.1887).

69. In Assam Oil Co.Ltd. [1960 (i) LLI 587] the Apex

Court took into account countervailing facts that the

employer had paid certain sums to the workmen and her

own earning in the alternative employment and ordered

that "it would be fair and just to direct the appellant a

substantial sum as compensation to her". In Utkal

machinery Ltd. [1966 (1) LLI 398] the amount of

compensation equivalent to two years salary of the

employee awarded by the industrial Tribunal was reduced

by the Supereme Court to an amount equivalent to one

year salary of the employee in view of the fact that she had

been in service with the employer only for 5 months and

also took into consideration the unusual manner of her

appointment at the instance of the Chief Minister of the

State. In A.K. Roy [1970 (1) LLI 228] compensation

equivalent to two years salary last drawn by the workmen

was held to be fair and proper to meet the ends of justice.

In Anil Kumar Chakaraborty [1962 (II) LLI 483] the Count

converted the award of reinstatement into compensation

of a sum of Rs.50000/-as just and fair compensation in full

satisfaction of all his claims for wrongful dismissal from

service. In O.P. Bhandari [1986 (II) LLI 509], the Apex

Court observed that is was a fit case for grant compensation

in view of reinstatement. The Court awarded compensation

equivalent to 3.33 years salary as reasonable. In

M.K. Aggarwal (1988 Lab. I.C. 380), the Apex Court

though confirmed the order of reninstatement yet restricted

the back salary to 50% of what would otherwise be payable

to the employee. In Yashveer Singh (1993 Lab.I.C. 44) the

court directed payment of Rs. 75000/- in view of

reinstatement with back wages . In Naval Kishor

[1984 (II) LLI 473] the Apex Court observed that in view

of the special circumstances of the case adequate

compensation would be in the interest of the appellant. A

sum of Rs. 2 lac was awarded as compensation in lieu of

reinstatement. In Sant Raj [1985 (II) LLI 19] a sum of

Rs. 2 lac awarded as compensation in liew of reinstatement.

In Chandu Lal (1985 Lab.I.C. 1225) a compensation of

Rs. 2 lac by way of back wages in lieu of reinstatement

was awarded. In Ras Bihari (1988 Lab. I.C. 107) a

compensation of Rs. 65000/- was granted in lieu of

reinstatement, since the employee was gainfully employed

elsewhere. In V.V. Rao (1991 Lab.I.C. 1650) a

compensation of Rs. 2.50 lac was awarded in lieu of

reinstatement.

70. The claimant rendered continuous one year

service to the University, when he was illegally retrenched.

He had to fight for about four years for redressal of his

grievances. The circumstances in which he was retrenched

and mass unemployment prevalent in economic filed which

may come in the way when some one goes for an alternative

employment, besides other factors of this case persuade

me to award 20 percent back wages from the date of

retrenchment till the date the award becomes operative

under section 17-A of the Act, besides reinstatement of

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

2051

the claimant in the service of the University, which

continuity and all consequential benefits. An award is,

accordingly, passed. It be sent to the appropriate

Government for publication.

DR. R.K. YADAV, Presiding Officer

Dated: 09.12.2011

ubZ fnYyh] 3 Qjojh] 2012

dkñvkñ 828.—vkS|ksfxd fookn vfèfu;e 1947 ¼1947

dk 14½ dh èkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,lñlhñlhñ,yñ

ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaè

esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèdj.k]

gSnjkckn ds iapkV ¼lanHkZ la[;k 27@2007½ dks izdkf'kr djrh gS]

tks dsUnzh; ljdkj dks 03&02&2012 dks izkIr gqvk FkkA

[Qkñlañ ,y&22012@89@2006&vkbZ vkj ¼lh,e&II½]

Mhñ,lñ,lñ Jhfuokl jko] MsLd vfèdkjh

New Delhi, the 3rd February, 2012

S.O. 828.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 27/2007)

of the Cent. Govt. Indus. Tribunal-cum-Labour Court,

Hyderabad as shown in the Annexure, in the Industrial

Dispute between the management of Singareni Collieries

Company Limited, and their workmen, received by the

Central Government on 03/02/2012.

[F.No. L-22012/89/2006-IR(CM-II)]

D.S.S. SRINIVASA RAO, Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL CUM LABOUR COURT AT

HYDERABAD

PRESENT:

Shri Ved Prakash Gaur

: Presiding Officer

Dated the 19th day of December, 2011

INDUSTRIAL DISPUTE No. 27/2007

BETWEEN:

The General Secretary,

Singareni Collieries Workers Union (AITUC)

Kothagudem, Khammam District.

.. PTITIONER

AND

The General Manager (Per),

M/s. Singareni Collieries Company Ltd.,

Manuguru,

District Khammam.

....RESPONDENT

APPEARANCES:

For the Petitioner:

M/s P. Sridhar Rao, Advocate

For the Respondent: Sri S.M. Subhani, Advocate

AWARD

The Government of India, Ministry of Labour by its

order No. L-22012/89/2006-IR(CM-II) dated 10.4.2007

referred the following dispute under section 10(1)(d) of

the I.D. Act, 1947 for adjudication to this Tribunal between

the management of M/s. Singareni collieries Company Ltd.,

and their workman. The reference is,

SCHEDULE

"Whether the action of the management of M/s. SCCL

in not giving promotion to Shri K. Laxmaiah in Cat.

IV w.e.f. 01.06.1980 and accordingly subsequent

promotions is legal and justified? If not, to what relief

is the concerned workman is entitled and from which

date?"

The reference is numbered in this Tribunal as I.D.

No. 27/2007 and notices were issued to the parties.

2. Petitioner called absent for several occasions from

first date of hearing. The case is fixed for filing of claim

statement and documents on 19.12.2011. Petitioner called

absent. He has not filed claim statement for more than four

years as such, the reference is answered in negative. In

absence of claim statement, a Nil Award is passed.

Award passed accordingly. Transmit.

Dictated to Smt. P. Phani Gowri, Personal Assistant

transcribed by her corrected and pronounced by me on this

the 19th day of December, 2011.

VED PRAKASH GAUR, Presiding Officer

Appendix of evidence

Witnesses examined for the

Witnesses examined

Petitioner

for the Respondent

Nil

Documents marked for the Petitioner

NIL

Documents marked for the Respondent

NIL

ubZ fnYyh] 3 Qjojh] 2012

dkñvkñ 829.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947

dk 14½ dh èkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,lñ lhñ lhñ

,yñ ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp]

vuqcaè esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

2052

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

vfèdj.k] gSnjkckn ds iapkV ¼lanHkZ la[;k 34@2005½ dks izdkf'kr

djrh gS] tks dsUnzh; ljdkj dks 03@02@2012 dks izkIr gqvk FkkA

[Qkñlañ ,y&22012@44@2004&vkbZ vkj ¼lh,e&II½]

Mhñ,lñ,lñ Jhfuokl jko] MsLd vf/kdkjh

New Delhi, the 3rd February, 2012

S.O. 829.—.In pursuance of Section 17 of the

Industrial Disputes Act, 1974 (14 of 1947), the Central

Government hereby publishes the Award Ref. No. 34/2005

of the Cent. Govt.Indus. Tribunal-cum-Labour Court.

Hyderabad as shown in the Annexure, in the industrial

dispute between the management of Singareni Collieries

Company Limited, and their workmen, received by the

Central Government on 03/02.2012.

[File No. L-22012/44/2004-IR (CM-II)]

(D.S.S. SRINIVASA RAO, Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL CUM LABOUR COURT

AT HYDERABAD

PRESENT:

Shri VED PRAKADH GAUR,

Presiding Officer

Dated the 27th day of December, 2011

INDUSTRIAL DISPUTE No. 34/2005

BETWEEN:

The General Secretary,

(Sri Bandari Satyanarayana),

Singareni Collieries Employees

Council (INTUC), BCH 30, Vittal Nagar,

Godavarikhani-505209.

....Petitioner

AND

The Chief General Manager,

M/s. Singareni Collieries Company Ltd.,

Ramagundam-I Division,

Godavarikhani-505209.

..Respondent

APPEARANCES:

For the Petitioner :

M/s A. Sarojana, K. Vasudeva

Reddy & Purnachandar Rao,

advocates

For the Respondent:

M/s P.A.V.V.S. Sarma & P.

Vijaya Laxmi, Advocates

AWARD

The Government of India, Ministry of Labour by its

order No. L-22012/44/2004-IR(CM. II) dated 18.2.2005

referred the following dispute under section 10(1) (d) of

the I.D. Act, 1947 for adjudication to this Tribunal between

the management of M/s. Singareni Collieries Company

Ltd., and their workman. The reference is,

THE SCHEDULE

"Whether the action of the Chief General Manager,

M/s. Singareni Collieries Company Ltd.,

Ramagundam-I Division, Godavarikhani in not

providing the Conveyor Operator Cat. V job as per

the designation to Sri Chiluka Rajaiah is legal and

justified? If not, to what relief the workman is

entitled?"

The reference is numbered in this Tribunal as I.D.

No. 34/2005 and notices were issued to the parties.

2. Petitioner filed claim statement stating therein that

he was appointed on 15.8.1975 and later promoted as

conveyor operator in category-IV and further Category-V

w.e.f. 1.1.1997. While so, a proceeding was issued to him

transferring to GDK-1 incline. Against which he submitted

representation to utilize his services as Conveyor Operator

or instead transfer his back to CSP-1 GDK which was not

considered by the Respondent. Hence, he has prayed this

Tribunal to direct the Respondent to engage the service of

the workman as Conveyor Operator Category-V.

3. Counter statement has been filed by the

management stating therein that Petitioner was transferred

on administrative grounds to GDK No. 1 incline. He was

entrusted with the duties of Conveyor Operator and he was

paid the wages of Conveyor Operator. Workman has opted

for voluntary retirement scheme on 1.11.2003, as such, he

was not on the rolls of the Respondent when this reference

was made to this Tribunal. Hence, the present dispute be

closed as no merits.

4. The case is fixed for evidence of workman,

workman requested adjournments for several times. Finally

on 27.12.2011, counsel for workman stated that Petitioner

has sought voluntary retirement, he does not want to

proceed with this case, as such, in light of statement of

Learned Counsel or the workman, the petition shall be

dismissed without any relief to workman. Accordingly,

Petitioner is not entitled for any relief. Hence, this award.

Transmit.

Dictated to Smt. P. Phani Gowri, Personal Assistant

transcribed by her and corrected by me on this the 27th

day of December, 2011.

Ved Prakash Gaur, Presiding Officer

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

2053

Appendix of evidence

Witnesses examined

Witnesses examined for the

for the Petitioner

Respondent

NIL

Documents marked for the Petitioner

NIL

Documents marked for the Respondent

NIL

ubZ fnYyh] 3 Qjojh] 2012

dkñvkñ 830.—vkS|ksfxd fookn vfèfu;e 1947 ¼1947

dk 14½ dh èkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,l-lh-lh-,y-

ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqcaè

esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèdj.k]

gSnjkckn ds iapkV ¼,ylhvkbZMh la[;k 53@ 2009½ dks izdkf'kr

djrh gS tks dsUnzh; ljdkj dks 03&02&2012 dks izkIr gqvk Fkk

[Qkñ lañ ,y&22013@1@2012&vkbZ vkj ¼lh&II½]

Mh-,l-,l- Jhfuokl jko] MsLd vf/kdkjh

New Delhi, the 3rd February, 2012

S.O. 830.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947, (14 of 1947), the Central

Government hereby publishes the Award of the Cent. Govt.

Indus. Tribunal-cum-Labour Court, Hyderabad (CGIT/

LCID/53/2009) as shown in the Annexure in the Industrial

Dispute between the employers in relation to the

management of SCCL and their workmen, which was

received by the Central Government on 03.02.2012.

[F. No. L-22013/1/2012-IR(C-II)]

D.S.S.SRINIVASA RAO, Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL CUM LABOUR COURT AT

HYDERABAD

PRESENT:

Shri Ved Prakash Gaur

Presiding Officer

Dated the 19th day of January, 2012

INDUSTRIAL DISPUTE L.C.No. 53/2009

BETWEEN:

Sri Ramancha Bhadraiah,

S/0 Lingaiah,

R/o H.No. 2-8-29, Ambedkar Colony,

5th Ward, Jammikunta Town and Mandal.

Petitioner

AND

The General Manager,

M/s. Singareni Collieries Company Ltd.,

Ramakrishnapur, Adilabad district.

2. The Managing Director, (Administration),

M/s. Singareni Collieries Company Ltd.,

Post Kothagudem. Khammam district. Respondents

APPEARANCES:

For the Petitioner:

Shri S. Bhagwanth Rao,

Advocate

For the Respondent:

Sri Seshukumar Reddy,

Advocate

AWARD

This petition under Sec.2A (2) of the I.D. Act, 1947

has been filed by Sri Ramancha bhadraiah, ex-Badli filler

to set aside the termination order dated 10.8.1999 and to

reinstate the Petitioner workman with full back wages.

2. It is alleged by the Petitioner that Petitioner was

appointed by Respondent on 14.10.1986 and discharged

his duties to the full satisfaction of superiors upto removal

from service on 10.8.1999. while so, Petitioner suffered

from duodenum ulcer from 1.7.1998 to 13.7.1998 and also

from 2.1.1998 to 21.1.1998 and from 15.7.1998 to

2.8.1998. He submitted medical certificates from 5.1.1997

to 6.9.1999 by Medical Officer, P.H.C., Kamalapur which

were not received by respondent. An ex-parte enquiry was

conducted against the Petitioner and Respondent dismissed

Petitioner from his services arbitrarily, illegally against the

principles of natural justice. During course of employment,

Petitioner's right eye also got damaged and he was declared

unfit earlier for underground work, due to which

management with pre-mediate intention dismissed the case

of Petitioner. There was no response to his representation

for reinstatement. Hence, it is prayed that the dismissal

order issued by Respondent dated 10.8.1999 be declared

as illegal and arbitrary and set aside the same consequently

directing the Respondents to reinstate the Petitioner into

service with all consequential benefits.

3. Management has submitted his reply alleging

therein that Petitioner remained absent for the year 1996

which hampered the working of the company, the absence

of the Petitioner was without any sufficient cause which is

grave misconduct within the Standing Orders 25.25 of the

company and dismissal is not bad in the light of the case

law Reported in 1996(1) SCC 302 State of U.P. and

others Vs. Ashok Kumar Singh. Petitioner was appointed

in the services of the Respondent company as badli filler

on 14.10.1986 and he got confirmed as coal filler w.e.f.

1.1.1995. Petitioner had put in 115 musters in the year 1995,

107 musters in 1996, 67 musters during 1997, 76 days in

1998 and 11 days upto 30.6.1999 in the year 1999. He

remained absent for the rest of days in the year 1998 as

2054

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

such, he was issued with charge sheet dated 15.2.1999 for

his unauthorized absenteeism during the year 1998.

Petitioner acknowledged the receipt of charge sheet but

did not submit any explanation to the charge sheet hence,

enquiry was ordered. Due notices were given to the

Petitioner to participate in the enquiry proceeding through

registered post with acknowledgement due. Accordingly

Petitioner participated in the enquiry and accepted the

charges of unauthorized absence and copy enquiry report

was also provided to the Petitioner. As coal filler, Petitioner

has to put in 190 minimum musters per year which he did

not put in. disciplinary Authority on considering enquiry

proceeding, enquiry report and representation of Petitioner

decided to impose punishment of dismissal from service,

accordingly his services were dismissed vide office order

dated 10.8.1999 with immediate effect. Petitioner did not

produce any sickness proof, thus he failed to produce any

documentary evidence before the Enquiry Officer. He

intentionally absented himself without any reason or cause.

The company has provided medical facilities by

establishing hospitals, the Petitioner did not report to the

company hospital for his sickness thus, his submission that

he was absent due to ill-health is unfounded, Enquiry

Officer has given his finding on the basis of material placed

before him by the management and no fault can be find in

the enquiry report, it is based on evidence and Petitioner's

dismissal order is not disproportionate to the misconduct

committed by him since Petitioner was not regular to his

duties company has dismissed him which is neither illegal

nor invalid. Hence, the petition be dismissed.

4. Parties were directed to produce documentary

evidence in support of their claims. Petitioner has filed

xerox copies of explanation dated 25.12.2008, dismissal

order, representation of the Petitioner and original medical

fitness certificate and Form-A. Respondent has filed office

copies of charge sheet, enquiry notices, entire domestic

enquiry proceedings file, enquiry report, show cause notice

issued to him, its acknowledgement and dismissal order.

5. Before deciding the question of legality and

validity of dismissal order, the legality and validity of

domestic enquiry conducted by the management was

considered first. Petitioner has not challenged the legality

of the domestic enquiry as such, case is fixed for arguments

under Sec. 11A of the Industrial Disputes Act, 1947,

Petitioner's counsel called absent and heard argument of

Respondent.

6. I have gone through the claim statement, counter

statement, documents of the both parties and arguments of

the Respondent.

7. It is admitted fact that the Petitioner remained

absent during the year 1998 for which a charge sheet was

issued to the Petitioner, he acknowledged the receipt of

charge sheet. It is also admitted that domestic enquiry was

conducted and Petitioner participated in the domestic

enquiry. On the basis of the report submitted by the Enquiry

Officer dismissal order has been passed against the

Petitioner which is under challenge.

8. This tribunal has to consider the following points:

(1)

Whether the absence of Petitioner during the year

1998 was for any sufficient and reasonable cause

or not and the report of Enquiry Officer is based

on evidence or not?

(2)

Whether the punishment imposed upon the

Petitioner is disproportionate to the misconduct

committed by the Petitioner?

9. Point No. 1: The Petitioner has submitted that he

fell sick and suffered from duodenum ulcer during the year

1998 due to which he remained absent. He has filed before

this Tribunal Form-A certificate of Government medical

Attendant w.e.f. 5.1.1997 to 6.9.99 for restoration of

Petitioner's health and medical fitness certificate dated

6.9.99 certifying that Petitioner is fit for duty from 7.9.99.

He has not been able to provide any single piece of paper

before Enquiry Officer to substantiate his allegations. More

over, he has not mentioned from where he took treatment.

He simply stated in his claim petition that his health

condition was not good due to which he remained absent

during the year 1998. He did not raise any objection against

Respondent evidence during enquiry or produced any

material in support of his absence before the Enquiry

Officer. Simply he claims for reinstatement without

producing any documentary or material evidence to

substantiate his claim. The management has produced Sri

R. Prasada Rao, O.S., to prove that Petitioner remained

absent without any leave or without any intimation during

the year 1998 and had put in only 76 musters in 1998.

Since absence of the Petitioner was admitted by the

Petitioner himself through his explanation to charge sheet

and acceptance before the Enquiry Officer, it was the sole

duty of the Petitioner to prove that his absence was due to

any cogent reason or sufficient cause. Petitioner was unable

to prove that his absence during the year 1998 was due to

sufficient reason. Though he stated that he was absent due

to ill-health but he did not provide any documentary or

mterial in support of his illness. Even if it is presumed that

Petitioner remained absent due to the ill-health why he did

not inform his superiors regarding his illness has not been

explained by the Petitioner. Thus, the finding of the Enquiry

Officer that Petitioner's absence during the year 1998 was

not for valid or reasonable cause is based on evidence.

Regarding medical certificates produced before this

Tribunal, it is evident from the perusal of the order sheet

that Petitioner remained absent and did not turn up to

chalenge the legality and validity enquiry which was held

to be legal and valid in absence of his challenge and he

also remained absent on later dates. He did not explain

this Tribunal why he has not produced the medical

certificates either before management or before the Enquiry

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

2055

Officer as such, it is held that the finding of the Enquiry

Officer was based on evidence and reasoning and no fault

can be find in the finding of the Enquiry Officer.

10. This tribunal is also of the opinion that the

Petitioner remained absent without any intimation to his

employer during the year 1998, his absence was without

any reasonable or sufficient cause and thereby the Petitioner

has committed misconduct mentioned in para 25.25 of the

Standing Orders of the company. Point No. 1 is decided

accordingly.

11. Point No.2: So far as the question of punishment

is concerned the Petitioner has not been able to justify his

absence during the year 1998, he has voluntarily admitted

in his explanation to charge sheet that he remained absent

during 1998. Respondent management has stated in the

counter statement that Petitioner remained absent during

the years 1995 and 1997 but it was not mentioned in the

charge sheet. As such, the previous absence can not be taken

into consideration but the absence during the entire

year 1998 is surely a grave misconduct and management

has not committed any mistake in passing the punishment

of dismissal against the Petitioner. Petitioner appear to be

unwilling worker who has not cared to perform his duties

with sincerity as such, the punishment was proper and

interference is not required in this case.

12. I agree with the argument of the Learned

Counsel for the Respondent and I am also of the

considered opinion that the punishment imposed on the

Petitioner is neither excessive nor disproportionate,

Petitioner is not a deserving person for any lenient view

to be taken in favour of the Petitioner hence, no

interference is required in the matter of the punishment.

Point No. 2 is decided accordingly.

12. From the above discussion, this tribunal is of the

considered opinion that the claim petition is unfounded,

no interference is required in this case. Petitioner is not

entitled for any relief, petition deserves to be dismissed

and it is dismissed. Hence, this award.

Award passed accordingly. Transmit.

Dictated to Smt. P. Phani Gowri, personal Assistant

transcribed by her corrected by me on this the 19th day of

January, 2012.

Ved Prakash Gaur, Presiding Officer

Appendix of evidence

Witnesses examined for

Witnesses examined for the

the Petitioner

Respondent

NIL

Documents marked for the Petitioner

NIL

Documents marked for the Respondent

NIL

ubZ fnYyh] 3 Qjojh] 2012

dkñvkñ 831.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947

dk 14½] dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,lñ lhñ lhñ

,yñ ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp

vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/

kdj.k] gSnjkckn ds iaPkkV ¼,ylhvkbZMh la[;k 111@2007½ dks

izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 03@02@2012 izkIr gqvk FkkA

[Qkñlañ ,y&22013@1@2012µvkbZ vkj ¼lhµII½]

Mhñ,lñ,lñ Jhfuokl jko] MsLd vf/kdkjh

New Delhi, the 3rd February, 2012

S.O. 831.—In pursuance of Section 17 of the

Industrial Dispute Act, 1947 (14 of 1947 ), the Central

Government hereby publishes the award of the Cent. Govt.

Indus. Tribunal-cum-Labour Court, Hyderabad (CGIT/

LCID/111/2007) as shown in the Annexure, in the

Industrial dispute between the employers in relation to the

management of SCCL and their workmen, which was

received by the Central Government on 03.02.2012.

[F.No. L-22013/1/2012-IR(C-II)]

D.S.S. SRINIVASA RAO, Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL CUM LABOUR COURT AT

HYDERABAD

Present:

Shri Ved Prakash Gaur

Presiding Officer

Dated the 19th day of January, 2012

INDUSTRIAL DISPUTE L.C. No. 111/2007

BETWEEN:

Sri Kandula Mallesham,

S/o Peddulu,

R/o Lingapoor Village,

Ramagundam Mandal,

Dist: Khammam.

.........Petitioner

AND

The General Manager,

M/s. Singareni Collieries Company Ltd.,

Ramagundam Area I,

Godavarikhani. Karimnagar district.

2. The Managing Director,

2056

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

M/s. Singareni Collieries Company Ltd.,

Kothagudem. Khammam district.

.........Respondents

APPEARANCES:

For the Petitioner: Sri S. Bhagwanth Rao, Advocate

For the Respondent : Sri S.M. Subhani, Advocate

AWARD

This petition under Sec. 2 A (2) of the I.D. Act, 1947

has been filed by Sri Kandula Mallesham, ex-badli filler

to set aside the termination order dated 30.3.1998 and to

reinstate the Petitioner workman with full back wages.

2. It is alleged by the Petitioner that Petitioner was

appointed by Respondent on 3.12.1994 and discharged his

duties to the fullest satisfaction of superiors upto removal

from service dated 30.3.1998. Petitioner served the

company from 1994 to 1997. Respondent conducted

enquiry against the Petitioner for misconduct and dismissed

the Petitioner from service arbitrarily, illegally against the

principles of natural justice. Respondent obtained

signatures on white paper without explaining the contents

mentioned therein. There was no response to his

representation for reinstatement. Hence, it is prayed that

the dismissal order issued by Respondent dated 29.3.1998

be declared as illegal and arbitrary and set aside the same

consequently directing the Respondents to reinstate the

Petitioner into service with all consequential benefits.

3. Management has submitted his reply alleging

therein that Petitioner remained absent for the year 1996

which hampered the working of the company, the absence

of the Petitioner was without any sufficient cause which is

grave misconduct within the Standing Orders 25.25 of the

company and dismissal is not bad in the light of the case

law reported in 1996(1) SCC 302 State of U.P. and

others Vs. Ashok Kumar Singh. Petitioner was appointed

in the services of the Respondent company on 2.12.1994.

Petitioner had put in 74 musters in the year 1995, 40 musters

in 1996 and 51 musters during 1997. He remained absent

for the rest of days in the year 1996 as such, he was issued

with a charge sheet dated 1.10.1997 for his unauthorized

absenteeism during the year 1996. Petitioner acknowledged

the receipt of charge sheet and has submitted his explanation

to the charge sheet dated 26.10.1997 which was found

unsatisfactory as such, enquiry was ordered. Due notices

were given to the Petitioner to participate in the enquiry

proceeding through registered post acknowledgement due

which returned undelivered, enquiry notice was published

in local Telugu Daily News Paper 'Vaartha' on 2.1.1998

informing the Petitioner to appear on 6.1.1998. Neither

Petitioner attended the enquiry nor he has sent any

communication informing his inability to attend for the

enquiry as such, ex-parte enquiry was conducted on

6.1.1998 and he was found guilty of the charges. Enquiry

report was also provided to the petitioner. Disciplinary

Authority on considering enquiry proceeding, enquiry

report and representation of Petitioner decided to impose

punishment of dismissal from service, accordingly his

services were dismissed w.e.f. 30.3.1998 vide order

dated 29.3.1998 Petitioner did not produce any sickness

proof, thus he failed to produce any documentary evidence

before the Enquiry Officer. He intentionally absented

himself without any reason or cause. The company has

provided medical facilities by establishing hospitals, the

Petitioner did not report to the company hospital for his

sickness thus, his submission that he was absent due to ill-

health is unfounded, Enquiry Officer has given his finding

on the material placed before him by the management and

no fault can be find in the enquiry report, it is based on

evidence and Petitioner's dismissal order is not

disproportionate to the misconduct committed by him since

Petitioner was not regular to his duties company has

dismissed him which is neither illegal nor invalid. Hence,

the petitioner be dismissed.

4. Parties were directed to produce documentary

evidence in support of their claims. Petitioner has filed

xerox copies of dismissal order dated 29.3.1998

representation of the Petitioner and original medical

attendance book. Respondent has filed office copies of

charge sheet, acknowledgement of charge sheet,

explanation to charge sheet dated 26.10.1996, enquiry

notices, paper publication, entire domestic enquiry

proceedings file, enquiry report, show cause notice issued

to him, its acknowledgement and dismissal order.

5. Coming to the point of the legality and validity of

domestic enquiry conducted by the management it is

pertinent to mention that as the Petitioner has not challenged

the legality of the domestic enquiry, case is fixed for

arguments under Sec. 11A of the Industrial Disputes

Act, 1947, Petitioner's counsel called absent and heard

argument of Respondent.

6. It appears that Petitioner is not interested to

proceed with the case. However, I have gone through the

claim statement, counter statement, documents of the both

parties and arguments of the Respondent.

7. It is admitted fact that the Petitioner remained

absent during the year 1996 for which a charge sheet was

issued to the Petitioner, he acknowledged the receipt of

charge sheet. It is also admitted that domestic enquiry was

conducted and Petitioner did not participate in the domestic

enquiry. On the basis of the report submitted by the Enquiry

Office dismissal order has been passed against the

Petitioner which is under challenge.

8. This tribunal has to consider the following points:

Whether the absence of Petitioner during the years

1996 was for any sufficient and reasonable cause

or not and the report of Enquiry Officer is based

on evidence or not?

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

2057

Whether the punishment imposed upon the

Petitioner is disproportionate to the misconduct

committed by the Petitioner?

9. Point No. 1: The Petitioner has submitted that he

fell sick during the year 1996 due to which he remained

absent. He has filed before this Tribunal medical attendance

book which pertains to the year 1996 and it shows the

sickness of his wife by name Swaroopa in the year 1996

only but, it is not clear whether Petitioner was sick or not.

He has not been able to provide any single piece of paper

even before this Tribunal to substantiate his allegations.

Moreover, he has not mentioned what was the cause of his

ill-health and from where he took treatement. He simply

stated in his claim petition that his health condition was

not good due to which he remained absent during the

year 1996. He did not raise any objection before

Respondent for conducting ex-parte enquiry or explained

any genuine reason for his non-attendance to the enquiry

proceedings. This shows that he was well aware of the

enquiry proceeding. He simply claims for reinstatement

without producing any documentary or material evidence

to substantiate his absence. The management has produced

Sri K. Aga Rao, O.S., and Sri C. Srihari, Paysheet Clerk to

prove that Petitioner remained absent without any leave or

without any intimation during the year 1996 and had put in

only 40 musters in 1996. Since absence of the Petitioner

was admitted by the Petitioner himself through his

explanation to charge sheet it was the sole duty of the

Petitioner to prove that his absence was due to any cogent

reason or sufficient cause. Petitioner was unable to provide

that his absence during the year 1996 was due to sufficient

reason and more over he remained absent for enquiry

proceeding. Though he stated that he was absent due to ill-

health but he has not been able to provide any evidence or

material in support of his illness. Even if it is presumed

that Petitioner remained absent due to the ill-health why

he did not informed his superiors regarding his illness has

not been explained by the Petitioner. Thus, the finding of

the Enquiry Officer that Petitioner's absence during the

year 1996 was based on evidence and reasoning and no

fault can be find in the finding arrived at by the Enquiry

Officer.

10. This tribunal is also of the opinion that the

Petitioner remained absent without any intimation to his

employer during the year 1996, his absence was without

any reasonable or sufficient cause and thereby the Petitioner

has committed misconduct mentioned in para 25.25 of the

Standing Orders of the company. Point No. 1 is decided

accordingly.

11. Point No. 2: So far as the question of punishment

is concerned the Petitioner has not been able to justify his

absence during the year 1996, he has voluntarily admitted

in his explanation to charge she that he remained absent

during 1996 and though the Respondent management has

stated in the counter statement that Petitioner remained

absent during the years 1995 and 1997 but it was not

mentioned in the charge sheet. As such, the previous

absence can not be taken into consideration but the absence

during the entire year 1996 is surely a grave misconduct

and management has not committed any mistake in passing

the punishment of dismissal against the Petitioner. Petitioner

has alleged that his family is starving due to dismissal of

the Petitioner against which Learned Counsel for the

Respondent has argued that Petitioner himself is responsible

for the starvation of the family members, the Petitioner

was an unwilling worker who has not cared to perform his

duties with sincerity as such, the punishment was proper

and interference is not required in this case.

12. I agree with the argument of the Learned Counsel

for the Respondent and I am also of the considered opinion

that the punishment imposed on the Petitioner is neither

excessive nor disproportionate and Petitioner is not a

deserving person for any lenient view to be taken in favour

of the Petitioner. The Petitioner himself is responsible for

the starvation of his family members, no interference is

required in the matter of the punishment. Point No. 2 is

decided accordingly.

13. From the above discussion, this tribunal is of the

considered opinion that the claim petition is unfounded,

no interference is required in this case. Petitioner is not

entitled for any relief, petition deserves to be dismissed

and it is dismissed. Hence, this award.

Award passed accordingly. Transmit.

Dictated to Smt. P. Phani Gowri, Personal, Assistant

transcribed by her corrected by me on this the 19th day of

January, 2012.

VED PRAKASH GAUR, Presiding Officer

Appendix of evidence

Witness examined for the

Witnesses examined for the

Petitioner

Respondent

NIL

Documents marked for the Petitioner

NIL

Documents marked for the Respondent

NIL

ubZ fnYyh] 3 Qjojh] 2012

dkñvkñ 832.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,lñ lhñ lhñ

,yñ ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp]

vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vf/kdj.k]

gSnjkckn

iapkV

¼,ylhvkbZMh

2058

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

la[;k 10@2009½ dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks

03@02@2012 dks izkIr gqvk FkkA

[Qkñ lañ ,y&22013@1@2012&vkbZ vkj ¼lh&II½]

Mhñ ,lñ ,lñ Jhfuokl jko] MsLd vf/kdkjh

New Delhi, the 3rd February, 2012

S.O. 832.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award of the Cent. Govt.

Indus. Tribunal-cum-Labour Court, Hyderabad (CGIT/

LCID/10/2009) as shown in the Annexure in the Industrial

Dispute between the employers in relation to the

management of SCCL and their workmen, which was

received by the Central Government on 03.02.2012.

[F. No. L-22013/1/2012-IR(C-II)]

D.S.S. SRINIVASA RAO, Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL-TRIBUNAL-CUM-LABOUR COURT AT

HYDERABAD

Present:

Shri Ved Prakash Gaur

Presiding Officer

Dated the 20th day of January, 2012

INDUSTRIAL DISPUTE L.C. No. 10/2009

BETWEEN:

Sri Orugonda Shanker,

S/o Venkati,

Q.No. KD-146, Krishna Colony,

Srirampur, Adilabad District.

.........Petitioner

AND

1. The Chairman and Managing Director,

M/s Singareni Colleries Company Ltd.,

Bupalpally, Warangal District

2. The Colliery Manager,

M/s. Singareni Collieries Company Ltd.,

KTK 5 Inlcine,

Bhupalpally, Waranagal District.

Respondents

APPEARANCES:

For the Petitioner

M/s. Venkateshwar Varanasi

and G. Ravi, Advocates

For the Respondent

M/s. P.A.V.V.S. Sarma and

P. Vijaya Lakshmi,

Advocates

AWARD

This petition under Sec. 2 A(2) of the I.D. Act, 1947

was filed by Sri Orugonda Shanker, Ex. General Mazdoor

of M/s. Singareni Collieries Company Ltd., against the

management challenging the order of his dismissal

dated 24.3.2009 to quash the said order and reinstate him

with back wages.

2. It has been alleged by the Petitioner that he was

appointed as badli filler on 29.7.2002 in GDK 6 incline

RG-1 under dependent employment quota and thereafter

transferred to GDK 11 incline in the year 2004 and got

promoted as coal filler in November, 2008. Then, he was

transferred to Bhoopalapalli. He discharged his duties

sincerely till removal from his services. A charge sheet

dated 17.3.2008 was issued to him alleging that he remained

absent without leave or sufficient cause during 2007.

Petitioner submitted his explanation. Without considering

the merits of the explanation, an enquiry was ordered.

Enquiry was conducted, basing on the enquiry report

Respondent dismissed the Petitioner from services which

is illegal, arbitrary and unjust and liable to be set aside.

Though the Petitioner filed mercy application to the

Respondent several times but in vain. Removal of Petitioner

from service is shockingly disproportionate to the charges

alleged against the Petitioner and he prays to direct

Respondents to reinstate the Petitioner with full back wages,

continuity of service and all other benefits.

3. Respondent management has filed counter

challenging the maintainability of the petition under

Sec. 2A(2), further stating that Petitioner was an

unauthorized absentee who was dismissed from services

on proved charges of absenteeism after conducting a

detailed domestic enquiry following the principles of

natural justice. It is further alleged that Petitioner remained

absent during the year 2007 which hampered the working

of the company, the absence of the Petitioner was without

any sufficient cause which is grave misconduct within the

Standing Order 25.25 of the company and dismissal is not

bad in the light of the case law reported in 1996(1) SCC

302 State of U.P. and other Vs. Ashok Kumar Singh. It

has been submitted that the workman was appointed on

29.7.2002 as badli filler and subsequently transferred to

Bhupalpally. He was issued with charge sheet dated

17.3.2008 for his absence from duty during the period from

1.1.2007 to 31.12.2007 without any sanctioned leave or

sufficient cause. The charge sheet returned undelivered.

As such, the charge sheet cum enquiry notice was published

in Telugu Daily New Paper Andhra Jyothi on 20.5.2008

advising him to submit explanation and to attend the

enquiry on 30.5.2008. Accordingly, Petitioner participated

in the enquiry, full and fair opportunity was given to him

wherein he has admitted that he remained absent from duty

on the dates mentioned in charge sheet due to ill-health.

Petitioner was irregular to his duties. He has put in

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

2059

200 musters in 2003, 158 musters in 2004, 165 musters in

2005, 118 musters in 2006 and nil musters in the year 2007.

If he was really sick he would have reported at company's

hospital which he did not do so. It is submitted that the

minimum musters required to be put in by an employee

employed in underground is 190 which the Petitioner has

failed to put in as required, therefore he was issued with

charge sheet, enquiry held and punishment is proper in the

light of the facts of the present case. Hence, the Petitioner

is not entitled for any sympathetic or lenient view.

4. Both the parties were directed to file their

respective evidence. Petitioner workman has filed xerox

copies of documents, viz., name removal letter, show cause

notice, explanation to show cause notice and dismissal

order. The Respondent management has also filed the office

copy of charge sheet, original enquiry proceeding, notice

of enquiry to the Petitioner, paper publication, enquiry

proceeding, enquiry report, show cause notice, Petitioner's

reply to show cause notice and dismissal order.

5. On question of the legality and validity of domestic

enquiry conducted by the management it is pertinent to

mention that as the Petitioner has not challenged the legality

of the domestic enquiry held to be legal and valid by order

dated 5.7.2010 and case is fixed for arguments under Sec.

11A of the Industrial Disputes Act, 1947, Petitioner or his

counsel called absent and heard argument of Respondent.

6. It appears that Petitioner is not interested to

proceed with the case. However, I have gone through the

claim statement, counter statement, documents of the both

parties and arguments of the Respondent.

7. It is admitted fact that the Petitioner remained

absent during the year 2007 for which a charge sheet was

issued to the Petitioner, he acknowledged the receipt of

charge sheet. It is also admitted that domestic enquiry was

conducted and Petitioner participated in the domestic

enquiry. On the basis of the report submitted by the Enquiry

Officer dismissal order has been passed against the

Petitioner which is under challenge.

8. This tribunal has to consider the following points:

(1)

Whether the absence of Petitioner during the year

2007 was for any sufficient and reasonable cause

or not and the report of Enquiry Officer is based

on evidence or not?

(2)

Whether the punishment imposed upon the

Petitioner is disproportionate to the misconduct

committed by the Petitioner?

9. Point No. 1: The Petitioner has submitted that he

fell sick during the year 2007 due to which he remained

absent. He has not been able to provide any single piece of

paper neither before Enquiry Officer nor before this Tribunal

to substantiate his allegations. More over, he has not

mentioned what was the cause of his ill-health but he simply

stated before Enquiry Officer that he took treatment at

M.G.M. Hospital, Warangal and did not produce any

supporting document like prescriptions, medical certificates

etc.. He simply stated in his claim petition that his health

condition was not good due to which he remained absent

during the year 2007. Petitioner claims for reinstatement

without producing any documentary or material evidence

to substantiate his claim. The management has produced

Sir A. Narayana Rao, O.S., and Sri S. Pratap Reddy,

Paysheet Clerk to prove that Petitioner remained absent

without any leave or without any intimation through out

the year 2007. Since absence of the Petitioner was admitted

by the Petitioner himself during enquiry proceeding it was

the sole duty of the Petitioner to prove that his absence

was due to any cogent reason or sufficient cause. Petitioner

was unable to prove that his absence during the year 2007

was due to sufficient reason. Though he stated that he was

absent due to ill-health but he was unable to provide any

material or documentary evidence in support of his illness.

Even if it is presumed that Petitioner remained absent due

to the ill-health why he did not informed his superiors

regarding his illness has not been explained by the

Petitioner. Thus, the finding of the Enquiry Officer that

Petitioner's absence during the year 2007 was based on

evidence and reasoning and no fault can be find in the

finding arrived at by the Enquiry Officer.

10. This tribunal is also of the opinion that the

Petitioner remained absent without any intimation to his

employer through out the year 2007, his absence was

without any reasonable or sufficient cause and thereby the

Petitioner has committed misconduct mentioned in para

25.25 of the Standing Orders of the company. Point No. 1

is decided accordingly.

11. Point No. 2: So far as the question of punishment

is concerned the Petitioner has not been able to justify his

absence during the year 2007, he has admitted before the

Enquiry Officer that he remained absent during 2007 and

though the Respondent management has stated in the

counter statement that Petitioner remained absent during

the year 2004 to 2006 it was not mentioned in the charge

sheet. As such, the previous absence can not be taken into

consideration but the absence duirng the entire year 2007

is surely a grave misconduct and management has not

committed any mistake in ordering the punishment of

dismissal against the Petitioner. Petitioner has alleged that

his family is starving due to dismissal of the Petitioner

against which Learned Counsel for the Respondent has

argued that Petitioner himself is responsible for the

starvation of the family members, the Petitioner was an

unwilling worker who has not cared to perform his duties

with sincerity as such, the punishment was proper and

interference is not required in this case.

12. I agree with the argument of the Learned Counsel

for the Respondent and I am also of the considered opinion

that the punishment imposed on the Petitioner is neither

2060

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

excessive nor disproportionate and Petitionr is not a

deserving person for any lenient view to be taken in favour

of the Petitioner. the Petitioner himself is responsible for

the starvation of his family members, no interference is

required in the matter of the punishment. Point No. 2 is

decided accordingly.

13. From the above discussion, this tribunal is of the

considered opinion that the claim petition is unfounded,

no interference is required in this case. Petitioner is not

entitled for any relief, petition deserves to be dismissed

and it is dismissed. Hence, this award.

Award passed accordingly. Transmit.

Dictated to Smt. P. Phani Gowri, Personal Assistant

transcribed by her corrected by me on this the 20th day of

January, 2012.

Ved Prakash Gaur, Presiding Officer

Appendix of evidence

Witnesses examined for the Witness examined for the

Petitioner

Respondent

NIL

Documents marked for the Petitioner

NIL

Documents marked for the Respondent

NIL

ubZ fnYyh] 3 Qjojh] 2012

dkñvkñ 833.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj eSllZ vk;y

,.M uspqjy xSl dkjiksjs'ku fyfeVsM if'pe caxky ds izca/kra= ds

lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k esa fufnZ"V

vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k@Je U;k;ky;

dksydÙkk ds iapkV ¼lanHkZ la[;k 31@99½ dks izdkf'kr djrh gS tks

dsUnzh; ljdkj dks 3@2@2012 dks izkIr gqvk FkkA

[Qkby lañ ,y&30011@22@99&vkbZ vkj ¼,e½]

tksgu rksiuks] voj lfpo

New Delhi, the 3rd February, 2012

S.O. 833.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No........31/

1999....) of the Central Government Industrial Tribunal/

Labour Court Kolkata now as shown in the Annexure in

the Industrial Dispute between the employers in relation to

the management of M/s. Oil & Natural Gas Corporation

Ltd. (West Bengal) and their workman, which was received

by the Central Government on 3/02/2012

[File No. L-30011/22/99-IR (M)]

JOHAN TOPNO, Under Secy.

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL

AT KOLKATA

Reference No. 31 of 1999

Parties:

Employers in relation to the Management of

The Regional Director, O.N.G.C.

AND

Their Workmen

Present: Justice Manik Mohan Sarkar

........Presiding Officer

APPEARANCE:

On behalf of the

Mr. Pradeep Kumer Das,

Management

Chief Manager (HR).

On behalf of the

Mr. Paritosh Das, Joint

Workmen

Secretary of the workmen

union.

State:

West Bengal.

Industry:

Petroleum & Natural Gas.

Dated: 6th January, 2012.

AWARD

By Order No. L-30011/22/99-IR(M) dated

25.08.1999 the Government of India, Ministry of Labour

in exercise of its powers under Section 10(1) (d) and (2A)

of the industrial Disputes Act, 1947 referred the following

dispute to this Tribunal for adjudication:

"Whether the action of the management of O.N.G.C.

Ltd., in effecting deduction from the salary of the

employee of O.N.G.C, CRBC, Calcutta from August

1998 to fund O.G.N.C. self contributory post

retirement and death in service benefit scheme

without any consent of the individual employees is

legal and justified? If not, to what relief are the

employees entitled to?"

2. In their written statement of claim, the workmen

union submitted that the management of O.N.G.C forcibly

started deduction from the monthly salary of its employees

without taking individual consent, in the name of

contribution to self Contributory Post Retirement and Death

in Service benefit Scheme (P.R.B.S. Scheme) since August,

1988 as per in-house Office Order No. 11(23)/97-EP dated

6th August, 1998 but such deduction was started without

issuing any circular to the employees on that subject.

Accordingly, the employees raised their objection and

protested against such illegal deduction on getting

information about the same after getting pay slip of August,

1998, but ignoring their objection and protest, the

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

2061

management Company continued such deduction. The

workmen union has given a brief fact about the scheme by

stating that P.R.B.S. Scheme made applicable and

compulsory to all existing employees in regular service of

the Company with effect from 16.11.1995 as being the

effective date and besides monthly rate of contribution from

the monthly salary in reference to paragraph 2.1 of the said

Office Order, all employees were subjected to payment of

additional contribution from time to time to make the

requirement relating to the funding of the scheme and the

said scheme was based on voluntary contribution by the

member employees and it was detected in paragraph 6 that

no contribution would be made by O.N.G.C. towards the

scheme except a token contribution of Rs. 100/- per annum

and that no other financial liability on account of the scheme

would devolve on O.N.G.C. or Government of India. The

employees of O.N.G.C. immediately raised their voice

against such illegal deduction and submitted application

to the authorities of the O.N.G.C., to the Secretary of the

Ministry of Petroleum & Natural Gas and Ministry of

Labour, both Government of India. But the management

Company did not give any reply to the same and continued

deduction. Consequently, in view of the drawbacks of the

non-statutory P.R.B.S. Scheme, the workmen union was

compelled to raise the issue before the Regional Labour

Commissioner (Central) at Kolkata where the management

of O.N.G.C. was summoned through notice and the

management Company filed their written reply and

thereafter the conciliation proceeding was undertaken but

ended in failure and a report was sent to the Ministry of

Labour, Government of India, New Delhi which

subsequently got the matter vetted by the Ministry of

Petroleum & Natural Gas and referred the issue before this

Tribunal. The workmen union apprehends that P.R.B.S.

Scheme being non-statutory, the amount which has been

and is being deducted from the salary of the employees

might be swindled, defalcated or lost at any point of time

and in the event of such miss-happening, management of

O.N.G.C., Ministry of Labour and Ministry of Petroleum

and Natural Gas or any other authority of the Government

of India would not take any administrative responsibility

and financial liability and so the workmen union has prayed

for an order to hand over all amount of pension cost of

uniform which has been transferred/deposited to the said

P.R.B.S. Scheme.

3. In their written statement of reply, the management

of O.N.G.C. initially challenged the maintainability of the

present reference on various grounds and has stated that

the monthly contribution to P.R.B.S. Scheme commencing

from August, 1998 is being done in terms of Office Order

dated 06.08.1998 and there is no basis to content to take

individual consent of the employees. It is claimed that the

workmen union was well aware about the memorandum of

understanding arrived at in between the management of

O.N.G.C, and the employees represented through the

recognized union on 19.07.1998 at all India level on O.N.G.C.

Self-contributory Post Retirement and Death in Service

Benefit Scheme (P.R.B.S.) for the unionized categories of

employees. The management Company has denied the claim

of the employees that they are entitled to get back all the

amount deducted from their salary alongwith interest. It is

stated that P.R.B.S., is applicable and compulsory to all the

unionized categories of the employees in regular service of

the Company and the unions were in favour of the said

scheme and consequently a memorandum of understanding

was signed by and in between the management and the

unions on 19.07.1998 and the management Company denied

any contrary to the said P.R.B.S. Scheme. The Company

also denied the allegation that such P.R.B.S. was not

circulated and that the deduction in view of the said scheme

was illegal and the allegation of forcefully diverting the

monetized value as having no basis. The management

Company has thus prayed for refusal of the claim of the

workmen union as being unjustified and barred in view of

the order of the Hon'ble Supreme Court and also challenged

the maintainability of the reference.

4. The workmen union has filed a rejoinder denying

the contents of the written statement of reply of the

management Company and claimed that the matter pending

before the Hon'ble Supreme Court of India is something

different from the related matter in this reference and

reproduced the story made in the written statement of claim.

5. So, in the present reference it is found that the

employee members of the present workmen union have

concentrated their objection to the manner of deduction

though they have not raised any voice against the existence

of such P.R.B.S. Scheme. It is repeatedly claimed that such

a scheme affecting the salary of the employees of the

O.N.G.C. by way of making some deduction though under

a scheme, cannot be compulsory one and the Company

must seek consent or option from the employees to be

included in the said scheme and the workmen union also

claimed that such scheme should be optional as the scheme

is a non-statutory one. It is further claimed by the workmen

union that the scheme is a self-contradictory one as in one

place, the membership was made compulsory and in another

portion it has been stated that the scheme was based on

voluntary contribution of the member employees. It is also

claimed by the said workmen union that the P.R.B.S. having

no statutory force or legislative support, it cannot be

forcefully introduced on the employees of the Company

and it should be optional since the scheme is based upon

some deduction from the salary of the employees besides

normal monthly contribution statutorily being done and thus

the management Company has forcefully deprived the

employees to their right and property and benefits. The

authorized representative of the workmen union has

submitted that the employees of the Company are

apprehensive and afraid of crores of rupees collected from

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THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

such deduction may be swindled, defalcated or lost and in

that case the O.N.G.C. has declared non-responsibility or

no liability for such happenings.

6. The initial dispute raised from the side of the

workmen union was against the deduction made by the

management of O.N.G.C. from the salary of the employees

of O.N.G.C., C.R.B.C., Kolkata on and from August, 1998

for funding the O.N.G.C. Self Contributory Post Retirement

and Death in Service benefit Scheme and it is specifically

submitted by the workmen union that such deduction can

only be made after taking consent of the employees. In

short, the workmen union claimed that obtaining of consent

is a pre-condition to the deduction under the said P.R.B.S.

and that is not being done by the management of O.N.G.C.

It is further submitted that several employees of O.N.G.C.

has made individual appeal through applications to the

authority of the O.N.G.C. expressing desire not to be a

member of the scheme and requested the management not

to deduct any amount towards the alleged contribution to

the P.R.B.S. So, it is found that the workmen concerned

practically claimed that the deduction from their respective

salaries will be subject to their own volition or exercising

of consent and it cannot be done suomoto by the

management of O.N.G.C. In reference to the same the

authorized representative of the workmen union submitted

that P.R.B.S. introduced by the O.N.G.C. makes the

membership compulsory in respect of the workers working

on and from 16.11.1995, but at the same time has made

the provision in the said scheme that the scheme would be

passed on voluntary contribution by the member

employees. It is further claimed that the P.R.B.S. as

introduced by the O.N.G.C. has no legislative support nor

the Petroleum and Natural Gas, Government of India, New

Delhi issued any instruction or approval for implementation

of the said scheme and thereby it is claimed that the

fundamental right assured under Article 14 of the

Constitution of India cannot be violated by the act of the

O.N.G.C. by a forcible deduction from the salary of the

employees for funding the said scheme and thereby the

management of O.N.G.C. has forcefully depriving the right

to property and benefits of its employees.

7. The workman union has further expressed concern

apprehending fraudulent handling of the fund so collected

through deduction from salary of the employees towards

P.R.B.S. and has claimed protection from apprehending

fraud and malpractice in respect of handling the fund so

collected.

8. On the other hand, the authorized representative

of the management submitted that the scheme was

introduced in the nature of welfare activity of the employees

of the management Company and it was not meant for own

benefit of the Company and it was a product of

memorandum of understanding dated 19.07.1998 reached

in between the management and the representative of the

recognized unions. It is also claimed that such deduction

is being made on the basis of consent of the unions made

thereto and the said benefit of the scheme was widely

discussed in such bipartite talk before reaching to the

conclusion for such benefit. It is further claimed by

Mr. Pradeep Kumar Das that the representation in the

memorandum of understanding was made by the majority

recognized unions which represented about 98% employees

of the O.N.G.C. and such recognized unions insisted for

continuation of the scheme on their volition. It is further

claimed that such representative of the major recognized

union consented for making the scheme applicable and

compulsory to all the existing employees in regular service

of the Company and on the effective date of the claim viz.

16.11.1995, the date from which the Employees Pension

Scheme was notified by the Government of India. It is

further submitted that P.R.B.S. was formulated with the

basic objective to ensure welfare at the post retirement stage

and also in case of death in service of the employees and

also to meet socio-economic needs and welfare covering

risk factor in the event of death/permanent disabilities in

service. By discouraging concern and apprehension of the

workmen union he has submitted that the working force or

infrastructure of the P.R.B.S. in the O.N.G.C. has been

caused by positive and proactive role by the O.N.G.C. by

providing sufficient man-power and other facilities to

enable the trust entrusted with the administration and

mobilization of the P.R.B.S. to discharge its reponsibilities.

9. From the manner of submission on behalf of the

sponsoring workmen union in the present reference, it is

found that in respect of promulgation and implementation

of the P.R.B.S. the workmen union has no objection or

protest, but it is claiming that contribution to the pension

scheme as provided under P.R.B.S. should not be

compulsive in natures it being acted upon by the

management of O.N.G.C. and it should be subjected to the

display of consent of each and every employee of the

O.N.G.C. since there are some compulsory deduction or

contribution from the salary already existing since before

the introduction of the P.R.B.S.

10. The sponsoring workmen union has never stated

that introduction of P.R.B.S. in O.N.G.C. in respect of post

retirement benefit and death in service scheme was not a

product of a bipartite settlement by way of memorandum

of understanding. It is also not denied by the workmen

union about the claim of the management of O.N.G.C. that

in the said bipartite settlement the majority of the union or

duly recognized union participated and the matter was

widely discussed there before the consent was displayed

by the said workmen union for implementation of the said

scheme. The provision of the scheme provided that the

membership would be compulsory in respect of the

employees and on and from 16.11.1995 the date of

¹Hkkx II—[k.M 3(ii)º

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2063

promulgation of the scheme in O.N.G.C. also provided for

contribution to the said scheme though the word voluntary

was added to the contribution concerned. Since the

promulgation of the scheme in O.N.G.C. is a product of

bipartite settlement, this Tribunal should not interfere there

and if the workmen union in this reference feels aggrieved

about the said scheme it may raise the matter in that bipartite

level for discontinuation of the scheme or some

modification or alteration of the terms of the said scheme.

In other words, the remedy of the workmen union is

available only at the stage of that bipartite talk over the

same and since the bipartite settlement or the memorandum

of understanding is not found to be with some evil desire,

this Tribunal does not want to interfere since the

management has already stated that it was introduced for

the welfare of the employees of O.N.G.C. at the post

retirement stage.

11. So, I do not find any reason to interfere and the

deduction made by the management of O.N.G.C. from the

salary of the employees of O.N.G.C. from August, 1998 to

fund Self Contributory Post Retirement and Death in

Service Benefit Scheme without consent of the individual

employees is found to be legal and justified since the legal

force has been achieved as the said scheme is a product of

bipartite settlement. Consequently, the employees

concerned are not entitled to any relief in the present

reference.

JUSTICE MANIK MOHAN SARKAR, Presiding

Officer

Dated Kolkata,

The 6th January, 2012.

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New Delhi, the 3rd February, 2012

S.O. 834.—In pursuance of Section 17 of the

Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No.

...........157/2003............) of the Central Government Industrial

Tribunal/Labour Court Nagpur now as shown in the

Annexure, in the Industrial Dispute between the employers

in relation to the management of M/s Bhilai Steel Plant

(Bhilai) and their workman, which was received by the

Central Government on 03.02.2012.

[F.No. L-29012/13/2003-IR(M)]

JOHAN TOPNO, Under Secretary

ANNEXURE

BEFORE SHRI J.P. CHAND, PRESIDING OFFICER,

CGIT-CUM-LABOUR COURT, NAGPUR

Case No. CGIT/NGP/157/2003 Date: 13.01.2012.

Party No. 1 :

The Managing Director, Bhilai Steel

Plant Bhilai, Distt. Durg, Chhattisgarh

Versus

Party No. 2 :

Shri Babu Ram S/o. Shri Bukhia, Ex.

Senior Technician, Arumurukasa

Village, Distt. Durg, Chhattisgarh.

AWARD

(Date: 13th January, 2012)

In exercise of the powers conferred by clause (d) of

sub-section (1) and sub-section 2(A) of section 10 of

Industrial Disputes Act, 1947 (14 of 1947) ("the Act" in

short), the Central Government has referred the industrial

dispute between the employers, in relation to the

management of Bhilai Steel plant and their workman

Shri Baburam Bukhia, for adjudication, as per letter

No. L-29012/13/2003-IR (M) dated 04.06.2003, with the

following schedule:—

"Whether the action of the management of the Bhilai

Steel Plant in superannuating Sh. Baburam w.e.f.

30.01.2002 by ignoring the decision/outcome of the

Medical test is legal & justified? If not, to what relief

the workman is entitled for?".

2. On receipt of the reference, the parties were noticed

to file their respective statement of claim and written

statement and accordingly, the workman, Shri Baburam,

("the workman" in short) filed his statement of claim and

the management of the Bhilai Steel Plant, ("Party No. 1"

in short) filed its written statement.

The case of the workman as projected in the statement

of claim is that he was working as an attendant at Rajhara

Mines, owned by the Party no.1 and he is an uneducated

Schedule Caste person and as such, at the time of his

employment, the office staff of party no.1 entered some

date of birth as assessed by his appearance and in the year

1982, the party no.1 called for an age proof certificate and

accordingly, he got his age proof certificate from the village

records and submitted the same on 22.01.1983, according

to which, his date of birth was 12.10.1948 and the said

date of birth was never disputed by party no.1 in any manner

and they entered the said date of birth as his approved date

of birth and the documentary evidence and the own records

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THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

of party no.1, established the fact that his date of birth

presumed as 08.11.1937, solely for the sake of his impugned

premature superannuation was never in operation and quite

contradictory to the own medical officer's report dated

05.07.1984 and 25.11.1993 and letter dated 13.02.1999 of

party no.1 and according to the medical report dated

05.07.1984 of the own medical officer of party no.1 his age

was 36 years, which corroborates the date of birth as

mentioned in the village certificate and in the medical

officer's report dated 25.11.1993, it was mentioned that,

"He appears to be 46 years of age," which indicates that

the age was determined on the basis of his appearance and

such determination of age is always prone to differ by an

year or two, but the same cannot relate to the year 1937, as

assumed by party no.1 for his superannuation, rather the

same is nearer to his actual date of birth i.e. 12.10.1948 and

the letter dated 13.02.1999 which was addressed by party

no.1 to the Industrial Medical Officer, and by which, several

employees including himself were directed for medical

examination, his date of birth was mentioned as 12.10.1948,

which clearly proves that the assumed date of birth by

party no.1 is totally untenable and illegal.

The workman has prayed to declare the order of his

superannuation as null and void and for his reinstatement in

service w.e.f. 31.01.2000 and payment of all wages, allowance

and monetary and non-monetary benefits.

3. The party no.1 in its written statement has pleaded

inter-alia that the workman raised the present dispute

challenging his superannuation on attaining the age of

superannuation and the terms of reference is vague and the

terms of the reference is silent about the claim of the workman

regarding his date of birth and the particulars of the so called

decision/outcome of the medical test and is therefore

incapable of being adjudicated. It is further pleaded by the

party no.1 that the workman was initially appointed on

Nominal Muster Roll (Casual Basis) and he was regularized

w.e.f. 14.11.1961 and thereafter by order dated 05.02.1964, he

was appointed as a Khalasi and he was promoted as a helper

w.e.f. 17.10.1966 and his services had been terminated w.e.f.

17.10.1966, but considering the mercy appeal submitted by

the workman, he was re-appointed as helper vide order dated

26.08.1968 and he reported for duty w.e.f. 31.08.1968 and the

workman submitted his attestation form, where in, his age

was mentioned as 25 years as on 08.11.1962 and accordingly,

his date of birth was calculated, which was found to be

08.11.1937 and as per the CPF declaration and nomination

form filled in on 13.01.1978, the workman had declared his

date of birth as 27.07.1937, which had been counter signed

by personnel officer and the said date of birth is in conformity

with the age given in the attestation form and the workman

would have been retired on attaining the age of 58 years on

superannuation w.e.f. July, 1995, but due to oversight, he

could not be retired on the aforesaid date and continued in

service and with regard to determination of date of birth

detailed instructions have been given vide circular no. M &

R-52/82 dated 17.05.1982 and as per clause 4.10 of the said

circular, the date of birth of the employees, whose date of

birth has already been recorded in the descriptive roll/

declaration form/service book and signed/thump impressed

by him, the date so received shall be deemed as final and

binding and the workman was served a letter on 28.11.1968

for recording his date of birth and qualification in the official

records, but he did not respond and on 29.11.1982, he was

issued another letter to submit documentary proof in this

regard, but the workman did not submit any authentic record

with regard to his date of birth and the date of birth i.e.

08.11.1937 was calculated on the basis of the own declaration

of the workman in the attestation form and the same is binding

on him as per law and the rules of the company and in view

of the same, the workman is not entitled to any relief.

4. The parties in support of their respective stand have

adduced oral evidence besides placing reliance on

documents. The workman has examined himself as a witness

and in his examination-in-chief which is on affidavit, he has

reiterated the facts mentioned in the statement of claim.

However, in his cross-examination, the workman has admitted

that he doesn't know about the filing of the affidavit and the

affidavit was drafted by his counsel and he was engaged in

the year 1962 but he cannot say his age at the time of his

engagement and he doesn't know if any document was given

by him at the time of his appointment and he had not filed

any document during his service tenure and he cannot say

when he completed 58 years of age and he doesn't know, if

he completed the age of 58 years in the year 1995.

5. One Mahadeo, a Junior Manager of Bilai Steel Plant

was examined as a witness on behalf of the party no. 1. His

examination-in-chief on affidavit is exactly in the line of the

stand taken by the party no. 1 in the written statement. In his

cross-examination, the management witness has stated that

the medical certificate, Ext. W-6 was issued after test and in

that certificate the date of birth of the workman has been

mentioned as 05.08.1948 and the certificate issued by the

Gram Panchayat, Ext. W-8 shows that the date of birth of the

workman is 21.10.1948. He has further admitted that the

management assumed the date of the birth of the workman

at the time of appointment from his physical appearance,

since he had not produced any document in support of his

date of birth.

6. At the time of argument, it was submitted by the

learned advocate for the workman that at the time of

appointment of the workman, the age of the workman was

assessed on the basis of his appearance by the management

and the management witness in his cross-examination has

admitted the same and being asked by the management to

produce document in proof of his date of birth, the workman

¹Hkkx II—[k.M 3(ii)º

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2065

produced a certificate obtained from the Grampanchayat, in

which his date of birth was mentioned as 12.10.1948 on

22.01.1983 and the said certificate was never disputed by the

management and management also entered the same as the

approved date of birth of the workman and from the evidence

on record it is clear that the date of birth of the workman is

12.10.1948 and the certificate issued by the Grampanchayat

is admissible and prevails over entry in school register and

the date of birth of the workman as assumed by the

management for premature superannuation of the workman

is totally untenable and illegal and as such, the reference is

to be answered in affirmative.

In suppport of such contentions, reliance was placed

on the decisions reported in 2010 (1) Mh. LJ 41 (CIDCO Vs.

Vasudha Goraknath Mandevelkar) and Judgement of the

Hon'ble Jabalpur High Court in letters Patent Appeal no. 409

of 2000 (Steel Authority of India Vs. Govind Singh).

7. Per contra, it was submitted by the learned advocate

for the party no. 1 that the workman in his evidence was

unable to tell his age and date of birth and he also failed to

produce the original of Ext. W-8 and the workman was initially

appointed on casual basis and he was regularized w.e.f.

14.11.1961 and the workman submitted the attestation form,

Ext. M-6 at the time of his employment having his signature

and in that attestation form, the age of the workman was

recorded as 25 years as on 08.11.1962 and accordingly, his

date of birth was calculated as 08.11.1937 and in the

declaration/nomination form for CPF, Ext. M-5, the workman

had mentioned his date of birth as 27.07.1937 and the

superannuation age of the employees of the party no. 1 is 58

years and the workman attended 58 years of age on

30.11.1995, but due to oversight, he could not be retired and

continued in service till 31.01.2002 and he availed the benefit

of extra services from 30.11.1995 to 31.01.2002 and as per

clause 4.10 of the circular dated 17.05.1982, employees who's

date of birth has been recorded in the descriptive roll/

declaration form Service/book and signed/thump impressed

by him, the date so recorded shall be deemed as final and

binding and as such, the workman is not entitled for any

relief. It was also submitted that there was delay in seeking

the relief for alteration of date of birth and on that ground

also, the reference is to be answered in negative.

In support of such contentions, reliance was placed

on the decisions reported in (1993) 2 SCC 162 (Union of

India Vs. Harnam Singh) and (2005) 6 SCC 49 (State of UP

and another Vs. Shivnarayan Upadhyaya).

8. Keeping in view the principles enunciated by the

Hon;ble Courts in the decisions cited by the learned

advocated for the parties, now the present case in hand is to

be considered.

9. First of all, I think it apropos to mention the schedule

of reference made by the Central Government. The Central

Government has made the reference for adjudication as to

whether the action of the management in superannuating

the workman w.e.f. 30.01.2002 by ignoring the decision/

outcome of the medical test is legal and justified. It is to be

mention here that nothing has been mentioned as to when

the said mendical test was done or conducted. It is also well

settled that the Tribunal cannot go beyond the schedule of

reference. In view of the said settled principles of law, there

is no question of consideration of the certificate granted by

the Grampanchayat regarding the date of birth of the

workman, while deciding the reference. Therefore, with

respect, I am of the view that the decision reported in 2010

(

)

Mh L.J.-41 (Supra) has no application to the present case in

hand.

10. The workman has not pleaded a single word in the

statement of claim regarding any medical test conducted for

determination of his age. The documents Ext. W-6 and Ext.

W-7 shows that the age of the workman was recorded as 36

years and 46 years on 05.07.1984 and 25.11.1993 respectively.

However, it is found that the said medical certificates are not

certificates regarding the determination of date of birth by

any medical examination. Ext. W-7 shows that the same is a

report dated 25.11.1993 regarding the medical examination

under Rule 29 B of the Mines Act and in that document, it

has been mentioned that the workman appears to be 46 years

of age. The medical certificate dated 05.07.1984 has not been

produced.

11. According to the claim of the workman, his date of

birth is 12.10.1948. In his evidence, he has not been able to

say what was his age at the time of his joining the service

and when he attained the age of 58 years. It is not disputed

that the workman was regularized in service on 14.11.1961.

Document Ex. M-4, shows that the workman was regularized

on 14.11.1961 and prior to that he was engaged on nominal

muster rolls and he also reported on for duty on 16.11.1961.

It is also found from the document Ext. W-6 that the workman

was working from 03.03.1959 to 14.03.1961 as Mazdoor Grade-

I of Rajura Mines. If the claim of the workman that his age

was just above 10 years on 03.03.1959 and was just above 13

years on 16.11.1961. It is never the case of the workman that

he joined in the service at the age of 10 years. So the claim of

the workman that his date of birth is 12.10.1948 seems to be

quite improbable.

12. It is necessary to mention here that though the

workman has claimed that his date of birth is 12.10.1948, it is

found from Ext. W-8, the certificate obtained from

Grampanchayat that the date of birth of the workman has

been mentioned as 21.10.1948 in the same, which is quite

inconsistent with the plea of the workman.

13. Circular No. Per/RR/5020 dated 24th March, 1982

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[PART II—SEC. 3(ii)]

is a circular issued by the Steel Authority of India Limited in

respect of rules regarding determination of date of birth.

According to clause 4.1 of the said circular, every employee

is required to declare his date of birth in the application or

the prescribed form before his first appointment and also to

produce confirmatory evidence in support of his declaration.

Clause 4.4 says that in case of those who had not passed

matriculation/school final examination/equivalent

examination at the time of entering the service, documents

i.e. school certificate from educational institutional where

the candidate/employee studied, service record/service

certificate issued by previous employers in case of

candidates/employees who had in employement under

public sector enterprises/Govt. departments or a Local body

prior to joining SAIL, attested extracts from register of birth

and death maintained by Gram Panchayats, Municipality,

Municipal Corporation, Town/Notified Area or an

appropriate authority, Baptism Certificate from Church in

case of Christian employees/horoscope in case of Hindu

employees and certificate of birth from Government hospitals

were the candidate/employee was born containing date of

birth may be excepted as evidence of age.

Clause 4.6 says that where the employer has not passed

Matriculation/School Final Examination/equivalent

examination or has not studied in a school and none of the

documents indicated in 4.4 can be produced by him, an

affidavit attested by a Magistrate to that effect shall be given

by him alongwith the declaration of his age which after due

corroboration by a Medical Board Nominated by the

Management, may be accepted as the proof of age. In case

of differences between the age declared in the Affidavit and

the age certified by the Medical Board, the higher age shall

be accepted and recorded.

Clause 4.7 says that wherever the Medical Board

Certifies a particular age in respect of an employee vide para

4.6 the date of birth shall be taken as the corresponding date

after deducting the number of years representing his age

from the date of his medical examination. For example, if the

date of medical examination of an employee is 16th July,

1981, and the Medical Officer of the Company certifies the

age of the employee as 25 years on the date of medical

examination, the date of birth to be recorded in the personal

record of the employee, shall be 16.07.1956.

Clause 4.8 says that in case where the Matriculation

or School Final or equivalent examination certificate or any

acceptable document as produced by the employee/

candidate, indicates only age in terms of the year and month,

the date of birth for the purpose of serving records may be

taken as the last date of such month. If age is mentioned at

after deducting the given age from the concerned year and

the last date of the year so arrived at, shall be taken as the

date of birth.

Clause 4.9 says that once the date of birth is accepted

and recorded in accordance with provisions of para 4.4 at

the time of joining or thereafter or as determined as per

provisions of para 4.6 it shall become final and binding.

According to Clause 4.10 which is in respect of those

employees whose date of birth has already been recorded in

the descriptive roll/declaration form/service book of the

employee and signed/thumb impressed by him, the date so

recorded shall be deemed as final and binding.

The workman has not produced any of the documents

as mentioned in clause 4.4 and 4.6 of the circular. There was

also never any determination of the age of the workman by

any medical board as mentioned in clause 4.6 of the circular.

On the other hand, it is found from the document, Ext. M-6,

the attestation form that the workman has mentioned his age

as 25 years on 08.11.1962. The said document has been signed

by the workman. So the management was right to hold the

date of birth of the workman to be 08.11.1937. As per clauses

4.9 and 4.10 of the circular dated 24.03.1982, the date of birth

of the workman so recorded became final and binding. Hence,

it is ordered:—

ORDER

The reference is answered against the workman. The

workman is not entitled for any relief.

J.P. Chand, Presiding Officer

ubZ fnYyh] 3 Qjojh] 2012

dkñvkñ 835.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947

dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj eSllZ f'ko nÙk 'kekZ

[knku ekfyd D;ksU>j ds izcaèr= ds lac) fu;kstdksa vkSj muds

deZdkjksa ds chp vuqcaè esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj

vkS|ksfxd vfèdj.k@Je U;k;ky; Hkqousoj ds iapkV ¼lanHkZ la[;k 29@

2003½ dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 3&02&2012 dks

izkIr gqvk FkkA

[Qkñ lañ ,y&29011@30@2003&vkbZ vkj ¼,e½]

tksgu rksiuks] voj lfpo

New Delhi, the 3rd February, 2012

S.O. 835.—In pursuance of Section 17 of the Industrial

Disputes Act, 1947 (14 of 1947) the Central Government

hereby publishes the Award (Ref. No. .............. 29/

2003..............) of the Central Government Industrial Tribunal/

Labour Court Bhubaneswar-2 now as shown in the Annexure

in the Industrial Dispute between the employers in relation

to the management of M/s Shiv Dutt Sharma, Mines owner,

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

2067

(Keonjhar) and their workman, which was received by the

Central Government on 01.02.2012.

[F. No. L-29011/30/2003-IR(M)]

JOHAN TOPNO, Under Secretary

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-

CUM-LABOUR COURT BHUBANESWAR

PRESENT:

Shri J. Srivastava,

Presiding Officer, C.G.I.T.-cum-Labour

Court, Bhubaneswar.

INDUSTRIAL DISPUTE CASE NO. 29/2003

Date of Passing Award-13th January, 2012

Between:

M/s. Shiv Dutt Sharma, Mines Owner,

At./Po. Barbil, Dist. Keonjhar,

1st Party—Management.

AND

Their workman, Sri Damudhar Sethi,

represented through the General Secretary,

North Orissa Workers Union,

Po. Barbil, Dist. Keonjhar.

2nd Party—Union.

Appearnaces:

None

: For the 1st Party—

Management.

Sri B.S. Pati,

: For the 2nd Party—

General Secretary,

Union.

North Orissa Workers

Union.

AWARD

The Government of India in the Ministry of Labour

has referred an industrial dispute existing between the

employers in relation to the management of Shiv Dutt Sharma,

Mines Owner, At./Po. Barbil and their workman in exercise

of the powers conferred by clause (d) of

sub-section (1) and sub-section (2A) of Section 10 of the

Industrial Disputes Act, 1947 vide letter No. L-2901/30/

2003-IR(M), dated 18.8.2003.

2. The dispute, as referred to, is to the following

effect:—

"Whether the action of the management of M/s. Shiv

Dutt Sharma, Mines Owner, At./Po Barbil, Dist.

Keonjhar by terminating the services of

Sri Damudhar Sethi, Ex-Munshi w.e.f. 1.4.2001 without

giving any written order, serving any notice,

domestic inquiry and not observing the provisions of

I.D. Act is justified? If not, what relief the workman is

entitled to?

3. The disputant workman has filed his statement of

claim in which it has been stated that he joined the services

of the 1st Party-Management during February, 1985 as a

Munshi. He was getting the monthly salary of Rs. 1200/-

besides being entitled to provident fund, bonus, leave and

other benefits as admissible to similar employees. He

discharged his responsibilites with utmost sincerity and

honesty. He was never served with any charge-sheet nor

any domestic enquiry was conducted against him, but the

1st Party-Management on 1.4.2001 refused him employment

without assigning any cause. The Union on being informed

raised an industrial dispute, but due to adamant attitude of

the 1st Party-Management conciliation failed and

consequently the present reference was made. He was not

given any notice or written order prior to termination of his

services. The 1st Party-Management is guilty of violation

of the statutory provisions of Section 25-F and 25-G of the

Industrial Disputes Act. He was not even given any

retrenchment compensation in lieu of notice. Therefore, the

1st Party-Management be directed to reinstate the disputant

workman in his service with effect from 1.4.2001 with full

back wages and other consequential benefits.

4. The 1st party-Management has denied the

allegations made by the disputant workman and stated that

the 2nd Party-workman was working as a Munshi in the

mines of the 1st Party-Management at Nuagaon Mines from

November, 1988 to March, 1991. Again he worked during

April, 1996 to March, 2001. Thereafter he remained absent

from work on his own from March, 2001 and engaged himself

in collection of Hanuman money. He never joined the services

during the month of February, 1985. He received all his wages

and dues till he worked. The 1st party-Management has

never refused him employment. He himself has not turned

up after 31st March, 2001 and never requested for

employment. Since he was not terminated from service by

the 1st Party-Management, there was no need to give him

any notice or written order regarding termination of service.

There is no question of violation of any law or basic principles

of natural justice. Therefore he is not entitled to get any

relief as claimed by him.

5. This case was earlier decided exparte, but on the

writ application of the 1st Party-Management the exparte

award was set aside by the Hon'ble High Court of Orissa

vide order dated 8.8.2008. After the case having been

remanded for fresh hearing the 1st Party-Management

appeared and filed written statement the contents of which

have been summarily quoted above. The 1st Party-

Management thereafter appeared for few dates on notice

being sent to the parties, but except those few dates the 1st

Party-Management remained absent from 27.11.2008 to

16.12.2009. Thereafter both the parties appeared for four

consecutive dates. On 20.4.2010 one Advocate on its behalf

appeared and filed a petition for time, but its petition was not

entertained as the 1st Party-Management was not permitted

to represent through Advocate and the case was fixed for

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THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

evidence. On the next date i.e. on 22.6.2010 both the paties

appeared, but due to Presiding Officer being on leave the

case was adjourned. Thereafter the 1st Party-Management

remained absent from 12.7.2010 to 12.10.2011 till the hearing

of the case was concluded after arguments though notices

through ordinary as well as registered post were sent to it.

6. Since the 1st Party-Management has not taken part

in the proceedings of the case and the case was earlier set

exparte against it, the case was proceed as such.

7. The disputant workman filed his sworn affidavit in

support of his claim.

8. The 1st Party-Management has not adduced any

evidence.

9. The allegation of the disputant workman is that he

joined the service under the 1st Party-Management during

the month of February, 1985 as Munshi and was in receipt of

monthly salary of Rs. 1200/- besides getting P.F., bonus,

leave and other benefits admissible to similar employees. He

continued in service till 31st March, 2001, but was refused

employment by the 1st Party-Management with effect from

1.4.2001 without any reason or rhyme. During tenure of his

employment he was never served with any charge-sheet nor

any domestic enquiry was conducted against him. He was

not even given any notice or compensation. As such refusal

of employment is illegal and arbitrary and comes under the

term of "retrenchment" as defined under sub-section (oo) of

Section-2 of the Industrial Disputes Act, 1947. The 1st Party-

Management is thus guilty of violation of the statutory

provisions of Section 25-F and 25-G of the Industrial Disputes

Act. The disputant workman in his afidavit has alleged and

proved the facts of the case as stated in his statement of

claim against which there is no evidence from the side of the

1st Party-Management. The 1st party-Management has itself

admitted that the disputant workman started working under

him from November, 1988 and continued till March, 1991. He

again started working from April, 1996 and continued till

March, 2001. Therefore as per its admission it is established

that the disputant workman was terminated from service

without giving any prior notice and retrenchment

compensation as required under section 25-F of the Industrial

Disputes Act, 1947 as his case comes under the definition of

"retrenchment". Thus for violating the provisions of Section

25-F of the Industrial Disputes Act, termination of his service

becomes illegal and therefore the disputant workman is

entitled to be reinstated in service with effect from 1.4.2001

with full back wages and other consequential benefits after

adjusting the amount already paid to the disputant workman

under the orders of the Hon'ble High Court.

10. The 1st Party-Management is accordingly directed

to reinstate the workman and pay him back wages along

with consequential benefits as above within a period of three

months from the date of publication of award.

11. The reference is answered accordingly.

JITENDRA SRIVASTAVA, Priseding Officer.

ubZ fnYyh] 3 Qjojh] 2012

dkñvkñ 836.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj eSllZ iq"ijk Bsdsnkj

vkbZ vkS lh bafM;u ckSVfyxa IykV ekykiqje ds izca/kr= ds lac)

fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd

fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k@Je U;k;ky; bjukeqye

ds iapkV ¼lanHkZ la[;k 4@2007½ dks izdkf'kr djrh gS tks dsUnzh;

ljdkj dks 3@2@2012 dks izkIr gqvk FkkA

[Qkby lañ ,y&30011@41@2006&vkbZ vkj ¼,e½]

tksgu rksiuks] voj lfpo

New Delhi, the 3rd February, 2012

S.O. 836.—in pursuance of Section 17 of the Industrial

Disputes Act, 1947 (14 of 1947), the Central Government

hereby publishes the award (Ref. No........4/2007....) of the

Central Government Industrial Tribunal/Labour Court

Ernakulam now as shown in the Annexure in the Industrial

Dispute beween the employers in relation to the management

of M/s. Pushparaj, Cont. IOC Indane Bottling Plant & IOC

Bottling Plant (Malappuram) and their workman, which was

received by the Central Government on 3/02/2012

[File No. L-30011/41/2006-IR (M)]

JOHAN TOPNO, Under Secretary

ANNEXURE

IN THE CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, ERNAKULAM

Present:

Shri D. Sreevallabhan, B.Sc. LL.B., Presiding

Officer (Thursday the 29th day of December,

2011/8th Pausha, 1933)

I.D.4/2007

Union

: 1.

The Secretary,

IOC Bottling Plant Workers Union (CITU),

IOC, Chelari,

Malappuram (Kerala).

2. The Secretary, BMS, M/s. IOCL,

Chelari Plant,

Malappuram.

3. The Secretary, STU,

IOCL, Chelari Plant,

Malappuram.

4. The Secretary,

Independent Plant Workers Association

(IPWA), IOC, Chelari,

Malappuram (Kerala).

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

2069

5. The Secretary,

INTUC Union, IOC, Chelari,

Malappuram (Kerala)

By Adv. Shri H.B. Shenoy.

Managements :

Shri Chelangat Pushparaj,

Contractor,

Indane Bottling Plant,

IOC, Chelari,

Malappuram (Kerala).

By Adv. Shri C. Anilkumar

2. The Plant Manager,

IOC Bottling Plant,

Chelari, Malari, Malappuram.

(Impleaded as per Order on IA 21/2008).

By M/s. Menon & Pai.

This case coming up for final hearing on 22.12.2011

and this Tribunal-cum-Labour Court on 29.12.2011 passed

the following.

AWARD

The Government of India, Ministry of Labour &

Employment, in exercise of the powers conferred by clause

(d) of sub-section (1) and sub-section (2A) of Section 10 of

the Industrial Disputes Act, 1947 (14 of 1947) referred the

industrial dispute for adjudication to this Tribunal vide order

No. L-30011/41/2006-IR(M) dated 27.09.2006.

2. The dispute is:

"Whether the management of M/s. Chellangatt

Pushparaj, Contractor, IOC Bottling Plant, Chelari is

justified in not revising the wages of the workers

engaged in Haulage, Cylinder and House Keeping

Workers for the year 2005-06. If not, to what relief the

workers are entitled?"

3. The industrial dispute was raised by five unions for

the revision of wages and other benefits of the workmen

engaged by the managment for the works of handling gas

cylinders, haulage, house keeping and the miscellaneous

works in the Indian Oil Corporation Bottling Plant at Chelari.

4. After appearance the five unions have jointly filed

claim statement with the prayer to revise the pay by 50%,

DA by 90%, House Rent Allowance by 15%, Incentive to

0.15 Rupee per cylinder for filling cylinders exceeding 3,00,000

lakhs, Washing Allowance to Rs. 100/- and Canteen Money

to Rs. 10/- per day w.e.f. 01.04.2005. The allegations made in

a nutshell are that the management is the contractor/

immediate employer engaged for providing labour to the

principle employer, the Indian Oil Corporation Bottling Plant

at Chelari. The terms and conditions of service of the

workmen are governed by tripartite settlements entered into

by the management and the management of Indian Oil

Corporation Bottling Plant, Chelari as the employer with the

unions herein representing the workmen. Last of such

settlement was entered on 08.07.2003 in the presence of the

Assistance Labour Commisioner (Central) Kochi. It was for

the period from 16.06.2002 to 15.06.2004. After the expiry of

the period the unions had submitted Charter of Demands for

revision of wages and othere benefits for the year 2004-

2005. Negotiations over it were turned out to be unsuccessful

and the conciliation proceedings failed due to the non co-

operation and recalcitrant attitude of the management. While

so as the year 2004-2005 went by unions had submitted their

charter of demands for revision of wages and other benefits

for the year 2005-2006. As no settlement could be arrived at

through negotiations, conciliation proceedings was initiated

by the Assistant Labour Commissioner (Central), Kochi.

During the course of the conciliation proceedings there was

a proposal from the side of the management to hike the

wages by giving 18.71% to 24% increase ranging from Rs.

825/- to 950/-. Initially unions declined to accede to it. But

later it was accepted on 24.02.2006. But the management

went off from the proposal and thereby the conciliation

proceedings failed. There was no revision of wages for over

a period of four years despite the submission of fresh charter

of demands by the unions. After the lapse of the tenure of

last settlement management is duty bound to revise the

wages in view of the considerable increase in the cost of

living after 15.6.2004 and the revision of wages for similarly

placed workers in other similar industries during that time.

5. The contentions put forward by the mangement in

the written statement are that the reference is not maintainable

since the unions which raised the industrial dispute are not

representing the majority of the workmen and hence not

competent to raise such a dispute. Management is the

contractor engaged by the Indian Oil Corporation for the

supply of labour for loading, unloading, handling and

housekeeping work of its LPG Bottling Plant at Chelari. But

he did not have the choice of engaging his own workers.

Initially the contract was for a period of one year commencing

from April 2002 and it was extended for a further period of

one year each on two occasions with the same rate of wages

and other conditions. After that a fresh contract was entered

into for a futher period of one year. The management after

entering into the contract had negotiations with the unions

and thereby a settlement was entered into on 08.07.2003 by

which considerable increase was given to the workmen in

the house keeping section for a period of two years ending

on 15.06.2004. As no increase in the rates was granted by the

Indian Oil Corporation the management was not in a position

to pay more to the workers. Fresh settlement could not be

arrived at because of the uncompromising stand of the unions

and not due to the non co-operation of the management in

the conciliation proceedings. The workmen were getting

much higher salary and other benefits than the similarly

placed workmen in other industries in the region. At any

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THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

point of time management was not in a position to grant

18.71% to 24% wage increase and such increase was not

agreed to by the management. As it was labour oriented

contract the contractor is unable to pay more by revising

wages unless there would be considerable increase in the

rates by the principal. There is no basis for the demand of

the unions for the revision of wages and the management is

not in a position to increase the wages and other benefits

from the prevailing position in 2003-2004.

6. Indian Oil Corporation Limited represented by its

Plant Manager, Indian Oil Corporation Bottling Plant, Chelari,

Malappuram, Kerala was sought to be impleaded by the

unions by filing I.A. 21/2008 stating that being the principal

employer it is a proper and necessary party for the proper

adjudication of the dispute in view of the provisions

contained in the Contract Labour (Regulation and Abolition)

Act, 1970 and a party to the tripartite settlements governing

the terms and conditions of service of the workmen. The I.A.

was allowed without any objection vide order dated

21.11.2008. After the impleadment as additional 2nd

management the Chief Plant Manager filed written statment

contending that the additional 2nd management is not a

necessary party since the reference relates to an industrial

dispute between the unions and the first management and

no relief is claimed by the unions as against the additional

2nd management. There exists no employer-employee

relationship between the additional 2nd management and

the workmen and hence there cannot be a valid industrial

dispute between them. Additional 2nd management awarded

the contract for handling gas cylinders, haulage,

housekeeping and miscellaneous works to the first

management and the same was executed with the workers

paid, controlled and supervised by the first management.

Their wages were fixed and revised based on the settlement

entered into between the unions and the first managemnet.

Additional 2nd management was not a party to the settlement.

It is required only to ensure the payment of minimum wages

to the workers as per the provisions applicable under the

labour laws. There was no complaint at any point of time

that the first management was paying less than the minumum

wages. The terms and conditions of wages are not as per

any tripartite agreement but only as per bipartite agreement

between the first management and the unions. The dispute

as to the revision of wages or as to any fresh settlement after

15.6.2004 is an issue between them only. Hence the unions

are not entitled to get any relief as against the 2nd

management.

7. No rejoinder was filed by the unions is spite of

granting sufficient opportunity.

8. For the purpose of deciding this reference one

witness was examined from the side of the unions as WW1

and Exts. W1 to W4 were got marked. No evidence, either

oral or documentary, was adduced from the side of the

managements.

9. The points for determination are:

Whether the unions are competent to

raise the industrial dispute and the

reference is maintainable?

Whether the first management is liable

to revise the wages of the workers

engaged in haulage, cylinder and house

keeping works for the year 2005-06 as

prayed for in the claim statement?

Whether the additional 2nd management

is a necessary party to this reference and

if so whether it can be made liable for

any relief?

Whether the first management is justified

in not revising the wages of those

workers for the year 2005-06 and if so

the what relief they are entitled?

10. Point No. 1: The reference was made at the

instance of five unions of the workers of the Indian Oil

Corporation Bottling Plant at Chelari. These unions were

representing the workers to enter into a settlement with

regard to the earlier revision of wages of those workers on

08.07.2003 and the same is evidenced by Ext. W1. Those

unions were representing them in the conciliation

proceedings and the same is evidenced by Exts. W2 to

W4. The contention that those unions are not competent

to raise the industrial dispute as they are not representing

the majority of the workmen is not substantiated by

adducing any evidence. At the time of argument learned

counsel for the first management was fair enough to submit

that the contention is not being pressed as it does not call

for any consideration in view of the facts and circumstances

in this case. There is no reason to hold that the reference

is not maintainable as there is no evidence to substantiate

the reason stated in the claim statement. Hence I hold that

the reference is maintainable.

¹Hkkx II—[k.M 3(ii)º

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2071

11. Point No. 2:—Union demand revision of wages

and other benefits of the workmen engaged by the first

management to carry out loading, unloading, handling and

housekeeping work in the LPG Bottling Plant at Chelari of

the Indian Oil Corporation impleaded as the additional 2nd

management. Revision is sought for only for the period

2005-06. The claim put forward in the claim statement is to

revise the basic pay payable to the workmen by 50%,

dearness allowance by 90%, house rent allowance by 15%,

incentives to Rs. 0.15 per cylinder for filling cylinders

exceeding 3,00,000 washing allowance to Rs. 100/- and

canteen money to Rs. 10 per day w.e.f. 01.04.2005.

12. The reasons stated by the unions for revision of

wages is that there was no revision of wages for over a

period of four years even though there was considerable

increase in the cost of living and there was revision of

wages in respect of the workers in similarly placed

industries during that period.

13. In order to have the revision of wages and other

benefits the unions must establish that the payment of

wages at the existing rate is inadequate to maintain their

living standard due to the increase in the cost of living and

that similarly placed workers in other industries in the

region are in a better position when compared with their

wages. Further more it is also necessary to satisfy that

there was increase in the profit of the management to pay

more wages to the workmen.

14. First management was engaged as the contractor

in April 2002 for a period of one year and the same was

extended for a further period of one year each on two

occasions with the same rate and other conditions.

Thereafter a fresh contract was entered into for a further

period of one year. There was a wage revision as per Ext.

W1 settlement entered into between the unions and the

first management on 08.07.2003. As per that settlement

house keeping workmen numbering 19 was given an

increase of 14.5% to their wages in the existing scale and

the 2nd and 3rd batch comprising 23 workmen were given

an increase of 15.5% of their existing scale. Incentive of 8

ps. per cylinder over and above bottling of 3,50,000

cylinders was given and washing allowance was enhanced

from Rs. 40/- to 50/-. Increase in dearness allowance and

house rent allowance or payment of canteen money do not

find a place in Ext. W1. The period of operation of that

settlement was from 16.06.2002 to 15.06.2004. The demand

for revision of wages for the year 2004-05 did not become

fruitful. It is after that the Charter of Demands for revision

of wages for 2005-06 was made by the unions. It is not

produced in this case to know the claims put forward by

the unions. It is not after a period of four years from the

date of expiry of the period provided under Ext. W1 but

within a period of two years. There is no statutory provision

or rule that makes it obligatory to have a periodical revision

of wages. There is no clause in Ext. W1 also to have a

revision of the wages after the expiry of the period provided

therein.

15. To consider the question of revision of wages it

is essential to have the details of the existing wage structure

and other benefits at the point of time of revision. The

revision of wages is sought to be w.e.f. 01.04.2005. There is

absolutely no plea in the claim statement with regard to the

wage structure and other benefits which is sought to be

revised by the unions. No evidence is also forthcoming in

this case to find out the wage structure and the other

benefits. Ext. W4 would go to show even the workers in

the haulage section was divided into three categories based

on their seniority and work. There is also nothing to find

out the basic pay, DA, HRA, incentive, washing allowance

and canteen money as on 01.04.2005. Without having a

clear picture of the wage structure of the workers in the

different categories it is not possible to know whether it is

necessary to have a revision of wages or whether any

increase is permissible for each of the different categories

of workers.

16. Huge increase in wages and other benefits is

demanded by the unions. Apart from that fresh benefits

are also sought for without assigning any valid reason. It

is difficult to find out whether such demands are reasonable

and acceptable with the available evidence.

17. The charter of demands served by the unions

with regard to the revision of wages and other benefits is

not made available in this case. From Ext. W4 it can be seen

that serveral demands other than those in respect of which

claim is made in the claim statement were also made by the

unions. There is nothing to show that canteen money was

paid to the workers earlier. There is no plea with regard to it

in the claim statement.

18. It is the case of the unions that there was revision

of wages of similarly placed employees in other industries

in the region. But there is absolutely no evidence in this

case to prove the same. WW1 has stated during his cross

examination that the settlement with regard to the wages of

similarly placed employees in other industries is with him.

But it is not produced in this case to satisfy that they are

getting more wages than the workmen involved in this

case. Since the first management has got a specific case

that they are getting more than the wages than the similarly

placed workmen in other industries it is incumbent upon

the unions to adduce evidence to prove that they were

getting leasser wages when compared to the workmen in

other industries.

19. Increase in the cost of living since 16.06.2004 is

stated to be a reason for revision of wages. How much

increase was there in the cost of living during that time is

not substantiated by adducing any reliable evidence.

20. It is the specific case of the first management

there was no increase in the payment of the amount by the

2072

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

principal employer for providing the workmen during that

period. The increase in profit of the management to pay

more wages is one of the factors tobe taken into

consideration while dealing with the question of revision

of wages. In spite of the contention put forward by the first

management there was no attempt on the part of the unions

to prove the increase in profit for the first management.

21. Unions cling on the offer made by the first

management at the time of conciliation proceedings before

the Regional Labour Commissioner (Central) on 17.11.2005

to increase the wages of the workmen from 18.71% to 24%

evidenced by Ext.W3, the copy of the minutes of the

conciliation proceedings held on 24.02.2006. It was later

withdrawn by the management and the same is also

evidenced by Ext.W3. The offer so made at the time of

conciliation proceedings cannot be made as the basis to

have revision of the wages in an adjudication before this

tribunal. The offer was not acceptable to the unions and it

was agreed to be accepted later. But at that time the first

management expressed the inability to have a hike of wages

for more than 5%. Whatever transpired in the conciliation

proceedings do not assume any relevance while

considering the question of revision of wages. It is

necessary to have specific pleading with regard to the

existing wage structure and also the percentage of increase

to be given to each of the categories of workers and

acceptable evidence to substantiate the same.

22. The burden cast upon the unions to establish

that there must be revision of wages for the period 2005-06

is not fully discharged in this case by making any specific

pleading and by adducing any definite evidence. It is also

impossible to find out the proportionate increase due to

each of the categories of workers in the event of revision

of wages. It will be difficult for this Tribunal to pass an

award allowing any revision of wages since the award must

be specific, clear and unambiguous in such a case. Unions

have miserably failed to prove that the first management is

liable to revise the wages of the workers during the period

2005-06.

23. Point No. 3: Additional 2nd management was

impleaded as a party being the principal employer as per

the provisions of the contract Labour (Regulation and

Abolition) Act, 1970. After the impleadment no additional

pleading was filed by the unions to make any claim against

the additional 2nd management. Though it is alleged that

the conditions of service of the workmen are based on

tripartite settlements no evidence was adduced to prove

the same. No agreement seen to have been signed by the

additional 2nd management is produced in this case. But

being principal employer the additional 2nd management

cannot be said to be not a necessary party as it is necessary

to have their presence for the proper adjudication of the

dispute. As there is no prayer for any relief no relief need

be granted against the additional 2nd management.

24. Point No. 4: I have already found that the unions

have failed to establish that the first management is liable

to revise the wages of the workmen. Hence it can be held

that the action of the first management is justified in not

revising the wages of those workers for the year 2005-06.

In the result an award is passed finding that the

action of the first management is not revising the wages

for the workmen for the year 2005-06 is justified.

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 December, 2011.

D. SREEVALLABHAN, Presiding Officer

APPENDIX

Witness for the Unions

WW1

— Shri. Daniel C, General Secretary of Indepndent

Plant Workers Assocation (IPWA), IOC, Chelari,

Malappuram (Kerala).

WITNESS FOR THE MANAGEMENTS — NIL.

Exhibits for the Unions

W1 — Photocopy of the Memorandum of

Settlement dated 8.7.2003 signed between

the management and the Unions before the

Assistant Labour Commissioner (C), Kochi.

W2 — Photocopy of the Failure of Conciliation

Report dated 27.07.2005 sent by Assistant

Labour Commissioner (C), Kochi to the

Secretary to the Government of India,

Ministry of Labour, New Delhi.

W3 — Photocopy of the minutes of the conciliation

proceedings held between the management

and unions before the Regional Labour

Commissioner (C), Kochi on 24.02.2006.

W4 — Photocopy of the Failure of Conciliation

Report dated 26.04.2006 sent by Regional

Labour Commissioner (Central) Cochin to

the Secretary, Ministry of Labour &

Employment, Rafi Marg, New Delhi.

EXHIBITS FOR THE MANAGEMENT — NIL.

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2073

New Delhi, the 6th February, 2012

S.O. 837.—In pursuance of Section 17 of the

Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the award of the Cent. Govt.

Indus. Tribunal-cum-labour Court, Hyderabad (CGIT/

LCID/43/2010) as shown in the Annexure in the Industrial

Dispute between the employers in relation to the

management of SCCL and their workmen, which was

received by the Central Government on 06.02.2012.

[No. L-22013/1/2012-IR(C-II)]

D.S.S. SRINIVASA RAO, Desk Officer

ANNEXURE

IN THE LOK ADALAT

(For settlement of cases relating to CGIT cum Labour

Court at Hyderabad Under Section 20 of the Legal

Services Authorities Act, 1987)

the 29th day of December, Two thousand and Eleven

PRESENT:

1. Sri Ved Prakash Gaur :

Presiding Officer

2. Sri C. Niranjan Rao

Member

3. Sri

Member

(Constituted U/s 19 of the LSA Act, 1987 by the

APSLSA Order ROC No. 186/LSA/2006 dt. 22-8-2006)

In the matter of case No. LCID No. 43 of 2010/PLAC 72/

2011

(On the file of CGIT cum Labour Court at Hyderabad)

BETWEEN

T. Srinivas, E.C. No. 0433936, S/o Posham,

aged about 41 years, Ex-Coal Filler, No. 21-Incline,

Yellandu Area, M/s. Singareni Collieries Company

Limited,

Yellandu, Khammam District

.... PETITIONER

AND

1. M/s. Singareni Collieries Company Limited,

Rep. by its Director (PA & W), Kothagudem,

Khammam District.

2. The Chief General Manager,

M/s Singareni Colieries Company Ltd.

Yellandu Area, Yellandu, Khammam District.

3. The Superintendent of Minies,

No. 21-Incline, M/s Singareni Collieries Company

Ltd.,

Yellandu Area, Yellandu, Khammam District.

....RESPONDENTS

This case is coming up before the Lok Adalat on

29.12.2011 for settlement in the presence of the applicant

appearing in person/represented by his counsel Sri K.

Vasudeva Reddy andthe Respondent too, being present in

person/represented by his counsel, Sri P.A.V.V.S. Sama on

a perusal of the case record, after considering and hearing

the case of both sides and with the consent of both side,

the Lok Adalat has arrived at the following settlement and

delivered the following:

AWARD UNDER SECTION 21 OF THE L.S.A. ACT,

1987

The petitioner had agreed to the following proposals

of the Management, as the petitioner had put in 100 musters

in the two years of the preceding 5 years of dismissal and

raised the dispute within three years from the date of

dismissal from service. The contents are read over and

explained to the petitioner in his language and agreed by

signing the same.

a. The petitioner workman agreed to treat his

appointment as fresh appointment as Badli filler

without back wages and continuity of service subject

to medical fitness by Company Medical Board.

b. Irrespective of past designations, petitioner workman

agrees to the appointment as Badli Filler afresh on.

c. The petitioner workman agrees for observation of

one year with minimum mandatory 20 musters every

month and review every three months. In the event

of any short fall of attendance during the 3 months

period, his services will be terminated without any

further notice and enquiry.

d. Respondent Management agreed that any forced

absenteeism on account of mine accidents/natural

disease treatment taken at Company's Hospitals will

be deemed as attendance during the trial period.

e. All other usual terms and conditions of appointment

will be applicable i.e., transfer, hours of work, day of

rest, holidays etc., for appointment afresh.

This LCID is disposed of accordingly. The respondent

management is directed to take him back to duty as Badli

Filler afresh.

In agreement of the above, the parties/counsel have

affixed their signature/thumb impressions in the presence

of the members of this Lok Adalat Bench.

Signature of Applicant (s)

Signature of Respondent(s)

Signature of Counsel for Applicant(s)

Signature

of Counsel for Respondent(s)

Signature of Presiding Officer & Members of the Bench

1. Ved Prakash Gaur, Chairman

2. C. Niranjan Rao, Member

Note: This award is trial and binding on all the parties

and no appeal shall lie to any court as per Section 21(2) of

LSA. ACT 1987.

2074

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

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New Delhi, the 6th February, 2012

S.O. 838.—In pursuance of Section 17 of the

Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the award Part-1 (Ref. No.

CGIT-2/46 of 2003) of the Central Government Industrial

Tribunal/Labour Court No. 2, MUMBAI now as shown in

the Annexure in the Industrial Dispute between the

employers in relation to the management of SYNDICATE

BANK and their workmen, which was received by the

Central Government on 20.12.2011.

[No. L-22012/84/2003-IR(B-II)]

SHEESH RAM, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL NO. 2, MUMBAI

PRESENT

K.b. Katake, presiding officer

Reference no. Cgit-2/46 of 2003

EMPLOYERS IN RELATION TO THE MANAGEMENT

OF SYNDICATE BANK

The Deputy General Manager

Syndicate Bank

IR Cell, Zonal Office

Maker Tower 'E', 2nd floor

Cuffe Parade

Mumbai-400 005.

AND

THEIR WORKMEN.

Shri Bhimaji Joshi

A/3, Kailas Dham

Gopal Nagar No. 1

Dombivili (E)

Distt. Thane.

APPEARANCES:

For the Employer

Mr. R.N. Shah,

Advocate.

For the Workmen

Mr. Umesh Nabar,

Advocate.

Mumbai, dated the 2nd September, 2011.

AWARD PART-I

The Government of India, Ministry of Labour &

Employment by its Order No. L-12012/84/2003-IR (B-II),

dated 14.08.2003 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 industrial dispute to this Tribunal for

adjudication:

"Whether the action of the management of

Syndicate Bank, Zonal Office, Mumbai in dismissing

Shri Bhimaji Joshi from service w.e.f. 12.10.2001 is

legal and justified? If not, what relief the workman,

Shri Bhimaji Joshi is entitled to?"

2. After receipt of the reference from the Ministry,

both the parties were served with notices. They appeared

through their respective representatives. The second party

workman filed his statement of claim at Ex-6. According to

him, he joined the services of the first party in the year 1969

as a clerk. He was honest, sincere and diligent and worked

to the utmost satisfaction of his superior. Therefore in the

year 1980 he was promoted to the post of Special Assistant.

He has completed almost 30 years of service with clean

and unblemished record except the chargesheet dated

20.11.2000 alleging that he had issued cheque books in

fictitious names and had used the said cheques for

unauthorized withdrawal of money from the Bank.

3. According to him, in April 2000 he received phone

call from the Manager of Bhiwandi Branch who informed

him that when he was at Bhiwandi Branch, Auditor has

observed that balancing of the in operative SB Accounts

was not tallying. The Manager therefore requested him to

help him in balancing the in operative SB Accounts. The

workman helped the Manager, Bhiwandi Branch to tally

the in operative SB Accounts. However same could not be

tallied for want of records which was washed away due to

heavy rains in the year 1998. Accordingly the workman

reported the first party that account could not be tallied for

want of record.

4. On 13/06/2000, the workman was called at the office

of first party bank and he was threatened in presence of

Dy. General Manager of the Bank that non-tallying the

accounts would have serious adverse effect on the service

of the workman. Under threat he was asked to accept the

responsibility of the difference in the amount of Rs. 83,000/

-. The workman was asked to deposit the said amount

otherwise he was threatened to be thrown out of the service

of the Bank. He was forced to deposit Rs. 50,000/- on the

very next day. On 14.06.2000 the workman was served with

an order of suspension. Under pressure he was also forced

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

2075

to deposit the remaining amount of Rs. 33,000/- and had

promised to withdraw the order of suspension. Otherwise

they had also threatened to face serious consequences

including that of prosecution. He therefore deposited the

amount by instalments with a hope that the suspension

would be withdrawn and his service would be restored and

he would be exonerated. However instead of withdrawing

the order of suspension, Manager of Bhiwandi Branch

lodged a Police complaint on 18.09.2000 alleging that

workman had committed and offence under Section 409,

402 and 201 of IPC. The workman was arrested, two days

thereafter, he was released on bail.

5. The workman was served with the charge-sheet

dated 20.11.2000 proposing disciplinary proceedings

against him. As per the bi-partite settlement, during

pendency of the criminal proceeding, disciplinary

proceeding ought to have stopped. However the

management did not listen to him. They overruled his

objection and inquiry was proceeded with. The workman

participated in the disciplinary proceeding. The workman

has challenged the action in writ petition. However his writ

petition was disposed of on technical grounds. The request

of workman to defend himself by an advocate was rejected.

In the disciplinary proceedings Bank examined five

witnesses. The workman also examined himself. Several

illegalities were committed by first party in the inquiry

proceeding. There was violation of principles of natural

justice. His defence and objections were not considered.

6. The inquiry officer wrongly relied on the mere

statements of the witnesses. The inquiry was a mere farce.

The inquiry officer illegally held him guilty. The inquiry

was not fair and proper. The findings of Inquiry officer are

perverse. On the basis of report of inquiry officer, the

management has dismissed the services of the workman.

They imposed the punishment of dismissal, without notice

to the workman. The workman has preferred appeal

thereagainst. However the appellate authority did not pay

attention to the defence of the workman and on 30.01.2002

the appeal of the workman came to be dismissed. Therefore

the workman has raised industrial dispute and challenged

the order of his illegal dismissal. As the management did

not co-operate, the conciliation was failed and ALC (C)

had sent his report to the Labour Ministry. The Labour

Ministry has sent the reference to this Tribunal. The

workman therefore prays that the order of dismissal of the

workman from services of first party be declared illegal and

same be quashed. The workman also prays for direction to

reinstate him with full back-wages and also prays for the

costs and other consequential benefits.

7.The first party management resisted the statement

of claim vide its written statement at Ex.13. According to

them, the workman was dismissed from the services of the

Bank as he had committed fraud and misappropriation. He

was found to have misappropriated an amount of Rs. 10.20

lakhs. Chargesheet was issued to him dated 20.11.2000 for

the gross misconduct and his acts prejudicial to the interest

of the Bank. While working as Special Assistant at Bhiwandi

Branch, he had issued cheque books in fictitious names

and used few of the cheques for unauthorized withdrawal

of amount from the bank. Similarly another cheque of

Rs. 18,000/- was received for collection from Sangli Bank,

Dombivli Branch. To conceal his fraud he misplaced/

destroyed the 48 paid cheques. He has manipulated the

balance while extracting and tallying the SB Balancing. He

has manipulated balances which resulted into reduction in

balance. By misusing his official position he has committed

fraud on the Bank and misappropriated funds of the Bank.

He has fraudulently withdrawn an amount aggregating to

Rs. 6 lakhs by using 48 cheques and the same came into

light. The workman by his letter dated 13.6.2000 addressed

to GM, Mumbai admitted having committed the above

fraud and also reimbursed an amount of Rs. 83,000/-.

8. The Bank had decided to conduct the inquiry and

copy of the chargesheet dt. 20.11.2000 was served on the

second party workman. The workman has replied the

chargesheet vide his reply dated 8.1.2001. Mr. B.

Vishwanadham was appointed as Inquiry Officer. He

conducted the inquiry. Bank examined five witnesses and

filed documents. Sufficient opportunity was given to the

workman to defend himself and cross examined the

witnesses. He has appointed Mr. Bhaskar Iyer as his defence

representative. He cross examined the witnesses. The copies

of the documents and proceedings were given to the

workman. The second party workman also examined himself

and also produced few documents. The second party

workman was satisfied with the procedure of inquiry officer.

The second party and his defence representative fully

participated in the inquiry proceeding. The inquiry officer

had given full opportunity to them. The inquiry officer

heard the arguments of both the parties and prepared and

submitted his report. The inquiry officer held the second

party workman guilty of the charges. On the basis of the

report of inquiry officer, show cause notice was issued to

the second party. He replied the show cause notice. His

reply was found not satisfactory. Therefore the

management has dismissed the second party workman from

their services.

9. The Bank had also lodged the FIR. However the

trial had not began even after a year and bank has not

committed breach of the provisions of the clause 19.4 of

the Bipartite Settlement. The second party workman was

held guilty for serious charges of fraud and

misappropriation. Therefore his services were terminated.

He was given full opportunity to defend himself. Thus the

management pray that the reference be dismissed with cost.

10. Following are the preliminary issues for my

determination framed by my I.d. predecessor. I record my

findings thereon for the reasons to follow:

2076

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

Sr. No.

Issues Findings

Whether the inquiry is far and

proper? Yes.

Whether the findings of the inquiry

officer are preverse?

REASONS

Issue no. 1:—

11. In this respect the fact is not denied by the second

party workman that he was served with the charge-sheet.

He had also replied the same vide his reply dated 8/1/2001.

The workman also admitted in his cross that he participated

in the inquiry and the Secretary of the Union Mr. Bhaskar

Iyer represented him. He also admitted that Mr. Bhaskar

Iyer represented him as per his choice. In his cross

examination at Ex-17 the second party workman also

admitted that, the inquiry officer explained him about the

inquiry. He was shown the inquiry proceeding. His defence

representative has signed each page of the inquiry

proceeding. He admitted that proceeding was recorded as

it happened. He has also admitted that, as per the directions

of the inquiry officer, the copies of the documents were

given to him. He admitted that in the Bipartite settlement,

there is no provision to take help of advocate as D.R. in the

domestic inquiry. He admitted that time was given for cross

examination of the witnesses of the management and his

representative thoroughly cross examined the management

witnesses. He further admitted that 45 copies of the

documents relied upon by the management, were served

on him. He also admitted that management was also not

represented by practicing lawyer. He further admitted that

findings of the inquiry officer were supplied to him and he

replied the same. He also admitted that the inquiry officer

gave his findings based on the documentary evidence and

the evidence of both the sides. He also admitted that he

has not made any prayer to stay the inquiry proceeding

before any court of forum during pendency of the criminal

trial. He also admitted that whatever documents were

produced by him were taken on record by the inquiry

officer. These replies and admissions given by the second

party workman support the version of the first party

management that, they have followed the procedure and

sufficient opportunity was given to the workman to defend

himself. It also supports their version that the inquiry officer

has followed the due procedure while conducting the

inquiry. Copies of all the documents were given to the

second party workman and the entire proceeding was

shown to the workman and his defence representative. His

defence representative has signed each page of the

proceeding. Further more he has admitted that his defence

representative cross examined the management witnesses.

From all these, it is clear that, fair, proper and sufficient

opportunity was given to the second party workman to

defend himself in the inquiry proceeding. The contention

of the second party workman thus does not stand to reasons

that, there was violation of principles of natural justice in

conducting the departmental inquiry.

12. The main contention of the second party workman

is that he was not allowed to engage any practicing

advocate. His second objection is that, the inquiry was not

stayed, though in respect of the same matter a criminal

case was pending in the court. According to the second

party workman, the inquiry ought to have stayed till

decision of the criminal court in the criminal case pending

against him. It was pleaded that first party was represented

by a practicing lawyer and inquiry officer refused the second

party workman to engage a practicing lawyer. In this respect

Id. Adv. of the first party rightly pointed out that, the second

party workman himself has admitted, in the cross that, the

first party was also not represented by a practicing lawyer.

He had admitted in his cross that his representative Mr.

Bhaskar Iyer the General Secretary of the Union, was

appointed as per his choice. In the circumstances, the

version of the second party is devoid of merit that, the first

party was represented by a practicing lawyer and that, he

did not get proper the opportunity to defend himself

through a practicing lawyer.

13. The second objection of the second party

workman is that, the inquiry officer did not stay the inquiry,

though the criminal case in respect of the same incident

was pending before the criminal court. It is also submitted

on behalf of the second party workman that the second

party workman was acquitted in the criminal case bearing

no. 199/2001. The second party workman has not produced

certified copy of the judgment. He has produced xerox copy

of the judgment with list Ex-18. It cannot be read in evidence

as it is a mere xerox copy attested by a notary. Though the

certified copy of the judgment is not on record the first

party has not disputed that, the workman was acquitted by

the court concern.

14. In this respect the Id. Adv. of the first party,

submitted that, acquittal by criminal court has no effect

either on the inquiry proceeding and the findings therein.

It is a fact that, the inquiry officer proceeded with the inquiry

and had not stayed the proceeding till decision of the

criminal case. It is a fact that, the Bank had lodged the FIR

on 18/9/2000. Police filed charge-sheet against the second

party on 5/3/2001 and procedure of recording evidence

began after December 2001. It shows that the criminal court

took time of more than a year to start recording evidence in

the criminal proceeding. It took more than a year to start

recording the evidence. In the circumstances, it was

unnecessary for the inquiry officer to wait till the decision

of the criminal court. In respect acquittal by the criminal

court, law is laid down by the Apex Court in number of

rulings that, though the employee is acquitted, departmental

proceeding against him need not be dropped. The Id Adv.

for the first party has resorted to recent Bombay High Court

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

2077

ruling in A.S. Manjrekar V/s. Mumbai Port Trust & Anr.

2010 (II) CLR 590 wherein Hon'ble Court cited number of

Apex Court rulings and held that the inquiry proceeding

need not be dropped as the employee is acquitted in a

cirminal case. In this judgment Hon'ble court referred to

Apex Court ruling in Commissioner of Police, New Delhi

V/s. Narender Signh 2006 (109) FLR 852 wherein the

Hon'ble Apex Court observed that:

"It is now well settled by reasons of a catena of

decisions of this Court that if an employee has been

acquitted of a criminal charge, the same by itself

would not be a grant to institute a departmental

proceeding against him or to drop the same in the

even of an order of acquittal is passed."

The Hon'ble High Court also referred a recent Apex

Court ruling in the management of Western Bokaro

Colliery of M/s. Tisco Ltd. V/s. The concerned workman

Ram Pravesh Singh (AIR 2008 SC 1162) wherein the Hon'ble

court observed that:

"It has repeatedly been held by this court that the

acquittal in a criminal case would not operate as a

bar for drawing up a disciplinary proceeding

against a delinquent. It is well settled principle of

law that, yardstick and standard of proof in a

criminal case is different from the one in

disciplinary proceedings. While standard of proof

in a criminal case is proof beyond all reasonable

doubt, the standard of proof in departmental

proceedings is preponderance of probabilities."

15. The Id Adv. for the first party also resorted to

few more rulings on the same point wherein the same

principles of law are reiterated. It is unnecessary to cite all

these rulings. In the light of ratio laid down by the Hon'ble

Apex Court, it is clear that the order of acquittal passed by

a criminal court would not affect the departmental inquiry

proceedings and findings therein, as in criminal proceedings

requirement of proof is beyond all reasonable doubts,

whereas in departmental inquiry, preponderance of

probability suffice the purpose. In the circumstances

though the workman herein was acquitted by the criminal

court, it has no effect on the departmental inquiry

proceedings. Therefore though departmental proceeding

was started before the decision of criminal court and the

employee was acquitted in the criminal of case, it does not

give any set back to the departmental inquiry and findings

therein. In short though the employee herein was

subsequently acuitted by the criminal court, the

departmental inquiry and findings therein, cannot be called

unfair or improper on the ground of his acquittal. Further

more the inquiry was not commenced within a year after

filing of the charge-sheet, before the criminal court. Thus it

can not be said that there was breach of Bipartite Settlement

clause 19.4 thereof.

16. In the light of above discussion it is clear that

neither there was violation of principles of natural justice

nor inquiry officer was at fault in following the procedure

of inquiry. On the other hand fair and sufficient opportunity

was given to the employee to defend himself through the

defence representative of his choice. All the witnesses were

made available for cross examination and they were

elaborately cross examined. Copies of all the documents

were given to him. The workman was allowed to lead his

evidence. The documents produced by him were taken on

record. The workman has admitted all these facts in his

cross. From all these it is clear that, the Inquiry Officer has

followed the fair and proper procedure in conducting the

inquiry. Thus I hold that, the inquiry was fair and proper.

Accordingly I decide this issue No. 1 in the affirmative.

Issue No. 2:—

17. To arrive at the conclusion and the findings, the

inquiry officer has scrutinized the evidence of five

witnesses. All of them have supported the case of the

management that the second party workman was attacked

to Bhiwandi branch at the relevant time. He has wrongly

shown that the balance-sheet was tallied. It has come on

record that he has issued the cheque book in ficitious name.

The record was in his possession. These cheques were

found missing from the record. In addition to that, the

second party workman has not only admitted the guilt but

has also deposited an amount of Rs. 83000/- towards the

repayment. He has also given a letter wherein he has

admitted to have misused the cheques and had transferred

the amounts in the accounts of his relatives and friends.

He had also confessed to have destroyed the en-cashed

cheques. The inquiry officer has arrived at the conclusion

in the light of evidence of five witnesses examined by the

management, the documents produced in the inquiry

proceedings, the replies given by the second party workman

and in the light of facts that the encashed cheques were

not found in the bundle of the relevant dates in the record

of the Bank. In addition to that, the workman has also

given letter admitting to have played the mischief. Though

subsequently the workman has retracted the confession,

by saying that he has given the confession under pressure

and force of the higher officer is unacceptable. The version

of the workman that he has given the letter of confession

by pressure of higher authority does not stand to reasons.

On the other hand, his letter of confession appears to have

given voluntarily. Nither the higher officers are police

officers nor there is any allegation that he was detained or

tortured to give confession. On the other hand, the second

party is a responsible officer of the Bank and had no reason

to confess the guilt without committing the mischief.

18. In short, the inquiry conducted by the inquiry

officer was fair and proper. He has arrived at the conclusion

on the strength of evidence of five witnesses examined by

the bank and the documents produced by the Bank. He

2078

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

also used the replies of the employees given in his cross

examination. The findings of the inquiry officer are well

reasoned and from the evidence before him. From all these

facts and circumstances, it is revealed that there cannot be

any other conclusion, than the conclusion drawn by the

inquiry officer, by which he held the workman guilty. In

this backdrop, I reached to the conclusion that the findings

of inquiry officer recorded in the inquiry report, holding

the workman guilty cannot be called perverse. On the other

hand they are well reasoned findings recorded by the

inquiry officer. Accordingly, I decide this issue no. 2 in the

negative. Now the only point remains to be decided is

whether the punishment is proportionate to the misconduct.

To decide this issue there is no much scope for oral

evidence. To decide this point arguments would suffice

the purpose. Thus I proceed to pass the following order:

ORDER

The inquiry conducted by the inquiry officer is found

fair and proper. The findings of inquiry officer are not

perverse. The parties to remain present on 30/12/2011 for

arguments/evidence if any, on the point of quantum of

punishment.

Date: 2nd Sept. 2011.

K.B. KATAKE, Presiding Officer

ubZ fnYyh] 6 Qjojh] 2012

dkñvkñ 839.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,lñ lhñ lhñ

,yñ ds izca/kra= ds lac) fu;kstdksa vksj muds deZdkjksa ds chp]

vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/

kdj.k] gSnjkckn ds iapkV ¼,ylhvkbZMh la[;k 44@2008½ dks izdkf'kr

djrh gS] tks dsUnzh; ljdkj dks 06@02@2012 dks izkIr gqvk FkkA

[lañ ,y&22013@1@2012&vkbZ vkj ¼lh&II½]

Mhñ ,lñ ,lñ Jhfuokl jko] MsLd vf/kdkjh

New Delhi, the 6th February, 2012

S.O. 839.—In pursuance of section 17 of the

Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby published the award of the Cent. Govt.

Indus. tribunal-cum-Labour Court, Hyderabad (GCIT/

LCID/44/2008) as shown in the Annexure in the Industrial

Dispute between the employers in relation to the

management of SCCL and their workmen, which was

received by the Central Government on 06.02.2012.

[No. L-22013/1/2012-IR (C-II)]

D.S.S. SRINIVASA RAO, Desk Officer

ANNEXURE

IN THE LOK ADALAT

(For settlement of cases relating to CGIT cum Labour

Court at Hyderabad Under Section 20 of the Legal Services

Authorities Act, 1987)

The 16th day of December, To thousand and Eleven

PRESENT:

Sri Ved Prakash Gaur

Presiding

officer

Sri C. Niranjan Rao

Member

Sri

Member

(Constituted U/s 19 of the LSA Aft, 1987 by the APSLSA

Order ROC No. 186/LSA/2006 dt. 22-08-2006)

In the matter of case No. LCID No. 44 of 2008/PLAC

60/2011 (On the file of CGIT cum Labour Court at

Hyderabad)

BETWEEN:

Bathula Ramakrishna (EC No. 2894073), S/o Devaiah,

aged about 37 years,

Worked as Coal filler at RK-7 incline, Srirampur Area,

Singareni Collieries Company Limited,

Srirampur Adilabad Distt.,

...Petitioner

And

1. The Singareni Collieries Company Limited,

respresented by its General Manager, Srirampur

Area, Srirampur, Adilabad District.

2. The Colliery Manager,

RK-7, incline, Srirampur Area,

Singareni Collieries Company Limited,

Srirampur, Adilabad District

...Respondents

This case is coming up before the Lok Adalat on

16.12.2011 for settlement in the presence of the applicant

appearing in person/represented by his counsel Sri K.

Vasudeva Reddy and the Respondent too, being present

in person/represented by his counsel, Sri M.V.H. Rao on a

perusal of the case record, after considering and hearing

the case of both sides and with the consent of both side,

the Lok Adalat has arrived at the following settlement and

delivered the following:

AWARD UNDER SECTION 21 OF THE L.S.A. ACT, 1987

The petitioner had agreed to the following proposals

of the Management, as the petitioner had put in 100 musters

in the two years of the preceding 5 years of dismissal and

raised the dispute within three years from the date of

dismissal from service. The contents are read over and

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

2079

explained to the petitioner in his language and agreed by

him by signing the same.

a. The petitioner workman agreed to treat his

appointment as fresh appointment as Badli Filler

without back wages and continuity of service subject

to medical fitness by Company Medical Board.

b. Irrespective of past designations, petitioner workman

agrees to the appointment as Badli Filler afresh on

c. The petitioner workman agrees for observation of

one year with minimum mandatory 20 musters every

month and review every three months. In the event

of any short fall of attendance during the 3 months

period, his services will be terminated without any

further notice and enquiry.

d. Respondent Management agreed that any forced

absenteeism on account of mine accidents/natural

disease, treatment taken at Company's Hospitals will

be deemed as attendance during the trial period.

e. All other usual terms and conditions of appointment

will be applicable i.e., transfer, hours of work, day of

rest, holidays etc., for appointment afresh.

This LCID is disposed of accordingly. The respondent

management is directed to take him back to duty as Badli

Filler afresh.

In agreement of the above, the parties/counsel have

affixed their signatures/thumb impressions in the presence

of the members of this Lok Adalat Bench.

Sd/.

Signature of Applicant(s)

Signature of Respondent (s)

Sd/.

Signature of Counsel

for Applicant (s)

for Respondent (s)

Signature of Presiding Officer and Members of the

Bench

Ved Prakash Gaur,

2. C. Niranjan Rao,

Chairman

Member

Note: This award is final and binding on all the parties

and no appeal shall lie to any court as per Section 21(2) of

LSA. ACT 1987.

ubZ fnYyh] 6 Qjojh] 2012

dkñvkñ 840.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k eas dsUnzh; ljdkj ,lñlhñlhñ,yñ

ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp]

vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vf/kdj.k] gSnjkckn ds iapkV ¼,ylhvkbZMh la[;k 39@2010½ dks

izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 06-02-2012 dks izkIr

gqvk FkkA

[lañ ,y&22013@1@2012&vkbZ vkj ¼lh&II½]

Mhñ,lñ,lñ Jhfuokl jko] MsLd vf/kdkjh

New Delhi, the 6th February, 2012

S.O. 840.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award of the Cent.

Government Industrial Tribunal-cum-Labour Court,

Hyderabad (CGIT/LCID/39/2010) as shown in the

Annexure in the Industrial Dispute between the employers

in relation to the management of SCCL and their workmen,

which was received by the Central Government on

06.02.2012.

[No. L-22013/1/2012-IR (C-II)]

D.S.S. SRINIVASA RAO, Desk Officer

ANNEXURE

IN THE LOK ADALAT

(For settlement of cases relating to CGIT cum Labour

Court at Hyderabad Under Section 20 of the Legal

Services Authorities Act,1987)

The 16th day of December, Two thousand and Eleven

Present:

Sri Ved Prakash Gaur

Presiding

Officer

Sri C. Niranjan Rao

Member

Sri

Member

(Constituted U/s 19 of the LSA Aft, 1987 by the APSLSA

Order ROC No. 186/LSA/2006 dt. 22-08-2006)

In the matter of case No. LCID No. 59 of 2011/

PLAC 59/2011

(On the file of CGIT cum Labour Court at Hyderabad)

Between:

Paidipalli Thirupathi, (EC. No. 0888482), S/o Rajam,

aged about 40 years, Ex-Coal Filler at GDK No. 1 and

3 Incline,

Singareni Collieries Company Limited,

Ramagundam Area-I, Karimnagar Dist.,

Petitioner

AND

1. The Singareni Collieries Company Limited,

Rep. by its Chief General Manager,

Ramagundam Area-I, Karimnagar District.

2080

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

2. The Superintender of Mines,

GDK-1 and 3 Incline, Singareni Collieries Company

Ltd.,

Ramagundam Area, Karimnagar District.

Respondents

This case is coming up before the Lok Adalat on

16-12-2011 for settlement in the presence of the applicant

appearing in persn/represented by his counsel Sri K.

Vasudeva Reddy and the Respondent too, being present

in person/represented by his counsel, Sri on a

perusal of the case record, after considering and hearing

the case of both sides and with the consent of both side,

the Lok Adalat has arrived at the following settlement and

delivered the following:

Award under section 21 of the l.s.a. Act, 1987

The petitioner had agreed to the following proposals

of the management, as the petitioner had put in 100 musters

in the two years of the preceding 5 years of dismissal and

raised the dispute within three years from the date of

dismissal from service. The contents are read over and

explained to the petitioner in his langauge and agreed by

him by signing the same.

a. The petitioner workman agreed to treat his

appointment as fresh appointment as Badli Filler

without back wages and continuity of service subject

to medical fitness by Company Medical Board.

b. Irrespective of past designations, petitioner workman

agrees to the appointment as Badli Filler afresh on

c. The petitioner workman agrees for observation of

one year with minimum mandatory 20 musters every

month and review every three months. In the event

of any short fall of attendance during the 3 months

period, his services will be terminated without any

further notice and enquiry.

d. Respondent Management agreed that any forced

absenteeism on account of mine accidents/natural

disease, treatment taken at Company's Hospitals will

be deemed as attendance during the trial period.

e. All other usual terms and conditions of appointment

will be applicable i.e., transfer, hours of work, day of

rest, holidays etc., for appointment afresh.

This LCID is disposed of accordingly. The respondent

management is directed to take him back to duty as Badli

Filler afresh.

In agreement of the above, the parties/counsel have

affixed their signatures/thumb impressions in the presence

of the members of this Lok Adalat Bench.

Sd/.

Signature of Applicant(s)

Signature of Respondent (s)

Sd/.

Signature of Counsel

for Applicant (s)

for Respondent (s)

Signature of Presiding Officer and Members of the

Bench

1. Ved Prakash Gaur, Chairman

2. C. Niranjan Rao

Member

Note: This award is final and binding on all the parties

and no appeal shall lie to any court as per Section 21(2) of

LSA. ACT 1987.

ubZ fnYyh] 6 Qjojh] 2012

dkñvkñ 841.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,lñ lhñ lhñ

,yñ ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp]

vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/

kdj.k] gSnjkckn ds iapkV ¼,ylhvkbZMh la[;k 36@2010½ dks

izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 06@02@2012 dks izkIr gqvk

FkkA

[lañ ,y&22013@1@2012 & vkbZ vkj ¼lh&II)]

Mhñ,lñ,lñ Jhfuokl jko] MsLd vf/kdkjh

New Delhi, the 6th February, 2012

S.O. 841.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award of the Cent. Govt.

Indus. Tribunal-cum-Labour Court, Hyderabad (CGIT/

LCID/36/2010) as shown in the Annexure in the Industrial

Dispute between the employees in relation to the

management of SCCL and their workmen, which was

received by the Central Government on 06.02.2012.

[No. L-22013/1/2012-IR (C-II)]

D.S.S. SRINIVASA RAO, Desk Officer

ANNEXURE

IN THE LOK ADALAT

(For settlement of cases relating to CGIT cum Labour

Court at Hyderabad

Under Section 20 of the Legal Services Authorities Act,

1987)

The 16th day of December, Two thousand and Eleven

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

2081

PRESENT:

Sri Ved Prakash Gaur :

Presiding Officer.

Sri C. Niranjan Rao

Member

Sri

Member

(Constituted U/s 19 of the LSA Act, 1987 by the APSLSA

Order ROC No. 186/LSA/2006 dt. 22-8-2006)

In the matter of case No. LCID No. 36 of 2010/PLAC

58/2011

(On the file of CGIT cum Labour Court at Hyderabad)

BETWEEN

Kampa Madhu, (EC No. 2915170) S/o Rajaiah, aged

about 28 years,

worked as Badli Filler at IK-1A Incline,

Singareni Collieries Company Limited,

Srirampur Area, Srirampur, Adilabad District

..................Petitioner

AND

1. The Singareni Collieries Company Limited,

rep. by its General Manager,

Srirampur Area, Srirampur, Adilabad District.

2. The Superintendent of Mines,

Singareni Collieries Company Ltd.,

IK-1A Incline, Srirampur Area, Srirampur,

Abilabad District

....................Respondents

This case is coming up before the Lok Adalat on

16-12-2011 for settlement in the presence of the applicant

appearing in person / represented by his counsel Sri K.

Vasudeva Reddy and the Respondent too, being present

in person / represented by his counsel, Sri S. M. Subhani

on a perusal of the case record, after considering and hearing

the case of both sides and with the consent of both side,

the Lok Adalat has arrived at the following settlement and

delivered the following:

AWARD UNDER SECTION 21 OF THE L.S.A. ACT, 1987

The petitioner had agreed to the following proposals

of the Management, as the petitioner had put in 100 musters

in the two years of the preceding 5 years of dismissal and

raised the dispute within three years from the date of

dismissal from service. The contents are read over and

explained to the petitioner in his language and agreed by

him by signing the same.

The petitioner workman agreed to treat his

appointment as fresh appointment as Badli Filler

without back wages and continuity of service subject

to medical fitness by Company Medical Board.

b. Irrespective of past designations, petitioner workman

agrees to the appointment as Badli Filler afresh on

c. The petitioner workman agrees for observation of

one year with minimum mandatory 20 musters every

month and review every three months. In the event

of any short fall of attendance during the 3 months

period, his services will be terminated without any

further notice and enquiry.

d. Respondent Management agreed that any forced

absenteeism on account of mine accidents/natural

disease, treatment taken at Company's Hospitals will

be deemed as attendance during the trial period.

e. All other usual terms and conditions of appointment

will be applicable i.e., transfer, hours of work, day of

rest, holidays etc., for appointment afresh.

This LCID is disposed of accordingly. The respondent

management is directed to take him back to duty as Badli

Filler afresh.

In agreement of the above, the parties/counsel have

affixed their signatures/thumb impressions in the presence

of the members of this Lok Adalat Bench.

Sd/.

Signature of Applicants(s)

Signature of Respondent(s)

Sd/.

Signature of Counsel for

Signature of Counsel

Applicant (s)

for Respondent (s)

Signature of Presiding Officer & Members of the Bench

1. Ved Prakash Gaur, Chairman

2. C. Niranjan Rao,

Member

Note: This award is final and binding on all the parties

and no appeal shall lie to any court as per Section 21(2) of

LSA. ACT 1987.

ubZ fnYyh] 6 Qjojh] 2012

dkñvkñ 842.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,lñ lhñ lhñ

,yñ ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp]

vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/

kdj.k] gSnjkckn ds iapkV ¼,ylhvkbZMh la[;k 22@2010½ dks izdkf'kr

djrh gS] tks dsUnzh; ljdkj dks 06@02@2012 dks izkIr gqvk FkkA

[lañ ,y&22013@1@2012 & vkbZ vkj ¼lh&II)]

Mhñ,lñ,lñ Jhfuokl jko½] MsLd vf/kdkjh

New Delhi, the 6th February, 2012

S.O. 842.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

2082

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

Government hereby publishes the award of the Cent. Govt.

Indus. Tribunal-cum-Labour Court, Hyderabad (CGIT/

LCID/22/2010) as shown in the Annexure in the Industrial

Dispute between the employees in relation to the

management of SCCL and their workmen, which was

received by the Central Government on 06.02.2012.

[No. L-22013/1/2012-IR (C-II)]

D.S.S. SRINIVASA RAO, Desk Officer

ANNEXURE

IN THE LOK ADALAT

(For settlement of cases relating to CGIT-cum-Labour

Court at Hyderabad

Under Section 20 of the Legal Services Authorities

Act, 1987)

The 16th day of December, Two thousand and Eleven

PRESENT:

Sri Ved Prakash Gaur :

Presiding Officer.

Sri C. Niranjan Rao

Member

Sri

Member

(Constituted U/s 19 of the LSA Act, 1987 by the APSLSA

Order ROC No. 186/LSA/2006, dt. 22-8-2006)

In the matter of case No. LCID No. 22 of 2010/PLAC

57/2011

(On the file of CGIT-cum-Labour Court at Hyderabad)

BETWEEN

Kampelli Nagaraju, (EC. No. 0999568), S/o Kondaiah,

aged about 28 years,

Ex-Badli Filler at GDK-2A Incline,

Singareni Collieries Company Limited,

Godavarikhani, Karimnagar Dist.

.............Petitioner

AND

1. The Singareni Collieries Company Limited,

rep. by its Chief General Manager, RG-I Area,

Godavarikhani, Karimnagar Dist.

2. The Superintendent of Mines,

GDK-2A Incline, Singareni Collieries Company

Limited,

Godavarikhani, Karimnagar Dist.

.........Respondents

This case is coming up before the Lok Adalat on

16-12-2011 for settlement in the presence of the applicant

appearing in person/represented by his counsel Sri K.

Vasudeva Reddy and the Respondent too, being present

in person/represented by his counsel, Sri S.M. Subhani on

a perusal of the case record, after considering and hearing

the case of both sides and with the consent of both side,

the Lok Adalat has arrived at the following settlement and

delivered the following:

AWARD UNDER SECTION 21 OF THE L.S.A. ACT, 1987

The petitioner had agreed to the following proposals

of the Management, as the petitioner had put in 100 musters

in the two years of the preceding 5 years of dismissal and

raised the dispute within three years from the date of

dismissal from service. The contents are read over and

explained to the petitioner in his language and agreed by

him by signing the same.

a. The petitioner workman agreed to treat his

appointment as fresh appointment as Badli Filler

without back wages and continuity of service subject

to medical fitness by Company Medical Board.

b. Irrespective of past designations, petitioner workman

agrees to the appointment as Badli Filler afresh on

c. The petitioner workman agrees for observation of

one year with minimum mandatory 20 musters every

month and review every three months. In the event

of any short fall of attendance during the 3 months

period, his services will be terminated without any

further notice and enquiry.

d. Respondent Management agreed that any forced

absenteeism on account of mine accidents/natural

disease, treatment taken at Company's Hospitals will

be deemed as attendance during the trial period.

e. All other usual terms and conditions of appointment

will be applicable i.e., transfer, hours of work, day of

rest, holidays etc., for appointment afresh.

This LCID is disposed of accordingly. The respondent

management is directed to take him back to duty as Badli

Filler afresh.

In agreement of the above, the parties/counsel have

affixed their signatures/thumb impressions in the presence

of the members of this Lok Adalat Bench.

Sd/.

Signature of Applicant(s)

Signature of Respondent(s)

Sd/.

Signature of Counsel for

Signature of Counsel

Applicant(s)

for Respondent(s)

Signature of Presiding Officer & Members of the Bench

1. Ved Prakash Gaur, Chairman

2. C. Niranjan Rao,

Member

Note: This award is final and binding on all the parties

and no appeal shall lie to any court as per Section 21(2) of

L.S.A. Act 1987.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

2083

ubZ fnYyh] 6 Qjojh] 2012

dkñvkñ 843.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947

dk 14½ dh èkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,lñlhñlhñ,yñ

ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaè

esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèdj.k]

gSnjkckn ds iapkV ¼,ylhvkbZMh la[;k 19@2010½dks izdkf'kr djrh

gS] tks dsUnzh; ljdkj dks 06-02-2012 dks izkIr gqvk FkkA

[lañ ,y&22013@1@2012&vkbZ vkj ¼lh&II½]

Mhñ,lñ,lñ Jhfuokl jko] MsLd vfèdkjh

New Delhi, the 6th February, 2012

S.O. 843.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award of the Cent. Govt.

Indus. Tribunal-cum-Labour Court Hyderabad (CGIT/

LCID/19/2010) as shown in the Annexure in the Industrial

Dispute between the employers in relation to the

management of SCCL and their workmen, which was

received by the Central Government on 06.02.2012.

[No. L-22013/1/2012-IR (C-II)]

D.S.S. SRINIVASA RAO, Desk Officer

ANNEXURE

IN THE LOK ADALAT

(For settlement of cases relating to CGIT-cum-Labour

Court at Hyderabad

Under Section 20 of the Legal Services Authorities

Act, 1987)

The 16th day of December, Two thousand

and Eleven

PRESENT:

Sri Ved Prakash Gaur :

Presiding

Officer.

Sri C. Niranjan Rao

Member

(Constituted U/s 19 of the LSA Act, 1987 by the APSLSA

Order ROC No. 186/LSA/2006, dt. 22-8-2006)

In the matter of case No. LCID No. 19 of 2010/PLAC 56/

2011

(On the file of CGIT-cum-Labour Court at Hyderabad)

BETWEEN

Shaik Gaji Nawab, (EC. No. 287181), S/o Sk. Gude,

aged about 43 years,

Ex-General Mazdoor at VK No. 7 Incline,

Singareni Collieries Company Limited,

Kothagudem Area, Kothagudem, Khammam Dist.

.............PETITIONER

AND

1. The Singareni Collieries Company Limited,

rep. by its Chief General Manager,

Kothagudem Area, Kothagudem, Khammam Dist.

2. The Colliery Manager, VK-7 Incline,

Singareni Collieries Company Limited,

Kothagudem Area, Kothagudem, Khammam Dist.

.........RESPONDENTS

This case is coming up before the Lok Adalat on

16-12-2011 for settlement in the presence of the applicant

appearing in person/represented by his counsel Sri K.

Vasudeva Reddy and the Respondent too, being present

in person/represented by his counsel, Sri S.M. Subhani on

a perusal of the case record, after considering and hearing

the case of both sides and with the consent of both side,

the Lok Adalat has arrived at the following settlement and

delivered the following:

AWARD UNDER SECTION 21 OF THE L.S.A. ACT, 1987

The petitioner had agreed to the following proposals

of the Management, as the petitioner has put in 100 musters

in the two years of the preceding 5 years of dismissal and

raised the dispute within three years from the date of

dismissal from service. The contents are read over and

explained to the petitioner in his language and agreed by

him by signing the same.

a. The petitioner workman agreed to treat his

appointment as fresh appointment as Badli Filler

without back wages and continuity of service subject

to medical fitness by Company Medical Board.

Irrespective of past designations, petitioner workman

agrees to the appointment as Badli Filler afresh on

c. The petitioner workman agrees for observation of

one year with minimum mandatory 20 musters every

month and review every three months. In the event

of any short fall of attendance during the 3 months

period, his services will be terminated without any

further notice and enquiry.

Respondent Management agreed that any forced

abasenteeism on account of mine accidents/natural

disease, treatment taken at Company's Hospitals will

be deemed as attendance during the trial period.

e. All other usual terms and conditions of appointment

will be applicable i.e., transfer, hours of work, day of

rest, holidays etc., for appointment afresh.

This LCID is disposed of accordingly. The respondent

management is directed to take him back to duty as Badli

2084

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

Filler afresh.

In agreement of the above, the parties/counsel have

affixed their signatures/thumb impressions in the presence

of the members of this Lok Adalat Bench.

Sd/-

Signature of Applicant(s) Signature of Respondent(s)

Sd/-

Signature of Counsel for

Applicant(s)

Respondent(s)

Signature of Presiding Officer & Members of the Bench

1. Ved Prakash Gaur, Chairman

2. C. Niranjan Rao,

Mamber

Note: This award is final and binding on all the parties

and no appeal shall lie to any court as per Section 21(2) of

L.S.A. Act, 1987.

ubZ fnYyh] 6 Qjojh] 2012

dkñvkñ 844.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,lñlhñ,yñ,yñ

ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqca/

k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vf/kdj.k] gSnjkckn ds iapkV ¼,ylhvkbZMh la[;k 11@2010½

dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 06-02-2012 izkIr gqvk

FkkA

[lañ ,y&22013@1@2012&vkbZñvkjñ¼lh&II½]

Mhñ,lñ,lñ Jhfuokl] MsLd vfèdkjh

New Delhi, the 6th February, 2012

S.O. 844.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award of the Central

Government Industrial Tribunal-cum-Labour Court,

Hyderabad (CGIT/LCID/11/2010) as shown in the

Annexure, in the Industrial Dispute between the employers

in relation to the management of SCCL and their workmen,

which was received by the Central Government on

06.02.2012.

[No. L-22013/1/2012-IR(C-II)]

D.S.S. SRINIVASA RAO, Desk Officer

ANNEXURE

IN THE LOK ADALAT

(For settlement of cases relating to CGIT-cum-Labour

Court at Hyderabad Under Section 20 of the Legal

Services Authorities Act, 1987)

The 16th day of December, Two thousand and Eleven

PRESENT:

1. Sri Ved Prakash Gaur

Presiding Officer

2. Shri C. Niranjan Rao

Member

(Constituted U/s 19 of the LSA Act, 1987 by the APSLSA

Order ROC No. 186/LSA/2006, dt. 22-8-2006)

In the matter of case No. LCID No. 11 of 2010/PLAC 55/

2011

(On the file of CGIT-cum-Labour Court at Hyderabad)

BETWEEN

Gouravelli Krishna (EC No. 0980878),

S/o Rama Rao,

age about 39 years, Ex. Coal Cutter at GDK-1A

Incline,

Singareni Collieries Company Limited,

RG-I Area, Godavarikhani, Karimnagar District

PETITIONER

AND

1. The Singareni Collieries Company Limited,

rep. by its Chief General Manager,

Ramagundam Area-I, Ramagundam,

Karimnagar District.

2. The Superintendent of Mines,

Singareni Collieries Company Ltd.,

GDK-II Incline, Godavarikhani, Karimnagar

District.

RESPONDENTS

This case is coming up before the Lok Adalat on

16-12-2011 for settlement in the presence of the applicant

appearing in person/represented by his counsel Sri K.

Vasudeva Reddy and the Respondent too, being present

in person/represented by his counsel, Sri P.A.V.V.S. Sarma

on a perusal of the case record, after considering and hearing

the case of both sides and with the consent of both side,

the Lok Adalat has arrived at the following settlement and

delivered the following:

AWARD UNDER SECTION 21 OF THE L.S.A. ACT, 1987

The petitioner had agreed to the following proposals

of the Management, as the petitioner had put in 100 musters

in the two years of the preceding 5 years of dismissal and

raised the dispute within three years from the date of

dismissal from service. The contents are read over and

explained to the petitioner in his language and agreed by

him by signing the same.

a. The petitioner workman agreed to treat his

appointment as fresh appointment as Badli Filler

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

2085

without back wages and continuity of service subject

to medical fitness by Company Medical Board.

b. Irrespective of past designations, petitioner workman

agrees to the appointment as Badli Filler afresh on.

c. The petitioner workman agrees for observation of

one year with minimum mandatory 20 musters every

month and review every three months. In the event

of any short fall of attendance during the 3 months

period, his services will be terminated without any

further notice and enquiry.

d. Respondent Management agreed that any forced

absenteeism on account of mine accidents/natural

disease, treatment taken at Company's Hospitals will

be deemed as attendance during the trial period.

e. All other usual terms and conditions of appointment

will be applicable i.e., transfer, hours of work, day of

rest, holidays etc., for appointment afresh.

This LCID is disposed of accordingly. The respondent

management is directed to take him back to duty as Badli

Filler afresh.

In agreement of the above, the parties/counsel have

affixed their signatures/thumb impressions in the presence

of the members of this Lok Adalat Bench.

Sd/-

Signature of Applicant(s)

Signature of Respondent (s)

Sd/-

Signature of Counsel

for Applicant(s)

for Respondent(s)

Signature of Presiding Officer & Members of

the Bench

1. Ved Prakash Gaur, Chairman

2. C. Niranjan Rao,

Member

Note: This award is final and binding on all the parties

and no appeal shall lie to any court as per Section 21(2) of

L.S.A. ACT 1987.

ubZ fnYyh] 6 Qjojh] 2012

dkñvkñ 845.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,lñlhñlhñ,yñ

ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k

esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k]

gSnjkckn ds iapkV ¼,ylhvkbZMh la[;k 95@2009½ dks izdkf'kr

djrh gS] tks dsUnzh; ljdkj dks 06-02-2012 izkIr gqvk FkkA

[lañ ,y&22013@1@2012&vkbZñvkjñ¼lh&II½]

Mhñ,lñ,lñ Jhfuokl jko] MsLd vfèdkjh

New Delhi, the 6th February, 2012

S.O. 845.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award of the Cent. Govt.

Indus. Tribunal-cum-Labour Court, Hyderabad (CGIT/

LCID/95/2009) as shown in the Annexure in the Industrial

Dispute between the employers in relation to the

management SCCL and their workmen, which was received

by the Central Government on 06.02.2012.

[No. L-22013/1/2012-IR(C-II)]

D.S.S. SRINIVASA RAO, Desk Officer

ANNEXURE

IN THE LOK ADALAT

(For settlement of cases relating to CGIT-cum-Labour

Court at Hyderabad Under Section 20 of the Legal

Services Authorities Act, 1987)

The 16th day of December, Two thousand and Eleven

PRESENT:

Sri Ved Prakash Gaur

Presiding

Officer

Sri C. Niranjan Rao

Member

(Constituted U/s 19 of the LSA Act, 1987 by the APSLSA

Order ROC No. 186/LSA/2006, dt. 22-8-2006)

In the matter of case No. LCID No. 95 of 2009/PLAC 63/

2011

(On the file of CGIT-cum-Labour Court at Hyderabad)

BETWEEN

Gopisetty Krishna Reddy, (EC No. 2364086), S/o

Nasi Reddy,

aged about 38 years, worked as Badlifiller, Kasipet

Mine,

Singareni Collieries Company Limited,

Mandamarri Area, Adilabad District.

... PETITIONER

AND

1. The Singareni Collieries Company Limited,

rep. by its General Manager, Mandamarri,

Mandamarri Area, Adilabad District.

2. The Superintendent of Mines,

Singareni Collieries Company Ltd.,

Kasipet Mine, Mandamarri Area,

Adilabad District.

... RESPONDENTS

This case is coming up before the Lok Adalat on

16-12-2011 for settlement in the presence of the applicant

2086

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

appearing in person/represented by his counsel Sri K.

Vasudeva Reddy and the Respondent too, being present

in person/represented by his counsel, Sri M.V.H. Rao on a

perusal of the case record, after considering and hearing

the case of both sides and with the consent of both side,

the Lok Adalat has arrived at the following settlement and

delivered the following:

AWARD UNDER SECTION 21 OF THE L.S.A. ACT, 1987

The petitioner had agreed to the following proposals

of the Management, as the petitioner had put in 100 musters

in the two years of the preceding 5 years of dismissal and

raised the dispute within three years from the date of

dismissal from service. The contents are read over and

explained to the petitioner in his language and agreed by

him by signing the same.

a. The petitioner workman agreed to treat his

appointment as fresh appointment as Badli Filler

without back wages and continuity of service subject

to medical fitness by Company Medical Board.

b. Irrespective of past designations, petitioner workman

agrees to the appointment as Badli Filler afresh on.

c. The petitioner workman agrees for observation of

one year with minimum mandatory 20 musters every

month and review every three months. In the event

of any short fall of attendance during the 3 months

period, his services will be terminated without any

further notice and enquiry.

d. Respondent Management agreed that any forced

absenteeism on account of mine accidents/natural

disease, treatment taken at Company's Hospitals will

be deemed as attendance during the trial period.

e. All other usual terms and conditions of appointment

will be applicable i.e., transfer, hours of work, day of

rest, holidays etc., for appointment afresh.

This LCID is disposed of accordingly. The respondent

management is directed to take him back to duty as Badli

Filler afresh.

In agreement of the above, the parties/counsel have

affixed their signatures/thumb impressions in the presence

of the members of this Lok Adalat Bench.

Sd/-

Signature of Applicant(s) Signature of Respondent(s)

Sd/-

Signature of Counsel for

Applicant(s)

Respondent(s)

Signature of Presiding Officer & Members of the Bench

1. Ved Prakash Gaur, Chairman

2. C. Niranjan Rao,

Member

Note: This award is final and binding on all the parties

and no appeal shall lie to any court as per Section 21(2) of

L.S.A. ACT, 1987.

ubZ fnYyh] 6 Qjojh] 2012

dkñvkñ 846.—vkS|ksfxd fookn vfèfu;e 1947 ¼1947

dk 14½ dh èkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,lñ lhñ lhñ

,yñ ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp]

vuqcaè esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vfèdj.k] gSnjkckn ds iapkV ¼,ylhvkbZMh la[;k 123@2006½ dks

izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 06-02-2012 dks izkIr gqvk

FkkA

[lañ ,y&22013@1@2012&vkbZ vkj ¼lh&II½]

Mhñ,lñ,lñ Jhfuokl jko] MsLd vfèdkjh

New Delhi, the 6th February, 2012

S.O. 846.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award of the Cent. Govt.

Indus. Tribunal-cum-Labour Court, Hyderabad (CGIT/

LCID/123/2006) as shown in the Annexure in the Industrial

Dispute between the employers in relation to the

management SCCL and their workmen, which was received

by the Central Government on 06.02.2012.

[No. L-22013/1/2012-IR(C-II)]

D.S.S. SRINIVASA RAO, Desk Officer

ANNEXURE

IN THE LOK ADALAT

(For settlement of cases relating to CGIT-cum-Labour

Court at Hyderabad Under Section 20 of the Legal

Services Authorities Act, 1987)

The 16th day of December, Two thousand and Eleven

PRESENT:

Sri Ved Prakash Gaur :

Presiding Officer

Sri C. Niranjan Rao

Member

(Constituted U/s 19 of the LSA Act, 1987 by the APSLSA

Order ROC No. 186/LSA/2006, dt. 22-8-2006)

In the matter of case No. LCID No. 123 of 2006/

PLAC 64/2011

(On the file of CGIT-cum-Labour Court at Hyderabad)

BETWEEN

Erroju Satyanarayana (EC No. 2359099), S/o Venkatesham,

aged about 40 years, Ex-Badli Filler, KK-5 Incline,

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

2087

Singareni Collieries Company Limited,

Mandamarri Area, Adilabad District.

... PETITIONER

AND

Singareni Collieries Company Limited,

rep. by its General Manager,

Mandamarri Area, Mandamarri

Adilabad District.

The Superintendent of Mines,

KK-5 Incline, Singareni Collieries Company Ltd.,

Mandamarri Area, Mandamarri

Adilabad District.

... RESPONDENTS

This case is coming up before the Lok Adalat on

16-12-2011 for settlement in the presence of the applicant

appearing in person/represented by his counsel Sri K.

Vasudeva Reddy and the Respondent too, being present

in person/represented by his counsel, Sri P.A.V.V.S. Sarma

on a perusal of the case record, after considering and hearing

the case of both sides and with the consent of both side,

the Lok Adalat has arrived at the following settlement and

delivered the following:

AWARD UNDER SECTION 21 OF THE L.S.A. ACT, 1987

The petitioner had agreed to the following proposals

of the Management, as the petitioner had put in 100 musters

in the two years of the preceding 5 years of dismissal and

raised the dispute within three years from the date of

dismissal from service. The contents are read over and

explained to the petitioner in his language and agreed by

him by signing the same.

The petitioner workman agreed to treat his

appointment as fresh appointment as Badli Filler

without back wages and continuity of service subject

to medical fitness by Company Medical Board.

Irrespective of past designations, petitioner workman

agrees to the appointment as Badli Filler afresh on.

The petitioner workman agrees for observation of

one year with minimum mandatory 20 musters every

month and review every three months. In the event

of any short fall of attendance during the 3 months

period, his services will be terminated without any

further notice and enquiry.

Respondent Management agreed that any forced

absenteeism on account of mine accidents/natural

disease, treatment taken at Company's Hospitals will

be deemed as attendance during the trial period.

All other usual terms and conditions of appointment

will be applicable i.e., transfer, hours of work, day of

rest, holidays etc., for appointment afresh.

This LCID is disposed of accordingly. The respondent

management is directed to take him back to duty as Badli

Filler afresh.

In agreement of the above, the parties/counsel have

affixed their signatures/thumb impressions in the presence

of the members of this Lok Adalat Bench.

Sd/-

Signature of Applicant(s)

Signature of Respondent(s)

Sd/-

Signature of Counsel

Signature of Counsel for

for Applicant(s)

Respondent(s)

Signature of Presiding Officer & Members of the Bench

Ved Prakash Gaur, Chairman

2. C. Niranjan Rao,

Member

Note: This award is final and binding on all the parties

and no appeal shall lie to any court as per Section 21(2) of

LSA. ACT 1987.

ubZ fnYyh] 6 Qjojh] 2012

dkñvkñ 847.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa]dsUnzh; ljdkj ,l-lh-lh-,y-

ds izca/kr= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqca/

k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vf/kdj.k] gSnjkckn ds iapkV ¼,ylhvkbZMh la[;k 83@2007½ dks

izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 6@2@2012 dks izkIr gqvk FkkA

[lañ ,y&22013@1@2012&vkbZ vkj ¼lh&II½]

Mh-,l-,l- Jhfuokl jko] MsLd vf/kdkjh

New Delhi, the 6th February, 2012

S.O. 847.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award of the Cent. Govt.

Indus.Tribunal-cum-Labour Court, Hyderabad (CGIT/

LCID/83/2007) as shown in the Annexure in the Industrial

Dispute between the employers in relation to the

management of SCCL and their workmen, which was

received by the Central Government on 06.02.2012

[No. L-22013/1/2012-IR (C-II)]

D.S.S. SRINIVASA RAO, Desk Officer

ANNEXURE

IN THE LOK ADALAT

(For settlement of cases relating to CGIT-cum-Labour

Court at Hyderabad Under Section 20 of the Legal

Services Authorities Act, 1987)

The 16th day of December, Two thousand and Eleven

PRESENT:

Sri Ved Prakash Gaur

Presiding Officer.

2088

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

Sri C. Niranjan Rao

Member

(Constituted U/s 19 of the LSA Act, 1987 by the APSLSA

Order ROC No. 186/LSA/2006, dt. 22.8.2006)

In the matter of case No. LCID No. 83 of 2007/PLAC 61/

2011

(On the file of CGIT-cum-Labour Court at Hyderabad)

BETWEEN

Rodda Shyam Kumar, (EC No. 2904933), S/o. Kanakaiah,

aged about 33 years, worked as Coal Filler at RK-6 Incline,

Singareni Collieries Company Limited,

Srirampur Area, Srirampru, Adilabad Dist.

.PETITIONER

AND

The Singareni Collieries Company Limited,

rep. by its Director (PA & W),

Kothagudem, Khammam District.

The Chief General Manager,

Singareni Collieries Company Ltd.,

Srirampur Area, Srirampru, Adilabad Dist.

The Superintendent of Mines,

RK-6 Incline,

Singareni Collieries Company Ltd.,

Srirampur Area, Srirampru,

Adilabad Dist.

...RESPONDENTS

This case is coming up before the Lok Adalat on

16.12.2011 for settlement in the presence of the applicant

appearing in person/represented by his counsel Sri K.

Vasudeva Reddy and the Respondent too, being present

in person/represented by his counsel, Sri P.A.V.V.S. Sarma

on a perusal of the case record, after considering and

hearing the case of both sides and with the consent of

both side, the Lok Adalat has arrived at the following

settlement and delivered the following:

AWARD UNDER SECTION 21 OF THE L.S.A. ACT, 1987

The petitioner had agreed to the following proposals

of the Management, as the petitioner had put in 100 musters

in the two years of the preceding 5 years of dismissal and

raised the dispute within three years from the date of

dismissal from service. The contents are read over and

explained to the petitioner in his language and agreed by

him by signing the same.

a. The petitioner workman agreed to treat his

appointment as fresh appointment as Badli Filler

without back wages and continuity of service subject

to medical fitness by Company Medical Board.

b. Irrespective of past designations, petitioner workman

agrees to the appointment as Badli Filler afresh on.

c. The petitioner workman agrees for observation of

one year with minimum mandatory 20 musters every

month and review every three months. In the event

of any short fall of attendance during the 3 months

period, his services will be terminated without any

further notice and enquiry.

d. Respondent Management agreed that any forced

absenteeism on account of mine accidents/natural

disease, treatment taken at Company's Hospitals will

be deemed as attendance during the trial period.

e. All other usual terms and conditions of appointment

will be applicable i.e., transfer, hours of work, day of

rest, holidays etc., for appointment afresh.

This LCID is disposed of accordingly. The respondent

management is directed to take his back to duty as Badli

Filler afresh.

In agreement of the above, the parites/counsel have

affixed their signatures/thumb impressions in the presence

of the members of this Lok Adalat Bench.

Sd/-

Signature of Applicant(s)

Signature of Respondent (s)

Sd/-

Signature of Counsel

for Applicant (s)

for Respondent (s)

Signaute of Presiding Officer & Members of the Bench

Sh. Ved Prakash Gaur, Chairman

C. Niranjan Rao, Member

Note: This award is final and binding on all the parties

and no appeal shall lie to any court as per Section 21(2) of

L.S.A. ACT, 1987.

ubZ fnYyh] 6 Qjojh] 2012

dkñvkñ 848.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,l-lh-lh-,y-

ds izca/kr= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqca/

k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vf/kdj.k] gSnjkckn ds iapkV ¼,ylhvkbZMh la[;k 18@2008½ dks

izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 06-02-012 dks izkIr gqvk

FkkA

[lañ ,y&22013@1@2012&vkbZ vkj ¼lh&II½]

Mh-,l-,l- Jhfuokl jko] MsLd vf/kdkjh

New Delhi, the 6th February, 2012

S.O. 848.—.In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award of the Cent. Govt.

Indus.Tribunal-cum-Labour Court, Hyderabad (CGIT/

LCID/18/2008) as shown in the Annexure in the Industrial

Dispute between the employers in relation to the

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

2089

management of SCCL and their workmen, which was

received by the Central Government on 06.02.2012.

[No. L-22013/1/2012-IR (C-II)]

D.S.S. SRINIVASA RAO, Desk Officer

ANNEXURE

IN THE LOK ADALAT

(For settlement of cases relating to CGIT cum Labour

Court at Hyderabad Under Section 20 of the Legal

Services Authorities Act, 1987)

the 9th day of September, Two thousand and Eleven

PRESENT:

Sri Ved Prakash Gaur :

Presiding Officer.

Sri C. Niranjan Rao

Member

(Constituted U/s 19 of the LSA Act, 1987 by the APSLSA

Order ROC No. 186/LSA/2006 dt. 22.8.2006)

In the matter of case No. LCID No. 18 of 2008/PLAC 47/

2011

(On the file of CGIT cum Labour Court at Hyderabad)

BETWEEN:

Naini Rajesham, (EC. No. 2574665), S/o Laxmaiah, aged

about 47 years,

EX-Coal Filler, RK-NT Incline,

Singareni Collieries Company Limited,

Srirampur Area, Srirampur, Adilabad District

.....Petitioner

AND

The Singareni Collieries Company Limited,

rep. by its Chief General Manager,

Srirampur Area, Srirampur, Adilabad Distt.

The Superintendent of Mines,

RK-NT Incline, Singareni Colliries Company Limited,

Srirampur Area, Srirampur, Adilabad Distt.

---Respondents

This case is coming up before the Lok Adalat on

9.9.2011 for settlement in the presence of the applicant

appearing in person/represented by his counsel Sri K.

Vasudeva Reddy and the Respondent too, being present

in person/represented by his counsel, Sri H.V. Hanumantha

Rao on a perusal of the case record, after considering and

hearing the case of both sides and with the consent of

both side, the Lok Adalat has arrived at the following

settlement and delivered the following:

AWARD UNDER SECTION 21 OF THE L.S.A. ACT, 1987

The petitioner had agreed to the following proposals

of the Management, as the petitioner had put in 100 musters

in the two years of the preceding 5 years of dismissal and

raised the dispute within three years from the date of

dismissal from service. The contents are read over and

explained to the petitioner in his language and agreed by

him by signing the same.

a. The petitioner workman agreed to treat his

appointment as fresh appointment as Badli Coal Filler

without back wages and continuity of service subject

to medical fitness by Company Medical Board.

b. Irrespective of past designations, petitioner workman

agrees to the appointment as Badli Coal Filler afresh

on Coal filling, wherever coal filling is available and

need not be the same place where the workmen was

last employed.

c. The petitioner workman agrees for observation of one

year with minimum mandatory 20 musters every month

and review every three months on coal filling only is

absolutely essential. In the event of any short fall of

attendance during the 3 months period, his services

will be terminated without any further notice and enquiry.

d. Respondent Management agreed that any forced

absenteeism on account of mine accidents/natural

disease, treatment taken at Company's Hospitals will

be deemed as attendance during the trial period.

e. All other usual terms and conditions of appointment

will be applicable i.e., transfer, hours of work, day of

rest, holidays etc., for appointment afresh.

This LCID is disposed of accordingly. The respondent

management is directed to take him back to duty as Badli

Coal Filler afresh wherever coal filling is available.

In agreement of the above, the parties/counsel have

affixed their signatures/thumb impressions in the presence

of the members of this Lok Adalat Bench.

Sd/-

Signature of Applicant(s)

Signature of Respondent (s)

Sd/-

Signature of Counsel

for Applicant (s)

for Respondent (s)

Signaute of Presiding Officer & Members of the Bench

Ved Prakash Gaur,

2. C. Niranjan Rao, Member

Note: This award is final and binding on all the parties

and no appeal shall lie to any court as per Section 21(2) of

LSA. ACT 1987.

ubZ fnYyh] 6 Qjojh] 2012

dkñvkñ 849.—vkS|ksfxd fookn vf/kfu;e] 1947¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,lñ lhñ lhñ ,yñ

ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqca/k esa

fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k]

gSnjkckn ds iapkV ¼,ylhvkbZMh la[;k 42@2009½ dks izdkf'kr

djrh gS] tks dsUnzh; ljdkj dks 06@02@2012 dks izkIr gqvk FkkA

[ lañ ,y&22013@1@2012&vkbZ vkj ¼lh&II)]

Mhñ,lñ,lñ Jhfuokl jko] MsLd vf/kdkjh

2090

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

New Delhi the 6th February, 2012

S.O. 849.—In pursuance of Section 17 of the Industrial

Dispute Act, 1947 (14 of 1947), the Central Government hereby

publishes the award of the Cent. Govt. Indus. Tribunal-

cum-Labour Court, Hyderabad (CGIT/LCID/42/2009) as

shown in the Annexure in the Industrial Dispute between

the employers in relation to the management of SCCL and

their workmen, which was received by the Central

Government on 06.02.2012.

[ No. L-22013/1/2012-IR(C-II)]

D.S.S. SRINIVASA RAO, Desk Officer

ANNEXURE

IN THE LOK ADALAT

(For settlement of cases relating to CGIT cum Labour

Court at Hyderabad

Under Section 20 of the Legal Services Authorities

Act, 1987)

the 9th day of September, Two thousand and Eleven

PRESENT:

Sri Ved Prakash Gaur :

Presiding Officer.

Sri C. Niranjan Rao

Member

(Constituted U/s 19 of the LSA Act, 1987 by the

APSLSA Order ROC No. 186/LSA/2006 dt. 22.8.2006)

In the matter of case No. LCID No. 42 of 2009 PLAC

49/2011

(On the file of CGIT cum Labour Court at Hyderabad)

BETWEEN:

Muthyala Kumara Swamy (EC No. 0992922),

S/o Venkataiah,

aged about 42 years, ex-Badli Filler at GDK 2A- Incline,

Signarani Collieries Company Ltd.,

Godavarikhani, Karimnagar District. .....Petitioner

AND

The Signareni Collieries Ltd.,

rep. by its General Manager,

Ramagundam Area-I,

Ramagundam, Karimnagar District

The Colliery Manager/Superintendent of Mines,

Singareni Collieries Company Limited,

GDK-2A Incline, Karimnagar District

.....Respondents

This case is coming up before the Lok Adalat on

9.9.2011 for settlement in the presence of the applicant

appearing in person/represented by his counsel Sri K.

Vasudeva Reddy and the Respondent too, being present

in person/represented by his counsel, Sri S. M. Subhani on

a perusal of the case record, after considering and hearing

the case of both sides and with the consent of both side,

the lok Adalat has arrived at the following settlement and

delivered the following:

AWARD UNDER SECTION 21 OF THE L.S.A. ACT, 1987

The petitioner had agreed to the following proposals

of the Management, as the petitioner had put in 100 musters

in the two years of the preceding 5 years of dismissal and

raised the dispute within three years from the date of

dismissal from service. The contents are read over and

explained to the petitioner in his language and agreed by

him by signing the same.

a. The petitioner workman agreed to treat his

appointment as fresh appintment as Badli Coal Filler

without back wages and continuity of service subject

to medical fitness by Company Medical Board.

b. Irrespective of past designations, petitioner workman

agrees to the appointment as Badli Coal Filler afresh

on Coal filling, wherever coal filling is available and

need not be the same place where the workmen was

last employed.

c. The petitioner workman agrees for observation of

one year with minimum mandatory 20 musters every

month and review every three months on coal filling

only is absolutely essential. In the event of any short

fall of attendance during the 3 months period, his

services will be terminated without any further notice

and enquiry.

d. Respondent Management agreed that any forced

absenteeism on account of mine accidents/natural

disease, treatment taken at Company's Hospitals will

be deemed as attendance during the trial period.

e. All other usual terms and conditions of appointment

will be applicable i.e., transfer, hours of work, day of

rest, holidays etc., for appointment afresh.

This LCID is disposed of accordingly. The respondent

management is directed to take him back to duty as Badli

Coal Filler afresh wherever coal filling is available.

In agreement of the above, the parties/counsel have

affixed their signatures/thumb impressions in the presence

of the members of this Lok Adalat Bench.

Sd/-

Signature of Applicant(s)

Signature of Respondent (s)

Sd/-

Signature of Counsel

forApplicant (s)

for Respondent (s)

Signatue of Presiding Officer & Members of the Bench

Ved Prakash Gaur,

2. C. Niranjan Rao,

Chairman

Member

Note: This award is final and binding on all the parties

and no appeal shall lie to any court as per Section 21(2) of

LSA. ACT 1987.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

2091

ubZ fnYyh] 6 Qjojh] 2012

dkñvkñ 850.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947

dk 14½ dh èkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,lñ lhñ lhñ

,yñ ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp]

vuqcaè esas fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vfèdj.k] gSnjkckn ds iapkV ¼,ylhvkbZMh la[;k 54@2008½ dks

izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 06@02@2012 dks izkIr gqvk

FkkA

[lañ ,y&22013@1@2012&vkbZ vkj ¼lh&II½]

Mhñ,lñ,lñ Jhfuokl jko] MsLd vfèdkjh

New Delhi, the 6th February, 2012

S.O. 850.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award of the Cent. Govt.

Indus. Tribunal-cum-Labour Court, Hyderabad (CGIT/

LCID/54/2008) as shown in the Annexure in the Industrial

Dispute between the employers in relation to the

management of SCCL and their workmen, which was

received by the Central Government on 06.02.2012.

[No. L-22013/1/2012-IR(C-II)]

D.S.S. SRINIVASA RAO, Desk Officer

ANNEXURE

IN THE LOK ADALAT

(For settlement of cases relating to CGIT cum Labour

Court at Hyderabad Under Section 20 of the Legal

Services Authorities Act, 1987)

the 9th day of September, two thousand and Eleven

PRESENT:

Sri Ved Prakash Gaur :

Presiding Officer.

Sri C. Niranjan Rao

Member

Sri

Member

(Constituted U/s 19 of the LSA Act, 1987 by the APSLSA

Order ROC No. 186/LSA/2006 dt. 22-8-2006)

In the matter of case No. LCID No. 54 of 2008/PLAC

50/2011

(On the file of CGIT cum Labour Court at Hyderabad)

BETWEEN

Godala Narayana (EC No. 20352 of Sx Rajarah,)

Singareni Collieries Co. Ltd. SRP 343A Incline

Srirampur Area, Adilabad Distt.

Petitioner

AND

The Singareni Collieries Co. Ltd.

Rep. by its General Manager,

Srirampur Area Adilabad Distt.

The Superintendent of Mines,

Rep. by M/s Singareri Collieries Co. Ltd.

SRP 343A Incline Srirampur, Adilabad

Respondents

This case is coming up before the Lok Adalat on

9-9-2011 for settlement in the presence of the applicant

appearing in person/represented by his counsel

Sri K.Vasudeva Reddy and the Respondent too, being

present in person/represented by his counsel, Sri PAVVS

SARMA on a perusal of the case record, after considering

and hearing the case of both sides and with the consent of

both side, the Lok Adalat has arrived at the following

settlement and delivered the following:

AWARD UNDER SECTION 21 OF THE L.S.A. ACT, 1987

The petitioner had agreed to the following proposals

of the Management, as the petitioner had put in 100 musters

in the two years of the preceding 5 years of dismissal and

raised the dispute within three years from the date of

dismissal from service. The contents are read over and

explained to the petitioner in his language and agreed by

him by signing the same.

The petitioner workman agreed to treat his

appointment as fresh appointment as Badli Coal Filler

without back wages and continuity of service subject

to medical fitness by Company Medical Board.

Irrespective of past designations, petitioner workman

agrees to the appointment as Badli Coal Filler afresh

on Coal filling, wherever coal filling is available and

need not be the same place where the workmen was

last employed.

The petitioner workman agrees for observation of one

year with minimum mandatory 20 musters every months

and review every three months on coal filing only is

absolutely essential. In the event of any short fall of

attendance during the 3 months period, his services

will be terminated without any further notice and enquiry.

Respondent Management agreed that any forced

absenteeism on account of mine accidents/natural

disease, treatment taken at Company's Hospitals will

be deemed as attendance during the trial period.

All other usual terms and conditions of appointment

will be applicable i.e., transfer, hours of work, day of

rest, holidays etc., for appointment afresh.

This LCID is disposed of accordingly. the respondent

management is directed to take him back to duty as Badli

Coal Filer aftresh wherever coal filling is available.

In agreement of the above, the parties/counsel have

affixed their signatures/thumb impressions in the presence

of the members of this Lok Adalat Bench.

Sd/. illegible

Signature of Applicant(s)

Signature of Respondent (s)

Sd/. illegible

Signature of Counsel

Signature of Counsel for

Applicant (s)

for Respondent (s)

2092

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

Signature of Presiding Officer & Members of the

Bench

1. Ved Prakash Gaur, Chairman

2. C. Niranjan Rao,

Member

Note: This award is final and binding on all the parties

and no appeal shall lie to any court as per Section 21(2) of

LSA. ACT 1987.

ubZ fnYyh] 6 Qjojh] 2012

dkñvkñ 851.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ,l-lh-lh-,y-

ds izca/k ra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/

k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k]

gSnjkckn ds iapkV ¼,ylhvkbZMh la[;k & 76@2008½ dks izdkf'kr djrh

gS] tks dsUnzh; ljdkj dks 06&02&2012 dks izkIr gqvk FkkA

[lañ ,y&22013@1@2012&vkbZ vkj ¼lh&II½]

Mh-,l-,l- Jhfuokl jko] MsLd vf/kdkjh

New Delhi, the 6th February, 2012

S.O. 851.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award of the (Cent. Govt.

Indus. Tribunal-cum-labour Court, Hyderabad (CGIT/

LCID/76/2008) as shown in the Annexure in the Industrial

Dispute between the employers in relation to the

management of SCCL and their workmen, which was

received by the Central Government on 06.02.2012.

[No. L-22013/1/2012-IR(C-II)]

D.S.S. SRINIVASA RAO, Desk Officer

ANNEXURE

IN THE LOK ADALAT

(For settlement of cases relating to CGIT cum Labour

Court at Hyderabad Under Section 20 of the Legal

Services Authorities Act, 1987)

the 9th day of September, Two thousand and Eleven

PRESENT:

1. Sri Ved Prakash Gaur

Presiding Officer.

2. Sri C.Niranjan Rao

Member

3. Sri

Member

(Constituted U/s 19 of the LSA Act, 1987 by the

APSLSA Order ROC No. 186/LSA/2006, dt. 22-8-2006)

In the matter of case No. LCID No. 76 of 2008/PLAC

52/2011

(On the file of CGIT-cum-Labour Court at Hyderabad)

BETWEEN:

Thogari Nagesh, (EC No. 0995522), S/o Ramadas,

aged about 33 years, worked as Badli Filler at GDK-6A

Incline,

Singareni Collieries Company Limited,

Godavarikhani, Karimnagar Dist.

Petitioner

AND

The Singareni Collieries Company Limited,

rep. by its Chief General Manager,

Ramagundam Area-I, Godavarikhani,

Karimnagar District.

The Superintendent of Mines, GDK-1 Incline

Singareni Collieries Company Ltd.,

Godavarikhani, Karimnagar District.

Respondents

This case is coming up before the Lok Adalat on

9-9-2011 for settlement in the presence of the applicant

appearing in person/represented by his counsel Sri K.

Vasudeva Reddy and the Respondent too, being present

in person/represented by his counsel, Sri P.A.V.V.S. Sarma

on a perusal of the case record, after considering and hearing

the case of both sides and with the consent of both side,

the Lok Adalat has arrived at the following settlement and

delivered the following:

AWARD UNDER SECTION 21 OF THE L.S.A. ACT, 1987

The petitioner had agreed to the following proposals

of the Management, as the petitioner had put in 100 musters

in the two years of the preceding 5 years of dismissal and

raised the dispute within three years from the date of

dismissal from service. The contents are read over and

explained to the petitioner in his language and agreed by

him by signing the same.

The petitioner workman agreed to treat his

appointment as fresh appointment as Badli Coal

Filler without back wages and continuity of service

subject to medical fitness by Company Medical

Board.

Irrespective of past designations, petitioner workman

agrees to the appointment as Badli Coal Filler afresh

on Coal filling, wherever coal filling is available and

need not be the same place where the workmen was

last employed.

The petitioner workman agrees for observation of

one year with minimum mandatory 20 musters every

month and review every three months. On coal filing

only is absolutely essential. In the event of any short

fall of attendance during the 3 months period, his

services will be terminated without any further notice

and enquiry.

Respondent Management agreed that any forced

absenteeism on account of mine accidents/natural

disease, treatment taken at Company's Hospitals will

be deemed as attendance during the trial period.

All other usual terms and conditions of appointment

will be applicable i.e., transfer, hours of work, day of

rest, holidays etc., for appointment afresh.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

2093

This LCID is disposed of accordingly.The respondent

management is directed to take him back to duty as Badli

Coal Filler afresh wherever coal filling is available.

In agreement of the above, the parties/counsel have

affixed their signatures/thumbimpressions in the Resence

of the members of this Lok Adalat Bench.

Sd/. illegible

Signature of Applicant(s)

Signature of Respondent (s)

Sd/. illegible

Signature of Counsel

forApplicant (s)

for Respondent (s)

Signature of Presiding Officer & Members of the

Bench

1. Ved Prakash Gaur, Chairman

2. C. Niranjan Rao,

Member

Note: This award is final and binding on all the parties

and no appeal shall lie to any court as per Section 21(2) of

L.S.A. ACT. 1987.

ubZ fnYyh] 6 Qjojh] 2012

dkñvkñ 852.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,lñ lhñ lhñ

,yñ ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp]

vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/

kdj.k] gSnjkckn ds iapkV ¼,ylhvkbZMh la[;k 64@2007½ dks

izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 06@02@2010 dks izkIr gqvk

FkkA

[lañ ,y&22013@1@2012&vkbZ vkj ¼lh&II½]

Mhñ ,lñ ,lñ Jhfuokl jko] MsLd vf/kdkjh

New Delhi, the 6th February, 2012

S.O. 852.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award of the Cent, Govt.

Indus. Tribunal-cum-Labour Court, Hyderabad (CGIT/

LCID/64/2007) on shown in the Annexure in the Industrial

Dispute between the employers in relation to the

management of SCCL and their workmen, which was

received by the Central Government on 06.02.2012.

[No. L-22013/1/2012-IR(C-II)]

D.S.S. SRINIVASA RAO, Desk Officer

ANNEXURE

IN THE LOK ADALAT

(For settlement of cases relating to CGIT cum Labour

Court at Hyderabad Under Section 20 of the Legal

Services Authorities Act, 1987)

The 9th day of September, Two thousand and Eleven

PRESENT:

1. Sri Ved Prakash Gaur

Presiding Officer

2. Shri C. Niranjan Rao

Member

3. Shri

Member

(Constituted U/s 19 of the LSA Act, 1987 by the APSLSA

Order ROC No. 186/LSA/2006 dt. 22-8-2006)

In the matter of case No. LCID No. 64 of 2007/PLAC

51/2011

(On the file of CGIT cum Labour Court at Hyderabad)

BETWEEN:

K. Laxmikantha Rao (EC No. 0993392), S/o Narsing Rao,

age about 38 years, Ex-Badli Filler at GDK-6A Incline,

Singareni Collieries Company Limited,

Godavarikhani, Karimnagar District

....Petitioner

AND

The Singareni Collieries Company Limited,

rep. by its Chief General Manager,

RG-I Area, Godavarikhani,

Karimnagar District.

The Superintendent of Mines,

Singareni Collieries Company Ltd.,

GDK-6A Incline, Godavarikhani, Karimnagar District.

Khammam District.

...Respondents

This case is coming up before the Lok Adalat on 9-9-

2011 for settlement in the presence of the applicant

appearing in person/represented by his counsel Sri K.

Vasudeva Reddy and the Respondent too, being present

in person/represented by his counsel, Sri S.M.SUBHANI

on a perusal of the case record, after considering and hearing

the case of both sides and with the consent of both side,

the Lok Adalat has arrived at the following settlement and

delivered the following:

AWARD UNDER SECTION 21 OF THE L.S.A. ACT, 1987

The petitioner had agreed to the following proposals

of the Management, as the petitioner had put in 100 musters

in the two years of the preceding 5 years of dismissal and

raised the dispute within three years from the date of

dismissal from service. The contents are read over and

explained to the petitioner in his language and agreed by

him by signing the same.

The petitioner workman agreed to treat his

appointment as fresh appointment as Badli Coal Filler

without back wages and continuity of service subject

to medical fitness by Company Medical Board.

Irrespective of past designations, petitioner workman

agrees to the appointment as Badli Coal Filler afresh

on Coal filling, wherever coal filling is available and

need not be the same place where the workmen was

last employed.

The petitioner workman agrees for observation of

2094

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

one year with minimum mandatory 20 musters every

months and review every three months on coal filing

only is absolutely essential. In the event of any

short fall of attendance during the 3 months period,

his services will be terminated without any further

notice and enquiry.

Respondent Management agreed that any forced

absenteeism on account of mine accidents/natural

disease, treatment taken at Company's Hospitals will

be deemed as attendance during the trial period.

All other usual terms and conditions of appointment

will be applicable i.e., transfer, hours of work, day of

rest, holidays etc., for appointment afresh.

This LCID is disposed of accordingly. The respondent

management is directed to take him back to duty as Badli

Coal Filler aftresh wherever coal filling is available.

In agreement of the above, the parties/counsel have

affixed their signatures/thumb impressions in the presence

of the members of this Lok Adalat Bench.

Sd/-

Signature of Applicant(s)

Signature of Respondent (s)

Sd/-

Signature of Counsel

forApplicant (s)

for Respondent (s)

Signature of Presiding Officer & Members of the Bench

1. Ved Prakash Gaur, Chairman

2. C. N.iranjan Rao,

Member

Note: This award is final and binding on all the parties

and no appeal shall lie to any court as per Section 21(2) of

LSA. ACT 1987.

ubZ fnYyh] 6 Qjojh] 2012

dkñvkñ 853.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,lñ lhñ lhñ

,yñ ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp]

vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vf/kdj.k] gSnjkckn ds iapkV ¼,ylhvkbZMh la[;k 101@2007½ dks

izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 06-02-2012 dks izkIr gqvk

FkkA

[lañ ,y&22013@1@2012&vkbZ vkj ¼lh&II½]

Mhñ ,lñ ,lñ Jhfuokl jko] MsLd vf/kdkjh

New Delhi, the 6th February, 2012

S.O. 853.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award of the Cent. Govt.

Indus. Tribunal-cum-Labour Court, Hyderabad (CGIT/

LCID/101/2007) as shown in the Annexure in the Industrial

Dispute between the employers in relation to the

management of SCCL and their workmen, which was

received by the Central Government on 06.02.2012.

[No. L-22013/1/2012-IR(C-II)]

D.S.S.SRINIVASA RAO, Desk Officer

ANNEXURE

IN THE LOK ADALAT

(For settlment of cases relating to CGIT cum Labour

Court at Hyderabad

Under Section 20 of the Legal Services Authorities

Act, 1987)

the 9th day of September Two thousand and Eleven

Present:

1. Sri Ved Prakash Gaur

Presiding Officer.

2. Sri C. Niranjan Rao

Member

3. Sri

Member

(Constituted U/s 19 of the LSA Act, 1987 by the APSLSA

Order ROC No. 186/LSA/2006 dt. 22.8.2006)

In the matter of case No. LCID No. 101 of 2007/PLAC

53/2011

(On the file of CGIT cum Labour Court at Hyderabad)

Between:

Muthyala Sadanandam, (EC No. 0993994), S/o Lingaiah,

aged about 37 years, worked as Badli Filler at GDK-7 (L.E)

Project,

Singareni Collieries Company Limited,

Godavarikhani, Karimnagar Dist

... Petitioner

AND

The Signareni Collieries Company Limited,

rep. by its Chief General Manager,

RG-1 Area, Godavarikhani, Karimnagar District.

The Colliery Manager, GDK-7 (L.E) Project,

Singareni Collieries Company Ltd.,

Godavarikhan, Karimnagar District.

...........Respondents

This case is coming up before the Lok Adalat on 9-9-

2011 for settlement in the presence of the applicant

appearing in person/represented by his counsel Sri K.

Vasudeva Reddy and the Respondent too, being present

in person/represented by his counsel, Sri P.A.V.V.S. Sarma

on a persusal of the case record, after considering and

hearing the case of both sides and with the consent of

both side, the Lok Adalat has arrived at the following

settlement and delivered the following:

AWARD UNDER SECTION 21 OF THE L.S.A. ACT, 1987

The petitioner had agreed to the following proposals

of the Management, as the petitioner had put in 100 musters

in the two years of the preceding 5 years of dismissal and

raised the dispute within three years from the date of

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

2095

dismissal from service. The contents are read over and

explained to the petitioner in his language and agreed by

him by signing the same.

the petitioner workman agreed to treat his

appointment as fresh appointment as Badli Coal Filler

without back wages and continuity of service subject

to medical fitness by Company Medical Board.

Irrespective of past designations, petitioner workman

agrees to the appointment as Badli Coal Filler afresh

on Coal filling, Wherever coal filling is available and

need not be the same place where the workmen was

last employed.

The petitioner workman agrees for observation of

one year with minimum mandatory 20 musters every

months and review every three months on coal filling

only is absolutely essential. In the event of any short

fall of attendance during the 3 months period, his

services will be terminated without any further notice

and enquiry.

Respondent Management agreed that any forced

absenteeism on account of mine accidents/natural

disease, treatement taken at Company's Hospitals

will be deemed as attendance during the trial period.

All other usual terms and conditions of appointment

will be applicable i.e., transfer, hours of work, day of

rest, holidays etc., for appointment afresh.

This LCID is disposed of accoringly. The respondent

management is directed to take him back to duty as Badli

Coal Filler afresh wherever coal filling is available.

In agreement of the above, the parties/counsel have

affixed their signatures/thumb impressions in the presence

of the members of this Lok Adalat Bench.

Sd/. illegible

Signature of Applicant (s)

Signature of Respondent (s)

Sd/. illegible

Signature of Counsel

forApplicant (s)

for Respondent (s)

Signature of Presiding Officer & Members of the Bench

Ved Prakash Gaur,

C. Niranjan Rao,

Chairman

Member

Note: This Award is final and binding on all the parties

and no appeal shall lie to any court as per Section 21(2) of

LSA. ACT 1987.

ubZ fnYyh] 6 Qjojh] 2012

dkñvkñ 854.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,lñ lhñ lhñ

,yñ ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp]

vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vf/kdj.k] gSnjkckn ds iapkV ¼,ylhvkbZMh la[;k 143@2006½ dks

izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 06-02-2012 dks izkIr gqvk FkkA

[lañ ,y&22013@1@2012&vkbZ vkj ¼lh&II½]

Mhñ ,lñ ,lñ Jhfuokl jko] MsLd vf/kdkjh

New Delhi, the 6th February, 2012

S.O. 854.—In pursuance of Section 17 of the

Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the award of the Cent. Govt.

Indus. Tribunal-cum-Labour Court, Hyderabad (CGIT/

LCID/143/2006) as shown in the Annexure in the Industrial

Dispute between the employers in relation to the

management of SCCL and their workmen, which was

received by the Central Government on 06.02.2012.

[No. L-22013/1/2012-IR(C-II)]

D.S.S. SRINIVASA RAO, Desk Officer

ANNEXURE

IN THE LOK ADALAT

(For settlement of cases relating to CGIT cum Labour

Court at Hyderabad Under Setion 20 of the Legal

Services Authorities Act, 1987)

the 29th day of December, Two thousand and Eleven

PRESENT:

Sri Ved Prakash Gaur :

Presiding Officer

Sri C. Niranjan Rao

Member

Sri

Member

(Constituted U/s 19 of the LSA Act, 1987 by the APSLSA

Order ROC No. 186/LSA/2006 dt. 22-8.2006)

In the matter of case No. LCID No. 143 of 2006/PLAC

74/2011

(On the file of CGIT cum Labour Court at Hyderabad)

BETWEEN:

Birudula Shekar, (EC No. 2892411), S/o Mallaiah,

aged about 45 years,

Ex-Badli filler IK-1A Incline, SRP Division,

Singareni Collieries Company Ltd., Srirampur,

Adilabad District Petitioner

AND

The Singareni Collieries Company Limited,

rep. by its General Manager, Srirampur (P) Area,

Adialabad Dist.

The Colliery Manager,

IK-1A Incline,

Singareni Collieries Company Ltd., Srirampur,

Srirampur (P) Area, Adilabad District.

.....Respondents

This case is coming up before the Lok Adalat on

29.12.2011 for settlement in the presence of the applicant

appearing in person/represented by his counsel Sri K.

Vasudeva Reddy and the Respondent too, being present

in person/represented by his counsel, Sri P.A.V.V.S. Sarna

on a perusal of the case record, after considering and hearing

the case of both sides and with the consent of both side,

the Lok Adalat has arrived at the following settlement and

delivered the following.

AWARD UNDER SECTION 21 OF THE L.S.A.

2096

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

ACT, 1987

The petitioner had agreed to the following proposals

of the Management, as the petitioner had put in 100 musters

in the two years of the preceding 5 years of dismissal and

raised the dispute within three years from the date of

dismissal from service. The contents are read over and

explained to the petitioner in his language and agreed by

him by signing the same.

The petitioner workman agreed to treat his

appointment as fresh appointment as Badli Filler

without back wages and countinuity of service subject

to medical fitness by Company Medical Board.

Irrespective of past designations, petitioner workman

agrees to the appointment as Badli Filler afresh on.

The Petitioner workman agrees for observation of

one year with minimum madatory 20 musters every

month and review every three months. In the event

of any short fall of attendance during the 3 months

period, his services will be terminated without any

further notice and enquiry.

Respondent Management agreed that any forced

absenteeism on account of mine accidents/natural

disease, treatment taken at Company's Hospitals will

be deemed as attendance during the trial period.

All other usual terms and conditions of appointment

will be applicable i.e., transfer, hours of work, day of

rest, holidays etc., for appointment afresh.

This LCID is disposed of accordingly. The respondent

management is directed to take him back to duty as Badli

Filler afresh.

In agreement of the above the parties/counsel have

affixed their siignatures/thumb impressions in the presence

of the members of this Lok Adalat Bench.

Sd/. illegible

Signature of Applicant(s)

Signature of Respondent (s)

Sd/. illegible

Signature of Counsel

forApplicant (s)

for Respondent (s)

Signature of Presiding Officer & Members of the Bench

1. Ved Prakash Gaur, Chairman

2. C.Niranjan Rao,

Member

Note: This award is final and binding on all the parties

and no appeal shall lie to any court as per Section 21(2) of

LSA. Act 1987.

ubZ fnYyh] 6 Qjojh] 2012

dkñvkñ 855.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,lñ lhñ lhñ

,yñ ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp]

vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vf/kdj.k] gSnjkckn ds iapkV ¼,ylhvkbZMh la[;k 134@2007½ dks

izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 06@02@2012 dks izkIr gqvk FkkA

[lañ ,y&22013@1@2012&vkbZ vkj ¼lh&II½]

Mhñ,lñ,lñ Jhfuokl jko] MsLd vf/kdkjh

New Delhi, the 6th February, 2012

S.O. 855.—In pursuance of Section 17 of the

Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the award of the Cent.

Govt,Indus. Tribunal-cum-Labour Court, Hyderabad

(CGIT/LCID/134/2007) as shown in the Annexure in the

Industrial Dispute between the employees in relation to

the management of SCCL and their workmen, which was

received by the Central Government on 06.02.2012.

[No. L-22013/1/2012-IR(C-II)]

D.S.S. SRINIVASA RAO, Desk Officer

ANNEXURE

IN THE LOK ADALAT

(For settlement of case relating to CGIT cum Labour

Court at Hyderabad Under Section 20 of the Legal

Services Authorities Act, 1987)

the 29th day of December, two thousand and Eleven

Present:

Sri Ved Prakash Gaur :

Presiding Officer.

Sri C. Niranjan Rao

Member

Sri

Member

(Constituted U/s 19 of the LSA Act, 1987 by the APSLSA

Order ROC No. 186/LSA/2006 dt. 22-8-2006)

In the matter of case No. LCID No. 134 of 2007/PLAC

73/2011

(On the file of CGIT cum Labour Court at Hyderabad)

Between

Goleti Mallaiah, ) (EC No. 2083957), S/o Ankulu,

aged about 45 years, worked as Coal Filler at Goleti-1 Incline,

Singareni Collieries Company Limited,

Bellampally, Adilabad Dist.

....Petitioner

AND

The Singareni Collieries Company Limited,

rep. by its General Manager,

Bellampalli (Projects), Bellampalli, Adilabad Dist.

The Superintendent of Mines,

Singareni Collieries Company Ltd.,

Goleri-1, Incline, Bellampalli, Adilabad Dist.

....Respondents

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

2097

This case is coming up before the Lok Adalat on

29.12.2011 for settlement in the presence of the applicant

appearing in person/represented by his counsel Sri K.

Vasudeva Reddy and the Respondent too, being present

in person/represented by his counel, Sri M.V.H. Rao on a

perusal of the case record, after considering and hearing

the case of both sides and with the consent of both side,

the Lok Adalat has arrived at the following settlement and

delivered the following:

AWARD UNDER SECTION 21 OF THE L.S.A. ACT, 1987

The petitioner had agreed to the following proposals

of the Management, as the petitioner had put in 100 musters

in the two years of the preceding 5 years of dismissal and

raised the dispute within three years from the date of

dismissal from service. The contents are read over and

explained to the petitioner in his language and agreed by

him by signing the same.

The petitioner workman agreed to treat his

appointment as fresh applointment as Badli Filler

without back wages and continuity of service subject

to medical fitness by Company Medical Board.

Irrespective of past designations, petitioner workman

agrees to the appointment as Badli Filler afresh on.

The petitioner workman agrees for observation of

one year with minimum mandatory 20 musters every

month and review every three months. In the event

of any short fall of attendance during the 3 months

period, his services will be terminated without any

further notice and enquiry.

Respondent Management agreed that any forced

absenteeism on account of mine accidents/natural

disease, treatment taken at Company's Hospitals will

be deemed as attendance during the trial period.

All other usual terms and conditions of appointment

will be applicable i.e. transfer, hours of work, day of

rest, holidays etc., for appointment afresh.

This LCID is disposed of accordingly. The respondent

management is directed to take him back to duty as Badli

Filler afresh.

In agreement of the above, the parties/counsel have

affixed their signatures/thumb impressions in the presence

of the members of this Lok Adalat Bench.

Sd/. illegible

Signature of Applicant(s)

Signature of Respondent (s)

Sd/-

Signature of Counsel

forApplicant (s)

for Respondent (s)

Signature of Presiding Officer & Members of the

Bench

1. Ved Prakash Gaur,

2. C. Niranjan Rao,

Chairman

Member

Note: This award is final and binding on all the parties

and no appeal shall lie to any court as per Section 21(2) of

LSA. ACT 1987.

ubZ fnYyh] 6 Qjojh] 2012

dkñvkñ 856.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,lñ lhñ lhñ

,yñ ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp]

vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/

kdj.k] gSnjkckn ds iapkV ¼,ylhvkbZMh la[;k 35@2007½ dks izdkf'kr

djrh gS] tks dsUnzh; ljdkj dks 06@02@2012 dks izkIr gqvk FkkA

[lañ ,y&22013@1@2012&vkbZ vkj ¼lh&II½]

Mhñ,lñ,lñ Jhfuokl jko] MsLd vf/kdkjh

New Delhi, the 6th February, 2012

S.O. 856.—In pursuance of Section 17 of the

Industrial Dispute Act, 1947 (14 of 1947), the Central

Governemnt hereby publishes the award of the

Cent.Govt.Indust.Tribunal-cum-Labour

Court,

Hyderabad (CGIT/LCID/35/2007) as shown in the

Annexure in the Industrial Dispute between the employees

in relation to the management of SCCL and their workmen,

which was received by the Central Governemnt on

06.02.2012.

[No. L-22013/1/2012-IR(C-II)]

D.S.S.SRINIVASA RAO, Desk Officer

ANNEXURE

IN THE LOK ADALAT

(For settlement of cases relating to CGIT cum

Labour Court at Hyderabad Under Section 20 of the

Legal Services Authorities Act, 1987)

the 9th day of September Two thousand and

Eleven

Present:

Sri Ved Prakash Gaur :

Presiding Officer.

Sri C. Niranjan Rao

Member

Sri

Member

(Constituted U/s 19 of the LSA Act, 1987 by the

2098

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

APSLSA Order ROC No.. 186/LSA/2006 dt. 22-8-2006)

In the matter of case No. LCID No. 35 of 2007/

PLAC 48/2011

(On the file of CGIT cum Labour Court at

Hyderabad)

BETWEEN:

Talla Ramesh, (EC.No.2904886), S/o Narsaiah,

aged about 31 years,

Ex-Badli Filler, IK-1 Incline, Singareni Collieries Company

Ltd., Sri Rampur, Adilabad District

.... Petitioner

And

The Singareni Collieries Company Ltd.,

rep. by its Director (PA & W),

Kothagudem, Khammam District.

The Superintendent of Mines,

Singareni Collieries Company Ltd.,

IK-1 Incline, Srirampur Projects Area, Srirampur

(Projects),

Srirampur Adilabad District.

.... Respondents

This case is coming up before the Lok Adalat on 9-9-

2011 for settlement in the presence of the applicant

appearing in person/represented by his counsel Sri K.

Vasudeva Reddy and the Respondent too, being present

in person/represented by his counsel, Sri M. V. Hanumantha

Rao on a perusal of the case record, after considering and

hearing the case of both sides and with the consent of

both side, the Lok Adalat has arrived at the following

settlement and delivered the following:

AWARD UNDER SECTION 21 OF THE L.S.A. ACT, 1987

The petitioner had agreed to the following proposals

of the Management, as the petitioner had put in 100 musters

in the two years of the preceding 5 years of dismissal and

raised the dispute within three years from the date of

dismissal from service. The contents are read over and

explained to the petitioner in his language and agreed by

him by signing the same.

The petitioner workman agreed to treat his

appointment as fresh appointment as Badli Coal Filler

without back wages and continuity of service subject

to medical fitness by Company Medical Board.

Irrespective of past designations, petitioner workman

agrees to the appointment as Badli Coal Filler afresh

on Coal filling, wherever coal filling is available and

need not be the same place where the workmen was

last employed.

The petitioner workman agrees for observation of

one year with minimum mandatory 20 musters every

month and review every three months on coal filing

only is absolutely essential. In the event of any short

fall of attendance during the 3 months period, his

services will be terminated without any further notice

and enquiry.

Respondent Management agreed that any forced

absenteeism on account of mine accidents/natural

disease, treatment taken at Company's Hospitals will

be deemed as attendance during the trial period.

All other usual terms and conditions of appointment

will be applicable i.e., transfer, hours of work, day of

rest, holidays etc., for appointment afresh.

This LCID is disposed of accordingly. The respondent

management is directed to take him back to duty as Badli

Coal Filer afresh wherever coal filling is available.

In agreement of the above, the parties/counsel have

affixed their signatures/thumb impressions in the presence

of the members of this Lok Adalat Bench.

Sd/-

Signature of Applicant(s)

Signature of Respondent (s)

Sd/-

Signature of Counsel

forApplicant (s)

for Respondent (s)

Signature of Presiding Officer & Members of the Bench

1. Ved Prakash Gaur,

2. C. Niranjan Rao,

Chairman

Member

Note: This award is final and binding on all the parties

and no appeal shall lie to any court as per Section 21(2) of

LSA. ACT 1987.

ubZ fnYyh] 6 Qjojh] 2012

dkñvkñ 857.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,lñ lhñ lhñ

,yñ ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp]

vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vf/kdj.k] gSnjkckn ds iapkV ¼,ylhvkbZMh la[;k 38@2009½ dks izdkf'kr

djrh gS] tks dsUnzh; ljdkj dks 06@02@2012 dks izkIr gqvk FkkA

[lañ ,y&22013@1@2012&vkbZvkj ¼lh&II½]

Mhñ ,lñ ,lñ Jhfuokl jko] MsLd vf/kdkjh

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

2099

New Delhi, the 6th February, 2012

S.O. 857.—In Pursuance of Section 17 of the

Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the award of the Cent. Govt.

Indus. Tribunal-cum-Labour Court, Hyderabad (CGIT/

LCID/38/2009) as shown in the Annexure in the Industrial

Dispute between the employers in relation to the

management of SCCL and their workmen, which was

received by the Central Government on 06.02.2012.

[No. L-22013/1/2012- IR(C-II)]

D.S.S. SRINIVASA RAO, Desk Officer

ANNEXURE

IN THE LOK ADALAT

(For settlement of cases relating to CGIT cum Labour

Court at Hyderabad Under Section 20 of the Legal

Services Authorities Act, 1987)

the 29th day of December, Two thousand and Eleven

PRESENT:

Sri Ved Prakash Gaur

Presiding Officer.

Sri C. Niranjan Rao

Member

Sri

Member

(Constituted U/s 19 of the LSA Act, 1987 by the APSLSA

Order ROC No. 186/LSA/2006 dt. 22-8-2006)

In the matter of case No. LCID No. 38 of 2009/PLAC

71/2011

(On the file of CGIT cum Labour Court at Hyderabad)

BETWEEN:

Chilumula Ravi, S/o Lingaiah, (E.C. No. 2360090)

aged about 31 years, Ex-Coal Filler at MK-4 Incline,

Singareni Collieries Company Limited,

Mandamarri Area, Mandamarri, Adilabad District

.... PETITIONER

And

The Singareni Collieries Company Ltd.,

rep. by its General Manager,

Mandamarri Area, Mandamarri, Adilabad District.

The Colliery Manager,,

MK-4 Incline, Singareni Collieries Company Limited,

Mandamarri Area, Mandamarri, Adilabad District

.... Respondents

This case is coming up before the Lok Adalat on

29-12-2011 for settlement in the presence of the applicant

appearing in person/represented by his counsel Sri K.

Vasudeva Reddy and the Respondent too, being present

in person/represented by his counsel, Sri M. V. H. Rao on a

perusal of the case record, after considering and hearing

the case of both sides and with the consent of both side,

the Lok Adalat has arrived at the following settlement and

delivered the following:

AWARD UNDER SECTION 21 OF THE L.S.A. ACT, 1987

The petitioner had agreed to the following proposals

of the Management, as the petitioner had put in 100 musters

in the two years of the preceding 5 years of dismissal and

raised the dispute within three years from the date of

dismissal from service. The contents are read over and

explained to the petitioner in his language and agreed by

him by signing the same.

a. The petitioner workman agreed to treat his

appointment as fresh appointment as Badli Filler

without back wages and continuity of service subject

to medical fitness by Company Medical Board.

b. Irrespective of past designations, petitioner workman

agrees to the appointment as Badli Filler afresh on.

c. The petitioner workman agrees for observation of

one year with minimum mandatory 20 musters every

month and review every three months. In the event

of any short fall of attendance during the 3 months

period, his services will be terminated without any

further notice and enquiry.

d. Respondent Management agreed that any forced

absenteeism on account of mine accidents/natural

disease, treatment taken at Company's Hospitals will

be deemed as attendance during the trial period.

e. All other usual terms and conditions of appointment

will be applicable i.e., transfer, hours of work, day of

rest, holidays etc., for appointment afresh.

This LCID is disposed of accordingly. The respondent

management is directed to take him back to duty as Badli

Filer afresh.

In agreement of the above, the parties/counsel have

affixed their signatures/thumb impressions in the presence

of the members of this Lok Adalat Bench.

Sd/. illegible

Signature of Applicant(s)

Signature of Respondent (s)

Sd/. illegible

Signature of Counsel

forApplicant (s)

Respondent (s)

Signature of Presiding Officer & Members of the Bench

Ved Prakash Gaur,

C. Niranjan Rao,

Chairman

Member

Note: This award is final and binding on all the parties

and no appeal shall lie to any court as per Section 21(2) of

LSA. ACT 1987.

2100

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

ubZ fnYyh] 6 Qjojh] 2012

dkñvkñ 858.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,lñ lhñ lhñ

,yñ ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp]

vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/

kdj.k] gSnjkckn ds iapkV ¼,ylhvkbZMh la[;k 20@2010½ dks izdkf'kr

djrh gS] tks dsUnzh; ljdkj dks 06@02@2012 dks izkIr gqvk FkkA

[lañ ,y&22013@1@2012 &vkbZ vkj ¼lh&II½]

Mhñ ,lñ ,lñ Jhfuokl jko] MsLd vf/kdkjh

New Delhi, the 6th February, 2012

S.O. b858.—In Pursuance of Section 17 of the

Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the award of the Cent. Govt.

Indus. Tribunal-cum-Labour Court, Hyderabad (CGIT/

LCID/20/2010) as shown in the Annexure in the Industrial

dispute between the employers in relation to the

management of SCCL and their workmen, which was

received by the Central Government on 06.02.2012.

[No. L-22013/1/2012- IR(C-II)]

D.S.S. SRINIVASA RAO, Desk Officer

ANNEXURE

IN THE LOK ADALAT

(For settlement of cases relating to CGIT cum Labour

Court at Hyderabad Under Section 20 of the Legal

Services Authorities Act, 1987)

the 29th day of December, Two thousand and Eleven

PRESENT:

1.Sri Ved Prakash Gaur, Presiding Officer.

2. Sri C. Niranjan Rao, Member

3. Sri, Member

(Constituted U/s 19 of the LSA Act, 1987 by the

APSLSA Order ROC No. 186/LSA/2006 dt. 22-8-2006)

In the matter of case No. LCID No. 20 of 2010/PLAC

70/2011

(On the file of CGIT cum Labour Court at Hyderabad)

BETWEEN:

M. Venkataramana, (EC.No.4049137), S/o

Suryanarayana, aged about 40 years,

Ex-Coal filler at PK-1 Incline,

Singareni Collieries Company Limited,

Manuguru Area, Manuguru, Khammam District ....

Petitioner

And

The Singareni Collieries Company Ltd.,

Kothagudem, Khammam District

rep. by its Director (PA & W),.

The Chief General Manager,

Singareni Collieries Company Ltd.,

Manuguru Area, Manuguru, Khammam District.

.... Respondents

This case is coming up before the Lok Adalat on

29-12-2011 for settlement in the presence of the applicant

appearing in person/represented by his counsel Sri K.

Vasudeva Reddy and the Respondent too, being present

in person/represented by his counsel, Sri S.M. Subhani on

a perusal of the case record, after considering and hearing

the case of both sides and with the consent of both side,

the Lok Adalat has arrived at the following settlement and

delivered the following:

AWARD UNDER SECTION 21 OF THE L.S.A. ACT,

1987

The petitioner had agreed to the following proposals

of the Management, as the petitioner had put in 100 musters

in the two years of the preceding 5 years of dismissal and

raised the dispute within three years from the date of

dismissal from service. The contents are read over and

explained to the petitioner in his language and agreed by

him by signing the same.

The petitioner workman agreed to treat his

appointment as fresh appointment as Badli Filler

without back wages and continuity of service subject

to medical fitness by Company Medical Board.

Irrespective of past designations, petitioner workman

agrees to the appointment as Badli Coal Filler

afreshon Coal filling, wherever coal filling is available

and need not be the same place where the workmen

was last employed.

The petitioner workman agrees for observatiobn of

one year with minimum mandatory 20 musters every

month and review every three months on coal filing

only is absolutely essential. In the event of any short

fall of attendance during the 3 months period, his

services will be terminated without any further notice

and enquiry.

Respondent Management agreed that any forced

absenteeism on account of mine accidents/natural

disease, treatment taken at Company's Hospitals will

be deemed as attendance during the trial period.

All other usual terms and conditions of appointment

will be applicable i.e., transfer, hours of work, day of

rest, holidays etc., for appointment afresh.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

2101

This LCID is disposed of accordingly. The

respondent management is directed to take him back to

duty as Badli Coal Filer afresh.

In agreement of the above, the parties/counsel have

affixed their signatures/thumb impressions in the presence

of the members of this Lok Adalat Bench.

Sd/. illegible

Signature of Applicant(s)

Signature of Respondent (s)

Sd/. illegible

Signature of Counsel for

Applicant (s)

Respondent (s)

Signature of Presiding Officer & Members of the

Bench

Ved Prakash Gaur,

C. Niranjan Rao

Note: This award is final and binding on all the parties

and no appeal shall lie to any court as per Section 21(2) of

LSA. ACT 1987.

ubZ fnYyh] 6 Qjojh] 2012

dkñvkñ 859.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,lñ lhñ lhñ

,yñ ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp]

vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vf/kdj.k] gSnjkckn ds iapkV ¼,ylhvkbZMh la[;k 02@2010½ dks

izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 06-02-2012 dks izkIr gqvk FkkA

[lañ ,y&22013@1@2012&vkbZ vkj ¼lh&II½]

Mhñ ,lñ ,lñ Jhfuokl jko] MsLd vf/kdkjh

New Delhi, the 6th February, 2012

S.O. 859.—In pursuance of Section 17 of the

Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the award of the Cent. Govt.

Indus. Tribunal-cum-Labour Court, Hyderabad (CGIT/

LCID/02/2010) as shown in the Annexure in the Industrial

Dispute between the employers in relation to the

management of SCCL and their workmen, which was

received by the Central Government on 06.02.2012.

[No. L-22013/1/2012-IR(C-II)]

D.S.S. SRINIVASA RAO, Desk Officer

ANNEXURE

IN THE LOK ADALAT

(For settlment of cases relating to CGIT cum Labour

Court at Hyderabad Under Section 20 of the Legal Services

Authorities Act, 1987) 29th day of December Two thousand

and Eleven

PRESENT:

1. Sri Ved Prakash Gaur

Presiding Officer.

2. Sri C. Niranjan Rao

Member

3. Sri Member

(Constituted U/s 19 of the LSA Act, 1987 by the

APSLSA Order ROC No. 186/LSA/2006 dt. 22.8.2006)

In the matter of case No. LCID No. 2 of 2010/PLAC

67/2011 (On the file of CGIT cum Labour Court at

Hyderabad)

BETWEEN:

M. Ravinder Reddy.

Sco. Raji Reddy.

....Petitioner

AND

The Management of Sec Ballapolly.

Respondents

This case is coming up before the Lok Adalat on

29-12-2011 for settlement in the presence of the applicant

appearing in person/represented by his counsel Sri Gividya

Singh and the Respondent too, being present in person/

represented by his counsel, Sri P.A.V.V.S. Sarma on a perusal

of the case record, after considering and hearing the case

of both sides and with the consent of both side, the Lok

Adalat has a arrived at the following settlement and

delivered the following:

AWARD UNDER SECTION 21 OF THE L.S.A. ACT,

1987

The petitioner had agreed to the following proposals

of the Management, as the petitioner had put in 100 musters

in the two years of the preceding 5 years of dismissal and

raised the dispute within three years from the date of

dismissal from service. The contents are read over and

explained to the petitioner in his language and agreed by

him by signing the same.

a. The petitioner workman agreed to treat his

appointment as fresh appointment as Badli Coal Filler

without back wages and continuity of service subject

to medical fitness by Company Medical Board.

b. Irrespective of past designations, petitioner workman

agrees to the appointment as Badli Coal Filler afresh

on Coal filling, wherever coal filling is available and

need not be the same place where the workmen was

last employed.

2102

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

c. The petitioner workman agrees for observation of

one year with minimum mandatory 20 musters every

months and review every three months on coal filling

only is absolutely essential. In the event of any short

fall of attendance during the 3 months period, his

services will be terminated without any further notice

and enquiry.

d. Respondent Management agreed that any forced

absenteeism on account of mine accidents/natural

disease, treatement taken at Company's Hospitals

will be deemed as attendance during the trial period.

e. All other usual terms and conditions of appointment

will be applicable i.e., transfer, hours of work, day of

rest, holidays etc., for appointment afresh.

This LCID is disposed of accordingly. The respondent

management is directed to take him back to duty as Badli

Coal Filer afresh wherever coal filling is available.

In agreement of the above, the parties/counsel have

affixed their signatures/thumb impressions in the presence

of the members of this Lok Adalat Bench.

Sd/. illegible

Signature of Applicant(s)

Signature of Respondent (s)

Sd/. illegible

Signature of Counsel

forApplicant (s)

for Respondent (s)

Signature of Presiding Officer & Members of the

Bench

Ved Prakash Gaur,

C. Niranjan Rao,

Chairman

Member

Note: This award is final and binding on all the parties and

no appeal shall lie to any court as per Section 21(2) of LSA.

ACT 1987.

ubZ fnYyh] 6 Qjojh] 2012

dkñvkñ 860.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,lñ lhñ lhñ

,yñ ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp]

vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/

kdj.k] gSnjkckn ds iapkV ¼,ylhvkbZMh la[;k 09@2010½ dks izdkf'kr

djrh gS] tks dsUnzh; ljdkj dks 06-02- 2012 dks izkIr gqvk FkkA

[lañ ,y&22013@1@2012&vkbZ vkj ¼lh&II½]

Mhñ ,lñ ,lñ Jhfuokl jko] MsLd vf/kdkjh

New Delhi, the 6th February, 2012

S.O.. 860.—In pursuance of Section 17 of the

Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the award of the

Cent. Govt. Indus. Tribunal-cum-Labour Court,

Hyderabad (CGIT/LCID/09/2010) as shown in the

Annexure in the Industrial Dispute between the employers

in relation to the management of SCCL and their workmen,

which was received by the Central Government on

06.02.2012.

[No. L-22013/1/2012-IR(C-II)]

D.S.S. SRINIVASA RAO, Desk Officer

ANNEXURE

IN THE LOK ADALAT

(For settlment of cases relating to CGIT cum Labour

Court at Hyderabad Under Section 20 of the Legal Services

Authorities Act, 1987) the 29th day of December Two

thousand and Eleven

PRESENT:

1. Sri Ved Prakash Gaur

Presiding Officer.

2. Sri C. Niranjan Rao

Member

3. Sri

Member

(Constituted U/s 19 of the LSA Act, 1987 by the

APSLSA Order ROC No. 186/LSA/2006 dt. 22.8.2006)

In the matter of case No. LCID No. 9 of 2010/PLAC

68/2011 (On the file of CGIT cum-Labour Court at

Hyderabad)

BETWEEN

Banoth Sakru, (EC. No. 0299170), S/o Banoth Balu, aged

about 35 years,

Ex. General Mazdoor at GKCOP,

Singareni Collieries Company Ltd.,

Kothagudem Area, Kothagudem,

Khammam District

....PETITIONER

AND

The Singareni Collieries Company Limited,

rep. by its Chief General Manager,

Kothagudem Area, Kothagudem, Khammam District

The Superintendent of Mines,

Singareni Collieries Company Limited,

GKOCP, KGM (Area), Kothagudem,

Khammam Dist.

......RESPONDENTS

This case is coming up before the Lok Adalat on

29-12-2011 for settlement in the presence of the applicant

appearing in person/represented by his counsel Sri K.

Vasudeva Reddy and the Respondent too, being present

in person/represented by his counsel, Sri P.A.V.V.S. SARMA

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

2103

on a perusal of the case record, after considering and

hearing the case of both sides and with the consent of

both side, the Lok Adalat has arrived at the following

settlement and delivered the following:

AWARD UNDER SECTION 21 OF THE L.S.A. ACT, 1987

The petitioner had agreed to the following proposals

of the Management, as the petitioner had put in 100 musters

in the two years of the preceding 5 years of dismissal and

raised the dispute within three years from the date of

dismissal from service. The contents are read over and

explained to the petitioner in his language and agreed by

him by signing the same:

a. The petitioner workman agreed to treat his

appointment as fresh appointment as Badli Filler

without back wages and continuity of service subject

to medical fitness by Company Medical Board.

b. Irrespective of past designations, petitioner workman

agrees to the appointment as Badli Filler afresh on

c. The petitioner workman agrees for observation of

one year with minimum mandatory 20 musters every

months and review every three months. In the event

of any short fall of attendance during the 3 months

period, his services will be terminated without any

further notice and enquiry.

d. Respondent Management agreed that any forced

absenteeism on account of mine accidents/natural

disease, treatment taken at Company's Hospitals will

be deemed as attendance during the trial period.

e. All other usual terms and conditions of appointment

will be applicable i.e., transfer, hours of work, day of

rest, holidays etc., for appointment afresh.

This LCID is disposed of accordingly. The respondent

management is directed to take him back to duty as Badli

Filler afresh.

In agreement of the above, the parties/counsel have

affixed their signatures/thumb impressions in the presence

of the members of this Lok Adalat Bench.

Sd/. illegible

Signature of Applicant(s)

Signature of Respondent (s)

Sd/. illegible

Signature of Counsel for

Applicant (s)

Respondent (s)

Signature of Presiding Officer & Members of the Bench

Ved Prakash Gaur,

C. Niranjan Rao,

Chairman

Member

Note: This award is final and binding on all the parties and

no appeal shall lie to any court as per Section 21(2) of LSA.

ACT 1987.

ubZ fnYyh] 6 Qjojh] 2012

dkñvkñ 861.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,lñ lhñ lhñ

,yñ ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp]

vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/

kdj.k] gSnjkckn ds iapkV ¼,ylhvkbZMh la[;k 18@2010½ dks izdkf'kr

djrh gS] tks dsUnzh; ljdkj dks 06-02- 2012 dks izkIr gqvk FkkA

[lañ ,y&22013@1@2012&vkbZ vkj ¼lh&II½]

Mhñ ,lñ ,lñ Jhfuokl jko] MsLd vf/kdkjh

New Delhi, the 6th February, 2012

S.O.. 861.—In pursuance of Section 17 of the

Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the award of the Cent. Govt.

Indus. Tribunal-cum-Labour Court, Hyderabad (CGIT/

LCID/18/2010) as shown in the Annexure in the Industrial

Dispute between the employers in relation to the

management of SCCL and their workmen, which was

received by the Central Government on 06.02.2012.

[No. L-22013/1/2012-IR(C-II)]

D.S.S. SRINIVASA RAO, Desk Officer

ANNEXURE

IN THE LOK SABHA

(For settlement of cases relating to CGIT cum-Labour

Court at Hyderabad Under Section 20 of the Legal services

Authorities Act, 1987) the 29th day of December, Two

thousand and Eleven

PRESENT:

1. Sri Ved Prakash Gaur

Presiding Officer

2. Sri C. Niranjan Rao

Member

3. Sri

Member

(Constituted U/s 19 of the LSA Act, 1987 by the

APSLAS Order ROC No. 186/LSA/2006 dt. 22-8-2006)

In the matter of case No. LCID 18 of 2010/PLAC

69/2011 (On the file of CGIT cum Labour Court at

Hyderabad)

BETWEEN

S.K.Jamal, (EC No. 4055057), S/o S.K. Abbas Ali, aged about

37 years, Ex-General Mazdoor at PK-1 incline, Singareni

Collieries Company Limited, Manuguru Area, Manuguru,

Khammam District

PETITIONER

2104

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

AND

The Singareni Collieries Company Limited,

Kothagudem, Khammam District

rep. by its Director (PA & W).

The Chief General Manager,

Singareni Collieries Company Limited,

Manuguru Area, Manuguru, Khammam District.

...

.... Respondents

This case is coming up before the Lok Adalat on

29.12.2011 for settlement in the presence of the applicant

appearing in person/represented by his counsel Sri K.

Vasudeva Reddy and the Respondent too, being present

in person/represented by his counsel, Sri S.M. Subhani on

a perusal of the case record, after considering and hearing

the case of both sides and with the consent of both side,

the Lok Adalat has arrived at the following settlement and

delivered the following:

AWARD UNDER SECTION 21 OF THE L.S.A. ACT, 1987

The petitioner had agreed to the following proposals

of the Management, as the petitioner had put in 100 musters

in the two years of the preceding 5 years of dismissal and

raised the dispute within three years from the date of

dismisal from service. The contents are read over and

explained to the petitioner in his language and agreed by

him by signing the same:

a. The petitioner workman agreed to treat his

appointment as fresh appointment as Badli Filler

without back wages and continuity of service subject

to medical fitness by Company Medical Board.

b. Irrespective of past designations, petitioner workman

agrees to the appointment as Badli Filler afresh on

c. The petitioner workman agrees for observation of

one year with minmum mandatory 20 musters every

month and review every three months. In the event

of any short fall of attendance during the 3 months

period, his services will be terminated without any

further notice and enquiry.

d. Respondent Management agreed that any forced

absenteeism on account of mine accidents/natural

disease, treatment taken at Company's Hospitals will

be deemed as attendance during the trial period.

e. All other usual terms and conditions of appointment

will be applicable i.e., transfer, hours of work, day of

rest, holidays etc., for appointment afresh.

This LCID is disposed of accordingly. The respondent

management is directed to take him back to duty as Badli

Filler afresh.

In agreement of the above, the parties/counsel have

affixed their signatures/thumb impressions in the presence

of the members of this Lok Adalat Bench.

Sd/. illegible

Signature of Applicant(s)

Signature of Respondent (s)

Sd/. illegible

Signature of Counsel for

Applicant (s)

Respondent (s)

Signature of Presiding Officer & Members of the Bench

1. Ved Prakash Gaur

2. Niranjan Rao

Note:

This award is final and binding on all the parties

and no appeal shall lie to any court as per Section 21(2) of

LSA, ACT 1987.

ubZ fnYyh] 6 Qjojh] 2012

dkñvkñ 862.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,lñ lhñ lhñ

,yñ ds izca/kra= ds lac) fu;ktdksa vkSj muds deZdkjksa ds chp]

vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/

kdj.k] gSnjkckn ds iapkV ¼,ylhvkbZMh la[;k 93@2009½ dks

izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 06@02@2012 dks izkIr gqvk

FkkA

[lañ ,y&22013@1@2012&vkbZ vkj ¼lh&II½]

Mhñ,lñ,lñ Jhfuokl jko] MsLd vf/kdkjh

New Delhi, the 6th February, 2012

S.O. 862.—In pursuance of Section 17 of the

Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the award of the Cent. Govt.

Indus. Tribunal-cum-Labour Court, Hyderabad (CGIT/

LCID/93/2009) as shown in the Annexure in the Industrial

Dispute between the employees in relation to the

management of SCCL and their workmen, which was

received by the Central Government on 06.02.2012.

[No. L-22013/1/2012-IR (C-II)]

D.S.S. SRINIVASA RAO, Desk Officer

ANNEXURE

IN THE LOK ADALAT

(For settlement of cases relating to CGIT cum-Labour

Court at Hyderabad Under Section 20 of the Legal Services

Authorities Act, 1987) the 16th day of December, Two

thousand and Eleven

PRESENT:

1. Sri Ved Prakash Gaur

Presiding Officer

2. Sri C. Niranjan Rao

Member

3. Sri

Member

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

2105

(Constituted U/s 19 of the LSA Act, 1987 by the

APSLSA Order ROC No. 186/LSA/2006 dt. 22-8-2006)

In the matter of case No. LCID 93/2009/PLAC62/2011

(On the file of CGIT cum Labour Court at Hyderabad)

BETWEEN

Narkka Sloven

S/o Rajan Orc Coolkillen

R/o 10-121, Blupalpaly

Wenyal Distt.

... Petitioner

AND

The General Manager,

SCCC Blupallpaly Area, Wenyal Distt.

Respondent

This case is coming up before the Lok Adalat on

16.12.2011 for settlement in the presence of the applicant

appearing in person/represented by his counsel Sri K.

Vasudeva Reddy and the Respondent too, being present

in person/represented by his cousel, Shri S.M. Subhani on

a perusal of the case record, after considering and hearing

the case of both sides and with the consent of both side,

the Lok Adalat has arrived at the following settlement and

delivered the following:

AWARD UNDER SECTION 21 OF THE L.S.A. ACT, 1987

The petitioner had agreed to the following proposals

of the Management, as the petitioner had put in 100 musters

in the two years of the preceding 5 years of dismissal and

raised the dispute within three years from the date of

dismssal from service. The contents are read over and

explained to the petitioner in his language and agreed by

him by signing the same.

a. The petitioner workman agreed to treat his

appointment as fresh appointment as Badli Coal Filler

without back wages and continuity of service subject

to medical fitness by Company Medical Board.

b. Irrespective of past designations, petitioner workman

agrees to the appointment as Badli Coal Filler afresh

on Coal filling, wherever coal filling is available and

need not be the same place where the workmen was

last employed.

c. The petitioner workman agrees for observation of

one year with minmum mandatory 20 musters every

month and review every three months on coal filling

only is absolutely essential. In the event of any short

fall of attendance during the 3 months period, his

services will be terminated without any further notice

and enquiry.

d. Respondent Management agreed that any forced

absenteeism on account of mine accidents/natural

disease, treatment taken at Company's Hospitals will

be deemed as attendance duirng the trial period.

e. All other usual terms and conditions of appointment

will be applicable i.e., transfer, hours of work, day of

rest, holidays etc., for appointment afresh.

This LCID is disposed of accordingly. The respondent

management is directed to take him back to duty as Badli

Coal Filler afresh whenever Coal Pillingisavailable

In agreement of the above, the parties/counsel have

affixed their signatures/thumb impressions in the presence

of the members of this Lok Adalat Bench.

Sd/. illegible

Signature of Applicant (s)

Signature of Respondent (s)

Sd/. illegible

Signature of Counsel for

Applicant (s)

Respondent (s)

Signature of Presiding Officer & Members of the Bench

1.Ved Prakash Gaur,

2. C. Niranjan Rao,

Chairman

Member

Note:

This award is final and biriding on all the parties

and no appeal shall lie to any court as per Section 21(2) of

LSA, ACT 1987.

ubZ fnYyh] 6 Qjojh] 2012

dkñvkñ 863.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj Hkkjrh; LVsV cSad

ds izca/kra= ds lac) fu;ktdksa vkSj muds deZdkjksa ds chp] vuqca/

k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k]

Hkqous'oj ds iapkV ¼lanHkZ la[;k 373@2001½ dks izdkf'kr djrh gS]

tks dsUnzh; ljdkj dks 06@02@2012 dks izkIr gqvk FkkA

[Qkñ lañ ,y&22012@378@2000&vkbZ vkj ¼ch&I½]

jes'k flag] MsLd vf/kdkjh

New Delhi, the 6th February, 2012

S.O. 863.—In pursuance of Section 17 of the

Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the award Ref. 373/200 of

the Cent. Govt. Indus. Tribunal-cum-Labour Court,

Bhubaneswar as shown in the Annexure in the industrial

dispute between the management of State Bank of India

and their workmen, which was received by the Central

Government on 06.02.2012.

[F. No. L-22012/378/2000-IR (B-I)]

RAMESH SINGH, Desk Officer

2106

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-

CUM-LABOUR COURT BHUBANESWAR

PRESENT:

Shri J. Srivastava,

Presiding Officer, C.G.I.T.-cum-Labour

Court, Bhubaneswar.

INDUSTRIAL DISPUTE CASE NO. 373/2001

Date of Passing Award-29th December, 2011

BETWEEN:

The Assistant General Manager,

State Bank of India, Main Branch, Bhubaneswar,

Orissa-751 009.

... 1st Party-Management

AND

Their workman Shri Sudarsan Sahoo.

Represented through the General Secretary,

State Bank of India Employees Union,

C/o. State Bank of India, Zonal Office,

Bhubaneswar, Orissa-751 009.

... 2nd Party-Union

APPEARANCES:

For the 1st Party-

M/s. H.K. Mohanty,

Management.

Advocate

For the 2nd Party-

M/s. B.C. Bastia &

Union.

Associates, Advocate.

AWARD

The Government of India in the Ministry of Labour

has referred an Industrial Dispute existing between the

employees in relation to the management of State Bank of

India, Bhubaneswar and their workman in exercise of the

powers conferred by clause (d) of sub-section (1) of sub-

section (2-A) of Section 10 of the Industrial Dispute Act

vide their letter No. 12012/378/2000-IR (B-I), dated 30.1.2011.

2. The dispute as mentioned in the schedule of the

letter of reference is given below.

Whether the action of the Management i.e. State

Bank of India, by not regularizing the service of Shri

Sudarsan Sahoo is justified? If not, what relief the workman

is entitled to?

3. The 2nd Party workman in pursuance of the letter

of reference has filed his statement of claim in which he has

stated that he joined his service as canteen boy in the

State Bank of India canteen at Bhubaneswar Main Branch

on 15.12.1981. From the above date till August, 1991 he

worked termporarily with interruption and thereafter from

August, 1991 till date he has been working continuously in

permanent vacancy. He has rendered his service most

sincerely and diligently and there is no adverse remark in

his service career till the year 1991-92. He was paid his

salary like other regular employees but thereafter his salary

was reduced to minimum wages of Rs. 25/- and Rs. 40/- per

day. The management of State Bank of India runs the

canteen for welfare of its employees. Infrastructure facilities

such as canteen building, furnitures, utensils, supply of

electricity and water are provided by the management. The

canteen runs on no profit and no loss basis and the

employees of the Banks are the sole beneficiaries of the

canteen facility. The canteen is functioning under the direct

control and supervision of the 1st Party-Management and

the staff includiing the 2nd Party-workman are paid their

wages by the Management. Therefore relationship of master

and servant exists between the 1st Party-Management and

the 2nd Party-workman. The day-to-day affairs of the

canteen are looked after by the canteen committee

constituted of members amongst the employees of the Bank.

There has been numerous settlements/agreements between

the Bank-Management and All India State Bank of India

Staff Federation on various service matters including

regularization of casual/temporary workers in sub-staff

category. One of such settlements was made on 19th

October, 1966 between certain Banking Companies and their

employees, which inter alia provided for regularization of

temporary employees against permanent vacancies.

Another settlement was made in the year 1992, which apart

from other things provided for taking over of the staff

canteen by the Bank and absorption of temporary canteen

staff permanently and in the said settlement it has been

provided that only those canteen staffs will be considered

for permanent appointment who were engaged by the Local

Implementation Committee on regular basis as on 9.6.1989.

But since the 2nd Party-workman has been working prior

to the said date, his case stands in a better footing than

those who were appointed thereafter. The 2nd Party-

workman in response to an advertisement for regular

absorption applied for the same fulfilling all the eligibility

criteria but his case for regularization was not considered

by the Management while some of his juniors have been

given regular appointment. Every now and then he is facing

a threat of removal from service by the Management because

of his temporary status. He filed a writ petition before the

Hon'ble High Court of Orissa wherein the 2nd Party-

workman was directed to seek altenative remedy under the

proper Forum/Authority for justice. Accordingly he raised

the present dispute through Union and the relief has been

sought for from the 1st Party-Management to regularize

the service of the 2nd Party-workman from the date his

juniors have been regularized and to pay equal pay and

other service benefits from the date of regularization.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

2107

4. The 1st Party-Management filed written statement

and stated that in order to absorb temporary employees in

permanent vacancies the Management of State Bank of

India and the State Bank of India Staff Federation entered

into various agreements. A bipartite settlement was entered

into and was circulated amongst employees and an

opportunity was afforded to them to appear in an interview.

The present workman was also called for in interview, but

he could not secure better position. On the basis of

interview two separate panels were prepared which

remained valid up to 31.3.1997 and thereafter they expired

and now no-one has right or claim for regularization on the

expiry of the said panels. Being aggrieved with the decision

of the Bank the present workman filed a Writ Petition which

was dismissed by the Hon'ble High Court of Orissa on

15.5.1998 along with a batch of similar Writ Petitions. One

of the employees named Shri Natabar Das had filed S.L.P.

before the Hon'ble Supreme Court which too was dismissed

on merits vide order dated 16.7.1999. Therefore after the

judgment of the Apex Court the reference in question for

regularization of services of the employee is not open for

further adjudication. The workman had obtained an interim

order from the Hon'ble High Court of Orissa and was

continuing in service with the strength of the said order till

the disposal of the Writ Application on 15.5.1998 and

subsequently he had raised an industrial dispute for

regularization of his services and continuing as such due

to pendency of such proceedings, despite the fact that he

has no locus-standi to continue after the expiry of the panel

as well as the verdict of the Hon'ble High Court of Orissa

and Hon'ble Supreme Court of India. The present workman

was working temporarily on daily basis. As such he knew

very well that his services would come to an end at any

time, if he has not been regularized as per norms of the

Bank. It is not a fact that any junior was appointed without

due process of selection. It is submitted that the canteen is

maintained out of subsidies meant for welfare of the staff

and the day to day affair of the canteen is managed by the

canteen committee consisting of several members of the

Bank and are supervised by a canteen Manager. It is not

correct to say that there exists master and servant

relationship between the Management and the 2nd Party-

workman. The functioning of the canteen is not associated

with the main function of the Bank. It is not correct to say

that the 2nd Party-workman was working under the Local

Implementation Committee prior to taking over of the

canteen. Therefore none of the prayers made in the

statement of claim is tenable in the eye of law.

5. On the above pleadings following issues were

framed.

ISSUES

1. Whether the reference is maintainable?

2. Whether the 2nd Party-workman is eligible for

regularization in the post?

3. Whether the action of State Bank of India ia not

regularizing the service of the workman is legal and

justified?

4. If not, to what relief the workman is entitled?

6. The 2nd Party-workman Shri Sudarsan Sahoo has

adduced his evidence through affidavit and was cross

examined on 2.5.2006. He proved four documents marked

as Ext.-1 to 4.

7. The 1st Party-Management has examined two

witnesses on affidavit namely Shri Sadasiba Tripathi as

M.W.-1 and Shri Abhaya Kumar Das M.W.-2 and proved

eight documents marked as Ext.-A to Ext.-H.

FINDINGS

ISSUE NO. 1

8. This issue relates to the maintainability of the

reference. But on perusal of the written statement it is found

that the 1st Party-Management has not challenged the

maintainability of the reference, instead has only stated

that the statement of claim as laid and framed is not

maintainable in the eye of law. This allegation does not

root out the maintainability of the reference.

Further it has been stated that the matter of

regularization having been adjudicated upto the Apex Court

cannot be re-adjudicated and is not open to further

adjudication. But here it is to be pointed out that the matter

in issue before the Hon'ble High Court of Orissa was to

give the petitioners appointment by filling up the vacancies

against the sanctioned posts of messenger and the Hon'ble

High Court directed the petitioners, if they feel aggrieved

about the norms formulated to challenge the same before

the appropriate forum/authority. But at the same time the

Hon'ble High Court did not accede to the prayer of the

petitioners for giving them appointment against the vacant

sanctioned posts. Therefore it cannot be said that the

reference is not maintainable before this Tribunal/Court.

Having regard to the facts of the case I am of the view that

the reference is quite maintainable in this Tribunal/Court

under the provisions of the Industrial Disputes Act, 1947

so referred by the Government of India. This issue is thus

decided against the 1st Party-Management.

ISSUE NO. 2

9. The 2nd Party-workman has stated that he joined

his service as canteen boy in the State Bank of India

Canteen at Bhubaneswar Main Branch on 15.12.1981 and

worked there till August, 1991 intermittently. After August,

1991 he has been working continuously till date in permanent

vacancy. Thus after rendering more than 10 years

unblemished continuous service he was not regularized,

though some of his juniors were regularized. He is still

having temporary staus. The canteen is functioning under

the direct control and supervision of the 1st Party-

2108

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

Management and the staffs including the 2nd Party-

workman are paid their wages by the Management. As

such there exists master and servant relationship between

the 1st Party-Management and the 2nd Party-workman. As

per agreement made between certain Banking companies

and their employees on 19th October, 1966 provision for

regularization of temporary employees against permanent

vacancies was made. Another settlement between the State

Bank of India and All India State Bank of India Employees

Federation was made in the year 1992 which provided for

taking over of staff canteen by the Bank and absorption of

temporary canteen staff permanently. Accordingly

applications were invited from existing temporary

employees for their regular absorption. The 2nd Party-

workman although fulfilled all the eligibilitycriteria, but his

case for regularization was not considered by the 1st Party-

Management. Therefore he filed a Writ Petition before the

hon'ble High Court of Orissa in which the workman was

directed to seek alternative remedy before the appropriate

Forum Authority for justice.

10. The 1st Party-Management has stated in reply

that in order to absorb temporary employees working

intermittently the management of State Bank of India and

the State Bank of India Staff Federation entered into an

agreement/settlement, which provided criteria for

consideration of eligible temporary employees for

permanent appointment in the Bank. In pursuance of the

settlement all eligible temporary employees were offered

opportunities for permanent appointment and were called

for interview in the year 1990 and 1993. The 2nd Party-

workman was also called for in the interview, but he could

not secure a better position. The panels. of temporary

employees prepared on the basis of interview also expired

on 31.3.1997 and after that the 2nd Party-workman or any

other employee has no right to claim regularization or

absorption in permanent post. The 2nd Party-workman also

filed O.J.C. No. 4926/1997 in the Honble High Court of

Orissa but that Writ Application was dismissed by a

common judgment delivered in O.J.C. No. 2787/97. One

Natarbar Das filed S.L.P. before the Hon'ble Supreme Court

but that too was dismissed on merits. The Hon'ble High

Court of Orissa in its judgment has upheld the action taken

by the management of the State Bank of India and did not

grant any relief to the petitioners regarding appointment

against the sanctioned post of messengers.

11. It has been denied by the 1st Party-Management

that no juniors were appoint in derogation with the scheme

of appointment. As such it cannot be said that the 2nd

Party-workman is eligible for regularization in the post

particularly when he did not qualify in the interview for

absorption or appointment in permanent post as per

settlements arrived at between the management of the State

Bank of India and All India State Bank of India Staff

Federation, which are binding upon the parties concerned

or the beneficiaries being members of the participating

Union.

12. Moreover the services of the 2nd Party-workman

were intermittent and temporary in nature. Ext.-1 filed by

the 2nd Party-workman shows that from January, 1982 to

18.12.1987 he had worked only for 200 days as a messenger.

Ext.-2 is a recommendatory letter of the Dy. General Manager

for consideration of the name of the 2nd Party-workman

for his absorption in permanent post. This letter shows

that the 2nd Party-workman has been consistently working

as a canteen boy in the Bank run canteen from 15.8.1991,

but that does not mean that he has acquired a right of

being absorbed in permanent post. The Hon'ble Supreme

Court in the case of "Secretary State of Karnataka and

others—Versus-Uma Devi and others" reported in AIR 2006

SC 1806 has held that:—

Unless the appointment is in terms of the relevant

rules and after a proper competition among qualified

persons, the same would not confer any right on the

appointee. If it is a contractual appointment, the

appointment comes to an end at the end of the contact. If it

were an engagement or appointment on daily wages or

casual basis, the same would come to an end when it is

discontinued. Similarly, a temporary employee could not

claim to be made permanent on the expirty of his term of

appointment. It has also to be clarified that merely because

a temporary employee or a casual wage worker is continued

for a time beyond the term of his appointment, he would

not be entitled to be 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 adhoc employees

who by the very nature of their appointment do not acquire

any right.

13. The judgment given by the Hon'ble High Court

of Orissa in O.J.C. No. 2787/97 and other analogous cases

reported in "86 (1998) C.L.T. 834" (Abhimanyu Mandal &

Others—Versus-State Bank of India & Others) is binding

on all the petitioners including the present workman. In

these cases regularization of temporary employees/daily

wagers/casual employees was prayed and all the cases

with the prayer were dismissed by the Hon'ble High Court

of Orissa and the S.L.P. filed against that judgment in the

Hon'ble Supreme Court by one Natabar Das was also

dismissed. The judgment is binding not only on the parties

of the case, but also on all courts subordinate to or lower in

rank to it. Therefore, the matter of regularization is not now

open to be adjudicated upon in this Tribunal/Court as the

same has been settled for all and it is held that the 2nd

Party-workman is not eligible for permanent absorption or

regularization in the post. This issue is decided in the

negative and against the 2nd Party-workman.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

2109

ISSUE NO. III

14. For the foregoing discussions made in Issue

No. II the action of the State Bank of India is not regularizing

the services of the workman cannot be held illegal and

unjustified. Since the disputant-workman had availed of

the opportunity of appearing in the interview for permanent

appointment and he had not come out successful to be

placed on the existing vacancy and the wait listed panel

had expired on 31.3.1997, there remains no course open for

regularization in view of the bipartite agreement/settlement

entered into between the Management of State Bank of

India and the State Bank of India Staff Federation. This

issue is answered accordingly.

ISSUE NO. IV

15. In view off the aforesaid discussions and

conclusions arrived at the 2nd Party-workman is not entitled

to any relief claimed for.

16. Reference is answered accordingly.

JITENDRA SRIVASTAV A, Presiding Officer

ubZ fnYyh] 6 Qjojh] 2012

dkñvkñ 864.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj Hkkjrh; LVsV c®d

izca/k ra= ds lac) fu;kstdksa vkSj muds deZdkjkas ds chp vuqca/k esa

fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vf/kdj.k Hkqous'oj ds iapkV ¼lanHkZ la[;k 21@2008½ dks izdkf'kr

djrh gS tks dsUnzh; ljdkj dks 06&02&2012 dks izkIr gqvk FkkA

[Qkñlañ ,y&12012@191@2007&vkbZ vkj ¼ch-I½ ]

jes'k flag] MsLd vf/kdkjh

New Delhi, the 6th February, 2012

S.O. 864.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 21/2008)

of the Central Government Industrial Tribunal-cum-

Labour Court, Bhubaneswar as shown in the Annexure,

in the Industrial dispute between the management of State

Bank of India, and their workmen, received by the Central

Government on 06/02/2012

[F.No.-L-12012/191/2007-IR(B-I)]

RAMESH SINGH, Desk Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-

CUM-LABOUR COURT BHUBANESWAR

PRESENT:

Shri J. Srivastava,

Presiding Officer, C.G.I.T.-cum-Labour

Court, Bhubaneswar.

INDUSTRIAL DISPUTE CASE NO. 21/2008

Date of Passing Award—20th January, 2012

BETWEEN:

The Assistant General Manager,

State Bank of India, Bhubaneswar

Main Branch, Bhubaneswar,

Dist. Khurda (Orissa), Bhubaneswar. (Orissa)

... 1st Party—Management.

AND

Their Workman Sri Tukuna Moharana,

Qrs. No. VR-5/1, Kharvela Nagar, Unit-III,

Bhubaneswar. (Orissa)

... 2nd Party—Workman.

APPEARANCES:

Shri Alok Das,

For the 1st Party—

Management.

Authorized Representatives

None.

... For the 2nd Party Workman.

AWARD

An industrial dispute existing between the employers

in relation to the management of State Bank of India and

their workman has been referred to this Tribunal/Court by

the Government of India in the Ministry of Labour in

exercise of the powers conferred by clause (d) of sub-

section (1) and sub-section (2A) of Section 10 of the

industrial Disputes Act, 1947 vide their letter No. L-12012/

191/2007-IR (B-I), dated 14.05 2008 to the following effect:

“Whether the action of the management of State Bank

of India, in relation to their main branch, Bhubaneswar

in terminating the services of Sri Tukuna Maharana,

w.e.f. 30.9.2004 without complying the provisions of

I.D. Act, 1947, is legal and justified? If not, what relief

the workman concerned is entitled to?”

2. The 2nd Party-Workman has filed his statement of

claim alleging that he had joined his services as a

Messenger on temporary/casual/daily wage basis on

23.5.1988 after succeeding in interview. He was assured to

get permanent appointment order after one year or on

completion of 240 days' work in a calendar year, but despite

completion of several years of continuous satisfactory

service and putting in more than 240 days' work in each

year he was terminated and refused employment from

30.9.2004 by the 1st Party—Management without any

written communication or payment of compensation. The

1st Party-Managemnt in refusing employment to him

violated all principles of natural justice and mandatory

provisions of Section 25-F of the Industrial Disputes Act,

1947. He was also not given regular appointment while in

service. He therefore brought the matter into the notice of

the C.G.M. and C.D.O. of the State Bank of India, L.H.O.,

Bhubaneswar. But on hearing nothing, he raised an

industrial dispute before the Regional Labour Commissioner

(Central) vide his letter dated 21.2.2005. Conciliation

proceedings were started, but they failed and thereupon a

failure report was submitted to the Government and the

2110

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

Government made the present reference. He is thus entitled

to get full back wages and reinstatement with continuity of

service with effect from 30.9.2004.

3. The 1st Party—Management in its reply through

written statement has stated that the present dispute is

misleading and misconceived in as much as the 2nd Party—

Workman had already raised a similar dispute along with

124 other workers through the State Bank of India

Temporary 4th Grade Employees Union before the

Assistant Labour Commissioner (Central), Bhubaneswar

challenging their alleged termination of service by the 1st

Party—Management. In the said dispute the failure report

was sent by the Asst. Labour Commissioner (Central),

Bhubaneswar to the Ministry of Labour who in turn referred

the matter to this Tribunal for adjudication and the same is

pending before this Tribunal being I.D. Case No. 7/2007.

The name of the 2nd Party—workman is appearing at Sl.

No. 36 in Annexure-A to the said reference. Thus, raising a

common dispute for same cause of action and again raising

individual dispute for same relief is nothing but an abuse

of the process of law and amounts to multiplicity of

litigation. The Asst. Labour Commissioner (Central) while

conciliating the individual disputes disregarded the

direction of the Deputy Chief Labour Commissioner

(Central) not to take any further action on the separate

disputes raised by the same workers for the same cause of

action. The allegation of the 2nd Party-workman that he

was discontinued from service on 30.9.2004 and was

signing bogus vouchers is not correct. As per his own

admission his services were discontinued from November,

1990 and he was receiving payment in his own name. He

was engaged intermittently on temporary/daily wage basis

due to exigencies of work. It is denied that he had joined

the Bank on 23.5.1988 and was performing the duty, which

is regular and perennial in nature. It is further denied that

he was performing his duties with all sincerity and honesty

and to the best of satisfaction of the Authority. The 2nd

Party—Workman has never completed several years of

continuous sevice in the Bank nor he has completed 240

days of continuous service in any calendar year preceding

the date of his alleged termination. In order to give an

opportunity for permanent absorption to the ex-temporary

employees/daily wagers in the Bank in view of the various

settlements entered into between the All India State Bank

of India Staff Federation and Management of the State

Bank of India all eligible persons were called for interview.

The 2nd Party—Workman was called for an interview along

with all other eligible persons in the years 1990 and 1993.

But he could not succeed in the interviews. As such he

could not be absorbed in the Bank's service. The Union or

the 2nd Party—Workman has never challenged the

implementation of the settlement which has now gained

finality. It is further submitted that some of the wait-listed

candidates, who could not be absorbed in the Bank's

service due to expiry of the panel on 31st March, 1997 filed

Writ Petitions before the Hon'ble High Court of Orissa. But

the Hon'ble High Court of Orissa by a common order dated

15.5.1998 passed in O.J.C. No. 2787/1997 dismissed a batch

of Writ Petitions and upheld the action of the Management

of the Bank. This order of the Hon'ble High Court was also

upheld by the Hon'ble Supreme Court of India in S.L.P. No.

CC-3082/1999. Hence the above matter has attained finality

and cannot be re-agitated. Since the services of

Shri Maharana were terminated much prior to the expiry of

the panel, his claim has become stale by raising the dispute

after lapse of a period of 15 years. It is a settled principle of

law that delay destroys the right to remedy. Thus raising

the present dispute after 15 years of alleged termination is

liable to be rejected.

4. On the pleadings of the parties following issues

were framed:—

ISSUES

1. Whether the present reference of the individual

workman during the pendency of the I.D. Case No. 7/2007

before this Tribunal on the same issue is legal and justified?

2. Whether the workman has worked for more than

240 days as enumerated under section 25-F of the Induatrial

Disputes Act?

3. Whether the action of the management of State

Bank of India, Main Branch, Bhubaneswar in terminating

the services of Sri Tukuna Moharana with effect from

30.9.2004 wihtout complying the provisions of the I.D. Act,

1947 is legal and justified?

4. To what relief is the workman concerned entitled?

5. The 2nd Party-Workman despite giving sufficient

opportunity did not produce any evidence either oral or

documentary in support of his claim and willingly kept

himself out of the proceedings at the stage of evidence by

absenting himself or his Union representative.

6. The 1st Party-Management has adduced the oral

evidence of Shri Krupasindhu Nayak as M.W. - 1 and filed

documents marked as Ext.-A to Ext.-J in refutation of the

claim of the 2nd Party-Workman.

FINDINGS

ISSUE NO. 1

7. A specific plea has been raised by the 1st Party-

Management that a group of 125 employees including the

2nd Party-Workman had already raised a similar dispute in

I.D. Case No. 7/2007 before this Tribunal for the same relief

which is pending for adjudication. The dispute as referred

to in I.D. Cast No. 7/2007 is given below for comparison

with the dispute in the present case—

Whether the action of the Managment of State Bank

of India, Orissa Circle, Bhubaneswar in not considering

the case of 125 workmen whose details are in Annexure-A

for re-remployment as per Section 25(H) of Industrial

Disputes Act, 1947 is legal and justified? If not, what relief

the workmen is entitled to?

8. The name of the 2nd Party-Workman appears at Sl.

No. 36 in Annexure-A to the above reference. In both the

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

2111

cases the matter of disengagement or so called

retrenchment is involved to be considered in one or the

other way and the relief claimed is with regard to re-

employment, But challenge has been made more specifically

against the termination of service of the 2nd Party-Workman

in the present case while in I.D. Case No. 7/2007 prayer has

been made with regard to consideration of the case of 125

workmen for re-employment as per Section 25-H of the

Industrial Disputes Act, 1947. In fact, in the latter case the

workmen have submitted or virtually surrendered to their

cessation of employment or alleged termination, whereas

in the present case they have challenged their termination

on facts and law. Virtually in the present case validity and

legality of the alleged termination has to be tested at the

alter of facts and legal propositions. Therefore it cannot be

said that issues involved in both the cases are same. This

case can proceed despite pendency of I.D. Case No. 7/

2007 and the present reference by the individual workman

pending for adjudication is maintainable being legal and

justified. This issue is therefore decided in the affirmative

and against the 1st Party-Management.

Issue No. 2

9. The onus to prove that the 2nd Party-Workman

has completed one year or 240 days of continous service

during a period of 12 calendar months preceding the date

of his alleged termination or disengagement from service

lies on him, but the 2nd Party-Workman has not adduced

any evidence either oral or documentary in support of his

contention. He has only alleged in his statement of claim

that he was appointed on 23.5.1988 and worked till 30.9.2004

on temporary/casual/daily wage basis, but he has not filed

any certificate or reliable document showing the break-up

of year-wise service rendered by him under the 1st Party-

Management during the above period. The 1st Party-

Management, on the other hand, has alleged that the 2nd

Party-Workman was engaged intermittently on temporary/

daily wage basis due to exigencies of work and he had

never completed 240 days continuous service in a calendar

year. M.W.-1 Shri Krupasindhu Nayak in his statement

before the Court has stated that "the disputant was working

intermittently for few days in our branch on daily wage

basis in exigencies ........ He had not completed 240 days of

continuous and uniterrupted service preceding the alleged

date of the termination". He has denied the allegation that

the workman was discontinued with effect from 30.9.2004,

but stated that "In-fact the workman left the branch from

working since January, 1989". Thus he had not worked

after January, 1989. The 2nd Party-Workman has to

disprove the evidence led by the 1st Party-Management,

but he has not come before the Court to give evidence. A

temporary or daily wage worker has no right to claim

reinstatement and particularly when such an employee had

not worked for 240 days continuously during a period of

12 calendar months preceding the date of his so-called

termination as per provisions of Section 25-B of the

Industrial Disputes Act, 1947. Therefore, it cannot be said

that the services of the 2nd Party-Workman were terminated

without complying the provisions of the Industrial Disputes

Act, 1947. This issue is thus decided against the 2nd Party-

Workman for failing to prove that he had worked for 240

days continuously during a period of 12 calendar months

preceding the date of his disengagement or alleged

termination from service.

Issue No. 3

10. Since the 2nd Party-Workman could not prove

that he had rendered 240 days continuous service under

the 1st Party-Management during a period of 12 calendar

months preceding the date of his disengagement or alleged

termination, he is not entitled for re-employment even in

case of his alleged illegal and arbitrary termination.

Moreover, he was a temporary/casual/daily wage

employee. His services can be terminated at any time

without assigning any cause by the 1st Party-Management.

He has no legal right to be retained in service for the

extended period, if he was appointed for a certain period or

when no time is specified. The 2nd Party-Workman has not

filed any letter of appointment or proof of having rendered

service under the 1st Party-Management for a specified

period against a regular post. The 1st Party-Management

has further alleged that in time of exigencies only the 2nd

Party-Workman was employed. It means that with the end

of exigencies his job also came to an end. In view of the

matter the action of the management of State Bank of India,

Main Branch, Bhubaneswar in terminating the services of

Sri Tukuna Moharana with effect from the alleged date of

his termination is fair, legal and justified and cannot be said

to be in contravention of the provisions of the Industrial

Disputes Act, 1947. This issue is accordingly decided in

the affirmative and against the 2nd Party-Workman.

Issue No. 4

11. In view of the findings recorded above under

Issue No. 2 and 3 the 2nd Party-workman is not entitled to

any relief whatsoever claimed.

12. Reference is answered accordingly.

JITENDRA SRIVASTAVA, Presiding Officer

ubZ fnYyh] 6 Qjojh] 2012

dkñvkñ 865.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj eSustj Vsyhdke]

fMikVZesaV] xka/kh Hkou] y[kuÅ ds izca/k ra= ds lac) fu;kstdksa vkSj

muds deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh;

ljdkj vkS|ksfxd vf/kdj.k] y[kuÅ ds iapkV ¼lanHkZ la[;k

157@2001½ dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 06@2@2012

dks izkIr gqvk FkkA

[Qkby lañ ,y&40012@78@2001&vkbZ vkj ¼Mh ;w½]

jes'k flag] MsLd vf/kdkjh

New Delhi, the 6th February, 2012

S.O. 865.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

2112

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

Government hereby publishes the award (Ref. No. 157/

2001) of the Central Government Industrial Tribunal cum

Labour Court Lucknow as shown in the Annexure in the

Industrial dispute beween the employers in relation to the

Manager Telecom Dept. Gandhi Bhawan Lucknow, The

Telecom Distt. Engineer, Raebareli and their workman,

which was received by the Central Government on

06.02.2012.

[File No. L-40012/78/2001-IR (DU)]

RAMESH SINGH, Desk Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-

CUM-LABOUR COURT LUCKNOW

PRESENT:

DR. MANJU NIGAM

PRESIDING OFFICER

I.D. No. 157/2001

Ref. No. L-40012/78/2001-IR(DU) dated: 11.09.2001

BETWEEN

Shri Shyam Lal S/o Sh. Rameshwar

R/o Vill. Govindpur (Madhow)

PO Bishundaspur

Distt.-Raebareli

AND

1. The General Manager

Telecom Deptt.

O/o General Manager

Gandhi Bhawan

Lucknow (U.P.)-226001

2. The Telecom District Engineer

O/o the Telecom District Manager

Raebareli (Distt.)_229 001.

AWARD

1. By order No. L-40012/78/2001-IR(DU) dated:

11.09.2001 and its subsequent corrigendum dated

27.12.2001, the Central Government in the Ministry of

Labour, New Delhi in exercise of powers conferred by clause

(d) of sub section (1) and sub section (2A) of Section 10 of

the Industrial Disputes Act, 1947 (14 of 1947) referred this

industrial dispute between Shri Shyam Lal S/o

Sh. Rameshwar, R/o Vill. Govindpur (Madhow), PO

Bishundaspur Distt. Raebareli and the General Manager,

Telecom Deptt. O/o General Manager, Gandhi Bhawan,

Lucknow (U.P.) and the Telecom District Engineer, O/o the

Telecom District Manager, Raebareli (Distt.) for

adjudication.

2. The reference under adjudication is:

"Whether The Action of The Management of Telecom,

Lucknow in Terminating The Services of Sh. Shyam

Lal Vide Order Dated 14/9/99 was Legal And Justified?

If Not, What Relief the Workman is Entitled to?"

3. The case of the workman, Shyam Lal, in brief, is

that he was employed under Divisional Engineer, Telecom,

Raibareli on the post of security personnel on 06.02.1999

without any appointment letter and worked as such till

14.09.1999 when his services has been terminated without

any notice or retrenchment compensation in violation to

the provisions contained in Section 25 F of the Industrial

Disputes Act, 1947 in spite of the fact he worked for about

240 days. It is submitted by the workman that during his

service period he put his attendance on the attendance

he was never given any proof regarding salary. It has been

alleged by the workman that the management retained

workmen junior to him and has employed some other new

persons also, in violation to the provisions contained in

Section 25 G & H of the Act. Accordingly, the workman has

prayed that his termination order be set aside and he be

reinstated with consequential benefits including back wages.

4. The opposite party has filed its written statement,

denying the claim of the workman; wherein it has submitted

that the workman was never engaged by it, as such, there

arises no question of termination or violation of any of the

provisions of I.d. Act. moreover, it has been submitted that

the workman was the employee of M/s Security and

Protection Services, Varanasi and the workman never

received any payment towards salary from the department

directly; rather the management, as per terms of the

contract, had always paid for the watch and ward services

rendered by M/s. Security and Protection Services, Varanasi

and no point of time any payment was ever made to the

workman by the management in lieu of his any services.

The management has specifically submitted that the

workman was admittedly deployed by M/s Security and

Protection Services, Varanasi as one of its serveral

watchman, which did not create any lien in favour of the

workman against the management, furthermore, the contract

between the management and M/s Security and Protection

Services, Varanasi came to an end on 05.03.99 Accordingly,

the management has prayed that the claim of the workman

be rejected without any relief to him.

5. The workman has filed its rejoinder; wherein he

has not brought any new fact apart from reiterating the

averments already made by him in his statement of claim.

6. The workman has not field any documentary

evidence in support of his claim whereas the management

filed copy of letter of M/s Security and Protection Services,

Varanasni and copy of contract between the management

and M/s Security and protection Services, Varanasi.

7. After conclusion of workman's evidence the

management was afforded opportunity for its evidence on

29.08.2003; but when none turned up from the management,

the case was ordered to proceed ex-parte against the

management and next date 25.09.2003 was fixed for ex-parte

hearing. On 25.09.2003, the management moved application

to recall the ex-parte order dated 25.09.2003 and the same

was recalled vide order dated 05.08.2004 and the

management was directed to adduce its evidence. The

opportunity to lead evidence was closed vide order dated

¹Hkkx II—[k.M 3(ii)º

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2113

16.06.2006 and next date 11.07.2006 was fixed for arguments.

The management was once again given opportunity to

lead its evidence vide order dated 16.1.2007 but it again

failed to adduce any. This time again the management

shown its reluctance and next date 05.10.2007 was fixed for

arguments. Thereafter, as many as thirty dated were fixed

in time span of four years but the parties did not bother to

forward any argument. This is evident from the fact that

the authorized representative of the workman put up his

appearance on as many as six dates (absent for last seven

dates) and the authorized representative for management

was present for just one time. Accordingly, looking into

the reluctance of the parties to contest the case and long

pendency of the case, the file was reserved for award.

8. It was the case of the workman that he has been

employed as security personnel on 06.02.1999 and wlorked as

such till 14.09.1999 when his services has been terminated

without any notice or retrenchment compensation in violation

to the provisions contained in Section 25 F of the Industrial

Disputes Act, 1947 in spite of the fact he worked for 240 days

in a year. Also he has neither been given any appointment nor

any termination letter and that he put his attendance on the

attendance register and way paid on Muster Roll Sheet and

also that he was never given any proof regarding salary. The

workman has neither filed any documentary proof nor has

summoned any to substantiate his version.

9. per contra, the management of the telecom has

disputed the claim of the workman and has submitted that

the workman was the employee of M/s Security and

Protection Services, Varanasi and as per terms of the

contract, had always paid for the watch and ward services

rendered by M/s Security and Protection Services, Varanasi

and in no point of time any payment was made to the

workman by the management in lieu of his any services.

The contract between management and M/s Security and

Protection Services, Varanasi expired on 05.03.1999. The

management has filed photocopy of as many as two

documents to support its version; but has not entered the

witness box to adduce any oral evidence.

10. I have scanned entire, evidence on record.

11. It is well settled that if a party challenges the

legality of order, the burden lies upon him to prove illegality

of the order and if no evidence is produced by the party

invoking jurisdiction of the court, the claim must fail. In the

present case burden was on the workman to set out the

grounds to challenge the validity of the termination order

and to prove the termination order was illegal. It was the

case of the workman that he had worked for more than 240

days in the year concerned. This claim has been denied by

the management; therefore, it was for the workman to lead

evidence to show that he had in fact worked up to 240 days

in the year preceding his alleged termination. In (2002) 3

SCC 25 Range Forest Officer vs S.T. Handimani Hon'ble

Apex Court has observed as under:

"It was the case of the claimant that he had so worked

but this claim was denied by the appellant. It was

then for the claimant to lead evidence to show that

he had in fact worked for 240 days in the year

preceding his termination. Filling of an affidavit is

only his own statement in his favour and that can

not be regarded as sufficient evidence for any court

or tribunal to come to the conclusion that a workman

had, in fact, worked for 240 days or order or record of

appointment or engagement for that period was

produced by the workman. On this ground alone,

the award is liable to be set aside."

12. Analyzing its earlier decisions on the aforesaid

point Hon'ble Apex Court has observed in 2006 (108) FLR

R.M. Yellatti & Asstt. Executive Engineer as follow:

"it is clear that the provisions of the evidence Act in

terms do not apply to the proceedings under section

10 of the Industrial Disputes Act. However, applying

general principles and on reading the aforestated

judgments we find that this Court has repeatedly

taken the view that the burden of proof is on the

claimant to show that he had worked 240 days in a

given year. This burden is discharged only upon the

workman stepping in the witness box. This burden is

discharged upon the workman adducing cogent

evidence, both oral and documentary. In cases of

termination of servies of daily wages earner, there

will be no letter of appointment or termination. There

will also be no receipt or proof of payment. Thus, in

most cases, the workman (claimant) can only call

upon the employer to produce before the Court the

nominal muster roll for the given period, the letter of

appointment or termination, if any, the wage register,

the attendance register etc. Drawing of adverse

inference ultimately would depend thereafter on facts

of each case. The above decisions however make it

clear that mere affidavits or self serving statements

made by the claimant/workman will no suffice in the

matter of discharge of the burden placed by law on

the workman to prove that he had worked for 240 days

in a given year. The above judgments further lay down

that mere non production of muster rolls per se without

any plea of suppression by the claimant workman will

not be the ground for the tribunal to draw an adverse

inference against the management."

13. In the present case the workman has stated that

he has worked for about 250 days in 08 months and that he

put his attendance on Muster Roll and was paid @ Rs. 46/

- per day, which was enhanced to Rs. 50/-, on the basis of

Muster Roll; but has not produced any original documents

in support of his oral evidence either photocopy or original

in support of his averments. He has also not made any

effort to get any of the documents summoned from the

management. The initial burden of establishing the fact of

continuous working for 240 days in a year preceding the

date of alleged termination was on the workman but he has

failed to discharge the above burden. Mere pleadings are

no substitute for proof. There is no reliable material for

recording findings that the workman had actually worked

for 240 days in the preceding twelve months from the date

of his alleged termination and the alleged unjust or illegal

order of termination was passed by the management.

Accordingly, the reference is adjudicated against the

workman Shyam Lal and I come to the conclusion that he is

not entitled to any relief.

15. Award as above.

LUCKNOW.

DR. MANJU NIGAM,

30.12.2011

Presiding Officer

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[PART II—SEC. 3(ii)]

ubZ fnYyh] 6 iQjojh] 2012

dk-vk- 866-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa dsUnzh; ljdkj VsyhdkWe

fMikZVesaV] xka/h Hkou] y[kumQ ds izca/ra=k ds lac¼ fu;kstdksa

vkSj muds deZdkjksa ds chp vuqca/ esa fu£n"V vkS|ksfxd fookn esa

dsUnzh; ljdkj vkS|ksfxd vf/dj.k] y[kumQ ds iapkV (lanHkZ

la[;k 156@2001) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks

6&2&2012 dks izkIr gqvk Fkk A

¹ la- ,y&40012@75@2001&vkbZ vkj (Mh;w)º

jes'k ¯lg] MsLd vf/dkjh

New Delhi, the 6th February, 2012

S. O. 866.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 156/2001)

of the Central Government Industrial Tribunal-cum-Labour

Court, Lucknow as shown in the Annexure, in the industrial

dispute between the employers in relation to the The

Manager Telecom Deptt. Ghandhi Bhawan, Lucknow, The

Telecom Distt. Engineer, Raibareli, and their workman, which

was received by the Central Government on 6-2-2012.

[No. L-40012/75/2001-IR (DU)]

RAMESH SINGH, Desk Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT,

LUCKNOW

PRESENT

Dr. MANJU NIGAM,

PRESIDING OFFICER

I.D. No. 156/2001

Ref. No. L-40012175/2001-IR(DU) dated: 11-9-2001

BETWEEN

Shri Awadesh S/o Sh. Thakurden

R/o Vill. Takerai (Jagatpur)

Thana Kotwali (Slon)

Raebareli

AND

1. The General Manager

Telecom Deptt.,

O/o General Manager,

Gandhi Bhawan,

Lucknow (U.P.) - 226001

2. The Telecom District Engineer

O/o the Telecom District Manager

Raibareli (Distt.) - 229001.

AWARD

1. By order No. L-40012/75/2001-IR(DU) dated

11-9-2001 and its subsequent corrigendum dated 27-12-

2001, the Central Government in the Ministry of Labour,

New Delhi in exercise of powers conferred by clause (d) of

sub-section (1) and sub-section (2A) of Section 10 of the

Industrial Disputes Act, 1947 (14 of 1947) referred this

industrial dispute between Shri Awadesh S/o Sh.

Thakurden, R/o Vill. Takerai (Jagatpur), Thana. Kotwali

(Slon), Raebareli and the General Manager, Telecom Deptt.,

O/o General Manager, Gandhi Bhawan, Lucknow (U.P.) and

the Telecom District Engineer, O/o the Telecom District

Manager, Raibareli (Distt.) for adjudication.

2. The reference under adjudication is:

“Whether the action of the management of

Telecom, Lucknow in Terminating the services of

Sh. Awadesh vide Order dated 14-2-1999 was legal

and Justified? if not, what relief the workman is

entitled to ?”

3. The case of the workman, Awadesh, in brief, is

that he was employed under Divisiional Engineer, Telecom,

Raibareli on the post of security personnel on 5-2-1999

without any appointment letter and worked as such till

14-9-1999 when his services has been terminated without

any notice or retrenchment compensation in violation to

the provisions contained in Section 25 F of the Industrial

Disputes Act, 1947 in spite of the fact he worked for more

than 240 days including 52 weekly and 15 national holidays.

It is submitted by the workman that during his service

period he put his attendance on the attendance register

and was paid on Muster Roll sheet and also that he was

never given any proof regarding salary. It has been alleged

by the workman that the management retained workmen

junior to him and has employed some other new persons

also, in violation to the provisions contained in Section 25

G & H of the Act. Accordingly, the workman has prayed

that his termination order be set aside and he be reinstated

with consequential benefits including back wages.

4. The opposite party has filed its written statement,

denying the claim of the workman; wherein it has submitted

that the workman was never engaged by it, as such, there

arises no question of termination or violation of any of the

provisions of I.D. Act. Moreover, it has been submitted

that the workman was the employee of M/s. Security and

Protection Services, Varanasi and the workman never

received any payment towards salary from the department

directly; rather the management, as per terms of the

contract, had always paid for the watch and ward services

rendered by M/s. Security and Protection Services, Varanasi

and in no point of time any payment was ever made to the

workman by the management in lieu of his any services.

The management has specifically submitted that the

workman was admittedly deployed by M/s. Security and

Protection Services, Varanasi as one of its several

watchman, which did not create any lien in favour of the

workman against the management, furthermore, the contract

between the management and M/s. Security and Protection

Services, Varanasi came to an end on 5-3-99. Accordingly,

the management has prayed that the claim of the workman

be rejected without any relief to him.

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2115

5. The workman has filed its rejoinder; wherein he

has not brought any new fact apart from reiterating the

averments already made by him in his statement of claim.

6. The workman has not filed any documentary

evidence in support of his claim whereras the management

filed copy of letter of M/s. Security and Protection Services,

Varanasi and copy of contract between the management

and M/s. Security and Protection Services, Varanasi.

7. After conclusion of workman's evidence the

management was afforded opportunity for its evidence on

29-8-2003; but when none turned up from the management,

the case was ordered to proceed ex-parte against the

management and next date 25-9-2003 was fixed for ex-parte

hearing. On 25-9-2003, the management moved application

to recall the ex-parte order dated 25-9-2003 and the same

was recalled vide order dated 5-8-2004 and the management

was directed to adduce its evidence. The opportunity to

lead evidence was closed vide order dated 1-11-2006 and

next date 21-12-2006 was fixed for arguments. When none

turned up on behalf of the opposite party for arguments,

order to proceed ex-parte against the management was

passed vide dated 16-2-2009 and next date 4-3-2009 was

fixed for ex-parte arguments from workman side. Since

4-3-2009, about three years' time has been passed but the

parties have not forwarded any argument in support of

their case. The reluctance of the parties is evident from the

fact that the authorized representative of the workman has

not turned up for the last eight dates; whereas the

management's representative has appeared only once.

Accordingly, looking into the reluctance of the parties to

contest the case and long pendency of the case, the file

was reserved for award.

8. I have perused entire, evidence on record and gone

through the evidence.

9. It was the case of the workman that he has been

employed as security personnel on 6-2-1999 and worked

as such till 14-9-1999 when his services has been terminated

without any notice or retrenchment compensation in

violation to the provisions contained in Section 25F of the

Industrial Disputes Act, 1947 in spite of the fact he worked

for 240 days in a year. Also, he has neither been given any

appointment nor any termination letter and that he put his

attendance on the attendance register and was paid on

Muster Roll Sheet and also that he was never given any

proof regarding salary. The workman has neither filed any

documentary proof nor has summoned any to substantiate

his version.

10. Per contra, the management of the telecom has

disputed the claim of the workman and has submitted that

the workman was the employee of M/s. Security and

Protection Services, Varanasi and as per terms of the

contract, had always paid for the watch and ward services

rendered by M/s. Security and Protection Services, Varanasi

and in no point of time any payment was ever made to the

workman by the management in lieu of his any services.

The contract between management and M/s. Security and

Protection Services, Varanasi expired on 5-3-1999. The

management has filed photocopy of as many as two

documents to support its version; but has not entered the

witness box to adduce any oral evidence.

11. It is well settled that if a party challenges the

legality of order, the burden lies upon him to prove illegality

of the order and if no evidence is produced by the party

invoking jurisdiction of the court, the claim must fail. In the

present case burden was on the workman to set out the

grounds to challenge the validity of the termination order

and to prove the termination order was illegal. It was the

case of the workman that he had worked for more than 240

days in the year concerned. This claim has been denied by

the management; therefore, it was for the workman to lead

evidence to show that he had in fact worked up to 240 days

in the year preceding his alleged termination. . In (2002) 3

SCC 25 Range Forest Officer vs S.T. Hadimani Hon'ble Apex

Court has observed as under:

“It was the case of the claimant that he had so

worked but this claim was denied by the appellant.

It was then for the claimant to lead evidence to

show that he had in fact worked for 240 days in

the year preceding his termination. Filing of an

affidavit is only his own statement in his favour

and that can not be regarded as sufficient

evidence for any court or tribunal to come to the

conclusion that a workman had, in fact, worked

for 240 days or order or record of appointment or

engagement for that period was produced by the

workman. On this ground alone, the award is liable

to be set aside.

12. Analyzing its earlier decisions on the aforesaid

point Hon'ble Apex Court has observed in 2006 (108) FLR

R.M. Yellatti & Asstt. Executive Engineer as follow :

“It is clear that the provisions of the evidence Act

in terms do not apply to the proceedings under

section 10 of the Industrial Disputes Act. However,

applying general principles and on reading the

aforestated judgments we find that this Court has

repeatedly taken the view that the burden of proof

is on the claimant to show that he had worked 240

days in a given year. This burden is discharged

only upon the workman stepping in the witness

box. This burden is discharged upon the workman

adducing cogent evidence, both oral and

documentary. In cases of termination of services

of daily wages earner, there will be no letter of

appointment or termination. There will also be no

receipt or proof of payment. Thus, in most cases,

the workman (claimant) can only call upon the

employer to produce before the Court the nominal

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THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

muster roll for the given period, the letter of

appointment or termination, if any, the wage

adverse inference ultimately would depend

thereafter on facts of each case. The above

decisions however make it clear that mere

affidavits or self serving statements made by the

claimant/workman will no suffice in the matter of

discharge of the burden placed by law on the

workman to prove that he had worked for 240

days in a given year. The above judgments further

lay down that mere non production of muster rolls

per se without any plea of suppression by the

claimant workman will not be the ground for the

tribunal to draw an adverse inference against the

management.”

13. In the present case the workman has stated that

he has worked continously since 6-2-1999 to 14-9-1999;

but has not produced any original documents in support

of his oral evidence either photocopy or original in support

of his averments. He has also not made any effort to get

any of the documents summoned from the management.

The initial burden of establishing the fact of continuous

working for 240 days in a year preceding the date of alleged

termination was on the workman but he has failed to

discharge the above burden. Mere pleadings are no

substitute for proof. There is no reliable material for

recording findings that the workman had actually worked

for 240 days in the preceding twelve moths from the date of

his alleged termination and the alleged unjust or illegal

order of termination was passed by the management.

14. Accordingly, the reference is adjudicated against

the workman Awadesh; and I come to the conclusion that

he is not entitled to any relief.

15. Award as above.

LUCKNOW

3-1-2012

DR. MANJU NIGAM, Presiding Officer

ubZ fnYyh] 6 iQjojh] 2012

dk-vk- 867-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa dsUnzh; ljdkj tujy eSustj

bf.M;k flD;ksfjVh izsl] djsalh uksV] izsl] ukfld ds izca/ra=k ds

lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/ esa fu£n"V

vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/dj.k] eqEcbZ ds

iapkV (lanHkZ la[;k lh-th-vkbZ-Vh&2@99 vkWiQ 2005) dks izdkf'kr

djrh gS] tks dsUnzh; ljdkj dks 6&2&2012 dks izkIr gqvk Fkk A

¹ la- ,y&16011@7@2005&vkbZ-vkj (Mh;w)º

jes'k ¯lg] MsLd vf/dkjh

New Delhi, the 6th February, 2012

S.O. 867.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. CGIT-

2/99 of 2005) of the Central Government Industrial Tribunal

cum Labour Court No. 2 Mumbai as shown in the Annexure,

in the Industrial dispute between the employers in relation

to The General Manager India Security Press, Currency

Note Press Nasik and their workman, which was received

by the Central Government on 06.02.2012.

[F.No. L-16011/7/2005-IR(DU)]

Ramesh Singh, Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL

NO. 2, MUMBAI

PRESENT

K.B. KATAKE

Presiding Officer

REFERENCE NO. CGIT-2/99 OF 2005

EMPLOYERS IN RELATION TO THE MANAGEMENT

(1) INDIA SECURITY PRESS

The General Manager

India Security Press

Nashik

Nashik Road (MS)-422 101

(2) CURRENCY NOTE PRESS

The General Manager

Currency Note Press

Nashik Road

Nashik (MS)-422 101.

AND

THEIR WORKMEN

(1) The General Secretary

ISP/CNP Class IV Employees' Union & Ors.

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2117

Near India Security Press

Green Gate, Nasik Road

Nasik (MS)-422 101.

(2) The General Secretary

ISP Mazdoor Sangh

Near India Security Press

Green Gate, Nasik Road

Nasik (MS)-422 101.

(3) The General Secretary

ISP/CNP Staff Union

Near India Security Press

Green Gate, Nasik Road

Nasik (MS)-422 101.

APPEARANCES:

FOR THE EMPLOYER Nos. 1 & 2 : Ms. Neeta Masurkar

Advocate.

FOR THE UNION Nos. 1 & 2

: Ms.

Ranjana

Todankar

Advocate.

FOR THE UNION No. 3

: No appearance.

Mumbai, dated the

12th December, 2011.

AWARD

1. The Government of India, Ministry of Labour &

Employment by its Order No. L-16011/7/2005-IR(DU), dated

05/08/2005 & Corrigendum dated 30/10/2006 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 industrial dispute to

this Tribunal for adjudication:-

"Whether the demand of the Unions for payment of

Ad-hoc bonus is tenable and justified while Group

Incentive Scheme for employees of the Currency Note

Press, Nashik and the India Security Press, Nasik are

in operation. If not, what relief the employees are

entitled for?"

2. After receipt of the reference notices were issued

to both the parties. They appeared through their legal

representatives. The second party union filed its statement

of claim at Ex-8. According to them, by its office

memorandum dated 07.10.1986, the Central Government

granted ad-hoc bonus to the employees not covered by

any productivity linked bonus scheme. In the year 1985-86

ad-hoc bonus equivalent to 23 days emoluments was

granted to the employees, in the year 1986-87 they were

paid ad-hoc bonus equivalent to 25 days emoluments, in

the year 1988-89, 1989-90 they were paid ad-hoc bonus

equivalent to 27 days emoluments,in the year 1990-91, 1991-

92, 1992-93, 1993-94, 1994-95 they were given ad-hoc bonus

equivalent to 29 days emoluments. In the year 1995-96 to

2002-2003 i.e. for a period of 8 years they were paid ad-hoc

bonus equivalent to 30 days emoluments. The ad-hoc

bonus was paid to them from 1986 to 2002 at the time of

Diwali Festival. It had no link with the profit.

3. During the period 1985 to 1986, ad-hoc bonus was

paid by the Government to the workmen who were covered

by Payment of Bonus Act 1965. However in the year

1996-97 after the implementation of V Pay Commission

majority of workers were receiving wages more than Rs.

3500/- and were therefore not covered by Payment of Bonus

Act 1965. In this situation from 1996-97, the Govt started

paying ad-hoc bonus to all the employees irrespective of

wage ceiling laid down under Payment of Bonus Act, 1965.

Since 1996-97 a majority of workers are not covered by

Payment of Bonus Act 1965 inspite of that they received

bonus at the time of Diwali Festival at uniform rate of 30

days emoluments. They received it as a customary bonus

till the year 2002-2003 and they are entitled to receive the

same at the same rate as a customary bonus.

4. According to them, Govt of India by its letter dated

28.10.2004 directed that the Central Government employees

are paid bonus under three schemes (a) Productivity linked

Bonus Scheme, (b) Non-productivity linked Bonus Scheme

and or (c) any other incentive scheme in the organisation.

The Central Govt has directed that employees cannot be

given benefit of two schemes. By its letter dated 3.11.2004,

the Government of India has directed that bonus is not

payable to those employees who are getting incentive

payment. The Government has directed that ad-hoc bonus

earlier paid to the employees be recovered. Accordings to

the union, the direction of the Government that the workmen

who are receiving benefit of any incentive scheme are not

entitled to payment of bonus and that the bonus already

paid was to be recovered is illegal and arbitrary. The Group

Incentive Scheme was introduced in India Security Press

and Currency Note Press in the year 2001. In the CNP the

Group Incentive Scheme was initially introduced in the

year 1986. The Group Incentive Scheme was introduced to

increase production and discourge absenteeism amongst

the workers. According to the payment recieved by the

workmen under Group Incentive Schemes do not amount

to bonus and such workers who are receiving benefit under

incentive scheme cannot be denied the benefit of

customary bonus to which they are entitled to. Grave harm

and damage will be caused to the workmen if the amount

already paid to them towards bonus is recovered from them.

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[PART II—SEC. 3(ii)]

Therefore the second party union prays for declaration

that the workmen are entitled to receive customary bonus

at the rate of 30 days emoluments. The union also prays for

direction to the first party to pay the bonus to the workmen

under reference from the year 2003-2004 and 2004-2005 at

the aforesaid rate of 30 days emoluments. They also pray

to restrain the first party from recovering the amount of

bonus already paid to the workmen.

5. First party No. 1 and No. 2 resisted the statement

of claim vide their two separate identical written statements

at Ex-17 & 20. According to them, the India Security Press

and Currency Note Press are two independent

establishements and are functioning independent of each

other having two different and distinct employees and

hence combined reference made against both of them is

not legal and proper and cannot be tried together, thus

liable to be dismissed. According to them, Govt of India

owns India Security Press, Nasik Road. It was established

in the year 1924. Administrative control thereof is with

Department of Economic Affairs of Ministry of Finance.

The General Manager, India Security Press is an officer

under the control of Finance Ministry. It deals with printing

of different security documents and stationery items

including postal stamps, post cards, inland letters, revenue

stamps, court fee stamps, passports, railway warrants, civil

instruments like KVP, NSC etc. The press is engaged in

carrying out sovereign functions of Govt of India. For that,

press has employed different groups of employees

categorised as Group-A consisting of all Gazetted officers,

Group-B consisting of gazetted and non-gazetted

employees, Group-C consisting of all non-gazetted

employees and unclassified industrial employees.

6. Govt of India also owns Currency Note Press,

Nashik Road which is registered under Factories Act,1948.

Its administrative control is with Department of Economic

Affairs of Finance Ministry, Government of India. The

General Manager, Currency Note Press is an officer under

the control of Ministry of Finance. Currency Note Press is

engaged in printing Bank Notes of denomination Rs. 5, Rs.

10, Rs. 50, Rs. 100, Rs. 500 and Rs. 1000 and intended by

RBI and they are supplying these printed notes to the RBI

Centres.The Press is engaged in sovereign functions of

the Government of India. The Press has employed different

group of employees categorised as Group-A consisting of

all Gazetted officers, Group-B consisted of gazetted and

non-gazetted employees, Group-C consisted of all non-

gazetted staff and unclassified industrial employees.

7. According to them, there are two recognised trade

unions India Security Press Mazdoor Sangh and ISP CNP

Staff Union representing all non-gazetted staff. There is

also third union by name ISP and CNP Class IV Union. All

the three unions served strike notice each separately on

the management of Currency Note Press/India Security

Press, Nashik Road for payment of ad-hoc bonus. The

conditions of employees of CNP in different categories are

governed by different set of rules issued by Government

of India from time to time. Accordingly the non-gazetted

employees including unclassified industrial employees

were paid non-productivity linked bonus (ad-hoc bonus)

as decided by the Central Government from time to time.

8. According to them, Group Incentive Scheme was

introduced in both the Press from September 2001 by which

monthly incentive is paid on the basis of production

achieved as per the conditions laid down in the said scheme.

When the said scheme was in operation Government of

India, Ministry of Finance, Department of Ecoomic Affairs

vide its letter dt. 3/11/2003 intimated the observation of

Department of Expenditure to discontinue forthwith the

payment of ad-hoc bonus. In view of the said instruction,

the employees of ISP and CNP were not paid ad-hoc bonus

for the year 2003-04. It was policy decision of Government

of India. Thus the ad-hoc bonus already paid to these

workmen for the year 2002-2003 is to be recovered from

them. The said action is neither illegal nor arbitrary. The

employees who are availing benefit of incentive scheme

are not entitled to get ad-hoc bonus.The ad-hoc bonus is

customary and not covered under any statutory provision.

Therefore it is submitted on behalf of both the press that

the reference deserves to be dismissed as the workers are

not entitled to get ad-hoc bonus. Thus they pray that

reference be dismissed with cost.

9. Following are the issues framed by my Ld. Predecessor

for my determination. I record my findings thereon for

the reasons to follow:

Sr. Issues

Findings

No.

Whether demand of the union for

payment of ad-hoc bonus is tenable

Yes.

Whether groups incentive scheme for

employees compensate the idea of

bonus?

No.

Whether prayer to direct first party to

make payment of bonus for 2003-04

& 2004-05 is legal and tenable

Yes.

Whether first party can be restrained

in recovering bonus already paid to

workmen?

Yes.

What order?

As per final order.

S-3\E\4734RR\4734RR6

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2119

REASONS

Issues nos. 1, 2 & 3 :—

10. In this respect at the outset the first party has

raised objection to this reference by saying that the first

party is discharging sovereign functions therefore it is not

an 'industry'. Therefore according to them the industrial

dispute does not survive. In this respect the Id Adv. for the

second party resorted to Apex Court ruling in Bangalore

Water Supply V/s. A. Rajjappa & Ors. AIR 1978 SC 548.

In para 161 of the judgement the Hon'ble Court on the

point observed that (c) Even in Departments discharging

sovereign functions if there are units which are industries

and they are substantially severable, then they can be

considered to come with in Section 2 (j). Section 2 (j) of I.D.

Act defines 'industry'. In the case at hand the India Security

Press as well as Currency Note Press though are

discharging sovereign functions by printing postal stamps,

court fees stamps and currency notes respectively. They

are no doubt units which are industries. They are dealing

with process of printing material for an on behalf of

Government of India. Therefore both these institutes can

be said industry within the definition of industry as

contemplated under Section 2 (j) of the I.D. Act. Therefore

this objection raised on behalf of first party is devoid of

merit that the ISP and CNP are not industries.

11. Second objection raised on behalf of the first

party is that the ISP Nashik and the CNP Nashik are two

separate units having their independent managements.

They have no concern with each other. However the union

has raised this common industrial dispute. Therefore it is

not tenable. In this respect the fact is not disputed that ISP

and CNP are two different entities. However both these

institutions are under the control of Central Govt. The

problem of employees in both these institutions in respect

of payment of customary bonus is common. The I.D. Act

and the other Labour Laws are welfare legislations and the

strict rules of Civil Procedure Code are not applicable to

the proceedings under labour and industrial laws.

Therefore, bar of multifariousness of causes of action does

not arise. Workers and employees in both these institutions

are facing the same problem of payment of customary

bonus. Therefore they can agitate the issue in one and the

same industrial dispute. Therefore this objection also does

not stand to reasons.

12. Now in respect of the main question of payment

of customary bonus, the ld Adv for the first party submitted

that as groups incentive scheme is made applicable,workers

of both these institutions are not entitled to the bonus

which was being paid to them prior to the groups incentive

scheme. In this respect the ld Adv. for the second party

submitted that the group incentive scheme has no concern

as both these units are not profit making companies. On

the other hand, they are performing sovereign and welfare

activities of the State. Therefore, customary bonus which

was being paid to these workers need not be stopped. In

support of his argument, the ld Adv. for the second party

resorted to Apex Court ruling in Workmen of Kettlewell

Bullen & Co. Ltd. V/s. Kettlewell Bullen & Co. Ltd. 1994

CLR 511 wherein on the point Hon'ble Court referred to its

various earlier decisions and observed that:

"It is observed that in the instant case there was

payment of uniform rate of 10.5% of salary of wages

for an unbroken period of 9 years from 1965 to 1973

which was a sufficiently long period and Tribunal

could have reasonable drawn an inference that the

said payment was customary and traditional bonus

on the occasion of puja festival."

13. In the case at hand, admittedly the workers were

being paid ad-hoc bonus equal to 30 days wages every

year at the time of Diwali festival. Therefore this ad-hoc

bonus also can be called customary bonus as it was being

paid continuously since 1996 to 2003. By a letter dated 28/

10/2004 the Govt of India directed that the Central

Government employees are paid bonus under three schemes

(a) Productivity linked scheme (b) non-productivity Linked

scheme (c) any other incentive scheme in the organisation

and they have stopped the ad-hoc bonus by saying that

the workers cannot get benefit of two schemes. Infact

customary bonus has no concern with the groups incentive

scheme. Therefore in my opinion, the customary bonus of

the workers need not be withheld. The ISP and CNP are not

profit making companies, therefore, question of payment

of bonus depending on productivity or profit of the

company has no concern. In this backdrop, I come to the

conclusion that the management was not justified in

withholding the customary bous of the workers of ISP as

well as CNP. The workers in both the units are entitled to

the customary bonus at the time of Diwali festival which

was being paid for considerable long period and more than

seven years. I also hold that, the action of the management

is not justifiable who have started recovery of the bonus

alredy paid. Accordingly, I decide issue no. 1 in the

affirmative that demand of the union for payment of ad-

hoc bonus is tenable. Consequently, I decide the issue no.

2 in the negative that the group incentive scheme for

employees does not compensate the idea of bonus. I decide

the issue no. 3 in the affirmative that the prayer to direct

the first party to make payment of bonus for the year

2003-04 to 2004-05 is legal and tenable. Accordingly I decide

these issues.

Issue no. 4:—

14. In the light of above discussion, I have come to

the conclusion that the workmen in both the above

establishements are entitled to receive customary bonus

at the time of every Diwali festival. I also held that the

S-3\E\4735RR\4735RR6

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THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

action of the management is unjust and improper to stop

payment of customary bonus. Therefore, action of

management in recovering the bonus already paid has to

be stopped and restrained. Thus it needs no further

discussion to arrive me at the conclusion that first party

can be restrained from recovering the bonus already paid.

Accordingly I decide the issue no. 4 in the affirmative and

proceed to pass the following order:

ORDER

(i) Reference is allowed with no order as to cost.

(ii) The demand of the union for payment of ad-hoc/

customary bonus is declared legal and valid.

(iii) The first party is directed to make the payment of

bonus for the year 2003-04 & 2004-05 @ 30 days

emoluments.

(iv) The first party is hereby restrained from recovering

the bonus already paid to the workmen.

Date: 12.12.2011

K.B. KATAKE, Presiding Officer

ubZ fnYyh] 6 Qjojh] 2012

dkñ vkñ 868.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj eSusteSaUV vkWQ

lSUVªy Qkby fjlpZ bLVhV~;wV izca/k ra= ds lac) fu;kstdksa vkSj muds

deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh;

ljdkj vkS|ksfxd vf/kdj.k /kuckn ds iapkV ¼lanHkZ la[;k &

100@94@7½ dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 06&02&2012

izkIr gqvk FkkA

[Qkñ la[;k ,y& 42011@15@2006 vkbZñvkjñ ¼Mhñ ;wñ½]

jes'k flag] MsLd vf/kdkjh

New Delhi, the 6th Feb., 2012

S.O. 868.—In pursuance of Section 17 of the

Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 100/94/

7) of the Central Government Industrial Tribunal cum

Labour Court No. 1 Dhanbad as shown in the Annexure, in

the Industrial dispute between The Employers in relation

to The management of Central Fuol Research Institute

and their workman, which was received by the Central

Government on 06.02.2012

[F.No. L-42011/15/2006-IR(DU)]

RAMESH SINGH DESK OFFICER

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL NO. I, DHANBAD.

In the matter of a reference U/S. 10(1) (d) (2A) of the

Industrial Disputes Act, 1947

Reference No. 18 of 2007

Parties: Employers in relation to the mangement of Central

Fuol Research Institute.

AND

Their Workmen

Present : Shri H.M. Singh,

Presiding Officer,

Appearances:

For the Employers

Shri A. Kumar, Advocate

For the Workers

None

State : Jharkhand.

Industry : Research.

Dated, the 13.1.2012.

AWARD

By Order No. L-42011/15/2006-IR-(DU) dated 6.3.2007

the Central Government in the Ministry of Labour has, in

exercise of the powers conferred by clause (d) of sub-

section (1) and sub-section (2A) of Section 10 of the

Industrial Disputes Act, 1947, referred the following dispute

for adjudication to this Tribunel:

"Whether the demand of the Bhartiya, Audhoyogik

Shremik Singh. Dhanbad for compassionate

employment and monetary componsation to the

dependent a of Late Shri Baiju Oraon by the

management of Central Fuel Research Institute,

Digwadih Dhanbad is legal and justified? If so, to

what relief the concerned dependent of the deceased

is entitled to?''

2. The case of the concerned workmen is that he was

in employment with the mangement and he was employed

as Security Guard, which is persmanent nature of job. The

concerned workmen, Baiju Oraon was admitted in RIMS

on 14.11.2004 but during the course of medical treatment

he died on 15.11.2004 on account of C.R. Failure. At the

time of his death, he was 40 years of age. He was in

employment with the management and he was employed

as security guard. He died on account of accident arising

on his way to here from duty out of and in the course of his

employment. After the death of the concerned workman,

the only remedy available to the depandents of the

S-3\E\4734RR\4734RR6

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2121

deceased workman is compessionate appointment to Piri

Orain, wife of the deceased workman, She fulfilled all the

criteria prescribed by the managment for appointment on

compessionate ground. His depandents are also entitled

to compansation. But the managment has either given

employment to Piri Orain nor paid compensation.

It has been prayed that the Hon'ble Tribunal he

pleased to answer the reference in favour of the petitioner

to award relief in the forms of appointment of Piri Orain on

compassionate ground and payment of compansation.

3. The case of the managment is that Baiju Orain was

hired.appointed/angaged in CFRI now know as CIMFR,

only on contract basis on consolidated amount and nothing

more than that. He was not a permanent employee/worker

of CFRI known as CIMFR. From the death certificate of

Baiju Orain granted by Dr. C.P. Sahay Unit appears that he

died due to C.R. Failure in RIMS at Ranchi. He did not die

while/during performing any duty in CIMFR which is not

an 'Industry' as defined under I.D. Act, 1947. From the death

certificate submitted by the applicant in the instant case, it

transpires that on 14.11.04 the deceased Baiju Orain was

not present in Digwadih within Dhanbad District, rather

he was died in Ranchi. The scheme of compassionate

appointment and its non-appliecability on the applicant in

the instant case does not aris at all for the simple reason

that the diceased Baiju Oraon was not the permanent

employee/worker in CIMFR, rether he was only hired on a

contract basis on consolidated amount for the time being

which was duly. Extented time to time only and hence the

family of the deceased Baiju Oraon is not entitled to get

compassionat appointment/compensation.

In such circumstances, it has been prayed that the

Hon'ble Tribunal be pleased to hold that Central Institute

of Mining & Fuel Research (CIMFR) is not an Industry

and also to hold that the demand of the Union concerned

is neither legal nor justified.

4. Both the parties have filed their respective

rejoinders admitting and denying the contents of some of

the paragraphs of each other's written statement.

5. The concerned petitioner has not produced any

oral evidence nor any document has been proved.

The management produced Janardhan Mohan

Choudhary as MW-1. He stated in affidavit that the CIMFR/

CFRI Dhanbad is a constituent institute of the Council of

Scientific & Industrial Resources (CSIR) which is not an

Industry U/S. 2(i) of the I.D. Act and hence the provision

of the Act is not applicable. Baiju Oraon was not the

permanent employee of the management rather he was a

temporary worker on contract for fixed term and fixed

amount and no work no payment was made to the employee/

worker who is working on contract for fixed term & fixed

amounts.

6. Considering the above facts and circumstances, I

hold that the demand of the Bhartiya Audhoyogik Shramik

Sangh, Dhanbad for compassionate employment and

monetary compensation to the dependent of Late Shri Baiju

Oraon by the management of Central Fuel Research

Institute, Digwadih, Dhanbad, is not legal and justified

and hence the dependent of Late Shri Baiju Oraon is not

entitled to any relief.

H.M. SINGH, Presiding Officer.

ubZ fnYyh] 6 Qjojh] 2012

dkñ vkñ 869.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj phQ tjuy

eSustj] ,eñVhñ,uñ,yñfyñ nknj ¼oSLV½ izca/k ra= ds lac) fu;kstdksa

vkSj muds deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa

dsUnzh; ljdkj vkS|ksfxd vf/kdj.k eqEcbZ ds iapkV ¼lanHkZ la[;k

lhñthñvkbZñVhñ&2@6 vkQ 1991 dks izdkf'kr djrh gS] tks dsUnzh;

ljdkj dks 06&02&2012 dks izkIr gqvk FkkA

[Qkñ la[;k ,y& 40011@14@1990 vkbZñvkjñ ¼Mhñ ;wñ½]

jes'k flag] MsLd vf/kdkjh

New Delhi, the 6th Feb., 2012

S.O. 869.— In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. CGIT-

2/6 of 1991) of the Central Government Industrial Tribunal

cum Labour Court No. 2 Mumbai as shown in the Annexure,

in the Industrial dispute between the employers in relation

to The Chief General Manager MTNL Ltd. Dadar West

and their workman, which was received by the Central

Government on 06.02.2012

[F.No. L-40011/14/1990-IR(DU)]

RAMESH SINGH DESK OFFICER

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL

NO. 2, MUMBAI

PRESENT

K.B. KATAKE

Presiding Officer

REFERENCE NO. CGIT-2/6 of 1991

S-3\E\4735RR\4735RR6

2122

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

EMPLOYERS IN RELATION TO THE MENAGEMENT

OF MAHANAGAR TELEPHONE NIGAM LTD.

The Chief General Manager

Mahanagar Telephone Nigam Ltd.

S.V. Marg

Dadar (W)

Mumbai 400 028

AND

THEIR WORKMEN

The President

Bombay Telephone Canteen Employees

Association

C/o. Prabhadevi Telephone Exchange Canteen

Dadar (W)

Mumbai 400 028

APPEARANCES:

FOR THE EMPLOYER

Ms. S.I. Shah, Advocate

FOR THE WORKMEN

Mr. M.B. Anchan,

Advocate

Mumbai, dated the 22nd December, 2011.

AWARD

1. The Government of India, Ministry of Labour &

Employment by its Order No. L-40011/14/90-IR(DU), dated

31.01.1991/04.02.1991 in exercise of the power conferred by

clause (d) of sub-sectin (1) and sub-section 2(A) of Section

10 of the Industrial Disputes Act, 1947 have referred the

following industrial dispute to this Tribunal for

adjudication:—

"Whether the action of the management of

Mahangar Telephone Nigam Ltd. in terminating the

services of 14 workmen (as per Annexure-A) working

in the Telephone House Canteen, Telephone House

of MTNL Bombay w.e.f. 7/10/1988 and whether the

management of MTNL were also justified in

withholding wage from Aug 1988 and in non-

implementation of fourth pay commissions pay scale

w.e.f. 1/1/1986? If not, to what relief the concerned

workmen are entitled to?"

Name of worker/employee as per Annexure 'A'

Sr. no.

Name

Mr. Laxman B. Dalvi

Mr. Shekar K. Salian

Mr. Sadashiv P. Poojari

Mr. Bharat Devar

Mr. Shodan S. Sapaliga

Mr. Esaki Devar

Mr. Ramesh Mahadik

Mr. Sanjeeva P. Salian

Mr. Sambhaji G. Yesane

10.

Mr. Yadgiri Lavanan

11.

Bhaskar B. Kotian

12.

Arun Bogan

13.

Narayanan K. Jagruthkar

14.

Suresh B. Salian

2. The reference was remanded back to this Tribunal

vide Hon'ble High Court's order dated 13/12/2001 passed

in W.P. No. 3024 of 1995 & WP No. 5580 of 1995. The said

writ petitions were filed by the second party Association

challenging the Award dated 1/3/1995 passed by this

Tribunal in the above reference.

3. After receipt of copy of the order from Hon'ble

High Court, notices were sent to both the parties. None of

the parties appeared before this Tribunal. Thereafter notices

were again sent to parties. Today when both the parties are

present, Mr. S.J. Shetty, General Secretary of the union

filed application Ex-23 praying to dispose of the reference

as they do not want to pursue the matter. Since the union

does not want to prosecute the reference, I think it proper

to dispose of the reference. Hence the order:

ORDER

Reference is dismissed for want of prosecution with

no order as to cost.

Date: 22.12.2011

K.B. KATAKE, PRESIDING OFFICER

ubZ fnYyh] 6 Qjojh] 2012

dkñ vkñ 870.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj MkjsDVj 'kqxjdsu

czhfMax baLVhV~;wV ohjkdsjkye] dks;EcVwj izca/k ra= ds lac) fu;kstdksa

vkSj muds deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa

S-3\E\4734RR\4734RR6

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

2123

dsUnzh; ljdkj vkS|ksfxd vf/kdj.k psUubZ ds iapkV ¼lanHkZ la[;k &

64@2007 dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 06&02&2012

dks izkIr gqvk FkkA

[Qkñ la ,y& 42011@128@2007 vkbZñvkjñ ¼Mhñ ;wñ½]

jes'k flag] MsLd vf/kdkjh

New Delhi, the 6th Feb., 2012

S.O. 870.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 64/2007)

of the Central Government Industrial Tribunal cum Labour

Court Chennai as shown in the Annexure, in the dispute

between the employers in relation to the management of

Director, Sugarcane Breeding Institute Veerakeralm,

Coimbatore and their workman, which was received by

the Central Government on 06.02.2012.

[F.No. L-42011/128/2007-IR(DU)]

RAMESH SINGH, DESK OFFICER

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT

CHENNAI

Thursday, the 12th January, 2012

Present : A.N. JANARDANAN

Presiding Officer

INDUSTRIAL DISPUTE No. 64/2007

(In the matter of the dispute for adjdication under

clause (d) of sub-section (1) and sub-section 2(A) of Section

10 of the Industrial Disputes Act, 1947 (14 of 1947), between

the Management of Sugarcane Breeding Institute and their

Workman)

BETWEEN

Sri A. Mohanraj

1 Party/Petitioner

16/55, Jeva Street, K.C. Palayam

Coimbatore-641007

Vs.

The Director

2nd Party/Respondent

Sugarcane Breeding Institute

Veerakeralam

Coimbatore-641007

Appearance:

For the 1st Party/Petitioner

Smt. A. Veeramarthini,

Advocate

For the 2nd Party/ManagementSri

M.T.

Arunan,

Advocate

A W A R D

The Central Government, Ministry of Labour &

Employment vide its Order No. L-42011/128/2007-IR(DU)

dated 26.10.2007 referred the following Industrial Dispute

to this Tribunal for adjudication.

The schedule mentioned in that order is:

"Whether the action of the management of

Sugarcane Breeding Institute in terminating the

services of their workman Sri A. Mohanraj w.e.f.

March, 1993 is legal and justified? If not, to what

relief the workman is entitled to?"

2. The reference was taken on file and numbered as

ID 64/2007. Pursuant to notice both parties entered

appearance through their respective counsel. The petitioner

entered appearance through Legal Aid counsel appointed

by the Chennai District Legal Services Authority and the

Respondent appeared through his Counsel. The petitioner

field claim statement but the Respondent initially did not

file any Counter Statement. Afterwards the Respondent

stood continuously absent and remained unrepresented,

eventually leading to set him ex-parte.

3. The petitioner thereafter led evidence getting

himself examined as WW1 filing affidavit in lieu of Chief

Examination and marked Ex. W1 to Ex. W14. There was no

cross-examination. Consequently as per award dated

27.04.2009 petitioner was ordered to be reinstated into

service forthwith with back wages and all other attendent

benefits together with costs of the proceedings.

4. The said award on being challenged before the

Hon'ble High Court of Madras in Writ Petition No. 11291 of

2009 as per order dated 16.11.2009 set aside the ex-parte

award and remitted back the matter to this Tribunal with a

direction to dispose of the case afresh.

5. Thereafter both sides entered appearance and the

Respondent filed reply (to the Claim Statement).

6. The case of the petitioner in the Claim Statement

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2124

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

briefly is as follows:

The petitioner had been working as a Casual

Labourer under the Respondent from 02.02.1978 till March,

1993. About 150 Casual workers abruptly commenced a

strike from 30.01.1992. The petitioner was not a participant

in the strike. During April, 1993, the petitioner fell ill. He

also lost his mother and father in a span of 20 days. Hence,

he was not able to attend his duties for a brief period.

Thereafter, when he returned to duty, he was not permitted

to join duty due to action of the striking labourers to move

the Court. The conciliation proceedings launched ended

in a reference of the dispute of striking labourers with the

Management to the Industrial Tribunal, Chennai. His

request was turned down in the guise of subjudice. In

appeal before the High Court, Chennai against the award

of the Industrial Tribunal there arose an order to allow the

striking labourers to join duty from 01.12.2000 with the

monetary benefit of 24 months wages as arrears. Himself

with one labourer, S. Mohan and 26 others got an order in

OA 823/94 connected with OA 1410/94 from the Central

Administrative Tribunal directing the Respondent to create

posts in grades consistent with the need of the institution

and to absorb the applicants. On 01.08.1997, an order was

passed to allow them to join duty but the petitioner alone

actually was not permitted to join duty. No reason has

been given for such act. The action of the Respondent is in

clear violation of Article 14 and 16 of Constitution of India

and is unlawful and is against natual justice. The

Management has taken vindictive stand against the

petitioner. It is prayed that the petitioner may be reinstated

with full backwages, continuity of service and other benefits

together with the costs of the petition.

7. Reply statement averments bereft of unnecessary

details are as follows:

Petitioner joined the Institute at Coimbatore as a

Casual Labour for seasonal agricultural field work on

16.05.1978 and not on 02.02.1978 as alleged. He was not

working continuously till March 1993 as stated. He

discontinued himself thrice in 1978 and 1993. His attendance

details for different years are:

1978-1979 to 1982-1983

Worked for 5 years

April 1983-Dec. 1983

Discontinued for 9

months

Jan. 1984 to Feb. 1984

Worked for 14 days

March 1984 to March 1990

Discontinued for 6 years

1990-1991 to 1992-1993

Worked for 3 years

1993-1994

Worked for 17 days

April 1993

Discontinued on his own

Evidently he is a habitual absentee and was given

chance to rejoin twice. He is physically too weak to do field

work of a casual worker. At the conciliation stage finally

the Institute agreed to engage him as a minimum wage

casual labour like other 152 workers who went on strike

from February 1992 till rejoining in December, 2000, which

offer petitioner deliberately refused demanding temporary

status and which was not possible as per rules, for which

he has had to satisfy two conditions as per G.O.I. Order

DoPT Order, OM No. 51016/2/90-Estt. (C) dated 10.09.1993

viz. that he should be on rolls on 01.09.1993 and (ii) must

have worked for 240 days during the preceding year viz.

01.09.1990 to 31.08.1993. Petitioner worked for less than

150 days during the period. He does not satisfy both the

conditions stipulated. Still he was considered for re-

engagement sympathetically as minimum wages casual

labour in the conciliation which failed due to his recalcitrant

attitude. He was a habitual absentee and inconsistent

worker with very poor attendance. He has not produced

evidence for falling ill or losing his parents within a span of

20 days. Nor was there any information passed for

permission to be away from work for a long period. Now on

the fascination of better conditions of service and wages

to temporary status category workers he is out to justify

his lapses which lack credibility. After discontinuing work

in April 1993 he never approached the Institute before

approaching the Labour Commissioner. There is no proof

for that. He is not similar to other 152 labourers on strike.

He conjured imaginary reason for justifying his lapses.

Order of the High Court is not applicable to him as he was

not a member of the Union the went on strike. Still he was

offered re-engagement as the other 152 workers which he

turned down. It is mis-representation that he was one among

the 27 workers who approached the Central Administrative

Tribunal for regularization because 26 workers other than

him were already on the rolls with temporary status from

01.09.1993. He was not on the rolls since he was absentee.

He included his name in the petition before Central

Administrative Tribunal with malicious intention to mislead

the Court. Demand of 26 workmen was not for rejoining

duty but for regularization. His stand in the conciliation

was only for temporary status for which he is not eligible.

P2 is only an interview letter in which he was not selected

to Group 'D' post. Even interview letter from the

Employment Exchange was a step to regularize him. At the

time of filing the case in Central Administrative Tribunal in

1996 he was not in the rolls since he had discontinued from

April 1993. He misled that his case is similar to the 26 other

petitioners in OA No. 824 of 1994 and 1410 of 1994. Petition

is to be dismissed.

8. Points for consideration are:

(i) Whether the termination of the workman w.e.f. March

1993 is legal and justified?

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(ii) To what relief the concerned workman is entitled?

9. Evidence consists of the testimony of WW1 and

Ex. W1 to Ex.W14 on the petitioner's side and that of MW1

and MW2 and Ex. M1 to Ex. M7 on the Respondent's side.

Points (i) & (ii)

10. Heard both sides. Perused the pleadings,

documents, evidence and the written arguments on either

side. Both sides advanced their arguments fully in support

of their respective contentions. On behalf of the petitioner

reliance was placed on a catena of decisions of the Apex

Court and other Courts in the top hierarchy. They include

decision of the Apex Court in:

— SCOOTERS INDIA LTD. VS. M. MOHAMMAD

YAQUB AND ANOTHER (2001-1-SCC-61) wherein

it held that "Hence, where the absentee workman

was required to join duty by a specified date but

when attempted to join duty was prevented from

doing so, held, the said standing order could not be

used to effect automatic termination of services".

— M. ANANTHAN VS. PRESIDING OFFICER.

PRINCIPAL LABOUR COURT, CHENNAI AND

ANOTHER (2010-1-LLN-359) wherein Hon'ble High

Court of Madras held that "Termination is illegal

for want of enquiry if it is based on misconduct of

alleged absence—Termination is illegal if it is based

on relevant Standing Orders for non-compliance of

S.25F of Industrial Disputes Act".

— DIRECTOR, FISHERIES TERMINAL DIVISION VS.

BHIKUBHAI

MEGHAJIBHAI

CHAVDA

(2010-LLJ-3-SC) it was held that "Burden of proving

240 days' service is on claimant (workman) and

burden is discharged by workman deposing from

witness box — Burden thereafter shifts to employer—

As employer in this case failed to produce complete

records it could not sustain its stand—Further, on

facts, procedure under Section 25-G, held, not

followed".

— D.K. YADAV VS. J.M.A. INDUSTRIES LTD (1993-3-

SCC-259) wherein Supreme Court held "Constitution

of India — Art. 14—Principles of natural justice

implicit under-action/decision, even administrative

in nature, which involves civil consequences, must

be just, fair, reasonable, non-arbitrary and in

consonance with principles of natural justice—Civil

consequences—Meaning of-rules of procedure must

withstand the test of Art. 14—Administrative Law—

Natural justice-Words and phrases—"Civil

consequences. Constitution of India—Arts. 21 &

14 — Include right to means of livelihood-rules of

procedure for deprivation of the right must be just,

fair and reasonable. Administrative Law—Natural

justice—just, fair and reasonable action is an

essential inbuilt of natural justice. Administrative

Law—Natural justice—Fairness-Duty is to act

fairly, not so much to act judicially—Action should

be impartial, and should be free from even

appearance of unfairness, unreasonableness and

arbitrariness.

12. Therefore, fair play in action requires that the

procedure adopted must be just, fair and reasonable. The

manner of exercise of the power and its impact on the rights

of the person affected would be in conformity with the

principles of natural justice. Article 21 clubs life with liberty,

dignity of person with means of livelihood without which

the glorious content of dignity of person would be reduced

to animal existence. When it is interpreted that the colour

and content of procedure established by law must be in

conformity with the minimum fairness and processul justice,

it would relieve legislative callousness despising

opportunity of processual potency and versatile quality,

equalitarian in its soul and allergic to discriminatory dictates.

Equality is the antithesis of arbitrariness. It is, thereby,

conclusively held by this court that the principles of natural

justice are part of Article 14 and the procedure prescribed

by law must be just, fair and reasonable. 13. ......All matters

relating to employment include the right to continue till the

employee reaches superannuation or until his service is

duly terminated in accordance with just, fair and reasonable

procedure prescribed under the provisions of the

Constitution and the rules made under proviso to Article

309 of the Constitution or the statutory provisions or the

rules, regulations or instructions having statutory flavor.

They must be conformable to the rights guaranteed in Parts

III and IV of the Constitution. Article 21 guarantees right to

life which includes right to livelihood, the deprivation

thereof must be in accordance with just and fair procedure

prescribed by law conformable to Articles 14 and 21 so as

to be just, fair and reasonable and not fanciful, oppressive

or at vagary. The principles of natural justice are in integral

part of the guarantee of equality assured by the Article 14.

Any law made or action taken by an employer must be fair,

just and reasonable. The power to terminate the service of

an employee/workman in accordance with just, fair and

reasonable procedure is an essential inbuilt of natural

justice. Article 14 strikes at arbitrary action. It is not the

form of the action but the substance of the order that is to

be looked into. It is open to the Court to lift the veil and

gauge the effect of the impugned action to find whether it

is the foundation to impose punishment or is only a motive.

Fair play is to secure justice, procedural as well as

substantive. The substance of the order is the soul and the

effect thereof is the end result".

— TAMIL

NADU

STATE

TRANSPORT

CORPORATION, VILLUPURAM VS. JOINT

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COMMISSIONER OF LABOUR (CONCILIATION),

CHENNAI AND ANOTHER (2011-1-LLJ-646)

wherein Hon'ble High Court of Madras held "Further

dismissal of workman for unauthorized absence,

held, too harsh—Without approval, workman

deemed to be in service-Direction to reinstate him

with 50% back wages, issued".

— MANAGEMENT, STATE EXPRESS TRANSPORT

CORPORATION, CHENNAI VS. PRESIDING

OFFICER, 1ST ADDITIONAL LABOUR COURT,

CHENNAI AND ANOTHER (2011-11-LLJ-878)

wherein Hon'ble High Court of Madras held "No

enquiry conducted, nor evidence of circumstances

leading to dismissal led before Labour court-

Dismissal rightly held attracted Section 25-F, and

order for reinstatement with back wages of

workman, upheld as legal and valid."

11. Notable arguments advanced on behalf of the

petitioner include, inter-alia that petitioner availed leave

during March 1993 reporting the fact to the Management

but he was denied employment in April 1993 when he

reported for joining duty, that non-regularization of the

petitioner as per Central Administrative Tribunal order dated

01.09.1997 is illegal, that there was no charge memo issued

or enquiry held violating principles of natural justice before

termination, that Management with malafide intention to

deprive the benefits and status of permanent worker treated

him as casual worker which is unfair labour practice, that

he has worked for more than 240 days every year and in

1992-1993 he was employed for 252 days including

Sundays and three National Holidays, that no contra

evidence was adduced by the Management, that he cannot

be terminated without due course of laws since the

establishment comes under Chapter-5(B) of the ID Act,

that no notice or notice pay or compensation has been

paid to him, that the termination is contrary to Section-25F

and illegal under Section-25(F)(7) of the ID Act and he is to

be deemed to be continued in service without any

interruption.

12. Conspicuous arguments on behalf of the

Respondent include, inter-alia that he discontinued

permanently on his own from April 1993, that in a span of

15 years, he worked for 8 years only with three intermittent

long abstinence. No evidence adduced for his absence nor

he applied for any leave or was granted. He did not report

for duty in April 1993 and therefore no question of denial

of employment arises. Central Adminstrative Tribunal

award is not applicable to him since he is absent from April

1993. He abstained on his own and was getting more income

from his on parallel business. There was no reason to single

out him from conferment of temporary status, if he was on

the rolls at the relevant time, in the conciliation proceedings

he clang for temporary status alone resulting in the failure

of the conciliation, though Management was considering

his re-engagement as casual labour. He was engaged only

as a seasonal worker, that he was not interested in the

heavy field work, the wages then being low, that now after

seeing temporary status labourers with better wage and

conditions he has been out to try to grab those benefits,

discernibly from the fact that the ID was raised only in

2001, Seven years after he left the job, that in 1993 he worked

only for 202 days adding 52/Sundays and 3 National

Holidays to 150 days worked, that he has not proved for

having worked more than 240 days in March 1993 and that

there was no need to terminate the petitioner by the

Institute.

13. The question for consideration under reference

is whether the termination from service of the petitioner

w.e.f. March 1993 is legal and justified. According to

petitioner he was not allowed to join duty when he reported

after his absence for a short period in 1993 April. But

according to the Respondent petitioner did not report for

duty in April 1993. He was discontinuing of his own. It is

not disputed that the petitioner has been irregular in his

attendance as elaborately mentioned in the Counter

Statement. Except the oral evidence from either side there

is no material to substantiate the rival contentions. In other

words there is only oath against oath. In a decision (2010-

1LLJ-352) cited above it has been held that once the

petitioner deposes in the box supporting his case of having

worked for 240 days he stands primarily to have established

his case and it is upon the other side to rebut the evidence

by cogent evidence since thereafter the burden of proof

shifts on the Respondent. The Respondent has not

succeeded in rebutting the case of the petitioner by

concrete evidence. Though some records have been

produced they do not constitute the complete record to

exhaustively rule out the case of the petitioner. Arguments

without sound edifice in an again without pleadings cannot

have any leg to stand in the eye of law. It is evident and

admitted that the petitioner has been unauthorizedly

absenting from work during longer spells of period

extending to months and years and that he was being

allowed to rejoin aftet those bulk durations of absence.

Though the case of the petitioner is that he has had applied

for leave and before which he has passed intimation to the

Management, but which is denied by the latter the same

does not stand substantiated. The fact that petitioner was

sick and that he had his father and mother lost in a span of

20 days is a matter put forward by him to justify his absence

in the latest occasion but the same also has not been

substantiated. Whether or not this is a case of retrenchment

for non-compliance of Section-25F of the ID Act and other

provisions or is a mere case of petitioner not reporting for

duty of his own is the crucial factor for clinching the issue.

As already mentioned supra when that fact having been

deposed to by the petitioner but not being disproved by

the Respondent, this question has to be answered in favour

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of the petitioner. It is not disputed that petitioner has not

worked for good number of years under the Management.

There have been long spells of periods during which he

stood outside the work after all of which except the last

one as is the case of the petitioner the Management has

reinstated him into service and allowed to continue as

minimum wage casual labour. The said conduct appears to

be a conduct of the petitioner approved by the Management

from time to time twice. Now at the third occasion, the

petitioner after having absented for reasons, apparently

genuine, reported for duty he has not been permitted to

join duty by denial of employment, as he pleads. Evidently

no enquiry has been held after issuance of a memo of show

cause or any charge sheet. Habitual absenteeism is also a

misconduct for which an enquiry is contemplated in

accordance with the rule of Bipartite Settlements. Whether

it is by way of termination in the sense of retrenchment or

by way of petitoner's absence of his own, not permitted to

be set right with his re-entry into service, there is cessation

of employment for which unless preceded by notice or

notice pay in lieu of compensation and retrenchment

compensation the action is rendered void. There is no

compliance of all or any of the said requirements in the

present case. Therefore, the termination of the petitioner is

bad in law.

14. It has been made clear that the Management has

no need to terminate the petitioner or to single out him

from conferring temporary status discriminating him from

his other counterpart employees who are already conferred

with temporary status, but which was denied to the

petitioner for the reason that he was not on the rolls on the

crucial date viz. 01.09.1993 and for the other reason that he

did not satisfy the condition of having to put in 240 days

within one year immediately preceding 01.09.1993, as against

the case of the petitioner that he has completed the said

period taking into account the number of days actually

worked when added to that the Sundays and the three

National Holidays. This fact attempted to be controverted

by the Management showing that even under that pattern

of computation he has had worked only for 202 days, cannot

be sustained for the reason that the whole of the record so

as to exhaustively arrive at such conclusion has not been

produced and hence rebutted by the Management.

15. Another case of the Management is that the

petitioner is too weak to work in the fields and that he has

been doing parallel business during his short or long spells

of periods of unauthorized absence and he was actually

not in need of the present job and further that his aim is to

grab the benefits of temporary status workers when he

came to know that they have started receiving better

conditions of wages and benefits once they were conferred

with temporary status.

16. At this stage we are not concerned with the

question of conferment of temporary status to the petitioner

since we have to confine ourselves to the reference alone.

From the stand of the Management if seems that they are

against conferment of temporary status to the petitioner

due to reasons that petitioner does not satisfy the

conditions prescribed in the circular for conferment of the

same for which a cut-off date is fixed and the scheme is

envisaged to be implemented as a one-time measure. When

in the conciliation stage the petitioner is shown to have

been clinging for temporary status and for that reason the

conciliation was failing ending in a failure report though

the Management was prepared to re-engage him as minimum

wage casual labour, he was reluctant to accept it, then it is

pertinent to ask why the magnanimity shown by the

Management to re-engage him as minimum wage casual

labour could not be extended to him at this stage of this ID

duly referred to this Tribunal by the Ministry of Labour

and Employment? In fairness at this stage even that would

well be granted to the petitioner because the duty of the

employer is to act fairly and not so much to act judicially. It

is not disputed that petitioner worked under the

Management for quite long years though with intermittent

break or absenteeism. Every such break happened to be

ratified by the Management virtually approving his conduct

by re-engaging him time and again. That he is not physically

well to work in the field does not stand substantiated. It

remains a mere ipse-dixit. It appears that the Management

is not far out to see that he is prevented from re-engagement

at any cost. They expressed their magnanimity during the

conciliation stage to take him back in the status of minimum

wage casual labour. They were expressing their inability

just to confer him with temporary status because as they

know they cannot do so legally in consonance with the

DoPT directions conveyed under the circular. At this stage

it is again relevant to ask, if petitioner were re-engaged

during the relevant time would not he have been on the

rolls as on 01.09.1993 for being with eligibility for conferment

of temporary status? On an appreciation of the entire facts,

materials and circumstances what appears is that there need

not be a formidable objection for the Management to re-

engage him and confer him with temporary status because

under the scheme evolved the noble object and intendment

of the Management was to confer temporary status to all

the workmen with no exception. Petitioner had been

recruited under due process of law. He had also been called

for interview for the post of Group 'D', which was declined.

That does not mean that he is to be denied temporary

status if he falls under the eligibility criteria fixed in the

scheme circulated by the DoPT. Here again it is worthy to

remember that the Management has the duty to act fairly

and not so much to judicially in the matter of conferment

with temporary status to the petitioner. It is to be noted

that the two condition stipulated are not to be the essence

of the true purport and scope of the scheme to confer

temporary status having regard to the fact that the

petitioner has had rendered long years of service, though

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[PART II—SEC. 3(ii)]

with intermittent spells of duration of habitual absenteeism,

but later condoned by the Management. True, that aspect

of the matter comes into the picture after once the petitioner

has been re-engaged in the status in which he was while he

left the job or was terminated/retrenched. Again, the same

is beyond the scope of the reference.

17. However, from my above discussion it is to be

held that the petitioner has to be reinstated into service.

Thereafter the question as to conferment of temporary

status may be decided by the Management in a fair manner

so as to meet the ends of justice actuated by the concept

of justice, equity and good conscience on par with his

counterpart workmen already conferred with the said status.

18. In the result it is ordered that the petitioner be

reinstated into service forthwith with continuity of service

and all attendant benefits but without back wages.

19. The reference is answered accordingly.

(directed to the P.A., transcribed and typed by him,

corrected and pronounced by me in the open court on this

day the 12th January, 2012)

A.N. JANARDANAN, Presiding Officer,

Witnesses Examined:

For the 1st Party/Petitioner

: WW1, Sri A. Mohanraj

For the 2nd Party/Respondent : MW1, Sri S. Rajamohan

: MW2, Sri N. Vijayan Nair

Documents Marked:

On the Petitioner's side

Ex. No.

Date

Description

Ex. W1

04.02.1982

Call letter from Distt.

Employment Exchange No. Ex2/

U/S3/82

Ex. W2

May, 1983

Copy of the Memorandum

regarding sponsorship from

Employment Exchange

Ex. W3

Wage for the month of February

and March 1993

Ex. W4

Copy of Employee's Provident

Fund Contribution for the years

1992-1993, 1993-1994 and 1994-

1995

Ex. W5

25.08.1993

Circular from ICAR to all

Directors/Joint Directors of

Research Institutes/Centres

regarding

computing

National

Holidays

and

Sundays for computing 240

days in a year while

considering the eligibility of

Casual Labourers for grant of

Temporary Status

Ex. W6

01.08.1997

Copy

the

Central

Administrative

Tribunal

Judgement in OA Nos. 823 of

1994 and 1410 of 1994

Ex. W7

20.03.1997

Copy of the Institute office

Order No. 5-18/92-Estt.

conferring/granting Temporary

Status with effect from

01.09.1993 subject to terms and

conditions

Ex. W8

22.12.2000

Representation

the

petitioner to the Institute to

provide job against Central

Administrative Tribunal order

Ex. W9

17/22.02.2001

Copy of the reply note of the

Institute No. 5-7/2000-Estt. on

the representation of the

petitioner

Ex. W10

28.02.2001

Copy of the representation of

the petitioner to the Institute

to provide employment

Ex. W11

04.05.09.2003

Copy of the letter from senior

Administrative Officer of the

Institute to the under Secretary

(C.S.) regarding re-engagement

of the petitioner

Ex. W12

17.08.2007

Copy of the Failure of

Conciliation Report

Ex. W13

05.11.2007

Copy of the notice to the parties

to appear before CGIT-cum-

Labour Court, Chennai on

22.11.2007

Ex. W14

31.03.2004

Copy of the letter from Senior/

Administrative Officer to the

Assistant Commissioner of

Labour (Central) regarding

reinstatement of the petitioner

On the Management's side

Ex. No.

Date

Description

Ex. M1

23.11.1994

Copy of ICAR Circular grant of

Temporary Status to Labourers

Ex. M2

10.09.1993

Copy of DoPT memorandum

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guidelines for grant of

Temporary Status

Ex. M3

14.10.1994

Copy of Central Administrative

Tribunal order in OA No. 823

of 1994

Ex. M4

16.05.1978

copy of Muster Roll with

acquittance proof of date of

joining

Ex. M5

Copy of Muster Roll and

14 days of work during Jan,

February 1984

Ex. M6

10.04.1990

Copy of Muster Roll-Proof for

rejoining for the third time

Ex. M7

March 1993

Copy of last wage slip

Presiding Officer

ubZ fnYyh] fnukad 6 Qjojh] 2012

dkñ vkñ 871.—vkS|ksfxd fookn avf/kfu;e] 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUæh; ljdkj fn eSustj ¼ihñ

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[Qkñla[;k ,yñ&42011@32@2000 vkbZñvkjñ¼Mhñ;wñ½]

jes'k ¯lg] MsLd vf/kdkjh

New Delhi the 6th Febraury,

S.O. 871.—In pursuance of Section 17 of the

Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. CGIT-

2/71 of 2000) of the Central Government Industrial Tribunal

cum Labour Court No. 2, Mumbai as shown in the Annexure,

in the Industrial dispute between the employers in relation

to The General Manager (P&A) Richardson & Cruddas

(1972) Ltd. Mulund West Mumbai and their workman, which

was received by the Central Government on 06.02.2012.

[F. No. L-42011/32/2000-IR(DU)]

RAMESH SINGH, DESK OFFICER

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL NO. 2, MUMBAI

PRESENT

K.B. KATAKE

Presiding Officer

REFERENCE NO. CGIT-2/71 OF 2000

EMPLOYERS IN RELATION TO THE MANAGEMENT

OF RICHARDSON & CRUDDAS LTD.

The General Manager (P&A)

Richardson & Cruddas (1972) Ltd.

Mulund Works

L.B.S. Marg

Mulund (W)

Mumbai 400 080.

AND

THEIR WORKMEN

The President

Association of Engineering Workers

252, Janta Colony

Ramanarayan Narkar Marg

Ghatkopar (E)

Mumbai 400 077.

APPEARANCE:

FOR THE EMPLOYER

Mr. S.Z. Choudhary

Advocate.

FOR THE WORKMEN

Mr. Abhay Kulkarni,

Advocate.

Mumbai, dated the 23rd December, 2011

AWARD

The Government of India, Ministry of Labour &

Employment by its Order No. L-42011/32/2000-IR(DU) dated

31.07.2000 in exercise of the powers conferred by clause

(d) of sub-section (1) and sub-section 2(A) of Section 10 of

the Industrial Disputes Act, 1947 have referred the

following industrial dispute to this Tribunal for

adjudication:

"Whether the action of the management of M/s

Richardson & Cruddas (1972) Ltd. Mulund Works

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THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

Mumbai by not allowing the workers (List enclosed)

to join their duties is justified? If not, to what relief

the workers are entittled?"

List of workmen

Sr. No.

Name

1. Chandrakant Dajiba Mohite

2. Govind Chimaji Gambhire

3. Santosh Gangaram Nalawade

4. Sambhaji Ramrao Kachole

5. Dhammanand Bhagwan Raibole

6. Tatu Janardan Deshmukh

7. Ankush Bapurao Borade

8. Uttam Malhari Waghmare

9. Raosaheb Sabale

10. Dnyaneshwar. V. Pawar

11. Sunil Baliram Raibole

12. Santosh Dattatraya Jadhav

13. Vaijanath Malhari Waghamare

14. Ravindra B. Salian

15. Navneet V. Tambe

16. Jairam Mohiete

17. Chandrakant Chimaji Manghute

18. Kamlakar Tukaram Pagare

19. Bhaguram Pandurang Salvi

20. Satendra Ramshing Sinha

21. Nagendra Raghunandan Yadav

22. Ajay Ravsahed Dhage

23. Sudhir Sakharam Parab

24. Chandu Sitaram Kairamkunda

25. Dilip Salvaram Satpute

2. After receipt of the reference from Ministry, in

response to the notices both the parties appeared through

their legal representatives. The second party union has

filed its statement of claim at Ex.-9. According to them, the

first party is a Government company. It has two units in

Maharashtra. One is at Byculla and the other at Mulund.

The Company is engaged into and continuing doing unfair

labour practices of reduction of workforce inspite of

availability of work. In order to harass the employees, they

are forcing them to accept voluntary retirement scheme,

illegal termination and such other means. Initially to make

out false case of non availiability of work and funds, the

company restorted to tactics of harassment of non-payment

of earned wages to the workmen. When workmen were

sufficiently harassed, company introduced VRS and forced

the employees to accept the same. By this way they

managed to reduce workforce to a great extent. The company

also resorted to unfair labour practice by engaging contract

labourers through bogus contractors for doing the regular

work of perennial nature. Through bogus contractors the

company has engaged helpers, welders, plumbers, fitters,

fabricators, masons, grinders etc. These works are of

perennial nature. The company is recruitment such workers

through bogus contractors in order to deny its workmen

their legitimate rights and dues. P.Vishal and Co. is one of

such bogus contractor engaged by the company to supply

labourers. The said company allegedly supplied all the

workmen concerned in the reference. They are in the

employment of the company since the date shown in the

annexure. The workmen have put in continuous service of

240 days as required under the provisions of Industrial

Disputes Act. These workers have joined the Association

of Engineering Workers to claim their legitimate dues and

rights including that of permanency. These workmen were

not allowed weekly off. They were also forced to work on

national holidays. These workmen were never given any

letter of appointment or period of appointment. They are

not paid overtime wages. Management threatened them

when they attempted to address their legitimate grievances.

3. The management did not like the unity of the

workmen. Therefore retailiation of the efforts of the

concerned workment to organize themselves, the

management terminated the services of the said workmen

without any cause or reason and without following due

process of law and in utter violation of Section 25 F of the

Act. Feeling aggrieved, the said workmen through union

approached the office of RLC (C) and raised industrial

dispute. However conciliation failed as management did

not appear and co-operate. Therefore RLC (C) sent the

report to Government. The company has illegally terminated

the services of workmen under reference and as such they

all are entitled to reinstatement with full back-wages,

continuity of service and other consequential benefits. The

union therefore prays that the termination of services of

workmen under reference be declared illegal. The union

also prays for direction to the company to reinstate all the

workmen with full back-wages, continuity of service and

all other consequential benefits.

4. The management resisted the statement of claim

vide its written statement at Ex-10. According to them, the

reference has not been espoused by its workmen. Thus it

is not tenable. According to them, there is no relationship

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2131

of employee-employer between the workmen under

reference and the company. The persons concerned were

intermittently engaged by an independent contractor as

per the exigencies of work. On this ground, reference

deserves to be dismissed. Third preliminary objection raised

by the company is the contractors are not made party to

the reference. Thus it deserves to be dismissed for non-

joinder of necessary parties. They further contended that

before initiation of present dispute, the contractor had

withdrawn these persons and they were engaged by the

contractors in other establishments. The union is trying to

abolish the contract labour which is not within the

jurisdiction of this Tribunal. Thus deserves to be dismissed.

According to them, none of these persons under reference

has continously or otherwise worked for 240 days. Hence

they have no right to claim any favour. They further

contended that the persons under reference are not working

on the premises of the undertaking from various dates since

the contractor was not able to get work from the company.

5. They denied that union is registered and the

workmen under reference are its members. They denied

that services of any person concerned in the dispute have

been illegally of otherwise terminated by them. The persons

concerned were intermittently employed by the contractor

and after completion of the contract work, they have been

withdrawn by the contractor on various dates. There is no

employee-employer relationship between them. They

denied that they are engaged in unfair labour practice as

has been alleged. The company has become a sick unit for

want of work. Hence as per the directions of Central

Government, VRS scheme was introduced. They have

denied that it was introduced to harass or force any

workman to accept VRS scheme. The wages could not be

paid in time for want of funds and not with a view to harass

anybody. They denied that they have engaged contract

labourer for regular work. They denied that M/s. P. Vishal

is a bogus contractor. According to them, he is a genuine

and bonafide contractor engaged by the company. The

persons concerned are the employees of P. Vishal and

Company. None of them have worked 240 days

continuously with the first party. The persons concerned

cannot have any claim of dues or permanency or dues

against the company. Company has never appointed these

persons. It remains closed on weekly off and on the days

of national holidays. Thus contention to that effect are

false. According to them none of these workers have done

any overtime work. The union is making unjust,

unreasonable and illegal demands. Management has not

terminated services of these persons without following

due process of law as has been alleged as they are

employees of contractor who has withdrawn them. The

union is always adamant, non-co-operative. Therefore there

was no possibility of settlement before RLC (C). The first

party is a sick unit. Therefore reduction of workforce had

become necessary. After carefully considering the situation,

the Govt. of India had sanctioned VRS Scheme to reduce

the workforce. The company therefore prays that the

reference deserves to be dismissed. The second pary vide

their rejoinder Ex-11 denied all the contents in the written

statement and made the submissions in respect of the

workmen under reference.

6. Following are issues at Ex-12 framed by my Ld

Predecessor for my consideration. I record my findings

thereon for the reasons to follow:

Sr. no.

Issues

Findings

Whether reference is maintainable

as recited in WS Para 1 (a)

No.

Do workers mentioned in enclosed

list prove that they are eployees

of management?

No.

Whether the action of the

management of Richardson &

Cruddas (1972) Ltd. Mulund

Works, Mumbai by not allowing the

workers to join their duties is

justified?

Yes

What relief the workers are

No relief.

entitled?

4a. Which is the appropriate Govt.?

Central

Government

REASONS

Issues Nos. 1 & 2:—

7. Both these issues are in respect of the relationship

of employee-employer between second party with the first

party. Therefore both these issues are discussed and

decided simultaneouly. In this respect, I would like to point

out that the fact is not disputed that the workers under

reference were working on the premises of the first party.

According to them, the first party has engaged them and

the contract agreement was sham and bogus between the

company and the contractor concerned. As against this,

according to the first party the workmen under reference

were never their employees. They were employees of P.

Vishal and Company who was a labour contractor. In this

respect the Id Adv. for the first party referred the cross

examination of WW-1 at Ex-13. This witness Mr.

S-3\E\4735RR\4735RR6

2132

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

Chandrakant Mohite stated in his cross examination that

no appointment letter was issued by the first party. He

further says in this cross that attendance card was issued

by P. Vishal & Co. He further says that contract workers

were called at the gate and then they were permitted into

the factory premises. He further says in his cross that no

identity card was issued. He further says in his cross that

workers were removed in batches. He further says that no

case was filed by union for abolition of contract labour on

the premises of first party. He further says that no

terminating letter was issue by the first party while

terminating his services. He has not filed any recovery

application. He also admitted that they have not filed case

to treat them as employee of first party and for the benefit

of permanent employees. The Id Adv. also pointed out the

reply of WW-2 given in his cross at Ex-32. He says in the

very first sentence that he cannot state whether the workers

involved in the reference are contract workers or not.

8. On the point Id Adv. for the second party submitted

that in some other references this Tribunal has regularized

the workers under the respective references and passed

the respective awards against the first party. The Id Adv.

has produced copy of award in Ref. C.GIT- 2/93 of 1998

wherein action of management not regularizing the workmen

under reference was helf illegal and not justified and they

are declared deemed to be regularized in the service from

the date of their juniors were regularised. However in that

matter the workmen therein were casual workers of the first

party. The casual or temporary workers have a driect

relationship of employee with the first party. However in

the case at hand, the workers under reference are not casual

or temporary workers. On the other hand they are engaged

by contractor. In this respect, law is well settled by the

Apex Court in Secretary, State of Karnataka & Ors. V/s.

Umadevi 8 ors 2006 II CLR 261 wherein the Hon'ble Court

held that:

"Unless the appointment was in terms of relevant

rules, no rights are conferred on the appointee."

In the same judgement, Hon'ble Court also observed

that:

"Merely because he is continued beyond his term of

appointment does not entitle him to be absorbed in

regular service or made permanent."

9. In respect of contract labourer the Hon'ble Apex

Court in The workmen of Food Corporation of India V/s.

M/s. Food Corporation of India (1985) II LLJ4 observed

that:

"Workman employed by contractor cannot be the

workman of a third party who engages a contractor."

The Principle laid down in the case of Uma Devi is

reiterated by Hon'ble Apex Court in Laxmi Ratan Cotton

Mills Vs State of U.P. & ors 2009 I LLJ 527. In the case at

hand the workers under reference were not recruited by

the first party by following the recruitment rules.

On the other hand, they were engaged for work

through contractor. There is no evidence that the contracts

were sham and bogus. Therefore, I come to the conclusion

that they are not employees of the first party and are not

competent to raise the industrial dispute. Accordingly I

decide these issues Nos. 1 and 2 in the negative.

Issue No. 4 (a):—

10. According to the management, State Govt. is the

proper Govt. Thus this Tribunal has no jurisdiction to

entertain this reference. Thus they pray that, the reference

deserves to be rejected. In this respect the Id. Adv. for the

second party union argued that the first party is a Central

Government undertaking. He further submitted that in the

complaint no. 511/1995 filed by the union, the matter was

taken to Hon'ble High Court in write petition no. 6458/1995

wherein the Hon'ble High Court held that appropriate Govt.

in respect of first party is Central Government. Ld. Adv.

further submitted that in another Reference No. CGIT-2/93

of 1998, this Tribunal also gave the same finding in

respectof the first party company. The said judgement has

reached to its finality as no appeal was preferred there-

against. In this judgement. My ld. Predecessor has referred

to the finding of Honble High Court recorded in Write

Petition No. 6458/1995. These judgements and findings

therein wire not further challenged by the first party, wherein

it is held that, appropriate Govt. In respect of the first pary,

is the Central Govt. In the circumstances, averment on

behalf of the first party, that appropriate Govt. is the State

Govt. is found to be devoid of merit. In the light of the

above judgements and findings therein, it needs no more

discussion to arrive me at the conclusion that Central Govt.

is the appropriate Govt. and it is empowered to make the

reference to this Tribunal. Therefore I further hold that this

Central Govt. Industrial Tribunal has jurisdiction to entertain

this reference. Consequently, I hold that the reference is

maintainable. Accordingly I decide this issue no. 4 (a)

Issue Nos. 3 & 4:—

11. In the light of discussion and findings on the issues

Nos. 1 & 2 above, it is clear that the workers under reference

are not the employees of the first party. On the other hand

they are contract labourers. Therefore, they cannot raise

industrial dispute. In the circumstances, action of

management cannot be called unjustified or illegal in not

allowing these workers to join their duties. In this backdrop

it needs no more discussion to decide this issue no. 3 in the

affirmative. As a result I hold that the workers under reference

are not entittled to any relief. Accordingly, I decide this

issue no. 4 and proceed to pass the following order.

ORDER

S-3\E\4734RR\4734RR6

¹Hkkx II—[k.M 3(ii)º

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2133

The reference stands rejected with no order as to

cost.

Dated: 23.12.2011

K.B. KATAKE, Presiding Officer

ubZ fnYyh] 6 Qjojh] 2012

dkñ vkñ 872.—vkS|ksfxd fookn vfèfu;e 1947] ¼1947 dk

14½ dh èkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj dksydkrk iksVZ VªLV

ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaè

esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèdj.k@Je

U;k;ky; dksydkrk ds iapkV ¼lanHkZ la[;k 25@2005½ dks izdkf'kr

djrh gS] tks dsUnzh; ljdkj dks 18-01-2012 dks izkIr gqvk FkkA

[lañ ,y&32011@8@2003&vkbZ vkj ¼ch&II]

'kh'k jke] vuqHkkx vfèdkjh

New Delhi, the 6th February, 2012

S.O. 872.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947, (4 of 1947) the Central

Government hereby publishes the award (Ref. No. 25/2005)

of the Central Government IndustrialTribunal /Labour

Court, KOLKATA now as shown in the Annexure in the

Industrial Dispute between the employers in relation to the

management KOLKATA PORT TRUST and their workmen,

which was received by the Central Government on

18.01.2012.

[No. L-32011/18/2003-IR(B-II)]

SHEESH RAM, Section Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL

AT KOLKATA

Reference No. 25 of 2005

Parties: Employers in relation to the management of

Kolkata Port Trust

A N D

Their workmen

Present: Mr. Justice Manik Mohan Sarkar

....Presiding Officer

Appearance:

On behalf of the

Mr. G. Mukhopadhyay,

Management

Industrial Relations

Officer.

On behalf of the

Mr. S. Majumder, Vice-

Workmen

President

the

workmen union.

State: West Bengal.

Industry: Port & Dock.

Dated 22nd December, 2011.

A W A R D

By Order No. L-32011/18/2003-IR(B-II), dated

19.07.2004 the Government of India, Ministry of Labour in

exercise of its power under Section 10(1)(d) and (2A) of the

Industrial Disputes Act, 1947 referred the following dispute

to this Tribunal for adjudication:

"Whether the action of the management of Kolkata

Port Trust in terminating the service of Shri Partha

Sarathi Gain w.e.f. 3.9.2003 is just and legal? If not,

what relief the concerned workman is entitled?"

2. When the case is called out today, Mr. G.

Mukhopadhyay, the authorized representative of the

mangement is present but none is found to be present on

behalf of the workmen union.

3. Mr. Mukhopadhyay, authorized representative of

the management has submitted that though the matter is

fixed for cross-examination of WW-01, Shri Partha Sarathi

Gain, neither the authorized representative of the workmen

union nor the witness named above is appearing on any

date even after service of notice upon the workmen union.

4. On scrutiny of the order sheet it is found that first

notice was issued to both the parties on my assumption of

office here and A.D. Card specifically from the workmen

union has been received back after service and in response

thereto the workman side never appeared and thereafter a

fresh notice was directed to be issued again on 07.06.2011

and accordingly, fresh notice was issued on 13.06.2011

and in that case also it is found that the A.D. Card of the

said notice to the workmen union has been received back

with the endorsement of receipt on 24.06.2011 but even

then more is appearing on behalf of the workmen union.

5. Such conduct from the side of the workmen union

shows that the workmen union is no more interested to

proceed with this reference and naturally it is presumed

that the industrial dispute raised earlier perhaps is not

subsisting now and for that reasons the workmen union is

not interested to proceed with this reference.

6. In that case, let the present reference be disposed

S-3\E\4735RR\4735RR6

2134

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

of with a "No Dispute. Award".

An Award is passed accordingly.

Dated: 22nd December, 2011

Justice

MANIK MOHAN SARKAR,

Presiding Officer

ubZ fnYyh] 6 Qjojh] 2012

dkñ vkñ 873.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj c®d vkWQ

bafM;kµµµµµµµµµµµµµµµµµµds izca/kra= ds lac) fu;kstdksa

vkSj muds deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa

dsUnzh; ljdkj vkS|ksfxd vf/kdj.k@Je U;k;ky;] tcyiqj ds iapkV

¼lanHkZ la[;k lhthvkbZVh@,ylh@vkj@128@02½ dks izdkf'kr djrh

gS tks dsUnzh; ljdkj dks 17-01-2012 dks izkIr gqvk FkkA

[lañ ,y&12012@96@2002&vkbZ vkj ¼ch&II]

'kh'k jke] vuqHkkx vf/kdkjh

New Delhi, the 6th February, 2012

S.O..873.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947, the Central Government

hereby publishes the Award (Ref. No. CGII/LC/R/128/

02) of the Central Government Industrial Tribunal/Labour

Court, Jabalpur now as shown in the Annexure in the

Industrial Dispute between the employers in relation to the

management of BANK OF INDIA and their workman, which

was received by the Central Govenment on 17.01.2012.

[No. L-12012/96/2002-IR(B-II)]

SHESH RAM, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

JABALPUR

NO. CGIT/LC/R/128/02

Presiding Officer: Shri Mohd. Shakir Hasan

Shri Rameshwar Sahu,

S/o Rajjulal Sahu,

H.No. 2, Ahir Mohalla,

Mangawara, Bhopal (MP)

Workman

Versus

The Zonal Manager,

Bank of India,

Zonal Office, Jail Road,

Arear Hills, Bhopal (MP)

Management

A W A R D

Passed on this 6th day of January, 2012

1. The Government of India, Ministry of Labour vide

its Notification No. L-12012/96/2002-IR(B-II), dated 5-9-2002

has referred the following dispute for adjudication by this

tribunal—

"Whether it is a fact that Shri Rameshwar Sahu was

engaged to drive the vehicle owned by the

management of Bank of India during the period from

1-11-90 to 1-10-2001? If so, whether the management's

action to terminate him from service w.e.f. 1-10-2001

is legal and justified? If not justified, what relief is

the disputant concerned entitled to?"

2. The case of the workman in short is that he was

engaged by the management as Driver on 1-11-1990 against

the vacant post. He was paid pay and provided dress by

the management. It is stated that he was stopped from

work from 1-10-2001 in violation of the provision of

Industrial Disputee Act, 1947 (in short the Act, 1947). He

had been terminated without any notice nor any

compensation was paid as provided under Section 25-F of

the Act, 1947. It is stated that the junior to him are still

continuing in service against the priciple of "first come last

go". The workman is still unemployed. On these grounds,

it is submitted that the workman be reinstated with back

wages with costs.

3. The management appeared and filed Written

Statement to contest the reference. The case of the

management, inter alia, is that Shri Rameshwar Sahu is not

a workman in terms of Section 2(s) of the Act, 1947. He was

never employed by the management and there is no

relationship of employer and employee. As such there is

no question of termination of service of the so called

workman. He was engaged as a Personal servant by the

Officers in Scale-V. No slary or allowances were paid by

the management Bank to the applicant. The Bank provides

vehicle to certain class of offices who are entitled to use

the same for their personal purposes but those officers are

not provided any Driver. They are entitled to get allowances

from time to time for the purpose of petrol and maintenance

of the car so also certain allowances for employing personal

Driver. The driver so engaged by the officer is not the

employee of the bank. The applicant was employed as

Driver by the then Jt. Zonal Managers namely Shri M.S.

Rawat and Shri S.K. Bandopadhyay in their personal

capacity. It is stated that the claim of Shri Rameshwar Sahu

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¹Hkkx II—[k.M 3(ii)º

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2135

is misleading. It is submitted that the applicant/workman is

not entitled to any relief.

4. On the basis of the pleadings of the parties, the

following issues are for adjudication—

I. Whether Shri Rameshwar Sahu was engaged to drive

vehicle owned by the management Bank during the

peirod from 1-11-90 to 1-10-2001?

II. If so, whether the action of the management in

terminating him from service w.e.f. 1-10-2001 is legal

and justified?

III. To what relief the workman is entitled?

5. After filing the statement of claim, the workman

became absent. The workman failed to file his evidence.

Lastly the reference proceeded ex-parte against the workman

on 31-1-2011.

6. Issue Nos. I & II

According to the management, Shri Rameshwar Sahu

was not employee of the bank rather he was personal Driver

of the officers of the Bank who was entitled to engage his

Personal Driver of the car given to the officers by the Bank.

In support of the case, the management has examined one

witmess. The management's witness Shri Jay Parkash Bansal

if presently working as Senior Manager at Zonal Office,

Bhopal. He was supported the case of the management. He

has stated that the applicant was never employed by the

management of the Bank. He was employed by the then Jt.

Zonal Manager namely Shri M.S. Rawat and Shri S.K.

Bandopadyaya in their personal capacity to drive their car.

This clearly shows that he was not employee of the Bank

and therefore the question of termination by the Bank does

not arise. There is no other evidence to impeach the credit

of this witness. There is no reason to disbelieve his

evidence. Both the issues are decided against the workman

and in favour of the management.

7. Issue No. III—

On the basis of the discussion made above, it is

clear that the applicant is not entitled to any relief.

Accordingly the reference is answered.

8. In the result, the award is passed without any

order to costs.

9. Let the copies of the award be sent to the

Government of India, Ministry of Labour & Employment

as per rules.

MOHD. SHAKIR HASAN, Presiding Officer

ubZ fnYyh] 6 Qjojh] 2012

dkñ vkñ 874.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj c®d vkWQ bafM;kµds

izca/kra= ds lac) fu;kstdkas vkSj muds deZdkjksa ds chp] vuqca/k

esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k@Je

U;k;ky;] dkuiqj ds iapkV ¼lanHkZ la[;k 21@2009½ dks izdkf'kr

djrh gS tks dsUnzh; ljdkj dks 19-12-2012 dks izkIr gqvk FkkA

[lañ ,y&12011@132@2008&vkbZ vkj ¼ch&II)]

'kh'k jke] vuqHkkx vf/kdkjh

New Delhi, the 6th February, 2012

S.O. 874.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947, the Central Government

hereby publishes the Award (Ref. No. 21/2009) of the

Central Government Industrial Tribunal/Labour Court,

KANPUR now as shown in the Annexure in the Industrial

Dispute between the employers in relation to the

management of CENTRAL BANK OF INDIA and their

workman, which was received by the Central Govenment

on 19.12.2011.

[No. L-12011/132/2008-IR(B-II)]

SHEESH RAM, Section Officer

ANNEXURE

BEFORE SRI RAM PRAKASH, HJS, PRESIDING

OFFICER,

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-

CUM -LABOUR COURT, KANPUR

INDUSTRIAL DISPUTE NO. 21 OF 2009

State President ,

Central Bank Employees Association,

U.P. 958 Kalyani Devi,

Allahabad.

AND

Regional Manager,

Central Bank of India,

Regional Office,

Lanka,

Varanasi.

A W A R D

Central Government, MoI, New Delhi vide notification

L-12011/132/2008/IR(B-II), dated 24.02.09 has

reference the following dispute for adjudication to

this tribunal.

Whether the action of the management Central Bank

Employees Association, Allahabad that Sri AN

S-3\E\4735RR\4735RR6

2136

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

Upadhya Ex. Employee of Central Bank of India has

not been paid interest over the Provident Fund for

the year 1995-96 and 1997 by the management of

Central Bank of India is just fair and legal? If not

what relief the workman is entitled?

In the instant case after the exchange of pleadings

between the parties several dates were granted to

the union to adduce the evidence in support of their

case. But after availing of repeated opportunity,

neither the union nor the workman ever presented

before the tribunal to prosecute their case nor

adduced any evidence. It therefore, appears that the

neither the union nor the workman is interested to

prosecute their case.

Therefore, the tribunal is constraint to believe that

the union has palpably failed to prove their case by

adducing cogent and reliable evidence in support of

their case before the Tribunal. As such in view what

has been stated hereinabove, the tribunal is bound

to answer the award against the union for want of

evidence and proof.

Reference is therefore, answered accordingly against

the union and in favour of management.

Dt. 12.10.11

RAM PRAKASH, Presiding Officer

ubZ fnYyh] 7 Qjojh] 2012

dkñ vkñ 875.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj bafM;u

c®dµµµµµµµµµµµµµµµµµµds izca/kra= ds lac) fu;kstdksa

vkSj muds deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa

dsUnzh; ljdkj vkS|ksfxd vf/kdj.k@Je U;k;ky;] psUubZ ds iapkV

¼lanHkZ la[;k 26@2010½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks

13&01&2012 dks izkIr gqvk FkkA

[lañ ,y&12012@25@2010&vkbZ vkj ¼ch&II)]

'kh'k jke] vuqHkkx vf/kdkjh

New Delhi, the 7th February, 2012

S.O. 875.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947, (14 of 1947) the Central

Government hereby publishes the Award (Ref. No. 26/2010)

of the Central Government Industrial Tribunal/Labour

Court, CHENNAI now as shown in the Annexure in the

Industrial Dispute between the employers in relation to the

management of INDIAN BANK and their workman, which

was received by the Central Govenment on 13.01.2012.

[No. L-12012/25/2010-IR(B-II)]

SHESH RAM, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT

CHENNAI

Wednesday, the 11th January, 2012

Present

A.N. JANARDANAN

Presiding Officer

INDUSTRIAL DISPUTE No. 26/2010

[In the matter of the dispute for adjudication under

clause (d) of sub-section (1) and sub-section 2(A) of Section

10 of the Industrial Disputes Act, 1947 (14 of 1947), between

the Management of Indian Bank and their workman]

BETWEEN

The General Secretary

1st Party/Petitioner Union

Indian Bank Employees Association

17, Ameerjan Street, Choolaimedu

Chennai-600094

Vs.

The General Manager (HR):

2nd Party/Respondent

Indian Bank, 66, Rajaji Salai

Chennai-600001

APPEARANCE:

For the 1st Party/

Sri G. Gopal, General

Petitioner Union

Secretary,

Authorized Representative

For the 2nd Party/

M/s T.S. Gopalan & Co.,

Management

Advocates

A W A R D

The Central Government, Ministry of Labour vide its

Order No. L-12012/25/2010-IR (B-II), dated 02.06.2010

referred the following Industrial Dispute to this Tribunal

for adjudication.

The schedule mentioned in that order is:

"Whether the action of the management of the Indian

Bank, Chennai in imposing punishment of lowering

down of three stages of increment with cumulative

effect in violation of Bipartite Settlement to Shri

S-3\E\4734RR\4734RR6

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Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

2137

P.K. Govindarajan, Agricultural Assistant, is

justified? What relief concerned workman is

entitled?"

2. After the receipt of Industrial Dispute, this Tribunal

has numbered it as ID 26/2010 and issued notices to both

sides. Petitioner through authorized Representative and

Respondent through Advocate and filed their Claim,

Counter and Rejoinder Statement as the case may be.

3. The Claim Statement contentions briefly read as

follows:

Sri P.K. Govindarajan whose punishment of reduction

of 3 increments under Clause-VI(e) of Bipartite

Settlement against the provisions is espoused by

the Union was charge sheeted on 04.05.2005 for an

alleged incident said to have taken place in Chengam

Branch on 17.07.2003 subsequent to reply to a Show

Cause Noticed dated 16.12.2003 which is not found

satisfactory. The charges are:

Charge No. 1

He and his wife Smt. Kalavani arriving at the Chengam

Branch on 17.07.2003 insisted for the home loan of

Rs. 4,00,000/- in her name to be released immediately to

which the Branch Manager Sri T.S. Raman being under the

orders of transfer to Vellore Main informed that incoming

Manager would attend.

Charge No. 2

He abused T.S. Raman using un-parliamentary words

as follows "Yowh can you give the loan or not? What do

you think of yourself in mind? What is the problem with

you when Head Office has sanctioned the loan? Since

you are not getting any bribe out of this loan, you are not

releasing the loan. Does this Bank belong to your father?

(Truly translated from Tamil) thus conducting himself in

riotous or disorderly or indecent behaviour under 5(C) of

10.04.2002 settlement.

Charge No. 3

He abused the Bank and all employees in the banking

hall using un-parliamentary words as follows "In this bank

everybody is a thief. There should be a board with a caption

"Beware of Thieves" is to be written and kept in the branch.

In this bank all the upper castes would get everything.

Lower castes persons will not get anything. What option

is left than to beat him with chappals when loan cannot be

given" (Truly translated from Tamil) thus spoiling the image

of the bank behaving in the above manner and doing act

prejudicial to the interests of the bank under 5(I)

Charge No. 4

He told his wife as follows "If you had given him the

bride by placing in a cover and given him underneath he

would have given loan. If asked directly how will be take"

(Truly translated from Tamil) thus behaving in disorderly

manner and also instigated her to offer bribe to get the loan

against 5(C) and instigated others to act prejudicially to

the interests of the bank 5(i).

Charge No. 5

His wife Smt. Kalavani absued the Branch Manager

uttering the following words "Take your bribe and give the

balance. We will see you in the village. Your wife will become

widow and your wife and children will die in an accident"

thus amounting to abetment or instigation of his wife to do

the above acts under 5(i). An enquiry was held and a report

was drawn on 15.09.2006 holding the charges proved

against evidence and outcome of innocence in the enquiry.

Punishment was imposed on 25.10.2007 by bringing down

to the lower stage in the scale of pay by one stage without

cumulative effect for a period of one year for Charge No. 2

and the same with cumulative effect each for Charge No. 3

and Charge No. 4 under Clause 6(e) and censure for Charge

No. 5. Aggregate punishment imposed is reduction of 3

stages in the scale of pay in violation of settlement which

could be under Clause 6(e) "Be brought down to lower

stage in the scale of pay upto a maximum of two stages".

ID was raised on the failure of which the reference is

occasioned. The workman P.K. Govindarajan was

Agricultural Assistant in Melarani Branch. His wife Mrs.

Kalavani, a P.G. Teacher was sanctioned a housing loan by

Indian Bank, Circle Office, Vellore to avail the same at

Chengam Branch, Branch Manager refused the loan on the

ground that back papers were not available and that he

was under orders of transfer. The workman offered to

submit the copies of the back papers which were refused.

He has in fact sanctioned other loans but was refusing

loans sanctioned by his higher authorities. The same

Branch Manager had victimized Govindarajan while in

Chengam Branch by a false complaint. They only pleaded

with him for release of loan and did not do anything wrong.

Charge Sheet was after 22 months of the alleged incident.

The Management harassed him for a period of 4 years with

a perverse intention. There was no customer or any other

witness examined who did not say any incident as alleged

to have taken place. Only staff who toed the line of the

Branch Manager were produced as witnesses. Enquiry was

not free and fair. Findings are biased. The manner in which

the alleged incident was presented in the Charge Sheet

makes it clear that the incident was projected as different

incidents to give maximum punishment as against the

provision that more than one punishment should not be

imposed for one charge with a motive to victimize the

member. Punishment is in violation of natural justice and

Bipartite Settlements i.e. 6(e). The same is to be quashed

and the arrears paid to him.

S-3\E\4735RR\4735RR6

2138

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

4. Counter Statement allegations briefly read as follows:

The Branch Manager T.S. Raman was under orders of transfer and

the new Manager Sri R. Rajendran had already taken charge in

January 2000. However T.S. Raman continued to work in Chengam

as he was yet to take charge at the transferee branch. On 17.07.2003

Sri Rajendran had gone to Tiruvannamalai for SGSY training and

Mr. Raman was In-charge. The workman came without intimation

or the sanctioned ticket or the relevant papers. Raman informed his

inability to release the loan. The workman started shouting. Assistant

Manager also gave a report of misbehavior by the workman on

17.07.2003. There was investigation by Mr. S. Bhagyanathan. In

the enquiry five witnesses were examined for the Management and

two witnesses for the workman. Copy of report holding charges

proved was given to which workman submitted comments. On

25.10.2007 the punishments were imposed for Charges 2 to 5 with

no punishment for Charge No. 1. Punishment is justified. His records

show that he was prone to defiant, high-handed misbehavior. He was

earlier found guilty of misbehavior. The case is not one falling under

the scope of Section-11A to interfere except where it is perverse.

Finding is based on adequate evidence. No case has been made out

for interference. Punishment is only to be upheld.

5. Rejoinder Statement averments in a nutshell are as follows:

Charge is not proved and the punishment is unjustified.

Enquiry Officer with prejudiced mind concluded the charges as proved

perversely. It is a fit case for intervention and the punishments are

to be quashed.

6. Points for consideration are:

(i)

Whether the punishments imposed are

justified

(ii) To what relief the petitioner is entitled?

7. Evidence consists of Ex.W1 to Ex.W9 on the petitioner's

side and Ex.M1 to Ex.M16 on the Respondent's side, all marked on

consent with no oral evidence adduced on either side.

Points to (i) and (ii)

8. Heard both sides. Perused records, documents and written

arguments on behalf of the petitioner. Both sides argued keenly in

terms of the respective pleadings. Petitioner focused his contention

that if the incident had been considered as gross misconduct by the

Management then it could at the worst be classified under 5(C)

riotous or disorderly behaviour on the premises and not under any

other clauses which is only to circumvent the maximum punishment

clause of reduction of increments by two stages by breaking the

incident into three or four separate incidents and framed separate

charges to bypass the rule that one charge attracts one punishment.

The charges itself expose the perverse nature. Punishments violate

the letter and spirit of Bipartite Settlements governing service

condition. It is further argued that the workman was confronted

with perverse attitude of Management as Dalit. His wife, a P.G.

Teacher went to the Bank after taking the leave to receive the

loan. She went to the extent of weeping.

9. The contra arguments of the Respondent are that the

reference being punishment in violation of Bipartite Settlement is

justified is not regarding its gravity. The question to be answered is

only regarding alleged violation. Section-11A of the ID is not

applicable to re-appreciate the matter. There is no evidence of

victimization. Propriety of punishment cannot be gone into. There

is no violation of settlement. There is no re-writing of the provision

done by the Management. Punishment is only lenient, which

punishment in fact does not fall for consideration as Section-11A is

not attracted.

10. The Respondent relied on the decision of the High Court

of Madras in THE ZONAL MANAGER, BANK OF INDIA,

CHENNAI VS. THE GENERAL SECRETARY, BANK OF INDIA

STAFF UNION. CHENNAI AND ANOTHER (2011-1-LLJ-529) in

which Hon'ble High Court of Madras held "In the present case, the

question of invoking power under Section11-A of the Act to go into

the propertionality of the punishment did not arise. The CGIT had

not kept in its mind the jurisdiction imposed on it. It is not as if the

punishment imposed is so shockingly disproportionate, that no

reasonable person would have imposed such punishment. On the

other hand, the petitioner Bank itself had imposed only a minor

penalty on misconducts which were proved in a full-fledged enquiry

supported by legal evidence. Therefore, the attempt by the CGIT to

interfere with the penalty is unwarranted". In another decision in

MANAGEMENT OF KAVARAKKAL ESTATE VS. PRESIDING

OFFICER, LABOUR COURT (2002-1-LLJ-217) Hon'ble High Court

of Madras held "It is true apart from Section-11A, the Labour court

has powers as well to interfere as has been held by the Apex Court in

Firestone Case (supra). However, in the absence of any victimization

or unfair labour practice or discrimination or malicious or arbitrary

exercise of power, the Labour Court has no jurisdiction to interfere

de hors Section-11A of the Industrial Disputes Act". Section-6(e)

provides to punishment of bringing down to lower stage in the scale

of pay upto maximum of two stages. This provision discernibly is

for a single charge and for more charges than one the Section 06(e)

is applicable. There is no violation of the Bipartite Settlement.

There is no scope for interference with the given punishment on

invocation of Section-11A to in the absence of any other vitiating

circumstances as mentioned in the above decision. It is also to be

remembered that arguments without evidence or pleadings or with

pleadings, but without evidence have no legal stand. The punishments

are only to be upheld and I do so.

11. The reference is answered accordingly.

(Dictated to the P.A. transcribed and typed by him, corrected

and pronounced by me in the open court on this day the 11th

January, 2012).

A.N. JANARDANAN, Presiding Officer

Witnesses Examined:

For the 1st Party/Petitioner

None

For the 2nd Party/Management

None

Documents Marked:

On the Petitioner's side

Ex.No.

Date

Description

Ex.W1

04.05.2005

Letter CO/VLR/VIG/F274/51/2005

from Circle Office, Vellore framing

charges against Sri P.K. Govindarajan

Ex.W2

06.07.2005

Reply from Sri P.K. Govindarajan to

the above referred letter

Ex.W3

10.08.2005

Letter CO/VLR/VIG/F274/207/2005

from Circle Office, Vellore fixing date

for enquiry

Ex.W4

26.07.2007

Letter CO/VLR/VIG/F274/127/2007

from circle office, Vellore proposing

punishment to our member Sri P.K.

Govindarajan

Ex.W5

16.08.2007

Our member Sri P.K. Govindarajan reply

to the above letter dated 26.07.2007

Ex.W6

25.10.2007

Letter CO/VLR/VIG/F274/259/2007

from Disciplinary Authority imposing

punishment on our member Sri P.K.

Govindarajan

Ex.W7

05.12.2007

Letter from Sri P.K. Govindarajan to

the Appellate Authority against the

punishment

Ex.W8

12.12.2007

Letter IBEA/GEN/196/2005-08 from

the union to Assistant Commissioner

of Labour (Central) Chennai raising

Industrial Dispute

Ex.W9

28.05.2008

Orders

Appellate

Authority.

On the Management's side

Ex.No.

Date

Designation

Ex. M1

12.07.2003

Complaint of Manager—Chengam to

S-3\E\4734RR\4734RR6

¹Hkkx II—[k.M 3(ii)º

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2139

C.O. Vellore against P.K. Govindarajan

Ex. M2

22.07.2003

Report of M/s Devaraj—S. Nallaraj, E.

Mahendran, N. Ramasamy, Indian Bank,

Chengam—to C.O. Vellore

Ex. M3

12.12.2003

Investigation report of S. Bagyanathan,

Manager, C.O. Vellore

Ex. M4

09.11.2005

09.12.2005)

16.12.2005)

Enquiry Proceedings

05.01.2006)

12.01.2006)

06.02.2006)

Ex. M5

17.02.2003

Sanction ticket (CO/VLR/CRE/161/

2003)

Ex. M6

22.07.2003

Letter from Indian Bank, Chengam

Branch to C.O. Vellore

Ex. M7

28.04.2006

Letter from M. Chandrasekaran,

Presenting Officer enclosing his

summing up

Ex. M8

10.07.2006

Defence summing up by S. Hari Rao, D/

Ex. M9

15.09.2006

Findings of Enquiry Officer

Ex. M10

12.10.2006

Remarks of P.K. Govindarajan on the

findings of the Enquiry Officer

Ex. M11

18.08.2007

Proceedings of personal hearing

Ex. M12

22.06.2010

Award of the Central Govt. Industrial

Tribunal-cum-Labour Court, Chennai in

ID No. 4 of 2009 in respect of Sri P.K.

Govindarajan

Ex. M13

10.04.2002

Settlement—between

Banks

and

Employees Associations

Ex. M14

26.12.2007

Respondent's reply to Assistant

Commissioner of Labour (Central)

Ex. M15

02.06.2005

Extract—8th Bipartite Settlement with

CL 4 Scales of Pay and C L 5 Stagnation

Increments

Ex. M16

24.03.2011

Letter from Respondent H.O. Chennai

to Branch Manager, Tiruvannamalai

regarding grant of stagnation increment

and restoration of Basic Pay after

punishment period of one year to P.K.

Govindarajan

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New Delhi, the 7th February,

S.O. 876.—In pursuance of Section 17 of the Industrial

Dispute Act, 1947 (14 of 1947), the Central Government hereby

publishes the award (Ref. No. CGIT/LC/R/339/1999) of the Central

Government Industrial Tribunal cum Labour Court, JABALPUR as

shown in the Annexure, in the Industrial dispute between the

employers in relation to the management of Chief General

Manager, Deptt. Of Telecom and their workman, which was

received by the Central Government on 07.02.2012.

[F.No. L-40012/276/1999-IR(DU)]

Ramesh Singh, Desk Officer.

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL CUM LABOUR COURT, JABALPUR

NO. CGIT/LC/339/99

Presiding Officer: Shri Mohd. Shakir Hasan

Shri Padam Singh Malviya,

R/o Maksi,

Tehsil Shajapur,

Shajapu (Distt.)

Workman

Versus

Chief General Manager,

Deptt. of Telecommunication,

Hoshangabad Road, MP Circle,

Bhopal (MP)

Management

AWARD

Passed on this 13th day of January, 2012

1. The Government of India, Ministry of Labour vide its

Notification No. L-40012/276/99/IR(DU) dated 19-11-99 has

referred the following dispute for adjudication by this tribunal:—

"Whether the action of the management of Chief General

Manager, Telecom in terminating the services of Sri Padam

Singh Malviya S/o Madhaosingh Malviya w.e.f. 31-3-99 is legal

and justified? If not, to what relief the workman is entitled?"

2. The case of the workman, in short, is that the workman

was appointed on casual basis under Sub-Divisional Engineer,

Telecom Shajapur and was working continuously from January, 1991

and was terminated without any notice and without payment of any

compensation on 31-3-99 in violation of Section 25-F of the

Industrial Disputes Act, 1947 (in short the act, 1947). It is stated

that the Hon'ble Supreme court in a case of Bhartia Daktar Mazdoor

Sangh directed the management for regularization to the casual

daily wagers. In view of the direction the management formulated a

scheme for regularization to those casual labours who were engaged

prior to 30-3-1985. It is stated that the Hon'ble Central

Administrative Tribunal, Delhi in an O.A. Case No. 1476/90 declared

the cut off date as arbitrary and illegal and directed to regularize all

casual employee working with the management. It is submitted that

the workman be reinstated and be directed to make permanent.

3. The management appeared and filed Written Statement.

The case of the management, interalia, is that the applicant/

workman has never worked in this division of the management and

he was never appointed as Labour since January, 1991. As such the

question of termination for the services and regularization in the

services of the management do not arise. It is stated that the question

of the violation of the provision of Section 25-F of the Act, 1947

does not arise. On these grounds, it is submitted that the reference

be answered in favour of the management.

4. The workman appeared in the case and filed Statement of

claim, thereafter the workman became absent. Lastly the reference

proceeded exparte on 18-5-2010 against the workman.

5. On the basis of the pleadings, the following issues are

framed for adjudication—

I. Whether the action of the management in terminating the

services

Shri

Padam

Singh

Malviya

w.e.f.

31-3-99 is legal and justified?

II. To what relief the workman is entitled?

6. Issue No. I

The Management has examined one witness in the case. The

management witness Shri Bhagchand Joshi is Sub Divisional Engineer

of T.D.M. Shajapur. He has stated that the workman was never

engaged by the Management and the claim of the workman for

regularisation is baseless. His evidence is unrebutted. There is no

reason to disbelieve his evidence. His evidence clearly shows that

there is no question of terminating the services of Shri Padam Singh

Malviya. This issue is decided against the workman and in favour of

the management.

7. Issue No. II

On the basis of the discussion made above, the workman is

not entited to any relief. The reference is accordingly answered.

2140

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

8. In the result, the award is passed without any

order to costs.

9. Let the copies of the award be sent to the

Government of India, Ministry of Labour & Employment

as per rules.

Mohd, Shakir Hasan, Presiding Officer.

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New Delhi, the 7th February,

S.O. 877.—In pursuance of Section 17 of the

Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. CGIT/

LC/R/334/1999) of the Central Government Industrial

Tribunal cum Labour Court, JABALPUR as shown in the

Annexure, in the Industrial dispute between the employers

in relation to the management of Chief General Manager,

Deptt. Of Telecommunication, Bhopal and their workman,

which was received by the Central Government on

07.02.2012.

[F.No. L-40012/281/1999-IR(DU)]

Ramesh Singh, Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM LABOUR-COURT, JABALPUR

NO. CGIT/LC/R/334/99

PRESIDING OFFICER: SHRI MOHD. SHAKIR HASAN

Shri Ramprasad Bilala,

S/o Shri Shivsingh Bilala,

Village Balodi,

Tehsil Saharanpur,

Distt. Raigarh

Workman

Versus

Chief General Manager,

Deptt. of Telecommunication,

Hoshangabad Road,

MP Circle,

Bhopal (MP)

Management

AWARD

Passed on this 19th day of January, 2012

1. The Government of India, Ministry of Labour vide

its Notification No. L-40012/281/99/IR(DU) dated 19-11-99

has referred the following dispute for adjudication by this

tribunal:—

"Whether the action of the management of Chief

General Manager, Telecom and their workman

Shri Ramprasad Bilala S/o Shivsingh Bilala w.e.f. 26-

3-99 is justified? If not, to what relief the workman is

entitled?"

2. The workman did not appear inspite of proper

notice. Lastly the reference proceeded ex parte against the

workman on 23-11-2009.

3. The management appeared and filed Written

Statement. The case of the management in short is that the

alleged workman was never appointed by the management

and was never engaged in the division. Hence the

termination of service and the provision of Section 25-F of

the Industrial Dispute Act (in short the Act) doesnot arise.

He had never worked for 240 days in any calendar year. It is

submitted that the reference be decided in favour of the

management.

4. The following issues are framed for adjudication—

I. whether action of the management in terminating

the services of Shri Ramprasad Bilala w.e.f. 26.3.99

is justified?

II. To what relief the workman is entitled?

5. Issue No. I

The Management has examined Shri Bhagchand

Joshi, Telecom Divisional Manager, Shajapur. He has stated

that the workman was never engaged by the Management.

His evidence is unrebutted. There is no reason to disbelieve

his evidence. It is clear that there is no case of the workman.

This issue is decided in favour of the management and

against the workman.

6. Issue No. II

On the basis of the discussion made above, the

workman is not entited to any relief. The reference is

accordingly answered.

7. In the result, the award is passed without any

order to costs.

8. Let the copies of the award be sent to the

Government of India, Ministry of Labour & Employment

as per rules.

MOHD. SHAKIR HASAN, Presiding Officer

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

2141

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gqvk FkkA

[Qk- lañ ,y&40012@8@1998 vkbZ-vkj ¼Mh-;w-½]

jes'k flag] MsLd vfèdkjh

New Delhi, the 7th February,

S.O. 878.—In pursuance of Section 17 of the

Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. CGIT/

LC/R/144/1998) of the Central Government Industrial

Tribunal cum Labour Court, JABALPUR as shown in the

Annexure, in the Industrial dispute between the employers

in relation to the management of Divisional Engineer

(Admn.), Office of the Distt. Manager, Itarsi and their

workman, which was received by the Central Government

on 07.02.2012.

[F.No. L-40012/8/1998-IR(DU)]

Ramesh Singh, Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, JABALPUR

No. CGIT/LC/R/144/98

Presiding Officer: SHRI MOHD. SHAKIR HASAN

Shri Balkrishna Moreshwar Joshi,

Shivaji Ward, Ganesh Chowk,

Harda, Hoshangabad

Workman

Versus

Divisional Engineer (Admn.),

Office of theTelecom District Manager,

Itarsi

Management

AWARD

Passed on this 17th day of January, 2012

1. The Government of India, Ministry of Labour vide

its Notification No.L-40012/8/98IR(DU) dated 20-7-98 has

referred the following dispute for adjudication by this

tribunal:—

"Whether the action of the management of Divisional

Engineer (Admn.), Telecom District Manager, Itarsi

in terminating the services of Shri Balkrishna

Moreshwar Joshi w.e.f. 4/10/96 is legal and justified?

If not, to what relief the workman is entitled for?"

2. The case of the workman, in short, is that he was

appointed by the Divisional Engineer, Telecom, Khandwa

as waterman in August, 1981. he was paid monthly salary

by money order. It is stated that the workman requested

the Divisional Engineer for doing him permanent, then his

pay was fixed vide letter No. E-32/87-88/34 dated 17.7.87

and again it was revised vide letter No. E-32/92-93/102/

Khandwa dated 11-9-92 and payment was made accordingly.

It is stated that he worked continuously for eleven years.

In the meantime, he had requested several times to make

him permanent when the division of the Divisional Engineer

was changed to Itarsi, he worked there for four years under

District Manager, Telecom, Itarsi. It is stated that he was all

of a sudden terminated from service on 4-10-96 vide letter

No. E-4/96-97/29 Harda dated 4-10-96 though other workers

are still working in violation of the provision of Industrial

Dispute Act, 1947. It is submitted that the termination letter

be set aside and the workman be reinstated with back

wages.

3. The management appeared and filed reply by way

of Written Statement. The case of the management,

interalia, is that the workman was engaged on part time

basis and it doesnot come under the purview of the

Industrial Dispute. He was not served with appointment

letter nor be was a regular labour. Admittedly he was paid

wages through money order. It is stated that the wages of

part time labours were revised time to time and the wages

of the workman were also revised accordingly. It is stated

that he was not entitled to be regularized and the reference

is fit to be dismissed.

4. On the basis of the pleadings of the parties, the

following issues are famed—

I. Whether the action of the management in

terminating the services of Shri Balkrishna

Moreshwar Joshi w.e.f. 4-10-96 is legal and

justified?

II. To what relief the workman is entitled?

5. Issue No. I-

It is not out of place to say that it is not a case of

regularization rather it is a case of termination. To prove

the case, the workman has adduced oral and documentary

evidence. The workman Shri Balkrishna Moreshwar Joshi

has stated that he was appointed as a waterman by the

Divisional Engineer in the year 1982. He got wages of the

days he worked and had worked continuously. His

evidence shows that he worked continuolusly from the

year 1982. The workman has filed documentary evidence

to prove his case which appear to have been admitted by

the management.

6. Exhibit W/1 is the reply given by the management

to the Assistant Labour Commissioner(C), Shahjahanabad.

2142

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

The management has admitted this document. This is filed

to show that the workman was engaged on work for four

hours on the wages of Rs. 375/- and D.A vide letter No. E-

32/92-93/102 dated 7-9-92. This letter is filed by the workman.

This clearly shows that he was engaged continuously on

part time for 4 hours and there was no regular appointment.

Exhibit W/2 is the photocopy of the order of Telecom District

Engineer. This document is also admitted by the

management. It shows that the workman demanded bonus

of his services done yearly but it was rejected as he did not

come under the purview of bonus orders. However it is

filed to show that he was continuously working on part

time basis.

7. Exhibit W/3 is photocopies of money order slips.

It is an admitted fact that the wages were paid to the workman

by money orders. These slips are also admitted by the

management. These slips are filed to show that the wages

were being paid by money order from the year 1986 on

monthly basis and he was engaged continuously. There is

no pleading of the management that the workman was not

employed continuously rather the only case of the

managemnt is that he was engaged on part time basis which

appears to be admitted by the workman on filing these

documents. These payment slips of the money order also

go to show that the workman was continuously employed.

8. Exhibit W/4 is the photocopy of sanction order of

the Telephone Divisional Engineer whereby the wages of

part time waterman Harda, Shri Balkishna Joshi was revised.

This documents is also admitted by the management. It is

filed to show that on 7.9.92 his pay was fixed on the basis

of 4 hours to the extent of Rs. 375/- per month with DA on

admissible rates. This document also goes to show that he

was employed on part time basis continuously on monthly

half pay since he was working 4 hours out of 8 hours daily.

Exhibit W/5 is also photocopy of the chart of revised pay

fixation of number of workers. The name of the workman

stands on Serial No.11 This document is also admitted by

the management. It is filed to show that his pay was revised

by the Divisional Engineer, Khandwa w.e.f. 5.2.86. His earlier

pay was Rs. 129 per month which was revised and fixed @

Rs. 141 per month with D.A. admissible time to time. This is

filed to show that he was in service from before on the pay

of Rs. 129 per month as the case of the workman that he

was engaged from the year 1981. This is also filed to show

that he was engaged continuously on part time basis. Exhibit

W/6 is photocopy of terminiation letter dated 4-10-96. This

is also admitted by the management. This is filed to show

that without any reason he was terminated from the services.

This shows that he was in continuous service from the

year 1981 till his termination on 4-10-1996. Exhibit W/7 is

the photocopy of the letter of Asstt. General Manager dated

30-8-97 whereby the request for regularization of the

workman was rejected.

9. On the other hand the management has only

examined oral evidence. The management witness Shri B.S.

Kushwaha is working as Divisional Engineer,

Hoshangabad. He has denied that the workman was in

continuous service as a part time mazdoor (waterman)

between August 1981 to 4-10-1996 and he had rendered

240 days in a year prior to his discontinuation. His evidence

is not supported by any documentary evidence nor there

is any pleading whereas the documents filed by the

workman which are also admitted by the management go

to show that he was in continuous services on monthly

wages with D.A. admissible time to time. As such his wages

were revised time to time and lastly termination letter was

issued. The management witness Shri Kushwah a has

stated that he had not seen any document and only on that

presumption he has stated that since he had not worked

for 240 days. This shows that he is not reliable to say tha

the workman had not worked continuously from 1981 to

4-10-1996 and he had not worked 240 days in a calender

year.

10. The management has contended that he was part

time worker and as such it does not come under the purview

of Industrial Dispute. Industrial Dispute is defined in

Section 2(k) of the Industrial Disputes Act, 1947 (in short

the Act, 1947) which runns as follows—

"Section 2 K:

"industrial dispute" means and dispute or difference

between employers and employers, or between

employers and workmen, or between workmen and

workmen, which is connected withe the employment

or non-employment or the terms of employment or

with the conditions of labour of any person."

Workman is defined in Section 2(S) of the Act which

runs of follows:-

Section 2(S):—

"workman" means any person including an

apprentice employed in any industry to do any

manual, unskilled, skilled, technical, operational,

clerical or supervisory work for hire or reward,

whether the terms of employment be express or

implied, and for the purposes of any proceeding

under this Act in relation to an industrial dispute,

includes any such person who has been dismissed,

discharged or retrenched in connection with, or as a

consequence of, that dispute, or whose dismissal,

discharge or retrenchment has led to that dispute,

but doesnot include any such person—

(i) who is subject to the Air Force Act, 1950(45 of 1950)

or the Army Act, 1950 (46 of 1950) or the Navy Act,

1957 (62 of 1957); or

(ii) who is employed in the police service or as an officer

or other employee of a prison; or

(iii) who is employed mainly in a managerial or

administrative capacity; or

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

2143

(iv) who, being employed in a supervisory capacity,

draws wages exceeding ten thousand rupees per

mensem or exercises, either by the nature of the duties

attached to the office or by reason of the powers

vested in him, functions mainly of a managerial

nature."

This is clear that any person employed in the industry

for manual work is a workman. This shows that part time

employee also comes under the definition of the workman

under the provision of the Act, 1947. Thus the dispute

between the management and this workman also comes

under the definition of Industrial Dispute. Considerding

the entire discussion made above, it is clear that the

workman Shri Balkrishna Joshi was continuously working

from the year 1981 to 4-10-1996 and the management has

failed to show that any notice or compensation was paid

before or after termination. He was admittedly terminated

vide letter No. E-4/96/-97/29-Harda dated 4-10-96 and letter

shows that no notice and no payment of any compensation

as provided under Section 25-F of the Act, 1947 was done.

This is evident that the management was not justified in

terminating his service without complying the provision of

Section 25-F of the Act, 1947. Accordingly this issue is

decided in favour of the workman and against the

management.

11. Issue No. II

It is now evident that the management is not justified

in terminating his service. As such the management is

directed to reinstate the workman Shri Balkrishna Joshi

with back wages. The reference is thus, answered.

12. In the result, the award is passed without any

order to costs.

13. Let the copies of the award be sent to the

Government of India, Ministry of Labour & Employment

as per rules.

Mohd. Shakir Hasan, Presiding Officer

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New Delhi, the 7th February, 2012

S.O. 879.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 12/2008)

of the Central Government Industrial Tribunal cum Labour

Court Hyderabad as shown in the Annexure, in the

Industrial dispute between the employers in relation to the

management of The General Manager, India Govt. Mint,

their workman, which was received by the Central

Government on 07.02.2012

[F.No. L-16011/6/2007-IR(DU)]

RAMESH SINGH, Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL CUM LABOUR COURT AT HYDERABAD

Present

Shri Ved Prakash Gaur,

Presiding Officer

Dated the 16th day of December, 2011

INDUSTRIAL DISPUTE NO. 12/2008

Between

The General Manager,

India Government Mint,

Industrial Disputes Act, 1947, Phase-II,

Cherlapally (Respondent District)

Hyderabad-500 051.

Petitioners

AND

The working President,

Tankasala Karmika Sangh (INTUC)

C/o India Government Mint,

Cherlapally-500 051.

The General Secretary,

Hyderabad Mint employees Union (AITUC),

C/o India Government Mint,

Cherlapally-500 051.

The General Secretary,

Bharatiya Mint Mazdoor Sangh,

2144

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

1-8-565/5, RTC X Roads,

Hyderabad-500 020.

Respondents

Appearances:

For the Petitioner:

M/s Dr. P.B. Vijaya Kumar &

A.V.S. Laxmi, Advocates for R1 & R3

For the Respondent: M/s Raveender Reddy & M.

Mallikarajun, Advocates

AWARD

The Government of India, Ministry of Labour by its

order No. L-16011/6/2007-IR(DU) dated 30.4.2008 referred

the following dispute between the management of India

Government Mint and their workmen under section 10(1)(d)

of the I.D. Act, 1947 for adjudication to this Tribunal. The

term of reference is as under:

SCHEDULE

"Whether the demand of the workmen of the India

Govt. Mint, Hyderabad, for appropriate payment of

incentives to them on the basis of higher targets of

production achieved, if any, during the period

between 20.11.2006 to 18.7.2007 is legal and justified?

If yes, to what relief the workmen are entitled to?"

The reference is numbered in this tribunal as I.D. 12/

2008 and notices were issued to the parties concerned.

2. Petitioners called absent for several adjournments.

Petitioners sought time for filing claim statement and

documents, but, even after two years of receipt of reference

Petitioners did not file claim statement. On 16.12.2011 also

Petitioners called absent. Respondent's counsel present.

In absence of Petitioners or their claim statement reference

is to be answered in negative, hence, the Award is passed

accordingly. Transmit.

Dictated to Smt. P. Phani Gowari, Personal Assistance

transcribed by her, corrected by me on this the 16th day of

December, 2011.

VED PRAKASH GAUR, Presiding Officer

Appendix of evidence

Witness examined for the Witnesses examined for the

Petitioner

Respondent

NIL

Documents marked for the Petitioner

NIL

Documents marked for the Respondent

NIL

ubZ fnYyh] 7 Qjojh] 2012

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jes'k ¯lg] MsLd vf/kdkjh

New Delhi the 7th February, 2012

S.O. 880.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 127/

2K11) 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 relation

to the management of KOI Dam Hydro Electric Power Project

& Others and their workman, which was received by the

Central Government on 07.02.2012.

[F.No. L-42012/241/2010-IR(DU)

Ramesh Singh, Desk Officer.

ANNEXURE

IN THE CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT-II, CHANDIGARH

Present: Sri A.K. Rastogi, Presiding Officer.

Case No. ID No. 127/2011

Registerd on 28.4.2011.

Sh. Sunil Kumar, S/o Sh. Ram Lal, Village Chamyol,

PO Harnoda, Tehsil Sadar, Bilaspur.

Applicant

Versus

The Managing Director, M/s AKS Engineers and

Contractors Kol Dam Hydra Electric Power Project,

Sanjay Sadan, Chhota Shimla.

Project Manager, Italian Thai Development Co. Ltd.,

Kol Dam Hydra Electric Power Project, Village Kayan,

PO Slapper, Teh. Sundernagar, Mandi.

Respondents

Appearances

For the workman

—

None

For the Management

—

Sh. Shamsher Singh for

respondent No. 2

AWARD

Passed on 18 Jan, 2012

The Central Government vide Notification No. L-

42012/241/2010 (IR(DU)) dated 28.3.2011 by exercising its

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

2145

power under Section 10 Sub-Section 1 Clause (d) and Sub-

Section (2A) of the Industrial Disputes Act 1947 ( in short

Act) has referred the following disputes for adjudication

to this Tribunal.

"Whether the action of the management of M/s AKS

Engineers and Contractors a contractor of NTPC Koldam

Hydroelectric Power Project, Bilaspur in terminating the

services of their workman Sh. Sunil Kumar S/o Sh. Ram Lal

w.e.f. 20.4.2007 for his alleged act of habitual absenteeism

is legal and justified? What relief the workman is entitled

to?"

After receiving the reference notices were issued to

the parties. Only respondent No. 2 put in its appearance.

Claimant and respondent No. 1 failed to appear despite

notices sent by registered post to them on 4.10.2011.

Notices not received back undelivered hence, service was

presumed on them. As the workman did not turn up and file

claim statement despite sufficient service of notice hence,

a 'No Dispute' award is passed in the case. Let two copies

of the award be sent to Central Government for further

necessary action.

Ashok Kumar Rastogi, Presiding Officer

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'kh'k jke] vuqHkkx vf/kdkjh

New Delhi the 7th February, 2012

S.O. 881.—iin pursuance of Section 17 of the

Industrial Dispute Act, 1947, the Central Government

hereby publishes the award (Ref. No. 27/2010) of the Central

Government Industrial Tribunal/Labour Court, CHENNAI

now as shown in the Annexure in the Industrial dispute

between the employers in relation to the management of

INDIAN BANK and their workman, which was received by

the Central Government on 10.01.2012.

[No. L-12012/21/2010-IR(B-II)

Sheesh Ram, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT

CHENNAI

Thursday, the 5th January, 2012

Present:

A.N. JANARDANAN.

Presiding Officer

INDUSTRIAL DISPUTE NO. 27/2010

(In the matter of the dispute for adjudication under

clause (d) of sub-section (1) and sub-section 2(A) of Section

10 of the Industrial Disputes Act, 1947 (14 of 1947), between

the Management of Indian Bank and their Workman)

Between

The General Secretary

1st

Party/Petitioner

Union

Indian Bank Employees

Association

No. 17, Ameerjan Street

Choolaimedu

Chennai-600094

Vs.

The General Manager/HR

2nd Party/Respondent

Indian Bank

66, Rajaji Salai

Chennai-600001

Appearance:

For the 1st Party/ :

Sri G. Gopal, General Secretary,

Petitioner Union

Authorised Representative

For the 2nd Party/:

M/s T.S. Gopalan & Co.,

Management

Advocates

AWARD

The Central Government, Ministry of Labour vide its

Order No. L-12012/21/2010-IR (B-II) dated 03.06.2010

referred the following Industrial Dispute to this Tribunal

for adjudication.

The schedule mentioned in that order is:

"whether the action of the demand of the Union in

reduction of punishment of "Dismissal from Service"

to "Compulsory Retirement" to Sri T. Sundaramurthy,

Clerk/Shroff, SR No. 18447 is legal and justified?

What relief the concerned workman entitled to?"

2. After the receipt of Industrial Dispute, this Tribunal

has numbered it as ID 27/2010 and issued notices to both

sides. First Party entered appearance through Authorized

Representative and the Second Party through counsel and

filed their Claim, Counter and Rejoinder Statements as the

case may be.

3. The Claim Statement averments bereft of

unnecessary details are as follows:

Sri T. Sundaramurthy, Clerk-cum-Shroff was charge

sheeted for the following charges (i) as cashier (node TSU

013) on 04.08.2004 at Kokathur Branch he receiving Rs.

7,000/- from the remitter of SB A/c11964 Smt. A. Sumathy

2146

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

released signed counterfoil but failed to account the

amount, which he admitted but to have only remitted on

14.08.2004, thus he temporarily misappropriated Rs.

7,000/- (ii) he misappropriated the following amount in the

above manner (a) A. Muniappan, SB A/c No. 13370 on

16.11.2003 of Rs. 5,000/- (b) D. Shashikala, SB A/c No. 5482

on 11.12.2008 of Rs. 7,000/- (c) Kannuappa Naicker, SB A/c

No. 1575 on 13.01.2004 of Rs. 4,000/- (d) G. Bharathy, SB A/

c No. 7524 on 25.02.2004 of Rs. 10,000/- (e) G. Lakshmi, SB

A/c No. 14081 on 30.06.2004 of Rs. 10,000/- (f) M.S.

Shashikala Devi, SB A/c No. 14566 on 18.07.2004 of Rs.

4,200/- (g) C. Devarajan, SB A/c No. 3395 on 20.07.2004 of

Rs. 34,500/- (h) M. Mallappan, SB A/c No. 11125 on

08.07.2004 of Rs. 4,500/-. (iii) In the same transactions he

had used the earlier original challans of the respective

customers, except that of Kannuappa Naicker, altered and

remitted the amount into their SB Accounts so as to cover

the fraudulent transactions done (iv) He prepared pay-in-

slip for Rs. 7,000/- on 14.08.2008 in the SB Account No.

11964 as if remitted by Smt. A. Sumathy (v) prepared pay-

in-slip and remitted Rs. 4,000/- on 17.01.2004 in SB A/c No.

1575/- as if by Sri Kannuappa Naicker (vi) receiving Rs.

20,000/- for credit to SB A/c No. 13446 on 25.02.2004 entered

the same on the same day after considerable lapse of time

under batch on 360/7/1 at 11.12 AM (vii) his SB A/c No.

reveals abnormal transactions and he being heavily

indebted to private parties, availing loan without bank's

permission, constituting gross misconduct under Clause-

5 (j) of the 10.04.2002 Bipartite Settlement causing serious

loss to the bank. The domestic enquiry held the charges

proved, though not really proved. On 13.07.2006

punishment of dismissal from service without notice was

imposed. Appeal preferred was rejected on 26.09.2006. ID

raised having failed reference is occasioned. Charges were

without any complaint. Customer were not made witnesses.

Deletion Entry Log Book not being produced

misappropriation is not proved. The approach of the

Management was perverse. The workman served for 26

years with unblemished service records. Plight of the family

dependent on him was not taken into consideration to

impose punishment of Compulsory Retirement requested

for in conciliation too. Capital punishment was imposed.

The dismissal, a capital punishment, may be modified as

Compulsory Retirement to enable new jobs and also for

some financial benefits.

4. Counter Statements averments briefly read as

follows:

On 14.08.2004 a cheque for Rs. 5,000/- of Smt. A

Sumathy was to be dishonored. There being no balance in

her SB account no. 11964, when the matter was probed into

with reference to counterfoil and pass book, produced by

her, the fact of remittance of Rs. 7,000/- on 04.08.2004,

received by the workman through the system but was found

pocketed by him, which he made good on 14.08.2004,

confessing his mistake. The other similar 8 transactions

handled by him were also detected. Investigation revealed

his misconduct. Show Cause Notice was issued on

23.11.2005 to which he gave a reply on 15.12.2005 denying

the charges. On 20.12.2005, 7 charges were issued against

him. In the enquiry he participated. Four witnesses were

examined. On 24.04.2006 copy of enquiry report dated

07.04.2006 was furnished to him to which on 11.05.2006 he

gave his comments. Second Show Cause Notice dated

17.06.2006 was issued proposing dismissal and for personal

hearing on 11.07.2006. After considering his representation

on 13.07.2006 he was dismissed from service. Appeal was

dismissed in 26.09.2006. The dismissal is justified and there

is no scope for interference. He was only asking for

modification of punishment of dismissal to Compulsory

Retirement which he cannot make as lenience would be a

premium for commission of such misconduct. Counterfoils

not being bank documents, non-production of the same

would not absolve the workman of the charges. Charges

were proved in evidence as well as by confession. The

system furnishing the deletion entires, deletion entry log

book would not advance the case of the workman. The

punishment is to be upheld.

5. Rejoinder averments in a nutshell are as follows:

Workman did not confess. Prayer for modification of

punishment should not be construed as acceptance of

charges. Account holders should have been witnessess to

prove the misconduct. Admittedly the management has

not thoroughly probed the charges. Hence dismissal is

perverse and not justified.

6. Points for consideration are:—

(i) Whether the demand for reduction of punishment

of dismissal to compulsory retirement is legal and justified?

(ii)To what relief the concerned workman is entitled?

7. Evidence consists of Ex. W1 to Ex W14 on the

petitioner's side and Ex. M 1 to Ex. M 18 on the Respondent's

side, all marked on consent with no oral evidence adduced

on either side.

Points (i) & (ii)

8. Heard both sides. Perused the records, documents

and written arguments on behalf of the petitioner. The

arguments were in terms of their pleadings, that the charges

were not proved, that there was no complaint from the

account holders and they have not been examined. That

modification of punishment was sought for at the

conciliatory stage since it was really difficult for the

workman to work in a hostile environment with the

Management even if reinstated. With the facility built in

the system itself to rectify mistakes the same was construed

as an act of misappropriation which is not proper. Out of

the 4 counterfoils produced, 1 counterfoil relating to

SB A/c 1575 has nothing to do with the charge as it bears

dated 14.07.2004 whereas it mentions the date as 13.01.2004.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

2147

There is no financial loss either to the bank or to the

customers. The modification of punishment to compulsory

retirement with superannuation benefits is to be ordered.

The calim is not due to the tacit admission of the guilt.

Section-11A can be applied.

9. The contra arguments on behalf of the Respondent

are that there is no scope for smpathy in a case of

misappropriation which underlies propensity to be

dishonest. He has indulged in a total of 9 instances of

misconduct. He admitted the misconduct, in the enquiry as

evidenced by Ex. M2-Investigation Report for which he

has no plausible explanation. In a case of proved grave

misconduct perpetrated any past record of good service is

not material and it cannot come to this resucue.

10. Respondent relied on the decision of the Supreme

Court in KERALA SOLVENT EXTRACTIONS LTD. VS. A

UNNIKRISHNAN AND ANOTHER (1944-2-LLJ-888)

wherein it was held "7. We are inclined to agree with these

submissions. In recent times, there is an increasing

evidence of this, perhaps well-meant but wholly

unsustainable, tendency towards a denudation of the

legitimacy of judicial reasoning and process. The reliefs

granted by the Courts must be seen to be logical and

tenable within the framework of the law and should not

incur and justify the criticism that the jurisdiction of

Courts tends to degenerate into misplaced sympathy,

generosity and private benevolence. It is essential to

maintain the integrity of legel reasoning and the

legitimacy of the conclusions. They must emanate logically

from the legal findings and the judicial results must be

seen to be principled and supprotable on those findings.

Expansive judicial mood of mistaken and misplaced

compassion at the expense of the legitimacy of the process

will eventually lead to mutually irreconcilable situations

and denude the judicail process of its dignity, authority,

predictability and respectability".

11. The workman only seeks modification of the

punishment of dismissal from srvice into compulsory

retirement so that he may derive some benefits by way of

superannuation from service by reason of having rendered

26 years of service. Though he had moted this before at

the conciliation stage it was not found favour with him.

12. Discernibly by detection of the misconduct of

the misappropriation of moneys by the workman was

occasioned at the instance of the bank when the account

holder Smt. A. Sumathy met with chance of dishonor of

her cheque for Rs. 5,000/- dated 14.08.2004 due to there

having been no balance in her SB Account no. 11964 though

there was a remittance of Rs. 7,000/- on 04.08.2004, which

fact on being reported to the officials happened to be

probed resulting in a investigation report pinpointing the

workman to have done temporary misappropriation of the

amount with similar other instances on supporting

materials. Though there is no financial loss to the bank or

the customers it is the propensity to be dishonest, which

should not go unpunished. Non-examination of the account

holder or the fact that there were no complaints produced

is not relevant consideration. The question is whether the

misconduct committed is proved for which there is also

the confession of the guilt by the workman who remitted

the amount when the fact came to be detected. Though

result of investigations is not admissible in evidence in

strict compliance of CPC and Evidence Act provisions,

that mode of application is not relevant in industrial

adjudication. Matters logically probative are enough to

prove a given fact of misconduct. Needless to say as to

whether the workman has been guilty or not is no more an

axe to grind since it is virtually admitted as well as proved

that he is guilty.

13. Now what calls for consideration is regarding the

punishment. He solicits conversion of "Dismissal from

service" into "Compulsory Retirement" so that he may get

some benefits in terms of superannuation apart from other

aspirations whether they will get materialized or not taking

into account the miserable plight of his family members

depending on him who was had to quit the service after

having renderd 26 years of unblemished service which is

not disputed. He had made this claim during the consiliation

stage, that is to say not at or until the enquiry was over

culminating in the enquiry report and the punishment that

followed.

14. The argument against solicitation of the workman

for the reduced punishment of Compulsory Retirement

raised on behalf of the Respondent, inter-alia, is that if

such a claim is magnanimously allowed the same would

be premium for the misconduct committed. In the demand

of the workman what appears is that the same is very

specific only and is in the place of outright claims for

seeting aside the punishment with consequent orders for

reinstatement with all benefits, etc. It is very relevant to

consider whether the soliciation of Compulsory Retirement

in the place of Dismissal raised by the workman would

amount to a premium for such misconduct. A reason

hightlighted on his behalf for such a stand is that due to

his difficulty to work under the Management in a hostile

environment if he is reinstated. Though this may be

plausible explanation, it does not find averred in the Claim

Statement. It is not to be regarded as an instance of plea-

bargaining to the benevolence of the petitioner since once

he has been thrown out of employment he should seek

asylum by way of relief moulding it in a manner suiting to

his needs, no matter whether it finds approval and

recognition as such itself when some relief are really

granted. Another important aspect of the matter is whether

if the relief sought for by way of modification of dismissal

into compulsory retirement is granted the same would be

an instance of extension of misplaced sympathy, generosity

and private benevolence by allowing the judicial process

to degradation. Again the question is whether it will disrupt

2148

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

the integrity of legal reasoning and the legitimacy of the

conclusions, which no doubt should emanate logically

from the legal findings. It is also pertinent to consider

whether such a stand would fall down to an instance of

mistaken and misplaced compassions at the expense of

the legitimacy of the process and would lead to mutually

irreconciliable situations denuding the dignity, authority,

predictability and respectability of the judicial process.

15. Having pondered quite some time I am led to the

conclusion that every instance of a modification of a

punishment to one less severe in nature for cogent reasons

may not lead to extension of sympathy or generosity and

would not be illegality or impropriety denuding the dignity,

authority, predictability and respectability of the

adjudicatory forums. The authorities competent to impose

punishment always have a duty to be fair when they are at

the spur of a moment to decide as to the quantum of

punishment to be imposed on a delinquent proved guilty

of a given misconduct. The authority when discharges the

function has a sublime and noble duty to exercise its

discretion in a judicious manner consistent with justice,

equity and good conscience uninfluenced by extraneous

consideration, and doctrinaire approach that for the

misconduct committed he should invariably be done away

with economically. The background scenario of the

circumstances in relation to his personal life, family life or

social life in which the misconduct may have been

committed, though which set of facts constituting the

background scenario, may not always be forthcoming from

the part of the workman presumably or possibly for the

reasons of his miseries or wretched conditions of personal

or family life which in may not be pleasant to be unvelied.

Here the workman has had a case at least at the conciliation

stage that due to the punishment of dismissal entailing in

his economic death the plight of his family members fell

out of consideration of the authority. When a delinquent

should have to be terminated from service owing to some

proved misconduct, grave in nature, the Disciplinary

Authority has to determine for himself the degree of the

misconduct from among the different degrees in which a

misconduct may have been committed. The Authority shall

not jump into hasty conclusions as to the punishment

imposed. It is well to remember that noticeably, there have

been instances of cases in which a workman who

misappropriated moneys extending to crores of rupees,

without any possibility of the same having been recovered,

while was terminated from service with the punishment of

dismissal where the degree of the misconduct committed

is awefully large creating panic in the mind of all geared to

a righteous and normal life, a delinquent guilty of

misappropriation of meagre sums is also punished with

the same punishment of dismissal, gives a wrong signal.

The degrees of misconduct also have to be weighing

considerations and measuring rods in the matter of

punishment for such minconducts. Though in case of

misappropriation the underlying temptation is the

propensity to do the wrongful act actuated by moral

turpitude the degree in doing it at alarming proportions is

to be distinguished from the degree of the state of mind

impelling indulgence in the misappropriation of very sundry

sums which way be done out of miseries and wretched

situations in personal and family life of individuals often

beyond control, by which really they do know for certain

that they are committing lapses by falling from virtue.

Though, in such cases the propensity to commit, viz. the

mental element of the crime is to be punished the

punishment should be in accordance with variance in the

degrees in which the injurious consequences ensure. It is

good to recall to our mind that there is a long mental

distance between criminal intent to indulge in the

misappropriation of money extending to crores of rupees

and the criminal intent to commit the same offence

extending to mere thousands. The same may be the reason

for providing various punishment, viz. dismissal, removal,

discharge, etc. under the caption "Termination from

Service", the first in the ordinal numeral being dismissal

which is to be inflicted for the highest misconduct falling

under the item. Treating formidable delinquency and

innocent delinquency alike may not be just and proper. So

viewed, I am of the considered opinion that in the case of

the workman the punishment should fall under the caption

coming under the last in the ordinal numeral viz. Compulsory

Retirement, which the workman has solicited, and which

even if not so asked for by him would have been a weighing

consideration by the adjudicatory forum. In such a view of

the matter also when the adjudicator steps down to convert

the punishment of dismissal into one of the compulsory

retirement it is not to be read as one out of expansive judicial

mood of mistaken and misplaced compassion at the expense

of the legitimacy of the process leading of denudation of

judical process of its dignity, authority, predictability and

respectability. This cannot be said to be illegal findings

emanating illogically. This cannot be said to be a misplaced

sympathy, generosity and private benevolence. Again this

cannot be said to be illogical and untenable not within the

framework of law to run the risk of incurring and justifying

the criticism that the Courts tend to degenerate into

misplaced sympathy, etc.

16. Sympathetic considerations also cannot be totally

out of the realm of punishment as has been held in several

pronouncements of the Upper Judicial Hirearchy. In this

context it is also worthy to note the decision of the High

Court of Andhra Pradesh in BANGARU

KOTESWARAMMA & OTHERS VS. G. SRINIVASA RAO

& ANOTHER (2011-LLR-1105) wherein it is held as follows

'"31. The shinning of justice will be increased if the Judge

rendering justice has humane approach, kind and honest

heart. Rejecting the claims of the poor on mere technical

grounds without reading and understanding the evidence

or relevant provisions of the Act would result in great

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

2149

injustice to the poor. Justice not tendered with mercy

cannot be called real and substantial justice. Brain

without heart cannot make a complete and perfect

gentleman (woman). Time and again, noble Judges have

been insisting that mere technical approach should not

result in denying substantial justice. India does not mean

Ratan Tata, Goenka or Sibu Soren, but India includes a

minor girl who is a victim of trafficking, a , minor boy

forced to become a bonded labourer, a wife of a farmer

with minor children where husband committed suicide

because of spurious seeds or pesticides. India means all

those-we should not forget that. It is the responsibility of

all the wings-Executive, Legislature and Judiciary to see

that JUSTICE-Social, Economic and Political is

guaranteed to all the citizens of the country. As observed

by the Apex Court, if steps are not taken to unearth the

black money lying in the foreign banks, great economic

justice (injustice) can be done to the society. A dare step

of unearthing black money would solve many problems

being faced by this country. But alas, except mere promises

and pronoucements, nothing substantial has been done

and we have to await for a birth of another Mahatma

Gandhi or another Bhagat Singh with optimism."

17. My above discussion leads me to the conclusion

that while the workman should not be allowed to continue

in service because of the confidence reposed on him by

the bank being lost or is apt to be lost be reason of the

misconduct committed by terminating his services, that

course could be resorted to in some fairness by sending

him out with the terminal benefits by reason of

superannuation for having rendered 26 years of service.

Though the very 26 years of service has not been with

leaving any imprints of blemished service, yet it is not a

consideration for imposing reduced punishment than was

in contemplation of the competent authority. But for the

other reasons discussed above it is only just and proper

that the workman is given Compulsory Retirement so that

he may derive his superannuation benefits. it is ordered

accordingly setting aside the punishment of dismissal

imposed on him.

18. The reference is answered accordingly. (Dictated

to the P.A. transcribed and typed by him corrected and

pronounced by me in the open court on this day the 5th

January, 2012).

A.N. JANARDANAN, Presiding Officer.

Witnesses Examined

For the 1st Party/Petitioner

None

For the 2nd Party/1st Management :

None

Documents Marked:

On the Petitioner's side

Ex. No.

Date

Description

Ex.W1

23.08.2004

CO:CH:N:VIG: C: 128:2004 from

Circle Office, Chennai North

placing Sri T. Sundaramurthy

under Suspection

Ex.W2

23.09.2004

Show Cause Notice from Circle

Officer, Chennai North to Sri T.

Sundaramurthy

Ex.W3

20.11.2004

Reply letter from Sri T.

Sundaramurthy to the above for

the above letters

Ex.W4

23.11.2005

CO:CH:VIG: C: 2005 from Circle

Office, Chennai Show Cause letter

to Sri T. Sundaramurthy

Ex.W5

15.12.2005

Reply from Sri T. Sundaramurthy

to the above letter

Ex.W6

20.12.2005

Charge Sheet CO:CH:VIG: Claim

Statement:128:CHEN 2005

Ex.W7

06.03.2006

Presenting Officer's report in

respect of enquiry on the above

charge sheet

Ex.W8

02.04.2006

Defence brief on the enquiry

conducted under charge sheet

CO:CH:VIG: Claim

Statement: 128:CHEN 2005 dated

20.12.2005

Ex.W9

24.04.2006

Letter from General Manager,

Circle Office, Vigilance Department

forwarding the Enquiry Officer's

report

Ex.W10

07.04.2006

Enquiry Officer's report for the

enquiry conducted on the above

referred charge sheet

Ex.W11

11.05.2006

Defence Representative reply to

the Enquiry Officer report

Ex.W12

13.07.2006

Letter from DGM/Disciplinary

Authority imposing punishment

of "Dismissal from service without

notice" on Sri T. Sundaramurthy

Ex.W13

26.09.2006

Orders of Appellate Authority

confirming the punishment

imposed on Sri T. Sundaramurthy

Ex.W14

18.09.2007

Letter IBEA/GEN/164/2005-08

from the petitioner union to the

2150

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

Assistant Commissioner of

Labour (Central raising an

Industrial Dispute against the

punishment

Sri

Sundaramurthy

On the Management's side

Ex. No.

Date

Description

Ex.M1

06.03.2006)

07.02.2006)

Proceedings of enquiry

08.02.2006)

Ex.M2

09.09.2004

Report of Investigation Officer

Mr. M. Mariappan in respect of

investigation conducted by him

from 25.08.2004 to 28.08.2004 and

on 31.08.2004 and collection of

details from the branch on

04.09.2004 and 07.09.2004

Ex.M3

List of corrected cash/transfer

transactions involving ID-TSU-

013

Ex.M4

List

deleted

transfer

transactions involving ID-TSU-

013

Ex.M5

Letters

deleted

cash

transactions involving ID-TSU-

013

Ex.M6

Screen view for the transactions

Ex.M7

Xerox copies of vouchers-list

Ex.M8

Annexure VI to the report dated

09.09.2004 of M. Mariappan,

Investigation Officer

Ex.M9

Annexure VII of the report dated

09.09.2005 of Mr. M. Mariappan,

Investigation Officer—(Active

users list)

Ex.M10

22.09.2004

Names of the 9 accounts and copy

of relevant vouchers from

Kolathur Branch to Circle Office,

Vigilance Department and

statement

Ex.M11

Counterfoils of 4 SB Accounts of

P. Sasikala, Kanniyappa Naicker, a

Sumathi and G. Lakshmi

Ex.M12

14.09.2004

Remittance Requisition Slip for

withdrawal of cash S.No. MRWA-

569499 dated 14.08.2004 for Rs.

20.00 Lakhs received by the CSE

Ex.M13

August 2004 Branch Attendance Register for

August 2004

Ex.M14

Office Order for work allocation for

clerical staff w.e.f. 15.4.2004

Ex.M15

23.08.2004

Branch letter addressed to the

Vigilance Department Circle Office

reporting the misappropriation of

cash by CSE

Ex.M16

17.06.2006

Second Show Cause Notice

proposing

punishment

dismissal, calling for the

representation of the CSE and

notice to appear for personal

hearing

Ex.M17

05.07.2006

Reply of CSE for the Second Show

Cause Notice dated 17.06.2006

Ex.M18

26.02.2010

No.

M/7/39/2009-B2/B-3

Submission FOC Report by

Assistant Commissioner of

Labour (Central) to the Secretary,

Ministry

Labour

and

employment, New Delhi regarding

dismissal of T. Sundaramurthy

ubZ fnYyh] 7 Qjojh] 2012

dkñvkñ 882.—vkS|ksfxd fookn vfèfu;e 1947 ¼1947

dk 14½ dh èkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj iatkc us'kuy

c®d ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp

vuqcaè esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vfèdj.k@Je U;k;ky;] t;iqj ds iapkV ¼lanHkZ la[;k 56@2005½

dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 29&12&2011 dks izkIr

gqvk FkkA

[lañ ,y&12012@115@2003 vkbZ vkj ¼ch&II½]

'kh'k jke] vuqHkkx vfèdkjh

New Delhi, the 7th January, 2012

S.O. 882.—in pursuance of Section 17 of the

Industrial Disputes Act, 1947 the Central Government

hereby publishes the Award (Ref. No. 56/2005) of the

Central Government Industrial Tribunal/Labour Court

Jaipur now as shown in the Annexure in the Industrial

Dispute between the employers in relation to the

management of Punjab National Bank and their workman,

which was received by the Central Government on

29.12.2011.

[No. L-12012/115/2003-IR(B-II)]

Sheesh Ram, Section Officer

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

2151

vuqca/k

dsUnzh; ljdkj vkS|ksfxd vfèdj.k ,oa Je U;k;ky;] t;iqj

lh-th-vkbZ-Vh-izdj.k la- 56@2005

Jh ,u- ds- iqjksfgr

ihBklhu vfèdkjh

foKkfIr la- ¼jsQjsUl ua-&L-12012/115/2003-IR (B-II)

fnukad 29@4@2005

Shri Gordhan Suman S/o., Sh. Nand Kishore Suman

C/o Joint Secretary, Hind Mazdoor Sabha,

Bangaly Colony, Chawani,

Kota (Rajasthan)

V/s.

(1) The Regional Manager,

Punjab National Bank,

Regional Office, Super Bazar,

Bharatpur (Rajasthan)

(2) The Secretary, Canteen Samiti,

Punjab National Bank,

Bharatpur (Rajasthan)

izkFkhZ dh rjQ ls

% ,d&i{kh; dk;Zokgh

vizkFkhZx.k dh rjQ ls

% dksbZ mifLFkr ugha

iapkV%

fnukad 28@11@2011

dsUnzh; ljdkj ds }kjk fuEu fookn vkS|ksfxd vfèfue;] 1947 dh

èkjk 10 dh mièkjk ds [k.M ¼?k½ ds izkoèkuksa ds vUrxZr mDr

funsZ'k ds tfj, U;k;fu.kZ;u gsrq izsf"kr fd;k x;k FkkA

"Whether the claim of Shri Gordhan Suman, S/o Sh.

Nand Kishore Suman that he was engaged on daily

wages by the management of Punjab National Bank

during the period from 01.01.2000 to 30.11.2002 is

correct? If so, whether the action of the Management

in terminating him from service w.e.f. 01.12.2002 is

legal and justified and what relief is the disputant

concerned entitled to?"

2- izkFkhZ ds vius LVsVesaV vkWQ Dyse esa vfHkopu gS fd mls

vizkFkhZ cSad dh Nkouh czkap] dksVk esa fnukad 01@01@2000 ls nSfud

osru ij dk;Z gsrq fu;ksftr fd;k Fkk] ysfdu ckn esa fnukad

01@12@2002 dks fcuk fdlh uksfVl ;k uksfVl ds cnys ,d ekg ds

vfxze osru ds ;k NVuh eqvkotk ds lsokeqDr dj fn;k x;kA izkFkhZ us

fnukad 01@01@2000 ls 30@11@2002 dh vof/k esa vizkFkhZ cSad ds

fu;kstu esa fujarj dk;Z fd;k gS vkSj bl vof/k esa 240 fnu ls vf/kd

dk;Z fd;k gSA izkFkhZ ds ;g Hkh vfHkopu gS fd mls ukSdjh ls gVk,

tkus ls iwoZ ofj"Brk lwph dk izdk'ku ugha fd;k rFkk mlls dfu"B

Jfed vizkFkhZ ds ;gka dk;Zjr FksA pwafd mldh lsokeqfDr voS/k gSA

vr% izkFkhZ dks fiNys laiw.kZ osru ,oa ykHkksa ds lkFk lsok esa cgky

fd;k tkosaA

3- vizkFkhZ cSad us Dyse ds tokc esa dgk gS fd Jfed ,oa

vizkFkhZ cSad ds e/; ekfyd&etnwj ds laca/k ugha jgsA Jfed dsoy

ek= dsaVhu dkUVªsDVj ds :i esa cSad deZpkfj;ksa dks pk;&uk'rk nsus

dk dk;Z djrk FkkA vr% /kkjk 2(S) ds varxZr og Jfed dh Js.kh esa

ugh vkrkA vizkFkhZ cSad ds ;g Hkh izdFku gS fd Jfed dks Nkouh

'kk[kk] dksVk] esa fu;qDr ugha fd;k x;k FkkA blfy, lsok&eqfDr fd;s

tkus dk iz'u gh mRiUu ugha gksrkA vizkFkhZ cSad ds ;g Hkh izkdFku gS

fd Jfed us fnukad 01@01@2000 ls 30@11@2002 rd fujaRkj dk;Z

ugha fd;kA lQkbZ&deZpkjh ds vodk'k ;k vuqifLFkr jgus ds nkSjku

mlus 'kk[kk ifjlj dh lQkbZ dk dk;Z iw.kZr;k vLFkkbZ ,oa vkdfLed

vk/kkj ij va'kdkyhu nSfud osruHkksxh ds :i esa ek= 18 fnu dk;Z

fd;k gSA tokc esa ;g Hkh dgk gS fd Jfed dk uke ofj"Brk lwph esa

lfEefyr fd;s tkus dk iz'u gh ugha FkkA vr% mls dfu"B vU;

Jfedksa dks fu;kstu esa j[ks tkus dk dFku xyr gSA vr% izkFkhZ dk

Dyse Lohdkj fd;s tkus ;ksX; ughaA

4- izkFkhZ ds vkosnu fnukad 22@11@2005 ftlesa yksdy

bEiyhesaVs'ku desVh dks i{kdkj cuk, tkus dh izkFkZuk dh Fkh] dks

fnukad 16@05@2006 ds vkns'k }kjk dks Lohdkj dj mDr desVh dks

i{kdkj cuk;k x;k FkkA vkns'k dh vuqikyuk esa izLrqr la'kksf/kr

VkbZVy ds vuqlkj lfpo dsaVhu lfefr iatkc us'kuy cSad] Hkjriqj

dks jftLVMZ uksfVl izsf"kr fd;k x;kA ysfdu uksfVl dh rkehy ds

ckotwn vizkFkhZ lañ 2 dh rjQ ls dksbZ mifLFkr ugha gqvkA

5- fnukad 07@09@2010 dks izkFkhZ ds fo#) ,di{kh; ikfjr

fd;k x;k Fkk rRi'pkr~ fnukad 08@02@2011 dks mDr vkns'k dks

vikLr djus gsrq vkosnu izLrqr fd;kA mDr vkosnu ds tokc ,oa

cgl dh LVst ij izkFkhZ izfrfuf/k us fnukad 12@04@2011 dks ,d vU;

vkosnu izLrqr dj tkfgj fd;k fd Jfed dkQh le; ls lEidZ esa

ugha gS vkSj u gh muds i=ksa dk tokc izLrqr dj jgk gSA vr% mldk

izfrfuf/kRo djus esa vleFkZ gSA mDr vkosnu ds vk/kkj ij Jfed dks

jftLVMZ uksfVl izsf"kr dj lwfpr fd;k fd mlds izfrfuf/k us mldk

izfrfuf/kRo djus esa vleFkZrk izdV dh gSA vr% og Lo;a vkxkeh

rkjh[k dks vfxze dk;Zokgh ds fy, is'k gksA ysfdu Jfed jftLVMZ

uksfVl dh rkehy ds ckotwn mifLFkr ugha gqvkA bu ifjfLFkfr;ksa esa

fnukad 21@11@2011 dks iwoZ esa izLrqr mlds izkFkZuk&i= fnukad

08@02@2011 ftlesa mlus ,di{kh; dk;Zokgh dks vikLr djus dks

izkFkZuk dh Fkh] dks fujLr fd;k x;kA mDr frfFk 08@02@2011 dks

vizkFkhZ lañ 1 cSad vkSsj vizkFkhZ lañ 2 lfpo] dsaVhu lfefr] iatkc

us'kuy cSad dh rjQ ls Hkh dksbZ mifLFkr ugha gqvkA vr% iz=koyh

dks iapkV djus gsrq vkjf{kr fd;k x;kA

6- mDr i`"B&Hkwfe esa u izkFkhZ vius Dyse ds leFkZu esa lk{;

izLrqr djus gsrq mifLFkr gqvk gS vkSj u gh vizkFkhZx.k us vius tokc

ds leFkZu esa ekSf[kd lk{; izLrqr dh gSA

2152

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

7- pwafd vizkFkhZ us izkFkhZ ds Dyse dks vLohdkj fd;k gSA vr%

;g fl) djus dk izkajfHkd Hkkj izkFkhZ ij Fkk fd fnukad 01@01@2000

ls 30@11@2002 dh vof/k esa mlus vizkFkhZ ds ;gka dk;Z fd;k gS o

fnukad 01@12@2002 ls iwoZorhZ 12 ekg esa mlus 240 fnu ls vf/kd

vof/k rd dk;Z fd;k gSA

8- izkFkhZ us Dyse ds leFkZu esa dksbZ lk{; ugha nh gSA ,slk izrhr

gksrk gS fd izkFkhZ dks bl ekeys esa vkxs pykus esa dksbZ fnypLih ugha

jgh gSA pwafd vfHkys[k ij dksbZ ekSf[kd ,oa nLrkosth lk{; ugha gS]

blfy, mDr ifjfLFkfr;ksa esa fopkjk/khu funsZ'k dk fuLrkj.k xq.kkxq.k

ds vk/kkj ij fd;k tkuk laHko ugha gSA ifj.kkeLo:i ^uks Dyse

vokMZ* ikfjr fd;k tkrk gSA funsZ'k dk mÙkj rn~uqlkj fn;k tkrk gSA

9- iapkV dh izfrfyfi dsUnzh; ljdkj dks vkS|ksfxd fookn

vf/kfu;e 1947 dh /kkjk 17¼1½ ds varxZr izdk'kukFkZ izsf"kr dh

tkosA

,uñ dsñ iqjksfgr] ihBklhu vf/kdkjh

ubZ fnYYkh] 7 Qjojh] 2012

dkñvkñ 883.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj fMohtuy gkLihVy

iwoZ jsyos izca/k ra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp

vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/

kdj.k vklulksy ds iapkV ¼lanHkZ la[;k 38@2007½ dks izdkf'kr

djrh gS] tks dsUnzh; ljdkj dks 07&02&2012 izkIr gqvk FkkA

[lañ ,y&41012@59@2007&vkbZñvkjñ¼ch&1½]

jes'k flag] MsLd vf/kdkjh

New Delhi, the 7th February, 2012

S.O. 883.—In pursuance of Secton 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award Ref. 38/2007 of

the Cent. Govt. Indus. Tribunal-cum-Labour Court,

ASANSOL as shown in the Annexure, in the industrial

dispute between the management of Divisional Hospital

Eastern Railway and their workmen, received by the Central

Government on 07/02/2012.

[No. L-41012/59/2007-IR(B-I)]

Ramesh Singh, Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVT. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, ASANSOL.

PRESENT

Sri Kishori Ram

Presiding Officer/Link Officer

REFERENCE NO. 38 OF 2007.

PARTIES

The Management of Divisional

Hospital, Eastern Railway Asansol

Division

V/s.

Their Workman

REPRESENTATIVES:

For the managements:

None

For the union (Workman)

None

INDUSTRY: Railway

STATE: WEST BENGAL

Dated the 05.01.12

25.05.10

AWARD

In exercise of powers conferred by clause (d) of Sub-

section (1) and Sub-section 2(A) of Section 10 of the

Industrial Disputes Act, 1947 (14 of 1947), Govt. of India

through the Ministry of Labour vide its letter No.L-41012/

59/2007-IR(B-1) dated 02.07.07 has been pleased to refer

the following dispute for adjudication by this Tribunal.

SCHEDULE

"Whether DRM/Eastern Railway's action by not

promoting Sri Nagendra Rai, X-Ray attendant in the

post of Radiographer is justified? If not, what relief

he is entitled to?

Having received the Order No. L-41012/59/2007-IR(B-1)

dated 02.07.07 of the above said reference from the Govt.

of India Ministry of Labour, New Delhi for adjudication of

the dispute, a reference case No. 38 of 2007 was registered

on 03.05.07 and accordingly an order to that effect was

passed to issue notices through the registered post to the

parties concerned directing them to appear in the court on

the date fixed and to file their written statements along with

the relevant documents and a list of witnesses in support

of their claims. In pursuance of the said order notices by

the registered post were sent to the parties concerned.

Since the predecessor (Late Manoranjan Pattanaik,

the then P.O.) of the Tribunal as per order dated 25.05.10

had reserved for an award in this case because none of the

parties responded to the notice or filed written statement.

So it was found that they had no interest to proceed with

the case and as such no dispute exists. Accordingly, it is

hereby ordered.

ORDER

Let an "Award" be and the same is passed as no

dispute existing. Send the copies of the order to the Govt.

of India, Ministry of Labour, New Delhi for information and

needful. The reference is accordingly disposed of.

Kishori Ram, Presiding Officer/Link Officer

ubZ fnYyh] 7 Qjojh] 2012

dkñvkñ 884.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj Mhñ ,eñ vkjñ

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

2153

lhñ izca/k ra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/

k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k

fnYyh ds iapkV ¼lanHkZ la[;k 66@2009½ dks izdkf'kr djrh gS] tks

dsUnzh; ljdkj dks 07-02-2012 izkIr gqvk FkkA

[lañ ,yñ 41011@02@2009&vkbZñvkjñ¼ch&1)]

jes'k flag] MsLd vf/kdkjh

New Delhi, the 7th February, 2012

S.O. 884.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 0f 1947), the Central

Government hereby publishes the Award Ref. 66/2009 of

the Cent Govt. Indust. Tribunal-cum-Labour Court No. 2,

New Delhi as shown in the Annexure, in the industrial

dispute between the management of DMRC and their

workmen, received by the Central Government on 07/02/

2012.

[No-L-41011/02/2009-IR(B-1)]

Ramesh Singh, Desk Officer

ANNEXURE

IN THE COURT OF SHRI SATNAM SINGH

PRESIDING OFFICER

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL

CUM-LABOUR COURT-II, DELHI

ID NO. 66/2009

The Secretary,

DMRC Employees Union,

3, V.P. House, Rafi Marg, New Delhi.

Workman

VERSUS

The Managing Director, DMRC.NBCC Place, Bhishm

Pitamah Marg,

Pragati Vihar, New Delhi-3.

Management

AWARD

The Central Government, Ministry of Labour vide

order No.L-41011/02/2009-IR(B-1) dated 20.10.2009 has

referred the following industrial dispute to this Tribunal

for adjudication:

"Whether the action of the management of DMRC in

imposing the penalty of removal from services w.e.f.

2.9.2008 on Shri Inderjeet is justified? If not, what

relief he is entitled?"

2. Ever since the reference was received in this court

the workman seems to be not taking interest in getting his

claim adjudicated upon. In fact, even no statement of claim

has been filed by the workman till today. On 12.07.2010 he

was given last opportunity for filing the statement of claim

for 29.9.2010. The workman appeared on that date but still

did not file the statement of claim and instead made a

statement that the matter was being settled. Since 22.10.2010

he has stopped attending the court. It is not known if the

matter has been settled by him out of court as no such

information has been passed on to the court. As the

workman is not attending the court for the last so many

dates of hearing there is no way out except to conclude

that he is not interested in the outcome of this reference.

In these circumstances a no dispute award is hereby passed

in this case and the reference sent by the Govt. of India to

this Tribunal stands disposed of accordingly.

Dated: 11.01.2012

Satnam Singh, Presiding Officer

ubZ fnYyh] 8 Qjojh] 2012

dkñvkñ 885.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj chñ lhñ lhñ ,yñ

,oa izca/k ra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/

k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k

/kuckn uñ&2 ds iapkV ¼lanHkZ la[;k 26@2006½ dks izdkf'kr djrh

gS] tks dsUnzh; ljdkj dks 08-02-2012 dks izkIr gqvk FkkA

[lañ ,yñ 20012@06@2006&vkbZñvkjñ¼lh&1)]

Mhñ,lñ,lñ Jhfuokl jko] MsLd vf/kdkjh

New Delhi, the 8th February, 2012

S.O. 885.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 0f 1947), the Central

Government hereby publishes the Award (Ref. 26/2006)

of the Central Govt. Indust. Tribunal-cum-Labour Court

No. 2, Dhanbad as shown in the Annexure, in the

Industurial Dispute between the employers in relation to

the management of M/s. BCCL,and their workman which

was received by the Central Government on 08/02/2012.

[No-L-20012/06/2006-IR(C-I)]

D.S.S. Srinivasa Rao, Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL (NO. 2)

AT DHANBAD.

PRESENT

Shri Kishori Ram,

Presiding Officer.

In the matter of an Industrial Dispute under Section 10(1)

(d) of the I.D. Act., 1947.

Peference No. 26 of 2006.

Parties: Employers in relation to the management of

Kusunda Area of M/s. BCCL and their workman.

2154

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

Appearances:

On behalf of the workman

None

On behalf of the management

Mr. U.N. Lal, Ld.

Advocate

State : Jharkhand

Industry : Coal

Dated, Dhanbad, the 18th Jan., 2012.

AWARD

The Government of India, Ministry of Labour, in

exercise of the powers conferred on them under Section

10(1)(d) of the I.D. Act., 1947 has referred the following

dispute to this Tribunal for adjudication vide their Order

No. L-20012/6/2006-IR (CM-1) dated 1.6.2006.

SCHEDULE

"Whether the contention of the management of

BCCL, Kusunda Area that Sh. Suresh Mallah was

dismissed from service w.e.f. 25.6.2002 before his

death on 1.5.2004 is correct? If so, whether the said

dismissal was just, fair and legal? 2. If answer to (1)

above is in the negative, whether the demand of the

NCWC that Smt. Asha Devi, wife of Late Sh. Suresh

Mallah be given employment under the provisions

of NCW A and paid monetary compensation pending

such employment, justified?"

2. None represented the Union/workman nor written

statement filed on behalf of the Union/workman concerned/

petitioner. Mr. U.N. Lal, the Ld. Advocate for the

management, is present. From the perusal of the case

record, it is clear that despite Regd. Notices dtts. 29.10.2010,

Show causes dt. 4.3.2011 and 16.11.2011 to the Union

General Secretary, on the address of the Union as provided

in the Reference Order dt. 01.06.2006, and earlier Regd.

Notices, the Union/workman/petitioner all along did not

appear since 16.10.2007 pending for filing W.S. on behalf

of the petitioner concerned.

whereas Mr. U.N. Lal, the Ld. Advocate for the

management from 10.3.2008 (later on) has been present to

represent the management. The present reference as per

schedule involves the issue dismissal of workman Suresh

Mallah w.e.f. 25.6.2002 prior to his death on 1.5.2004 and

about the employment of his wife Asha Devi. But the

conduct of the Union as well as the petitioner shows their

disinterestedness in pursuing the case of the year 2006.

Under these circumstances, proceeding with the case

for adjudication for indefinite time is futile. Hence the case

is closed and accordingly the order is passed.

Kishori Ram, Presiding Officer.

ubZ fnYyh] 8 Qjojh] 2012

dkñvkñ 886.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj lhñlhñ fyfeVsM

,oa ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp]

vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/

kdj.k] /kuckn uñ&1 ds iapkV ¼lanHkZ la[;k 24@2006½dks izdkf'kr

djrh gS] tks dsUnzh; ljdkj dks 08@02@2012 dk izkIr gqvk FkkA

¼lañ ,y&20012@113@2005&vkbZ vkj ¼lh&1½

Mhñ,lñ,lñ Jhfuokl jko] MsLd vf/kdkjhA

New Delhi, the 8th February, 2012

S.O. 886.—In pursuance of Section 17 of the

Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 24/2006)

of the Central Government Industrial Tribunal-cum-

Labour Court-1, DHANBAD, as shown in the Annexure

in the Industrial Dispute between the employers in relation

to the management of M/s. C.C. Ltd, and their workman,

which was received by the Central Government on

08/2/2012.

[No. L-20012/113/2005-IR(C-1)]

D.S.S. Srinivasa Rao, Desk Officer.

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL NO. I, DHANBAD.

In the matter of of a reference U/S/ 10(1) (d) (2A) of the

Industrial Disputes Act, 1947.

Reference No. 24 of 2006.

Parties : Employers in relation to the management of

Argada Colliery of M/s. C.C. Ltd.

AND

Their Workmen.

Present : Shri H.M. Singh,

Presiding Officer.

Appearances :

For the Employers

Shri D.K. Verma, Advocate.

For the Workmen

Shri

Mukherjee,

Advocate.

State : Jharkhand. Industry:

Coal.

Dated, the 30-1-2012.

AWARD

By order No. L-20012/113/2005-IR-(C-I) dated 19.12.05

the Central Government in the Ministry of Labour has, in

exercise of the powers conferred by clause (d) of sub-

section (1) and sub-section (2A) of Section 10 of the

Industrial Disputes Act, 1947, referred the following dispute

for adjudication to this Tribunal:

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

2155

"Whether the demand of the Coal Fields Mazdoor

Union from the management of CCL, Argada Colliery

that the date of birth of Sh. Chandra Shekhar Pandey

be corrected as 12.2.49 on the basis of Mining Sirdar

Certificate, justified? If so, to what relief is the

workman entitled?"

2. The case of the concerned workman, Chandra

Shekhar Pandey, is that he was originally appointed at Sirka

Colliery, as Prop. Mazdoor on 1.4.67. At the time of

appointment his date of birth was recorded as 12.2.1949.

He was under the impression that his date of birth was

recorded in Form 'B' Register as 12.2.49 after nationalisation

of the colliery. Some interested person with some ulterior

motive changed the date of birth of the concerned workman

in the Form 'B' Register of the nationalised colliery as

1.2.1946 and also 1.7.46. In the Year 1987 the management

issued a service except to the concerned workman recording

therein his date of birth as 1.7.46. He submitted to the

management that his date of birth is 12.2.49 as per Gas

Testing Certificate and as per Mining Sirdarship Certificate

issued by the DGMS, and as per 1.1. 76 the date of birth as

recorded in the Gas Testing and Mining Sirdar Certificate

shall be accepted as final. As per School Leaving Certificate

the date of birth of the concerned workman is 12.2.49. He

repeatedly demanded for recording his date of birth as

12.2.49 but unfortunately the anti-labour management

issued notice for his retirement w.e.f. 28.2.2006. The Union

on behalf of the concerned workman raised an industrial

dispute before the ALC (C), Hazaribagh but the same ended

in failure due to the adamant attitude of the management.

Therefore, Govt. of India, Ministry of Labour, referred the

dispute to this Tribunal for adjudication. The action of the

management is not recording date of birth as 12.2.49 was

illegal, arbitrary, unjustified and against the mandatory

provision of 1.1.76.

Under the above facts, it has been prayed that the

Hon'ble Tribunal be pleased to answer the reference in

favour of the workman by directing the management to

record his date of birth as 12.2.49 and in the event of illegal

retirement from 28.2.06 the workman be reinstate in service

with full back wages.

3. The case of the management is that the concerned

workman joined the Coal Company in the year 1967 and the

first time in the year 2004 the sponsoring union raised the

industrial dispute for correction of the date of birth of the

concerned workman which is not maintainable. The Hon'ble

Supreme Court in catena of cases laid down that the demand

for correction of date of birth at the time of retirement or at

the fag end of the career is not maintainable and such

activities was depricated by the Hon'ble Supreme Court.

He retired from the service of the company on

superannuation w.e.f. 28.2.2006. The date of birth of the

concerned workman is recorded as 12.2.1946 in the Form 'B'

the particulars recorded in Form 'B' Register. Register. Form 'B'

Mines Act and the Rules framed thereunder and the entries

made therein has got force. Service Excerpt was issued to

the concerned workman in the year 1987 showing his date

of birth as 1.7.1946 and the concerned workman returned

the said service excerpt without raising any objection

regarding his date of birth. In the year 1991 the concerned

workman was subjected to Age Determination Committee/

Medical Board for assessment of his age/date of birth. The

Age Determination Committee/Medical Board assessed his

date of birth as 12.2.1946, which was communicated to the

concerned workman vide letter No. 2245 dated 25.4.1991.

After receiving the letter he did not raise any objection.

The date of birth recorded in Mining Sirdar Certificate is

not acceptable as the workman concerned passed the

aforesaid examination after his appointment.

It has been prayed that the Hon'ble Tribunal be

pleased to hold that the demand of the union for correction

of date of birth of the concerned workman is not legal and

justified and he is not entitled to any relief.

4. Both the parties have filed their respective

rejoinders admitting and denying the contents of some of

the paragraphs of each other's written statement.

5. The concerned workman produced himself as WW-

1, Chandra Sekhar Pandey, and proved Exts. W-1, W-2 &

W-3.

The management has produced MW-1, Umesh Singh,

and proved documents as Exts. M-1 to M-4.

6. Main argument advanced on behalf of the

concerned workman is that his date of birth is 12.2.49 which

was recorded in Form 'B' Register. After nationalisation his

date of birth has been recorded as 1.2.46. In the year 1987

he was issued service excerpt in which his date of birth has

been recorded as 12.2.1946 and he has been wrongly

superannuated w.e.f. 28.2.2006. Management did not refer

him to Medical Board for assessment of his age.

7. The management argued that the date of birth of

the concerned workman has been recorded in service record

as 12.2.1946 and the same was communicated to him, but

he did not raised any objection. He raised objection in the

year 1991. So his age cannot be considered on the basis of

Mining Sirdar Certificate. He was appointed on 1-4-67 and

obtained the Sirdar's Certificate 8 years after his date of

appointment. It may show that he had not given this

certificate at the time of appointment. If his date of birth is

considered as 12.2.49 then he cannot be appointed on 1.4.67

just after attaining the age of 18 years 1 month & 19 days.

Moreover, in his evidence WW-1 in cross-examination

stated that I joined the company in 1967. This dispute has

been raised by me for the first time in 2004. I have produced

certificate before joining service. This Gas Testing

2156

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

Certificate dated 7.10.1977 which has got no relevancy

because he entered into service in the year 1967. Mining

Sirdar's Certificate dated 24.5.1975, it only shows that it

has been manufactured and falsely date of birth has been

entered as 12.4.49. Moreover, Ext. M-2, Form 'B' Register

cannot be denied which has been maintained under Mines

Act, in which date of birth of the concerned workman has

been recorded as 12.2.46. In Service Excerpt the date of

year has been mentioned as 1946 in which the concerned

workman has also signed, so it cannot be denied later on.

In Ext. M-1 also his date of birth has been found 1946.

8. The management has referred 2007(3) JLJR 470 in

which Hon'ble Jharkhand High Court laid down - "Labour

and Industrial Laws — Date of birth correction — reliance

made on Sirdar's Certificate and School Transfer Certificate

issued after about 6-7 years of the appointment —these

certificates having been issued much after appointment

cannot be considered to be conclusive proof of date of

birth - when the case has been fully considered by the

Date of Birth Committee which found the date of birth as

entered in Statutory Form B Register as correct on the

basis of service records, raising dispute about date of birth

of the employee at the fag end of his service is not

permissible."

9. Considering the above facts and circumstances, I

hold that the demand of the Coal Fields Mazdoor Union

from the management of CCL, Argade Colliery that the date

of birth of Sh. Chandra Shekhar Pandey be corrected as

12.2.49 on the basis of Mining Sirdar Certificate is not

justified. Hence, the concerned workman is not entitled to

any relief.

This is my Award.

H.M. Singh, Presiding Officer

ubZ fnYyh] 8 Qjojh] 2012

dkñvkñ 887.—vkS|ksfxd fookn vfèfu;e 1947 ¼1947

dk 14½ dh èkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj chñlhñlhñ,yñ

,oa ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp

vuqcaè esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vfèdj.k /kuckn uñ&1 ds iapkV ¼lanHkZ la[;k 08@ 2002½ dks

izdkf'kr djrh gS tks dsUnzh; ljdkj dks 08&02&2012 dks izkIr gqvk

Fkk

[lañ ,y&20012@401@2001 vkbZ vkj ¼lh& 1½]

Mhñ,lñ,lñ,lñ jko

MsLd vf/kdkjh

New Delhi, the 8th February, 2012

S.O. 887.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 08/2002)

of the Central Government Industrial Tribunal-cum-

Labour Court-1, Dhanbad, as shown in the Annexure in

the Industrial Dispute between the employers in relation to

the management of M/s. BCCL, and their workman, which

was received by the Central Government on 08.02.2012.

[No. L-120012/401/2001-IR(C-1)]

D.S.S. SRINIVASA RAO

DESK OFFICER

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNALNO.1, DHANBAD

In the matter of a reference U/s.10(1)(d)(2A) of the

Industrial Disputes Act, 1947.

Reference No. 8 of 2002

Parties: Employers in relation to the management of

Bararoo Colliery of M/s. BCCL.

AND

Their Workman

Present: Shri H.M. Singh

Presiding Officer.

APPEARANCES:

For the Employers

Shri D.K. Verma, Advocate

For the Workmen

None.

State: Jharkhand Industry :

Coal

Dated, the 31.1.2012

AWARD

By Order No.L-20012/401/2001-IR(C-1) dated 10.1-

2001 the Central Government in the Ministry of Labour

has, in exercise of the powers conferred by clause (d) of

sub-section (1) and sub-section (2A) of Section 10 of the

Industrial Disputes Act, 1947, referred the following dispute

for adjudication to this Tribunal:

"Whether the action of the management of BCCL,

Bararoo Colliery in stopping Shri Rashik Bouri from Joining

duty after absence is justified? If not to what relief is the

concered workmen entitled?

2. This reference case was fixed on 9.7.2010 for

adducing evidence by the management on preliminary point.

But inspite of giving serveral adjournments none appeared

on behalf of the workman to cross-examine the

management's witness. it seems that neither the concerned

workman nor the sponsering union is interested to contest

the case. Shri D.K. Varma, appearing on behalf of the

management submitted that since none is taking any interest

on behalf of the workman necessary order may be passed

in this case.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

2157

In view of such circumstances, I pass a 'No. Dispute' Award

in this reference case.

Sd/

H.M. SINGH,

Presiding Officer.

ubZ fnYyh] 8 Qjojh] 2012

dkñvkñ 888.—vkS|ksfxd fookn vfèfu;e 1947 ¼1947

dk 14½ dh èkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj chñlhñlhñ,yñ

,oa ds izcaèr= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp

vuqcaè esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vfèdj.k /kuckn uñ&2 ds iapkV ¼lanHkZ la[;k 26@ 2005½ dks

izdkf'kr djrh gS tks dsUnzh; ljdkj dks 08&02&2012 dks izkIr gqvk

Fkk

[lañ ,y&20012@270@2004 vkbZ vkj ¼lh& I½]

Mhñ,lñ,lñ,lñ jko

MsLd vf/kdkjh

New Delhi, the 8th February, 2012

S.O. 888.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 26/2005)

of the Central Government Industrial Tribunal-cum-

Labour Court-2, Dhanbad, as shown in the Annexure in

the Industrial Dispute between the employers in relation to

the management of M/s. BCCL, and their workman, which

was received by the Central Government on 08.02.2012.

[No. L-20012/270/2004-IR(C-I)]

D.S.S. SRINIVASA RAO

DESK OFFICER

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL (NO. 2) AT DHANBAD

Present

Shri Kishori Ram,

Presiding Officer.

In the matter of an Industrial Dispute under Section 10(1)

(d) of the I.D. Act., 1947.

REFERENCE NO. 26 OF 2005

Parties: Employers in relation to the management of South

Balihari Colliery of P.B. Area, of M/s BCCL and

their workman.

APPEARANCES

On behalf of the workman :

Late H. Nath, Ld. Advocate;

On behalf of the

Mr. U.N. Lal, Ld. Advocate;

management

State : Jharkhand Industry : Coal

Dhanbad, Dated, the 18th January, 2012

AWARD

The Government of India, Ministry of Labour, in

exercise of the powers conferred on them under Section

10(1)(d) of the I.D. Act., 1947 has referred the following

dispute to this Tribunal for adjudication vide their Order

No. L-20012/270/2004-I,R. (C-1) dt. 24.3.2005.

SCHEDULE

"Whether the demand of the Rashtriya Colliery

Mazdoor Congress from the managment of South

Balihari Colliery of M/s BCCL for paying the wages

of Cat. VI instead of Cat. III to Sri Rajaram Paswan,

Haulage Operator is justified? If so, to what relief is

the concerned workman entitled and from date?"

2. None represented the Union/workman nor any w.w.

(Workman witness) produced evidence, for which several

times Regd. Notices issued to the Union Vice President,

RCMS, Bhuli, B-Block on its address as provided in the

Reference Order dt. 24.3.2005 vide Regd. Notices dt.

26.11.10, 16.2.2011, 22.07.2011 and 16.11.2011, yet not a

single witness for the evidence of the workman has been

produced despite its pending since 30.8.2006.

The present Reference relates to an issue about the

payment of wages of Cat. VI in stead of Cat. III to workman

Raja Ram Paswan, Haulage Operator. The Conduct of the

Union and the workman shows their disinterestedness to

contest the suit. Under these circumstances, proceeding

with the case for uncertainity is like pelting stone in the

open sky. Hence the case is closed and accordingly no

dispute award is passed.

Sd/-

Kishori Ram, Presiding Officer

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New Delhi, the 8th February, 2012

S.O. 889.—in pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 191/

2002) of the Central Government Industrial Tribunal-

cum-Labour Court, Nagpur as shown in the Annexure in

the Industrial Dispute between the employers in relation to

the management of WCL and their workman, which was

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THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

received

the

Central

Government

08/02/2012.

[No. L-22012/92/1997-IR(C-II)]

D.S.S. Srinivasa Rao, Desk Officer

ANNEXURE

BEFORE SHRI J.P. CHAND, PRESIDING OFFICER,

CGIT-CUM-LABOUR COURT, NAGPUR

Case No. CGIT/NGP/191/2002

Date: 29.12.2011

Party No. 1 : The Chairman-cum-Managing Director

WCL, Civil Lines, Nagpur.

Versus

Party No. 2 : The General Secretary, Lal Zanda Coal

Mines Mazdoor Union, C/o, WCL, Coal

Estate, Civil Lines, Nagpur.

AWARD

(Dated: 29th December, 2011)

In exercise of the powers conferred by clause (d) of

sub-section (1) and sub-section 2(A) of section 10 of

Industrial Disputes Act, 1947 (14 of 1947) ("the Act" in

short), the Central Government has referred the industrial

dispute between the employers, in relation to the

management of WCL and their Union, for adjudication, as

per letter No. L-22012/92/97-IR (C-II) dated 31.10.2002,

with the following schedule:—

"Whether the demand of Lal Zanda Coal Mines

Mazdoor Union, Nagpur for regularization/

absorption of 31 Canteen workers at Headquarters

of WCL, Nagpur is legal and justified? If yes, to what

relief they are entitled to?"

List of Canteen Workers

Shri Gyaneshwar Dularwar

Manager

Shri Sitaram Khirsagar

Cook

Shri Punna Swami Naidu

Cook

Shri K.N. Meshram

Cook

Shri Rupchand Bombarde

Cook

Shri Madhu Sahare

Assistant Cook

Shri Chandan Jambhulkar

Assistant Cook

Shri Vinod Chivade

Waiter

Shri Hansraj Bhaisare

Waiter

10. Shri Badal Bombarde

Waiter

11. Shri Arun Gharde

Waiter

12. Shri Amirchand Bharti

Waiter

13. Shri Tarachand Gharde

Waiter

14. Shri Jitendra Jambhulkar

Waiter

15. Shri Kishor Chivade

Waiter

16. Shri Siddharth Gedam

Waiter

17. Shri Papayya Katrapwar

Waiter

18. Shri V.D. Dongre

Waiter

19. Shri Ramchandra Bombarde

Waiter

20. Shri Masaram Bombarde

Waiter

21. Shri Kashiram Uikey

Waiter

22. Shri Bindulal Thakur

Waiter

23. Shri Deepak Paranjape

Waiter

Daily Wager

Shri Lakeshwar Gharde

Shri Manohar Gharde

Shri Rajesh Sharma

Shri Rajesh Mane

Shri Sudhir Nandagawari

Shri Sudhakar Rangari

Smt. Devkabai Uikey

Smt. Sindhubai Naidu

2. On receipt of the reference, the parties were noticed

to file their respective statement of claim and written

statement and accordingly, the Union "Lal Zanda Coal

Mines Mazdoor Union", filed the statement of claim on

behalf of 31 Canteen workers and the management of the

WCL ("Party No. 1" in short) filed its written statement.

The fact as pleaded in the statement of claim by the

union is that at the Headquarters of WCL, there is a canteen,

which is run by the co-operative society under the name

and style of the "Western Coalfields Employees(HQ)

Consumer Co-operative Society" and the said society is

registered under the Societies Act and the Canteen is

situated in the building of WCL Headquarters at Coal Estate,

Nagpur and at the instance and initiative of the management

of WCL, the said canteen was registered with the Directorate

of Canteens, Ministry of Personnel, Public Grievances and

Pensions, Department of personnel and Training,

Government of India in the year 1985 and the registration

number allotted to the canteen was A-19 C and the party

no. 1 owns the canteen building and canteen management

does not pay any rent for the same and party no.1 also

provides furniture, electricity, water, utensil and other

requisite materials required for the canteen and party no. 1

does the maintenance of the canteen and pays the wages

of the employees of the canteen by way of subsidy and in

the year 1991, in the issue of departmentalisation of the

canteen and its workers registered with Registrar of

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

2159

Canteens, Government of India, the Hon'ble Apex Court

held that the canteen should be converted into departmental

canteens and the employees concerned should be brought

under the roll of the managment and in compliance with the

directives of the Hon'ble Apex Court, as well as the

Directorate of Canteens, similar canteens functioning in

different Governments Departments, namely, office of

Accountant General, Maharashtra, Indian Bureau of Mines,

Income-tax NEERI etc. were brought under the management

and the union approached the party no. 1 to comply the

directives of the directorate of canteens in tune with orders

issued by the Hon'ble Apex Court, but the party no.1 refused

to act in the matter and the party no.1 fixes the rate of

estables, tea, coffee etc. provided in the canteen and the

party no.1 provide Identity card and uniforms to the

employee of the canteen and the union raised the matter of

regularization of the workers of the canteen for conciliation,

which was ultimately culminated in this reference. Prayer

has been made for a direction to party no. 1 for

regularization/absorption of the 31 canteen workers at

headquarters with all consequential benefits.

3. The party no. 1 in its written statement has pleaded

inter-alia that prima-facie there is no valid industrial

dispute to be adjudicated upon, as there is no employer-

employee relationship between the party no. 1 and the

canteen workers and a valid industrial dispute can be raised

only when, there is dispute between the employer and

workmen and the head office of WCL at Nagpur is not a

mine and it has no statutory obligation to run a departmental

canteen at headquarters and in absence of any statutory

obligation to run a departmental canteen, the persons

working therein cannot be deemed to be employed by WCL

and there would be no legal obligation to regularize/absorb

them. The further case of the party no. 1 is that the issue of

running a canteen came up for deliberation in JBCCI and it

was agreed in NCWA-III that during the agreement period,

the management would provide canteen in each of the

colliery/establishments and the same would not be run by

contractors and the canteen at WLC headquarters Nagpur

was setup under the management and control of Western

Coalfields Employees (HQ) consumer Co-operative society

and the Co-operative society was registered under

Maharashtra co-operative societies Act. 1961 in the year

1983 and the society is a legal and independent body

carrying out its business within the frame work of its by-

laws and the management of WCL has no control over it

activities and the society is managed by its governing body

consituted as per the bylaw and the governing body is

elected by the general body of the members of the society

and therefore, the employees who are appointed by the

society for carrying out its business have no relationship

of employer-employee of WCL and the society under

misconception or for the reasons best known to them got

the canteen registered with the Director of Canteens,

Government of India, Director of Personnel and Training in

the year 1986 and there was direct communication between

the co-operative canteen and the office of the Director of

the Canteen and the management of WCL had no hand in

it and the said registration remained valid only for one

year, as the society discontinued sending its annual

subscription and the society did not renew the registration

by paying the annual subscription after March, 1988, the

same automatically lapsed and became redudant and

inoperative from April, 1988. The further case of party no. 1

is that the canteen is managed and controlled directly by

the co-operative society the same is evident by the facts

that all the persons working in the canteen have been

appointed by the canteen and the management of WCL

has no say in it, so much so that, they are not even

consulted, the work to individual person is allotted by the

governing body/management committee of the society and

their wages/salary are fixed by the society without any

consultation with the management, their attendance is

maintained by the society, their wages/salary are directly

paid by the society out of its funds, their leaves etc. are

granted by the society, the grievances of the workers of

the canteen are resolved through negotiation between them

and the management is not concerned in the same and the

society is maintaining its fincial accounts quite independent

of WCL and the accounts are annually audited by the

auditors appointed by the society itself as per their bylaws

and the assistance of WCL to the canteen is only in the

form of grant and aid, apart from providing accommodation,

electricity, water supply, furniture and equipments as a

welfare measures and the financial subsidy is paid by WCL

only for the purpose of supply of eatables by the canteen

at cheaper rates and the institutions named by the union,

where canteens run by the Government department at

Nagpur have been departmentalized and workers

regularized are quite different to WCL and WCL is not a

department of the Government and it is a semi-government

organization/public sector undertaking and therefore any

rule or law applicable to government and government

department will not be automatically applicable to the

management of WCL, unless and until specifically provided

so, and therefore, the claim of the union cannot be decided

by comparison with the concerned organization/

departments and rate of eatables are fixed by canteen

managing committee consituted by the co-operative

canteen society and identity cards have been issued to the

canteen workers for security reasons, in order to prevent

entry of unauthorized persons to the premises of the

headquarters and therefore the union is not entitled for

any claim.

4. Besides placing reliance on documentary evidence,

both the parties have adduced oral evidence in support

their respective claims. Manoj Hariprasad Sarabhai, the

secretary of the union and one Narayan N. Morkhe have

been examined as witnesses on behalf of the union,

whereas, one S.N. Sanyyal a Personal Manager has been

2160

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

examined as a witness by the Party No. 1. The evidence of

the two witnesses examined by the Union is in the same

line of the stands taken by the Union in the statement of

claim. Likewise, the evidence of the witness examined of

behalf of the party No. 1 is also in the line of the stands

taken in the written statement by party No. 1.

The witness no. 1 for the union. Manoj Sarabhai in

his cross-examination has stated that there was a decision

about running of canteen in the Coal Wage Agreement. He

has also admitted that the registration of the canteen with

the Director of canteens was not renewed and out of the

31 canteen workers, three persons namely, Punna Swami,

V.D. Dongre and Jambhulkar are no more and he has not

filed any document to show that WCL is a party to the

appointment of canteen workers.

The witness no. 2 N.R. Morkhe, in his cross-

examination has stated that the society which runs the

canteen is registered under the co-operative societies Act

and it has its governing body and all policy decisions are

taken by the governing body and the committee has not

taken the decision for closing or handing over the canteen

and in 1985, they received the registration from the Director

General of Canteens and the same was subjected to renewal

every year and he cannot say the exact year in which it

was lastly renewed and in 1993, they had approached the

Director of Canteen for renewal of registration, but the

Director refused to renew and advised them to handover

the canteen to the management. He has admitted that WCL

is a corporation having its separate service conditions

and rules and the society has appointed the employees,

who are working in the canteen and the society marks their

attendance and prepare the wage sheet and the society

pays them their wages.

The witness examined on behalf of the party no. 1

has been cross-examined at lenth regarding the facilities

extended by the WCL to run the canteen. As it is the

admitted case of the party no. 1 that WCL provides

furniture, electricity, water, utensil by way of welfare

measure and also give subsidy so that the canteen should

supply the eatables at cheaper rate, the facts brought out

in the cross-examination of the witness for party no. 1 are

of no help to the case of the Union.

5. At the time of argument, it was submitted by the

learned advocate for the union that in view of the judgment

of the Hon'ble Apex Court in Writ Petition No. 6189-7044

and 8246-55 (C.K. Zha and other and P.N. Sharma and

others) in regard to non-statutory departmental/co-

operative canteen employees the canteen workers working

in the canteen situated at the Head Office of WCL Nagpur

are entitled for regularization/absorption in WCL and the

party no. 1 owns the canteen building and provides

furniture, electricity, water, utensils and other requisite

materials required for the canteens and also maintains the

canteen and pay wages of the employees by way of subsidy

and in view of the direction of the Director of Canteens

WCL is bound for regularization/absorption of the 31

canteen worker.

In support of such contentions, the learned

advocate for the union has placed reliance on the decisions

reported in 1990 II CLR-261 (MMR Khan and others Vs.

Union of India), 2008 II CLR-988 (GM ONGC, Silcer Vs.

ONGC Contractual Workers union) 2007 (114) FLR-510

(Punjab National Bank Vs. Punjab National Bank Canteen

Workers Union) and 2011 (2) Mh. L.J. 313 (Workmen of

Taroda open Cast Mine of WCL Vs. Central Government

Industrial Tribunal).

6. On the other hand, it was submitted by the learned

advocate for the management that the ruling of the Hon'ble

Apex Court has not been filed by the union and the

documents filed by the union are the instructions of the

Government of India, Director of Canteens and such

instructions are not endorsed either to WCL management

or the co-operative canteen functioning at WCL and since

the canteen in question is not covered by the memorandum

and from the documents it is found that the instructions

are meant for non-statutory department/co-operative

canteen located in Central Government Offices and not in

Public Sector Undertaking, the same has no application to

the WCL and the co-operative canteen is excluded from

the purview of the Government Memorandum and it is

clear from the evidence on record that the canteen though

was registered with the director of canteen, the registration

was not renewed after 31.3.1986 and the union has not

filed any proof that the registration was renewed after

31.03.1986 and non of the essential conditions required by

the Government Memorandum were satisfied by the

cooperative canteen of WCL, warranting its

departmentalisation and absorption of its employees and

the facilities given to the canteen by the WCL is for the

smooth functioning of the canteen and to facilitate supply

of eatable at cheaper rate, keeping in view the provisions

of the NCWA and the management of WCL has no control

over the canteen and the co-operative society itself is in

full control of the canteen and as such, the canteen workers

cannot be regularized or absorbed.

7. Perused the documents filed by the parties. From

the oral evidence and so also the documentary evidence, it

is found that the Western Coalfields Employees (HQ)

Consumer Co-operative society is running the canteen in

question. In the statement of claim and so also in the

evidence, it has been clearly mentioned by the union that

the canteen is run by the co-operative society. It is also

found from the documents that as per the NCWA, the

management of WCL is providing different facilities

including payment of certain amount to the canteen

managing committee to enable the canteen to supply food

articles at cheaper prices. The appointment of the workmen

in the canteen, payment of wages to them and the

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

2161

administrative control are being done by the co-operative

society. The directive of the Government of India, is

regarding the non-statutory departmental/co-operative

canteen/Tiffin rooms located in the Central Government

offices. Admittedly, WCL is not a Central Government

Office and as such, the directives of the Director of Canteens

are not applicable to the co-operative canteen WCL. As

the facts and the circumstances of the case at hand are

quite different from the facts and the circumstances of the

cases referred in the decisions cited by the learned advocate

for the Union, with respect, I am of the view that the said

decisions have no direct application to this case.

From the materials on record, it is found that the

demand of the union for regularization/absorption of the

canteen workers is not justified. Hence, it is ordered.

ORDER

The demand of Lal Zanda Coal Mines Mazdoor

Union, Nagpur for regularization/absorption of 31 Canteen

workers at Headquarters of WCL, Nagpur is legal and

justified. The workers are not entitled to any relief.

J.P. Chand, Presiding Officer

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New Delhi, the 8th February, 2012

S.O. 890.—In pursuance of Section 17 of the

Indutrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 32/2002)

of the Central Government Industrial-Tribunal-cum Labour

Court, Nagpur as shown in the Annexure, in the Industrial

dispute between the employers in relation to the

management of WCL and their workman, which was

received by the Central Government on 08.02.2012.

[No. L-22012/34/1993-IR(C-II)]

D.S.S SRINIVASA RAO, Desk Officer

ANNEXURE

BEFORE SHIR J.P. CHAND, PRESIDING OFFICER,

CGIT-CUM-LABOUR COURT, NAGPUR

Case No. CGIT/NGP/32/2002

Date: 20.01.2012

Party No. 1 : The Authority Manager,

Saoner Mine No. 1, WCL, Saoner Project,

Tah: Saoner, Distt. Nagpur.

Versus

Party No. 2 : Shri Jageshwar S/o. Bhaiaji Bhute,

(Dead)

(a) Smt. Jaya W/o. Jageshwar Bhute

(b) Akshya J. Bhute S/o. Jageshwar Bhute

Age 10 years, student

All are plot No. 5, Mahalgi nagar,\

Hudkeshwar Nagar, Nagpur.

Substituted as per order dated 23.02.2007

AWARD

(Dated: 20th January, 2012)

In exercise of the powers conferred by clause (d) of

sub-section (1) and sub-section 2(A) of section 10 of

Industrial Disputes Act, 1947 (14 of 1947) ("the Act" in

short), the Central Government has referred the industrial

dispute between the employers, in relation to the

management of WCL and their workman Shri Jageshwar

Bhute, for adjudication, as per letter No.L-22012/34/93-IR

(C.II) dated 20.05.93, with the following schedule:—

"Whether the action of the management of Saoner

Project of WCL in terminating the services of Shri

Jageshwar S/o. Bhaiyaji Bhute w.e.f. 21/23.11.1989 is

legal and justified? If not, to what relief the concerned

workman is entitled?"

On receipt of the reference, the parties were noticed

to file their respective statement of claim and written

statement and accordingly, the workman. Shri Jageshwar

Bhute. ("the workman" in short) filed his statement of claim

and the management of the Saoner Project of WCL ("Party

No. 1" in short) filed its written statement.

The case of the workman as projected in the

statement of claim was that he joined as an apprentice

electric fitter with the party no. 1 on 15.11.1976 and he work

as such, till 01.12.1977 and thereafter, he worked as a regular

employee in the electric department of party no. 1 and

discharged his duties satisfactorily and while he was on

duty on 14.10.1988, he sustained injury on his right foot

and he took treatment in the dispensary of party no. 1 on

14th and 15th October, 1988 and as he was not cured, he

2162

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

left Saoner to take treatment from a private doctor at Nagpur

and he sent information to party no. 1, by sending medical

certificates dated 19.10.1988 and 17.10.1988, in support of

the fact of his undertaking treatment from the private doctor

at Nagpur and he also requested the party no. 1 to treat the

period of his absence as sick leave, by submitting an

application and doctor P. R. Bhasme, as per the medical

certificate dated 20.04.1989 advised him to take rest for two

months and he also sent the said certificate to party no. 1

and he was not fit to resume his duties till 25.11.1989 and

he was declared fit w.e.f. 26.11.1989, as per the fitness

certificate given by doctor D.K. Kadasne and the party

no. 1 without taking into consideration about the intimation

sent by him, served a charge sheet on him on 01.04.1989

and he submitted his explanation on 17.04.89 alongwith

the medical certificates and the party no.1 did not consider

his explanation and the medical certificates submitted by

him in support of his illness and all of a sudden, served the

order of termination dated 21.11.1989 without holding any

departmental enquiry, which was against the principles of

natural justice. It was the further case of the workman that

during the proceedings before the ALC (C), Nagpur, he

came to know that the party no. 1 held an ex parte enquiry

against him and no intimation or notice of the enquiry was

served on him and he was also informed orally about the

enquiry being conducted by the enquiry officer, Shri R.

Bharadwaj and he preferred an appeal to the General

Manager, WCL, Nagpur Area on 06.01.1990 against the

order of termination and the appellate authority did not

consider the appeal and vide letter dated 30.08.1991/

30.09.1991 intimated him that the appeal for reinstatement

cannot be considered and the charges leveled against him

were baseless and the order of termination is bad in law. It

was also pleaded by the workman that the party no. 1

committed grave illegality and irregularity and acted against

the principles of natural justice by conducting an ex parte

enquiry, without informing him the date and place of the

enquiry and before the order of termination of services, no

show cause notice was issued to him and the punishment

is neither just not proportionate to the misconduct and

therefore he is entitled for reinstatement in service with

continuity and full back wages.

3. It is necessary to mention here that during the

pendency of the reference, the workman died and as such,

his legal heirs namely, Smt. Jaya Jageshwar Bhute, Akshay

Jageshwar Bhute and Amruta Jageshwar Bhute were

substituted.

4. The party no. 1 in its written statement has pleaded

inter-alia that since the appointment of the workman, he

was in habit of remaining regularly absent from his duty,

without permission or leave and he remained continuously

absent, without any prior permission or approval, from

14.10.1988 to 01.04.1989, for about 7 months and due to his

continues absence, management had to face all sort of

difficulties in the electrical department and as the act of

continues absence amounted to misconduct, in terms of

standing orders under which, the services of the workman

were governed, charge sheet dated 01.04.1989 was served

on him and the workman was asked to give detailed

explanation for remaining absent from duty without

permission or approval and the workman submitted his

explanation to the charge sheet on 17.04.1989 stating the

charges to be baseless and that he was injured while on

duty on 14.10.1988 and he was treated at the dispensary at

Saoner on 14.10.1988 and 15.10.1988 and as he did not

recover from the injury, he went to Nagpur and was under

the treatment of a private doctor and the Manager of Saoner

Project, vide his letter dated 13.05.1989, asked the workman

to report himself at Walni hospital immediately on receipt

of the letter, as the reply given by him on 17.04.1989 was

found not to be correct and the certificate given by him

was from a private doctor, but the workman did not give

any reply to the said letter and management has provided

full medical aid free of cost to the employees and their

entire family members and it is not understood as to how

the workman consulted a private doctor, without availing

the free medical aid as provided by the management and

the workman was cautioned by letter dated 13.05.1989 and

was asked to report at Walni hospital of WCL and he was

intimated that in case of his failure to report at the afore

stated hospital, action would be taken against him for

unauthorized absence and as the workman did not comply

to the above letter, the management had no other alternative

than to initiate disciplinary action against him and Shri R.

Bharadwaj, senior personal officer, Saoner Project was

appointed as the enquiry officer and Shri Bhaskar Reddy,

under manager was appointed as the management

representative and the enquiry officer intimated the

workman regarding the sitting of the enquiry and the date

fixed for the enquiry and to appear on 25.07.1989 at

4.00 PM, but the workman did not turn up for enquiry, so

the enquiry was adjourned to 30.08.1989 and the said date

was also intimated to the workman, however, on 30.08.1989

also, the workman did not appear before the enquiry officer

and the dates of the enquiry were intimated to the workman

by register letter in his residential address as shown in

form 'B' register of the Company and the date of the enquiry

was fixed to 10.11.1989 and information regarding the same

was also sent to the workman by register post and notice

regarding such date of the enquiry was also published in

the local newspaper, Navabharat, a Hindi daily on

31.10.1989 and inspite of the same, as the workman did not

appear on 10.11.1989 before the enquiry officer, the enquiry

officer was compelled to proceed with the enquiry ex-parte

against the workman and the enquiry officer submitted his

report on 18.11.1989, holding the charges leveled against

the workman to have been proved and getting the enquiry

report, the Sub Area Manager of Saoner Project

recommendation to impose the punishment of dismissal

from service to the workman and on the recommended of

the Sub Area Manager, the Manager, of Saoner mines no. 1

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

2163

vide letter dated 21/23.11.1989 passed the order of

dissmissal with immediate effect. It is further pleaded by

the party no. 1 that its action in dismissing the workman

from services is just, proper and legal and the punishment

imposed against is proportionate to the misconduct proved

against him in a properly conducted departmental enquiry

and the workman is not entitled for any relief.

5. As this is a case of termination of the services of

the workman after holding a departmental enquiry, the

validity of the departmental enquiry was taken for

consideration as a preliminary issue and vide order dated

28.07.2006, the enquiry was held to be against the principles

of natural justice and the enquiry is vitiated, on the ground

that the workman was not offered any opportunity for

explaining and making submission on the report of the

enquiry officer and it was necessary in the interest of

natural justice to give a notice to the workman along with

the copy of report of the enquiry officer, calling for his

remarks on the same, which was obligatory.

6. The party no. 1 filed an application for review of

the order passed on V.D.E., but the said application was

rejected by this Tribunal on 01.12.2006.

7. The party no. 1 challenged the order dated

01.12.2006 before the Hon'ble High Court of Judicature at

Bombay, Nagpur Bench, Nagpur in WP No. 6449/2006 and

the Hon'ble Court vide order dated 10.09.2009, set aside

the order dated 01.12.2006 and directed for disposal of the

case as expeditiously as possible. It is necessary to mention

here that the Hon'ble Court accepted the submissions made

on behalf of the party No. 1 that as the workman had already

expired, the only course left open is to proceed on merits of

the matter.

In view of the directions of the Hon'ble High Court,

the case proceeded for decision on merit. However, the

legal representative of the deceased workman did not

appear in the case of contest the same.

8. Perused the record. It had been admitted by the

deceased workman that he had remained absent from

14.10.1988 to 01.04.1989. However, it was the case of the

workman that during the said period, he was under the

treatment of a private doctor for the treatment of the injury

substained by him on his right foot on 14.10.1988 while on

duty. However, on perusal of the medical certificates

produced by the workman in support of such claim, it is

found that the certificates had been obtained by him from

different doctors for suffering for different diseases. The

certificate dated 20.04.1989 issued by doctor P.R. Bhasme

shows that the workman was under his treatment from

16.10.1988 for suffering from Ameabic Hepataties. The

certificated dated 28.08.1989 given by doctor C.N.

Mandlekar shows that the workman was under his

treatment from 28.08.1989 for cronic bronchitis, amonbic

colitis, and aneamia. It is also found from the documents

that the workman was directed to present himself at Walni

hospital of party No. 1 for his medical examination, but he

did not appear for such examination. It appears from the

documents that the plea taken by workman regarding his

illness for remaining absent is not true and it is clear that he

remained unauthorized absent for a period of about seven

months, without prior permission or sanction of leave,which

amounts to misconduct. The punishment imposed against

the workman, therefore, cannot be said to be shockingly

disproportionate. Hence, there is no scope to interfere with

the punishment. Hence, it is ordered:—

ORDER

The action of the management of Saoner Project of

WCL in terminating the services of Shri Jageshwar S/o.

Bhaiyaji Bute w.e.f. 21/23.11.1989 is legal and justified.

Neither the workman nor his legal representatives are

entitled for any relief.

J.P. CHAND, Presiding Officer

ubZ fnYyh] 8 Qjojh] 2012

dkñvkñ 891.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,p-,-,y- ds

izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqca/k esa

fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k&1]

eqEcbZ ds iapkV ¼lanHkZ la[;k 35@2006½ dks izdkf'kr djrh gS] tks

dsUnzh; ljdkj dks 08@02@2012 dks izkIr gqvk FkkA

[¼lañ ,y&42012@102@2005&vkbZ vkj ¼lh ,e&II½]

Mhñ,lñ,lñ Jhfuokl jko] MsLd vf/kdkjh

New Delhi, the 8th February,

S.O. 891.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award Ref. 35/2006 of

the Cent. Govt. Indus. Tribunal-cum-Labour Court No 1,

Mumbai as shown in the Annexure, in the industrial dispute

between the management of Hindustan Aeronautics

Limited, and their workmen, received by the Central

Government on 08/02/2012

[No. L-42012/102/2005-IR(CM-II)]

D.S.S. SRINIVASA RAO, Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL NO. 1

MUMBAI

JUSTICE G.S. SARRAF

Presiding Officer

REFERENCE NO. CGIT-1/35 OF 2006

Parties :Employers in relation to the management of

Hindustan Aeronautics Ltd.

2164

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

And

Their Workman (Dattaraya V. Jadhav)

APPEARANCES:

For the Management

Shri E.S. Asokan, Adv.

For the workman

Shri J.P. Sawant, Adv.

State

Maharashtra

Mumbai, dated the 23rd day of January 2012.

AWARD

1. In exercise of powers conferred under clause (d) of

sub section (1) and sub-section (2A) of Section 10 of the

Industrial Disputes Act 1947 the Central Government has

referred the following dispute for adjudication to this

Tribunal.

Whether the action of the management of HAL in

terminating the services of Sh. Dattaraya V. Jadhav

w.e.f. 21.2.1989 is legal and justified? If not, to what

relief is the workman entitled?

2. According to the statement of claim the second

party workman joined the first party company w.e.f.

25.4.1979. The services of the second party were illegally

terminated without following due process of law. At the

time of his termination the second party was working as

Mechanic 'A' in the Taste Stand Maintenance Department

(666 shop). According to the statement of claim as his

responsibility increased he was required to work more with

the chemical process as a result of which he started

suffering from problems of breathing and lungs.

Somewhere in the month of December 1988 the second

party workman was not feeling well and, therefore, he could

not attend his duties. He underwent medical treatment

under Dr. Avhad from 14.12.1998 to 9.1.1989. The second

party workman forwarded the certificate to officer of the

first party compnay. His doctor advised him complete bed

rest and, therefore, he could not report for duty. The first

party issued a notice to the second party workman for

abandonment of services dt. 2.3. 1989 and directed the

second party workman to report to the Personnel Officer of

the first party by 11.3.1999 or explain his absence. The

second party was not in a position to report for duty on

account of his sickness and he sent a letter dt. 11.3.1989

informing the concerned authority that he was not available

and, therefore, was not in a position to join his duties up to

8.4.1989. The first party, however, terminated the services

of the second party workman w.e.f. 21.2.1989 vide letter

dt. 17.3.1989. According to the statement of claim the first

party did not exercise the powers under clause 18(ii) of the

Certified Standing Orders in a bonafide manner. The first

party ought to have granted opportunity of hearing to the

second party workman. The first party ought to have

conducted enquiry after issuing a charge sheet. The first

party did not give one month's notice pay to the second

party workman in lieu of notice before terminating his

services. The second party workman filed a complaint of

unfair labour practise before Labour Court, Nasik. After

hearing both the parties the Labour Court held vide

judgement dated 2.1.1998 that the complaint was not

maintainable on the ground of lack of jurisdiction. The

second party workman filed a review application before

the Labour Court but the same was dismissed by order

dt. 23.6.2000. The second party workman than raised the

dispute before Regional Labour Commissioner on 1.10.2000.

Since there was no response from the Regional Labour

Commissioner the second party workman approached the

Bombay High Court by filing a writ petition No. 4089 of

2004 wherein honourable High Court gave approprite

directions to the Regional Labour Commissioner. After the

directions the Regional Labour Commissioner started

conciliation proceedings. No settlement could be arrived

at and, therefore, the Regional Labour Commissioner

forwarded his failure report to the Government. Since there

was no response from the Govt. of India the second party

workman again had to approach the High Court by filing

contempt petition No. 302 of 2006. The High Court issued

notice to the respondents but in the meantime the order of

reference was issued. The second party workman has

prayed that the first party company be directed to reinstate

him with full back wages and continuity of service w.e.f.

21.2.1989.

3. According to the written statement the second

party workman did not attend his duties w.e.f. 29.12.1988

without any prior permission/information or application of

whatsoever nature. The workman sent an application with

a medical certificate of Dr. D.V. Avhad, a private medical

practitioner. The workman was then advised to report to

HAL Hospital for medical check up vide letter dt. 4.1.1989

of the first party company. The workman did not report to

HAL Hospital and instead sent a medical certificate issued

on 23.1.1989 by Civil Surgeon, Nasik recommending leave

from 11.1.1989 to 9.2.1989. The first party company accepted

the above medical certificate. But the workman did not

report for duty on 10.2.1989 and continued to remain absent

unauthorisedly. A notice for voluntary abandonment of

services was issued to the workman on 2.3.1989 and he

was advised to report for duty on 11.3.1989 and he was

also directed to explain his absence as per clause 18 (ii) of

Certified Standing Orders. The first party company waited

till 17.3.1989. On 17.3.1989 the first party company issued

an office order informing the voluntary abandonment of

service. According to the written statement the Certified

Standing Orders are in the nature of statute and as such if

the termination is under the Certified Standing Orders then

no enquiry is necessary. According to the written statement

the second party workman was in the habit of remaining

absent unauthorisedly and for that he was chargesheeted

and given warning but without any improvement. The

second party workman engaged himself in private business.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

2165

The second party workman has remained absent for 1 day

in 1983, for 27 days in 1984, for 2 days in 1985, for 56 days

in 1986, for 18 days in 1987, for 69 days in 1988 for 31 days

in 1989. The first party company has, therefore, stated that

the voluntary abandonment notice dt. 17.3.1989 is legal,

proper and valid and the punishment awarded to the second

party workman is just and adequate.

4. The second party workman has filed this affidavit

and he has been cross-examined by learned counsel for

the first party. The first party has filed affidavit of Dilip

Saindanvise and he has been cross-examined by learned

counsel for the second party workman.

5. Heard learned counsels for the parties.

6. Clause 18 (ii) of the Standing Orders applicable to

the second party workman runs as under:

If a workman remains absent for more than 10 days

and/or absents himself beyond the period of leave

originally granted, or subsequently extended, he shall

be deemed to have voluntarily abandonmend unless

he returns with 8 days of the expiry of the notice of

termination and explains to the satisfaction of the

Management the reasons for his inability to return

before the expiry of the notice.

It is well settled that the vires of the above provisions

cannot be considered by this Tribunal as the exclusive

power for such purpose is vested under the Constitution

only in the Courts exercising powers of judicial review under

Article 32.226 of the Constitution.

7. While keeping the above legal position in mind

this Tribunal has to determine whether the action of the

management of HAL in terminating the services of the

second party workman w.e.f. 21.2.1989 is legal and justified.

8. The second party workman remained absent w.e.f.

29.12.1988 and he sent an application with a medical

certificate. The second party workman was advised to

report to HAL hospital for medical check up but he failed

to report and again sent a medical certificate on 23.1.1989

recommending leave from 11.1.1989 to 9.2.1989. The first

party company accepted the medical certificate. However,

even after the expiry of the medical certificate period the

workman did not report for duty on 10.2.1989 and continued

to remain absent unauthorisedly. A notice for voluntary

abandonment of services was than issued to the workman

on 2.3.1989 and he was asked to report for duty by 11.3.1989

and he was also directed to give explanation regarding his

unauthorised absence. The notice is Ex. M-9. In para No. 3

of his affidavit, the second party workman admits that

notice Ex.M-9 was issued to him. The second party

workman neither returned with 8 days from the date of

notice nor he offered any explanation stating the reasons

for his inability to return. The first party company still waited

and then only on 17.3.1989 passed an order that the name

of the second party workman be struck off the rolls w.e.f.

21.2.1989 due to voluntary abandonment of services. It is

clear the first party company has acted in pursuance of

clause 18(ii) of the Standing Orders.

9. It has been stated in the written statement that the

second party workman remained absent unauthorisedly

during the period 1982 to 1989 as under:

1983

01 day.

1984

27 days.

1985

02 days.

1986

56 days.

1987

18 days.

1988

69 days.

1989

31 days.

The second party workman has admitted in his cross-

examination that he remained absent for 31 days in 1989,

for 16 days in 1988 for 18 days in 1987, for 56 days in 1986,

for 2 days in 1985 and for 27 days in 1984. By the admission

of the second party workman himself it is clear that the

second party workman is in the habit of remaining absent

unauthorisedly.

10. It is necessary that the employer must comply

with the principles of natural justice but the observance of

natural justice is not required to be stretched to the extent

of requiring the employer to convene a disciplinary enquiry

in such cases. What is required of the employer is to give

a reasonable opportunity to the workman to report for work

or, in the alternative, to explain his absence. In the present

case the employer has done so. That apart it is manifestly

clear that the case set up by the workman is not worthy of

credence. There is no proof of the fact that the second

party workman sent a letter dated 11.3.1989 in reply to the

notice.

11. In the facts and circumstance of the case I am of

the opinion that the action of the management of HAL in

terminating the services of the second party workman is in

accordance with clause 18 (ii) of the Standing Orders and

the principles of natural justice.

12. Consequently, it is held that the action of the

management of HAL in terminating the services of the

second party workman is legal and justified.

Award is made accordingly.

JUSTICE G.S. SARRAF, Presiding Officer

ubZ fnYyh] 8 Qjojh] 2012

dkñvkñ 892.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947

dk 14½ dh èkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj bZñlhñ,yñ ds

izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaè esa

2166

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèdj.k

vlalksy ds iapkV ¼lanHkZ la[;k 13@ 2012½ dks izdkf'kr djrh gS tks

dsUnzh; ljdkj dks 08&02&2012 dks izkIr gqvk FkkA

[lañ ,y&22012@61@2009 vkbZ vkj ¼lh ,e & II½]

Mhñ,lñ,lñJhfuokl jko

MsLd vf/kdkjh

New Delhi, the 8th February, 2012

S.O. 892.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No.13/2010)

of the Central Government Industrial Tribunal-cum-

Labour Court-1, ASANSOL, as shown in the Annexure in

the Industrial Dispute between the management of Bankola

Colliery of M/s. ECL, and their workman, received by the

Central Government on 08.02.2012.

[No. L-22012/61/2009-IR(CM-II)]

D.S.S. SRINIVASA RAO

Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVT. INDUSTRIAL

TRIBUNAL-CUM LABOUR COURT ASANSOL.

PRESENT

Sri Kishori Ram

Presiding Officer/Link Officer

REFERENCE NO. 13 OF 2010

PARTIES

The management of Bankola Colliery of M/s.

ECL.

V/s.

Their Workman

REPRESENTATIVES

For the management

None

For the union (Workman)

None

Industry Coal

State West Bengal

Dated the 06.01.12

AWARD

In exercise of power 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), Govt. of India

through the Ministry of Labour vide its letter No. L-22012/

61/2009-IR(CM-II) dated 23.02.10 has been pleased to refer

the following dispute for adjudication by this Tribunal.

SCHEDULE

“Whether the action of the management of Bankola

Colliery under Bankola Area of M/s. ECL., in dismissing

Sri Nirmal Kr. Rajak w.e.f. 07.07.2003 is legal and justified?

To what relief is the workman concerned entitled?”

Having received the Order No. L-22012/61/2009-

IR(CM-II) dated 23.02.10 of the above said reference from

the Govt. of India Ministry of Labour. New Delhi for

adjudication of the dispute, a reference case No. 13 of 2010

was registered on 18.03.10 and accordingly an order to that

effect was passed to issue notices through the registered

post to the parties concerned directing them to appear in

the court on the date fixed and to file their written statement

along with the relevant documents and a list of witnesses

in support of their claims in pursuance of the said order

notices by the registered post were sent to the parties

concerned.

None of the parties present Perused the case record,

I find a petition filed on 17.03.11 (Later on) by workman,

Nirmal Kumar Rajak for withdrawal of the case for amicable

settlement. Since the workman himself or the Union appears

disinterested to proceed with the case hence the case is

closed as there is no dispute. Accordingly, it is hereby

ordered.

ORDER

Let an “Award” be and the same is passed as no

dispute existing. Send the copies of the order to the Govt.

of India Ministry of Labour, New Delhi for information and

needful. The reference is accordingly disposed of

Kishori Ram

Presiding Officer/Link Officer

ubZ fnYyh] 8 Qjojh] 2012

dkñvkñ 893.—vkS|ksfxd fookn vfèfu;e 1947 ¼1947

dk 14½ dh èkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj MCY;wñlhñ,yñ

ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqcaè

esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèdj.k

ukxiqj ds iapkV ¼lanHkZ la[;k 45@ 2005½ dks izdkf'kr djrh gS tks

dsUnzh; ljdkj dks 08&02&2012 dks izkIr gqvk FkkA

[lañ ,y&22012@142@2004 vkbZ vkj ¼lhñ ,eñ & II½]

Mhñ,lñ,lñ,lñ jko

MsLd vf/kdkjh

New Delhi, the 18th February, 2012

S.O. 893.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award Ref. 45/2005 of

the Cent. Govt. Indus. Tribunal-Cum-Labour Court,

NAGPUR as shown in the Annexure, in the industrial

dispute between the management of Western Coalfield

Limited, and their workmen, received by the Central

Government on 08/02/2012

[No. L-22012/142/2004 - IR(CM-II)]

D.S.S. Srinivasa Rao, Desk Officer

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

2167

ANNEXURE

BEFORE SHRI J.P. CHAND, PRESIDING OFFICER,

CGIT-CUM-LABOURT COURT, NAGPUR

Case No. CGIT/NGP/45/2005

Date: 24.01.2012.

Party No.1

The General Manage,

WCL of Kanhan Area, PO: Parasia,

Distt. Chhindwara, (MP)

Versus

Party No.2

The General Secretary,

M.P.K.M.U. (Lalzanda AIFTU),

PO: Gurhi, Distt. Chhindwara, (MP)

480551

AWARD

(Dated: 24th January, 2012)

In exercise of the powers conferred by clause (d) of

sub-section (1) and sub-section 2(A) of section 10 of

Industrial Disputes Act, 1947 (14 of 1947) (“the Act” in

short), the Central Government has referred the industrial

dispute between the employers, in relation to the

management of WCL and their workman Shri Sujjan Atmaj

Javed, for adjudication, as per letter No. L-22012/142/2004-

IR (CM-II) dated 13.05.2005, with the following

schedule:—

“Whether the action of the General Manager,

Western Coalfields Limited of pench Area, Parasia,

Distt. Chhindwara (MP) in retiring Shri Sujjan, S/o.

Javed Ex. Loader, Newton/Ganapati Mine on

30.06.2001 on the basis of the his date of birth as

01.07.1941 and by ignoring the date of birth as

01.07.1955 is legal and justified? If not, to what relief

he is entitled?”

2. On receipt of the reference, the parties were noticed

to file their respective statement of claim and written

statement and accordingly, the union “M.P.K.M.U.

(Lalzanda AIFTU)”, (“the union” in short) filed the

statement of claim on behalf of the workman, Sujjan S/o,

Javed. (“the workman” in short) and the management of

the WCL, (“Party No. 1” in short) filed its written statement.

The case of the workman as projected in the

statement of claim is that he was appointed in Newton

private coal mine as a underground Tub Loader on

27.12.1972 and after the nationaliasation of the coal mines

in 1974, he was brought under the party no. 1 and was

absorbed permanently and his service record was clean

and unblemished and in all his service records, his date of

birth had been mentioned as 01.07.1955 and he is an illiterate

person and he had never studied in any school and at the

time of his appointment, the person who brought him for

working in the colliery, on the basis of village records

available in 1972, recorded his date of birth as 01.07.1955

and the same was carried out subsequently by the office of

the party no. 1 and the said date of birth was entered into

the service records as well as in the record of the coal mine

provident fund and as per the agreement between the

management and JBCCI in the year 1980-81, the party no. 1

called applications from the workers, whose date of birth

was not properly recorded and he did not submit any

application as his date of birth was recorded as 01.07.1955

and in the year 1997, he suddenly became ill and at that

time, the Deputy Personnel Manager of Chhindwara Sub

Area issued a letter mentioning his date of birth as

01.07.1955 and from the said facts, it is clear that in the

records maintained by the party no. 1 his date of birth was

mentioned as 01.07.1955 and in the records of the coalmines

provident fund also his date of birth was recorded as 01/

07/1955, but suddenly, party no.1 through mines

superintendent/Manager of Thisgora underground mine

issued a letter on 10.01.2001, intimating him of his going to

complete the age of 60 years on 30.06.2001 and that he

would be retired on attaining the age of superannuation

and he was aslo asked to fill up the required forms for

getting the amount of provident fund and gratuity and he

challenged the said order before the Hon’ble High Court of

Madhya Pradesh at Jabalpur by filing write petition no.

2198 of 2001, but the Hon’ble High Court dismissed the

petition with liberty to raise an industrial dispute vide order

date 02.08.2002 and accordingly, he raised the industrial

dispute before the ALC, Chhindwara and the reference is

required to be answered in his favour, as the action of the

party no. 1 is arbitrary and based on fake and fabricated

documents. It is also pleaded by the workman that at no

point of time, the party no. 1 informed him or the officer of

coalmines provident fund intimating about the wrong

mentioning of his date of birth in Form ‘A’ dated 09.12.1997

and as such, the party no.1 is estopped from changing the

date of birth and the order issued by the party on. 1 dated

10.01.2001, retiring him w.e.f. 30.06.2001 is illegal.

The workman has prayed to declare the letter issued

by party no. 1 on 10.01.2001 as illegal and that he is entitled

to continue in service in his post w.e.f. 01.07.2001 with

continuity and full back wages till his retirement i.e.

30.06.2015.

The party no.1 in its written statement has pleaded

inter alia that the workman was initially appointed in the

year 1972 by the private management of Newton Chikli

colliery and the said colliery was taken over by the coal

mines, authority Ltd., a Govt. of India company by virtue

of coal mines Nationalisation Act and from Newton Chikli

colliery, he was transferred to Chinda colliery, from where,

he was transferred to Theshora mine and all the said mines

are under the control of General Manager, Pench Area and

as per section 48 of Mines Act read with Rules 51, 77 and

77 (A) (2) of the Mines Rules, a register of employment

know as “Form B” register is required to be maintained by

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THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

the management of each colliery and the particulars of the

employees are recorded in the “B Form” register, based on

the declaration given by the employees and in the “Form

B” registers of the workman, the date of birth of the workman

has been recorded as 01.07.1941 and after coming into force

the NCWA, management as per instruction no.76, issued

service excerpts of the workman in 1987, declaring his date

of birth as 01.07.1941 and inviting objection if any and the

workman did not raise objection what so ever and the “Form

B” register bear the thumb impression of the workman and

the service excerpts was given to the workman in triplicate

on 20.07.1987 and the workman kept the original with him

and returned the carbon copy by affixing his thumb

impression without raising any objection and as the age of

superannuation for the coalmines employees was 60 years,

the workman was issued with the notice intimating him the

date of his retirement to be 30.06.2001 and when the notice

of retirement was served on the workman, he submitted the

manipulated service excerpts in which, in the column of

date of birth, the year ‘41’ was erased and over written as

55 and in the column of comments, “his date of birth in

incorrect and it should be corrected” was mentioned, which

clearly indicate that the workman tried to forge the

documents and take advantage of the same and the

workman a no point of time had raised any objection with

regard to the entry of his date of birth as 01.07.1941 in all

the records of the management and he was rightly retired

w.e.f. 30.06.2001 and there is no discrepancies in the record

maintained by the management and the claim made by the

workman is false and cannot be sustained and writ petition

no. 298/2001 filed by the workman was disposed by the

Hon'ble Court on merits and the petition was dismissed

with liberty to the workman to raise an industrial dispute, if

so advised and after the judgment of the Hon'ble High

Court, no claim of the workman survives and the reference

has been made by the Government without application of

mind and has no merit and the dispute was not raised by

the workman at appropriate time and was raised only after

the receipt of the retirement notice and such a belated claim

is not maintainable.

It is further placed by the party no. 1 that the state-

ment of claim has been signed by the workman and not by

the General Secretary of the union and as the workman was

not a party to the dispute, the statement of claim is not

maintainable and in the service records of Newton Chikli

colliery, the date of birth of the workman was recorded as

01.07.1941 and not 01.07.1955, as claimed by the workman

and the workman had accepted the same and put his thumb

impression in token of acceptance of the entries made there

in and the documents in respect of CMPF records were

manipulated and letter dated 09.02.1997 is a proforma, duly

filled in by the workman for his medical examination for

declaring him unfit and the concerned officer signed the

said document as a token of receipt of the same and in that

proforma also, the date of superannuation was mentioned

as 2001 and the workman is not entitled for any relief.

5. Parties have adduced oral evidence besides

placing reliance on documentary evidence. The workman,

who has examined himself as a witness has reiterated the

facts mentioned in his statement of claim in his examina-

tion-in-chief, which is on affidavit. However, in his cross-

examination, the workman has admitted that he is illiterate

and he does not know the contents of his affidavit and his

age as mentioned in the affidavit and he has not filed any

certificate showing his date of birth or his age and he had

not brought any certificate from his native village about

his age or date of birth and he does not know as to what

date of birth was mentioned in the records of the manage-

ment. The workman has admitted that Ext. M-IV is the "Form

B" register in respect of himself and the same bears his

thumb impression and Exts. M-V and M-VI are also his

"Form B" registers having his photographs and thump

impression and in all the said registers, his date of birth has

been mentioned as 01.07.1941. The workman has also ad-

mitted that in 1987, he was informed about his date of birth

and was asked if he had any objection about the entries

and he did not challenge his date of birth and ext. M-VII is

the letter calling for his objection.

6. One Samir Barla, the Senior Personnel Officer has

been examined as a witness by the party no. 1. The witness

in his evidence has reiterated the facts mentioned by party

no. 1 in the written statement. Party no. 1 has also

examined Mohd. Latif Qureshi, an employee of the office

of CMPF, as MW.2 and he has stated that the date of birth

mentioned in the Form 'A' has been tampered with and

mentioned as 01.07.1955.

The evidence of the two witnesses examined on be-

half of the party no. 1 has not been shaken in the cross-

examination.

7. At the time of argument, it was submitted by the

learned advocate for the workman that the initial appoint-

ment of the workman was in a private colliery and at the

time of such appointment, the date of birth of the workman

was recorded as 01.07.1955 in the records of the manage-

ment and specifically in Ext. W-5, the date of birth of the

workman has been mentioned as 01.07.1955 and in the docu-

ment of the office of the CMPF, Ext. M-14 also, the date of

birth of the workman has been mentioned as 01.07.1955

and it is also clear from the evidence of the workman and

the witnesses for the party no. 1 that the date of birth of the

workman is 01.07.1955 and as such, the action of party no.

1 in retiring the workman w.e.f. 30.06.2001, holding his date

of birth as 01.07.1941 is illegal and unjustified and there-

fore, the workman is entitled for reinstatement in service

with continuity and full back wages and to continue in

service till the date of his actual superannuation.

8. Per contra, it was argued by the learned advocate

for the management that the date of birth of the workman

was never recorded as 01.07.1955 in the records of the

management and in the statutory registers i.e. "Form B"

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¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

2169

party no. 1 the date of birth of the workman has been re-

corded as 01.07.1941 and in 1987, the service excerpts of

the workman was supplied to the workman as per instruc-

tion no. 76, mentioning his date of birth as 01.07.1941 and

asking him to raise objection in case of any mistake in

regard to the particulars mentioned therein and the work-

man did not raise any objection and submitted the dupli-

cate copy of the service excerpts putting his thumb im-

pression on the same and the workman has admitted in his

evidence about his date of birth to have been mentioned

as 01.07.1941 in the three "Form B" registers, Exts. M-IV, V

and VI and that he did not raise any objection regarding

his date of birth as mentioned in the service excerpts and

ext. W-V does not have any evidentiary value, as the same

is an application filed by the workman himself for his medi-

cal examination to declare him unfit and in that application

also, the year of retirement of the workman has been men-

tioned as 2001 and the signature of the officer of the party

no. 1 on the said document is in token of the receipt of the

application and after service of the retirement notice, the

workman submitted ext. M-IX, which clearly shows that the

date of birth has been tampered with and the year "41" has

been made as "55" and the date of birth of the workman

mentioned in "Form A" of CMPF office has also been tam-

pered with and has been made as 01.07.1955, which is clear

from ext. M-XIV, the form A and so also form the evidence of

MW2, Mohd. Latif Qureshi and the retirement of the work-

man on superannuation on 30.06.2001 is completely legal

and justified. It was also submitted that the workman did not

raise any objection about his date of birth during the period

of service, but raised objection, only after the issuance of

the retirement notice and such belated objection regarding

the date of birth cannot be entertained.

In support of the last contention, the learned advo-

cate for the management placed reliance on the decisions

reported in 2001 (1) MPLJ (SC)-302 (State of Haryana Vs.

Satish Kumar Mittal), (1995) 4 SCC-172 (Burn Standard Co.

Ltd. Vs. Dinabandhu Majumdar) and AIR 2001 SC 72 (G.M.

Bharat Cooking Coal Ltd. Vs. Shib Kumar).

9. Perused the record including the evidence adduced

by the parties and considered the submissions made by

the learned advocates for the parties. Though the work-

man has claimed that in the records of the party no. 1, his

date of birth has been mentioned as 01.07.1955 and at the

time of the initial appointment, his date of birth was men-

tioned as 01.07.1955, on the basis of the village records, it

is found that in the records of the party no. 1, the date of

birth of the workman has actually been mentioned as

01.07.1941 and not as 01.07.1955. In the statutory "Form B"

birth of the workman has been mentioned as 01.07.1941.

The workman in his evidence has admitted about the same.

It is also found from the evidence on record and Ext. M-VII

that the service excerpts of the workman had been sup-

plied to him in 1987, mentioning his date of birth as 01.07.1941

there in and the workman did not raise any objection in

respect of his date of birth and returned the copy of the

same to the party no. 1, after putting his thumb impression

on the same. The workman also did not raise any objection

during the tenure of his service and he raised objection,

only when the retirement notice was served on him.

The workman has placed reliance on ext. W-V and

exts. M-XI and M-XIV in support of his claim that his date

of birth is 01.07.1955. On perusal of ext. W-V, it is found that

the same is not a document given by the management, but

the same is an application in the proforma, filed by the

workman for medical examination to declare him unfit. In

the said application, against column 12, which is meant for

mentioning "the name and designation of official autho-

rized to receive the application and his signature", the sig-

nature and seal of the officer are there, which clearly show

that such signature and seal were affixed, in token of re-

ceipt of the application. Moreover, in Ext. W-V itself, the

year of retirement of the workman has been mentioned as

2001. Hence, Ext W-V has no evidentiary value. It is also

found from exts. M-IX and M-XIV that the date of birth of

the workman has been tampered with in those documents.

MW2 has also stated about tampering of the date of birth

of the workman in Ext. M-XIV. Hence, the documents are of

no help to the workman. The workman has not produced

any village record in support of his date of birth. Hence, it

is found that there is no reliable evidence on record to hold

that the date of birth of the workman is 01.07.1955. Hence,

it is held that the action of the party no. 1 in retiring the

workman w.e.f. 30.06.2001 is valid and justified. Therefore,

it is ordered:—

ORDER

The action of the General Manager, Western

Coalfields Limited of Pench Area, Parasia, Distt.

Chhindwara (MP) in retiring Shri Sujjan, S/o. Javed Ex.

Loader, Newton/Ganapati Mine on 30.06.2001 on the basis

of his date of birth as 01.07.1941 and by ignoring the date

of birth as 01.07.1955 is legal and justified. The workman

is not entitled to any relief.

J.P. Chand, Presiding Officer

ubZ fnYyh] 8 Qjojh] 2012

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S-3\E\4735RR\4735RR

2170

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

New Delhi, the 8th February, 2012

S.O. 894.—In pursuance of Section 17 of the Indus-

trial Disputes Act, 1947 (14 of 1947), the Central Govern-

ment hereby publishes the Award Ref. 119/2003 of the Cent.

Govt. Indus. Tribunal-cum-Labour Court, NAGPUR as

shown in the Annexure, in the industrial dispute between

the management of Western Coalfields Limited of Kanhan

Area, and their workmen, received by the Central Govern-

ment on 08/02/2012.

[No.L-22012/201/2002-IR(CM-II)]

D.S.S. Srinivasa Rao, Desk Officer

ANNEXURE

BEFORE SHRI J.P. CHAND, PRESIDING OFFICER,

CGIT-CUM-LABOUR COURT, NAGPUR

Case No. CGIT/NGP/119/2003

Dated: 24.01.2012

Party No. 1

: The General Manager,

WCL of Kanhan Area, Po: Dungaria,

Distt. Chhindwara, (MP)

Versus

Party No. 2

: The General Secretary,

M.P.K.M.U. (Lalzanda AIFTU),

Po: Gurhi, Distt. Chhindwara, (MP),

AWARD

(Dated: 24th January, 2012)

In exercise of the powers conferred by clause (d) of

sub-section (1) and sub-section 2(A) of section 10 of In-

dustrial Disputes Act, 1947 (14 of 1947) ("the Act" in short),

the Central Government has referred the industrial dispute

between the employers, in relation to the management of

WCL and their workman Shri Nanak S/o Sh. Tapsi, for adju-

dication, as per letter No. L-22012/201/2002-IR (CM-II)

dated 23.04.2003, with the following schedule:—

"Whether the action of the management of Ambara

Colliery of WCL Kanhan Area Distt. Chhindwara (MP) in

decreasing the wages of Sh. Nanak S/o Shri Tapsi, Tub

Loader Ambara Colliery is legal and justified? If not, to

what relief he is entitled to?"

2. On receipt of the reference, the parties were no-

ticed to file their respective statement of claim and written

statement and accordingly, the union "M.P.K.M.U.

(Lalzanda AIFTU)", ("the union" in short) filed the state-

ment of claim on behalf of the workman, Shri Nanak, ("the

workman" in short) and the management of the WCL,

("Party No. 1" in short) filed its written statement.

The case of the workman as projected in the state-

ment of claim is that he was appointed on 11.04.1976 at

Ambara Colliery as a Tub Loader group V-A with party

no.1 and his service record is clean and unblemished and

due to deterioration of his health condition, he was medi-

cally examined at Area hospital, Kanhan and at Nagpur

Medical college and it was recommended by the medical

authorities to provide him job on surface and party No. 1

on the recommendation of the Apex Medical Board and

approval of the competent authority, issued orders dated

25.09.1995 and 04.11.1995 in his favour to work as "Time

rated grade H" for the period from 26.09.1995 to 26.10.1995

and 5.11.1995 to 20.11.1995 respectively and accordingly,

he worked as a Time rated grade H worker for the said

periods and continued to work as a Time rated grade H

worker thereafter also and though he was provided with

alternative surface job, his pay was protected and he was

paid the salary of original group V-A of the Tub Loader but

suddenly, the party No. 1 vide letter dated 31.05.1999 inti-

mated him that as he was working in the post of "Time

rated group H" on his own wish, he would be paid the mid

point basic pay of Rs. 1923/- per month of the same cat-

egory, from the month of May, 1999 as per the agreement

dated 31.10.1995 and he made a representation on 14.08.1999

for protection of his pay, but the same was turned down by

party No. 1, vide communication dated 24/27.08.1999, on

the ground that he himself had applied for alternative light

work and the matter did not fall under the category of IOD

and as such, protection of pay was not possible, so be

approached the ALC (C), Chhindwara and before the ALC,

party No. 1 stated that the action of paying at the mid point

wages of time rated grade H, after providing alternative

work permanently was justified, in view of the Settlement

arrived at between management and RKKMS (INTUC) on

31.10.1995 and it was replied by him that the same under-

standing had no legel force and was not binding on all the

workers of the industry and the procedure of fixation of

mid point wage was arbitrary and was introduced only in

WCL and not in Coal India to which WCL is a subsidiary

and also not in other subsidiaries of Coal India Ltd. and as

the conciliation procedure failed, failure report was sub-

mitted by the ALC to the Central Government and ulti-

mately the reference was made to the Tribunal for adjudi-

cation. It is further pleaded by the workman that the action

of the party No. 1 to pay mid point of basic pay of the

category in which, he was given alternative surface job

since May, 1990 is arbitrary and illegal and he was pro-

vided with alternative job on surface on the recommenda-

tion of the Apex Medical Board and the claim of the party

No. 1 that he is working in the category of "Time rated H"

by his own choice does not hold good and his pay was

protected from the date of his doing alternative job till the

issuance of the letter dated 31.05.1999, for a long span of

S-3\E\4734RR2\4734RR7

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

2171

almost four years and the action of reduction of his pay

was made without giving any opportunity to him of being

heard, in violation of the principles of natural justice and

the understanding between management and RKKMS

(INTUC) had no legal force and as such, the same is not

binding on all the workers of the industry and the action of

the party No. 1 to pay the mid point basic pay w.e.f. May

1999 is contrary to the settled principles of natural justice

and is also against the ratio laid down by the Hon'ble Apex

Court.

The workman has prayed to declare the order dated

31.05.1999 passed by the party No. 1 as illegal as to quash

and set aside the same and to protect his pay of Tub Loader

group V-A and to pay the difference of wages since May,

1999.

3. The Party No. 1 in its written statement has pleaded

inter-alia that the service conditions of the employees

working in the coal industry are governed by various

settlements, generally known as NCWA and ACWAs

contain job nomenclature and cadre scheme etc. and the

employees are entitled to the wages against the post they

are appointed and wages are paid on the job done by them

and the workman was initially appointed on 11.04.1975 as

Tub Loader piece rated in group V-A at Ambara Colliery

and as per chapter IV of Mines Rules, which deals with

medical examination of coal mines workers, the workman

was subjected to medical examination and the Medical

Board after examination of the workman advised for

alternative job and he was also referred for medical

examination by Apex Medical Board and the said Board

after examination of the workman recommended for

alternative job on surface and based on the

recommendations of the Medical Board and on the personal

request of the workman, the management provided the

workman alternative job on surface and as per his option,

the workman was given alternative job on surface and

subsequently, the workman opted for time rated job on

surface as per his option, he was given the job of time rated

on surface in grade H and as the workman changed his

category from Tub Loader to time rated in grade H, his pay

was fixed according to the guidelines of the settlement

arrived at between the management and RKKMS union on

31.10.1995 and the workman never raised the dispute

claiming pay protection in group V-A of Tub Loader, while

working on the time rated on surface and as the workman

opted for alternative job, he has no right to claim pay

protection and the demand is unjustified and if pay

protection is given to the workman, similarly situated other

employees will claim pay protection and will ask for

alternative job on surface and as the demand of the workman

is not justified, he is not entitled for any relief.

4. Besides placing reliance on documentary evidence,

both the parties have adduced oral evidence in support of

their respective claim. The workman has examined himself

as a witness in support of his case. One Shri P.K. Tripathi,

a deputy personnel manager of WCL has been examined

as a witness on behalf of the party No. 1.

As all most all the facts are admitted by the parties,

there is no necessity to refer to the oral evidence of the

witnesses, who in their evidence have reiterated the facts

mentioned in the statement of claim and written statement

respectively.

5. It is the admitted case of the parties that the work-

man was working as a Tub Loader V-A and he was medi-

cally examined and recommended alternative work on sur-

face. According to the party No. 1 not only due to the

recommendation of the medical board, but also, due to the

option of the workman, he was given the job of time rated

grade H permanently and as such, his pay was fixed as per

the provisions of the settlement dated 31.10.1995 reached

by the management and RKKMS union. However, Party

no. 1 has failed to produce any evidence to show that the

workman opted for the job of time rated grade H. It is also

clear from the documents that due to the recommendation

of the Medical Board, the workman was given the alterna-

tive job on surface.

The party No. 1 has not pleaded anything that the

settlement reached between the management and RKKMS

union is binding to all the workers of WCL including the

workman, who is admittedly a member of another union

and not a member of RKKMS. There is also nothing on

record to show that the settlement is binding to all the

workers of WCL.

It is found from record that the pay of the workman

was protected till the issuance of the letter dated 31.05.1999.

The workman was not given any chance of hearing before

his pay was reduced. Hence, the order of party No. 1 fixing

the pay of the workman at mid point of time rated category

H is unjustified. Hence, it is ordered:—

ORDER

The action of the management of Ambara Colliery

of WCL Kanhan Area Distt. Chhindwara (MP) in

decreasing the wages of Sh. Nanak S/o Sh. Tapsi, Tub

Loader Ambara Colliery is illegal and unjustified. The

workman is entitled for protection of his pay of Tub Loader

group V-A. The workman is also entitled to get the

difference of wages from May, 1999 till grant of wages of

Tub Loader.

J.P. CHAND, Presiding Officer.

S-3\E\4735RR\4735RR

2172

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

ubZ fnYyh] fnukad 08@02@2012

dkñvkñ 895.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947

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New Delhi, the 8th February, 2012

S.O. 895.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award Ref. 79/2004 of

the Cent. Govt. Indus. Tribunal-cum-Labour Court,

NAGPUR as shown in the Annexure, in the industrial

dispute between the management of Damua Colliery of

WCL, and their workmen, received by the Central

Government on 08/02/2012.

[No. L-22012/2/2001-IR (CM-II)]

D.S.S. Srinivasa Rao, Desk Officer

ANNEXURE

BEFORE SHRI J.P. CHAND, PRESIDING OFFICER,

CGIT-CUM-LABOUR COURT, NAGPUR

Case No. CGIT/NGP/79/2004

Date: 19.01.2012.

Party No. 1

: The Manager, Damun Colliery of WCL,

PO: Damua, Distt. Chhindwara, (M.P.)

Versus

Party No. 2

: The President,

P.K.K.K.K. Sangh, PO: Damua,

Distt. Chhindwara (M.P.)

AWARD

(Dated: 19th January, 2012)

In exercise of the powers conferred by clause (d) of

sub-section (1) and sub-section 2(A) of section 10 of

Industrial Disputes Act, 1947 (14 of 1947) ("the Act" in

short), the Central Government has referred the industrial

dispute between the employers, in relation to the

management of WCL and their workman Shri Krishna S/o.

Sh. Shankar, for adjudication, as per letter No. L-22012/2/

2001-IR (C-II) dated 13.08.2004, with the following

schedule:—

"Whether the action of the management of Damua

Colliery of WCL in not allowing Shri Krishna

S/o. Sh. Shankar, driller-cum-dresser of Damua Colliery

to attend duties from 08.04.2000 to 15.09.2000 was legal

and justified? If not, to what relief the workman is

entitled?".

2. On receipt of the reference, the parties were noticed

to file their respective statement of claim and written

statement and accordingly, the workman Shri Krishna S/o.

Sh. Shankar, ("the workman" in short) filed his statement

of claim and the management of the WCL ("Party No. 1" in

short) filed its written statement.

The case of the workman is that he was appointed in

1977 and worked as a driller-cum-dresser and on account

of introduction of voluntary retirement scheme by the party

no. 1, about four thousand employees of Kanhan Area

took voluntary retirement and those posts were not filled

up by part no. 1 and therefore, man power in every

department in the Coal Mines of Kanhan Area decreased

to such an extent that the party no. 1 had no control on the

work process and in this process, his service conditions

were changed in violation of the provision of section 9-A

of the Act and he was forced to work as roof bolter alongwith

driller-cum-dresser and he raised dispute before the Asstt.

Labour Commissioner (Central), Chhindwara and the party

no. 1 in its written statement had mentioned that he

(workman) was ordered for making holes for roof stitching,

which was beyond his duties and during the course of the

conciliation proceedings, the party no. 1 in violation of the

provisions of section 33(1)(a) of the Act, ordered him to

make holes for roof stitching and on the complaint of the

overman, his wages was not paid and on 20/12/2001, a

warning letter alongwith denial to pay wages was given to

him and he submitted his reply to the same on 21.12.2001

and prior to the above incident, he was ordered to work as

a Trammer, vide order dated 06.06.1998, beyond his

prescribed job and party no. 1 had issued charge sheets

against him dated 14/16.10.1998 and 13.02.1999, on the

allegations that he denied to perform the work of Timberman

and also to work with roof bolter and the party no. 1 forcibly

pressurized him to work as driller-cum-dresser, roof bolter

and roof stitcher and as he denied to do so, he was forced

to go back from the mine and his wages from 08.04.2000 to

15.09.2000 and for some other days were not paid. The

workman has prayed to direct the party no. 1 to make

payment of his wages for the days mentioned in his petition.

3. The party no. 1 in the written statement has pleaded

inter-alia that the terms of the reference is incorrect, as

the Government has decided that the workman was

disallowed to perform his duty, though the workman had

refused to perform to do the job and the reference is highly

prejudicial to the interest of the management and the union

has raised the same dispute before the conciliation forum

and after hearing both the parties, the appropriate

Government vide order dated 11.12.2001 refused to refer

the dispute for adjudication, on the ground that, "It is

reported that the workman was advised to attend the duties

and w.e.f. 15.09.1990, he has attended the duties at Damua

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2173

Colliery of WCL and his is performing the duties of driller-

cum-dresser regularly and following the instructions of his

superiors of the mines. The contention of the union that he

has been orally terminated from duty which is not correct

and workman is not entitled to any wages for the period of

absence from duty" and the union being aggrieved by the

said order, filed writ petition no. 563/2002, before the Hon'ble

High Court of M.P. at Jabalpur and thereafter, the

Government referred the dispute for adjudication.

It is further pleaded by the party no. 1 that on

08.04.2000, the workman refused to obey the instructions

of his superiors and did not perform his duty and as such,

he was not paid the wages for that day on the principle of

"no work no pay" and he also refused to work from

08.04.2000 to 15.09.2000 (wrongly mentioned as 19.05.2000

in the W.S.) as per the instructions of his superiors and

there was no stoppage of work as alleged and as he did not

work, he was not entitled for wages and the job of driller is

to drill the holes, which he cannot refuse on the plea that

the job of drilling holes for roof stitching is to be done by

roof stitching crew and as the workman refused to obey

the instructions of superior officers and refused to work,

the workman is not entitled to wages on the basis of "no

work no pay" and a false story has been put forward by the

workman and as such, the workman is not entitled to any

relief.

4. It is necessary to mention here that after filing of

the statement of claim, the workman did not appear at all in

the case and lastly the case proceeded ex-parte against

him.

5. It is well settled that if a party challenges the legality

of any action, the burden lies upon him to prove the illegality

of the action and if no evidence is produced, the party

invoking the jurisdiction of the court must fail.

6. In this case, the workman, in the statement of claim

has not made any pleadings as to whether he worked for

the period from 08.04.2000 to 15.09.2000 or that he was not

allowed to work for that period. The documents filed by

him do not relate to the period from 08.04.2000 to 15.09.2000.

The documents also do not show that the workman was

asked to work as a roof bolter. Hence, the workman is not

entitled to any relief.

7. It is also found that the schedule of reference has

not been made properly. It is clear from the pleadings of the

parties and the materials on record that the workman refused

to work on many occasions and disobeyed the direction of

his superiors. There is no evidence that management did

not allow the workman to work from 08.04.2000 to

15.09.2000. Hence, it is ordered:—

ORDER

The reference is answered against the workman.

The workman is not entitled to any relief.

J.P. Chand, Presiding Officer

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New Delhi, the 8th February, 2012

S.O. 896.— In pursuance of Section 17 of the

Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No 182/

2002) of the Central Government Industrial Tribunal-

cum-Labour Court, Nagpur as shown in the Annexure in

the Industrial Dispute between the employers in relation to

the management of WCL and their workman, which was

received

the

Central

Government

08/02/2012.

[No. L-22012/291/1996-IR (C-II)]

D.S.S. Srinivasa Rao, Desk Officer

ANNEXURE

BEFORE SHRI J.P. CHAND, PRESIDING OFFICER,

CGIT-CUM-LABOUR COURT, NAGPUR

Case No. CGIT/NGP/182/2002

Date: 19.01.2012.

Party No. 1

The Sub Area Manager,

Saoner, Project, Western Coalfields Ltd.,

P.O.: Saoner, Distt. Nagpur.

V/s

Party No. 2

The Vice President,

Bhartiya Koyla Khadan Mazdoor Sangh,

Patansaongi Mine of WCL, Patansaongi,

Distt. Nagpur.

AWARD

(Dated: 19th January, 2012)

This is a reference made by the Central Government

for adjudication of the industrial dispute between the

employers in relation to the management of Saoner Sub-

Area W.C.L. and their workman, Shri Hemraj Devraj Janbade

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[PART II—SEC. 3(ii)]

("the workman" in short) through his union to the Central

Government Industrial Tribunal, Jabalpur, as per letter No.

L-22012/291/96-IR (C.II) dated 11/15.7.1997, with the

following schedule:—

"Whether the action of the management of Saoner

Sub-Area of WCL, Distt. Nagpur, in dismissing

Sh. Hemraj Devraj Janbade, Category-I Mazdoor, from

services is legal and justified? If not, to what relief is the

workman entitled and from which date?".

Subsequently, the reference was transferred to this

Tribunal for disposal in accordance with law.

2. On receipt of the reference, the parties were noticed

to file their respective statement of claim and written

statement and accordingly, the workman through his union

filed his statement of claim and the management of the

WCL (hereinafter referred to as the Party No. 1) filed its

written statement.

3. The case of the workman as projected in the

statement of claim is that he was employed in 1980 in

Patansaongi Coal Mine of WCL and was transferred to

Saoner Mine on 14.10.1986 and on 22.7.1991, he was served

with a charge sheet by the Party No. 1 on the allegation of

commission of theft of 45 feet of armed cable, from

underground mine No. 1 and a departmental enquiry was

initiated against him and the departmental enquiry was

concluded in a haste and the Inquiry officer was biased

and the enquiry was held basing on his alleged statement

before the Police admitting the commission of the theft and

the findings of the Inquiry Officer are not based on the

materials on record and without any evidence regarding

his involvement in the commission of the alleged theft and

in the criminal case initiated against him by the Police for

the commission of the alleged theft of the armed cable, the

Court on 28.4.1994 discharged him as no prime facie

evidence was found against him and as such, the

departmental enquiry held against him is not proper, legal

and by following the principles of natural justice.

4. In its written statement, the Party No. 1 has pleaded

inter-alia that on 13.7.1991, the workman was working as

Body Searcher in Saoner project and his duty was in the

third shift in Mine No. 1 of Saoner project and in the said

underground mine, there are only two outlets, which are

being guarded by the body Searchers round the clock and

the management came to know that copper wire measuring

45 feet weighing approximately 24.600 Kgs. and valued at

Rs. 2,460/- was stolen from the Mine and accordingly, FIR

was lodged by the Senior Executive Engineer (E&M), Mine

No. 1 regarding the theft of the cable on 15.7.1991, in Saoner

Police Station and during investigation of the case, Police

seized the copper wire from one of the accused persons

and it was found that the workman and some other workers

were involved in commission of the theft of the cable wire

and as the undergound mines were guarded by the Body

Searchers, it was not possible to remove any material from

the mine without the knowledge of the Body Searchers

and therefore, the workman was served with the charge

sheet for commission of theft, fraud, dishonesty and willful

damage to the property of the employer and as the reply

submitted by the workman on 10.8.1991 was found not to

be satisfactory, the departmental equiry was initiated and

Shri R.K. Sharma, SOM/Manager Mine No. 1 of Saoner

project was appointed as the Inquiry Officer and

Shri R.Bhardwaj was appointed as the management

representative and after his appointment, the Inquiry Officer

issued memo of the enquiry, fixing the date of the hearing

and the enquiry was conducted on 3.9.1991, 14.9.1991,

24.9.1991, 26.9.1991, 3.10.1991, 4.10.1991 and 8.10.1991 and

the enquiry was conducted legally, properly and by

following the principles of natural justice and the workman

participated in the enquiry and availed the assistance of

his co-worker, Shri Babulal and the management witnesses

were examined in presence of the workman and his co-

worker and they were also cross-examined at length by the

workman and his co-worker and the workman was also

offered opportunity to produce defence witness, if any

and the Inquiry Officer vide report dt. 19.10.1991 held the

charges leveled against the workman under clause 17(i),

(k) and (g) of the standing orders to have been proved and

the workman was not acquitted by the Court on merit and

he was only discharged from the charges on the ground

that charges were not framed against him for a long period

and the enquiry report alongwith the entire documents of

the departmental enquiry was put up before the Disciplinary

Authority for consideration and examining the report, the

relevant documents on record and assessing the evidence,

the Disciplinary Authority was satisfied with the findings

of the Inquiry Officer and agreed with the findings of the

Inquiry Officer and accordingly, imposed the punishment

of dismissal from service against the workman, as per his

order dt. 29.10.1991 and the dismissal of the workman was

not based on the criminal case, but he was served with the

charge sheet under the provision of the standing orders

applicable to the workman and the order of dismissal was

passed basing on the proved misconduct in the

departmental enquiry and the punishment imposed against

the workman is proportionate to the proved misconduct of

the workman.

5. In his rejoinder, the workman has pleaded that the

inquiry was completed with undue haste and without

providing adequate opportunity to defend himself and the

Inquiry Officer did not record the evidence as deposited

by the witnesses but recorded the same as per his own

whims and the findings of the Inquiry Officer are perperse.

6. As this is a case of dismissal of the workman from

services, after holding of a departmental enquiry, the

validity of the departmental enquiry was taken up for

consideration as a preliminary issue and as per orders dated

01.04.2011, the enquiry was held to be legal, proper, justified

and by following the principles of natural justice.

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7. It was contended by the learned advocate for the

workman, that the findings of the enquiry officer are

perverse, as the entire report of the enquiry officer does

not disclose as to whether any report received from the

police by the management of party no. 1 was placed before

him or not, the evidence of the witness examined on behalf

of the management is hear say evidence and basing on

such hearsay evidence, the findings are based and material

witness, Shri Parmeswaran, Sr. Exectuive Engineer (E&M),

who had submitted the F.I.R. regarding the theft of the

armed cable was not examined and material documents were

not produced in the enquiry and as the findings are based

on imagination and not based on materials on record and

the enquiry officer did not consider the objections raised

by the workman in the departmental proceedings in regard

to the mode of recording of the evidence of the witnesses

for the management and proceeded with the enquiry and

even though management was aware of the pendency of

the criminal case against the workman, management

proceeded with the departmental enquiry and the workman

was discharged in the criminal case by the court, as such,

the dismissal of the workman was unwarranted. It was

further submitted by the learned advocate for the workman

that the submission of the charge-sheet against the

workman by the employer on the basis of unproved criminal

offence and dismissing the workman from services amounts

to illegal act and the name of the workman was not mentioned

as a suspect in the two F.I.R. submitted on 15.07.1991 and

16.07.1991 by the Sr. Executive Engineer, (E&V), Saoner

and though, there was no evidence at all in the proceedings

of the enquiry regarding the workman causing willful

damage to the work in progress or to the property of the

employer, the findings of the enquiry officer that both the

misconducts have been proved are erroneous and baseless

and for that the findings are perverse and illegal. It was

also contended that the punishment of dismissal from

service imposed against the workman is shockingly harsh

and disproportionate and the workman had rendered

unblemished service since the date of his joining of the

service without any warning and censure and his past

service records and the other extenuating circumstances

were not taken into consideration before imposition of the

punishment and the punishment imposed against him is

unreasonable, unfair and severe.

8. Per Contra, it was submitted by the learned

advocate for the party no. 1 that it is already held by this

Tribunal that the enquiry is valid, legal and proper and the

workman, while working as general mazdoor category-I, on

22.07.1991 as charge sheet was served on him for his alleged

involvement in the theft of armed cable from Saoner Mine

no. 1 and an enquiry was held against him and on

conclusion of the enquiry, the enquiry officer submitted

his report holding the workman to be guitty of the charges

and the disciplinary authority passed the order of dismissal

from service w.e.f. 29.10.1991 and three witnesses were

examined on behalf of the management in support of the

charges during the enquiry and the workman examined

himself in the enquiry and in his statement given before

the police, the workman admitted his guilt and such

statement, the FIRs and the report submitted by the police

regarding the arrest of the workman in the criminal case

were produced and proved by the witnesses for the

management and the findings of the enquiry officer are

based on the evidence brought before him during the

course of the departmental enquiry and the Disciplinary

Authority agreed with the findings of the enquiry officer

after going through the materials on record and the charges

leveled against the workman are very grave in nature and

the workman indulged himself in commission of serious

acts involving theft and no employer can keep such a person

in service and due to the involvement of the workman in

commission of the theft of the property of the company,

the company lost confidence and as such, the workman is

not entitled for reinstatement in service and back wages

and the Tribunal has not been vested with the power to

interfere with the punishment imposed against the

workman. It was further submitted by the learned advocate

for the party no. 1 that the action of the management in

dismissing the workman was not based on the criminal

case, but based on the charges proved against him and the

decision of the criminal case was totally on a different

perspective and as such, the order of dismissal of the

workman from services cannot be set aside in the light of

the order passed by the criminal court. It was also

submitted that the Tribunal is not empowered to interfere

with the punishment, when the findings are based on some

evidence on record.

9. The learned advocate for the workman submitted

that in this case, there was no legal evidence before the

euquiry officer and so also the disciplinary authority to

impose the order of dismissal from service against the

workman, hence, the same is illegal and when there is no

evidence for inflicting the punishment, the Tribunal can

interfere with the findings of the enquiry officer and the

disciplinary authority. It was also submitted that as in the

criminal case, the workman was discharged by the court,

the workman should have been reinstated in service with

continuity and full back wages.

On the other hand, the learned advocate for the party

no. 1 submitted that the Tribunal cannot act as the appellate

authority and re-appreciate the evidence and come to a

different conclusion then the one arrived in the

departmental proceedings. It was further contented that

the nature of the departmental and criminal proceedings

are different and in the departmental proceedings, strict

rules of evidence cannot be made applicable and only

preponderance of probabilities have to be looked into but

in a criminal trial, strict rules of evidence are applicable and

prosecution has to prove the guilt of the accused beyond

all reasonable doubts and as the workman was discharged

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THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

without any trial, there was no question of his reinstatement

in service.

10. In view of the above rival contentions, the points

that fall for considerations are:

(a)

Whether this Tribunal can interfere with the

findings of the enquiry officer and the disciplinary

authority,if they are sought to be proved on no

evidence?

(b)

Whether the punishment imposed against the

workman is without there been any evidence on

record?

It is well settled that the findings recorded in the

departmental enquiry by the disciplinary authority or the

enquiry officer as a matter of course, the court cannot sit in

appeal over those findings and assume the role of the

appellate authority, but this doesn't mean that in no

circumstance the court can interfere and such interference

can be made, if there was no evidence to support the

findings or the findings recorded were such as could not

have been reached by any ordinary prudent man or the

findings were perverse. It is also well settled that the

disciplinary proceedings before a domestic Tribunal are of

quasi-judicial in character and therefore it is necessary that

the Tribunal should arrive at its conclusion on the basis of

some evidence, that is to say, such evidence which and

that too with degree of definiteness points to the guilt of

the delinquent and doesn't leave the matter in a suspicious

state as mere suspicion cannot take the place of proof

even in domestic enquiries. If, therefore, there is no

evidence to sustain the charges against the delinquent, he

cannot be held to be guilty as in that event, the findings

recorded by the enquiry officer would be perverse. It is

also well settled by the Hon'ble Apex Court that domestic

Tribunals, like an enquiry officer, are not bound by the

technical rules about evidence contained in the Indian

Evidence Act, but it has no where been laid down that

even substantive rules, which would from part of principles

of natural justice, can be ignored by the domestic Tribunals.

In the light of the above positions, now it is ncessary

to find out as to whether there is any legal evidence to

support the conclusions arrived at by the enquiry officer

and the disciplinary authority in this case.

Admittedly, the charge sheet was submitted against

the workman on the basis of the information received by

the party no. 1 from the police regarding his arrest in the

case involving theft of armed cable, which was registered

on the basis of the FIRs submitted by the Sr. Executive

Engineer, (E&M). It is also not disputed that the workman

was discharged in the criminal case by the court. On perusal

of the reports submitted to the police, it is found that the

name of the workman was not mentioned as a suspect in

the same. It is also found that there was no direct evidence

regarding the involvement of the workman in commission

of the said theft. The witnesses examined on behalf of the

party no. 1 in the departmental enquiry have stated about

the workman making confession of committing the theft

along with some others before the police officer. A copy of

the statement of the workman recorded by the police was

also produced in the enquiry. It is settled beyond doubt

that confession of an accused before the police officer is

not admissible and cannot be taken as evidence against

him. No other evidence was adduced in the departmental

enquiry showing the involvement of the workman in

commission of the theft and as such, the findings of the

enquiry officer and so also the disciplinary authority of

such evidence are perverse and therefore liable to be set

aside.

It is well settled by the Hon'ble Apex Court that the

Tribunal can interfere with the perverse findings and set

them aside. Accordingly, the questions framed are answered

in affirmative. Hence, the punishment of dismissal from

service imposed against the workman cannot be upheld.

11. Now, the question for consideration is as to what

relief the workman is entitled. In view of the findings that

the punishment imposed against the workman cannot be

upheld, he is entitled for reinstatement in service with

continuity from the date of dismissal from service. However,

the workman is not entitled for any back wages, as he has

neigther pleaded nor proved that he was not gainfully

employed from the date of his dismissal. Hence, he is not

entitled for any back wages.

Therefore it is ordered:

ORDER

The action of the management of Saoner Sub-Area

of WCL, Distt. Nagpur, in dismissing Sh. Hemraj Devraj

Janbade, Category I Mazdoor, from services is illegal and

unjustified. The order of dismissal from service of Shri

Hemraj Devraj Janbade is set aside. The workman be

reinstated in service with continuity from 29.10.1991.

The workman is not entitled for back wages or any

other relief. The party no. 1 is directed to give effect to the

award within one month, from the date of publication of

the award in the official gazette.

J.P. Chand, Presiding Officer

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2177

New Delhi, the 8th February, 2012

S.O. 897.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947, the Central Government

hereby publishes the Award Part (Ref. No. CGIT-2/100 of

2000) of the Central Government Industrial Tribunal/Labour

Court No. 2, MUMBAI now as shown in the Annexure in

the Industrial Dispute between the employers in relation to

the management of BANK OF MAHARASHTRA and their

workmen, which was received by the Central Government

on 10/01/2012.

[No. L-12011/65/1996-IR(B-II)]

SHEESH RAM, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL NO. 2, MUMBAI

PRESENT

K.B. KATAKE

Presiding Officer

REFERENCE NO. CGIT-2/100 of 2000

EMPLOYERS IN RELATION TO THE MANAGEMENT

(1) BANK OF MAHARASHTRA

The Deputy General Manager

Bank of Maharashtra

'Lokmangal'

1501, Shivaji Nagar

Pune 411 005.

(2) MAHARASHTRA EXECUTORS AND TRUSTEE CO.

LTD.

Maharashtra Executors & Trustee Co. Ltd.

'Lokmangal'

1501, Shivaji Nagar

Pune 411 005.

AND

THEIR WORKMEN

The General Secretary

Bank of Maharashtra Karmachari Sena

77, Yashoda Niwas

Shivaji Park, Dadar

Mumbai 400 028

APPEARANCES:

FOR THE EMPLOYER No. 1 : Mr. V.Narayanan,

Advocate.

FOR THE EMPLOYER No. 2 : Mr. M.B. Anchan,

Advocate.

FOR THE WORKMEN

: Mr. S.Z. Chowdhary,

Advocate.

Mumbai, dated the 2nd December, 2011.

AWARD

1. The Government of India, Ministry of Labour &

Employment by its Order No. L-12011/65/1996-IR(B-II) dated

06/10/2000 & Corrigendum dated 15/03/2001 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 industrial dispute to

this Tribunal for adjudication:—

"1) Whether the employees of the Maharashtra

Executor and Trustee Company Ltd. (MTCO) can

be treated as employees of the Bank of

Maharashtra?

2) Whether the employees of the METCO are entitled

to the benefits of bi-partite Settlements for Banking

Sector?

3) Whether the denial to treat them at par with the

employees of the Bank of Maharashtra is legal and

justified?

4) If so, what relief the workmen are entitled to?

2. After receipt of the reference, both the parties were

served with the notices. They appeared through their

respective legal representatives. The second party union

has filed its statement of claim at Ex-9. According to them,

the second party is a trade union whereas the first party is

a Banking Company and Nationalized Bank. First party no.

2 is a subsidiary company of first party no. 1. The employees

of the two organizations are identical and the handful

employees of Trustee company cannot be treated as

separate entity at all. The employees are getting DA on par

with the employees of Bank of Maharashtra. The entire

share capital of the trustee company is held by the Bank of

Maharashtra. The Chairman of both the companies was

the same till 1995. Some Directors of the Bank of

Maharashtra are nominated to the Board of Directors of

the Trustee Company. The first party no. 2 was set up for

effectively carrying out the object of the Bank. There was

Bi-partite agreement between the two Associations.

However when the scale of pay of employees of Bank were

revised, the employees of Trustee company were not given

this scale of pay as per Bi-partite settlement immediately.

However in 1986 or there about some benefits of 4th Bi-

partite settlement were given with retrospective effect.

There was a 5th Bi-partite settlement between 1987 and

1989. The said settlement was further modified on 29/06/

1990. The advantage of the 5th Bi-partite Settlement was

given to the Bank employees.

3. Till 1987 employees of Trust were receiving the

advantage of various settlements in respect of pay scales

S-3\E\4735RR\4735RR

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THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

with the employees of Bank. However, in 1991, Bank of

Maharashtra took certain unilateral decision and issued a

draft circular dt. 6/8/1991 and proposed service conditions

and proposed service conditions were informed to the

employees of the Trust company by which the employees

of Trust company were to get much lower scale than those

available to the employees of the Bank. Inspite of several

protests and representations, the first party refused to give

equal benefit of pay scale to the employees of Trustee

Company. The employees of Trustee Company are

receiving low pay scale, lower increments, leave pay etc.

Therefore second party filed a writ petition before Hon'ble

High Court no. 592/1992. After hearing both the parties,

Hon'ble Court directed to avail remedy before Industrial

Tribunal. They approached to ALC(C). ALC called both

the parties. As there was no settlement, he sent a report of

failure.

4. The second party union prays for declaration that

the first party no. 2 be declared as part an parcel of first

party no. 1 and both are one and the same and the

employees of first party no. 2 are the employees of first

party no. 1. They also sought for direction to direct the

bank to apply service conditions of the Bank employees to

the employees of Trust Company also as per the 5th Bi-

partite settlement and also pray for cost of the reference.

5. The first party no. 1 resisted the statement of claim

vide its written statement Ex-13 whereas first party no. 2

resisted the statement of claim vide its written statement

ex-15. They have raised the preliminary objection that

appropriate Govt. is the State Govt. Therefore, this Tribunal

has no jurisdiction. They have challenged all the allegations

of the second party. According to them they are separate

entities and the employees of first party no. 2 are not entitled

to get the benefits of 5th Bi-partite Settlement. They are

not employees of first party no. 1. Therefore they pray that

the reference be dismissed.

6. My Ld. Predecessor had framed the issues at Ex-

21. At the instance of first party, additional issue no. 1(A)

was framed as per order below Ex-22 and it was treated as

preliminary issue. My Ld. Predecessor heard both the

parties. By his order dt. 1/6/2006 he decided this preliminary

issue in favour of the second party union. He held that

Central Govt. is the appropriate Govt. The said order was

challenged before Hon'ble High Court in WP no. 6762/

2007. During pendency of the writ, the parties have arrived

at a Settlement. Therefore they approached the Hon'ble

High Court and submitted the proposal of settlement duly

signed by the parties. In the light of compromise on record,

Hon'ble Court disposed of the writ petition. The parties

have filed the memorandum of settlement on record and

pray to pass the award in terms of memorandum of

settlement. Thus I pass the award in terms of memorandum

of settlement. Thus the order:

ORDER

The reference is allowed as per the memorandum of

settlement Ex-74. Memorandum of settlement be treated as

part of the award. The management to deposit the amount

as agreed in the memorandum of Settlement.

Date: 02.12.2011

K.B. Katake, Presiding Officer

Ex. No. 74

BEFORE THE HON'BLE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL NO. 2 AT MUMBAI.

REFERENCE NO. 2/100 OF 2000.

BETWEEN

1) Bank of Maharashtra

2) The Maharashtra Executors and Trustee Co. Ltd.

AND

THEIR WORKMEN

through the Bank of Maharashtra Karmachari Sena

MAY IT PLEASE THIS HON'BLE COURT:—

1) The Award - Part I passed by this Hon'ble Tribunal

in the above reference was challenged by the First Party

No. 2 vide Writ Petition No. 6762 of 2007.

2) The parties to the reference have negotiated the

subject matter of above reference and have settled the

same vide Memorandum of Settlement dated 19/11/2011, a

copy whereof is hereto annexed and marked as Annexure

"A".

3) In view of the said Memorandum of Settlement

dated 19/11/2011, the parties hereto have filed consent

terms dated 28/11/2011 before the Hon'ble Bombay High

Court on 28/11/2011 and the said Hon'ble Court was pleased

to dispose of the said Writ Petition No. 6267 of 2007 on 28/

11/2011. Copies of the said consent terms dated 28/11/2011

and the order passed by the Hon'ble Bombay High Court

in view thereof are hereto annexed and marked as Annexure

"B" & "C" respectively.

4. It is, therefore, prayed that the reference may please

be disposed of as settled.

1. For Bank of Maharashtra.

Mumbai :

Dated : 1/12/2011

For the Maharashtra Executor

and Trustee Co. Pvt. Ltd.

2. For the Maharashtra Executors and Trustee Co.

Ltd.

Gen. Secretary

Bank of Maharashtra Karmachari Sena

FOR THE WORKMEN.

S.Z. CHAUDHARY

Advocate

For Bank of Maharashtra Kamamachari Sena

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2179

MEMORANDUM OF SETTLEMENT

WAGE REVISION 2011

BETWEEN

MANAGEMENT OF

THE MAHARASHTRA EXECUTOR & TRUSTEE CO.

PVT. LTD.

AND

BANK OF MAHARASHTRA KARMACHARI SENA

(Representing Workmen Employees of METCO)

MEMORANDUM OF SETTLEMENT

between

Management of

The Maharashtra Executor & Trustee Co. Pvt. Ltd.

and

Bank of Maharashtra Karmachari Sena

(Representing Workmen Employees of METCO)

INDEX

PARTICULARS

PAGE NO.

1) Short Recital

2) Terms of Settlement & Service Rules

4-7

3) Date of Effect & Implementation

8-9

MEMORANDUM OF SETTLEMENT

BETWEEN

MANAGEMENT OF

THE MAHARASHTRA EXECUTOR & TRUSTEE CO.

PVT. LTD.

AND

BANK OF MAHARASHTRA KARMACHARI SENA

(Representing Workmen Employees of METCO)

INDEX

PARTICULARS

PAGE NO.

Short Recital

Terms of Settlement & Service Rules

4-7

Date of Effect & Implementation

8-9

vuqØekad 6981 fnukad 18&11&11 #i;s 1000@&

eqnzkad dks.kRok dkj.kklkgh ikiko;kpk vkgs Agreement

eqacbZ eqnzkd vf/kfu;e 1958 ps vuqPNsn---------------------

eqnzkd uko The Maharashtra Executor and Trustee Co. Pvt. Ltd.

laiw.kZ irk 568, Kesariwada, Adjacent to Bank of Maharashtra

Narayan Peth Branch, Pune-411030

eqnzkda /kkjdkph lgh

MEMORANDUM OF SETTLEMENT

MEMORANDUM OF SETTLEMENT UNDER

SECTION 2(p) AND SECTION 18(1) OF THE

INDUSTRIAL DISPUTES ACT, 1947 READ WITH RULE

62 OF THE BOMBAY RULES is executed on 19th day of

November 2011 at Mumbai BETWEEN Management of

THE MAHARASHTRA EXECUTOR & TRUSTEE CO.

PVT. LTD., having its registered office at 568, Narayan Peth,

'Kesariwada' PUNE - 411 030 (hereinafter referred at as the

"COMPANY")

AND

BANK OF MAHARASHTRA KARMACHARI

SENA, 25, Unique House, Brelvi Marg, Fort MUMBAI -

400 023, registered as Trade Union at Mumbai Registration

No. B/Y/2/9750 representing Workmen Employees of The

Maharashtra Executor & Trustee Co. Pvt. Ltd. (herein after

referred to as "UNION")

NAMES OF THE PARTIES

Representing Management of

Representing Workmen

The Maharashtra Executor &

Employees of The

Trustee Company Private

Maharashtra Executor

Limited

& Trustee Company

Private Limited

-Bank of Maharashtra

Karmachari Sena

1) Mr. V.Y. Chhapekar

1) Mr. Sudhir Joshi

Director, METCO

President.

2) Mrs. Madhuri Kulkarni

2) Mr. Ashok Kule.

Chief Executive Officer

Working President

METCO.

3) Mr. Nitin Rege

General Secretary

4) Mr. Ashok Jadhav

Vice President

5) Mr. Krishnakumar

Paul

Organizing Secretary

6) Mr. Anil Bhatvadekar

Organizing Secretary

SHORT RECITAL

WHEREAS The Maharashtra Executor & Trustee Co. Pvt.

Ltd. is fully owned Subsidiary of Bank of Maharashtra

incorporated under the Companies' Act 1913 in the year

1946

AND WHEREAS majority of the workmen employees of

the Company are the members of Bank of Maharashtra

Karmachari Sena a Trade Union registered under Trade

Unions Act.

AND WHEREAS the Union submitted its charter of

demands on 12-08-2008 asking for the revision in the salary

and the service conditions of the workmen.

AND WHEREAS the Company and the Union thereafter

had long discussions and negotiations on the demands of

workmen.

AND WHEREAS the Company and the Union and the

workmen have realized the global changes in the business

environment and the essence of improvement in service to

the customer as the company is engaged in service sector.

AND WHEREAS the improvement in performance,

flexibility while performing any task and achieving highest

productivity has been accepted by the Union and the

workmen as essence of this settlement.

AND WHEREAS the Company and the Union after

negotiation and several round of talks have arrived at

S-3\E\4735RR\4735RR

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THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

consensus on various issues in respect of the demands

and accordingly signed and executed a MOU on 14/11/

2011 (Annexure 1) and mutually agreed for a package for

the workmen employees to the extent of Rs. 9.75 lakhs

towards enhanced salary inclusive of additional load in

P.F. Contribution by employer, notional arrears and

enhanced limits of other benefits

AND WHEREAS in pursuance of above MOU both the

parties have arrived at consensus on various issues forming

part of this settlement and decided to reduce it in writing

for smooth implementation thereof.

TERMS OF SETTLEMENT

NOW IT IS HEREBY AGREED AND DECLARED BY AND

BETWEEN THE PARTIES HERETO AS UNDER:—

1) APPLICABILITY:

This settlement will be applicable to the workmen

employees of the company who are on the roll of the

company as on 01/10/2007

2) SCALES OF PAY

For Clerical Cadre

4410(215x3)-5055(335x3)-6060(470x4)-7940(500x3)-

9440(560x4)-11680-(970x1)-12650 (560x1)-13210 (20 years)

For Subordinate Staff

4060-(105x2)-4270 (115x2)-4500(135x2)-4770(165x3)-

5265(195x4)-6045(235x3)-6750(270x3)-7560(20 years)

Note:

(a) Fitment in new scales of pay shall be on a stage to

stage basis.

(b) There shall be no change in the dates of annual

increments because of the fitment.

Stagnation Increment:

FIVE (5) Stagnation increments (on reaching the

maximum) of Rs. 560/- for Clerks with interval of 3 years

and Rs. 270/- for Sub-Staff with interval of two years.

3) DEARNESS ALLOWANCE

Clerical Staff:

D.A. shall be calculated @0.15% of Basic Pay +

Computer Allowance of each slab of 4 points beyond 2288

points

Sub-Staff:

D.A. shall be calculated @0.15% of Basic Pay +

Computer Allowance + Special Allowance of each slab of 4

points beyond 2288 points.

D.A. in the above manner shall be paid for every rise

and fall of 4 points over 2288 points in the quarterly average

of the All India Average Working Class Consumer Price

Index (general). Base 1960=100

The working of D.A. will be as under.

(CPI-2288)/4*0.15.

There will be no ceiling on D.A.

4) HOUSE RENT ALLOWANCE

HRA shall be paid as under:

CLERKS: 7% on Basic Pay+Computer Allowance

Sub-Staff: 7% on Basic Pay+Computer

Allowance+Special Allowance in full, wherever applicable,

with no ceiling limits for both Clerk & Sub-Staff.

5) CITY COMPENSATORY ALLOWANCE

The C.C.A. shall be paid as under:—

1) Clerks—@ 4% of Basic pay with a maximum of Rs.

450/- p.m.

2) Sub-Staff—@ 4% of basic pay with a maximum of

Rs. 300/- p.m.

6) OTHER ALLOWANCES

a) SPECIAL ALLOWANCE

Uniform Special Allowance of Rs. 505/- which shall

rank for D.A. and H.R.A. shall be paid to all Sub-Staff who

shall perform such duties as per the orders of Management.

b) COMPUTER ALLOWANCE:

1. Clerks:

Rs. 910 per month.

2. Sub-staff:

Rs. 500/- per month.

Which shall rank for D.A.

c) MEDICAL REIMBURSEMENT

Medical Reimbursement shall be available to the

workman and members of their family consisting of the

Workman's spouse (husband or wife) and dependent

children and wholly dependent parents on declaration

basis:—

Clerks:

Rs. 3,000 per year

Sub-Staff:

Rs. 2,500/- per year

d) WASHING ALLOWANCE

Rs. 150/- per month to Sub-Staff. This will not be

counted for D.A. and H.R.A.

PROVIDENT FUND

Provident Fund shall be deducted @ 10% of the

Basic Pay only and no other Allowances etc. shall qualify

for the said P.F. deductions; and equal contribution shall

be made from the Company for both Clerks & Sub-Staff to

the Provident Fund.

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2181

8) GRATUITY

Gratuity applicable as per the prevalent Gratuity Act

and as per the provisions of Trust Deed of Gratuity fund

Trust of the Company.

9) BONUS

As per provisions of Payment of Bonus Act, as

applicable.

10) FESTIVAL ADVANCE

Clerk:

Rs. 10,000/-

Sub-Staff:

Rs. 8,000/-

Festival advance can be availed once in calendar

year and will be repaid in 10 equal monthly installments

from the salary of the employee.

11) OTHER FACILITIES

a) Halting Allowance

Clerks:

Rs. 300/-

Sub-Staff:

Rs. 200/-

RULES FOR HALTING ALLOWANCE

i. For the purpose of Halting Allowance, a day shall

mean each period of 24 hours or part thereof

reckoned from the time the employee leaves

headquarters, provided the duration of absence

from headquarters cover at least one night.

ii. Halting allowance is payable in addition to the Class

of Fare to and fro, to which the employee is entitled

for travel as on tour.

iii. Where an Employee is required to travel within

Municipal Limits, Municipal Corporation including

Cantonment or Panchayat limits or where an

employee is required to travel outside such limits

but within 5 Kms. from the Office where he is

working, no halting allowance will be payable.

b) Salary Advance

Advance against salary can be availed for maximum

three times in a year @ 75% of Net (take home) salary.

c) Leave Fare Concession

L.F.C. of Rs. 5,500/- once in four years with Privilege

Leave encashment facility for maximum 30 days for both

Clerks & Sub-Staff.

RULES FOR LEAVE FARE CONCESSION

i. Full time permanent Employees will be given L.F.C.

provided they have completed 11 month's active

service.

ii. The amount of L.F.C. will be the actual return

Railway or Bus Fare incurred by the Employee and

members of his/her family or the outer limit of

Rs. 5500/- whichever is lower.

iii. An Employee will be permitted to avail leave fare

concession once in every four years.

iv. For the purpose of availment of L.F.C., the employee

shall produce satisfactory evidence of the actual

expenditure incurred either by way of travel tickets

or money receipts giving full details. It is clarified

that an employee claiming reimbursement under

L.F.C. shall produce money receipt as evidence and

if the money receipt is not available, any other

satisfactory evidence of travel along with a suitable

explanation for the non production of money

receipt/s.

v. For the purpose of L.F.C. the expression "Family"

shall mean the employee's Spouse, Wholly

dependent children and wholly dependent parents.

vi. The Commencement of four year period for the

purposes of L.F.C. will be in continuation of the

previous block of individual employee.

vii. The employee can surrender his/her LFC block and

encash the eligible amount. However the amount

so encashed shall be liable for Income-Tax as per

the extant Income-Tax rules.

The employee should avail minimum of 2 days leave

for the said purpose.

d) Medi-claim Facility

The workmen employees shall be covered under

Medi-claim Scheme under Maha-Bank Swasthya Yojana

as per the provisions of the said scheme up to the insurance

cover of Rs. 1,00,000/- per year.

The premium thereof shall be borne by the Company.

12. SERVICE RULES:

Model Standing Orders for Workmen as per the

Industrial Employment (Standing Order) Act, 1946, as per

Sch. I (B) of Bombay Industrial Employment (S.O.) Rules

1959 shall continue to apply to the Workmen Employees.

13) The extant provisions under Leave rules,

Computerization Policy & Promotion Policy shall continue

to be applicable till amended.

14) DATE OF EFFECT & IMPLEMENTATION

A. Period of Settlement:

This settlement shall be binding on the parties and

will come in force from 1.10.2007 and will remain in force till

31.03.2013 subject to the dates of implementation for various

provisions.

S-3\E\4735RR\4735RR

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THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

B. Implementation:

Various provisions of this Settlement shall take effect

from the dates specified herein below.

(i) The Scales of Pay, Stagnation Increment, Dearness

Allowance, City Compensatory Allowance, House

Rent Allowance, fixed Computer Allowance,

Provident Fund, Medical Aid and other allowance

shall be effective from 01.04.2011.

(ii) All other facilities such as Halting Allowance,

Leave Fare Concession shall be effective from the

date of this settlement.

C. Arrears:

The notional arrears arising out of this settlement

will be paid from 1.10.2007 till 31.3.2011 and provident Fund

deductions will not be applicable on it.

i. The amount of Notional Arrears to be distributed

amongst the workmen shall not be more than

Rs. 2,00,000/-. The apportionment of the same shall

be as under:

Clerks:

Rs. 275/- p.m.

Sub-Staff:

Rs. 235/- p.m.

ii. The arrears for the period from 01.04.2011 to 31.10.11

will be paid at flat rate i.e.

[(The salary payable at new scale for the month of

APRIL 2011) Less (The Salary already paid for APRIL 2011)]

multiplied by 7.

The salary for the month of and from November 2011

will be calculated and paid as per this settlement.

D. The Bank of Maharashtra Karmachari Sena on

behalf of the workmen employees agrees that during the

operation of this Settlement, the employees will not raise

any demand of any nature whatsoever in respect of the

matters covered by this Memorandum of Settlement.

E. The Bank of Maharashtra Karmachari Sena whole

heartedly assures co-operation for revitalization &

strengthening of business & improved profitability and

shall stand committed for improving the efficiency of the

Company and improved contribution of employees in

development of business and housekeeping which is an

essence of this agreement as stated here inabove.

15. INTERPRETATION:

If there is any difference of opinion regarding

interpretation of any of the provisions of this Settlement,

the matter shall be taken up with the Management by the

Union for discussions and amicable settlement.

16. The financial benefits emanating from the

aforesaid package shall be given effect only after execution

of the agreement and compliance of the terms and

conditions as laid down in the MOU dated 14/11/2011 as

per Annexure 1 executed by both the parties.

FOR MANAGEMENT OF

THE MAHARASHTRA EXECUTOR & TRUSTEE CO.

PVT. LTD.

1. Mr. V.Y. Chhapekar

Director, METCO

for the Maharashtra Executor

& Trustee Co. Pvt. Ltd.

2. Mrs. Madhuri Kulkarni

Chief Executive Officer, METCO

Chief Executive Officer

WITNESSESS

(1)Signature: .....................

(2) Signature:.....................

Name:.................................

Name:.............................

Address:...................

Address:...........................

For BANK OF MAHARASHTRA KARMACHARI SENA

(1)Mr. Sudhir Joshi

(2)

Mr. Ashok Kule

President-BOMKS

Working President-

BOMKS

(3)Mr. Nitin Rege

(4)

Mr. Ashok Jadhav

General Secretary-

Vice-President

BOMKS

(5)Mr. Krishnakumar Paul

(6)

Mr. Anil Bhatwadekar

Organizing Secretary-

BOMKS

WITNESSESS

1) Signature: .....................

2) Signature:.....................

Name:.................................

Name:.............................

Address:...................

Address:...........................

MEMORANDUM OF UNDERSTANDING

BETWEEN

MANAGEMENT OF

THE MAHARASHTRA EXECUTOR &

TRUSTEE CO. PVT. LTD.

AND

BANK OF MAHARASHTRA KARMACHARI SENA

(Representing Employees of METCO)

MAHARASHTRA

vuqØekad 8451 fnukad 14&11&11 #i;s 100@&

eqnzkad dksf.kR;k dkj.kklkBh okijko;kpk c®d djkj

eqEcbZ eqnzkad vfèfu;e 1957 ps vuqPNsn---------------------

mnzkad dj laiw.kZ uko phQ ,fDlD;qfVo vkWfQlj fn egkjk"Vª

S-3\E\4734RR2\4734RR7

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2183

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irk iq.ks

nzkad èkjkdkph@gLrs O;orhph lgh

MEMORANDUM OF UNDERSTANDING

THIS MEMORANDUM OF UNDERSTANDING is

executed on this 14th day of November 2011 at Pune

BETWEEN Management of THE MAHARASHTRA.

MEMORANDUM OF UNDERSTANDING

THIS MEMORANDUM OF UNDERSTANDING is executed

on this 14th day of November 2011 at Pune BETWEEN

Management of THE MAHARASHTRA.

WHEREAS The Maharashtra Executor & Trustee Co. Pvt.

Ltd. is a fully owned Subsidiary of Bank of Maharashtra

incorporated under the Companies Act. 1913 and having

its Registered Office at 568, Narayan Peth, Kesariwada'

PUNE-411030.

AND WHEREAS majority of the employees of the Company

are the members of Bank of Maharashtra Karmachari Sena

a Trade Union registered under Trade Unions Act;

AND WHEREAS the union submitted its charter of

demands on 12-08-2008 asking for the revision in the salary

and the service conditions of the wrokmen

AND WHEREAS the company and the union thereafter

had the long discussions and negotiations on the demand

of the workmen

AND WHEREAS the union and the workmen had earlier

raised the dispute claiming the services conditions on the

par of the employees of the Bank of Maharashtra

AND WHEREAS after series of discussions the union and

the workmen have given up their demand and have agreed

to withdraw the Reference (CGIT) No. 2/100 of 2000 pending

in the Central Industrail Tribunal Mumbai and withdraw all

their allegations, disputes, grievances, claims, demands

and legal proceedings against the Company.

AND WHEREAS the company and the union and the

workmen have realized the global changes in the business

environment and thus have realized the essence of

improvement in service to the customer as the company is

engaged in service sector

AND WHEREAS the improvement in performance and

achieving highest productivity has been accepted by the

union and the workmen as essence of this understanding.

EXECUTOR AND TRUSTEES CO. PVT. LTD., having

its registered office at 568, Narayan Peth, 'Kesariwada'

PUNE-411 030 (hereinafter referred to as the "COMPANY")

AND

BANK OF MAHARASHTRA KARMACHARI

SENA, a registered Trade Union having Registration No.

B/Y/2/9750 and having Registered Office at 25, Unique

House, First Floor, Brelvi Street, Fort, Mumbai 400 023

(herein after referred to as the "UNION")

NAME OF THE PARTIES

Representing Management of Representing Employees

The Maharashtra Executor &

of The Maharashtra

Trustee Company Private

Executor & Trustee

Limited

Company Private Limited

-Bank of Maharashtra

Karmachari Sena

(1)Mr. V. Y. Chhapekar

Mr., Ashok Kule

Director

-Working President.

(2)Mrs. Maedhri Kulkarni

Mr. Nitin Rege,

Chief Executive Officer

General Secretary,

METCO

Mr. Ashok Jadhav,

Vice President

Mr. Anil

Bhatawadekar

Organizing Secretary.

Mr. Paul

Krishnakumar

Organising Secretary

AND WHEREAS in pursuance of above

understanding Union submitted their Charter of Demands

on behalf of Employees for consideration of Management

of Company and after several rounds of talks both the

parties have arrived at consensus on various issues forming

part of this settlement and decided to reduce it in writing

for smooth implementation thereof;

AND WHEREAS both the parties affirm their faith in

democratic principles and bind themselves to settle all future

differences, disputes and grievances by mutual

negotiations, a conciliations and voluntary arbitration and

promote constructive co-operation and abide by the spirit

of this agreement.

AND WHEREAS it has been agreed by the Union

that every employees shall exhibit flexibility while

performing any task entrusted to them.

AND WHEREAS the detailed modalities are being

worked out and finalised, both the Company and the UNION

have in the mean time reached an understanding to settle

their disputes and issues whereunder the Company and

the Union have after elaborate discussions mutually agreed

to a package for the workmen employees to the extent of

Rs. 9.75 lacs towards enhanced salary, notional arrears and

enhanced limits of other benefits.

S-3\E\4735RR\4735RR

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THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

AND WHEREAS after the modalities are woked out

the parties would be executing the required Agreement

containing specific and elaborate provisions procedure etc.

NOW IT IS HEREBY AGREED AND DECLARED BY

AND BETWEEN THE PARTIES HERE TO AS UNDER:—

1. Applicability: This settlement will be applicable to

the employees/workmen of the company who are on the

role of the company as on 01-10-2007.

2. The Union has unconditionally agreed and

accepted the offer of the Company whereunder a total

amount of Rs. 9.75 lacs would be payable to the workmen

employees in the manner and in the form as may be decided

between the Company and Union in full satisfaction of

their demands.

3. The distribution of the amount of Rs. 9.75 lacs will

be as under:

Quantum of enhanced salary from

Rs. 6.71 lacs

01-04-2011 to 31-03-2012 including additional

burden on P.F. Contribution by Company

Notinal arrears from 01-10-2007 to

Rs. 2.00 lacs

31-03-2011

Arrears for enhanced limit of LFC,

Rs. 0.76 lacs

medical reimbursement etc.

Enhancement in Mediclaim facility

Rs. 0.28 lacs

(payment of premium by the

Company

TOTAL

Rs. 9.75 lacs

4. All the litigations/court cases shall be withdrawn

by both the parties and there shall be no claims or counter

claims on execution of this MOU. Upon execution of the

Agreement the court cases will be withdrawn by filing

consent terms.

5. The financial benefits emanating from the aforesaid

package shall be given effect only after execution of the

Agreement and withdrawal of the litigation/court cases by

both the parties.

6. The proposed Agreement will be binding on the

parties and valid upto 31-03-2013. During the operation of

this Agreement the workmen will not for any reason

whatsoever raise any demand of any nature whatsoever

on the Company in respect of matters related and to be

incorporated in the proposed agreement.

In witness whereof the parties have signed this MOU on

the date mentioned hereinabove

SIGNED AND DELIVERED on behalf of

MANAGEMENT OF

THE MAHARASHTRA EXECUTOR & TRUSTEE CO. PVT.

LTD.

1. Mr. V. Y. Chhapekar

The Director of METCO

2. Mrs. Madhuri Kulkarni

Chief Executive Officer, METCO

WITNESSES

(1) Signature............

(2) Signature.........................

Name: Shri Y. P. Bhateja Name: V.B. Ghate

Address: Bank of

Maharashtra.

Maharashtra

Lokmangal, 1501,

Lokmangal, 1501 S'Nagar,

S"Nagar, Pune

Pune

SIGNED AND DELIVERED ON BEHALF OF

BANK OF MAHARASHTRA KARMACHARI SENA

1. Mr. Ashok Kule

Working President.

2. Mr. Nitin Rege,

General Secretary,

3. Mr. Ashok Jadhav,

Vice President

4. Mr. Anil Bhatawadekar

Organizing Secretary.

5. Mr. Paul Krishnakumar

Organizing Secretary

WITNESSES

(1) Signature................. (2) Signature..................

Name: Sunil G. Damle

Name: Rajendra H. Sonavane

Address:...................

Address:.................

ANNEXURE "B"

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 6762 OF 2007

The Maharashtra Executors & Trustee Co. Pvt. Ltd.

.....Petitioner

Vs.

Bank of Maharashtra Karmachari Sena & Ors.

...Respondents

CORM: Hon'ble Mr. Justice A. V. Nirgude

DATE: 28th November 2011

CONSENT TERMS

1. The parties here in have amicably settled the

dispute on the following terms:

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2185

(a) The Respondent No. 1 agrees & undertake that the

demands raised by them and which are referred for

adjudication to the Central Government Industrial

Tribunal in Reference (CGIT) No. 2/100 of 2000 shall

stand withdrawn.

(b) In view of the demands being withdrawn the parties

herein agree that no Industrial Dispute is in

existence between the parties and the Reference

(CGIT) No. 2/100 of 2000 shall stand disposed of in

terms of these consent terms.

& Award dated 01st June 2006 passed by the

Presiding Officer Central Government Industries

Tribunal in Reference (CGIT) No. 2/100 of 2000 shall

stand set aside.

HIGH COURT, BOMBAY

IN THE HIGH GOURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 6762 OF 2007

The Maharashtra Executors and Trustee

Company Pvt. Ltd.

.....Petitioner

Versus

Bank of Maharashtra Karmachari Sena

& Others

.....Respondent

Mr. K.S. Bapat i/b. M/s. Desai & Desai for the petitioner

Mr. S.Z. Choudhary for the Respondent No. 1

Mr. Sachin Joshi for the Respondent No. 2

CORAM: - A.V. NIRGUDE J.,

DATED:- 28th NOVEMBER, 2011.

P.C.

1. Not on board. On production, taken on board.

2. The petitioner and the respondent no. 1 who is the

contesting respondents have arrived at settlement. Terms

of Compromise are submitted on record. They are duly

signed by the parties and their respective advocates. Terms

of compromise are taken on record and marked Exhibit A-1.

3. Write Petition stands disposed of in terms of Exhibit

A-1.

(A. V. NIRGUDE, J.)

"Disclaimer Clause: Authenticated copy is not a

Certified Copy"

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New Delhi the 8th February, 2012

S.O. 898.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947, the Central Government

hereby publishes the Award (Ref. No. 35/2002 & 39/2002)

of the Central Government Industrial Tribunal/Labour Court

No. 2, DHANBAD now as shown in the Annexure in the

Industrial dispute between the employers in relation to the

management of BANK OF INDIA and their workman, which

was received by the Central Government on 16/1/2012.

[No. L-12011/243/2001-IR(B-II), No. L-12011/240/2001-

IR(B-II)] Sheesh Ram, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL (NO. 2) AT DHANBAD

PRESENT

Shri Kishori Ram, Presiding Officer.

In the matter of an Industrial Dispute under Section

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

REFERENCE NO. 35 OF 2002

PARTIES:

Empoloyers in relation to the management

of Bank of India and their workman.

(Ministry's order No. L-12011/243/2001 IR(B-

II) dt. 22.4.2002)

WITH

REFERENCE NO. 39 OF 2002

PARTIES:

Employers in relation to the management of

Bank of India and their workman

(Ministry's order No. L-12011/240/2001 IR(B-

II) dt. 28.4.2002)

APPEARANCES IN BOTH THE ABOVE CASES

On behalf of the workman :

Mr.

Prasad,

Authorised Representative.

On bahalf of the employers:

Mr. Jitender Kumar, Officer

(IR)

State: Jharkhand

Industry: Banking

Dated, Dhanbad, the 29th

Dec., 2011.

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THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

AWARD

The Government of India, Ministry of Labour, in

exercise of the powers conferred on the under Section

10(1)(d) of the I.D. Act., 1947 has referred the followiing

disputes vide their orders referred to above.

SCHEDULE IN REFERENCE NO. 35 OF 2002

"Whether the action of the management of Bank of

India in punishing S/Shri Babu Ram, Head Peon, Vijay Kumar

Sharma, Driver and Ram Janam Rai, Armed Guard with

warning and giving order to recover Rs. 10,000/- each is

legal and or justified? If not, what relief they are entitled

to?"

SCHEDULE IN REFERENCE NO. 39 OF 2002

"Whether the domestic enquiry conducted by the

management of Bank of India against Shri Rameshwar

Prasad, Clerk/Cashier was held as per procedure and

inconsenance with the principles of natural justice and the

punishment awarded thereafter justice and the punishment

awarded thereafter was in propertion to the charges framed?

If not, what relief the workman Shri Rameshwar Prasad is

entitled?"

2. The case of workmen S/Shri Babu Ram and 2 others

as sponsored by the union concerned in the present Ref.

Case No. 35/02 is that while working in Patna Maiden Branch

of the Bank of India, workmen Head Peon Babu Ram Driver

Vjay Kumar Sharma and Armed Guard Ram Janam Rai on

deputation with other workmen Rameshwar Prasad for

transmission of cash Rs. 40 lacs went to Buxer Branch from

Patna Main Branch of the Bank of India by the Jeep

concerned, too old one to pey on 100 K.M. at a stretch on

the road though with its stoppage for sometime after plying

it for 60-70 Kms so as not to seize its engine. The vehicle

reached Buxer and the Cash Boxes were taken to the Strong

Room of Buxar Branch of the Bank where it was counted.

Three Officials namely aforesaid Sri Rameshwar Prasad,

Clerk-Cashier (Patna Main Branch) Sri D.K. Ojha, Head

Cashier and Sri D.R. Mali, Asstt. Manager, both letter of

the Buxer Branch were there in course of the counting. The

receipt for Rs. 40 lacs only was issued to aforesaid

Rameshwar Prasad, but just thereafter, there was a power

(Electricity) failure resulting in darkness in the strong room.

Then at the call of Sri D.K. Ojha to Peon Janardan Pd for

supply of electricity through Generator, the latter went near

the gate of the strong room, and aforesaid Sri Ojha by

taking advantage of the darkness handed over a bundle of

currency notes to aforesaid Janardan Pd., who went, and

power was restored. Then Sri Ojha suggested for re-

counting of the cash. At its recounting, a shortage of Rs.

50,000/- (fifty thousand rupees) only was found in it.

Sri Rameshwar Pd. was puzzled to hear it, and was asked

for returning the counterfoil of cash receipt and cutting

was effected as Rs. 39 lacs 50 thousand over the word 40

lacs. At the incidence, the entire cash remittance party was

taken aback. An FIR was lodged by the Management with

the Buxar Police station and accordingly the workmen were

put to trail by the learned C.J.M. Buxar.

3. Further case of the Union is that on a complaint of

one workman Rameshwar Prasad before the learned C.J.M.,

Buxar, as per whose direction to the local State Bank of

India, its Senior Officer after an enquiry submitted a detail

report to the Learned C.J.M. who took cognizance against

Sri D.R. Mali, the Asstt. Manageer, Sri D.K. Ojha, Head

Cashier, and Shri Janardan Prasad, Peon, all of Buxar Branch,

who were put to trial. A revision filed by aforesaid Sri Ojha

for quashing the cognizance order of the learned C.J.M.

was dismissed the learned District Judge, Buxar.

Meanwhile at the domestic enquiry into the charges

against the workmen who were chargesheeted for the

incidence, though the Enquiry Officer submitted his finding

to the Disciplinary Authority about the charge unproved,

yet the Disciplinary Authority suo motto substituted the

E.O.'s finding with his own, and at this second show cause

notice to them for the proposed punishment of 'warning',

they pleaded their innocence, but the Disciplinary Authority

punished them biasedly with 'warning' permanently,

deciding recovery of Rs. 10,000/- per capita from them

beyond his power. When their appeal against the order of

the Authority was dismissed, they through their Union

raised the Industrial Dispute. The Management

unconsidered their plea of holding no domestic enquiry on

the idential charge in face of their criminal trial for it. Thus

the punitive order of the Disciplinary Authority being illegal

and against the principle of natural justice was perverse

entirely. As such, the reliefs sought for are setting aside

the order for refund of their own per capita amount with Rs.

12% compount interest etc.

4. Whereas irrespective of the aforesaid repetition of

aforesaid facts about the status of the workmen and the

domestic enquiry against them, the case of the Management

with specific denials is that these three workmen with two

other staff Clerk Cashier Rameshwar Pd. and Armed Guard

Medni Singh on 22.4.1998 on deputation had to safety

deliver the cash of Rs. 40 lacs Buxar Branch by the Cash

Van No. BR ID-1658. The cash was in three Boxes under

the locks and keys which were with Rameshwar Prasad,

who had received it for remittance. But for their negligent

acts of halting the cash van at two places with short intervals

on the way from Patna to Buxar by leaving it unguarded

exposed to risk, and the delivery of the cash amount

shortage of 50 thousand in prejudice to the interest and

services less of the Bank amounting to their gross

misconduct of 1st Bipartite Settlement dt. 19.10.1966, Head

Peon Babu Ram, Driver Vijay Kr. Sharma and Armed Guard

Ram Janam Rai were issued their respective charge sheets

under Nos. ZO/IL/17/302-303 and 305 with relevant Memos

No. RO/ID/17/317, 314, 312, 313 and 311 all dt. 18.1.2000

respectively. After fairly and properly holding the domestic

enquiry, the Enquiry Officer submitted his report that the

charges in his opinion were not proved against any of the

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2187

workmen. But the Disciplinary Authority - Dy. Chief

Regional Manager of the Bank on consideration of the

record in exercise of his competent power substituted the

finding of the Enquiry Officer with his own, holding the

workmen guilty, and after giving them show cause

punishment Notice and hearing them, awarded all the three

woekmen "Warning in terms of Clause 21(IV)(C) of the

Bipartite Settlement." It was also upheld by the Appellate

Authority.

It is alleged that the Chief Manager of the Bank as

per the letters all dt. 31.1.2001 directed the workmen

concerned cash to deposit Rs. 10,000/- (recoverable from

their salaries) proportionate to the loss caused to the Bank

on consideration of their respective representations in

response to the letters dt. 13.1.2001 and show cause issued

by aforesaid Chief Manager for it. Thus the action of the

management is alleged to be legal and justified.

The Management in its rejoinder has pleaded that

the stoppage of the vehicle carrying the Bank's cash at

very short interval on two occasions on the way to Buxar

was not permissible for the security reaons. At checking

and rechecking/counting of the transmitted cash amount

by Sri D.K. Ojha, Head Casheir and Sri D.K. Mali, Asstt.

Manager in presence of Sri Rameshwar Pd., it was found

shortage of Rs. 50,000/- so a receipt for the received

Rs. 39,50,000/- was accordingly issued, but cutting has

nothing with it.

5. The case of the workman as sponsored by the

Union concerned in the Ref. No. 39/02 is that workman

Rameshwar Prasad was initially appointed as a Peon,

promoted to clerical cadre, and posted at Patna Main Branch

of Bank of India at Frazer Road Patna. While working as

Clerk/Cashier, he was entrusted with the duty of cash

remittance of Rs. 40 lacs for Buxar Branch, so he along with

driver C.K. Sharma, Armed Guard Ram Janam Rai and

Medani Singh and sub-staff Babu Ram departed by an old

vehicle for Buxar Branch on 22.4.1998. The entire cash of

said amount was kept in three steel Boxes under lock and

keys with the workman. The vehicle being too old to pey

on at one stretch over the distance of about 130 kms from

Patna to Buxar was stopped at two safe places for cooling

its engine as well as for the safety of all and the cash. The

cash van safely reached Buxar. After counting of the cash

by Sri D.K. Ojha, Head Cashier, in presence of Sri D.R.

Mali, Asstt. Manager of the same Branch, and him (the

workman), the same were kept in the cash vault and

aforesaid Astt. Manager issued him a receipt for Rs. 40

lacs. But prior to locking the vault, there was power failure,

and meanwhile, Sri D.K. Ojha called Sri Janardan Pd., the

Peon of Buxar Branch for generation of electricity through

the Private Generator. At the time of opening the door of

the strong room, aforesaid Mr. Ojha handed over

Sri Janardan Pd. a bundle of currency in the thick darkness.

After restoration of power by aforesaid Janardan Pd.,

Mr. D.K. Ojha told to recount the entire cash. At recounting

of the cash in the strong room in which the Asstt. Manager

D.R. Mali was present and it was found shortage of Rs.

50,000/- only. Thereupon, Mr. Mali asked for the receipt

from the workman and altered the amount of Rs. 40 lacs

into 39.5 lacs.

6. Thereafter, on his return to Patna, he narrated the

incidence to the authorities of the Bank, but when they

took no action against the official of Buxar Branch, on his

complaint of it before the learned C.J.M. Buxar, who after

calling for a detailed report from the senior most Officer of

the Bank took congnizance and at regular F.I.R. having

been registered against Sri D.K. Ojha, Sri. D.K. Mali and Sri

Janardan Prasad, they were put to trial. The workman also

got anticipatory bail from the Hon'ble High Court, Patna, in

the F.I.R. lodged by the Management against him.

Though the management suspended the workman,

yet in his application revoked it and posted him at Fatwah

Branch of the Bank, Meanwhile, at the initiation of the

Domestic Enquiry into the charge as per the chargesheet

assured to him by the Management, the Enquiry Officer

merely on conjecture held him guilty and submitted a

perverse enquiry report. Likewise, having agreed with the

Disciplinary Authority as his per Order No. RO/IL/17/353,

dt. 28.1.2008 biasedly punished him with lowering him to

two stages down in the pay scale and warning under clauses

(iv)(c) and 2(iv)(F) of the Bipartite Settlement without the

consideration of his innocence and requests as represented

by his letter dt. 9.11.2000. Beside that, the Management

arbitrarily also decided for recovery of Rs. 10,000/- from his

salary to make the loss of Rs. 50,000/- related to the criminal

case pending before the Learned C.J.M. concerned. He

could not get justice from the Appellate Authority. He is a

member of the Scheduled Caste Union Community raised

the Industrial Dispute through the Union concerned to

refer for adjudication. The action of the management was

not legally justified, rather it was arbitrary and

discriminatory.

7. Whereas without repetition of the facts of the

Management concerning workman Rameshwar Pd. Clerk-

cum-Cashier, the case of the Management is that since

other four workmen accompanying the workman in

remittance of the cash, he was chargesheeted as per the

chargesheet with a Memo letter under Ref. No. RO/IR/17/

301 and 320 both dt. 18.1.2000 respectively for the charge

under clause 19.8 (j) of the first Bipartite Settlement dt.

19.10.1966. At fairly holding of the domestic Enquiry by

the Enquiry Officer concerned according to the principle

of natural justice, and therein workman through Sri Ramesh

Kumar Sinha represented, the Enquiry Officer on reasoned

finding held him guilty of it, and submitted the report to the

Disciplinary Authority i.e. Dy. Chief Regional Manager,

After due show cause punishment Notice with the copies

of the E.O.'s and his an substituted finding, the Disciplinary

Authority heard the personal hearing of the workman with

defence representative over it on 24.11.2000, and

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THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

considering his written and oral submission, passed the

reasoned punishment order dt. 28.11.2000 against him under

the said clause, but without prejudice to Bank's right to

recover the less caused and without payment of any pay

and allowance (except subsistance one) and other benefits,

since his suspension period confirmed. Even the Appellate

Authority on the consideration of all the materials on the

record upheld the order of the Disciplinary Authority as

just and proper. The Management directed to put the

workman down to two stage lower in the pay scale, to

recover Rs. 10,000/- proportionate to the said shortage

amount, as well as to treat his suspension period as noted

above. A disciplinary proceeding was also initiated against

other four employees accompanying the workman in

remittance of the cash, and their seperate reference case

No. 35/2002 under adjudication. As such the action of the

Management in view of the gravity of the charge was most

reasonable, legal and justified in awarding the workman

the punishment in proportionate to the charge and

sympathetically.

8. The management in rejoinder specifically denying

the allegation noted above has pleaded that the vehicle

concerned was in good condition, but the workman as

Cashier was responsible for delivery of the amount. The

vehicle old or new is unconcerned with it. The counting

and rechecking of the cash in presence of the workmen

confirmed the aforesaid shortage amount. The law will take

its own course of action for criminal liability. Thus the

workman is not entitled to any relief.

FINDING WITH REASONINGS

9. Since the both the reference cases have arisen out

of the same cause of action between the same management

and the workman concerned, so the Ref. Case 35/2002

Camalogously taken with Ref. Case No. 39/2002 for

disposal.

On perusal of the case records of both the Reference

Cases Nos. 35 and 39 of the year 2002, I find that in course

of the evidence of the Management at preliminary point in

both the cases, on consensus of both the parties

representatives at the fairness of the domestic enquiry

against the workmen concerned, this Tribunal as per orders

dt. 19.4.2006 in both the cases at the Camp Court, Patna,

held the domestic enquiries against the workman S/Shri

Babu Ram and two others and workman Rameshwar Pd. in

their respective cases as fair, proper and in accordance

with the principal of natural justice, and accordingly the

relevant papers of the enquiries on waiving formal proof

were marked as Ext. M-1 M-2, 3, Extt. M-1 to M-9 and the

workman's identical documents as Ext. W-1 and W-2, and

respectively. Thus both the cases came up directly for

hearing the arguments.

10. The Schedule to the Ref. No. 35/2002 directly

relates to an issue about punsihment of S/Shri Babu Ram

and two others (all category staff) whereas the Schedule to

the Ref. No. 39/2002 concerns with an issue as to the

procedure of the domestic enquiry and punishment towards

workman Rameshwar Pd., Clerk-Cashier. So on admission

of the Union representative concerned, the domestic

enquiry together held against the all the four workmen

(along with other arm-guard Medini Singh) was held as fair

and proper, the question of its procedure as raised by the

workman Rameshwar Pd. automatically stood answered

irrespective of argument of the Union's Representative at

their point.

11. Next comes the point of punishments awarded to

the workmen concerned in their respective cases.

In the Ref. Case No. 35/2000, Mr. B.Pd., the Ltd. Union

Union Representative, submits that these three workmen-

S/Shri Babu Ram, Head Peon, Vijay Kr. Sharma, Driver and

Ram Janam Rai, Armed Guard were though held not guilty

by the Enquiry Officer in his finding (dateles, Ext. M-22) for

their charges (the chargesheets Ext. M-12, 7 & 1 respectively

of gross misconduct under clause 19.5 (J) of the 1st Bipartite

Settlement dt. 19.10.1966, yet punished with 'warning under

clause 21(iv) (f) of the said settlement by Dy. Chief Regional

Manager/Disciplinary Authority (hereinafter referred as

DCRM/DA as per his punishment orders all dt. 28.11.2000

(Ext. M-15, 3 and 9 respectively) on the basis of his

substituted findings over the charges proved without

considering their pleas of innocence. The DCRM/DA also

observed the above punishment without prejudice to the

Bank's right to recover from each of them the loss caused

in the matter. Their punishment was also confirmed as per

the orders No. 437, 436 & 438 dt. Nil (Ext. M-18,6 & 11) of

the Appellate Authority respectively.

10. Likewise the submission of Mr. B.Pd., the Union

Representative for the workman Rameshwar Pd., Clerk

Cashier, (Now Retd.) concerning the Ref. Case No. 39/2002

is that out of three charges (i) his failure to ensure safe

keeping of the keys of the 3 locks of three boxes of the

remittance cash and delivery of cash short of Rs. 50,000

(out of four lacs) (ii) the exposure of the entire remittance

to risk and (iii) failure to ensure built money, the Enquiry

Officer found only the charge 1 proved, and rest two

charges 2 and 3 unproved against workman clerk-cashies

Ramesher Pd. in his findings (Ext. M-8). But the Disciplinary

Authority concerned after his observance with his

substituted finding about the charges No. I and III as

proved punished him with 'bringing him to lower stage in

the scale of pay by two stages and warning under clause

21(IV)(C) and (F) of the Bipartite Settlement. Observing

without prejudice the Bank's right to recover from him the

loss caused in the matter. As per his punishment order dt.

28.11.2000 (Ext. M-3) in his aforesaid reference Case No.

Ref. 39/2003 without considering the innocence of the

workman and the sole liability of the cash remittance official

for give Bait money to him. The punishment imposed on

him is alleged to be highly puniciative in nature & excessive

in character.

11. In quick response, Shri Jitendra Kumar, the

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2189

Manager (I/R) as the Representative of the Management

has contend that all the punishments of these workmen in

their respective case concerned were quite proper &

appropriate in view of their guilt concerned. Further

contention of Ld. Resprsentative for the Management is

that the Bank has inherent right to effect a recovery of the

loss for their negligence as per Circular No. 17th Jan., 1980

as well as u/s 7(2)(c) of the payment of wages act in the

duly administrative action. Mr. Prasad, the Ld.

Representative for the workman in his reply has urged that

there was no such pleading of the Management, and

moreover the factory act is not applicable to the case.

12. On perusal & appreciation of the materials on the

both case records of the Reference Cases concerned in

view of the Sec. 11 A of the Industrial Disputes Act in 1947,

I find the following facts:—

(i) That in respect of punishment of warning as well

as recovery of Rs. 10,000/- per capita from three workmen

Babu Ram, Vijay Kr. Sharma, Ramjanam Rai (all class IV

staff) related to the Schedule to the Ref. No. 35/2002, the

Disciplinary Authority concerned with his observations/

substitute findings about the halting of the Vehicle (Cash

Van) twice unwarrantedly and unjustifiedly was pleased to

award them with the warning as per bipartite settlement.

Whereas the punishment to the workmen Rameshwar Pd.,

Staff clerk-cashier is bring down the lower stage in the

scale of pay by two stages and warning under clause

21(IV)(C) & (F) of the bipartite settlement for two charges

(1) & (3), i.e. his failure to ensure safe keeping of keys of

the locks of remittance boxes and delivery of cash short

Rs. 50,000/- at Buxar Branch, his failure to ensure to carry

Baitmoney in the case of Ref. 39/2002.

(ii) But seen look at the statements of all the workman

concerned in the domestic enquiry the common Enquiry

Reports and their punishment orders reveal that they had

safely carried and delivered the cash (Rs. 40 Lacs) and the

entire cash was kept in the safe of Buxar Branch was per

receipt issued by the Asstt. Manager concerned over the

Cash Remittance Receipt (Ext. W.1). But lateron, the Receipt

bears its striking off over the “received Rs. 40 lac” under

his signature, and later on the endorsement of Rs. 39,50,000/

- received under the signatures dt. 22.4.1998 of the Asst.

Manager D.R. Mali and the Clerk-cum-Cashier D.K. Ojha

both of Buxar Branch. The Receipt Scroll Book dt. 23.4.1998

(Ext. W.2) of the Buxar Branch as proof of the receipt of the

cash short of Rs. 50 thousands under their signatures but

the alterations of its voucher original Serial Nos. 1 to 39 as

1 to 32 speaks in volume.

(iii) Admittedly, two criminal cases firstly by the Buxar

Br. against the workman and secondly on complaint of

workan Rameshwar Pd. both pending in the Court of Buxar.

13. In the light of the aforesaid discrepencies it is

evident that the punishment orders all dt. 28.11.2000 of the

Disciplinary Authority (D.A.) (Ext. M-15,3,9) in the Ref.

Case No. 35/2002 towards workmen Sri Babu Ram Sub-

Staff, as Sepoy, Sri Vijay Kr. Sharma, Driver, and Sri Ram

Janam Rai, Armed Guard respectively and that of the

Disciplinary Authority (Ext. M-3 in the Ref. Case 39/2002)

against Sri Rameshwar Pd., the clerk-cashier prima facie

appear to be wide off the factual reality of their cases

concerned. Therefore, all the punishment of the workmen

concerned are liable to be set aside.

Under their circumstances I hold and accordingly

respond to the schedule of the Ref. Case as such: that

action of the Management of Bank of India in punishing S/

Shri Babu Ram, Head Peon, Vijay Kumar Sharma and Ram

Janam Rai, Armed Guard with warning and giving order to

recover Rs. 10,000/- cash is quite illegal and unjustified.

Hence, each of them entitled to the refund of his recovered

said amount immediately concerning their Ref. Case No.

35/2002 and in relation to Ref. Case No. 39/2002, that the

domestic enquiry conducted by the Management of Bank

of India against Sri Rameshwar Pd., Cleark-cashier (in view

of his admission) was held as per prodecure and in

consonance with the principle of natural justice, but the

punishment awarded thereafter in proporation of the

charges as alleged was quite unjust, rather perverse so the

workman Rameshwar Pd. is entitled to his pay as his pay

scale with consequential benefits (till his superannuation).

KISHORI RAM, Presiding Officer

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New Delhi, the 9th February, 2012

S.O. 899.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby published the Award Ref. 12/2006 of

the Cent. Govt. Indus. Tribunal-cum-Labour Court No. 2,

Dhanbad as shown in the Annexure, in the industrial

dispute between the management of Giridih Kshetriya

Gramin Bank, and their workmen, received by the Central

Government on 09.02.2012.

[No. L-12012/162/2005-IR(B-I)]

RAMESH SINGH, Desh Officer

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[PART II—SEC. 3(ii)]

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL (No. 2)

AT DHANBAD

PRESENT

Shri Kishori Ram, Presiding Officer.

In the matter of an Industrial Dispute under Section

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

REFERENCE NO. 12 OF 2006

PARTIES:

Employers in relation to the management

of Giridih Kshetriya Gramin Bank and

their workman.

APPEARANCES:

On behalf of the workman:

Shri Awinash Kr. Singh,

Workman himself.

On behalf of the

Mr. R.K. Singh, Pers.,

management:

Manager

State: Jharkhand

Industry:

Banking.

Dated, Dhanbad, the 19th Jan., 2012

AWARD.

The Government of India, Ministry of Labour, in

exercise of the powers conferred on them under section

10(1)(d) of the I.D. Act., 1947 has referred the following

dispute to this Tribunal for adjudication vide their Order

No. L-12012/162/05-IR(B-I) dt. 17.3.2006.

SCHEDULE

"Whether the action of the management of Giridih

Keshtriya Gramin Bank, Giridih in awarding punishment of

degradation of 10(Ten) lower stages in incremental scale

from the date of order vide order dated 15.10.2001 of the

Chairman & Disciplinary Authority to Sri Awinash Kumar

Sinha, Staff/Clerk-Cashier is justified (though the charges

No. 3 was partly proved and charges no. 4 not proved

amongst five charges)? If not, to what relief the concerned

workman is entitled to?"

2. The case of the sponsoring union concerned is

that workman Awinash Kumar Sinha has possessed all

along unblemish record of his service at Giridih Kshetriya

Gramin Bank. He is presently posted as Clerk-cum-Cashier

at Bengabad Branch in Giridih District. He was the founder

General Secretary and is presently the President of the

association. But the management arbitrarily and biasedly

dealt with him by unjustifiably transferring him by Sri

Jagdish Pd., the General Manager of the Bank from Jamua

Branch, Giridhih to Dantu Branch in Bokaro District, where

financially depriving him of receiving cash/key allowance

as contrasted with his Junior Cashier, relieving him of

handling the cash even on his deputation at the then

Branch, and prohibiting him to proceed on leave without

sanction from the Head Office. He was mala fide issued a

false and frivolous chargesheet by the Chairman of the

Bank. He submitted his reply/explanation to the

chargesheet satisfactorily, but the Management appointed

a biased Enquiry Officer (E.O.) to complete the empty

formalities in the departmental enquiry, which was held

irregularly in uttar violation of the principle of natural justice,

as he was given neither the relevant documents nor full

opportunity to cross-examination the Management's

witness, as well for his defence. The finding of the Enqiry

Officer unbased on evidence was perverse. Despite the

charges unproved, the management/the Chairman of the

Bank also the Appellate Authority as per order dt. 15.10.2001

with degradation of 10(ten) lower stage in incremental scale

punished him though he had represented. The issuance of

the chargesheet and order of punishment is ipso-facto

illegal and void abinitio. At last the union raised the

industrial issue before the A.L.C. (C), Dhanbad, which failed

for the anti-labour attitude of the Management. So the

action of the Mangement of Giridih Kshetriya Gramin Bank

towards the workman was neither legal nor justified rather

vindictive.

3. The Union in its rejoinder for the workman has

categorically denied and pleaded that the workman was

transferred in the year 1995 but for no misconduct. The

same charges were again levelled against him by

chargesheet dt. 9.5.1997. The chargesheet, appointment of

Enquiry Officer and punishment were issued by the same

authority. So it was neither fair no proper rather illegal.

4. Whereas challenging the maintainability of the

case, the contra pleaded of the Mangement with specific

denials is that Giridih Kshetriya Gramin as an establishment

of the Government of India has its accordingly named

Regulation 1985. The workman while posted as Clerk-cum-

Cashier at bank's Jamua Branch from 8.3.1995 to 7.6.1996

had committed gross misconduct under Regulation 19 read

with Regulation 30(1) of the said Bank Regulation. He was

served upon the Memorandum/Letter No. HO/VIG/186/96-

97, dt. 4.7.1996 by the Management for his explanation

within 15 days. The workman submitted his explanation dt.

20.9.1996 after a lapse of more than two months, denying

the allegation levelled against him. Thereafter, the

Management issued him a chargesheet No. HQ/IR/0079/

97-98 dt. 9.5.1997 for submitting his writtent statement of

defence in 15 days. After considering his written statement

and finding it unsatisfactory, the Management appointed

the Enquiry Officer to conduct the domestic enquiry in

accordance with the principle of natural justice. The Enquiry

Officer conducted the enquiry in presence of the workman

and his defence representative R.K. Sinha, the Zonal

Secretary of the Bank of India Employee Association (Bihar

State), who cross examined the Mangement's witnesses.

On submitting the Enquiry Report by the Enquiry officer,

having found the charges 1, 2 and 5 proved, charge No. 3

partly proved and charge No. 4 unproved, the

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Mangement issued the second show cause notice to the

workman for personal hearing at the point of punishment.

The Disciplinary Authority after giving full opportunity

and personal hearing the workman on 14.5.2001 passed an

order of punishment which was proportionate to the proved

charges against the workman. The Board of Director of the

Bank, the Appellate Authority confirmed the punishment

by dismissing the appeal of the workman. The Enquiry was

fairly and proper conducted as per the principle of natural

justice.

5. The Mangement categorically in denialful rejoinder

pleaded that since out of two employees working at the

Branch, one was handling cash, no question arise to allow

the workman to take charge of cash and key. He was granted

leave whenever he applied for it. The Enquiry Report was

based upon the materials produced in the Enquiry. The

punishment order was legal and justified as per the

Regulation of the Bank.

FINDING WITH REASONING.

6. After due consideration of the materials oral and

documentary, as produced by the Mangement and the

workman through their own witnesses MW. 1 Onkarnath

Singh, the Branch Manager of Jamua Branch as the

Enquiry Officer, MW. 2 Shamim Akhatar, the Manager of

the Same Branch, for the Management, and WW.1 Awinash

Kr. Sinha, the workman himself for the Union at the

preliminary point, the Tribunal as per order dt. 24.8.2011

held the domestic enquiry quite fair, proper and according

to the principle of natural justice in respect of the charges

levelled against him.

Thus, the case directly came up for hearing argument

on the point of punishment inflicted upon the workman for

the aforesaid proved charges Nos. 1, 2 and 5 and charge

No. 3 partly proved.

7. Mr. Bharat Bhusan Pd., The Regional Secretary,

Union Representative for workman Awinash Kr. Sinha,

submits that the amount of the loan for the chargesheet

was already recovered but there is no whisper of it in the

chargesheet, since there was full recovery of its prior to

awarding him punishment, there was no financial loss to

the Bank; that whenever the borrower went to deposite his

loan amount, he was refused by the Bank Manager, who

later on accepted his cheque for Rs. 5,600/- after keeping it

in sundry credit A/c without any justification and any

direction of the management. Further it has been urged on

behalf of the Union's Representative that as for the other

charges namely charge No. 2 & 5 and charge 3 (partly

proved), it apparently show unintentional mistakes corigible

in natural course of conduct in the banking; affairs but the

awarding the workman with the punishment of degradation

to ten lower stages in incremental scale was quite unfair

and inproper in view of allegedly proved charged. Whereas

Mr. Ravindra Kr. Singh, the Officer of the Jharkhand Gramin

Bank, presently the Br. Manager on Chas Branch as the

Representative for the Management has categorically

contended that in view of the aforesaid major misconduct

for the said charges, the aforesaid punishment awarded by

the Disciplinary Authority in consolidatedly manner was

quite just in accordance with Regulation 13 (i) (c) of Giridih

Keshtriya Gramin Bank Staff Services Regulation 1985.

8. On the perusal of the materials available on the

case record as produced in course of disciplinary

proceedings against the workman, I find following facts as

under:

(i) Out of the four misconducts as per the alleged

proved charges No. 1, 2 and 5 and charge No. 3 (Partly

proved), misappropriation of Rs. 10,000/- (Rupees seven

thousand five hundred sanctioned loan and Rs. two

thousand five hundred) deposited by the workman in

S.B. A/c No. 763 in fictitious name of Shri Gokul Rana

through its withdrawal by the workman himself appears to

have been responded by the workman that Rs. 3,400/- was

recovered in the aforesaid A/c in respect of the Charge

No. 1.

(ii) that all the rest three misconducts in the terms of

charges No. 2, 5 and partly proved charge No. 3 appears to

be admittedly mistake but intentional as stated by the

workman in course of the domestic enquiry proceeding

concerning the allegation of intercepting Rs. 19.35 debit

balance by posting credit entry of Rs. 30/- in his A/c, like-

wise not fractually posting but marking as posted without

cancellation of the withdrawal of Rs. 7,000/- and Rs. 1,000/

- by Sri Dayanand Pd. Sahu and Sri B.N. Verma against

their withdrawal forms at the relevant different time in their

respective A/cs and lastly the payment of Rs. 70/- to have

been received on 22.11.1995 against his withdrawal from in

his S.B. A/c No. 680 without posting it followed by its

conciliation in respect of the aforesaid three charges

respectively which are related to the alleged misconducts

under Regulation 19 read with Regulation 30 (i) of the

aforesaid Regulation 1985. It will not be less remarkable to

note the aforesaid latter 3 alleged misconduct of the

workman are related to mistake of unposting and non-

cancellation of withdrawal forms of the customer concerned

which may be expected of a man like the workman in the

natural course of banking services towards the customer

concerned and such mistakes were not intentional.

9. Consequent upon the show cause punishment

notice dt. 1.9.2001 (Ext. M-9), the Chairman-cum-Disciplinary

Authority as per order of punishment dt. 15.10.2001

(Ext. M.11) awarded the punishment to the workman with

degradation to ten lower stages in incremental scale under

Regulation 30(c) of the aforesaid Regulation 1985 for

charges No. 1 & 2, stoppage of one increment under

Regulation 30(b) and repreimand under Regulation 30(a) of

the said Regulation for charge No. 3 (partly proved) and

No. 5 respectively w.e.f. the date of the said order which

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THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

were highly shocking and disproportioinate to the aforesaid

allegation concerned. Since punishment order is based not

on reasoning, it is liable to set aside, as one of the charges

appears to be concretely proved.

In view of the aforesaid findings it can be safely held

that the action of the management of Giridih Kashtriya Gramin

Bank in awarding punishment of degradation of 10(Ten) lower

stages in incremental scale from the date of order

dt. 15.10.2001 of the Chairman & Disciplinary Authority to

Shri Awanish Kumar Sinha, Staff/Clerk-Cashier is quite

unjustified not only in facts but also in laws. Therefore, the

concerned workman is entitled to upgradation of the

aforesaid ten lower stages in incremental scale with all

consequential benefits w.e.f. 15.10.2001. The Management

concerned is directed to implement the award within one

month from the receipt of the award after its publication in

the Gazette of India by the Central Government.

KISHORI RAM, Presiding Officer

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New Delhi, the 9th February, 2012

S.O. 900.—In pursuance of Section 17 of the

Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 44/2008)

of the 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 State Bank of India, and their workman,

which was received by the Central Government on

07.02.2012.

[No. L-12012/33/2008-IR (B-I)]

RAMESH SINGH, Desk Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-

CUM-LABOUR COURT BHUBANESWAR

Present:

Shri J. Srivastava,

Presiding Officer, C.G.I.T.-cum-Labour

Court, Bhubaneswar.

INDUSTRIAL DISTPUTE CASE NO. 44/2008

Date of Passing Award—27th January, 2012

Between:

The Assistant General Manager,

State Bank of India, Bhubaneswar

Main Branch, Bhubaneswar,

Distt. Khurda (Orissa), Bhubaneswar. (Orissa)

... 1st Party-Management.

(And)

Their workman Sri Prakash Chandra Dash,

Qrs. No. VR 5/1, Kharvela Nagar, Unit-3,

Bhubaneswar. (Orissa)

... 2nd Party-Workman.

Appearenaces:

Shri Alok Das

... For the 1st Party-Management.

Authorized Representative

None.

... For the 2nd Party-Workman.

AWARD

An industrial dispute existing between the employers

in relation to the management of State Bank of India and

their workman has been referred to this Tribunal/Court by

the Government of India in the Ministry of Labour in

exercise of the powers conferred by clause (d) of sub-

section (1) and sub-section (2A) of Section 10 of the

industrial Disputes Act, 1947 vide their letter No. L-12012/

33/2008-IR(B-I), dated 02.06.2008 to the following effect:—

Whether the action of the management of State Bank

of India in relation to their Main Branch, Bhubaneswar in

terminating the services of Sri Prakash Chandra Dash, w.e.f.

30.09.2004, is fair, legal and justified? To what relief is the

workman concerned entitled?

2. The 2nd Party-Workman has filed his statement of

claim alleging that he had joined his services as a

Messenger on temporary/casual/daily wage basis from

October, 1990 after succeeding in interview. He was assured

to get permanent appointment order after one year or on

completion of 240 days' work in a calendar year, but despite

completion of several years of continuous satisfactory

service and putting in more than 249 days' work in each

year he was terminated and refused employment from

30.l09.2004 by the 1st Party-Management without any

written communication or payment of compensation. The

1st Party-Management is refusing employment to him

violated all principles of natural justice and mandatory

provisions of Section 25-F of the Industrial Disputes Act,

1947. He was also not given regular appointment while in

service. He therefore brought the matter in to the notice of

the C.G.M. and C.D.O. of the State Bank of India, L.H.O.,

Bhubaneswar. But on hearing nothing, he raised an

industrial dispute before the Regional Labour Commissioner

(Central) vide his letter dated 23.2.2005. Conciliation

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proceedings were started, but they failed and thereupon a

failure report was submitted to the Government and the

Government made the present reference. He is thus entitled

to get full back wages and reinstantement with continuity

of service with effect from 30.9.2004.

3. The 1st Party-Management in its reply through

written statement has stated that the present dispute is

misleading and misconceived in as much as the 2nd Party-

workman had already raised a similar dispute along with

124 other workers through the State Bank of India

Temporary 4th Grade Employees Union before the

Assistant Labour Commissioner (Central), Bhubaneswar

challenging their alleged termination of service by the 1st

Party-Management. In the said dispute the failure report

was sent by the Asstt. Labour Commissioner (Central),

Bhubaneswar ot the Ministry of Labour who in turn referred

the matter to this Tribunal for adjudication and the same is

pending before this Tribunal being I.D. Case No. 7/2007.

The name of the 2nd Party-workman is appearing at Sl. No.

47 in Annexure-A to the said reference. Thus, raising a

common dispute for same cause of action and again raising

individual dispute for same relief is nothing but an abuse

of the process of law and amounts to multiplicity of

litigation. The Asst. Labour Commissioner (Central) while

conciliating the individual disputes disregarded the

direction of the Deputy Chief Labour Commissioner

(Central) not to take any further action on the Separate

disputes raised by the same workers for the same cause of

action The allegation of the 2nd Party-workman that he

was discontinued from service on 30.9.2004 and was

signing bogus vouchers is not correct. His services were

discontinued much prior to the expiry of the panel as in

hereafter stated. He was engaged intermittently on

temporary/daily wage basis due to exigencies of work. It is

denied that he had joined the Bank from October, 1990 and

was performing the duty, which is regular and perennial in

nature. It is further denied that he was performing his duties

with all sincerity and honesty and to the best of satisfaction

of the Authority. The 2nd Party-workman had never

completed several years of continuous service in the Bank

nor he had completed 240 days of continuous service in

any calendar year preceding the date of his alleged

termination. In order to give an opportunity for permanent

absorption to the ex-temporary employees/daily wagers in

the Bank in view of the various settlements entered into

between the All India State Bank of India Staff Federation

and Management of the State Bank of India all eligible

persons were called for interview. The 2nd Party-workman

was also called for an inverview along with all other eligible

persons in the year 1993. As he was not found successful

in the said interview he could not be absorbed in the Bank's

service. The Union or the 2nd Party-workman has never

challenged the implementation of the settlement which has

now gained finality. It is further submitted that some of the

wait-listed candidates, who could not be absorbed in the

Bank's service due to expiry of the panel on 31st March,

1997 filed Writ Petitions before the Hon'ble High Court of

Orissa. But the Hon'ble High Court of Orissa by a common

order dated 15.5.1998 passed in O.J.C. No. 2787/1997

dismissed a batch of Writ Petitions and upheld the action

of the Management of the Bank. This order of the Hon'ble

High Court was also upheld by the Hon'ble Supreme Court

of India in S.L.P. No. CC-3082/1999. Hence the above matter

has attained finality and cannot be re-agitated. Since the

services of Shri Dash were terminated much prior to the

expiry of the panel his claim has become stale by raising

the dispute after lapse of a period of 10 years. It is a settle

principle of law that delay destroys the right to remedy.

Thus raising the present dispute after 10 years of alleged

termination is liable to be rejected.

4. On the pleadings of the parties following issues

were framed:—

ISSUES

1. Whether the present reference of the individual

workman during the pendency of the I.D. Case no. 7/2007

before this Tribunal on the same issue is legal and justified?

2. Whether the workman has worked for more than

240 days as enumerated under section 25-F of the Industrial

Disputes Act?

3. Whether the action of the Management of State

Bank of India in relation to their Main Branch, Bhubaneswar

in terminating the services of Shri Prakash Chandra Dash,

with effect from 30.9.2004, is legal and justified?

4. To what relief is the workman concerned entitled?

5. The 2nd Party-workman despite giving sufficient

opportunity did not produce any evidence either oral or

documentary in support of his claim and willingly kept

himself out of the proceedings at the stage of evidence by

absenting himself of his Union representative.

6. The 1st Party-Management has adduced the oral

evidence of Shri Abhay Kumar Das as M.W.-1 and filed

documents marked as Ext.-A to Ext.-J in refutation of the

claim of the 2nd Party-workman.

FINDINGS

ISSUE NO. 1

7. A specific plea has been raised by the 1st Party-

Management that a group of 125 employees including the

2nd Party-workman had already raised a similar dispute in

I.D. CAseNo. 7/2007 before this Tribunal for the same relief

which is pending for adjudication. The dispute as referred

to in I.D. Case No. 7/2007 is given below for comparison

with the dispute in the present case—

Whether the action of the Management of State Bank

of India, Orissa Circle, Bhubaneswar in not considering

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THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

the case of 125 workmen whose details are in Annexure-A

for re-employment as per Section 25(H) of Industrial

Disputes Act, 1947 is legal and justified? If not, what relief

the workmen is entitled to?

8. The name of the 2nd party-workman appears at Sl.

No. 47 in Annexure-A to the abvoe reference. In both the

cases the matter of disengagement or so called

retrenchment is involved to be considered in one or the

other way and the relief claimed is with regard to re-

employment. But challenge has been made more specifically

against the termination of service of the 2nd Party-workman

in the present case while in I.D. Case No. 7/2007 prayer has

been made with regard to consideration of the case of 125

workmen for re-employment as per Section 25-H of the

Industrial Disputes Act, 1947. In fact, in the latter case the

workmen have submitted or virtually surrendered to their

cessation of employment or alleged termination, whereas

in the present case they have challenged their termination

on facts and law. Virtually in the present case validity and

legality of the alleged termination has to be tested at the

alter of facts and legal propositions. Therefore it cannot be

said that issues involved in both the cases are same. This

case can proceed despite pendency of I.D. Case No. 7/

2007 and the present reference by the individual workman

pending for adjudication is maintainable being legal and

justified. This issue is therefore decided in the affirmative

and against the 1st Party-Management.

ISSUE No. 2

9. The onus to prove that the 2nd Party-workman

has completed one year or 240 days of continuous service

during a period of 12 calendar months preceding the date

of his alleged termination or disengagement from service

lies on him, but the 2nd Party-workman has not adduced

any evidence either oral or documentary in support of his

contention. He has only alleged in his statement of claim

that he was appointed in October, 1990 and worked till

30.9.2004 on temporary/casual/daily wage basis, but he

has not filed any certificate or reliable document showing

the break-up of year-wise service rendered by him under

the 1st Party-Management during the above period. The

1st Party-Management, on the other hand, has alleged that

the 2nd Party-workman was engaged intermittently on

temporary/daily wage basis due to exigencies of work and

he had never completed 240 days continuous service in a

calendar year. M.W.-1 Shri Abhay Kumar Das in his

statement before the Court has stated that "the disputant

was working intermittently for few days in our branch on

daily wage basis in exigencies .................... He had not

completed 240 days of continuous and uninterrupted

service preceding the alleged date of the termination". He

has denied the allegation that the workman was

discontinued with effect from 30.9.2004, but stated that

"In-fact the workman left working in the branch since June,

1991". Thus he had not worked after June, 1991. The 2nd

Party-workman has to disprove the evidence led by the 1st

Party-Management, but he has not come before the Court

to give evidence. A temporary or daily wage worker has

not right to claim reinstatement and particularly when such

an employee had not worked for 240 days continuously

during a period of 12 calendar months preceding the date

of his so-called termination to get benefit of Section 25-F

of the Industrial Disputes Act, 1947. This issue is thus

decided against the 2nd Party-workman for failing to prove

that he had worked for 240 days continuously during a

period of 12 calendar months preceding the date of his

disengagement or alleged termination from service.

ISSUE NO. 3

10. Since the 2nd Party-workman could not prove

that he had rendered 240 days continuous service under

the 1st Party-Management during a period of 12 calendar

months preceding the date of his disengagement or alleged

termination, he is not entitled for re-employment even in

case of his alleged illegal and arbitrary termination.

Moreover, he was temporary/casual/daily wage employee.

His services can be terminated at any time without assigning

any cause by the 1st Party-Management. He has no legal

right to be retained in service for the extended period, if he

was appointed for a certain period or when no time is

specified. The 2nd Party-workman has not filed any letter

of appointment or proof of having rendered service under

the 1st Party-Management for a specified period against a

regular post. The 1st Party-Management has alleged that

in time of exigencies only the 2nd Party-workman was

employed. It means that with the end of exigencies his job

also came to an end. In view of the matter the action of the

management of State Bank of India in relation to their Main

Branch, Bhubaneswar in terminating the services of Sri

Prakash Chandra Das with effect from the alleged date of

his termination is fair, legal and justified. This issue is

accordingly decided in the affirmative and against the 2nd

Party-workman.

ISSUE NO. 4

11. In view of the findings recorded above under

Issue No. 2 and 3 the 2nd Party-workman is not entitled to

any relief whatsoever claimed.

12. Reference is answered accordingly.

JITENDRA SRIVASTAVA, Presiding Officer

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2195

New Delhi, the 9th February, 2012

S.O. 901.—in pursuance of Section 17 of the

Industrial Disputes Act, 1947, the Central Government

hereby publishes the Award (Ref. No. 1356/2008) of the

Central Government Industrial Tribunal/Labour Court-

II, CHANDIGARH now as shown in the Annexure in the

Industrial Dispute between the employers in relation to the

management of PUNJAB NATIONAL BANK and their

workman, which was received by the Central Government

on 16/01/2012.

[No. L-12012/60/2007-IR (B-II)]

Sheesh Ram, Section Officer

ANNEXURE

IN THE CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT-II, CHANDIGARH

Present: Sri A.K. Rastogi, Presiding Officer.

Case No. I.D. 1356/2008

Registered on 18.2.2008

Shri Vijay Kumar, H.No. 230, Virat Nagar, Model Town

Panipat.

Petitioner

Versus

The Deputy General Manager, Punjab National Bank, Zonal

Office, Sector, 17-B Chandigarh

Respondent

APPEARANCES

For the workman

Sh. Ashwani Talwar.

For the Management

Sh. Arvind Rajotia.

AWARD

Passed on Dec. 23, 2011

Vide Notification No. L-12012/60/2007 [IR(B-II)] Dated

23.8.2007, the Central Government 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 (in

short Act) referred following dispute for adjudication to

the Central Government Industrial Tribunal-cum-Labour

Court No. 2, New Delhi.

"Whether the action taken by the Regional Manager,

Punjab National Bank, Zonal Office, Chandigarh in

terminating the services of Sh. Vijay Kumar S/o late

Sh. Harbans Lal, Ex-Clerk-cum-Cashier w.e.f. 6.10.2003 is

just, fair and legal? If not to what relief the workman is

entitled to and from which date?

On the request of the workman the said industrial

dispute was transferred to this Tribunal vide order dated

29.1.2008. This is how this industrial dispute came up for

adjudication before this Tribunal.

As it appears from the documents filed by the

workman himself, he was posted as Clerk/Cashier incharge

Extention Counter Khadi Ashram Panipat at the relevant

time. Bank received some complaints from various

customers indicating misappropriation, embezzlement of

public funds by him, while discharging the duties of Cashier

incharge at the said counter. Keeping in view the gravity of

the matter he was put under suspension vide order dated

17.10.1994. He faced departmental enquiry on the charge

that he received amounts from various Saving Fund

Account holders on different dates for deposit in their

respective accounts and entered the amounts in their

passbooks but he did not account for the sums received in

bank's books and accounts and used the same for personal

purposes, as a result of which bank had to meet the claims

of the customers. He was also charged for having made

payments to certain depositors and entered the same in

their passbook whereas no corresponding entries were

made by him in bank records and he thus embezzled the

money and resorted to parallel banking. The said acts on

his part were prejudicial to the interest of the bank and

tantamounted to gross misconduct in terms of Para 19.5(j)

of the First Bipartite Settlement read Para 5(j) of 10.4.2002.

In the enquiry he was found guilty of the charges against

him and was dismissed without notice from bank service

with immediate effect vide order dated 6.10.2003. His appeal

also failed.

It also appears from the documents filed by the

workman that in Criminal Case No. 161/1 of 1995 he had

faced trial for the offences punishable under Sections 406,

409, 420, 467 and 471 of IPC and had been acquitted by the

Additional Chief Judicial Magistrate Panipat vide order

dated 4.11.2003 but a Civil Suit No. 297 of 1997 filed by the

bank against the workman for recovery of Rs. 5,92,882 plus

interest was decreed by the Additional Civil Judge, Senior

Division, Panipat vide order dated 24.11.2005 and the appeal

of the workman against the judgment failed.

The workman has raised an industrial dispute by

stating that after placing him under suspension on

17.10.1994 an FIR under Section 406, 409, 420, 467 and 471

of IPC was registered against him and against Peon late

Mohinder Singh on 20.10.1994 on the same chartes. Peon

Mohinder Singh died. The workman faced the trial and was

acquitted Meanwhile during the pendency of the trial and

after 8 years of suspension the workman was charge

sheeted on 25.8.2002 on the allegation of misappropriation

and embezzlement of public funds which was subject matter

of the criminal case. In his reply he denied the charges and

requested for dropping the proceedings till the pendency

of the criminal case but his request remained unheeded. He

then made a request for engaging an advocate or in the

alternative a member of any other Union as the Union of

which the workman was a member refused to defend the

workman; but his this request was also declined. Then he

demanded certain documents including the handwriting

expert opinion on which the Presenting Officer ws relying

upon but the same was also rejected. Thus he was denied

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a valuable right to defend himself in the enquiry. The

workman has further alleged that in the enquiry Presenting

Officer Mr. MC Bajaj appeared as management witness. It

vitiated the enquiry. The Enquiry Officer however in a

totally illegal and arbitrary manner concluded the enquiry

without discussing the evidence led during the course of

Enquiry and held that the Presenting Officer has succeeded

in proving the charge. The enquiry report was forwarded

to the workman. The workman submitted his reply to the

findings of the Enquiry Officer. Then the workman was

issued a show cause notice dated 12.9.2003 with

predetermined mind for inflicting the punishment of

"dismissal without notice from the bank service" and was

asked to appear before the disciplinary authoirty on

20.9.2003. The workman could not appear on 20.9.2003 and

on the adjourned date i.e. 29.9.2003 on account of his

engagement in the criminal case and on the next adjourned

date 30.9.2003 on account of his illness. He had requested

for adjournment on 30.9.2003 as he had been advised bed

rest for 7 days and to his request letter medical certificate

was annexed. The disciplinary authoirty adjourned the

personal hearing to 6.10.2003 while the workman had been

advised bed rest up to 6.10.2003 itself. The workman on

4.10.2003 informed the disciplinary authority that he is to

appear before the Court on 7.10.2003 and on account of his

ill-health he is not in a poosition to submit the reply and

the same will be submitted on 6.10.2003. On 6.10.2003 the

workman sent his reply dated 24.9.2003 to the disciplinary

authority by post which was received in the office of the

disciplinary authority on 7.10.2003 but the disciplinary

authority had already passed the punishment order on

6.10.2003. The workman requested for the reconsideration

of punishment order but the same was not accepted.

Therefore he filed an appeal but that too was rejected.

The workman has challenged his dismissal firstly;

on the ground that the charges in the criminal case and in

the enquiry were the same and as he has been acquitted in

the criminal case punishment cannot be awarded in the

enquiry, secondly the enquiry is vitiated as the charge-

sheet was vague and the enquiry report is cryptic and non-

speaking and he was not supplied the documents including

handwriting expert report, thirdly; he was denied the

assistance of a lawyer or member of any Union other than

the one of which he was a member, fourthly; during the

course of enquiry not even a single passbook or customer

was produced, Presenting Officer himself appeared as

management witness. He was not given any opportunity

of personal hearing, and lastly; as per provisions of Bipartite

Settlement punishment of dismissal of service cannot be

inflicted in cases where the employee has been acquitted

by the Criminal Court and the employee can only be

terminated with three month's pay and allowances in lieu

of notice and he shall be deemed to have been on duty

during the period of suspension and shall be entitled to

full pay and allowance. The workman has alleged the

punishment discriminatory also, as in the matter, the officer

incharge of the Extension Counter and the Peon had also

been suspended. Peon died but no further action was taken

against the officer incharge. He has requested for his

reinstatement with all consequential benefits of continuity

in service, fixation of pay at correct stage and grant of

arrears or in the alternative for revocation of suspension

with payment of full pay and allowance along with interest

for the suspension period.

The management contested the case and filed a reply

to the claim statement. It was denied that the charge sheet

was on the same allegation which was the subject matter of

the criminal case. It was contended that after filing the FIR,

the number of claimants in whose accounts the fraud had

been committed by the workman continued to increase

and on a thorough probe, number of accounts were detected

later on. Such accounts could not be taken into

consideration at the time of the lodging of the FIR. Charge

sheet was served upon the workman in respect of those 56

accounts which, though part of the recovery suit, were not

the subject matter of FIR/criminal case. Hence the

disciplinary proceedings were initiated on a different set of

facts. Regarding the allegation that he was not allowed to

be represented through an advocate or through any Union

other than the one of which he was a member, it is contended

that as per practice, advocates are not allowed to defend

the case in the departmental enquiry. The Presenting Officer

appointed by the bank was just an ordinary officer of the

bank and not a legally trained person. However, every

opportunity was provided to the workman to engage union

representative as his defence representative in terms of

the provisions of the Bipartite Settlement and to cross-

examine the witnesses produced by the management.

Regarding the evidence of the Presenting Officer it was

contended that there is no bar on the Presenting Officer to

appear as a management witness. The workman was

granted full opportunity to cross-examine the P.O. and the

latter was cross-examined by the workman. The evidence

put forth before the Enquiry Officer in the form of

documents and deposition of the witnesses were duly

discussed by him in his report. In the enquiry the bank

produced the photocopies of passbooks since the originals

were exhibited in the criminal case. The copies of ledger-

sheets as well as of passbooks show the difference of

amounts in them and the workman was given full

opportunity to go through the passbooks which were

exhibited by the bank during the course of enquiry. The

handwriting expert report was not a part of the management

evidence. The handwriting of the workman was proved by

oral evidence of the witnesses who were well aware with

the handwriting of the workman. Hence no prejudice was

caused to the workman by not supplying the expert report.

In the show cause notice dated 12.9.2003 the penalty of

dismissal without notice from the bank's service had been

proposed only and it is wrong to say that it was proposed

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with predetermined mind. Personal hearing in the matter

was fixed for 20.9.2003 but acceding to the request of

workman 29.9.2003 was fixed for the purpose. The workman

vide his letter dated 27.9.2003 requested for another date

on account of his involvement in a Court case and the

disciplinary authority acceding to his request again, fixed

the date of personal hearing for 30.9.2003. But since the

workman had been trying to delay the proceedings, it was

made clear to him that in case he was indeposed, he should

submit a certificate to this effect from Chief Medical Officer,

Panipat but the workman did not care to follow the

instructions and instead of submitting a certificate from

CMO he submitted a certificate from a private practitioner.

The disciplinary authority however provided him time to

appear for personal hearing on 6.10.2003. It has been

contended that it is very mystifying on the part of the

workman that when he had prepared the reply to show

cause notice on 24.9.2003 then why he chose to send it

only on 6.10.2003 the day when the disciplinary authority

had already passed the punishment order. The workman

was adopting delaying tactics. The enquiry officer

conducted the enquiry as per procedure and according to

the principles of natural justice. The workman was given

ample opportunity to appear for personal hearing but he

intentionally did not attend the personal hearing. The

disciplinary authority was convinced that he was trying to

delay the proceedings. So the former imposed the penalty

of dismissal after appreciating all the evidence on record.

The appellate authority however did not grant personal

hearing as the workman in his appeal had not requested for

the same. The act of the appellate authority is in conformity

with Clause 14 of HRD Circular No. 86 dated 5.6.2002. The

management also denied that the punishment is

discriminatory as no action was taken against the

officer incharge Sh. Arun Singla. As a matter of fact,

Sh. Arun Singla was burdened with penalty of bringing

down his salary permanently by one stage in the scale of

pay in which he was placed at that time. It was thus

submitted that the enquiry was conducted as per provisions

of the Bipartite Settlement and according to the principle

of justice, the workman was given every opportunity to

defend his case, he was allowed to bring his defence

representative as per terms of Bipartite Settlement; he was

given ample opportunity to inspect the original of

documents tendered by the Presenting Officer and to cross-

examine the witnesses who confirmed that the entries are

in the handwriting of the workman. The workman was also

provided ample opportunity to appear for personal hearing.

He was provided the enquiry report on which he submitted

his comments also. The workman was inflicted the

punishment of dismissal without notice keeping in view

the gravity of the gross misconduct on his part. He is not

entitled to any relief.

The workman filed a replication to the written

statement to allege that the period of the alleged offences

which were the subject matter of the FIR/criminal case as

well as of the recovery suit and the charge sheet in the

disciplinary proceedings are the same and the sole motive

of the bank is to harass and humiliate him by involving him

into multiple cases. He denied that the disciplinary

proceedings were initiated a different set of facts. Rest of

the replica is almost repetition of the claim statement.

From the pleadings of the parties following issues

arise for consideration in this matter.

1. Whether the enquiry conducted by the

management in this case is fair and according to the

principles of natural justice?

2. Whether the workman is entitled to exoneration

in this matter on account of his acquittal in Criminal Case

No. 161/1 of 1995 and what is the effect of the judgment in

Civil Suit No. 297 of 1997?

3. To what relief is the workman entitled?

In support of his case the workman filed his affidavits

and relied on certain Annexures to his claim statement. The

management did not lead any evidence. In fact on 3.6.2011

on the request of management counsel the case had been

adjoured to 26.7.2011 for the evidence of the management

with a direction that copy of the affidavit of management

witness will be supplied in advance to workman but on the

next date none appeared for management and it was put ex

parte. On the next date of hearing also the management

continued to be ex parte. Hence the learned counsel for the

workman could only be heard.

I went through the evidence on record and considered

the arguments advanced by the learned counsel for the

workman. My findings on various issues are as follows.

Issue No. 1

It was argued by the learned counsel for workman

that the enquiry in the case is vitiated as the charge sheet

was vague and the workman was also denied the assistance

of a lawyer or a member of any union other the one of

which he was a member. Workman was also not supplied

the documents including the handwriting expert report.

In this regard it may be noted that the charge sheet

has been filed by the workman himself as Annexure P3 of

his claim statement. Annexed to this charge sheet is a list

of account numbers along with the name of account holders,

the date of the amounts received for deposit, amount

received and payment made in the accounts. These are 56

in number. Hence it cannot be accepted that the charge

sheet was vague. The charge sheet contains sufficient

information about the nature of the allegations which the

workman was required to meet.

As per Clause 19.12 of the First Bipartite Settlement

dated 19.10.1966 quoted in the claim statement the workman

is entitled to be defended by a representative of a registered

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trade union of the bank of employee of which he is a member

or with the permission of the bank he may be defended by

a lawyer. The workman has alleged that the union of which

he was a member refused to defend him in the matter.

He was not entitled to be defended by a lawyer as a

matter of right and was dependant for this on the bank's

permission. As it has been stated by the bank in its written

statement the workman was not provided the facility of

lawyer as the Presenting Officer was not a law knowing

person. He was simply an officer. I am therefore of the

opinion that the bank was justified in refusing the facility

of a lawyer to defend workman's case. No prejudice was

caused to the workman by not permitting him to engage a

lawyer.

It was further argued by the learned counsel for the

workman that the documents demanded by the workman

as per details given in Annexure P6 of the claim statement

were also not supplied to the workman.

The enquiry report indicates that except the

withdrawal slip passbook relating to SF Account No. 1504,

3594 and 3614 all other documents had been provided to

defence. The documents not provided were not available.

The bank in its written statement has pleaded that in the

enquiry only the photocopies of the passbook could be

produce since the original were exhibited in the criminal

case, but copies of ledger sheets as well as of passbooks

were produced during the course of enquiry to show the

difference of amount in them and the workman was given

full opportunity to go through the passbooks which were

exhibited by the bank during the course of enquiry.

As per law laid down by the Hon'ble Supreme Court

in Syndicate Bank Vs. General Secretary, Syndicate Bank

and Staff Association and another 2000 I LLJ 1630 the

principle of natural justice required to be observed are

that:—

1. Workman should know the nature of the complaint

or accusation.

2. He must have an opportunity to state his case.

3. Management should act in good faith which means

that the action of management should be fair, reasonable

and just.

In the present case the charge sheet along with the

list of account number, name of account holders, the date

of amount received, amount received and payment made in

the accounts had been served upon the workman. Hence

he had sufficient knowledge of the nature of the complaint

or accusation. He had been provided the opportunity to

cross-examine the witnesses and he did cross-examine them.

He was provided the opportunity to examine the documents

proposed to be produced against him in support of the

charge and also an opportunity to state his case. The

enquiry report indicates that the workman though did not

examine any witness in defence but submitted 11 documents

in his defence. There is no evidence that there was any act

of bad faith or malafide on the part of the management in

taking action against the workman. It is therefore clear that

the enquiry was fair and according to the principles of

natural justice.

The learned counsel for workman also argued that

there is discrepancy in the details of the accounts given in

Annexure 1 of the charge sheet. At Serial No. 39 there is

mention of transaction dated 31.10.1994 when the workman

was under suspension and at Serial No. 47 a transaction is

mentioned of 15th August, 1994 which was a public holiday.

It is important to note here that the charge against

the workman is that he made entries in the passbooks of

the payment received and made to the customers but did

not enter the same in the ledger of the bank. The

management led the evidence in the enquiry that the entries

are in the handwriting of workman. It has nowhere been

pleaded by the workman that these entries were the creation

of any other employee. Secondly, on the basis of one or

two discrepancies the allegation about other more than 50

entries cannot be held false or untrue.

The learned counsel for workman also argued that

no account holder came in evidence to prove the charge

against the workman and Presenting Officer himself

appeared as management witness to prove the handwriting

of the workman. In this regard the judgment of the Hon'ble

Supreme Court given in B.C. Chaturvedi Vs. Union of India

and others and Union of India and another Vs. B.C.

Chaturvedi 1996 (72) FLR 316 may be cited, wherein the

Apex Court held that judicial review is not an appeal from a

decision but a review of the manner in which the decision

is made to ensure that the individual receives fair treatment

and not to ensure what the authority reaches is necessarily

correct in the eyes of the Court. Therefore the Court/

Tribunal in exercise of the power of judicial review cannot

re-appreciate evidence and arrive at its own findings. It

can interfere where the authority held the proceedings

against the delinquent employee in a manner inconsistent

with the rules of natural justice or in violation of statutory

rules, prescribing the mode of enquiry or where the

conclusion reached by the disciplinary authority is based

on no evidence or it is such that no reasonable person

would have ever reached.

It cannot be said in the present case the findings

recorded by the Enquiry Officer or the decision taken by

the disciplinary authority is perverse or against the weight

of the evidence. So there is no ground to interfere in the

findings of the Enquiry Officer or of disciplinary authority.

The enquiry report cannot be said to be cryptic and

non-speaking. It contains the details of the documents

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relied on by the parties, the list of management witnesses,

the view of the Presenting Officer, written brief of workman

and findings of the Enquiry Officer. The enquiry report

contains the critical discussion of the evidence.

It also cannot be successfully argued that the

workman was not provided opportunity of personal hearing.

The enquiry report indicates that the workman himself

avoided the personal hearing on one pretext or the other. It

was really very strange on his part that though he had

prepared his reply to the show cause notice on 24.9.2003

but send it only on 6.10.2003 when the disciplinary

authority had already passed the punishment order. Thus

he has to blame himself for not availing the opportunity of

personal hearing.

Thus it is held that the enquiry conducted by the

management in this case is fair and according to the

principles of natural justice and there is no infirmity in the

process of decision-making. Issue No. 1 is decided against

the workman.

Issue No. 2

It was argued on behalf of the workman that charges

in the criminal case No. 161/1 of 1995 and those contained

in the charge sheet in the departmental enquiry were the

same and the workman has been acquitted in the criminal

case, hence the management was not justified in holding

him guilty of the charge in the domestic enquiry.

It may be noted that the bank has disputed the fact

that the charges in the two proceedings were the same. It

has been contended that after filing the FIR the number of

claimants in whose accounts the fraud had been committed

by the workman continued to increase and such account

could not be taken into consideration at the time of lodging

the FIR.

Interestingly the workman in his replication deviates

from its earlier stand and instead of pleading that the

charges in the two proceedings were the same, he alleged

that the period of the alleged offences which were the

subject matter of the criminal case as well as of the recovery

suit and of the charge sheet in the disciplinary proceedings

are the same.

In this regard it is well settled that the standard of

proof in the criminal proceedings and the disciplinary

proceedings is different. In the criminal case the charges

are to be proved beyond any reasonable doubt, while in

departmental proceedings on the preponderance of

probabilities. In criminal proceedings the prosecution is to

prove its case beyond reasonable doubt on the touchstone

of human conduct but the enquiry in departmental

proceedings relates to conduct or breach of duty and to

punish under relevant statutory rules to effectuate

efficiency in public administration. It is therefore clear that

the workman is not entitled to any relief on the ground of

his acquittal in criminal case.

However the effect of judgment of Civil Suit No. 297

of 1997 is worth consideration. The workman himself has

filed a copy of judgment in Civil Suit No. 297 of 1997, it is

Annexure P25 of his claim statement. As it appears from

the judgment it was a suit filed by the bank for the recovery

of Rs. 592882/- with interest and cost from the workman

with the allegation that the workman had though received

the amount from customers of the Saving Fund Account

but did not deposit the same in the bank and did not make

the entry in the ledger of the accounts maintained by the

bank in its ordinary banking business and similarly he did

not issue counter files of the depositing slips and he used

the said money for his personal use by crediting the amount

in the ledger of the accounts in different dates.

The suit was decreed and an appeal of the workman

against the judgment also failed. The judgment of the

Supreme Court in Jasbir Singh Vs. Punjab and Sind Bank

and others 2007 I LLJ 481 shows that judgment of Civil

Court may affect the result of departmental enquiry. In that

case a Peon working in bank was charged with criminal

charges, disciplinary proceedings ended holding charges

proved which was confirmed by the High Court. The

Hon'ble Supreme Court setting aside both the orders held

that High Court failed to take note of the decision of the

Civil Court which held that the bank failed to prove

embezzlement charges against the workman and hence

impugned order and judgements could not be sustained.

I am of the view that conversely should also be true.

The judgement in vivil case goes to support the

punishment awarded to the workman by the disciplinary

authority. Issue No. 2 is decided accordingly against the

workman.

Issue No. 3

From the above going discussion it is thus clear that

the workman is not entitled to any relief. The counsel for

the workman argued that the punishment accorded to the

workman is discriminatory as no action was taken against

another official Arun Singla involved in the matter.

It has nowhere been pleaded that charge against the

workman and said Arun Singla was the same. The

management in its written statement has informed that the

Arun Singla the officer inchange had been given penalty

of bringing down his salary permanently by one stage in

the scale of pay in which he was placed at that time.

Therefore it cannot be successfully argued that the

workman was discriminated against.

So far as the relief for the revocation of suspension

with payment of full pay and allowance is concerned, it is

beyond the terms of reference and there is no justification

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THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

for this relief also. In the result the claim fails. The workman

is not entitled to any relief. The action taken by the Re-

gional Manager, Punjab National Bank, Zonal Office,

Chandigarh in terminating the service of the workman is

just, fair and legal. Let two copies of the Award be sent to

Central Government for further necessary action.

Ashok Kumar Rastogi, Presiding Officer

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New Delhi, the 9th February, 2012

S.O. 902.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. CGIT/

NGP/81/2003) of the Central Government Industrial

Tribunal/Labour Court, Nagpur now as shown in the

Annexure in the Industrial Dispute beween the employers

in relation to the management of UCO BANK and their

workman, which was received by the Central Government

on 16/01/2012.

[File No. L-12012/138/1993-IR (B-II)]

SHEESH RAM, Section Officer

ANNEXURE

BEFORE SHRI J.P. CHAND, PRESIDING OFFICER,

CGIT-CUM-LABOUR COURT, NAGPUR

Case No. CGIT/NGP/81/2003

Date: 04.01.2012

Party No. 1 :

The Divisional Manager,

UCO Bank, 108 Sushil Bhawan,

Blaraj Marg, Dhantoli,

Nagpur - 440 012

Versus

Party No. 2 :

General Secretary,

UCO Bank Employees Association,

Plot No. 48, Kanchan Prabha,

Tatya Tope Nagar, Nagpur - 440 012

AWARD

(Dated: 04th January, 2012)

In exercise of the powers conferred by clause (d) of

sub-section (1) and sub-section 2(A) of section 10 of

Industrial Disputes Act, 1947 (14 of 1947) ("the Act" in

short), the Central Government had referred the industrial

dispute between the employers, in relation to the

management of UCO Bank and their workman, Shri D.N.

Bhoge, to the CGIT-cum-Labour Court, Jabalpur for

adjudication, as per letter No. L-12012/138/1993-IR (B-

II) dated 17.02.1994, with the following schedule:—

"Whether the claim of UCO Bank Employees

Association, Nagpur that the management of UCO

Bank terminated the services of Shri D.N. Bhoge

without complying with the provisions of Section

25-F of the I.D. Act and therefore he is entitled to be

reinstated in the services of the Bank is justified? If

so, what relief is the workman entitled to?"

Subsequently the reference was transferred to this

Tribunal for this disposal in accordance with law.

2. On receipt of the reference, the parties were notices

to file their respective statement of claim and written

statement and accordingly, the union, UCO Bank Employees

Association ("the union" in short) filed the statement of

claim on behalf of the workman, Shri D.N. Bhoge, ("the

workman" in short) and the management of the UCO Bank

("Party No. 1" in short) filed its written statement.

The case of the workman as presented by the union

in the statement of claim is that the union is a registered

union and the service conditions of the employees

employed in UCO Bank are governed by the provisions of

by-partitee settlements and the workman was initially

appointed on 08.03.1990 and he was not paid wages for

Sundays and holidays and was put to hard labour beyond

the working hours of the Bank and the workman continued

to work in Ramtek Branch upto 15.07.1991, when he was

removed from employment by the Manager, without

assigning any reason and in his place, another daily wager

was appointed by the Bank and there was no need for the

Branch Manager to remove the workman from the job,

particularly when there was shortage of sub-ordinate staff

in that branch and the work and conduct of the workman

was satisfactory and he had been instrumental in bringing

deposits too for the branch and due to his illegal and

unauthorized termination from service, the workman

approached the union and the union raised the dispute

before the ALC(C), Nagpur and Party No. 1 took a plea in

the letter dated 08.02.1993 that the workman had never

worked with them and he worked for a limited period and

the Party No. 1 was making payment to the workman on

vouchers, which were got signed by him under the pretext

of having swept the branch, malafide intention and as the

conciliation failed, failure report was sent to the Central

Govt. and the Central Govt. has referred the dispute for

adjudication to the CGIT. The union has prayed for the

reinstatement of the workman in the service along with all

benefits following there from.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

2201

3. The Party No. 1 in its written statement has pleaded

inter-alia that the workman was not its employee and he

did not work as contended. The workman was working at

Ramtek Branch, but he was not an employee and he was

doing the work of sweeping and dusting the Bank premise

at extension counter, Ramtek, for which he was being paid

Rs. 10/- per day, whenever he was carrying out the work

and the work of sweeping and dusting was not taking more

than one hour in a day and there was no reasons for entering

his name in the muster roll and other records of the Bank as

he was doing such limited work, there was no question of

his removal from service, as he was not an employee of the

Bank.

It is further pleaded by the Party No. 1 that there was

no question of initiating any departmental proceeding or

other proceeding and there was never any malafide

intention on its part and as the workman was not an

employee of the Bank, there was no need of observing the

formalities as contended and the recruitment policy of the

Bank makes it incumbent to follow the norms and procedure

as provided and whenever permanent vacancies exist,

applications are called for through the Employment

Exchange and the appointment is done as per the norms

and procedure fixed for the purpose of the recruitment.

4. In support of his claim, the workman has examined

himself as a witness. His examination-in-chief-is on affidavit.

In his evidence, he was stated that he was employed by

the Bank as a Peon on daily wages @ Rs. 10/- per day w.e.f.

08.03.1990 and he worked for more than 16 months

uninterruptedly up to 15.07.1991 and he was removed from

service without any reason.

5. Though the Party No. 1 had filed the evidence of

witness, Shri Dharamdas Kisanji Lokhande on affidavit, in

support of its claim, subsequently the witness was not

produced for cross-examination and as such, the evidence

of the said witness was expunged as per order dated

13.07.2011.

It is necessary to mention here that since 03.08.2010,

both the parties remained absent and did not appear in this

case and as such, the case was closed on 07.09.2011 and

was posted for award.

6. It is the admitted case of the parties that the

workman was engaged on daily wages basis. According to

the workman he worked with Party No. 1 from 08.03.1990 to

15.07.1991 continuously without any break and he was

removed from employment by the Manager, without

assigning any reason.

The case of the management is that the workman

was engaged for sweeping and dusting the office premises

for one hour per day, as and when required. So, the initial

burden of proving that he had worked for 240 days in the

preceding 12 calendar months of the date of alleged

termination i.e. 15.07.1991 was on the workman.

7. At this juncture, I think it appropriate to mention

the settled principles in this regard by the Hon'ble Apex

Court in the decision reported in AIR 2005 SC 2179 (Manager,

Reserve Bank of India versus S. Mani). The Hon'ble Apex

Court have held that:

"Industrial Disputes Act, 1947 - S.s. 25 F, 25 B and

11-240 day's continuous service - onus and burden

of proof with respect to - evidence sufficient to

discharge - failure of employer to prove a defence (of

abandonment of service) if sufficient or amounted to

an admission, discharging the same burden - held,

initial burden of proof is on workmen to show that

they had completed 240 days of service - onus of

proof does not shift to employer nor is the burden of

proof on the workman discharged, merely because

employer fails to prove a defence or an alternative

plea of abandonment of service - filing of affidavit of

workman to the effect that he had worked for 240

days continuous or that the workman had made

repeated representation or raised demands for

reinstatement, is not sufficient evidence that can

discharge the said burden - other substantive

evidence needs to be adduced to prove 240 day's

continuous service - instances of such evidence

given.

The initial burden of proof was on the workmen to

show that they had completed 240 days of service.

The Tribunal did not consider the question from that

angel. It held that the burden of proof was upon the

appellant on the premise that they have failed to

prove their plea of abandonment of service.

Filing of an affidavit is only his own statement in his

favour and that cannot be regarded as sufficient

evidence for any Court or Tribunal to come to the

conclusion that a workman had, in fact worked for

240 days in a year. Such evidence might include proof

of receipt of salary or wages for 240 days or order or

record of appointment or engagement for this period

or the terms and conditions of his offer of

appointment, or by examination of any other witness

in support of his case."

8. Keeping the principles as enunciated by the

Hon'ble Apex Court in mind, the present case in hand is to

be considered.

In this case, except his own affidavit, the workman

has not filed any document to show that he had actually

worked for 240 days in the preceding 12 months of

15.07.1991. No other evidence has also been adduced by

the workman in support of such claim. Hence, it is found

that the workman failed to discharge the burden lying upon

him. As the workman has failed to show that he had worked

for 240 days in the preceding 12 months of 15.07.1991, the

provisions of S. 25-F of the Act are not applicable to his

2202

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

case and he is not entitled for any relief. Therefore it is

ordered that:

ORDER

The claim of UCO Bank Employees Association,

Nagpur that the management of UCO Bank terminated the

services of Shri D.N. Bhoge without complying with the

provisions of Section 25-F of the I.D. Act and therefore he

is entitled to be reinstated in the services of the Bank is

unjustified. The workman is not entitled for any relief.

J.P. CHAND, Presiding Officer

ubZ fnYyh] 9 Qjojh] 2012

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New Delhi, the 9th February, 2012

S.O. 903.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947, the Central Government

hereby publishes the Award (Ref. No. 90/1997) of the

Central Government Industrial Tribunal/Labour Court No.

2, DHANBAD now as shown in the Annexure in the

Industrial Dispute between the employers in relation to the

management of BANK OF INDIA and their workman, which

was received by the Central Government on 16/1/2012.

[No. L-12012/232/1996-IR(B-II)]

SHEESH RAM, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL (NO. 2) AT DHANBAD.

PRESENT:

Shri Kishori Ram, Presiding Officer.

In the matter of an Industrial Dispute under section

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

REFERENCE NO. 19 OF 1997

Parties:

Employers in relation to the management of

Bank of India and their workman.

APPEARANCES:

On behalf of the workman :

None

On behalf of the employers : Mr. D.K. Verma, Advocate.

State : Jharkhand

Industry : Banking.

Dated, Dhanbad, the 19th Dec., 2011.

AWARD

The Government of India, Ministry of Labour in

exercise of the powers conferred on them under section

10(1)(d) of the I.D. Act., 1947 has referred the following

dispute to this Tribunal for adjudication vide their Order

No. L-12012/232/96/IR(B-II), dated 22/28.07.97.

SCHEDULE

"Whether the action of the management of Bank of

India in dismissing the services of Sh. U.S. Ram, Ex-

Clerk-cum-Cashier w.e.f. 25.2.94 is justified and legal?

If not, to what relief the said workman is entitled?

2. The case of the workman U.S. Ram is that on his

appointment as a Clerk-cum-Cashier, he joined his service

in the Bank of India at Ramgarh Branch, Bhabua on

23.01.1978. Subsequently he was transferred to different

branches of the Bank—Rampur (Chapra), Sisaura (Bhabua

Distt) Buxar and again to Ramgarh (Bhabua district). While

posted at Sisaura Branch, he though single handed yet

satisfactorily worked as an alone clerk there under heavy

pressure of work, in course of which two accounts

miscredited on 3.9.90 and 17.9.90 but both miscredited

entries were immediately rectified at the time of balancing

the accounts; so there was no financial loss to the Bank.

But the Acting Branch Manager of Sisaura Branch of the

Bank with ulterior motive got issued by the Regional

Manager, Patna, the Memo of seven allegation on 21.11.90

calling for his explanation and he submitted his reply to it

on 14.2.90, denying the charges. The Regional Manager,

Patna motivatedly transferred him from Sisaura to Buxar

Branch in December, 1990 and on his joining, issued him

his suspension order dt. 28.12.90 (which he got on 5.1.91)

with four point charges but without calling for any

explanation with a view to change the Head quarter during

domestic enquiry. The workman was issued a chargesheet

dt. 2.11.91 of six charges by the Regional Manager

unjustifiably adding charge Nos. II, V and VI which were

not mentioned in the suspension order, and it was

simultaneously straightway ordered for holding domestic

enquiry for which Sri Gurmeet Singh, the Staff Officer, was

appointed as the Enquiry Officer. The Domestic Enquiry

started from 2.9.92 at Panta. Meanwhile, with the abolition

of the Bank's Patna Region, the new Region at Gaya came

into being under the Deputy Zonal Manager, who became

the Disciplinary Authority, but the Authority neither

appointed nor approved the appointment of the Enquiry

Officer for the enquiry. Without supply of any preliminary

Report by the Management, and without examining the

authority and validity of the order of the R.M., Patna, the

Enquiry Officer in course of the enquiry proceeding

examined S/Shri A.K. Srivastava, Manager, Sisaura Branch,

A.K. Gosh Acting Temporary Manager Sisaura Branch,

out of whom Mr. Srivastava and Mr. Ijaz did not say

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

2203

anything whereas Mr. Ghosh is a hearsay witness. Neither

the original complaint dateless one produced nor the

complainant Shyam Kant Tiwary or non complainant Badri

Singh examined in the enquiry. Though the refusal of the

complainant to have overdrawn the amount of Rs. 1000/-

was covered by the balance standing at his credit. The

Enquiry Officer after the enquiry submitted his Enquiry

Report to the Regional Manager, Gaya but not the Deputy

Manager Bihar (North Zone) who was the Disciplinary

Authority as apparent from the revocation order of

suspension dt. 29.10.92. The Enquiry Report rather

contradictory one devoid of finding about how

misappropriation of the said amount is not based on

evidence.

On the show cause Notice dt. 11.12.93 to the workman

for dismissal without notice the Regional Manager Gaya

as the alleged Disciplinary Authority after personal hearing

of the workman's defence representative dismissed him

unmindfully. His appeal as per representation dt. 28.5.94 to

the Zonal Manager, the Appellate Authority was

accordingly rejected just as his appeal made on 29.10.94

before the Chairman and Managing Director, Bank of India,

H.Q. Bombay against the order of the Appellate Authority

was disposed of at the level of the Zonal Manager which

was communicated on 01.2.95. The workman was victimised

not only by the unfair and illegal domestic proceeding, but

also by the illegal dismissal order of the management both

against the principle of natural justice. The Industrial

Dispute though persued by the Association yet no result,

then raised by the workman before the ALC. (Central) Patna

for amicable settlement, on the failure of which, its reference

came for adjudication.

3. The workman in his specific denialful rejoinder

has stated that an authentication of entry of the amount

deposited and duly entered on the pass book speaks no lie

on part of the workman. At the denial of Pass Book holder

Sri Shyam Kant Tewary customer to have over drawn Rs.

1000/-, Mr. A.K. Ghosh (witness No. 3) plannedly got a

dateless complaint without his endorsement filed by him

(Mr. Tewary) against him at his very initiative to show his

involvement antedated by the aforesaid Branch Manager

himself A.K. Ghosh, whereas he had already rectified that

irregularity two months earlier, and admittedly no financial

loss to the Bank. There is no finding over misappropriation.

The domestic enquiry vitiates for violation of the principle

of natural justices. The charges against the workman

unmentioned as a misconduct. The workman mere on

preponderance of probability cannot be dismissed from

service which is shockingly disproportionate to it, as it

presupposed its strict proof of definits charges. An appeal

to the Chairman and Managing Director in case of his

dismissal against the principle of natural justice is not bare.

4. Categorically contra pleaded cases of the

Management is that out of 25 to 30 average vouchers

including cash ones as admitted by the workman himself,

cash vouchers might be surely lesser, so that customer

crowd was manageable even in the state of the alleged

heavy clerical work load. On 3.9.90 after receiving

Rs. 1000/- from customer Sri Shyamkant Tiwary holder of

S.B. A/c. No. 12 for deposit through Pay-in-Slip, though

the workman issued him it counter slip duly stamped and

signed by him also entered the credit of said Amount in his

Pass book yet he did not enter it in the Receipt Scroll Book

and Cash Receipt Book, and he kept the money with him.

On 8.9.90 Mr. Tiwary withdraw Rs. 4600/- from his account

by Rs. 1000/- and on detecting alteration in the ledger A/C.

No. 12 as found by the Manager, he affirmed his deposit of

said amount in his account, and produced the counterfoil

and Pass Book as also admitted by the workman entirely

later on. The misappropriation of Rs. 1000/- by the workman

surfaced, when he transferred the amount into the said

Saving Bank A/C of the account holder but

unauthenticated by any officer. The Branch Manager

(Witness No. 3) had affirmed no alteration till the ledger

checking on 7.9.90 and the original balance Rs. 3676.91 as

on 3.9.90 altered as 4676.91 to accommodate the withdrawal

of Rs. 4600/- on 8.9.90. Just after a for night on 17.9.90, the

workman did not enter an amount of Rs. 19150/- deposited

by Sri Badri Singh on his A/c. No. 942 in the Receipt Scroll

Book and the Cash Receipt Book, though he entered it in

his Savings Bank Pass Book. The workman was caught red

handed for the fraudulent act, a misconduct for which he

was duly proceeded through very fair domestic enquiry,

and duly awarded with dismissal punishment, in view of

the serious misdeeds misappropriation of customer's money

and alteration of the Bank Records.

5. Further case of the Management is that the

Competent Authority prior to the issuance of the

chargesheet called for an explanation from the workman as

per Memo dt. 21.11.90. Though the charge No. V & VI were

not included in the suspension order, yet there is no bar

under the law to include an additional charge in the

chargesheet. The domestic enquiry was fairly conducted

for the charge under clause 19.5 (j) as per the provisions of

the Bipartite Settlement dt. 19.10.66. The abolition of Patna

Region with the formation of new Gaya Region falls under

the Administrative Jurisdiction of the Region. Till the

appointment of a permanent Regional Manager of the newly

formed Gaya Region, the Dy. Zonal Manager of Bihar North

Zone was empowered to officiate as the Regional Manager

of Gaya Region as per order dt. 19.9.1992 of the Zonal

Manager, North Zone Bihar so he ipso facte became the

Disciplinary Authority for the awardee staff of Gaya Region.

Since the workman was working at Sisaura Branch

previously under the jurisdiction of Patna Region but its

abolition with the formation of new Region of Gaya

including the said branch, the Disciplinary Authority in

respect of him was then the Regional Manager of the Gaya

Region; as there was no transfer of jurisdiction over the

2204

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

branch from one region to another thereby there was no

need for approval of the appointment of Sri Gurmit Singh

as the Enquiry Officer by the new Disciplinary Authority

of Gaya Region. On the change of circumstances, the order

of his suspension was revoked by the Competent Authority.

No preliminary enquiry report was adduced on support of

the charge against the workman, so supply of its copy was

not required, nor any prejudice was caused by non-supply

of the list of documents witnesses in the enquiry, as he had

fully participated in it. The copy of the complaint was

accepted by him and his defence representative without

any objection. Each of the charges relates to distinct and

seperate act of misconduct committed by the workman.

The Enquiry Report is based on the accurate and critically

appreciated finding of E.O. Likewise the awarding of

dismissal punishment to him by the Disciplinary Authority

was passed after careful consideration of the various

material on the enquiry record as well as of the grave nature

of his misconduct.

FINDING WITH REASONING

6. In this case, on due consideration of all the materials

oral and documentary both as adduced by MW-1 Prasant

Kumar Tripathy, the Industrial Relation Officers, B.O.I,

Patna Zone as well as WW-1 Uma Shankar Ram, the

workman himself at the preliminary point, this Tribunal as

per order dt. 6.7.11 has held the Domestic Enquiry as fair,

proper and in accordance with the principle of natural

justice. Thus the case came for hearing the argument of

both the parties on merits. Mr. D.K. Verma, the learned

Advocate for the Management appeared on 14.7.11 and

argued, but Mr. D.K. Jha, the learned Advocate for the

workman appeared neither on the said date nor on the last

date 15.9.11; despite giving him sufficient opportunities,

Mr. Jha, Advocate for the workman could not argue; hence

on the latter date, the award stood reserved for order.

7. Mr. D.K. Verma, the learned Advocate for the

Management, has submitted that the defalcation charge

has been clearly proved against the Workman, so his

dismissal as punishment was not only just and proper in

view of his misconduct of serious nature but also quite

proportionate to the dismissal of the workman for it.

8. On the perusal and appreciation of all the materials

in Exhibited document of the Management (Ext. M 1 to 8)

and those of the workman u/s 11 A of the Industrial Dispute

Act, 1947 I find the following facts as indisputable:

(i)

Workman Uma Shaker Ram as a staff-clerk-cashier

at Sisaura Branch of the Management was

suspended as per the Suspension Order dt.

28.12.1990 (Ext. W-1) of the Regional Manager cum

Disciplinary Authority (herein after referred as RM/

DM) or for his alleged gross misconducts:—

(a) Not properly crediting the sum of Rs. 1,000 in

the Saving Bank A/c No. 12 Holder Shyamakant

Tiwary on 3.9.1990;

(b) Altering its balance in its ledger upon his

causing for withdrawal of Rs. 4,600 on 8.9.1990.

of the receipt scroll and cash and removing

the relative vouchers from the bank records

related to A/c holder Badri Singh on 17.9.1999;

(d) and not debitting intentionally his A/c No. 640

on 1.9.1990 against his alleged marked the

ledger folio No on the withdrawal slap to show

as if posted in his Account his withdrawal of

Rs. 600/- from his own A/c (the workman

concerned).

(ii) The charge sheet dt. 2.11.1991 (Ext. W-3 as an

enclosure to the RM/DA's letter 2.22.91 alleged tital

six charges against the workman, out of which the

charges Nos. 1 to 3 relate: to on 3.9.1990 unentering

and uncrediting Rs. 1,000/- deposited S.B. A/c No.

12 holder Sri Shamakant Tiwary in Scroll Book &

Receipt Book and removal of its voucher from the

records concerned.

(2) On 8.9.1990 the alteration of the balances in the

S.B. Ledger No. 1 of the aforesaid Account.

(3) On the same date the payment after transfer of the

amount from his own A/c No. 640 to the aforesaid

Holder's Account.

(4) Likewise concerning the sum of Rs. 1900/- of Sri

Badri Singh A/c Holder No. 142 and prompt deposit

of it in his A/c.

(5) Fifth charge as to fradulant and false statement of

the workman in respect of his motorcycle and its

theft, for which neither submitting its F.I.R. nor

lodging a claim with the Insurance Company.

(6) Sixth charge-for over withdrawing Rs. 300/- and

Rs. 1200/- as per the debit notes Nos. 1593 and

3150 dt. 7.5.1990 and 10.6.1990 respectively by him

from his A/c at Sirasua Br. without his sufficient

balance.

All these acts are alleged to be gross misconducts

under clause 19.5(j) of the First Bipartite settlement dt.

19.10.1966.

(iii) after due enquiry into the charge, the Enquiry

Officer Mr. Gurmeet Singh as per his enquiry report

dt. 17.7.1993 (Ext. M-4) held the workman guilty of

the aforesaid first four charges only, for which the

Regional Manager, Gaya Region-cum-Disciplinary

Authority as per his order dt. 10.3.1994 (Ext. M-6)

awarded the workman with his consolidated

punishment of dismissal without notice from his

Bank's service which was also remained upheld by

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

2205

the Appellate Authority concerned as per his order

dt. 25.7.1994 (Ext. M-8) over appeal of the workman

(Ext. M-7).

9. On going though the aforesaid materials of the

records, it stands clear that the workman had admitted his

negligent acts of not enterings crediting the aforesaid petty

amounts in the S/B A/c of the both aforesaid Accounts

Holder Mr. Shyamakant Tiwari and Badri Singh and the

ledger etc. at the relevant time at the Branch concerned

situated in rural area where he was alone working as Clerk

and Cashier. There is no documentary proof of any financial

loss to the Bank by his conduct nor of any intentional

misappropriation of the said petty amounts. The workman

has clearly depicted the situation he was working under

pressure, so under these circumstances such negligent act

on the part of the workman may be expected of any workman

working in the same situation of the Bank concerned at the

relevant time. For such human negligent, but not

intentional, acts on the part of the workman, the

management ought to have punished him with the lesser

punishment such as deduction of one increment with a

view to reform him in future, but his dismissal from the

service which amounted to not only his financial death but

also to his dependent family members' as earlier reported

by the workman himself. Hence, dismissal of the workman

from his service is quite unfair and disproprotionate to the

nature of the alleged misconduct which can not be said to

be gross for his admitted negligence.

Under these circumstances, I hold that the action of

the Management of Bank of India in dismissing the service

of Shri U.S. Ram, Ex-Clerk-cum-Cashier w.e.f. 25.2.1994 (or

10.3.1994 as per punishment order dt. 10.3.1994) is totally

unjustified and illegal in view of jurisprudence of labour

legislation. Therefore, punishment order dt.10.3.1994 or as

per schedule one dt. 25.4.1994 is set aside directing the

Management to reinstate him with immediate effect with

the 75 (Seventy five) percent back wages and its

consequential benefits till his restoration, as he has already

suffered irrepairable financial loss for his negligent conduct.

The Management is directed to implement the order within

one month from the date of receipt of the Award after its

publication in the Gazette of India.

KISHORI RAM, Presiding Officer

ubZ fnYyh] 10 Qjojh] 2012

dkñvkñ- 904.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj lsUVªy cSad vkWQ

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[lañ ,y&12012@195@2004 vkbZñvkjñ¼ch&II½]

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New Delhi, the 10th February, 2012

S.O. 904.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 the Central Government

hereby publishes the Award (Ref. No. CGIT-2/66 of 2005)

of the Central Government Industrial Tribunal/Labour Court

No. 2, MUMBAI now as shown in the Annexure, in the

Industrial Dispute between the employers in relation to the

management of CENTRAL BANK OF INDIA and their

workmen, which was received by the Central Government

on 20.01.2012.

[No. L-12012/195/2004-IR(B-II)]

SHEESH RAM, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL NO. 2, MUMBAI

Present

K.B. KATAKE,

Presiding Officer

REFERENCE NO. CGIT-2/66 of 2005

EMPLOYERS IN RELATION TO THE MANAGEMENT

OF CENTRAL BANK OF INDIA

The Deputy General Manager

Central Bank of India, Head Office

Chander Mukhi

Nariman Point

Mumbai 400 021.

AND

THEIR WORKMEN

Shri Ajay Shankar Chavan

54, Shamlal Sharma Chawl, Jawaharnagar

Saibaba Road, Ekta Maidan, Khar (E)

Mumbai 400 051.

APPEARANCES:

For the Employer

Mr. L.L. D'Souza,

Representative.

For the Workmen

Mr. M.S. Lal,

Advocate.

Mumbai, dated the 22nd December,2011.

AWARD

1. The Government of India,Ministry of Labour &

Employment by its Order No.-L-12012/195/2004-IR (B-II),

dated 21.4.2005 in exercise of the powers conferred by clause

(d) of sub-section (1) and sub-section 2(A) of Section 10 of

2206

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

the Industrial Disputes Act, 1947 have referred the

following industrial dispute to this Tribunal for

adjudication:—

"Whether Shri Ajay S. Chavan, the affected workman

has put in 'continuous service' in the employment of

Central Bank of India, Khar (W) Branch, Mumbai as

per provisions of Section 25-B of the Industrial

Disputes Act 1947? If so, whether the demand of the

workman for reinstatement in service on regular/

permanent basis is legal, proper and justified? If so,

to what relief the concerned workman is entitled and

from which date and what other directions are

necessary in the Court.”

2. After receipt of the reference, notices were issued

to both the parties. Both parties appeared through their

legal representatives. Second party workman filed his

statement of claim at Ex.-7. According to the second party,

he was employed by Khar Branch office of the first party

Bank as casual labour in subordinate staff cadre for 113

days in the year 2000. Thereafter he was engaged for several

days during the years 2001, 2002, 2003 & 2004 with

intermittent breaks in service. In the year 2004 his services

were discontinued by the first party without giving any

reasons. According to him, the first party was engaging

the second party workman on temporary basis instead of

appointing him on permanent employment and thus

indulged in unfair labour practice. Therefore the second

party workman prays to direct the first to absorb him

permanently in its employment.

3. First party Bank resisted the statement of claim of

the second party workman by filing written statement at

Ex.-11. According to them, the second party has falsely

contended that he worked for 290 days in the year 2001.

According to them, the second party was engaged as casual

worker on daily wages as and when required. The first

party Bank is a Nationalised Bank constituted under the

provisions of the Banking Companies (Acquisition &

Transfer of Undertaking) Act 1976 and appointment to any

post in the Bank is governed by the statutory rules/

regulations in force from time to time. Therefore according to

them, second party is not entitled to any reliefs as prayed for.

4. The second party workman filed rejoinder at Ex-12

reiterating the contents in the statement of claim. Thereafter

the matter was fixed for evidence of the workman. Today

when the matter was called out, the second party workman

filed application (Ex-42) for withdrawing the above reference

as first partyconcurred to consider him in its services as

per the Recruitment Rules. In the above circumstances, I

think it proper to dispose of this reference for want of

prosecution. Hence the order:

ORDER

Reference is dismissed for want of prosecution with

no order as to cost.

K.B. KATAKE, Presiding Officer

ubZ fnYyh] 10 Qjojh] 2012

dkñvkñ- 905.—vkS|ksfxd fookn vfèfu;e 1947 ¼1947

dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj c®d vkWQ egkjk"Vª

ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqcaè

esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèdj.k@Je

U;k;ky;] ukxiqj ds iapkV ¼lanHkZ la[;k lhthvkbZVh@

,uthih@186@2002½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks

16&01&2012 dks izkIr gqvk FkkA

[lañ ,y&12012@270@1994&vkbZ vkj ¼chñ] II½]

'kh'k jke] vuqHkkx vfèdkjh

New Delhi, the 10th February, 2012

S.O. 905.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947, the Central Government

hereby publishes the Award (Ref. No. CGIT/NGP/186/

2002) of the Central Government Industrial Tribunal-cum-

Labour Court, Nagpur now as shown in the Annexure, in

the Industrial dispute between the employers in relation to

the management of Bank of Maharashtra and their

workman, which was received by the Central Government

on 16.01.2012.

[No. L-12012/270/1994-IR(B-II)]

SHEESH RAM, Section Officer

ANNEXURE

BEFORE SHRI J.P. CHAND, PRESIDING OFFICER

CGIT-CUM-LABOUR COURT, NAGPUR

Case No. CGIT/NGP/186/2002

Date: 04.01.2012

Party No. 1 :

The Chief Manager,

Vidharbha Zonal Office,

Bank of Maharashtra,

Sitabuldi, Nagpur-10

Versus

Party No. 2 :

Shri Shripad S/o Shri Martandrao

Deshpande, 133, Farm Land,

Ramdaspeth, Nagpur-10. (Dead)

Substituted by legal heir, Smt. Meena W/o Late

Shripad Deshpande, 133, Farm, Land, Ramdaspeth, Nagpur-

10 (as per order date 09.10.2001).

AWARD

In exercise of the powers conferred by clause (d) of

sub-section (1) and sub-section 2(A) of section 10 of

Industrial Disputes Act, 1947 (14 of 1947), ("the Act" in

short), the Central Government had referred the industrial

dispute between the employers, in relation to the

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

2207

managerment of Bank of Maharashtra, and their workman,

Shri Shripad M. Deshpande to CGIT-cum-Labour Court,

Jabalpur as per letter No. L.-12012/270/1994-IR(B-II),

dated 12.01.1995, with the following schedule:—

"Whether the action of the management of Bank of

Maharashtra, Nagpur in dismissing Shri Shripad

Martandrao Deshpande, Clerk/Typist from service

w.e.f. 24.09.1993 is legal and justified? If not, what

relief the said workman entitled to?"

Subsequently the reference was transferred to this

Tribunal for adjudication in accordance with law.

2. On receipt of the reference, the parties were noticed

to file their respective statement of claim and written

statement and accordingly, the workman, Shri Shripad M.

Deshpande ("the workman" in short) filed his statement of

claim and the management of the Bank of Maharashtra

("Party No.1" in short) filed its written statement.

The case of the workman as projected in the

statement of claim is that he was an award staff employee

in Bank of Maharashtra, Vidharbha Zonal Office in

inspection cell, Nagpur and had put in 21 years of long

unblemished service and there was not a single complaint

against him during the said period and in April 1991, a

charge sheet was issued against him under clause 19.5 (J)

of Bipartite Settlement for doing any act prejudicial to the

interest of the Bank, or gross negligence or negligence

involving or likely to involve the Bank in serious loss, on

the allegation of withdrawing a sum of Rs. 47,000/- from the

staff S/B A/C No. 929 of Shri P.P. Khsire, Deputy Chief

Manager, Bank of Maharashtra, Vidharbha Zonal Office,

Nagpur and causing loss of Rs. 47,000/- to the Bank and

the Bank decided to hold a departmental enquiry against

him and appointed Shri S.R. Joshi, Deputy Chief Manager

as the Enquiry Officer and after the enquiry, the enquiry

officer submitted his report holding the charges to have

been proved against him and the after submission of the

report a show cause notice was issued to him on 30.07.1993

along with the copy of the enquiry report to show cause as

to why the proposed punishment of "dismissal without

notice" be not imposed and to appear before the

Disciplinary Authority on 06.08.1993 at 12 noon for personal

hearing and he submitted his written notes of argument

before the Disciplinary Authority and appeared before him

on 06.09.1993 and the Disciplinary Authority gave him

personal hearing and passed the order of punishment on

24.09.1993 directing his dismissal from services without

notice and he preferred an appeal against the order of

dismissal to the Appellate Authority but the appeal was

dismissed by the Appellate Authority on 12.11.1993

mechanically, without application of mind and the findings

of the enquiry officer per se erroneous and without any

evidence and no fair opportunity was given to him in the

enquiry.

The workman had prayed to quash and set aside the

order dated 24.09.1993 and for his reinstatement in service

with consequential benefits including the back wages and

seniority.

3. The party no. 1 in its written statement has pleaded

inter alia that the statement of claim is infact not a statement

of claim, but the same is like a criminal appeal, which is

beyond the scope of consideration of the Tribunal and the

workman was working in Inspection department of Bank of

Maharashtra, Zonal Office, Nagpur as a clerk/Typist and

one Shri P.P. Kshire was working as the inspecting officer

in the same office and on 10.12.1990, Shri Kshire made a

complaint to the Bank about withdrawal of a sum of

Rs. 47000/- on 29.11.1990 from his savings bank account

no. 929 (staff AGM) Standing in Bank of Maharashtra,

Sitabuldi branch, Nagpur and from the inquiry, it came to

light that it was the workman, who had withdrawn the said

amount of Rs. 47000/- from the account of Shri Kshire, so a

charge sheet was issued against the workman and a

departmental enquiry was held against him and the workman

was assisted by a very competent, able and of his choice

defence representative in the departmental enquiry and all

possible opportunities were given to him to defend himself

in the enquiry and the enquiry was fair, legal, just and

proper and the principles of natural justice were followed

in letter and spirit and there were 85 sittings of the

departmental enquiry and the enquiry was adjourned 29

times at the request of the workman and about one year

time was given to the workman to submit the second opinion

of the handwriting expert, but he failed to produce the

same and six witnesses were examined and 13 documents

were produced by the management in the enquiry, whereas,

8 witnesses were examined by the workman in support of

his defence and the workman filed written notes of

arguments and taking into consideration the submissions

made by the parties, the enquiry officer submitted his report

and the workman submitted his reply to the second show

cause notice and was also heard personally by the

Disciplinary Authority, before imposition of the punishment

and the appeal filed by the workman was dismissed on

12.11.1993 by the appellate authority and the findings

recorded by the disciplinary authority are correct and legal

and they are not per se erroneous and the order was passed

with full application of mind and the order was not passed

mechanically either by the disciplinary authority or the

appellate authority and there is sufficient evidence against

the workman in the departmental enquiry to prove the

charges and except the bare allegations, there is nothing

on record to demonstrate that no fair opportunity was given

to the workman and the orders passed by the disciplinary

authority and the appellate authority are legal and valid

orders and the charges leveled against the workman were

proved in a fair departmental enquiry and the findings of

the enquiry officer are proper and legal and strict rules of

Evidence Act are not applicable to departmental

2208

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

proceedings and the workman is not entitled for any

relief.

4. It is necessary to mention here that while the

reference was pending before the CGIT-cum-Labour Court,

Jabalpur, the workman expired and the widow of the

workman, Smt. Meena S. Deshpande filed an application to

substitute her in place of the deceased workman, as his

legal heir and as per orders dated 09.10.2001, Smt. Meena

was substituted in place of the deceased workman.

5. It is also necessary to mention here that, my

predecessor-in-office had closed the reference on

07.07.2006, after hearing of argument from both the parties

and posted the same for award. However, no award was

passed by my predecessor-in-office till his retirement on

06.08.2010, so the reference was re-opened and notices

were sent to the parties for hearing of argument. Though

service of notice on the parties was sufficient, they did not

appear to argue out the case. On perusal of the record, it

was found that parties had filed written notes of argument.

So by order dated 27.07.2011, the case was closed and

posted for award.

6. At this juncture, I think it necessary to mention

that as this is a case of dismissal of the workman from

service, after holding of a departmental enquiry, the validity

of the departmental enquiry was taken as a preliminary

issue for consideration by the Presiding Officer, CGIT-cum-

Labour Court, Jabalpur. The order dated 08.04.1996

discloses that argument was heard on the question of the

validity of the departmental enquiry. It is found that in the

order dated 08.04.1996 it is mentioned that "The workman

has fully participated the enquiry, after the cross-

examination of witnesses, the E.O. provided the chance to

examine witness and file and the matter will be decided

after hearing final arguments" and the case was posted for

final argument. As no definite findings have been given

regarding the validity of the departmental enquiry, it is

required to give the finding in respect of the same, before

considering about the perversity of the findings and

quantum of punishment.

7. In the written notes of argument, it was submitted

on behalf of the workman that the enquiry held against the

workman was not fair and proper and not in accordance

with the principles of natural justice, as the enquiry officer

did not allow the workman for examination of two witnesses

in his defence and no reliance should have placed by the

enquiry officer on the evidence of Smt. Galpat, who did not

follow the procedures as prescribed, while introducing Shri

Varadpande for opening of an account in the bank and so

also on the evidence of the handwriting expert and the

findings of the enquiry officer are perverse and the

punishment is against the provisions of law and arbitrary

and the same is harsh, unjust, illegal and not proper and

the amount of Rs. 47000/- has already been recovered from

the G.P. Fund of the workman and it is clear that the workman

was awarded two punishment for one cause of action which

is not tenable in law and as such, the order of the punishment

is required to be set aside and the consequential benefits

be given to the legal heir of the workman.

8. Per contra, it was submitted on behalf of the party

no. 1 that it has already been held by order dated 08.04.1996

that the enquiry held against the workman was proper, just

and legal and a charge sheet against the workman under

clause 19.5 (j) of Bi-partite settlement for doing an act

prejudicial to the interest of the Bank or gross negligence

or negligence invloving or likely to involve the Bank in

serious loss and charges leveled against the workman were

proved in the departmental enquiry and the workman was

given all reasonable opportunities to defend himself in the

departmental enquiry and it is not within the jurisdiction of

the Tribunal to decide for itself, whether the charges framed

against the workman had been established and the authority

in holding was justified that the charges against the

employee were well founded and the evidence produced in

the enquiry proves that the bank was justified in coming to

the conclusion that the workman is guilty of the misconduct

charged and the Tribunal cannot go in to the sufficiency of

the evidence and the findings are not perverse and the

punishment is not shockingly disproportionate to the

charges, which have been proved in a properly held

departmental enquiry.

In support of such contentions, reliance was placed

on the decisions reported in AIR 1963 SC-601 (Union

Territory of Tripura Vs. Gopal), AIR 1960 SC-191

(Management of Balipara Tea Estate Vs. Its Workman),

AIR 1963 SC-1723 (State of A.P. Vs. Sri Ramarao), AIR 1994

SCC (L & S), 687 (State Bank of India Vs. Somerandra

Kishore Endow) and many others.

9. It is already mentioned earlier that as no definite

finding regarding the validity of the departmental enquiry

was given, it is necessary to give such a findings.

Perused the record including the documents of the

departmental enquiry. A charge sheet containing the details

of the charges leveled against the workman was served on

him. The workman was represented by a defence

representative in the enquiry. The witnesses for the

management were examined in presence of the workman

and they were cross-examined by the defence

representative. The workman examined eight witnesses in

his defence. Written notes of argument was also filed by

the workman. After submission of the enquiry report, the

second show cause notice was issued to the workman

along with the copy of the enquiry report and the workman

submitted his show cause and he was also heard personally

by the disciplinary authority, before imposition of the

punishment. It is also found that the enquiry officer rightly

rejected the request of the workman for examination of the

two witnesses. The workman took several adjournments

to produce a second handwriting expert's report, but did

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

2209

not produce such report. So taking all the materials on

record into consideration, it is found that the departmental

enquiry held against the workman was valid, just and

proper and was in accordance with the principles of natural

justice.

10. It is well settled that judicial review is not an

appeal from a decision but a review of the manner in which

the decision is made. Power of judicial review is meant to

ensure that the individual receives fair treatment and not

to ensure that the conclusion which the authority reaches

is necessarily correct in the eye of the court. Neither the

technical rules or Evidence Act nor proof of fact or evidence

as defined there in, apply to disciplinary proceeding.

Adequacy of evidence or reliability of evidence cannot be

permitted to be canvassed before the Court/Tribunal. When

the authority accepts the evidence and the conclusion

receives support there from, the disciplinary authority is

entitled to hold that the delinquent officer is guilty of the

charge. The Tribunal may interfere where the authority

held the proceedings against the delinquent officer in a

manner inconsistent with the rules of natural justice or in

violation of statutory rules prescribing the mode of enquiry

or where the conclusion or finding reached by the

disciplinary authority is based on no evidence or if the

conclusion or finding be such as no reasonable person

would have ever reached, the Court/Tribunal may interfere

with the conclusion or the finding and mould the relief so

as to make it appropriate to the facts of the case.

The present case in hand is now to be considered

with the touch stone of the principles as mentioned above.

On perusal of the record, it is found that the findings

of the enquiry officer are very much in tune with the record

of the enquiry, oral and documentary evidence and all other

relevant factors and the findings are proper and well

reasoned and based on the evidence on record and are not

perverse.

So far the punishment is concerned, the same is not

shockingly disproportionate. Gross misconduct has been

proved against the workman in a properly held departmental

enquiry. The Bank management lost confidence on the

workman and he came to be dismissed after taking into

consideration all the aggravating and extenuating

circumstances of the case. Therefore, the workman was

not entitled to any relief. Hence it is ordered:

ORDER

The action of the management of Bank of

Maharashtra, Nagpur in dismissing Shri Shripad

Martandrao Deshpande, Clerk/Typist from service w.e.f.

24.09.1993 is legal and justified. Neither the deceased

workman nor his legal heir, Smt. Meena is entitled to any

relief.

J.P. CHAND, Presiding Officer

ubZ fnYyh] 10 Qjojh] 2012

dkñvkñ- 906.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj c®d vkWQ egkjk"Vª

ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k

esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k@Je

U;k;ky; uñ 2] eqEcbZ ds iapkV ¼lanHkZ la[;k lhthvkbZVh&2@57

vkWQ 2008½] dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 20-1-

2012 dks izkIr gqvk FkkA

[lañ ,yñ&12012@43@2008&vkbZ vkj ¼ch&II½]

'kh'k jke] vuqHkkx vf/kdkjh

New Delhi, the 10th February, 2012

S.O.. 906.—In pursuance of Section 17 of the

Industrial Disputes Act, 1947, the Central Government

hereby publishes the Award (Ref. No. CGIT-2/57 of 2008)

of the Central Government Industrial Tribunal/Labour

Court No. 2, MUMBAI now as shown in the Annexure in

the Industrial Dispute between the employers in relation to

the management of BANK OF MAHARASHTRA and their

workmen, which was received by the Central Government

on 20.01.2012.

[No. L-12012/43/2008-IR (B-II)]

SHEESH RAM, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL NO. 2, MUMBAI

Present

K.B. KATAKE

Presiding Officer

REFERENCE NO. CGIT-2/57 OF 2008

EMPLOYERS IN RELATION TO THE MANAGEMENT

OF BANK OF MAHARASHTRA

The Deputy General Manager

Bank of Maharashtra

Mumbai City Regional Office

Fort

Mumbai-400 023.

AND

THEIR WORKMEN.

Shri Santosh S. Mhaskar

Janata Nagar Grih Nirman Society

"B" Wing, Room No. 414

Tardeo

Mumbai-400 034.

APPEARANCES:

FOR The Employer:

Mr. M. B. Anchan,

Advocate.

2210

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

FOR THE UNION :

Mr. J.H. Sawant,

Advocate.

Mumbai, dated the 16th December 2011.

AWARD

The Government of India, Ministry of Labour &

Employment by its Order No. L-12012/43/2008-IR (B-II),

dated 08.09.2008 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 industrial dispute to this Tribunal for

adjudication:

"Whether the action of the management of Bank of

Maharashtra, Regional Office, Mumbai by

terminating the services of Shri Santosh S. Mhaskar

is justified? What relief the workman Shri Santosh S.

Mhaskar is entitled to?"

2. After receipt of the reference, both the parties were

served with notice of the reference. The second party

workman appeared through his legal representative and

filed his Statement of Claim at Ex-5. First party resisted the

statement of claim of second party by filing their written

statement at Ex-7. Issues were framed by my

Dd. Predecessors at Ex-9 and the matter was fixed for

evidence of second party.

3. Meanwhile on the request of the both parties,

matter was kept in the Lokadalat. Advocate for the second

party workman by his purshis Ex-12 prayed to dispose of

this reference as the workman has expired and first party

has agreed to pay the legal dues to the L/Rs of the second

party workman. Accordingly, vide Ex-11, matter was placed

before this Tribunal for orders. Hence the order.

ORDER

Vide Ex-11 & 12, the dispute is settled in Lokadalat

dated 16/12/2011. Hence reference stands disposed of

K.B. KATAKE, Presiding Officer

Ex-11

PROCEEDINGS BEFORE THE LOK ADALAT HELD ON

16TH DECEMBER 2011

Panel Members:—

1. Mr. R.S. Pai, Adv.

2. Ms. Sejal Kulkarni, Adv.

3. Mr. G.M. Thomas, Adv.

Reference No.CGIT-2/57 of 2008

EMPLOYERS IN RELATION TO THE MANAGEMENT

OF BANK OF MAHARASHTRA

AND

THEIR WORKMEN

Present:

For the Management: Mr. M.B. Anchan, Adv.

For the Workman: Mr. J.H. Sawant, Adv.

Advocate Mr. Sawant for the second party files

application for disposing of the reference vide application

dated 16/12/2011 as the second party has expired and they

agreed to make the payments of legal dues to the widow of

the deceased workman. In view of the above this reference

has been settled out of court.

Sd/-

(Jaiprakash Sawant)

(M.B. Anchan)

Adv. for Second party

Adv. for the first party

Sd/-

(Adv. R.S. Pai)

(Adv. Sejal Kulkarni)

Seen

Sd/-

(Adv. G.M. Thomas)

Sd/-

(K.B. Katake)

PO, CGIT-2, Mumbai,

Ex-12

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL

NO.2, MUMBAI

Ref. No. CGIT-2/57 of 2008

Bank of Maharashtra

First Party

V/s.

Their workmen (Shri Santosh S. Mhaskar)

Second Party

Application for disposal of the Reference proceedings

MAY IT PLEASE YOUR HONOUR

The second party workman expired. The first party

has agreed to make payment of legal dues to the widow of

the deceased second party workman.

It is therefore prayed as per the instructions from the

union representative, Shri Umakant Kotnis that the

reference be disposed of for want of prosecution.

Mumbai

Date: 16.12.2011

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

2211

Sd/-

(Jaiprakash Sawant)

Adv. for Second party

No objection

Sd/-

(M.B. Anchan)

Adv. for the first party

Seen

Sd/-

(K.B. Katake)

PO, CGIT-2, Mumbai.

ubZ fnYyh] 10 Qjojh] 2012

dkñvkñ- 907.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj lsUVªy c®d vkWQ

bafM;k ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp

vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/

kdj.k@Je U;k;ky; uñ 2] eqEcbZ ds iapkV ¼lanHkZ la[;k

lhthvkbZVh&2@22 vkWQ 2008½ dks izdkf'kr djrh gS tks dsUnzh;

ljdkj dks 16-1-2012 dks izkIr gqvk FkkA

[lañ ,yñ&12012@1@2008&vkbZ vkj ¼ch&II½]

'kh'k jke] vuqHkkx vf/kdkjh

New Delhi, the 10th February, 2012

S.O. 807.—In pursuance of Section 17 of the

Industrial disputes Act, 1947, the Central Government

hereby publishes the Award (Ref. No. CGIT-2/57 of 2008)

of the Central Government Industrial Tribunal/Labour Court

No. 2, MUMBAI now as shown in the Annexure in the

Industrial Dispute between the employers in relation to the

management of CENTRAL BANK OF INDIA and their

workmen, which was received by the Central Government

on 16/01/2012.

[No. L-12012/1/2008-IR (B-II)]

SHEESH RAM, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL NO. 2, MUMBAI

Present

K.B. KATAKE

Presiding Officer

REFERENCE NO CGIT-2/22 OF 2008

EMPLOYERS IN RELATION TO THE MANAGEMENT

OF CENTRAL BANK OF INDIA

The Regional Manager

Central Bank of India

Regional Office

P-63, MIDC,

Satpur

Nasik

Maharashtra-422 007.

AND

THEIR WORKMEN.

Shri Narendra Manohar Chitte

At Post Malpur

Tal. Sindkheda

Distt. Dhule

Maharashtra.

APPEARANCES:

FOR THE EMPLOYER :

Mr. L.L. D'Souza,

Representative.

FOR THE WORKMAN :

Mr. Gurunath Naik,

Advocate.

Mumbai, dated the 21st November, 2011.

AWARD

The Government of India, Ministry of Labour &

Employment by its Order No. L-12012/1/2008-IR (B-II), dated

17.03.2008 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 industrial dispute to this Tribunal for

adjudication:

"Whether the action of the management of Central

Bank of India in not absorbing Shri Narendra Chitte

Casual Labour as full time sub-staff is legal and

justified? If not, what relief the concerned workman

is entitled?"

2. After receipt of the reference from the Ministry,

both the parties were served with notices. In response to

the notice, the second party workman has filed his

statement of claim at Ex-3 wherein he has prayed to direct

the first party to reinstate the workman with full backwages

and continuity of service w.e.f. 28/02/2004 alongwith all

consequential benefits.

3. The first party management resisted the statement

of claim vide their written statement at Ex-6. They have

denied all averments and contentions in the statement of

claim of the second party. Thereafter workman filed his

rejoinder at Ex-12. My Id. Predecessor framed issues at Ex-

9. Second party workman filed his affidavit in lieu of

examination-in chief EX-12. After closing of evidence of

second party, the matter was fixed for evidence of the first

party.

4. Meanwhile second party workman filed application

to take the matter on today's board for withdrawing the

reference as settled out of court. He prays that the reference

be disposed of as settled.

3. As the second party workman has filed withdrawal

2212

THE GAZETTE OF INDIA : MARCH 3, 2012/PHALGUNA 13, 1933

[PART II—SEC. 3(ii)]

application, no industrial dispute remains to be adjudicated.

Thus I dispose of the reference as prayed by the second

party in his application Ex-15. Thus the order:

ORDER

(i)

The reference is disposed of as withdrawn.

(ii) No order as to costs.

K.B. KATAKE, Presiding Officer/Judge

ubZ fnYyh] 10 Qjojh] 2012

dkñvkñ- 908.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj vkseu ,;j ,oa

ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqca/

k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k]

eqEcbZ uañ&1 ds iapkV ¼lanHkZ la[;k 33@2005½ dks izdkf'kr djrh

gS] tks dsUnzh; ljdkj dks 10@02@2012 dks izkIr gqvk FkkA

[ lañ ,y&11012@35@2005 vkbZ vkj ¼lh&I½]

Mhñ,lñ,lñ Jhfuokl jko] MsLd vf/kdkjh

New Delhi, the 10th February, 2012

S.O. 908.—In pursuance of Section 17 of the

Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 33/2005)

of the Central Government Industrial Tribunal-cum-

Labour Court-1, MUMBAI, as shown in the Annexure in

the Industrial Dispute between the employers in relation to

the management of M/s. OMAN AIR, and their workman,

which was received by the Central Government on 10/02/

2012.

[No. L-11012/35/2005-IR(C-I)]

D.S.S. SRINIVASA RAO, Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL NO. 1

MUMBAI

JUSTICE G.S. SARRAF

Presiding Officer

REFERENCE NO. CGIT-1/33 OF 2005

Parties:

Employers in relation to the management of Oman Air

And

Their Workman (I.A. Shaikh)

APPEARANCES:

For the management :

Shri Ashwin Modi, Adv.

For the workman :

Shri M.B. Anchan, Adv.

Maharashtra

Mumbai dated the 27th day of January, 2012.

AWARD

This is a reference made by the Central Government

in exercise of its powers under clause (d) of sub section (1)

and sub-section (2A) of Section 10 of the Industrial

Disputes Act, 1947 (hereinafter referred to as the Act). The

terms of reference given in the schedule are as follows:

"Whether the action of the management of M/s. Oman

Air Mumbai in terminating the services of

Sh. Intekhab Alam Shaikh vide letter dt. 1.9.2004 is

just, fair and legal? If not, to what relief is the workman

entitled"?

2. According to the statement of claim submitted by

the workman he was appointed as a office boy by Oman

Air, Mumbai w.e.f. 19.10.1999. He was confirmed on the

said post by letter dt. 18.4.2000. He continuously worked

on the same post without any break of service till his

termination w.e.f. 26.8.2004 vide letter dt. 1.9.2004 According

to the statement of claim on 28.7.2004 the DRI Officers took

him to their office at Colaba and he remained in their

custody on that day. Next day he was taken to the Court of

Additional Chief Metropolitan Magistrate and the Court

remanded him to custody for 3 days. After his release on

2.8.2004 he reported for duty. He was allowed to resume his

duty and he worked for about 16 days. On 18.8.2004 he was

placed under suspension and his airport pass was taken

away by the Airport Manager. By letter dt. 1.9.2004 his

services were terminated w.e.f. 26.8.2004. According to the

statement of claim the management did not issue any charge

sheet nor held any departmental enquiry. No show cause

notice was issued to him before terminating his services.

Termination of his services without enquiry and without

show cause notice is against the principles of natural justice

and therefore, illegal. He was retrenched from service and

while retrenching he was not given one month's notice or

one month's wages in lieu of such notice. He was also not

paid retrenchment compensation. His retrenchment is,

therefore, contrary to Section 25-F of the Act. He is,

therefore, entitled to reinstatement in service with full back

wages and continuity of service.

According to the written statement submitted by the

first party company the workman was employed on

compassionate ground on demise of his father who was

working as office boy in the company. The workman was

arrested by the office of the DRI, Mumbai on 28/29/7/2004

and he was remanded to their custody. The workman

reported for duty on 2.8.2004 without Informing the

company the cause of his absence and worked for about

two weeks. A letter dt. 12/13/8/2004 was received from the

DRI, Mumbai wherein it was stated that foreign currency

equivalent to Rs. 17,98,900/- was seized from one Iqbal

Yusuf Suleman and in the course of investigation the

workman admitted that on 5 to 6 occasions he had helped

Iqbal Yusuf Suleman by collecting packets containing

foreign currency from Iqbal Yusuf Suleman outside the

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % ekpZ 3] 2012@iQkYxqu 13] 1933

2213

airport and handed over the same to him after he had

completed customs and security checks. The first party

company was shocked to learn about this illegal and anti-

national activity of the workman. The first party company

is operating in India on bilateral relations between India

and Sultanate of Oman and it cannot have a person with

criminal bent of mind with them as it adversely affects not

only its business interest but also its very existence in

India. The first party company could not continue with the

workman who was labelled a security risk, As the PIC No.

N 00021961 issued to the workman was cancelled the first

party company had no option but to terminate the services

of the workman. It has, therefore been prayed that the claim

made by the workman be dismissed.

4. The workman has filed his affidavit and he has

been cross-examined by learned counsel for the first party

company. The first party company has not examined any

witness.

5. Heard Shri Ashwin Modi, learned counsel for the

first party and Shri Anchan, learned counsel for the second

party workman.

6. It is not disputed by learned counsel for the

workman that chargesheet has been filed against the

workman and the case is pending in Court.

7. Generally, an enquiry is held before imposition of

punishment but if any workman is involved in an activity

such as smuggling of foreign currency or aiding or being

concerned in anyway in the smuggling and a penal action

is brought against the wokman by the appropriate authority

under law then it may not be necessary to hold an enquiry

in the matter before imposition of any punishment. In my

opinion in such matters the Competent Authority can accept

the findings of the statutory authority regarding the

involvement of the wokman and there is no need to make

any fresh enquiry. In this matter the workman has been

found to be involved in foreign currency smuggling and a

chargesheet has been filed against him, therefore, in my

opinion no second enquiry is necessary. If the workman is

finally acquitted by a competent court then he is free to

seek appropriate relief before appropriate forum.

8. There is no retrenchment of the workman in this

case and, therefore, there is no question of giving

retrenchment benefits to him.

9. For the reasons stated above the workman is not

entitled to any relief.

An award is made accordingly.

JUSTICE G.S. SARRAF, Presiding Officer

ubZ fnYyh 17 Qjojh] 2012

dkñvkñ- 909.—dsUnzh; ljdkj larq"V gks tkus ij fd yksdfgr

esa ,slk djuk visf{kr Fkk] vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947

dk 14½ dh /kkjk 2 ds [k.M ¼<½ ds mi&[k.M (vi) ds mica/kksa ds

vuqlj.k esa Hkkjr ljdkj ds Je vkSj jkstxkj ea=ky; dh vf/klwpuk

la[;k dk-vk- ------------------------------------ fnukad 18-08-2011

}kjk rFkk [kuu m|ksx tksfd vkS|ksfxd fookn vf/kfu;e] 1947

¼1947 dk 14½ dh izFke vuqlwph dh izfof"V 13 esa 'kkfey gS dks

mDr vf/kfu;e ds iz;kstuksa ds fy, fnukad 25-08-2011 ds N% ekl

dh dkykof/k ds fy, yksd mi;ksxh lsok ?kksf"kr fd;k FkkA

vkSj dsUnzh; ljdkj dh jk; gS fd yksdfgr esa mDr dkykof/k

dks N% ekl dh vksj dkykof/k ds fy, c<+k;k tkuk visf{kr gS(

vr%] vc] vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk

14½ dh /kkjk 2 ds [k.M ¼<½ ds mi&[k.M (vi) ds ijUrqd }kjk

iznÙk 'kfDr;ksa dk iz;ksx djrs gq,] dsUnzh; ljdkj mDr m|ksx dks mDr

vf/kfu;e ds iz;kstuksa ds fy, fnukad 25-02-2012 ls N% ekg dh

dkykof/k ds fy, yksd mi;ksxh lsok ?kksf"kr djrh gSA

[la[;k ,l&11017@11@97 vkbZ vkj ¼ih ,y½]

pUnz izdk'k] la;qDr lfpo

New Delhi, the 17th February, 2012

S.O. 909.—Whereas the Central Government having

been satisfied that the public interest so requires that in

pursuance of the provisions of sub-clause (vi) of the clause

(n) of section 2 of the Industrial Disputes Act, 1947 (14 of

1947), declared by the Notification of the Government of

India in the Ministry of Labour & Employment dated

18.08.2011 the service in the Copper Mining Industry which

is covered by item 13. of the First Schedule to the Industrial

Disputes Act, 1947 (14 of 1947) to be a Public Utility Service

for the purpose of the said Act, for a period of six months

from the 25th August, 2011.

And whereas, the Central Government is of opinion

that public interest requires the extension of the said period

by a further period of six months.

Now, therefore, in exercise of the powers conferred

by the proviso to sub-clause (vi) of clause (n) of section 2

of the Industrial Disputes Act, 1947, the Central Government

hereby declares the said industry to be a public Utility

Service for the purposes of the said Act, for a period of six

months from the 25th February 2012.

[No. S. 11017/11/97-IR (PL)]

CHANDRA PRAKASH, Jt. Sec.

Printed by the Manager, Government of India Press, Ring Road, Mayapuri, New Delhi-110064

and Published by the Controller of Publications, Delhi-110054.