jftLVªh lañ Mhñ ,yñ—(,u)04@0007@2003—05
REGISTERED NO. DL—(N)04/0007/2003—05
izkf/kdkj ls izdkf'kr
PUBLISHED BY AUTHORITY
lkIrkfgd
WEEKLY
lañ 15]
ubZ fnYyh] vizSy 7—vizSy 13] 2013 'kfuokj@pS= 17—pS= 23] 1935 ¼'kd½
No. 15] NEW DELHI, APRIL 7—APRIL 13, 2013, Saturday/CHAITRA 17—CHAITRA 23, 1935 (SAKA)
bl Hkkx esa fHkUu i`"B la[;k nh tkrh gS ftlls fd ;g vyx ladyu ds :i esa j[kk tk ldsA
Separate paging is given to this Part in order that it may be filed as a separate compilation.
Hkkx II — [k.M 3—mi&[k.M (ii)
PART II — Section 3—Sub-section (ii)
Hkkjr ljdkj ds ea=ky;ksa ¼j{kk ea=ky; dks NksM+dj½ }kjk tkjh fd, x, lkafof/kd vkns'k vkSj vf/klwpuk,a
Statutory Orders and Notifications Issued by the Ministries of the Government of India
(Other than the Ministry of Defence)
———————
dkfeZd] yksd f'kdk;r rFkk isa'ku ea=ky;
¼dkfeZd vkSj izf'k{k.k foHkkx½
ubZ fnYyh] 4 vizSy] 2013
dkñ vkñ- 845-
—dsanzh; ljdkj ,rn~}kjk naM izfØ;k lafgrk]
1973 ¼1974 dk vf/kfu;e la ¼2½ dh /kkjk 24 dh mi/kkjk ¼8½ }kjk
iznÙk 'kfDr;ksa dk iz;ksx djrs gq, fnYyh fo'ks"k iqfyl LFkkiuk ¼ds-v-
C;wjks½ }kjk laLFkkfir ubZ fnYyh fLFkr fnYyh mPp U;k;ky; vkSj Hkkjr
ds loksZPp U;k;ky; esa vkjlh&03¼,½@2004@,lh;w-&IX@ubZ fnYyh
¼gfj;k.kk dk tschVh HkrhZ ?kksVkyk½ ekeys ls mRiUu vihyksa] iqujh{k.kksa
rFkk blls lac) vU; ekeyksa ,oa blds vuq"kkafxd ekeyksa dk lapkyu
djus ds fy, Jh fl)kFkZ ywFkjk] Hkkjr ds vij egkU;k;f/koDrk dks
fo'ks"k yksd vfHk;kstd ds :i esa fu;qDr djrh gSA
[Qkñ lañ 225@22@2013&,ñohñMhñ&II]
jktho tSu] voj lfpo
MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES
AND PENSIONS
(Department of Personnel and Training)
New Delhi, the 4th April, 2013
S.O. 845.—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 Sidharth Luthra, Additional Solicitor
General of India as Special Prosecutor for appearing in
appeals, revisions arising out of the case RC 03(A)/2004/
ACU-IX/New Delhi (JBT Recruitment Scam of Haryana)
instituted by the Delhi Special Police Establishment (C.B.I.)
in the Delhi High Court and Supreme Court of India at New
Delhi and other matters connected therewith and incidental
thereto.
[F.No. 225/22/2013-AVD-II]
RAJIV JAIN, Under Secy.
ubZ fnYyh] 4 vizSy] 2013
dkñ vkñ- 846-
—dsanzh; ljdkj ,rn~}kjk naM izfØ;k lafgrk]
1973 ¼1974 dk vf/kfu;e lañ 12½ dh /kkjk 24 dh
mi/kkjk ¼8½ }kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq, ijh{k.k
U;k;ky;ksa@iqujh{k.k ;k fof/k }kjk LFkkfir iqujh{k.k ;k vihyh;
U;k;ky;ksa esa bu ekeyksa ls mRiUu vU; ekeys tks fd fnYyh fo'ks"k
iqfyl LFkkiuk ¼lhchvkbZ½ }kjk laLFkkfir fd, x, gSa ftUgsa dsanzh;
vUos"k.k C;wjks }kjk mUgsa lkSaik x;k gS] Hkqous'oj] mM+hlk jkT; esa vfHk;kstu
1305GI
(1)
2442
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(1-26)
ekeyksa dk lapkyu djus ds fy, fuEuksDr odhyksa dks yksd
vfHk;kstd ds :i esa fu;qDr djrh gS%µ
loZJh
1- Jh jkts'oj gksrk
2- Jh fcx;ku dqekj 'kekZ
3- dey ykspu dkj
4- eksgEen ft;kmy gd
[Qkñ lañ 225@07@2012&,ñohñMhñ&II]
jktho tSu] voj lfpo
New Delhi, the 4th April, 2013
S.O. 846.—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 following advocates as Special Public
Prosecutor for conducting prosecution of cases instituted
by Delhi Special Establishement (CBI) in the State of Orissa
at Bhubaneswar as entrusted to them by the Central Bureau
of Investigation in the tribal courts and appeals/revisions
or other matters arising out of these cases in revisional or
appellate courts established by law.
S/Shri
1. Rajeshwar Hota
2. Bigyan Kumar Sharma
3. Kamal Lochan Kar
4. Md. Ziaul Haque
[F.No. 225/07/2012-AVD-II]
RAJIV JAIN, Under Secy.
ubZ fnYyh] 5 vizSy] 2013
dkñ vkñ 847-
—dsanzh; ljdkj ,rn~}kjk fnYyh fo'ks"k iqfyl
LFkkiuk vf/kfu;e] 1946 ¼1946 dk vf/kfu;e lañ 25½ dh /kkjk 3
}kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq, fuEuksDr vijk/k tks fd fnYyh
fo'ks"k iqfyl LFkkiuk }kjk vUosf"kr fd, tkus gSa mUgsa fofuZfn"V djrh
gS] uker~%µ
¼d½ Hkkjrh; naM lafgrk 1860 ¼1860 dk vf/kfu;e lañ 45½
dh /kkjk 203 ds varxZr naMuh; vijk/k rFkk
¼[k½ mi;qZDr mfYyf[kr vijk/k ds laca/k esa ;k mlls lEc)
iz;kl] nq"izsj.kk rFkk "kM;a= rFkk mlh laO;ogkj esa fd;k
x;k ;k mUgha rF;ksa ls mn~Hkwr dksbZ vijk/k ;k vijk/kksaA
[Qkñ lañ 228@8@2013&,ñohñMhñ&II]
jktho tSu] voj lfpo
New Delhi, the 5th April, 2013
S.O. 847.—In exercise of the powers conferred by
section 3 of the Delhi Special Police Establishment Act,
1946 (Act No. 25 of 1946), the Central Government hereby
specify the following offence which is to be investigated
by the Delhi Special Police Establishment namely:—
(a) Offence punishable under section 203 of the
Indian Penal Code, 1860 (Act No. 45 of 1860) and
(b) Attempt, abetment and conspiracy in relation to
or in connection with the offence mentioned
above and any other offence or offences
committed in the course of the same transaction
or arising out of the same facts.
[F.No. 228/8/2013-AVD-II]
RAJIV JAIN, Under Secy.
ubZ fnYyh] 5 vizSy] 2013
dkñ vkñ 848-
—dsanzh; ljdkj ,rn~}kjk fnYyh fo'ks"k iqfyl
LFkkiuk vf/kfu;e] 1946 ¼1946 dk vf/kfu;e lañ 25½ dh /kkjk 6
lifBr /kkjk 5 dh mi/kkjk ¼1½ }kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq,
v:.kkpy izns'k ljdkj] x`g foHkkx] bZVkuxj dh fnukad 8 tuojh]
2013 dh vf/klwpuk la[;k ,p,ech¼,½&42@08 }kjk izkIr lgefr
ls iqfyl Fkkuk Hkkyqdiksax v:.kkpy izns'k esa iathd`r ekeyk la[;k
17@2012 esa Hkkjrh; naM lafgrk 1860 ¼1860 dk vf/kfu;e la[;k
45½ ds v/khu /kkjk 365] 109] 182] 193] 203] 120 ch rFkk 34 ds
rgr rFkk mi;qZDr mfYyf[kr vijk/k ds lEca/k esa ;k muds lEc) esa
iz;klksa] nq"izsj.kkvksa rFkk "kM;a=ksa rFkk mlh laO;ogkj esa fd, x, ;k
mUghsa rF;ksa ls mRiUu fdlh vU; vijk/k ;k vijk/kksa dk vUos"k.k
djus ds fy, fnYyh fo'ks"k iqfyl LFkkiuk ds lnL;ksa dh 'kfDr;ksa
vkSj {ks=kf/kdkj dk foLrkj lEiw.kZ v:.kkpy izns'k jkT; ds lEca/k
esa djrh gSA
[Qkñ lañ 228@8@2013&,ñohñMhñ&II]
jktho tSu] voj lfpo
New Delhi, the 5th April, 2013
S.O. 848.—In exercise of the powers conferred by
sub-section (1) of section 5 read with section 6 of the Delhi
Special Police Establishment Act, 1946 (Act No. 25 of 1946),
the Central Government with the consent of the State
Government of Arunachal Pradesh, Home Department,
Itanagar vide Notification No. HMB(A)-42/08 dated 8th
January, 2013 hereby extends the powers and jurisdiction
of the members of the Delhi Special Police Establishment
to the whole of the State of Arunachal Pradesh for
investigation of case No. 17/2012 under sections 365, 109,
182, 193, 203, 120-B and 34 of the Indian Penal Code 1860
(Act No. 45 of 1860) registered at Police Station Bhalukpong
Arunachal Pradesh and attempts, abetments and
conspiracy in relation to or in connection with the above
mentioned offences and any other offence or offences
committed in the course of the same transaction or arising
out of the same facts.
[F.No. 228/8/2013-AVD-II]
RAJIV JAIN, Under Secy.
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2443
Server3/E/1250RR/1250RR(1-26)
foÙk ea=ky;
foÙkh; lsok,a foHkkx
ubZ fnYyh] 5 vizSy] 2013
dk-vk - 849-
—cSaddkjh fofu;eu vf/kfu;e] 1949 ¼1949
dk 10½ dh /kkjk 53 }kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq,] Hkkjr
ljdkj] Hkkjrh; fjtoZ cSad dh flQkfj'k ij] ,rn~}kjk ?kks"k.k djrh
gS fd mDr vf/kfu;e dh /kkjk 10 dh mi/kkjk ¼1½ ds [k.M ¼x½ ds
mi&[k.M (i) ds mica/k cSad vkQ cM+kSnk ij ykxw ugha gksaxs] tgka rd
mudk laca/k cSad ds v/;{k ,oa izca/k funs'kd Jh ,l-,l- eqUnzk dk
bafM;k baVjus'kuy cSad eysf'k;k ch,pMh] ¼vkbZvkbZch,ech½] eSllZ
cM+kSnk ik;fu;j vlsV eSustesaV daiuh fy] vkSj eSllZ bafM;kQLVZ
ykbQ ba';ksjsal daiuh fy- ds cksMZ esa ukekadu ls gSA
[Qkñ lañ 13@4@2013&chvks&I]
fot; eYgks=k] voj lfpo
MINISTER OF FINANCE
Department of Financial Services
New Delhi, the 5th April, 2012
S.O. 849 .—In exercise of the powers conferred by
Section 53 of the Banking Regulation Act, 1949 (10 of 1949),
the Government of India on the recommendations of the
Reserve Bank of India, hereby declare that the provisions
of sub-clause (i) of clause (c) of sub-section (1) of Section
10 of the said Act shall not apply to Bank of Baroda in so
far as it relates to the nomination of Shri S.S. Mundra,
Chairman & Managing Director of the Bank on the Board
of India International Bank Malaysia Bhd. (IIBMB), M/s
Baroda Pioneer Asset Management Company Ltd. and M/
s India First Life Insurance Company Ltd.
[F.No. 13/4/2013-BO-I]
VIJAY MALHOTRA, Under Secy.
ubZ fnYyh] 5 vizSy] 2013
dk-vk - 850-
—Hkkjrh; LVsV cSad vf/kfu;e] 1955 ¼1955
dk 23½ dh /kkjk 21d ds lkFk ifBr /kkjk 21 dh
mi/kkjk ¼1½ ds [k.M ¼x½ }kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq,]
dsUnzh; ljdkj] Hkkjrh; fjtoZ cSad ls ijke'kZ djds] ,rn~}kjk] Jherh
lqtk;k fnus'k vYok ¼tUe frfFk 21-05-1963½dks mudh fu;qfDr
dh vf/klwpuk dh rkjh[k ls rhu o"kZ dh vof/k ds fy, vFkok vxys
vkns'kksa rd] tks Hkh igys gks] Hkkjrh; LVsV cSad ds caxyksj LFkkuh;
cksMZ esa lnL; ds :i esa ukfer djrh gSA
[Qkñ lañ 3@14@2012&chvks&I]
fot; eYgks=k] voj lfpo
New Delhi, the 5th April, 2013
S.O. 850.—In exercise of the powers conferred by
clause (c) of sub-section (1) of Section 21, read with section
21A of the State Bank of India Act, 1955 (23 of 1955), the
Central Government, in consultation with Reserve Bank of
India, hereby nominates Smt. Sujaya Dinesh Alva (DOB:
21.05.1963), as a member on the Bangalore Local Board of
State Bank of India, for a period of three years from the
date of notification of her appointment or until further
orders, whichever is earlier.
[F.No. 3/14/2012-BO-I]
VIJAY MALHOTRA, Under Secy.
ubZ fnYyh] 9 vizSy] 2013
dk-vk - 851- —jk"Vªh; d`f"k vkSj xzkeh.k fodkl cSad vf/kfu;e]
1981 ¼1981 dk 61½ dh /kkjk 6 dh mi&/kkjk ¼1½ ds [k.M ¼³½
}kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq,] dsUnzh; ljdkj] ,rn~}kjk] 27-
07-2013 ls rhu o"kZ dh vof/k ds fy, fuEufyf[kr O;fDr;ksa dks
jk"Vªh; d`f"k vkSj xzkeh.k fodkl cSad ¼ukckMZ½ ds funs'kd e.My esa
funs'kd ds :i esa fu;qDr djrh gS%µ
(i) iz/kku lfpo ¼d`f"k½]
dukZVd ljdkj]
csaxyq:A
(ii) vij eq[; lfpo ¼d`f"k ,oa foi.ku½]
egkjk"Vª ljdkj]
eqEcbZA
[Qkñ lañ 7@1@2013&chvks&I]
fot; eYgks=k] voj lfpo
New Delhi, the 9th April, 2013
S.O. 851.—In exercise of the powers conferred by
clause (e) of sub-section (1) of Section 6 of the National
Bank for Agriculture and Rural Development Act, 1981 (61
of 1981), the Central Government hereby appoints the
following persons to be directors on the board of directors
of National Bank for Agriculture and Rural Development
(NABARD) for a period of three years with effect from
27.07.2013:—
(i) Principal Secretary (Agriculture)
Government of Karnataka, Bengaluru,
(ii) Additional Chief Secretary (Agriculture &
Marketing)
Government of Maharashtra, Mumbai.
[F.No. 7/1/2013-BO-I]
VIJAY MALHOTRA, Under Secy.
ubZ fnYyh] 9 vizSy] 2013
dk-vk - 852-
—jk"Vªh; d`f"k vkSj xzkeh.k fodkl cSad vf/kfu;e]
1981 ¼1981 dk 61½ dh /kkjk 6 dh mi&/kkjk ¼1½ ds [k.M ¼³½ }kjk iznÙk
'kfDr;ksa dk iz;ksx djrs gq,] dsUnzh; ljdkj] ,rn~}kjk] bl vf/klwpuk ds tkjh
gksus dh frfFk ls rhu o"kZ dh vofè ds fy, fuEufyf[kr O;fDr;ksa dks jk"Vªh; d`f"k
vkSj xzkeh.k fodkl cSad ¼ukckMZ½ ds funs'kd e.My esa funs'kd ds :i esa
fu;qDr djrh gS%µ
2444
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(1-26)
(i) iz/kku lfpo ¼d`f"k½]
fgekpy izns'k ljdkj]
f'keykA
(ii) iz/kku lfpo ¼d`f"k½]
es?kky; ljdkj]
f'kykaxA
[Qkñ lañ 7@1@2013&chvks&I]
fot; eYgks=k] voj lfpo
New Delhi, the 9th April, 2013
S.O. 852.—In exercise of the powers conferred by
clause (e) of the sub-section (1) of Section 6 of The National
Bank for Agriculture and Rural Development Act, 1981 (61
of 1981), the Central Government hereby appoints the
following persons to be directors on the board of directors
of National Bank for Agriculture and Rural Development
(NABARD) for a period of three years with effect from the
date of issue of this notification:—
(i) Principal Secretary (Agriculture)
Government of Himachal Pradesh, Shimla.
(ii) Principal Secretary (Agriculture)
Government of Meghalaya, Shillong.
[F.No. 7/1/2013-BO-I]
VIJAY MALHOTRA, Under Secy.
lapkj ,oa lwpuk izkS|ksfxdh ea=ky;
¼Mkd foHkkx½
ubZ fnYyh] 25 ekpZ] 2013
dkñvkñ 853-
—jktHkk"kk fu;e ¼la?k ds 'kkldh; iz;kstuksa ds
fy, iz;ksx½] 1976 ds fu;e 10 ds mi fu;e ¼4½ ds vuqlj.k esa
dsanz ljdkj] Mkd foHkkx ds v/khuLFk dk;kZy; eq[; iksLVekLVj
tujy] jktLFkku lfdZy] t;iqj ds fuEufyf[kr dk;kZy; dks] ftuds
100 izfr'kr vf/kdkfj;ksa ,oa deZpkfj;ksa us fganh dk dk;Zlk/kd Kku
izkIr dj fy;k gS] vf/klwfpr djrh gS%&
1- izoj v/kh{kd ¼Mkd?kj½] mn;iqj e.My] mn;iqj & 313004&18
[lañ 11017&1@2011&jkñHkkñ]
ehjk gk.Mk] mi egkfuns'kd ¼fQySVyh@jktHkk"kk½
MINISTRY OF COMMUNICATIONS AND
INFORMATION TECHNOLOGY
(Department of Posts)
New Delhi, the 25th, March, 2013
S.O. 853.—In pursuance of Rule 10(4) of the Official
Language (use for official purposes of the Union) Rule
1976, the Central Government hereby notifies following
office of the Office Chief Postmaster General, Rajasthan
Circle , Jaipur of the Department of Posts where 100% staff
has acquired the working knowledge of Hindi:—
1.
Senior Superintendent (Post Office) Udaipur Division,
Udaipur - 33004-18
MEERA HANDA, Director General (PHILATELY/OL)
;qok dk;ZØe ,oa [ksy ea=ky;
ubZ fnYyh] 28 ekpZ] 2013
dkñvkñ 854-
—dsUnzh; ljdkj ,rnn~okjk jktHkk"kk ¼la?k ds
'kkldh; iz;kstuksa ds fy, iz;ksx½ fu;e 1976 ds fu;e 10 ds mi
fu;e¼4½ ds vuqlj.k esa ;qok dk;ZØe vkSj [ksy ea=ky; ds
Lok;Ùk'kklh dk;kZy; Hkkjrh; [ksy izkf/kdj.k&if'peh izf'k{k.k dsanz]
vkSjaxkckn] egkjk"Vª ftlds 80% ls vf/kd deZpkjhoa`an us fganh dk
dk;Zlk/kd Kku izkIr dj fy;k gS] dks vf/klwfpr djrh gSA
[feñlañ 11011@2@2008&fgñ,ñ]
Fkaxysefy;u] mi lfpo
MINISTRY OF YOUTH AFFAIRS AND SPORTS
New Delhi, the 28th March, 2013
S.O. 854.—In pursuance of sub rule (4) of Rule of
10 of Official Language (use for official of the Union) Rule
1976, the Central Government hereby notifies Sports
Authority of India—Western training Centre, Aurangabad,
Maharashtra an autonomous office of Ministry of Youth
Affairs & Sports, whereof more than 80% staff have acquired
working knowledge in Hindi.
[F.No. E-11011/2/2008-HU]
THANGLEMLIAN DY. Secy.
foKkku vkSj izkS|ksfxdh foHkkx
ubZ fnYyh] 5 vizSy] 2013
dkñvkñ 855-
—Jh fp=k fr:uy vk;qfoZKku vkSj izkS|ksfxdh
laLFkku] f=osUnze vf/kfu;e] 1980 ¼1980 dh la[;k 52½ dh /kkjk 6
dh mi&/kkjk ¼1½ vkSj ¼2½ ds lkFk ifBr /kkjk & 5 ds [k.M&´ ds
izko/kkuksa ds vuqlkj Jh tkW; vczkge] lnL;] jkT; lHkk dks fnukad
17 fnlacj] 2012 ls mDr laLFkku ds lnL; ds :i esa fof/kor~ fuokZfpr
fd;k x;k gSA
LFkk;h irk
fnYyh dk irk
e>woUuwj gkÅl
dsjy gkÅl
esykeijk Mkd?kj] Hkjkuaxue]
3] tarj earj jksM]
dksV~Vk;e&686578
ubZ fnYyh&110001
2- fuokZfpr lnL; ds :i esa Jh tkW; vczkge dk dk;Zdky
01 tqykbZ] 2018 rd vFkok lnu dh mudh lnL;rk lekIr gksus
rd vFkok muds jkT; lHkk ds mik/;{k vFkok ea=h cuus ij] buesa ls
tks Hkh igys gks] gksxkA
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2445
Server3/E/1250RR/1250RR(1-26)
3- Jh tkW; vczkge dh lnL;rk Jh fp=k fr:uy vk;qfoZKku vkSj izkS|ksfxdh laLFkku] f=osUnze vf/kfu;e] 1980 ds vU; izko/kkuksa ds
v/;/khu gksxhA
[Qkñlañ ,vkbZ@,llhVhvkbZ,e,lVh@009@04]
nhid jruiky] mi lfpo
DEPARTMENT OF SCIENCE AND TECHNOLOGY
New Delhi, the 3rd April, 2013
S.O. 855.— In terms of the provisions of Clause-J of Sections-5 read with Sub section (1) and (2) of Section 6 of the Sree
Chitra Tirunal Institute of Medical Sciences and Technology, Trivandrum Act, 1980 (No. 52 of 1980), Shri Joy Abraham,
Member, Rajya Sabha has been duly elected to be a member of the said Institute w.e.f. 17th December, 2012.
Permanent Address
Delhi Address
Mazhuvannoor House,
Kerala House,
Melampara P.O. Bharananganam,
3, Jantar Mantra Road,
Kottayam - 686578
New Delhi - 110001
2. The term of Office of Shri Joy Abraham as the elected member shall be upto 1st July, 2018 and the same shall come
to an end as soon as he ceases to be Member of the House, or he becomes Deputy Chairman of the Council of State, or a
Minister, whichever is the earliest.
3. Membership of Shri Joy Abraham shall be subject to other provisions of Sree Chitra Tirunal Institute of Medical
Sciences and Technology, Trivandrum Act, 1980.
[F.No. AI/SCTIMST/009/04]
DEEPAK RATTANPAL, Dy. Secy.
miHkksDrk ekeys] [kk| vkSj lkoZtfud forj.k ea=ky;
¼miHkksDrk ekeys foHkkx½
¼Hkkjrh; ekud C;wjks½
ubZ fnYyh] 20 ekpZ] 2013
dkñvkñ 856- —Hkkjrh; ekud C;wjks fu;e 1987 ds fu;e 7 ds mifu;e ¼1½ ds [kaM ¼[k½ ds vuqlj.k esa Hkkjrh; ekud C;wjks ,rn~ }kjk
vf/klwfpr djrk gS fd uhps vuqlwph esa fn, x, ekud ¼dksa½ esa la'kks/ku fd;k x;k@fd;s x;s g®%—
vuqlwph
Øe
la'kksf/kr Hkkjrh; ekud ¼dksa½ dh la[;k] o"kZ
la'kks/ku dh la[;k vkSj frfFk
la'kks/ku ykxw gksus dh frfFk
la[;k
vkSj 'kh"kZd
¼1½
¼2½
¼3½
¼4½
1
vkbZ ,l 302&2&35 % 2011 dh la'kks/ku
1 Qjojh] 2013
20&03&2013
la[;k 1
bl Hkkjrh; la'kks/ku dh izfr;ka Hkkjrh; ekud C;wjks] ekud Hkou] 9] cgknqj 'kkg tQj ekxZ] ubZ fnYyh&110002] {ks=h; dk;kZy;ksa ubZ
fnYyh] dksydkrk] p.Mhx<+] psUubZ] eqEcbZ rFkk 'kk[kk dk;kZy;ksa vgenkckn] caxykSj] Hkksiky] Hkqous'oj] dks;Ecrwj] xqokgkVh] gSnjkckn]
t;iqj] dkuiqj] iVuk] iw.ks rFkk fr:ouUrkiqje esa fcØh gsrq miyC/k g®SA
[lanHkZ bZVh 32@Vh&81]
Mhñ xksLokeh] oSKkfud ^,Q* ¼fo|qr rduhdh foHkkx½
2446
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(1-26)
Ministry Of Consumer Affrairs, Food And Public Distribution
(Department Of Consumer Affairs)
BUREAU OF INDIAN STANDARDS
New Delhi, the 20th March, 2013
S.O. 856.—In pursuance of clause (b) of sub-rule (1) of Rules (1) of Rule 7 of the Bureau of Indian Standards Rules,
1987, the Bureau of Indian Standard hereby notifies that amendment to the Indian Standards, particulars of which is given
in the Scheduled hereto annexed has been issued:
SCHEDULE
Sl. No.
No. & Year of the
No. & Year of the
Date from which
Indian Standards
Amendment
the Amendment
shall have effect
(1)
(2)
(3)
(4)
1
IS 302-2-35 : 2011 Safety of
1. February 2013
20-03-2013
household and similar electrical
appliances, Part 2 : Particular
requirements, Section 35 Electric
instantaneous water heaters
(First Revision)
Copy of the Amendment is available with the Bureau of Indian Standards, Manak Bhavan, 9, Bahadur Shah Zafar
Marg, New Delhi-110 002 and Regional offices: New Delhi, Kolkata, Chandighra, Chennai, Mumbai and also Branch offices:
Ahmedabad, Bangalore, Bhopal, Bhubaneshwar, Coimbatore, Guwahati, Hyderabad, Jaipur, Kanpur, Patna, Pune and
Thiruvananthapuram.
[Ref. ET 32/T-81]
D. GOSWANI, Scientist 'F' Eleetrotechnical Deptt.
ubZ fnYyh] 4 vizSy] 2013
dkñvkñ 857-
—Hkkjrh; ekud C;wjks fu;e 1987 ds fu;e 7 ds mifu;e ¼1½ ds [kaM ¼[k½ ds vuqlj.k esa Hkkjrh; ekud C;wjks ,rn~nkjk
vf/klwfpr djrk gS fd uhps vuqlwph esa fn;s x;s ekud ¼dksa½ esa la'kks/ku fd;k x;k@fd;s x;s g®%
vuqlwph
Øe
la'kksf/kr Hkkjrh; ekud dh la[;k] o"kZ
la'kks/ku dh la[;k vkSj frfFk
la'kks/ku ykxw gksus dh frfFk
la[;k
vkSj 'kh"kZd
¼1½
¼2½
¼3½
¼4½
1
vkbZ ,l 4300%1989 oLrqvksa ds ifjogu
la'kks/ku la[;k 1 Qjojh 2013
rRdky izHkko ls
ds fy, ckWDl iSysV & fof'kf"V ¼igyk fujh{k.k½
2
vkbZ ,l 5875%1970 [kqys gq, Msd
la'kks/ku la[;k 1] ekpZ 2013
rRdky izHkko ls
ldilZ dh fof'kf"V
la'kks/ku dh izfr;ka Hkkjrh; ekud C;wjks ekud Hkou 9 cgknqj 'kkg] tQj ekxZ ubZ fnYyh&110002] {ks=h; dk;kZy;ksa ubZ fnYyh]
dksydkrk] p.Mhx<+] psUubZ] eqEcbZ rFkk 'kk[kk dk;kZy;ksa vgenkckn] caxykSj] Hkksiky] Hkqous'oj] dks;Ecrwj] xqokgkVh] gSnjkckn] t;iqj]
dkuiqj] iVuk] iw.ks] ijok.kq] nsgjknwu rFkk fr:ouUriqje esa fcØh gsrq miyC/k g®A
[lanHkZ Vh bZ Mh@th&16]
ihñlhñ tks'kh] oSKkfud ^,Q* ,oa izeq[k ¼Vh bZ Mh½
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2447
Server3/E/1250RR/1250RR(1-26)
New Delhi, the 4th April. 2013
S.O. 857.—In puruance of clause (b) of sub-rule (1) of Rules (1) of Rule 7 of the Bureau of Indian Standards Rules,
1987, the Bureau of Indian Standards hereby notifies that amendments to the Indian Standards, particulars of which are
given in the Scheduled hereto annexed have been issued:
SCHEDULE
Sl. No.
No. Year and Title of the
No. & Year of the
Date from which
Indian Standards
Amendment
the Amendment
shall have effect
(1)
(2)
(3)
(4)
1.
IS 4300:1989 Box pallets for through
Amendment No. 1, February
With immediate
transit of goods - Specification
2013
effect
2.
IS 5875:1970 Specification for open-
Amendment No. 2, March, 2013
With immeidate
deck scuppers
effect
Copy of this Standard is available for sale with the Bureau of Indian Standards, Manak Bhavan, 9 Bahadur Shah Zafar
Marg, New Delhi-110 002 and Regional Offices-New Delhi, Kolkatta Chandigarh, Chennai, Mumbai and also Branch Offices:
Ahmedabad, Bangalore, Bhopal, Bhubaneshwar, Coimbatore, Guwahati, Hyderabad, Jaipur, Kanpur, Nagpur, Patna, Pune
Parwanoo, Dehradun, Thiruvananthapuram.
[Ref. TED/G-16]
P.C. JOSHI, Scientist 'F' & Head (Transport Engg.)
ubZ fnYyh] 05 vizSy] 2013
dkñvkñ 858-
—Hkkjrh; ekud C;wjks fu;e 1987 ds fu;e 7 ds mifu;e ¼1½ ds [kaM ¼[k½ ds vuqlj.k esa Hkkjrh; ekud C;wjks ,rn~ }kjk
vf/klwfpr djrk gS fd ftl Hkkjrh; ekudksa dk fooj.k uhps vuqlwph eas fn;k x;k gS os LFkkfir gks x;s g®%&
vuqlwph
Øe
LFkkfir Hkkjrh; ekud ¼dksa½ dh la[;k
u;s Hkkjrh; ekud }kjk vfrØfer Hkkjrh; ekud
LFkkfir frfFk
la[;k
o"kZ vkSj 'kh"kZd
vFkok ekudksa] ;fn dksbZ gks] dh la[;k vkSj o"kZ
¼1½
¼2½
¼3½
¼4½
1
vkbZ ,l 6303 ¼Hkkx 4½% 2013@
&
05 vizSy] 2013
vkbZlh 60086 & 4 % 2007
izkFkfed cSVfj;ka Hkkx 4 fyfFk;e
cSVfj;ksa dh lqj{kk ¼nwljk iqujh{k.k½
bu Hkkjrh; ekudksa dh izfr;ka Hkkjrh; ekud C;wjks ekud Hkou 9 cgknqj 'kkg] tQj ekxZ] ubZ fnYyh&110002] {ks=h; dk;kZy;ksa ubZ
fnYyh] dksydkrk] p.Mhx<+] psUubZ] eqEcbZ rFkk 'kk[kk dk;kZy;ksa vgenkckn] caxykSj] Hkksiky] Hkqous'oj] dks;Ecrwj] xqokgkVh] gSnjkckn]
t;iqj] dkuiqj] iVuk] iw.ks] rFkk fr:ouUrkiqje esa fcØh gsrq miyC/k g®A
[lanHkZ bZVh 10@Vh&16]
Mhñ xksLokeh] oSKkfud ^,Q* ¼fo|qr rduhdh foHkkx½z
New Delhi, the 5th April, 2013
S.O. 858.—In pursuance of clause (b) of sub-rule (1) of Rules (1) of Rule 7 of the Bureau of Indian Standards Rules,
1987, the Bureau of Indian Standards hereby notifies that the Indian Standards, particulars of which are given in the
Schedule hereto annexed have been issued:
2448
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(1-26)
SCHEDULE
Sl. No.
No. & Year of the
No. & Year of the Indian Standards,
Date of Established
Indian Standards
if any, Superseded by the
New Indian Standard
(1)
(2)
(3)
(4)
1
IS 6303 (PART 4): 2013/IEC 60086-
-
05 April, 2013
4: 2007 PRIMARY BATTERIES
PART 4 SAFETY OF LITHIUM
BATTERIES (SECOND REVISION)
ANNEXURE
BEFORE SRI RAM PRAKASH, PRESIDING OFFICER,
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL
CUM LABOUR COURT, KANPUR
Industrial Dispute No. 56/07
Between
Kshetriya Sachiv,
Baroda Purvi UP. Gramin Bank Employees Union,
75 Satya Sadan,
Opposite Ratna Devi School,
Achalpur, Kadipur,
Pratapgarh.
And
Adhyaksh,
Baroda Purvi Gramin Bank,
Head Office, A-1 Civil Lines,
Raibareli
AWARD
1. Central Government, Mol, vide notification No. L-
12011/17/2007-IR B-1, dated 27.11.07 has referred the
following dispute for adjudication to this tribunal—
2. Whether the action of the management of Baroda East
Uttar Pradesh Gramin Bank Pratapgarh, in terminating
the services of Sri Virender Kumar through an oral
order dated 19.05.05, is fairlegal and justified? If not to
what relief the workman concerned is entitled?
3. It is unnecessary to give full details of the case as in
the instant case after exchange of pleadings between
the parties; several opportunities were given to the
union to adduce evidence in support of its case. The
case was however taken on 09.11.12 and 21.12.11,
but neither the workman nor any on behalf of the
Union appeared in the case before the tribunal to
advance the cause of action nor did they adduce
any evidence in support of their claim.
4. Therefore, it is a case where no evidence has been
adduced by the claimant or on behalf of the union
Copies of these Standards are available for sale
with the Bureau of Indian Standards Manak Bhawan, 9
Bahadur Shah Zafar Marg, New Delhi-110 002 and
Regional Offices: New Delhi, Kolkata, Chandigarh.
Chennai, Mumbai and also Branch Offices: Ahmedabad.
Bangalore, Bhopal, Bhubaneshwar, Coimbatore,
Guwahati, Hyderabad, Jaipur, Kanpur, Nagpur, Patna,
Pune, Thiruvananthapuram.
[Ref. ET 10/T-16]
D. GOSWAMI, Scientist
Scientist 'F' (Electrotechnical Deptt.)
Je vkSj jkstxkj ea=ky;
ubZ fnYyh] 14 ekpZ] 2013
dkñvkñ 859-
—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj cM+kSnk iwohZ
xzkeh.k cSad 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 dkuiqj ds iapkV ¼lanHkZ la[;k 56@07½ dks izdkf'kr djrh
gS] tks dsUnzh; ljdkj dks 14&03&2013 izkIr gqvk FkkA
[lañ ,yñ&12011@17@2007&vkbZ vkj ¼ch&I½]
lqefr ldykuh vuqHkkx vf/kdkjh
MINISTRY OF LABOUR AND EMPLOYMENT
New Delhi, the 14th March, 2013
S.O. 859.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 56/07) of
the Cent. Govt. Indus. Tribunal-Cum-Labour Court,
KANNUR as shown in the Annexure, in the industrial
dispute between the management of Baroda Purvi Gramin
Bank and their workmen, received by the Central
Government on 14/03/2013.
[No.-L-12011/17/2007-IR(B-I)]
SUMATI SAKLANI Section Officer
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2449
Server3/E/1250RR/1250RR(1-26)
espousing the cause of action of the claimant. It is
settled principle of law that if a party claiming some
relief from any court fails to adduce evidence in
support of its case will fail. Therefore, applying the
settled legal position in the instant case, Tribunal is
of the view that as there is no evidence either from
the side of the Union or from the side of the workman,
therefore, it is held that neither the union nor the
workman can be held entitled for the relief claimed
by them in the case and the reference is bound to be
answered againt the union/workman for want of
evidence.
5. Reference is therefore, decided against the union
and in favor of the opposite party.
RAM PRAKASH, Presiding Officer
ubZ fnYyh] 14 ekpZ] 2013
dkñvkñ 860-
—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj tjuy eSustj]
chñ,lñ,uñ,yñ >k¡lh tksu] >k¡lh 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 y[kuÅ ds iapkV ¼lanHkZ la[;k
65@2004½ dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 08&03&2013
dks izkIr gqvk FkkA
[lañ ,yñ&40012@193@2002&vkbZ vkj ¼Mh ;w½]
tksgu rksiuks] voj lfpo
New Delhi, the 14th March, 2013
S.O. 860.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 65/2004)
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 General
Manager, BSNL, Jhansi Zone, Jhansi and their workman,
which was received by the Central Government on 08/03/
2013.
[No. L-40012/193/2002-IR(DU)]
JOHAN TOPNO Under Sec.
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT LUCKNOW
Present
Dr. MANJU NIGAM, Presiding Officer
I.D. No. 65/2004
Between
Shri Bhagwan Das S/o Sri Ram Kishan & 10 others viz.
1.
Shri Jugal Kishor Shri Halke Kushwaha
2.
Shri Ashok Kumar S/o Lakshmi Narayan
3.
Shri Ishwar Prasad S/o Shri Sunni Lal
4.
Shri Narendra Kumar S/o Virendera Kumar
5.
Shri Dayal Das S/o Bhagwan Das
6.
Ravindra Kumar S/o Shri Ramesh Chandra Sharma
7.
Shri Dilip Kumar S/o Shri Kaushal Kishore
8.
Shri Prem Narayan S/o Shri Kalicharan
9.
Shri Bahoran Singh S/o Bhagirath
10. Shri Mahesh Prajapati S/o Manohar Lal
Through Bhartiya Gramin Majdoor Sangh
And
1.
The General Manager
1.
Jhansi Zone, BSNL, Jhansi
2.
A.G.M. Jhansi Zone
2.
BSNL, Jhansi
AWARD
1. The present claim has been filed by the workmen
Bhagwan Das & 10 others under Section 33 A of the
Industrial Disputes Act, 1947 for alleged contravention of
the provisions contained in the Section 33 of the Industrial
Disputes Act, 1947 by the General Manager, Jhansi Zone,
BSNL, Jhansi & A.G.M. Jhansi Zone, BSNL, Jhansi.
2. The case of the workmen, in brief, is that they
have been working with the management of BSNL since
year 1996 continously; and accordingly, they demanded
for regularization of their services and moved
representations before the concerned authorities. When
nothing constructive was done by the opposite party the
workmen preferred an application before the Assistant
Labour Commissioner (Central), which resulted into nullity
and finally the matter was referred to the this CGIT-cum-
Labour Court, Lucknow for adjudication vide order No.-L-
10012/192/2002-IR(DU) dated 26.02.2003; and the same is
pending as I.D. No. 37/2003. The workmen have alleged
that during pendency of the said industrial dispute the
opposite party has terminated their services in violation to
the provisions contained in Section 33 A of the Industrial
Disputes Act, 1947. Hence, the workmen have prayed that
the opposite party be directed to reinstate the workmen
with consequential benefits
3. The management of the BSNL has denied the
claim of the workman by filing it Written Statement; wherein
its has submitted that there is due procedure for
appointment in the BSNL and the workmen have never
been appointed by it, in as much as they have not gone
through the due procedure for appointment. It has further
submitted that the workmen never worked with it and
therefore there arise no question for their regularization;
and also that they were not in the employment of the
opposite party on the date of reference or before, therefore,
there arise no question of their termination. It has further
been submitted that the present application under Section
2450
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(1-26)
33 A of the Act is not maintainable, as the union has already
withdrawn/not pressed the I.D. No. 37/2003, therefore, the
present is liable to be dismissed as the basis of present
application i.e. ID No. 37/2003 does not exist. Accordinly,
the management has prayed that the application of the
workman be rejected without any relief to them.
4. The workmen have filed rejoinder; wherein it has
stated nothing new apart from reiterating its submissions
already made in the application.
5. The workman has filed list of documents vide
dated 04.04.2006, paper No. C-25, in support of its claim;
whereas the management has filed none. Various workmen
have examined themselves viz. Dilip Kumar, Narendera
Kumar, Jugal Kishore, Bhagwan Das, Ashok Kumar,
Bharoan Pal, Ishwar Prasad Mishra, Ravinder Kumar
Sharma, Prem Narayan, Dayal Das, Mahesh Kumar, in
support of their case; whereas the management of BSNL
examined Shri, C.L. Awasthi, JTO in support of their case.
The parties cross-examined the witnesses of each other
and argued their case.
6. Heard argument of the parties and perused entire
evidence on record.
7. The authorized representative of the workmen has
submitted that the workmen have been working with the
opposite party since 1996 and they demanded for
regularization of their service. When the management did
not heed to their demand they preferred a complaint before
the Assistance Labour Commissioner (Central), which, on
failure to conciliation finally led to reference vide order No.
L-10012/193/2002-IR (DU) dated 26.2.2003/5.3.2003. The
authorized representative of the workmen has submitted
that the appropriate Government referred the matter to
adjudicate the right of the workmen for their regularization
and the same was registered before this Tribunal vide ID
No. 37/2003. He has further urged that during pendency of
the said industrial dispute the management of the BSNL
terminated the services of the workmen and in doing so
they have violated the provisions of Section 33A of the
Industrial Disputes Act, 1947.
8. In rebuttal, the authorized representative of the
management has argued that the workmen have neither
been appointed in any capacity nor they have undergone
the prescribed procedure for recruitment in the BSNL;
accordingly, he has submitted that when they have neither
been appointed by the opposite party, nor worked with it,
therefore, there arises no question of terminating their
services at any point of time i.e. during pendency of the
industrial dispute. It has been further argued that the
present application under Section 33 A of the Act is not
maintainable, as the union has already withdrawn/not
pressed the I.D. No. 37/2003, therefore, the present is liable
to be dismissed as the basis of present application i.e. ID
No. 37/2003 does not exist.
9. The management of the BSNL has taken the
preliminary plea/objection that the present application
under section 33 A is not maintainable for the reasons that
the union which espoused the I.D. No. 37/2003 has already
"not pressed" the said industrial dispute and accordingly,
the workmen concerned cannot and move the present
application. It has argued that is was the union that can
move the present application for alleged violation of Section
33 of the Act; but since it has been preferred by the
workmen concerned, therefore, not maintainable. In rebuttal
the authorized representative of the workmen has argued
that the workmen have preferred the present application
for violation of section 33 of the Act jointly through Bhartiya
Gramin Majdoor Sangh, which is proper and maintainable
in terms of the provision provided in Section 33 A of the
Act.
Section 33 A of the Industrial Disputes Act. 1947
provides provision for adjudication a matter for alleged
alteration in the serivice condition of an employee by the
employer during pendency of proceedings before a
conciliation officer, Board, an arbitrator, Labour Court,
Tribunal or National Tribunal. The said section of the Act
is quoted thereunder:
33A. Special provision for adjudication as to whether
conditions of service, etc., changed during pendency of
proceeding.—Where an employer contravenes the
provisions of section 33 during the pendency of
proceedings before a conciliation officer, Board, an
arbitrator, Labour Court, Tribunal or National Tribunal any
employee aggrieved by such contravention, may make a
complaint in writing, in the prescribed manner,—
(a) to such conciliation officer or Board, and the
conciliation officer or Board shall take such
complaint into account in mediating in, and
promoting the settlement of, such industrial
dispute; and
(b) to such arbitrator, Labour Court, Tribunal or
National Tribunal and on receipt of such
complaint, the arbitrator, Labour Court, Tribunal
or National Tribunal, as the case may be, shall
adjudicate upon the complaint as if it were a
dispute referred to or pending before it, in
accordance with the provision of this Act and
shall submit his or its award to the appropriate
Government and the provisions of this Act shall
apply accordingly.
A bare reading of above provision makes it crystal
clear that where an employer contravenes the provisions
of Section 33 i.e.alters the service condition in respect of
any workman, which is prejudicial to him during pendency
of any proceedings before a conciliation officer, Board, an
arbitrator, Labour Court, Tribunal or National Tribunal then
such a workman, aggrieved by such contravention, my
make a compliant in writing, to the forum before which the
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2451
Server3/E/1250RR/1250RR(1-26)
proceedings are pending. There is nothing which debars
the individual workman to come forward and lodge the
complaint against contravention of Section 33 of the Act
nor there any binding that the parties to the proceedings
pending and that making complaint should be the same.
Rather it is very specifically given that " any employee
aggrieved by such contravention, may make a complaint in
writing". No where in the Section 33 it is provided that if
the pending proceeding have been instituted by the Union
then the workman whose cause has been espoused in the
said proceeding cannot move a compliant independently
under Section 33 A for alleged contravention of provisions
contained in Section 33 of the Act.
Therefore, in view of the provisions laid down in the
Section 33 A of the Industrial Disputes Act, 1947 , I am of
the considered opinion that the objection of the
management regarding non-maintainability of the present
complaint is devoid of merit and is liable to be rejected.
10.The workmen in the evidence has specifically
stated that they have been engaged by the SDO viz.
Munnawar Khan and were paid on ACG-17 voucher at
variable rate of Rs. 500/- to 700/- per month. They have
stated that they used to do maintenance work such as
upkeep of machines at the exchange, operating generator
and its maintenance and provide customer services. i.e. to
attend their complaint etc.; They also stated that there was
some scheme for regularization; but they were deprived of
the same. Moreover, they have also stated that their
services have been terminated w.e.f. 30.03.2003 and prior to
this date they worked continously with the management of
BSNL. In rebuttal the management examined Shri C.L.
Awasthi, JTO who stated that the workman Bhagwan Das
and 10 others never worked in any Exchange a Casual
labour, they were neither appointed nor removed, nor any
payments were made to them by the BSNL. It was further
denied that the workmen were terminated during pendency
of ID No. 37/2003. In cross-examination the management
witnesses has disputed the genuineness of the documents
filed by the workmen.
11.In nut shell the case of the workmen is that they
have been engaged by the management of the BSNL for
long time and when a reference to adjudicate their right for
regularization was pending with this Tribunal the
management terminated their services, violating provisions
contained in the Section 33 of the Industrial Disputes
Act,1947. The management has denied of their
engagedment or termination all together at any point of
time. The provisions contained in Section 33 of the Act is
as under:
33. Conditions of service, etc., to remain unchanged
under certain circumstances during pendency of
proceedings.— (1) During the pendency of any conciliation
proceeding before a conciliation officer or a Board or of
any proceeding before an arbitrator or a Labour Court or
Tribunal or National Tribunal in respect of an industrial
dispute, no employer shall, —
(a) in regard to any matter connected with the
dispute, alter, to the prejudice of the workmen
concerned in such dispute, the conditions of
service applicable to them immediately before
the commencement of such proceedings; or
(b) for any misconduct connected with the dispute,
discharge or punish, whether by dismissal
otherwise, any workman concerned in such
dispute.
Save with the express permission in writing of the
authority before which the proceeding is pending.
A bare perusal of the above noted section, it becomes
apparent that it relates to the change in the service condition
of an employee by the employer during pendency of any
proceedings before a conciliation officer, board, an
arbitrator, Labour, Court, Tribunal or National Tribunal and
in the event of such contravention the aggrieved employee
may make a complaint in writing to the authority before
whom such proceedings are pending. Further, for invoking
provisions contained in this section it is also very much
necessary that on the date of arise of cause of action there
should be employee and employer relationship between
the complainant and the management i.e. the employee
invoking provision should be in employment of the
opposite party, no matter it is engagement or appointment
or it is regular or irregular in nature. Further, the provision
contained in Section 33 A does not put any bar that it may
not be invoked by the casual employee.
11.In the instant case, the workmen have pleaded
that they have been in the employment of the opposite
party on the date when proceedings in wake of reference
made by the appropriate Government was pending before
this Court and the mangement terminated their services
during pendency of the said industrial dispute No. 37/2003
before this Tribunal without express permission, in writing,
of this Court and thereby has violated the provisions
contained in Section 33 of the Act. Also, in their examination
- in - chief they have stated that their services have been
terminated w.e.f. 30.03.2003 during pendency of I.D. No.
37/2003. Per contra, the management has denied their
contention through their pleading and oral statement on
oath by stating that the workmen concerned were neither
engaged nor appointed by the management nor their
services were terminated by the management at any point
of time. Hence, in the present case, in view of denial of the
management that the workmen have neither been appointed
nor been engaged as casual labour not been terminated at
any point of time, it was incumbent upon the workman to
lead evidence to the effect that they were actually in the
employment of the apposite party on the date when the
case i.e. ID No. 37/2003 was referred to this Tribunal for
2452
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(1-26)
adjudication as well as on the date their services were
allegedly terminated by the management of the BSNL i.e.
on 30.03.2003. The workmen have filed copy of certain
certificates and maintenance slips of the generator; but the
same has been disputed by the management witness.
12. From the perusal of record it is clear that on
application C-57, in I.D. No. 37/2003, by the workmen, this
Tribunal vide order dated 23.11.2004 has ordered the
management to file the documents summoned by the
workman to substantiate the contentions of the workman
that they were in the employment of the opposite part.
There is an affidavit, A1-32 of the authorized representative
of the workmen to the effect that this Tribunal, in ID. 37/
2003 had directed the opposite party of file documents
requested by the workmen to sustain their version; but
the management failed to comply with the same till date.
Hon'ble Gujrat High Court in 2010 AIR SCW 542
Director, Fisheries Terminal Division vs. Bhakubhai
Meghajibhai Chavda; has observed that for proving
240 days' continuous working, the workman would have
difficulty in having access to all official documents, muster
rolls etc., in connection with his service, therefore, the
burden of proof shifts to the employer to prove that he did
not complete 240 days of service in requisite period to
constitute continuous service. Therefore, in view of the
case law cited above, it is very much clear that the official
documents which could prove that the workmen were in
the continuous service of the management were in power
and possession of the opposite party and access to them
were difficult for the workman then when the workman
made an application to summon the documents from the
management to substantiate its continuous working and
employment with the apposite party; and the Tribunal after
inviting management's objection on the summoning
application ordered specifically to file the documents
requested by the workman than it was necessary for the
management to file relevant documents, firstly in
compliance of the Tribunal's order and secondly, to nullify
the contentions of the workmen that they continuously
worked with the management since their engagement and
they were not in service during pendency of the I.D.
37/2003 and resultantly their services were not terminated
in violation to the provisions contained in Section 33 of
the Act.
13. I have gone through material on record in
present file as well as order sheets etc. in I.D. No. 37/2003.
It reveals that the workman made an application (in ID.
No.37/2003) C-57 for summoning certain documents and
calling certain witnesses, with whom the workmen alleged
to have worked viz. Shri C.L. Awasthi, Jamuna Prasad,
Munnawar Khan, K.N. Shukla, Manohar Lal Prajapati, Ram
Narayan Khare, Ramesh Khare, Rajole, Jitendera Kumar,
Khub Chand, Ram Kishun, Kamal Das, Bhagirath,
Dhanwantar, Chaturbhuj, Kamta Prasad, Mahesh Chandra
and Daya Ram for cross- examination from the management.
The managment filed C-59, objection thereto; wherein it
opposed summoning of documents as well as witness from
the management. After hearing the parties following order
was passed by my predecessor vide order dated 23.11.2004:
"So far as request for summoning record, the OP has
suggested that the voluminous documents are
prepared by the worker and are forged in
circumstances it is required that documents
mentioned in C-57 be got summoned, in possession
OP which are A to E pare 1 of the application C-57.
As far as summoning of witness for cross-
examination is concerned I am of the considered view
that those witnesses who are shown in application
C-57 cannot be summoned for cross- examination as
they have not been examined by the management as
yet. If the management opts to examine these
witnesses the worker shall have apportunity to cross-
examine them."
The management did not file documents; rather
preferred an application C-67 to recall order dated
23.11.2004, showing their inability to filed documents
ordered. The workman filed its objections vide application
C-69. The Said application C-67 was rejected by my
predecessor vide order dated 07.03.2005 as under:
" The said Statement is not on oath. Result is that
the statement without affidavit is not trust worthy.
The conclusion is that the management has failed to
comply the courts' orders. The order dated 23.11.2004
cannot be recalled. Application, C-67 & C-69 is
accordingly disposed of."
Thus, from the above order sheets it is very much clear
that the workman well discharged the burden that lied upon
them by summoning documents from the management and the
failure of the management to file the summoned documents
even after specific orders of the Tribunal leaves no room but to
draw adverse inference against the management and accept
the statement given by the workman on oath before this
Tribunal.
14.The workmen in their examination-in-chief have
stated that they have worked as casual labour in the
telephone exchange ever since year 1996. There they used
to operate generator, check fault, make joint, dig out ditch
etc. They have stated that their attendance was marked on
the attendance register and were paid on monthly basis.
They have stated that their services were terminated w.e.f.
30.3.2003. In wake of non-filing of muster roll/attendance
register in spite of directions of the Court, the statement of
the workman are liable to be accepted. Moreover, the
workman have also filed copy of servicing slip, in original,
in respect of generator kept in the telephone exchange,
which goes to show that their servicing was done and
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2453
Server3/E/1250RR/1250RR(1-26)
report was submitted to the workman concerned. There is
no rebuttal from the management in this regard. Therefore,
this goes to show that they were in employment of the
management on the date when their case was referred to
this Tribunal for adjudication and this find support from
the language of the schedule of reference, which as under:
"Whether the action of the general management
(staff), BSNL, Jhansi in not regularizing the services
of Sh. Bhagwan Dass S/o Sh. Ram Bhishon and 10
others (as per list is legal and justified? If not, to
what relief the workmen are entitled to?"
The above language of the schedule of reference
goes to show that the workmen were in the employment of
the opposite party and if it is alleged by the workmen that
services have been terminated by the opposite party then
there is not doubt that their services have been terminated
during pendency of the proceedings in respect of above
reference.
15.It is well settled that if a party challenges the
legality of any action of the opposite party, then the burden
lies upon him to prove illegality of the action 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 workmen to set out the grounds to challenge
the validity of their alleged termination on 30.03.2003 and
thereby violating the provisions of Section 33 of the
Industrial disputes Act and for this they were initially to
substantiate that they were in the employment of the
opposite party on the date of reference of the industrial
dispute No. 37/2003 and also on the alleged date of
termination i.e. 30.03.2003. In this regard the workman filed
certain documents which were disputed by the management,
therefore, the workman summoned certain documents to
substantiate their version and the Court ordered the
management to file the same; but the management failed to
comply with the directions of the Court, which leads to
draw adverse inference against the management and to
take into account the statement of the workmen given on
oath. The workmen through their oral testimony have well
proved that they have been engaged by the BSNL to carry
out casual work and were paid accordingly, and when they
sought regularization of their services, and an industrial
dispute in this regard was pending before this Tribunal,
the services of the workmen were terminated in violation to
the provisions contained in Section 33 of the Act.
16.In view of the facts and circumstances discussed
hereinabove, I am of the considered opinion that the
workman Bhagwan Das and 10 others were in the
employment of BSNL and their services were terminated
by the opposite party duing pendency of I.D. No. 37/2003
reference No. L-10012/193/2002-IR(DU) dated 26.02.2003,
in contravention to the provisions laid down in Section 33
of the Industrial Disputes Act, 1947. Accordingly, the
complaint of the workmen under Section 33 A of the ID Act,
1947 for alleged violation of the Section 33 of the Act, is
liable to be allowed. Resultantly, the workmen concerned
are entitled to be reinstated into services. They shall be
entitled for continuity in service and other consequential
benefits less back wages as they were no regular employee;
rather were casual employees, hence, principle of no work
no pay shall be applicable to them. The compliance be
ensured within four weeks from publication of the award.
17.Award as above.
LUCKNOW
DR. MANJU NIGAM,
18-02-2013
Presiding Officer
ubZ fnYyh] 14 ekpZ] 2013
dkñvkñ 861-
—vkS|ksfxd fookn vf/kfu;e] 1947
¼1947 dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj Vsyhdke
fMLVªkDV eSustj] lkxj 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 tcyiqj ds iapkV ¼lanHkZ la[;k
lhñthñvkbZñVhñ@,yñlhñ@vkjñ@11@2013½ dks izdkf'kr djrh gS tks
dsUnzh; ljdkj dks 08@03@2013 dks izkIr gqvk FkkA
[lañ ,y&40012@87@2002&vkbZvkj¼Mh;w½]
tksgu rksiuks] voj lfpo
New Delhi, the 14th March, 2013
S.O. 861.—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/11/2003) of the Central Government Industrial
Tribunal cum Labour Court Jabalpur as shown in the
Annexure, in the Industrial dispute between the Telecom
District Manager, Sagar and their workman, which was
received by the Central Government on 08.03.2013
[No. L-40012/87/2002-IR(DU)]
JOHAN TOPNO Under Sec.
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL CUM LABOUR COURT,
JABALPUR
No. CGIT/LC/R/11/2003
Presiding Officer: Shri Mohd. Shakir Hasan
Shri Halku Sahu,
S/o Shri Kanchedilal Sahu,
Bunglow No. 50,
Infront of SP Bunglow,
Sagar (MP)
...Workman
Versus
Telecom District Manager,
Sagar (MP)
...Management
2454
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(1-26)
AWARD
Passed on this 12th day of February 2013
1. Present reference is received under letter dated
9-1-2003 from the Government of India, Ministry of Labour,
New Delhi. As per Notification No.L-40012/87/2002-IR(DU),
the dispute is referred in this Tribunal. The dispute under
reference is whether the action of the management of
Telecom District Manager, Sagar (MP) Deptt. of Telecom
now converted into Telecom District Manager, Sagar (MP)
BSNL in terminating the services of Shri Halku Sahu S/o
Shri Kanchedilal Sahu w.e.f. July 1990 (16-7-90) and not
regularizing as regular employee is justified? If not, what
relief the workman is entitled to?
2. After receipt of the reference and service of notice
to the parties, Ist party workman submitted statement of
claim dated 24-2-2002. The case of the 1st party workman is
that he was engaged as casual labour in January 1985.
Since then he was continuously working with 2nd party till
july 1990. His name was entered on muster roll. His work
was without any complaint. The scheme of regularization
of the employees of Telecom Deptt. was introduced in 1989.
The workman claims he was not regularized under said
scheme. Instead of regularizing his services, he was
discontinued from July 1990 as per the oral order. No order
of termination in writing was given to him. The 2nd party
violated under Section 25-F, 25-N of the I.D. Act 1947. He is
relying on copy of muster register. The workman prays for
reinstatement with full back wages setting aside order of
his termination.
3. 2nd Party Management filed Written Statement
as pages 8 to 8/2 opposing the contention of the Ist party
workman. It is submitted that the management of IInd party
carries telecom activities in MP Telecom Circle having larger
area in the country. For development of telecom facilities,
ambitious planning was undertaken. To complete said
project casual workers were engaged. The casual workers
were engaged on daily payment basis. They were never
engaged for regular work. As and when project were
completed, casual workers were not required to continue.
There was no need to keep casual workers without work,
hence they were discontinued.
4. It is further submitted that Ist party workman was
never appointed on any post in the department. He has not
worked for specific target project. The employment was of
casual nature for short period. The management submits
that the Ist party workman had worked 12 days in 1985, 332
days in 1986, 89 days in 1987, 179 days in 1988, 348 days in
1989 and 186 days in 1990.
5. It is submitted that Ist party does not fulfill the
condition of the Scheme as per directions of the Hon'ble
Supreme Court. He is not entitled to regularization. The casual
labours who are engaged prior to 30-3-1985 continued as
casual workers on 17-11-89 and who completed 240 days in
a year are entitled to benefit to said scheme. Casual workers
engaged between 31-3-85 to 22-6-88 further continued as
per order dated 25-6-93 are extended benefit of casual
workers. It is submitted that the applicant was willfully absent
time to time inspite of notice issued by SDOT, Sagar. As per
the said authority, the work is not available, the services of
workman are not required. The provisions to Section 25-F
and N of I.D. Act are not violated. It is submitted that the
Ist party is not entitled to reinstatement in the relief.
6. Considering pleadings on record, the points
which arise for my consideration and determination are as
under. My findings are recorded against each of them for
the reasons as below:—
(i) whether the action of the
management of Telecome
District Manager, Sagar(MP)
Deptt. of Telecom now
converted into Telecom
District Manager, Sagar (MP)
BSNL in terminating the
services of Shri halku sahu
S/o Shri Kanchedilal Sahu
w.e.f. July 1990 (16-7-90) and
not regularizing as regular
employee is legal.
(ii) If so, to what relief the
workman is entitled.
Termination of services of
Shri Halku Sahu is illegal.
Ist party workman is entitled
to retrenchment compen-
sation of Rupees On Lakh.
7. From pleadings between the parties, the
termination of Ist party workman from July 1990 is in dispute.
As per the Ist party workman, his services are terminated
without issuing notice. That he was engaged as casual
labour on muster roll in January 1985 and continuously
worked till July 1990. Workman filed affidavit of his
evidence which is consistent with his pleadings that he
was working on establishment of Ilnd Party from January
1985 to July 1990. His name was on muster roll maintained
by Party No. 3 & 4. His services were orally terminated
without notice. The scheme for regularization was
introduced in 1985. He was not given its benefit. He was
illegally terminated. In cross-examination, Ist party workman
says no advertisement was issued for his appointment, his
name was not sent through Employment Exchange, no
written or oral exam was conducted. He received wages for
working days. The Ist party has produced zerox copy of
the Identity Card Pg (9/2). Working days of the workman
are shown in it. There is no cross-examination of Ist party
workman about his working days stated in affidavit of his
evidence and therefore it needs to be accepted. The
management filed affidavit of evidence of witness
Shri R.G. Gohe. The management's witness says that the
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2455
Server3/E/1250RR/1250RR(1-26)
workman was engaged for laying down telephone cable of
particular project. That project is over and services of the
workman were discontinued. The affidavit of management
witness is not specifically stating work of which project
were undertaken, how it is different from the regular
activities undertaken by the telephone department, whether
the said work was not regular work carried by the telecom
department.
8. Management's witness is not cross-examined. His
evidence has gone unchallenged. However the evidence
of management's witness is not sufficient to establish that
special project different from the activities carried out
regularly by the telecom department was undertaken. The
contentions of the IInd party management in that regard
cannot be accepted.
9. The evidence of Ist party/workman that his
services are discontinued without issuing notice under
Section 25-F of the I.D. Act is not shattered rather evidence
of management's witness is also corroborating the
testimony that the services of the workman were
discontinued. The evidence of management witness is silent
about compliance of Section 25-F of the I.D. Act. For above
reasons, I hold that the termination of the services of
Ist party workman without issuing notice under Section
25-F under the I.D. Act is illegal.
10.Learned counsel for IInd party Mr. Kapoor relied
on issue held in case of Punjab State Electricity Board and
another Vrs. Sudesh Kumar Puri reported in 2007(2) Supreme
Court Cases 428. The Lordship of the Apex Court dealing
with the question of retrenchment observed with doesnot
amount to engagement. That the case was not one of
contract labour. There was an agreement governing the
engagement, payment was made per meter reading at a
fixed rate and there was no regular employment ever offered
to any of the respondents. It was held that provisions of
Section 2(oo)(bb) of the Act clearly apply to the facts of
the case.
11.The facts of the present case are different. The
workman was not engaged as piece rated employee.
Therefore the ratio of above said case cannot be applied.
12.Copy of judgment delivered by my colleague in
similar matters i.e. in Reference No. 1, 2, 3, 4, 8, 9, 10, 12, 13,
14, 15, 17, 18, 19, 20, 21/03 & 117/02 is brought to my notice.
The said matter pertains to employees working in Telecom
District Manager, Sagar, MP, Reinstatement of workman
were directed with full back wages except Shri Ghansham
Das and Shri Dhan Prasad Prajapati for non-compliance of
Section 25-F of I.D.Act.
13.Counsel for management Mr. Kapoor pointed out
my attention to judgment by Hon'ble Apex court in Civil
Appeal No. 3815 of 2010 in the matter of Senior
Superintendent Telegraph (traffic) Bhopal Versus Santosh
Kumar Seal and others The Lordship considering the legal
position, ordered that the workman were engaged as daily
wagers about 25 years back and they worked hardly for
2-3 years. Relief of reinstatement and back wages to him
cannot be said to be justified and instead monetary
compensation would subserve the ends of justice. The
Lordship awarded compensation of Rs. 40,000/-to each of
the workmen.
14.In the present case, Ist party workman was working
as casual labour on muster roll during Jan. 85 to July 90.
The services of Ist party workman are terminated without
notice under Section 25-F of I.D. Act almost 22 years back.
He had worked with the IInd party for about 5 years.
Considering above facts, in my considered view Ist party
workman cannot be reinstated in service. Learned counsel
for the management Mr. Kapoor had pointed out that the
working of the Telecom Department is completely changed
and manual working is not required. Considering the above
aspects, instead of reinstatement, compensation of Rs. One
Lakh would meet the end of justice. Accordingly I record
my finding on Point No.2, in the result, I pass the following
award.
The termination of Ist party workman Shri Halku Sahu
is illegal for violation of Section 25-F of I.D.Act. The
IInd party shall pay compensation of Rs. One Lakh to the
Ist Party workman within one month. In case of default, the
said amount shall carry interest @ rate of 9% .
R.B. Patle, Presiding Officer
ubZ fnYyh] 14 ekpZ] 2013
dkñvkñ 862-
—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj tujy eSustj]
dksjMkbV QSDVjh] uhyfxfjt vkSj vnlZ 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 psUubZ ds iapkV ¼lanHkZ la[;k
11@2012½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 08&03&2013
dks izkIr gqvk FkkA
[lañ ,y&14012@17@2011&vkbZvkj¼Mh;w½]
tksgu rksiuks] voj lfpo
New Delhi, the 14th March, 2013
S.O. 862.—In pursuance of Section 17 of the
Industrial Dispute Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 11/2012)
of the Central Government Industrial Tribunal cum Labour
Court Chennai as shown in the Annexure, in the Industrial
dispute between the employers in relation to the General
Manager, Cordite Factory, Nilgiris and others and their
workman, which was received by the Central Government
on 08.03.2013
[No. L-14012/17/2011-IR(DU)]
JOHAN TOPNO, Under Sec.
2456
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(1-26)
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT
CHENNAI
Friday, the 22nd February, 2013
Present
:
A.N. JANARDANAN
Presiding Officer
INDUSTRIAL DISPUTE No. 11/2012
[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 Cordite Factory and their Workman]
Between
Smt. R. Arthi
:
1st Party/Petitioner
Vs.
1.
The General Manager
:
2nd Party/1st Respondent
Cordite Factory
Aravankadu
Nilgiris-643202
2.
M/s Alert Security Services :
2nd Party/2nd
No. 106, Sowrimuthu Street
Respondent
Red Fields
Coimbatore-641045
Appearance:
For the 1st Party/Petitioner : Shri S. Vaidyanathan,
Advocate
For the 2nd Party/
: Mr. A Ashok Kumar,
1st Management
Advocate
For the 2nd Party/
: Set Ex-parte
2nd Management
AWARD
The Central Government, Ministry of Labour &
Employment vide its Order L-14012/17/2011-IR(DU) dated
06.02.2012 referred the following Industrial Dispute to this
Tribunal for adjudication.
The schedule mentioned in that order is:
"Whether the action of the management of M/s Alert
Security Services, Coimbatore, a Cordite Factory
Hospital Management, Arvankadu in terminating the
services of Smt. R. Arthi w.e.f. 13.10.2010 without
following the provisions of Section 25(F) of Industrial
Dispute Act, 1947 is justified or not? What relief the
workwomen is entitled to?"
2. After the receipt of Industrial Dispute, this
Tribunal numbered it as ID 11/2012 and issued notices to
both sides. Both sides entered appearance through their
respective counsel and filed their Claim, Separate Counter
Statements and Reply Statement, as the case may be.
3. The averments in the Claim Statement bereft of
unnecessary details are as follows:
The petitioner joined the services of Cordite
Factory (Hospital) as recruited through M/s Alert Security
Services on 16.02.2008. To deprive employment under the
Cordite Factory the so-called contract labour system was
used to be introduced to get the work done by them despite
entire payment made only by the Cordite Factory. She was
required by the Cordite Factory to work through VIP
Enterprises, Dharma Agency, ASR Constructions and
finally M/s Alert Security Services R2 as Contractors. With
the change of the Contractors even, employees continued
to remain the same only. It is defeating provisions of labour
laws. Petitioner was employed as a Ward Sahayak at the
Cordite Factory Hospital, Aravankadu. During her three
years of service there were no adverse remarks against her.
Upon insistence of the Cordite Factory the so-called
Contractor issued a certificate to make the employees a
scapegoat. The Contract Labour System is a ruse and a
camouflage. Petitioner has undergone in-house training
for para-medical staff conducted by the Cordite Factory,
given only for permanent employees and not for contract
employees. The entire Attendance Register and Wage Slip
are with the Cordite Factory. On 13.10.2010 Hospital Staff
informed that she was dismissed from service. Her work
has been perennial in nature. During conciliation of the
dispute raised, she was given employed on 17.01.2011 by
the Factory. Orders of dismissal and reinstatement were
issued by the Chief Medical Officer of the Factory, which
is not necessary if she is a contract employee. On the very
next day of reinstatement she was disengaged by the
Factory. Before the Conciliation Officer on 20.04.2011,
Sivasankara, HOS (Vigilance) and CG representing Cordite
Factory on behalf of the General Manager and the so-called
Contractor agreed to reinstate her. She was given
employment on 27.05.2011 for three days and again she
was terminated from service on 28.05.2011, to overcome
the defects that the petitioner could not be terminated and
reinstated by the First Respondent, First Respondent sent
letter dated 28.05.2011 to R2 to replace the petitioner. In the
separately maintained Attendance Register and Payment
Register by the Cordite Factory, it started affixing the
Rubber Stamp of M/s Alert Security Service in the
Attendance Register meant for persons engaged by them.
Attendance Register will show that the work performed by
the petitioner was countersigned by the Cordite Factory
officials. She is in possession of the ID Card issued by the
Cordite Factory for three days to work in the Hospital.
Contract is sham and nominal. The entire hospital work
was performed by the petitioner. No Contractor has any
separate hospital to engage the petitioner. Her demand for
Experience Certificate from the Cordite Factory was being
responded saying to get from the Contractors. There is
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2457
Server3/E/1250RR/1250RR(1-26)
contract of service and not contract for service. Except R2
No Contractor had valid registration under Contract Labour
Abolition Act First Respondent engaged the petitioner in
service directly. Petitioner in an employee of the First
Respondent. She completed 480 days of continuous service
in a period of 24 calendar months and is deemed to have
attained permanent status under R1. She was getting salary
of Rs. 5,360/- per month at the time of disengagement. No
Charge Sheet was issued to her nor was any enquiry
conducted. Non-compliance of Section-25(F) renders the
termination void abinitio. The same is to be set aside and
she is to be reinstated into service w.e.f. 13.10.2010 with all
benefits. Even if there is a Contract Labour System, for
non-compliance of Section-25F of the ID Act, R1 is liable to
grant the relief in terms of Section-21(4) of the Contract
Labour (Regulation and Abolition), Act 1970.
4. Counter Statement averments of the First
Respondent are as follows:
The ID is neither maintainable in law nor on facts
and is to be dismissed in-limini. The First Respondent had
entered into service contract with M/s ASR Rice Mundy
and Construction represented by Sri Arockiadoss Simon
(ADS), Nilgiris as per supply order dated 07.12.2009 for a
period from 07.12.2009 to 30.12.2010, which was
subsequently short closed on 26.05.2010 due to
unsatisfactory performance of the contract. The terms and
conditions of the service contract the job requirement
involved (a) assisting MO/Ward Sister in attending the
patients (b) cleaning and making beds for patient ensuring
non concealment of any unauthorized articles in bedding
of the patients (c) collecting kits for patients from Ward
Master, etc. upto (k) as described in the Claim Statement.
M/s ADS had deployed the petitioner along with 12 others
at the Cordite Factory Hospital. Later came M/s Alert
Security Services as per order dated 23.06.2010 from
23.06.2010 to 31.01.2011. He also engaged the petitioner till
2011. The contract as above was concluded every year
through an open tender. The successful tenderer was at
liberty to employ any person to execute the work. The
Management has had no role in the engagement of the
contract labourers. It only assesses whether the terms and
conditions as set out in the contract are fulfilled or not,
only to the extent of fulfillment of which the payment is
made to the Contractors. Petitioner cannot claim parity with
regular employees of the Respondent. First Respondent
had made hospital service contract with M/s ASR Rice
Mundy and Construction represented by Sri Arockiadoss
Simon, Nilgiris which was subsequently short closed by
letter dated 26.05.2010 due to continuing unsatisfactory
performance of the contract. A contract was further entered
with M/s Alert Security Services, Coimbatore for the work
at CFH for whole job basis to a period of one year. In both
the contracts the petitioner was engaged by the Contractors
to execute the contract and not with the First Respondent.
The only requirement of the First Respondent is that
Contractors have to get the PVR (Police Verification Report)
of the labourers before engaging them in the First
Respondent premises, being a defence installation for
security purposes. The Contractor supervises the work
and disburses wages directly to the contract labourers.
Petitioner is not a Central Government Employee. Petitioner
was governed by service conditions or laid down by the
Contractor and not by the service conditions or recruitment
rules applicable to regular employees. First Respondent
ensures payment of minimum wages to the petitioner and
compliance of statutory obligations by Contractors.
Presumptions raised by the petitioner are frivolous and
unconstitutional. Petitioner was under the employment of
various contractors only. The dispute is between petitioner
and R2 having employer-employee relationship interse. She
is workman of M/s Alert Security Services. Section-25 of
the ID Act is applicable only to 2nd Respondent with
respect to the petitioner. As per terms and conditions of
Supply Order, selection/replacement of contract labourers
is the sole responsibility of the Second Respondent. The
claim is to be rejected.
5. Second Respondent's contentions in its counter
statement, briefly read as follows:
Second Respondent is a registered contractor of the
First Respondent and the former took the contract on
01.07.2010. The petitioner and other employees who were
already employed under the First Respondent were asked
to be engaged by Second Respondent by R1. When the
contract was awarded Second Respondent was asked to
absorb the existing employees as they were experienced
and working under the First Respondent, which did not
allow R2 to bring a new hand or to replace the person like
the petitioner. As instructed by R1 petitioner was not given
employed and R2 is not responsible for the removal of
Smt. R. Arthi. R2 was willing to continue her in the First
Respondent but it ultimately declined to provide
employment to her. The claim of the petitioner only against
R2 is to be rejected.
6. Reply Statement averments briefly read as follows:
Second Respondent has filed a counter supporting
the petitioner. As admitted by R1 in the Counter Arthi has
committed misconduct and R1 directed R2 to replace Arthi.
It shows that petitioner was an employee under R1 and R1
has the final say in the matter of employment and
disciplinary and administrative control over her. It is also
stated by R1 in Counter that petitioner had behaved in a
disrespectful manner. Admittedly, no Charge Sheet was
issued or enquiry conducted. She does not know English
language. She does not know how to frame the sentence
mentioned in Annexure-C dated 21.04.2011. Reason for R1
terminating her was firstly, one Stella working with her while
was harassed by R1 she interfered. Secondly, petitioner
made an issue of sexual harassment to the petitioner. This
was not initially pleaded in the Claim Statement hoping
that First Respondent and Officers would change for good
and provide employment to the petitioner. Petitioner was
reinstated on 27.05.2011 and again terminated on 30.05.2011.
2458
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(1-26)
She worked on 27th, 28th May and 29th being a Sunday
she was stopped from work from 30.05.2011. R1 produced
the latter dated 28.05.2011 before this Court for the first
time. With the help of Union she has written complaints to
the First Respondent about the sexual harassment towards
her. Letters dated 20.10.2010 and 16.06.2011 were written
about the sexual harassment, but with no action. Copies of
complaints were sent to the General Manager, Chairman
and Ministry of Defence. Petitioner has completed Para-
medical course producing which certificate the employment
was obtained. She was given in-house straining in Para-
Medical staff given only to the permanent staff of the
Hospital. The Certificate dated 28.01.2009 was issued by
R1. Her Attendance was written in the Attendance Book
and she was asked to sign it countersigned by the Officers
of R1. If the Contractor was present there is no need for the
counter signature. In the Register of Wages though seal of
R2 is affixed, the Register was countersigned by the doctor
of the First Respondent and Dy. Labour Commissioner
(Central). The Muster Roll was also scrutinized by the ALO
(Central). As on 01.12.2009 sanctioned strength of Cordite
Factory was 6 in the case of Ward/Sahayak Male and Female
and there were four persons working. In the remaining two,
the petitioner was employed. Though there was a tender
with M/s Alert Security as the successful tenderer, petitioner
was employed in the permanent sanctioned post by R1.
Petitioner had already been employed even before the
advent of Second Respondent. But with no change of
employees, with change of Contractor contract system is
nothing but a camouflage. Court has to pierce the veil and
see the truth. There have only been verbal instructions to
continue the old employees as every time the new contract
employees cannot be trained to do the work. By the time
the training is over the period of contract would expire.
There was no contract employee as per Contract Labour
Act, 1970. Petitioner is now registered under the
Employment Exchange. R1 accepted that the work was
supervised only by the officials of R1. Letter dated
13.10.2010 of R1 directing R2 to terminate the services of
the petitioner on the ground of misconduct is stigma. Based
on the complaint dated 12.10.2010, order dated 13.10.2010
was issued by R1. As many as 20 persons have signed the
complaint. But not a single person has been examined.
Under the RTI Act reply has been given that joint
representation from government servants have to be viewed
as subversive of discipline. Petitioner is not aware of any
action against the 20 persons who made joint complaint
which is false. Before the representation under Right to
Information Act, CMO(IC) of Cordite Factory Hospital
agreed to take the petitioner under the employment in letter
dated 14.01.2011. R1 has mentioned that petitioner was
Ward Sahayak. It is M. Thakur, CMO, Incharge of Cordite
Factory Hospital, alleged of sexual harassment, who
dismissed petitioner from service not once but twice.
Though she was offered employment w.e.f. 17.01.2011 after
ID was raised, she was made only to stand whole day and
informing not to come for work from 18.01.2011. It is strange
that Sivsankaran who agreed to provide employment before
the Concillation Officer dated 16.05.2011 has stated in the
Counter that petitioner is not entitled to any relief. She had
also been Casual Visitors Pass. Slowly R1 was improving
their documents mentioning the petitioner as contract
employee. Attendance and Wage Register would depict
her as direct employee. Register also establishes petitioner
to have had completed 480 days of continuous service in a
period of 24 calendar months under R1 and she is deemed
to have attained permanent status. In certain other areas of
contact work the contract is cancelled sending out the
Contractor and continuing the contract employees directly
supervising the work and paying the salary. Action of R1 is
arbitrary and illegal by utilizing contract labourers on
sanctioned strength in the estimate strength. Petitioner is
not regularized to defeat which regularization R1 terminated
her services. It is also to escape from complaint of sexual
harassment. At the most she can be considered as Casual
Labour under R1. Once the termination is held illegal she is
entitled to regularization. Her last drawn pay was Rs. 206.80
per day paid monthly by R1, who insisted her signature in
the register said to have been maintained by R2.
7. Points for consideration are:
(i)
Whether the action of the Management of M/s
Alert Security Services, Coimbatore, a Cordite
Factory Hospital Management, Aravankadu in
terminating the services of Smt. R. Arthi w.e.f.
13.10.2010 without following the provision of
Section-25-F Act is justified or not?
(ii) To what relief the concerned workman is
entitled?
8. Evidence consists of the oral testimony of WW1
and Ex. W1 to Ex. W14 on the petitioner's side and on the
Management's side MW1 was examined and Ex. M1 to Ex.
M6 marked. Second Respondent after filing a counter
remained consistently absent thereafter and dit not take
part in the further proceedings and is set ex-parte.
Points (i) & (ii)
9. Heard both sides. Perused the records,
documents, evidence and written arguments on behalf of
the First Respondent. Both sides keenly argued in terms of
their case in their respective pleadings with reference to
cited decisions. The conspicuous arguments on behalf of
the petitioner include that the petitioner is seen engaged
as a contract worker. She is seen to continue to be engaged
even though contractor changes successively. Her
engagement is to be understood as contract of service
under First Respondent and not contract for service
through the Second Respondent. Petitioner was working
as Ward Sahayaka. Out of 6 Ward Sahayaks as the
sanctioned strength for the post only 4 posts were filled
up and two were outsourced. MW1 is seen to admit that
Ward Sahayak is a sanctioned post. MW1-Witness for the
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2459
Server3/E/1250RR/1250RR(1-26)
Management does not know whether the 2nd Respondent
has registered under the CLRA Act. When in the light of a
common purported complaint against the petitioner lodged,
a misconduct tends to be attributed against her. Ex. M2-
Common Complaint, in its nature and form is erratic as it is
and it is to be viewed with disfavor in a collective manner,
which is subversive of discipline. A direct employee cannot
be converted into a contract employee. Petitioner's
engagement is against sanctioned post. The nature of her
work is continuous. If the post is not a sanctioned one
there is no claim for the relief. Concept of backdoor entry is
out of the realm of public employment. Petitioner acquired
status of permanent employee by having worked more than
480 days within a period of 24 calendar months. The Second
Respondent, the so-called Contractor remained ex-parte
after filing counter admitting to be registered contractor.
But he has not produced license or certificate of registration
as required by the provisions after going through various
processes commencing with application for license in
prescribed form till the obtaining of the same. Correspondent
duties of the Principal employer and the Licensed
Contractor to maintain prescribed registers in relevant forms
are also highlighted. There is no evidence of any temporary
registration made or any temporary license obtained. There
is also provision for submission of annual return by
Principal Employer to Registering Officer who has duty to
maintain Register of registered contractors. The Tribunal
has the duty to lift the veil to come to know the nature of
the employment whether as direct or under the Contractor.
If it is not a genuine contract for employment and it is a
ruse and a camouflage. The allegation of sexual harassment
towards the petitioner has not been denied by the
Respondent. No enquiry has been held against the
petitioner though allegations of misconduct are discernible
against her. She was not charge sheeted either. There is
violation of Section-25F of the ID Act when she is actually
a casual employee under the First Respondent and while
by reason of her having admittedly worked continuously
for more than 480 days within a period of 24 calendar
months, she is also deemed to have attained permanent
status under the Respondent. Her termination from service
in violation of Section-25F of ID Act is void abinitio. She
is entitled to be reinstated into service with all benefits.
10. Prominent arguments on behalf of the First
Respondent are that the dispute is between the petitioner
and the Contractor Employer, Second Respondent.
Petitioner is only contractor's employee. R1 has no role
over the engagement of petitioner as contract worker for
the work under the First Respondent or for her termination.
Due to misbehavior of the petitioner with the staff of Cordite
Factory Hospital (CFH), R1 only directed R2 to replace her
by deploying her in any other location. Section-25F of the
ID Act is applicable only to R2. As held by the Supreme
Court in Steel Authority of India Ltd . VS. Union of India
and another (2006-12-SCC-233) the employee taking definite
stand as contract worker cannot take contradictory and
inconsistent plea that he was also workman of the principal
employer. The claim is devoid of merits.
11. On a consideration of the rival contentions I am
led to the conclusion that the petitioner appointed against
a sanctioned post of Ward Sahayaka on contract basis
through the Second Respondent Contractor. It is borne
out by records and evidence that there have been some
unpleasant situations in relation to the petitioner with a
Medical Officer. Though there has emanated a common
complaint against the petitioner regarding the undesirability
of continuing her for the services in the hospital, such a
petition from its nature and content and having regard to
the signatories to them does not sound genuine and may
have been made use of as a cover to send out her from her
engagement as Ward Sahayaka. The crucial question is
whether she has been a contract employee under the Second
Respondent or a direct employee under the First
Respondent. In order to prove that she is under a valid
conrtact for service between the Second Respondent and
First Respondent there has not been any tangible evidence.
Admittedly, her debut to the service in the CF Hospital
under the Cordite Factory initially was not through the
Second Respondent who claims himself to be a registered
contractor which is only a plea without proof. It is pertinent
to note that pleading perse is not proof. The different legal
requirements and formalities for the creation and
continuance of service as a Contractor, do not stand proved
to have been complied with. Evidently she was given
various training by the Cordite Factory Management for
equipping herself to discharge the functions she is put on
with her by way of her engagement in the CF Hospital. It is
nobody' case that for her engagement through the previous
Contractors they had valid license or contract with the
First Respondent for the due engagement of contract
employee in a valid contract for service. While in the case
of previous contractors there is no case that they had
obtained valid license for the purpose, the case of the
Second Respondent is that he has obtained valid licenses
but that is not substantiated. Mere ipse dixit is not enough
to establish such a vital aspect. If the petitioner was a
contract employee it is not for the Management to impart
her training or other practices, coaching, which should
have been the duty and function of the Contractor himself
whose duty is only to provide supply of labour. As to the
nature of the contract of service also there is no evidence.
When with presence of some intermediary contractor she
gains her access, yet it may appear to be a contract
employment to her and accordingly she may hold out herself
to be so, then again there is nothing to divest her status as
a direct employee while the contract is still a ruse and a
camouflage. The petitioner, therefore, is apt to be a direct
employee. When engagement of the petitioner supervenes
to be against sanctioned post of Ward Sahayaka, her
continuance as such for longer years, here more than 3
2460
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(1-26)
years, the situation relegates to the realm of unfair labour
practice being practiced upon her by the First Respondent
Management in continuing her as badlies. In such a context,
the decision in Uma Devi's case has no application. Back
door entry has no relevance in the areas of public
appointment. It is to be noted that she came in as Ward
Sahayak, a sanctioned post, in which, she, when continues
to be engaged there for more than 3 years, it is only apt to
draw the deeming provision of her having acquired
permanent status. When under a common complaint
discernibly she is being terminated from service it is
stigmatic and the same is not in compliance with Section-
25F of the ID Act. So much so, while there need not be any
hesitation to hold that she is apt to be a direct employee
under the First Respondent and found so in having
terminated her from service without compliance of Section-
25F of the ID Act, the same amounts to retrenchment which
is void abinitio. Therefore she is entitled to be reinstated
into service forthwith with continuity of service and all
attendant benefits including full back wages. Ordered
accordingly.
12. 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 22nd February, 2013)
A.N. JANARDANAN, Presiding Officer
Witnesses Examined:
For the 1st Party/Petitioner
:
WW1, Smt. R. Arthi
For the 2nd Party/Management :
MW1, Sri N.N.
Narendra
Documents Marked:
From the Petitiner's side
Ex. No.
Date
Description
Ex.W1
13.10.2010
Dismissal order of the petitioner
Ex.W2
20.01.2009
Para Medical Staff Training
Certificate
Ex.W3
20.10.2010
Petitioner's Representation
Ex.W4
16.02.2008
First Aid Certificate approved by
Ministry of Health
Ex.W5
08.04.2011
Petitioner's Representation to 1st
and 2nd Respondent and ALC (C)
Ex.W6
18.01.2007
OFD letter pertaining out-sourcing
of deficit sanction strength
Ex.W7
01.12.2007
Sanction and existing strength of
CFA
Ex.W8
01.12.2009
Sanction and existing strength of
CFA
Ex.W9
08.07.2008
Tender Notice pertaining to filling
up of Sanction Strength (Ward
Sahayaka)
Ex.W10
14.05.2011
Work Order (Ward Sahayaka)
Ex.W11
19.01.2011
Representation under RTI
Ex.W12
24.02.2011
Reply to the representation under
RTI by 1st Respondent admitting
their mistakes
Ex.W13
08.12.2010
ID Act-Conciliation proceeding
Notice by ALC(C)
Ex.W14
14.01.2011
Reinstatement of the order to the
petitioner by CFA Management
Ex.W15
16.05.2011
Conciliation proceedings of ALC
(C) Portraying agreement by CFA
Management for reinstatement
Ex.W16
27.05.2011
Pass (Permission for work as Ward
Sahayaka)
Pertaining
to
reinstatement endorsed by CFA
Management
Ex.W17
30.05.2011
Petitioner's representation for
Status Quo
Ex. W18 02.06.2011
Postal A/D endorsed by CFA
Management
Ex. W19 22.07.2011
Muster-Roll for the month of May
2011 showing that petitioner had
worked on 27th and 28th of May
2011 endorsed by CFA ma
Ex. W20 22.07.2011
Wage-Roll for the month of May
2011 showing that petitioner had
worked on 27th and 28th of May
2011
endorsed
by
CFA
Management
Ex.W21
17.12.2010
Circular
issued
by
CFA
Management
petaining
to
Minimum Wage of Rs. 206.80 to
the petitioner
Ex.W22 10.05.2010
Circular
issued
by
CFA
Management pertaining to
Minimum Wage
Ex.W23
09.05.2008
Letter from DoPT regarding
regularization
Ex.W24
07.10.2009
Ordnance Factory Board's letter
pertaining
Parliamentary
assurance of Contract Labourers
Ex.W25
04.02.2010
Ordnance Factory Board's letter
pertaining Regularization
Ex.W26
06.04.2010
Ordnance Factory Board's letter
pertaining
(Parliamentary
Committee) regarding Contract
Labourers
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2461
Server3/E/1250RR/1250RR(1-26)
Ex.W27
30.08.2010
Ordnance Factory Board's letter
pertaining to the continuity of
Contract Labourers
Ex.W28
04.08.2010
Letter by the (CFA Management)
1st Respondent showing the
actual responsibility, welfare and
supervising of Contract Labourers
ExW29
23.04.2012
Transfer Order of Dr. Thakur CMO/
CFH
Ex.W30
10.06.2011
Complaint against Dr. Thakur
CMO/CFH regarding sexual
harassments by petitioner with
evidence
Ex.W31
13.08.2011
Defence Minister's letter regarding
action against Dr. Thakur CMO/
CFA regarding sexual harassments
Ex.W32
17.11.2011
Ministry of Defence' s letter to the
petitioner
regarding
her
representation to the PM,
DARPAG (Public Grievance),
Ministry of Health
Ex.W33
16.11.2011
Ministry of Defence's/OFB Cell
letter regarding action against
sexual harassment
Ex.W34
28.09.2011
Ministry of Defence's OFB Cell
letter regarding action against
sexual harassment
Ex.W35
26.11.2011
Representation by petitioner to
Ministry of Defence/Defence
Secretary
Ex.W36
—
A/D Endorsed by OFB & CF
Management
Ex.W37
29.01.2003
Ordnance Factory Board's letter
pertaining responsibility of 1st
Respondent regarding Contract
Labourers
Ex.W38
11.08.2009
Reply to RTI by 1st Respondent
regarding period of service of the
petitioner
Ex.W39
12.01.2010
OFB Board's letter pertaining
responsibility of 1st Respondent
regarding Contract Labourers
Ex.W40
—
Copy of Attendance (more than
24 calendar months) register
showing from 16.02.2008 to
09.09.2010 worked by petitioner,
maintained by 1st Respondent
(Total 32 months)
Ex.W41
—
Copy of day-wise attendance,
countersigned by the 1st
Respondent from 1st April 2010 to
9th October, 2010 (Totally 7
months) which also portrays that
the petitioner was under the
control of the 1st Respondent
Ex.W42
—
Copy of Wage Roll of the
petitioner, endorsed by 1st
Respondent
Ex.W43
12.08.2009
Copy of EPF Receipt of the
petitioner endorsed by the 1st
Respondent
Ex.W44
13.07.2011
Dy. Chief Labour Commissioner
(C)'s
letter
regarding
regularization of the petitioner
Ex.W45
17.06.2011
Ministry
of
Labour
and
Employment's letter regarding
regularization of the petitioner
Ex.W46
28.05.2011
Representation by petitioner
regarding Permanency
Ex. W47 28.05.2011
Representation by petitioner
regarding Permanency to the 1st
Respondent
Ex. W48 04.06.2011
Postal A/D endorsed by the 1st
Respondent
From the Management side:
Ex. No.
Date
Description
Ex. M1
26.05.2010
Closing of Service Contract of
M/s Arokiadas Simon
Ex. M2
12.10.2010
Request for replacement of the
petitioner by staff of C.F. Hospital
Ex. M3
13.10.2010
Request for replacement by the 1st
Respondent
Ex. M4
21.04.2011
Request for reinstatement into
service by the petitioner to the 2nd
Respondent
Ex. M5
28.05.2011
Request to replace the petitioner
by the 1st Respondent
Ex. M6
31.05.2011
2nd Respondent request to the
petitioner.
ubZ fnYyh ] 15 ekpZ] 2013
dkñvkñ 863.—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 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 79@2008½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 15&03&2013 izkIr gqvk FkkA
[lañ ,y@12012@119@2008&vkbZvkj¼ch&1½]
lqefr ldykuh] vuqHkkx vf/kdkjh
2462
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(1-26)
New Delhi, the 15th March, 2013
S.O. 863.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 79/2008) 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, received by the Central Government on
15/03/2013.
[No. L-12012/119/2008-IR(B-I)]
SUMATI SAKLANI, Section 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. 79/2008
Date of Passing Award—1st March, 2013
Between :
The Asstt. General Manager,
State Bank of India,
Bapujinagar Branch,
Distt. Khurda, Orissa,
Bhubaneswar, (Orissa)
1st Party-Management
(And)
Their workman Sri Birabar Behera,
Qr. No. VR-5/1, Kharvela Nagar, Unit-3,
Bhubaneswar (ORISSA)
2nd Party-Workman.
Appearances :
Shri Alok Das,
For the 1st Party-Management
Authorized Representative
None
For the 2nd Party-Workman.
AWARD
The Government of India in the Ministry of Labour
has referred the present dispute existing between the
employers in relation to the Management of State Bank of
India and their workman under clause (d) of sub-section
(1) and sub-section (2A) of Section 10 of the Industrial
Disputes Act, 1947 vide Letter No. L-12012/119/2008 —
IR(B-I), dated 13.10.2008 to this Tribunal for adjudication
to the following effect:
"Whether the action of the management of State Bank
of India, Bhubaneswar Main Branch in terminating
services of Sri Birabar Behera 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 01.09.1983 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 not regularized, instead terminated
and refused employment from 30.9.2004 by the 1st Party-
Management without any written communication or
payment of compensation. The lst Party-Management 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 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 05.11.2007.
Conciliation 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 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.
70 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
had joined the Bank on 01.09.1983 and he was discontinued
from service on 30.9.2004 is not correct. He was engaged
intermittently on temporary/daily wage basis due to
exigencies of work. When his services were no more required
he was not engaged further. 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 neither completed several years of continuous
service 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
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2463
Server3/E/1250RR/1250RR(1-26)
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 the Management of the State Bank of India
all eligible persons were called for interview. The 2nd Party-
workman was also called for interview in the year 1990 and
1993. But he was not found successful hence could not be
appointed in the Bank. 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 Sri Behera had
allegedly been terminated in October, 1987 his claim has
become stale by raising the dispute after ten years. It is a
settled principle of law that delay destroys the right to
remedy. Thus the present dispute is liable to be rejected on
the above grounds.
4. On the pleadings of the parties following issues
were framed:—
ISSUES
1. Whether the action of the Management of State
Bank of India, Bhubaneswar Main Branch in terminating
services of Shri Birabar Behera with effect from 30.9.2004 is
fair, legal and justified?
2. 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?
3. Whether the workman has worked for more than
240 days as enumerated in the Industrial Disputes Act?
4. To what relief is the workman concerned entitled?
5. The 2nd Party-workman despite giving sufficient
opportunity did not adduce 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 Laxmidhar Mallick 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. 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
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 are entitled to?
8. The name of the 2nd party-workman appears at
Sl. No. 70 in Annexure-A to the above 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 the 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 had joined the service on 01.09.1983 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 Laxmidhar Mallick in his
statement before the Court has stated that "The disputant
workman was working intermittently for few days in our
Branch on daily wage basis in exigencies. .................. He
had not completed 240 days of continuous and
2464
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(1-26)
uninterrupted service preceding the alleged date of the
termination". He has denied the allegation that the workman
was discontinued from service with effect from 30.9.2004,
but has stated that "In fact the workman left working in the
Branch since October, 1987.". 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. Thus he is not entitled to get benefit of Section
25-F of the Industrial Disputes Act, 1947. This issue is
hereby 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,
Bhubaneswar Main Branch in terminating the services of
Shri Birabar Behera with effect from 30.9.2004 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
Issues No. 2 and 3, the 2nd Party- workman is not entitled
to any relief whatsoever claimed.
12. Reference is answered accordingly.
Dictated & Corrected by me.
JITENDRA SRIVASTAVA, Presiding officer.
ubZ fnYyh] 15 ekpZ 2013
dkñvkñ 864-
—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj MCY;wñ 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 tcyiqj ds iapkV ¼vkbZMh la[;k 21@2006½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 15@03@2013 dks izkIr gqvk FkkA
[lañ ,y&22012@363@1993&vkbZ vkj ¼lh&II]
ch,e iVuk;d] MsLd vf/kdkjh
New Delhi, the 15th March, 2013
S.O. 864.—In pursuance of Section 17 of the
Industrial Dispute Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 21/2006
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 WCL and their workman, which was
received by the Central Government on 15/03/2013.
[No. L-22012/363/1993-IR(C-II]
BM PATNAIK, Desk Officer
ANNUXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL CUM LABOUR COURT,
JABALPUR
No. CGIT/LC/R/21/06
Presiding Officer: Shri R.B. Patle
General Secretary,
Laljhanda coal Mines Mazdoor Union (CITU),
At & PO Damua,
Distt. Chhindwara (MP)
Workman/Union
Versus
The Managing Director,
M/S Western Coalfields Limited,
Civil Lines,
Coal Estate, Nagpur (MS)
Management
AWARD
Passed on this 28th day of February 2013
1. As per letter dated 7-7-2006 by the Government of
India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section-10 of I.D.Act, 1947 as per Notification No. L-22012/
363/1993-IR(C-II) dated 7-7-2006 The dispute under
reference relates to:
"Whether the action of the management of WCL in
not considering the application of Smt. Kanta Bai,
wife of the deceased workman Late Shri Lahudas for
compassionate appointment is legal and justified? If
not, to what relief the wife of the deceased workman
is entitled to?"
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2465
Server3/E/1250RR/1250RR(1-26)
2. After receipt of reference, notices were issued to
the parties. Ist party/workman submitted her claim at Page
6/1 to 6/3 of record. The case of the Ist party/workman as
per statement of claim is briefly described as under:-
That the deceased Lahudas, husband of Ist party
was working as Tub Loader in Damua Colliery since 1975.
The deceased Lahudas, husband of Ist party was regular
employees of IInd party. On 11-9-87, he sent a leave
application under Certificate posting addressed to the
Manager, Damua Colliery requesting leave till passing of
his transfer order from Damua colliery to Sawner colliery.
Late Lahudas was feeling insecurity to his life. He had
applied for his transfer to Sawner Colliery with a request to
grant leave. On 2-4-88, late Lahudas again requested for
extension of leave stating that he was under treatment. He
has furnished his address to the Management/ IInd party.
He died on 3-6-89. Ist party/workman claiming to be widow
of Late Lahudas, employee of IInd party submitted
application for employment as dependent on 27-8-90
claiming benefit under NCWA-III & IV. IInd party/
management returned application for employment on the
ground that deceased workman was a dismissed employee,
as such her claim can not be considered.
3. The Ist party approached ALC, Chhindwara. During
conciliation proceeding, Mr. P. Bannerjee, Enquiry Officer
appeared and submitted para-wise comments. The Central
Govt. declined to refer dispute. The Ist party/workman filed
Writ Petition No. 2040/94. As per order dated 18-1-06,
Hon'ble High Court directed Central Govt., Ministry of
Labour, New Delhi to refer the dispute for adjudication to
CGIT. Accordingly the reference has been made. It is further
submitted that in Writ petition, IInd party/management has
contented that enquiry was conducted against deceased
Lahudas, husband of Ist party. When he did not appear in
the proceeding, he was proceeded ex-parte. The dismissal
order dated 18-10-88 was produced by management before
Hon'ble High Court. The Ist party prays that whole
proceedings be ordered to be vitiated and reinstate the
deceased Lahudas with all benefits. That IInd party be
directed to provide employment to Ist party, widow of the
deceased workman as per the NCWA.
4. IInd party management filed Written Statement on
25-5-2009 denying claim of the Ist party/workman. It is
submitted by IInd party that the dispute is referred for
adjudication as per direction given by the Hon'ble High
Court. That IInd party has submitted reply before ALC(C)
contending that Ist party is not entitled to employment on
compassionate ground. The Conciliation Officer submitted
report to the appropriate Govt. The appropriate Govt.
refused to refer the matter for adjudication for the reasons
that Ist party is not covered under provision of Para 9.4.3
of NCWA-IV as her husband expired on 3-6-89 and he was
dismissed from service on 12-10-88 and no dispute about
his dismissal was raised till then. As per order passed in
Writ Petition No. 2040/93, the dispute has been referred.
That this Tribunal is required to see whether the claimant
is entitled to reinstatement on ground of dismissal of
deceased workman. It is contended that denial of
employment by IInd party of Ist party is just and proper.
5. In para-3 of Written statement, IInd party submits
that deceased Shri Lahudas was a habitual absentee,
remained unauthorisedly absent without any intimation,
permission or sanctioned leave. He continuously remained
absent from 11-9-87. Chargesheet was issued to him on
5-2-88 for misconduct of continuous absent without
satisfactory reason. The chargesheet was sent by
Registered AD post to his permanent home address
mentioned in the colliery record. Workman did not submit
his reply, he decided to conduct enquiry against him as per
order dated 11-3-88. Shri P. Bannerjee, the then Sr. Personnel
Officer was appointed as Enquiry Officer. Its memo was
sent to deceased workman on his address. Sitting of enquiry
was fixed on 11-4-88, 26-4-88 & 30-5-88. Despite of memos
sent to the workman, he remained absent. Vide letter dated
3-6-88, workman was informed that in case he is sick, he
should report to the company Hospital where treatment is
available. The said letter was acknowledged by the workman
but he did not care to follow the instructions, neither availed
medical facilities. No information was given about his
signatures on treatment outside. The Enquiry Officer fixed
next dated on 19-6-88 and intimation was sent on the
changed address of deceased workman but he did not
appeared. Enquiry was fixed on 25-7-88 and intimation was
sent to the workman. Acknowledgement of all the
intimations of enquiry was filed. The workman did not care
to appear and defend case against him. Departmental
enquiry was concluded in his absence. Enquiry Officer
submitted his report holding the workman guilty of charges.
As per order dated 11-10-88, deceased workan was
dismissed for his unauthorized absence. That deceased
workman Lahudas died after order of dismissal. Therefore
dependent is not entitled to employment as per clause 9.4.3
of NCWA. On such grounds, IInd party prays for rejection
of claim of Ist party.
6. Considering pleadings on record, the points which
arise for my consideration and determination are as under.
My findings are recorded against each of them for the
reasons as below:—
(i) Whether the action of the
management of WCL in not
considering the application
of Smt. Kanta Bai, wife of the
deceased workman Late Shri
Lahudas for compassionate
appointment if legal and
justified?
(ii) If not, what relief the
workman is entitled to?"
Party in Affirmative
Monetary compen-
sation Rs. 3000 per
month is allowed.
2466
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(1-26)
REASONS
7. The dispute between Ist and IInd party relates to
denial of employment of Ist party as dependent of
Late Lahudas. As per NCWA-IV, there is not dispute that
the Ist party is widow of Late Lahudas. The claim of Ist
party/workman was rejected in the ground that her husband
was dismissed from service on 12-10-88 before his death
on 3-6-89 and therefore Ist party is not entitled to
employment as dependent of deceased workman Lahudas.
Ist party submitted affidavit of her evidence pleading all
the facts contended in her statement of claim. In her cross-
examination, Ist party says her husband was working as
loader in Damua colliery No. 22 & 23. He was appointed in
1975 and continued to work till 1987. She was married in
1976, she was residing with her husband in the Mines
quarter. That she has no document about service of her
Late Husband. In her further cross-examination, she says
that sometimes her husband was not going to duty. That
her husband has not gone to duty from 11-9-87 to 5-2-88.
She claims ignorance whether chargesheet was issued to
her husband, she claims ignorance about the Deptt.
Enquiry held against him or any registered letter sent to
him. She also claims ignorance that her husband was
dismissed from service from 12-10-88. Her husband died
on 3-6-89. During 87-88, she was not residing in Mines
quarter with her husband. That she doesnot know about
application submitted to the Manager of Damua Mines.
She claims ignorance with the correspondence with her
husband. She has no correspondence with Manager of
Damua Mines,. She had initiated proceedings after death
of her husband for employment on compassionate ground.
She was told that as her husband was dismissed, she
could not get employment. That her husband was not
quarreling with anybody. She was told by her husband that
he was threatened. Therefore he was not attending duties.
Her husband was trying for his transfer to Sawner Mines.
8. Ist party/workman produced document Exhibit
W-1-copy of reply filed before ALC(C) in conciliation
proceeding, Exhibit W-2- copy of order in Petition No. 2040/
93 & Exhibit W-3- Copy of dismissal order dated 11-10-88.
In Exhibit W-1, IInd party had contended before Conciliation
Officer that Late Lahudas, husband of 1st party was
dismissed after holding enquiry. It was the reason that the
dispute between parties was not referred. In Exhibit W-2,
Hon'ble High Court in Case No. 2040/93, directed
Respondent No.1 i.e. Central Govt. to reconsider matter
and pass appropriate order for making reference for
adjudication of dispute by the Tribunal. It was also
observed that Govt. had refused to refer the dispute on the
ground that 1st party/workman is not governed under
provisions of Para 9.4.3 of NCWA-IV as her Husband expired
on 3-6-89 and he was dismissed from service on 12-10-88.
As per direction by Hon'ble High Court, dispute has been
referred. However the dispute under reference does not
cover legality of dismissal of service. The service of
Late Lahudas Husband of 1st party contending that the
relevant documents mentioned in Written Statement are
not produced. Documents relating to enquiry are not
produced.
9. Management submitted evidence on affidavit of
Shri R.K. Acharya giving the details that the deceased
Lahudas, husband of 1st party was dismissed from service
after enquiry. In his cross-examination, management witness
says that he was not knowing Late Lahudas. He has no
personal knowledge about enquiry held against him. The
record of enquiry proceedings is not produced on record.
However on the basis of documents Exhibit W-1, W-2, it is
clear that Late Lahudas husband of 1st party was dismissed
after report of the Enquiry Officer. The copy of dismissal
order is also produced alongwith affidavit of management's
witness Shri Sandeep Shukla.
10. Learned counsel for 1st party Mr. Verma submitted
written notes of arguments. I have carefully gone through
it. Reliance is placed by Shri Verma on ratio held in case of
Krushnakant B. Parmar Vrs. Union of India and another in
2012(3) Supreme Court Cases 178. Ratio held in the case is
for sustaining such allegations it must be proved that
unauthorized absence was willful. If absence is due to
compelling circumstances under which it is not possible to
report for or perform duty, such absence cannot be held to
be willful and employee guilty of misconduct. Considering
ratio in this case, the dismissal for unauthorised absence is
required to be willful. Next reliance is placed by Mr. Verma
on ratio held in case of Ananda Chandra Prusty Vrs. Orissa
Mining Corporation Ltd,. reported in 1996 I OLR 353.
Attention was pointed out to observations in Para No.7
with due respect, I make it clear that the observations relating
to burden of proof to establish charge cannot be applied to
present case. As the legality of the dismissal of
Late Lahudas, husband of 1st party is not referred for
adjudication. For same reasons I do not find observation
in para-13 relied by learned counsel for 1st party useful for
decision. Copy of Judgement in WP No. 9085/2012 Rajesh
Kumar Tripathi Vrs. State of MP and others submitted by
Mr. Verma. The judgment relates to appointment of
Panchayat Karmi has absolutely no bearing to the
controversy to the case at hand. Copy of judgment in WP
No. 5976/2004 between Kaushalya Bai Vrs. Western
Coalfields Ltd. and others is submitted. My attention was
pointed out to the reference of NCWA-V and in clauses
provided for employment to the dependents of the said
case. The copy of NCWA-IV is made available by learned
counsel for IInd party Mr. Shashi. Clause 9.3.2 deals with
employment to one dependent of worker who died while in
service. Para 9.3.3. relating to dependents includes wife,
unmarried daughter, son, adopted son. If no such
dependents are available, brother, widowed daughter/
widowed daughter-in-law or son in law residing with the
deceased and almost wholly dependent on the earnings of
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2467
Server3/E/1250RR/1250RR(27-51)
the deceased may be considered to be the dependant of
the deceased. 1st party being widow is covered under
clause 9.3.3 as dependent of the deceased. The deceased
Lahudas died on 3-6-89 as per document
Exhibit W-1, W-2 husband of Ist party terminated on
12-10-88 prior to his death. As per pleadings and evidence
of the management, exparte enquiry was conducted and
termination order was also issued. The IInd party has not
producted any document that the termination or dismissal
order of husband of Ist party was served on him before his
death and as such the order of dismissal was given effect.
As per document W-1, Ist time in conciliation proceeding
before ALC, Chhindwara, IInd party had contended about
dismissal of the husband of Ist party holding enquiry. The
subsequent course is not in dispute that on the said ground,
the reference was rejected and in WP filed by Ist party,
directions were given to the Central Govt. and dispute is
referred for adjudication.
11. Learned counsel for IInd party Mr. Shashindharan
submits that legality of the order of dismissal on the enquiry
held against husband of Ist party is not referred therefore
this Tribunal has no jurisdiction to deal with those aspects.
On above point, learned counsel relies on ratio held in
Pottery Mazoor Panchayat Vrs. Perfect Pottery Company
and another reported in AIR 1979 Supreme Court Cases
1356. The Lordship of the Apex Court held, the jurisdiction
of Tribunal in Industrial Dispute is limited to the points
specifically referred for its adjudication and to matters
incidental thereto and the Tribunal cannot go beyond the
terms of reference. It is clear from ratio held in the case that
incidental matters related to the terms of reference can be
decided by the Tribunal. The claim of Ist party/workman
was rejected on the ground that her husband was dismissed
holding enquiry and therefore she was not entitled to
employment under NCWA-IV. The said order has been set
aside with the direction to pass appropriate order. The
dispute is referred, even if entire contention of IInd party is
accepted that the husband of Ist party was dismissed from
service perior to his death, it is clear that the order of his
dismissal was not served on him. Thus the dismissal order
was not given effect. The dependents were not knowing
about the said order till reply filed before ALC(C),
Chhindwara. That clause 9.5 of NCWA-II provides in case
of death/total permanent disablement and medical unfitness
under clause 9.4.0 if the female dependent is below the age
of 45 years she will have the option either to accept the
monetary compensation of Rs. 3000/- per month or
employment. In case the female dependent is above 45
years of age, she will been entitled only to monetary
compensation and not to employment. From above clause
of NCWA it is clear that Ist party being widow of deceased
Lahudas, she is entitled to monetary compensation of Rs.
3000/- per month as the Ist party/workman had shown the
age in her affidavit of evidence as 50 years.
12. Learned counsel for IInd party relies on ratio held
in case of bank of Maharashtra Vrs, Manoj Kumar Deharia
reported in 2010(3) M.P.L.J. Pg-213. The Lordship of
Jabalpur High Court dealing with compassionate
appointment held consideration and evaluation are required
to be made in accordance with the existing policies and not
on the basis of a policy or scheme which has become extinct.
In para 8 of the judgment, Lordship held that inspite of
death of bread-earner, the family survived and substantial
period is over, there is no necessity to say 'goodbye' to
normal rule of appointment and to show favour to one at
the cost of interests of several others ignoring the mandate
of Article 14 of the constitution.
13. Considering the evidence on record, it is clear
that before death of Late Lahudas, order of his dismissal
was not served on him. Ist party was not knowing about
the dismissal order. The order of dismissal of Late Lahudas
was only on the record of the IInd party. The technicalities
needs to be avoided, liberal approach needs to be adopted
as Ist party is widow and dependent of Late Lahudas. The
order of his dismissal was not served till she filed proceeding
before ALC, Chhindwara for employment on compassionate
ground. As per para 9.5.0 of NCWA she is entitled to
monetary compensation Rs. 3000/- per month. The rejection
of her claim by IInd party therefore is not just and legal.
Accordingly I record my finding on Point No. 1.
14. Point No.12-The Ist party/workman being widow
of Late Lahudas who was in employment as Loader with
IInd party, she is entitled to monetary benefit of Rs. 3000/-
per month as per clause 9.5.0 of NCWA/IV. Accordingly
I record my finding on Point No. 2.
15. In the result, I pass following award:—
i.
Action of the IInd party/management rejecting
application of Ist party/workman for employment
as per NCWA-IV is not just and legal.
ii.
IInd party is directed to pay monetary
compensation of Rs. 3000/- per month to Ist
party as per clause 9.5.0 of NCWA-IV from the
date of judgment.
R.B. Patle, Presiding Officer
ubZ fnYyh] 15 ekpZ] 2013
dkñvkñ 865-
—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,QñlhñvkbZñ 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 ukxiqj
ds iapkV ¼vkbZMh la[;k 311@2003½ dks izdkf'kr djrh gS tks
dsUnzh; ljdkj dks 15-03-2013 dks izkIr gqvk FkkA
[lañ ,y&22012@293@2003&vkbZ vkj ¼lh ,e&II½]
Ckhñ,eñ iVuk;d] MsLd vf/kdkjh
2468
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(27-51)
New Delhi, the 15th March, 2013
S.O. 865.—In pursuance of Section 17 of the
Industrial Dispute Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref. No 311/2003
of the Central Government Industrial-Tribunal-cum Labour
Court., Nagpur as shown in the Annexure, in the Industrial
dispute between the management of Food Corporation of
India, Food Corporation of India, and their workman,
received by the Central Government on 15.03.2013.
[No. L-22012/293/2003-IR (CM-II)]
B.M. Patnaik, Desh Officer
ANNEXURE
BEFORE SHRI J.P. CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
CASE No. CGIT/NGP/311/2003
Date 07.03.2013.
Party No. 1(a) :
The District Manager,
Food Corporation of India,
Ajani, Nagpur, Nagapur-440 015.
Party No. 1(b) :
The Senior Regional Manager,
Food Croporation of India,
Mistry Bhawan, Dinshaw Wacha
Road, Churchgatye,
Mumbai-400 020.
Versus
Party No. 2 :
The Secretary,
Rashtriya Mazdoor Sena, Hind Nagar
Ward No. 2, Near Boudha Vihar,
Post: Wardha, Distt. Wardha (M.S.)
AWARD
(Dated: 7th March, 2013)
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 Food Corporation of India and their
workman, Shri Mitaram Raghunat Meshram, for
adjudication, as per letter No.L-22012/293/2003-IR (CM-II)
dated 08.12.20003, with the following schedule:
"Whether the action of the management of Food
Corporation of India, Nagpur (M.S.) in terminating
the services of Shri Mitaram Raghunat Meshram,
Security Guard w.e.f.14.3.1999 is legal and justified?
If not, to what relief the concerned 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 Mitaram
Raghunat Meshram ("the workman" in short), filed the
statement of claim and the management of Food Corporation
of India ("PartyNo.1" in short) filed their statement.
The case of the workman as presented in the
statement of claim is that he was in the employment of
Party No. 1 from 23.12.1992 and he was initially engaged
through a contractor at Gondia Depot of Party No. 1, as a
Security Guard and he was in continuous service without
any interruption till 14th March, 1999, when his services
were terminated orally by Party No. 1, without following
the due procedure of law and he had completed more than
240 days of work in each year and the termination of his
services on 14.03.1999 was not in good faith, but in
colourable exercise of the rights and powers by the Party
No. 1 and while terminating his services, neither one
month's notice nor one month's wages in lieu of notice nor
retrenchment compensation was given to him as required
under section 25-F of the Act and after his illegal termination
fresh hands from the department of home guard and police
were engaged by Party No. 1 to extract the duties of Security
guards, in violation of the provision of section 25-H of the
Act and the work which he was performing is constantly
in existence and the same is of a perennial nature and as
his termination is illegal and unlawful, he is entitled for
reinstatement in service with continuity and full back
wages.
The further case of the workman is that in 1992, he
was engaged by the Party No. 1 through the contractor for
a period of two years, but the contract was made only on
papers and after every two years, the Party No. 1 changed
the contractor on papers only and the engagement of the
so-called contractor did not replace the Security Guards
and he was also not disturbed from his services and he
was merely shown to be engaged by the contractors, but
actually, he was working under the direct control and
supervision of the Party No. 1 and the contractor had no
role to play in the same and the work performed by him was
being assigned to him by Party No. 1 and he was a regular
employee of Party No. 1 and Party No. 1 was his real
employer and not the contractor as alleged and the
engagement and change of contractors by Party No. 1 from
time to time was sham and only a camouflage to deny his
legitimate claim and the contract between Party No. 1 and
the contractor was bogus and not genuine and therefore,
his oral termination from services was against the
mandatory provisions of the Act and the Central
Government decided to abolish the appointment of contract
labour as contemplated under section 10 of the Conract
Labour (Regulation and Abolition) Act, 1970 and issued
notification on 01.11.1990 with directions to abolish the
contract labour system in the establishment of the Party
No. 1 and to give employment to contract labours engaged
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2469
Server3/E/1250RR/1250RR(27-51)
by the management and therefore, it was the mandatory
duty of the Party No. 1 to abolish the contract labour system
in all places and management of FCI implemented the
notification only at Nagpur and Manmad and absorbed
the Security Guards working at Nagpur and Manmad, but
at Akola, Amravati, Wardha and Gondia districts, the
contract labour system was continued by the management,
with an intention to deprive him from the benefit under the
labour laws.
It is further pleaded by the workman that his salary
was paid by the Party No. 1 and not by the contractor and
his daily attendance was also marked by the Asstt.
Manager of FCI, Wardha Depot and the Party No. 1 was
supervising his work through their officers and he had no
relation with the so called contractors engaged by the Party
No. 1 and Party No. 1 also supplied the articles, such as,
torch, lathi, whistle and uniform etc to him and in view of
the long spell of work being carried out by him, he is entitled
to be reinstated in service with continuity and full back
wages.
3. The Party No. 1 in their written statement have
pleaded inter alia that the workman was never in their
employment and the workman has not impleded the
contractor, who appointed him, as a Party and the workman
was engaged by the contractor as a Security Guard at FCI
Depot and the said contractor is a necessary party and in
absence of the contractor, the proceeding cannot proceed
and the workman was not in their service uninterruptedly
till 14th March, 1999 and since the contract of the contractor
came to an end, the services of the workman were terminated
by the contractor and the original period of contract given
to the contractor for providing Security services was up to
1998 and the same was extended as per the terms and
conditions till March, 1999 and as the workman was not
employed by them, there was no question of following the
procedure of termination by them and they were not the
employer of the workman and the services of the workman
were never utilized by them as employer from 23.12.1992 to
14.03.1999, without any break in service and the workman
did not complete 240 days of work in a year as alleged and
as the workman was engaged by the Security Contractor,
there was no relationship of master and servant between
them and the workman at any point of time and under
section 10 of the Contract Labour (Regulation and
Abolition) Act, they were exempted by the Central
Government, so the allegations made by the workman
against them are not true and there was no question of
violation of the provisions of 25 (H) of the Act and the
work does not constantly exist and the work of providing
security guards was given to other Government Agencies
like Police Personnel and Home guards and therefore, the
workman has no right to claim any relief from them and the
work of security is not perennial in nature and as and when
their go-downs are filled with food grains, then only,
services of the security guards are required and in
pursuance of the notification issued by the Central
Government abolishing contract labour system, they
appointed Home guards and Police personnel as security
guards.
The further case of Party no. 1 is that for the relief as
claimed, by the workman had filed a writ petition before the
Hon'ble High Court, Nagpur Bench bearing W.P. No. 1389/
99 and the Hon'ble High Court rejected the said WP and
denied the relief prayed for the therefore, this Tribunal has
no jurisdiction to decide the reference and the decision of
the Hon'ble Court operated as res-judicata and they floated
tenders for the contract and lowest bidder was awarded
the contract and the change of contractor in every two
years was not on papers only and they had no say in the
appointment of security guards by the security contractor
and they had no control over the appointment and service
conditions of the workman, who was an employee of the
security agency and he was never their employee and the
security contractor was the employer of the workman.
The further case of Party no. 1 is that the appropriate
government decided to abolish the employment of the
contract labour as contemplated under section 10 of the
Contract Labour (Regularisation and Abolition) Act, 1970
and the interpretation of the notification issued on
01.11.1990 put by the workman is not correct and they were
exempted from the operation of the Act of 1970 in the year
1989 and the said exemption was withdrawn in the year
1999 and therefore, the security contact given to the
contractor was terminated and hence, the services of the
workman were terminated by the security contractor and
they did not pay the salary to the workman and it was the
contractor, who was paying the same to the workman and
when the contractor failed to pay the salary to the workman,
they paid the amount as per the directions given by the
ALC from time to time and the said amount was recovered
from the contract's bill and they only used to check the
attendance of the security guards to find out as to whether
the contractor had made arrangement of the requisite
number of security guards, as per their requirement and
they did not have the power to terminate any employee
appointed by the contractor and they did not provide any
article, such as torch, Lathi, whistle and uniform etc. to the
workman and as such, the workman is not entitled to any
relief.
4. Both parties have led oral evidence in support of
their respective claims, besides placing reliance on
documentary evidence.
The workman in support of his claim has examined
himself as a witness. In his evidence, which is on affidavit,
the workman has reiterated the facts mentioned in the
statement of claim.
5. In his cross-examination, the workman has admitted
that in his statement of claim he has mentioned that his
2470
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(27-51)
initial appointment was through a contractor and he has
not filed any document to show that he was appointed by
the FCI directly as a Security Guard he has not filed any
written termination order. The workman has further admitted
that he has not filed any document to show that he had
received his salary from F.C.I. and the signature appearing
against the name on the letter issued by the Industrial
Security and Fire Services, Bombay dated 17.12.1996 is his
signature. The workman has further admitted that they had
made a complaint to the Labour Officer, Nagpur as the
contractor did not pay their salary and with the intervention
of the Asstt. Labour Commissioner, Nagpur, the contractor
paid him a sum of Rs. 2,192.85 he signed on the revenue
stamp in token of receipt of the same amount and Exhibit
M-II is a copy of the said receipt.
6. One Shri Mohan Govindrao Temburne has been
examined as a witness on behalf of the Party No. 1. This
witness has also reiterated the facts mentioned in the written
statement, in his examination-in-chief, which is on affidavit.
In his cross-examination, this witness has admitted the
suggestions that contract for supply of security guards
was given to Singh Security Services for two years and
subsequently, the contract of Singh Security was extended
till 15.12.1996 and contract for supply of security guards
was given to M/s. Chaitanya Security and Investigation
Services, Amaravati from January, 1992 to May, 1992 and
to M/s. Security Services Intelligence Bureau, Thane from
01.06.1992 to 31.03.1993 and to M/s Industrial Security and
Fire Services from 16.12.1996 to 15.12.1998 by FCI. The
witness has also admitted that inspite of change of
contractors, workman worked continuously in FCI from
23.12.1992 to 14.03.1999. This witness has also admitted
the suggestion that on 14.03.1999, the contract of M/s.
Industrial Security and Fire Services was expired. In his
cross-examination, this witness has further admitted that
the concerned officers of the FCI were issuing necessary
directions to the workman and other security guards
regarding the place and time of their performing duties and
the security guards posted at the gate of the Depot of FCI
were keeping accounts in a register regarding the number
of incoming and out-going vehicles to and from the depot
respectively and home guards and police persosnnel of
the state were engaged for watch and ward purpose of the
depot, after the disengagement of the workman and other
security guards and the work of watch and ward is a
continuous process in the FCI and the same is of perennial
in nature. This witness has further stated that the
contractors engaged by FCI were paying the wages to the
security guards deployed by them.
7. At the time of argument, it was submitted by the
union representative for the workman that the workman
was engaged by the management of FCI on 23.12.1992 at
Gondia depot as a security guard and he worked
continuously without any interruption till 14th March, 1999
and his services were terminated orally by the Party No. 1,
without following the due procedure of law and the workman
had completed more than 240 days of work in each year
and before termination of the services of the workman,
neither one month's notice or one month' wages in lieu of
notice nor retrenchment compensation was given to the
workman, as required under section 25-F of the Act and
after termination of the services of the workman, fresh hands
were engaged by Party No. 1 to extract the duties of security
guard, in violation of the provision of section 25-H of the
Act and the work of security guard is perennial in nature,
hence the termination of the workman is void and illegal.
It was further submitted by the Union representative
for the workman that the Party No. 1 had shown the workman
as contract labour, but the so called contract was made
only on papers and the workman was actually working
under the direct control and supervision of the Party No. 1
and he was never a contract labour and such action of the
Party No. 1 was sham and only a camouflage to deny the
legitimate claim of the workman and the so called contract
between the management and the contractor was bogus
and not genuine and the Central Government by
notification dated 01.11.1990 abolished the employment of
contract labour and directed to give employment to contract
labours engaged by the management and therefore, the
management of FCI was bound to abolish the contract
labour system and to give employment to the workman.
It was further submitted by the union representative
that on 29.06.2007, an application was filed by the workman
for production of nine documents relating to him, from
which, it could have been held without any doubt that the
workman was an employee of the Party No. 1 and not a
contract labour and after hearing the parties, the Tribunal
by order dated 20.05.2008 directed the Party No. 1 to produce
the documents, but inspite of the order passed by the
Tribunal for production of documents, the Party No 1 failed
to produce the documents and as such, adverse inference
is to be drawn against the Party No. 1.
In support of such contentions, reliance was placed
by the union representative on the decisions reported in
2005 I-CLR-254 (Statement Ltd. & Anr. Vs. Eight Industrial
Tribunal, West Bengal & ors.) and 2004 (103) FLR-187
(Municipal Corporation, Faridabad and Shri Niwas).
It was also submitted by the union representative
that neither the Party No. 1 nor the so called contractors
engaged by the Party No. 1 were registered with the Regional
Labour Commissioner as per rules to engage contract
labours and infact the so called contractors were mediators
and not contractors and even though there was legal ban
on engagement of contract labourers, the Party No. 1
engaged the workman and some otheres as security guards
and from the pleadings of the parties, the evidence on
record and the admission of the witness examined on behalf
of the Party No. 1 that from the date of his initial engagement
the workman worked till 14.03.1999 clearly show that the
workman was the employee of the Party No.1 and the
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2471
Server3/E/1250RR/1250RR(27-51)
Party No. 1 is the real employer and there was master and
servant relationship between the Party No. 1 and the
workman and the so called contract given to the contractor
expired on 31.12.1998 and though Party No. 1 unilaterally
extended the contract, the contractor did not accept the
same and without any contractor, the workman continued
the work with Party No. 1 till 14.03.1999 and the Party No. 1
paid the wages form 01.01.1999 to 14.03.1999 to the workman
and such facts also prove that the workman was employee
of the Party No. 1 and it was Party No. 1, who terminated
the services of the workman without compliance of the
mandatory provisions of section 25-F of the Act. In support
of the submissions, the union representative placed reliance
on the decisions reported in 1994 II CLR-402 (R.K. Panda
Vs. Steel Authority), 2003 (98) FLR-826 (M/s. Bharat Heavy
Electricals Ltd. Vs. State of U.P.) and 2011 (128) FLR-99
(Mahesh Kumar Sharma Vs. D.F.O. General Forest Division,
Sheopur).
It was also submitted by the Union representative
for the workman that Party No. 1 has admitted the claims
made by the workman and has not been able to prove their
claim that the workman was a contract labour, by producing
cogent evidence in support of the same and as such, the
workman is entitled for reinstatement in service with
continuity and full back wages.
8. Per contra, it was submitted by the learned advocate
for the Party No. 1 that the workman was never appointed
by Party No. 1 and he has engaged by the contractor as a
security guard and such, the concerned contractor is
necessary party and inspite of raising such objection in
the written statement, the workman did not implead the
contractor as a party and for that the reference is not
maintainable. It was further submitted by the learned
advocate for the Party No. 1 that the workman was engaged
by the contractor and as the contract of the contractor
came to an end in March, 1999, the services of the worman
were terminated by the contractor and as such, there was
no question of Party No. 1 complying with the due
procedure of termination and there was no relationship of
master and servant between the party No. 1 and the workman
and the Party No. 1 was exempted by the Central
Government from the ban imposed for engagement of
contract labourers, so contract was given to the security
contractor, as per rules, for supply of security guards and
due to the notification of the Government for abolition of
contract labour system, Home guards and Police personnel
were appointed as security guards and Party No. 1 has no
control over the workman and the security contractor was
submitting bills for payment for supply of security guards
and the security contractor was paying the wages to the
workman. It was further submitted by the learned advocate
for the Party No. 1 that the workman and some others had
approached the Hon'ble High Court, Nagpur Bench in W.P.
1389 of 1999 for the reliefs sought in this reference and the
Hon'ble High Court while depositing of the said petition
have held that the termination of the workman by the
contractor was a valid one and the action of FCI was legal
and as such, the workman cannot agitate the question again
and the decision of the Hon'ble High Court operates as
res-judicata between the parties and the workman is not
entitled to any relief.
In the alternative, it was submitted by the learned
advocate for the party No. 1 that the Party No. 1 is a "State"
as per the provisions of Article 12 of the Constitution of
India and it has a set Rules for appointment of its employees
and it is clear that the workman was never engaged by
Party No. 1 as per the rules of appointment and no evidence
has been adduced by the worman to prove that he had
worked for 240 days with Party No. 1 in the preceding 12
calendar months of the date of the alleged termination and
as such, there was no question of compliance of section
25-F or 25-H of the Act and the workman is not entitled to
any relief.
In support of such contentions, the learned
advocates for the Party No. 1 placed reliance on the
decisions of the Hon'ble Apex Court reported in Appeal
(Civil) 7038/2002 (M/s. Essen Deinki Vs. Rajiv Kumar),
Appeal (Civil) 6303-6316 of 2003 (Manager, RBI Bangalore
Vs. S. Mani), Appeal (Civil)-6511 of 2005 (Surendranagar
District Panchayat Vs. Dayachai Amar Singh), Appeal (Civil)
3639/2006 (Krishna Bhagaya Jala Nigam Vs. MD Raffi) and
Appeal (Civil) 2969/2004 (Rajasthan State Gangasagar Mills
Ltd. Vs. State of Rajasthan).
9. First of all, I will take up the submission made by
the learned advocate for the Party No. 1 that the present
reference is hit by the principles of res-judicata, due to the
decision of the Hon'ble High Court, Nagpur Bench in W.P.
1389/99.
It is not disputed that the workman along with 78
others through the union, "Rashtriya Mazdoor Sena
Saptahit Jaibhim" had filed Writ Petition No. 1389/99 before
the Hon'ble High Court of Judicature at Bombay, Nagpur
Bench, Nagpur, for their regularisation and the Hon'ble
High Court did not grant such relief. On perusal of the
order passed by the Hon'ble High Court on 29.07.2002 in
the said writ petition,it is found that the workman and others
claimed regularisation on the ground that they were
employed by the contractor for doing regular work of the
Food Corporation of India and in view of the same, they
have became workmen of Food Corporation of India, since
the work on which they were employed is of perennial
nature. However, it is found from the judgement that the
Hon'ble High Court did not consider the main relief and
passed the following order:
"In view of the judgement of the Constitution Bench
in Steel Authority of India Ltd. and others Vs.
National Union water front workers and [others
reported in 2001 (7) SCC1], the relief sought by the
petitioners cannot be granted since the petition
2472
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(27-51)
involves disputed question of facts as also other
facts which are required to be adjudicated by
appropriate authority. Accordingly, the main prayer
to absorb them cannot be granted.
*
*
*
*
*
*
*
*
In view of the rejection of the main prayer, the question
of granting other prayer does not arise. In case, the
petitioners approach the appropriate authority, the
appropriate authority shall take decision in the matter within
a period of one year. The applicants are free to approach
the appropriate authority for redressal of their grievances."
So, it is clear from the orders passed by the Hon'ble
High Court as mentioned above that the Hon'ble High Court
did not consider the claim made by the workman and others
on merit and granted them the liberty to approach the
appropriate authority for redress. Hence, the reference
cannot be said to be hit by the principles of res-judicata.
So, there is no force in the contention raised by the learned
advocate for the Party No. 1.
10. In this reference, it is never the case of the workman
that he was directly appointed or engaged by the Party No.
1 as a security guard. In the very beginning of statement of
the claim, it has been mentioned by the workman that he was
initially engaged at Food Corporation of India Depot, Gondia
as a security guard, through a contractor. In paragraph 4 of
the statement of claim, the workman has mentioned that, "In
the year 1992, he was engaged by the Food Corporation of
India through contractor, for a period of 2 years, but the
contract was made on paper." The case of the workman is
that after every two years, the Party No. 1 on papers showed
the change of contractors, but he was not disturbed from
services and he worked continuously without any break till
14.03.1999 and as he worked as a security guard of perennial
nature, he is entitled for reinstatement in service. The
workman has also claimed that as the Central Government
issued notification on 01.11.1990 to abolish the contract
labour system in FCI and directed to give employment to
contract labours engaged by the management and Party No.
1 implemented such direction at Nagpur and Manmad only
and gave employment and regularized and absorbed the
services of the Security Guards working at Nagpur and
Manmad and did not implement the same at Wardha and
other places to deprive him from the benefits under the
Labour Laws.
In his evidence on affidavit also, the workman has
mentioned that he was initially engaged in Food
Corporation of India as a security guard through a
contractor.
From the evidence on record and the own admission
of the workman in the cross-examination including the
specific admission that he was engaged by the contractor
and the contractor left him to FCI and he was appointed
through Singh Securities Services, it is clear that the
workman was engaged by the contractor. The workman
has not produced any evidence to show that he was
directly engaged by the Party No. 1.
11. At this juncture, I think it apropos to mention
about the principles enunciated by the Hon'ble Apex Court
regarding contract labours, in the decision reported in 1994
II CLR-402 (Supra), on which reliance in placed by the union
representative and the two decisions reported in 1985-II
LLJ-4 (S.C.) (The workman of the Food Corporation of India
Vs M/s. Food Corporation of India) and 2001 LAB IC 3656
(S.C.) (Steel Authority of India Ltd. and others Vs. National
Union Water Front Workers and others).
In the decision reproted in 1994-II CLR-402 (Supra)
the Hon'ble Apex Court have held that:—
2. With the industrial growth, the relation between
the employer and the employees also has taken a new turn.
At one time the establishment being the employer all
persons working therein were the employees of such
employer. But slowly the employer including Central and
State Governments started entrusting many of the jobs of
contractors. Contractors in their turn employed a worker,
who has no direct relationship with the establishment in
which they were employed. Many contractors exploited
the labourers engaged by them in various manners
including the payment of low wages. Hence, the Contract
Labour (Regulaiton and Abolition) Act, 1970 was enacted
to regulate the employment of contract labour in certain
establishment and to provide for its abolition in certain
circumstances and for matters connected therewith.
3. The "Contract Labour" has been defined in Section
2(1) (b) to mean a workman, who has been employed as
contract labour in or in connection with the work of an
establishment when he is hired in or in conenction with
such work by or through a contractor, with or without the
knowledge of the principal employer. Section 2 (1) (c)
defines "Contractor" to mean a person who undertakes to
produce a given result for the establishment, other than a
mere supply of goods or articles of manufacture to such
establishment, through contract labour or who supplies
contract labour for any work of the establishment and
includes a sub-contractor. "Principal employer" has been
defined to mean (i) in relation to any office or department
of the Government or a local authority, the head of that
office or department or such other officer as the
government or the local authority, as the case may be, may
specify in this behalf and (ii) in a factory, the owner or
occupier of the factory. In view of Section 10, of 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," Sub-section (2) of Section 10 requires
that before issuing any such notification, in relation to an
establishments, the appropriate Government shall have
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2473
Server3/E/1250RR/1250RR(27-51)
regard to the conditions of work and benefits provided for
the contract labour in that establishment and other relevant
factors. One of the relevant factors, which is to be taken
into consideration is whether the work performed by the
contract labourers is of perennial nature. Section 12 enjoins
that no contractor to whom this Act is applicable shall
undertake or execute any work through contract labour
except under and in accordance with a license issued in
that behalf by the licensing authority. The license so issued
may contain conditions in respect of hours of work, fixation
of wages and other essential amenities in respect of contract
labour as the appropriate Government may deem fit to
impose in accordance with rules. Section 20 provides that
if any amenity required to be provided under Section 16,
Section 17, Section 18, or Section 19 for the benefit of the
contract labour employed in an establishment, is not
provided by the contractor within the time prescribed by
the contractor within the time prescribed therefore, such
amenity shall be provided by the principal employer within
such time as may be prescribed and all expensed incurred
by the principal employer in providing the amenity may be
recovered by the principal employer from the contractor
"either by deduction from any amount payable to the
contractor under any contract or as a debt payable by the
contractor". Section 21 says that a contractor shall be
responsible for the payment of wages to each worker
employed by him as contract labour but at the same time in
order to protect the interest of such contract labour, it
requires every principal employer to nominate a
representative duly authorized by him to be present at the
time of disbursement of wages by the contractor. It shall be
the duty of the contractor to ensure the disbursement of
wages in the presence of the authorized representative of
the principal employer. Because of sub-Section (4) of
Section 21, If the contractor fails to make payment of wages
within the prescribed period, then the principal employer
shall be liable to make payment of wages in full to the
contact labour employed by the contractor and recover
the amount so paid from the contractor. Any contravention
of the provisions aforesaid has been made penal for which
punishment can be imposed.
4. From the provisions referred to above, it is apparent
that the framers of the Act have allowed and recognized
contract labour and they have never purported to abolish
it in its entirety. The primary object appears to be that there
should not be any exploitation of the contract labourers
by the contractor of the establishment. For achieving that
object, statutory restrictions and responsibilities have been
imposed on the contractor as well as on the principal
employer. Of course if any expenses are incurred for
providing any amenity to the contract labourers or towards
the payment of wages by the principle employer he is
entitled to deduct the same from the bill of the contractor.
The Act also conceives that all appropriate government
may after consultation with the central board or the state
board, as the case may be, prohibit by notification in official
gazette, employment of contract labour in any process,
operation or other work in any establishment, taking all
facts and circumstances of employment of contract labour
in such process, operation or the work into consideration.
5. Of late a trained amongst the contract labourers is
discernible that after having work for some years, they
make a claim that they should be absorbed by the principal
employer and be treated as employees of the principal
employer especially when the principal employer is the
Central Government or the State Government or an
authority which can be held to be state within the meaning
of Article 12 of the constitution, although no right flows
from the provisions of the act for the contract labourers to
be absorbed or to become the employees of the principal
employer. This Court in the case of Gammon India limited
Vs. Union of India (1974) I SCC 596, pointed out the object
and scope of the act as follows:—
"The Act was passed to prevail the exploitation of
contract labour and also to introduce better condition
of work. The Act provides for regulation and abolition
of contract labour. The underline policy of the Act is
to abolish contract labour, wherever possible and
practicable and where it cannot be abolished to
altogether, the policy of the Act is that the working
conditions of the contract labour should be so
regulated as to ensure payment of wages and
provisions of essential amenities. This is why the
Act provides for regulated conditions of work and
contemplates progressive abolition to the extent
contemplated by the Section 10 of the Act."
In the Case of B.H.E.L. Workers' Association Vs.
Union of India, 1985 I CLR SC 165 = (1985) 1 SCC 630 it was
pointed out that Parliament has not abolished the contract
labour as such but has provided for its abolition by the
Central Government in appropriate cases under Section 10
of the Act. It is not for the court to enquire into the quesiton
and to decide whether the employment of contract labour
in any process, operation or other work in any establishment
should be abolished or not. That has to be decided by the
government after considering the relevant aspects as
required by Section 10 of the Act. Again in the case of
Mathura Refinery Mazdoor Sangh Vs. Indian Oil
Corporation Ltd., 1991 I CLR 684, this court refused to
direct the Indian Oil Corporation Ltd., to absorb the contract
labourers in its employment saying that, the contract
labourers have not been found to have direct connection
with the refinery. In other words, there was no relationship
of employer and employee between the Indian Oil
Corporation Ltd. and the contract labourers
concerned. Again in Dena Nath Vs. National Fertilizers
Ltd., 1992 I CLR 1, this court pointed out that the
aforesaid Act has two purposes to serve (i) to regulate
the conditions of service of the worker employed by
the contractor who is engaged by a principal employer
2474
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(27-51)
and (ii) to provide for the abolition of contract labour
altogether, in certain notified processes, operation or other
works in any establishment by the appropriate government,
under Section 10 of the Act. It was further stated that neither
the Act nor the Rules framed by the Central Government or
by any appropriate Government provide that upon abolition
of contract labour, the labourers would be directly absorbed
by the principal employer.
6. It is true that with passage of time and purely with
a view to safeguard the interests of workers, many principal
employers while renewing the contracts have been insisting
that the contractor or the new contractor retains the old
employees. Infact such a condition is incorporated in the
contract itself. However, such a clause in the contract which
is benevolently inserted in the contract to protect the
continuance of the source of livelihood of the contract
labour cannot by itself give rise to a right to regularization
in the employment of the principal employer. Whether the
contract labourers have become the employees of the
principal employer in course of time and on whether the
engagement and employment of labourers through a
contractor is a mere camouflage and a smoke screen as has
been urged in this case, is a question of fact is to be
establishment by the contract labourers on the basis of the
requisite material. It is not possible for High Court or this
court, while exercising writ jurisdiction or jurisdiction under
Article 136 to decide such questions only on the basis of
the affidavits. It need not to be pointed out that in all such
cases, the labourers are initially employed and engaged by
the contractors. As such at what point of time a direct link
is established between the contract labourers and the
principal employer, eliminating the contractor from the
scene, is a matter whcih has to be established on material
produced before the court. Normally, the Labour Court and
the Industrial Tribunal, under the Industrial Disputes Act
are the Competent Fora to adjudicate such disputes on the
basis of the oral and documentary evidence produced
before them."
12. In the decision reported in 1985-II LLOJ-4 (Supra)
the Hon'ble Apex Court have held that:—
"Briefly stated, when corporation engaged a
contractor for handling foodgrain at Siliguri Depot,
the corporation had nothing to do with the manner
of handling work done by the contractor, the labour
force employed by him, payments made by him etc.
In such a fact situation, there was no privity of
contract of employer and workmen between the
corporation and the workmen. "Workmen" has been
defined (omitting the words not neccessary) in the
Industrial Disputes Act to mean (any person
including an apprentice) employed in any industry
to do.........", 'The expression' employed has at least
two known connotations, but as used in the
definition, the context would indicate that it is used
in the sense of a relationship brought about by
express or implied contract of service in which the
employee renders service for which he is engaged
by the employer and the latter agrees to pay him in
cash or kind as agreed between them or statutorily
prescribed. It discloses a relationship of command
and obedience. The essential condition of a person
being a workman within the terms of the definition is
that he should be employed to do the work in that
industry and that there should be, in other words, an
employment of his by the employer and that there
should be a relationship between the employer and
employee or master and servant unless a person is
thus employed there can be no question of his being a
" workman" within the definition of the term as contained
in the Act.
Dharangadhara Chemical Works Ltd. Vs. State of
Saurashtra (1957-I-LLJ-477). Now where a contractor
employs a workman to do the work which he
contracted with a third person to accomplish on the
definition as it stands, the workman of the contractor
would not without something more become the
workman of that third person. Therefore, when the
workmen employed by the contractor were certainly
not the workmen of the corporation and no claim to
that effect has been made by the union."
In the decision reported in 2001 LAB IC-3656 (Supra)
Hon'ble Apex Court have held that:—
"The principle that a beneficial legislation needs to
be constructed liberally in favour of the class for whose
benefit it is intended, does not extend to reading in the
provisions of the Act what the legislature has not provided
whether expressly or by necessary implication, or
substituting remedy or benefits for that provided by the
legislature. The intendment of the CLRA Act is to regulate
the conditions of service of the contract labour and to
authorize in Section 10(1) prohibition of contract labour
system by the appropriate Government on consideration
of factors enumerated in sub-section (2) of Section 10 of
the Act among other relevant factors. But, the presence of
some or all those factors, provide no ground for absorption
of contract labour on issuing notification under Section
10(1) by the appropriate Government, is not alluded to either
in Section 10 or at any other place in the Act and 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 Court or the Supreme 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 it absorption of contract labour in the
establishment of principal employer or a lesser or a harsher
punishment. Such an interpretation of the provisions of
the statute will be far beyond the principle of ironing out
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2475
Server3/E/1250RR/1250RR(27-51)
the creases and the scope of interpretative legislation and
as such clearly impermissible.
Thus on issuance of prohibition notification under
S. 10(1) of the CLRA Act prohibiting employment of contract
labour otherwise, in an industrial dispute brought before it
by any contract 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 legislations so as to deprive the workers of the
benefit there under. 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 concerned establishment. If
the contract is found to be genuine and the principal
employer intends to employ regular workmen he shall give
preference to the erstwhile contract labour. It otherwise
found suitable, and, if necessary, by relaxing the condition
as to maximum age appropriately taking into consideration
the age of the workers at the time of their initial employment
by the contractor and also relaxing the condition as to
academic qualifications other than technical qualifications.
Air India's case 1997 AIR SCW 430 Overruled
prospectively. M.A.T. Nos. 1704 and 1705 of 1999, D/-12-8-
1999 (Cal): C.O. No. 6545 (W) if 1996, D/-9-5-1997(Cal): W.A.
Nos. 345-354 of 1997 m D/-17-4-1998 (Kant): W.P. No. 4050
of 1999, D/- 2-8-2000 (Bom) and W.P. No. 2616 of 1999, D/-
-23-12-1999 (Bom), 1998 Lab IC 2571 (Cal), Reversed.
It cannot be said that by virtue of engagement of
contract labour by the contractor in any work of or in
connection with the work of an establishment, the
relationship of master and servant is created between the
principal employer and the contract labour. Even a
combined reading of the definition of the terms "Contract
labour", "Establishment" and "Workman" does not show
that the legal relationship between the person employed in
any industry and the owner of the industry is created
irrespective of the fact as to who has brought about such
relationship. The word "Workman" is defined in wide terms.
It is a generic term of which contract labour is a species. It
is true that combined reading of the terms "Establishment"
and "Workman" shows that a workman engaged in any
establishment would have direct relationship with the
principal employer as a servant of master. But what is true
of a workman could not be correct of contract labour. When
the provisions of the Act neither contemplate creation of
direct relationship of master and servant between the
principal employer and the contract labour nor can such
relationship be implied from the provisions of the action
issuing notification under Section 10(1) of the CLRA Act.
A fortiori much less can such a relationship be found to
exist from the rules and the forms made there under."
So, keeping in view the principles enunciated by the
Hon'ble Apex Court in the decisions mentioned above, the
present case in hand is to be considered.
14. So far the contention raised by the union
representative regarding drawing of adverse inference
against the Party No. 1 for Non-production of documents
as ordered by the Tribunal on the application of the
workman is concerned, it is to be mentioned that it is
admitted by the workman that he was engaged through the
contractor in F.C.I. and due his such engagement, it was
quite natural for the Party No. 1 to direct him to perform
different duties as a security guard and to see that duties
entrusted to him were done properly. Moreover, the Party
No. 1 have produced number of documents to show that
the workman was a contract labour and payment of wages
to him was made by the contractors. Hence, for non-
production of the documents by Party No. 1, there is no
need to draw any adverse inference. As the facts and
circumstances of the case in hand are quite different from
the facts and circumstances of the cases referred in the
decisions by the Hon'ble Courts, on which reliance has
been placed by the union representative, with respect, I am
of the view that the said decisions have no clear application
of this case.
15. So far the contention raised by the union
representative regarding the Non-registration of the Party
No. 1 or the contractors with the Regional Labour
Commissioner as per Rules is concerned, it is to be
mentioned that such a plea has neither been taken in the
statement of claim nor any thing has been stated in that
regard in the evidence of the workman. In absence of such
pleading, the contention cannot be entertained. Moreover,
it is clear from the pleadings of the parties and the evidence
on record and the specific suggestions given to the witness
examined on behalf of the Party No. 1 in his cross-
examination that contract for supply of security guards
was given by Party No. 1 to different contractors from
01.03.1989 till 14.03.1999.
Moreover, for the sake of argument, even if, it is held
that the Party No. 1 had engaged the workman and others
as contract labourers in violation of the provisions of the
Contract Labour (Regulations and Abolition) Act, 1976,
then the persons responsible for such violation are liable
for criminal prosecution, but such violation of the
provisions of the above said Act, does not confer any
right on the workman to claim regularisation in service.
16. in this case, the letter No. U-23013/11/89/LW dated
28.05.92, Govt. of India, Ministry of Labour shows that the
prohibition of employment of contract labour in sweeping,
cleaning, dusting and watching of buildings owned or
2476
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(27-51)
occupied by the establishments of Food Corporation of
India and some other departments was lifted by the Central
Government. So, the engagement of contract labour by the
Party No. 1 cannot be said to be illegal. It is also found from
the materials on record that the appointment of labour
contractor by Party No. 1 for supply of Security Guards
was genuine and the same was not only on papers as claimed
by the workman. The workman has failed to prove such
claim by adducing cogent or reliable evidence. The
engagement of labour contractor by Party No. 1 was not a
mere ruse or camouflage to evade compliance of the various
beneficial legislations, so as to deprive the workman of the
benefits there under. The workman has not been able to
produce any document to show that at any point of time,
Party No. 1 paid his wages as their employee. It is clear
from the evidence that Party No. 1 paid wages of the last
three months to the workman in presence of the Labour
Commissioner, as the contractor did not pay the same. As
it is clear from the evidence on record that the workman
was engaged as a contract labour with Party No. 1, by the
contractor and as such, it can be held that was no
relationship of master and servant between the Party No. 1
and the workman. Hence, there was no question of
termination of the service by the Party No. 1 or compliance
of the provisions of Sections 25-F or 25-H of the Act.
In view of the facts and circumstances of the case
as mentioned above, which are quite different from the
facts and the circumstances of the cases referred in the
decisions, on which reliance is placed by the union
representative, with respect, I am of the view that the said
decisions have no clear application to the present case in
hand.
17.It is the own case of the workman that he was
engaged by the contractor. So the contractor, who had
engaged the workman is a necessary party in the reference,
The said contractor has not been added as a party in this
reference. Due to non-joinder of necessary party, the
reference is bad in law.
In view of the materials on record and the discussions
made above and applying the principles enunciated by the
Hon'ble Apex Court in the three decisions mentioned above,
the reference cannot be answered in favour of the workman,
Hence, it is ordered:—
ORDER
The reference is answered in the negative. The
workman is not entitled to any relief.
J.P. CHAND, Presiding Officer
ubZ fnYyh] 15 ekpZ] 2013
dkñvkñ 866- —vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,Qñ lhñ vkbZñ 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 ukxiqj
ds iapkV ¼vkbZMh la[;k 313@2003½ dks izdkf'kr djrh gS] tks dsUnzh;
ljdkj dks 15@03@2013 dks izkIr gqvk FkkA
[lañ ,y&22012@295@2003&vkbZ vkj ¼lh ,e-II]
chñ ,eñ iVuk;d] MsLd vf/kdkjh
New Delhi, the 15th March, 2013
S.O. 866.—In pursuance of Section 17 of the
Industrial Dispute Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 313/
2003 of the Central Government Industrial Tribunal-cum-
Labour Court, Nagpur as shown in the Annexure in the
Industrial Dispute between the management of Food
Corporation of India, Food Corporation of India, and their
workman, received by the Central Government on 15/03/2013.
[No. L-22012/295/2003-IR(CM-II]
B.M. PATNAIK, Desk Officer
ANNEXURE
BEFORE SHRI J.P. CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOURT COURT, NAGPUR
Case No. CGIT/NGP/313/2003
Date:07.03.2013.
Party No.1(a)
The District Manager,
Food Corporation of India,
Ajani, Nagpur,
Nagpur-440015.
Party No. 1(b)
The Senior Regional Manager,
Food Corporation of India,
Mistry Bhawan Dinshaw Wacha Road,
Churchagatye,
Mumbai—400020.
Versus
Party No. 2
The Secretary,
Rashtriya Mazdoor Sena, Hind Nagar
Ward No. 2, Near Boudha Vihar
Post: Wardha, Distt. Wardha (M.S.)
AWARD
(Dated: 7th March, 2013)
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 Food Corporation of India and their
workman, Shri Rajesh Nathuji Bagade, for adjudication, as
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2477
Server3/E/1250RR/1250RR(27-51)
per letter No.L-22012/295/2003-IR (CM-II) dated 08.12.2003,
with the following schedule:—
"Whether the action of the management of Food
Corporation of India, Nagpur (M.S.) in terminating
the services of Shri Rajesh Nathuji Bagade, Security
Guard w.e.f. 14.03.1999 is legal and justified/ If not, to
what relief the concerned 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 Rajesh
Nathuji Bagade ('the workman" in short), filed the statement
of claim and the management of Food Corporation of India
("Party No. 1" in short) filed their written statement.
The case of the workman as presented in the
statement of claim is that he was in the employment of
Party No. 1 from 01.06.1992 and he was initially engaged
through a contractor at Gondia Depot of Party No. 1, as a
Security Guard and he was in continuous service without
any interruption till 14th March, 1999, when his services
were terminated orally by Party No. 1, without following
the due procedure of law and he had completed more than
240 days of work in each year and the termination of his
services on 14.03.1999 was not in good faith, but in
colourable exercise of the rights and powers by the Party
No. 1 and while terminating his services, neither one
month's notice nor one month's wages in lieu of notice nor
retrenchment compensation was given to him as required
under section 25-F of the Act and after his illegal
termination, fresh hands from the department of home guard
and police were engaged by Party No. 1 to extract the duties
of Security Guards, in violation of the provision of section
25-H of the Act and the work which he was performing is
constantly in existence and the same is of a perennial nature
and as his termination is illegal and unlawful, he is entitled
for reinstatement in service with continuity and full back
wages.
The further case of the workman in that in 1992, he
was engaged by the Party No.1 through the contractor for
a period of two years, but the contract was made only on
papers and after every two years, the Party No.1 changed
the contractor on papers only and the engagement of the
so-called contractor did not replace the Security Guards
and he was also not disturbed from his services and he
was merely shown to be engaged by the contractors, but
actually, he was working under the direct control and
supervision of the Party No.1 and the contractor had no
role play in the same and the work performed by him was
being assigned to him by Party No.1 and he was a regular
employee of Party No.1 and Party No.1 was his real employer
and not the contractor as alleged and the engagement and
change of contractors by Party No.1 from time to time was
sham and only a camouflage to deny his legitimate claim
and the contract between Party No.1 and the contractor
was bogus and not genuine and therefore, his oral
termination from services was against the mandatory
provisions of the Act and the Central Government decided
to abolish the appointment of contract labour as
contemplated under section 10 of the Contract Labour
(Regulation and Abolition) Act, 1970 and issued
notifications on 01.11.1990 with directions to abolish the
contract labour system in the establishment of the Party
No.1 and to give employment to contract labours engaged
by the management and therefore, it was the mandatory
duty of the Party No.1 to abolish the contract labour system
in all places and management of FCI implemented the
notification only at Nagpur and Manmand and absorbed
the Security Guards working at Nagpur and Manmad, but
at Akola, Amravati, Wardha and Gondia districts, the
contract labour system was continued by the management,
with an intention to deprive him from the benefits under
the labour laws.
It is further pleased by the workman that his salary
was paid by the Party No.1 and not by the contractor and
his daily attendance was also marked by the Asstt.
Manager of FCI, Wardha, Depot and the Party No.1 was
supervising his work through their officers and he had no
relation with the so called contractors engaged by the Party
No.1 and Party No.1 also supplied the articles, such as,
torch, lathi, whistle and uniform etc. to him and in view of
the long spell of work being carried out by him, he is entitled
to be reinstated in service with continuity and full back
wages.
3. The Party No.1 in their written statement have
pleaded inter alia that the workman was never in their
employment and the workman has not impleded the
contractor, who appointed him, as a Party and the workman
was engaged by the contractor as a Security Guard at FCI
Depot and the said contractor is a necessary party and in
absence of the contractor, the proceeding cannot proceed
and the workman was not in their service uninterruptedly
till 14th March, 1999 and since the contract of the contractor
came to an end, the services of the workman were terminated
by the contractor and the original period of contract given
to the contractor for providing Security services was up to
1998 and the same was extended as per the terms and
conditions till March, 1999 and as the workman was not
employed by them, there was no question of following the
procedure of termination by them and they were not the
employer of the workman and the services of the workman
were never utilized by them as employer from 01.06.1992 to
14.03.1999, without any break in service and the workman
did not complete 240 days of work in a year as alleged and
as the workman was engaged by the Security Contractor,
there was no relationship of master and servant between
them and the workman at any point of time and under
section 10 of the Contract Labour (Regularisation and
Abolition) Act, they were exempted by the Central
Government, so the allegations made by the workman
2478
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(27-51)
against them are not true and there was no question of
violation of the provisions of 25 (H) of the Act and the
work does not constantly exist and the work of providing
security guards was given to other Government Agencies
like Police Personnel and Home guards and therefore, the
workman has no right to claim any relief from them and the
work of security is not perennial in nature and as and when
their godowns are filled with foodgrains, then only, services
of the security guards are required and in pursuance of the
notification issued by the Central Government abolishing
contract labour system, they appointed Home guards and
Police personnel as security guards.
The further case of Party No.1 is that for the relief as
claimed, by the workman had filed a writ petition before the
Hon'ble High Court, Nagpur Bench bearing W.P. No. 1389/
99 and the Hon'ble High Court rejected the said WP and
denied the relief prayed for and therefore, this Tribunal has
no jurisdiction to decide the reference and the decision of
the Hon'ble Court operates as res-judicata and they floated
tenders for the contract and lowest bidder was awarded
the contract and the change of contractor in every two
years was not on papers only and they had no say in the
appointment of security guards by the security contractor
and they had no control over the appointment and service
conditions of the workman, who was an employee of the
security agency and he was never their employee and the
security contractor was the employer of the workman.
The further case of Party No.1 is that the appropriate
government decided to abolish the employment of the
contract labour as contemplated under section 10 of the
Contract Labour (Regularisation and Abolition) Act, 1970
and the interpretation of the notification issued on
01.11.1990 put by the workman is not correct and they were
exempted from the operation of the Act of 1970 in the year
1989 and the said exemption was withdrawn in the year
1999 and therefore, the security contact given to the
contractor was terminated and hence, the services of the
workman were terminated by the security contractor and
they did not pay the salary to the workman and it was the
contractor, who was paying the same to the workman and
when the contractor failed to pay the salary to the workman,
they paid the amount as per the directions given by the
ALC from time to time and the said amount was recovered
from the contract's bill and they only used to check the
attendance of the security guards to find out as to whether
the contractor had made arrangement of the requisite
number of security guards, as per their requirement and
they did not have the power to terminate any employee
appointed by the contractor and they did not provide any
article, such as torch, Lathi, whistle and uniform etc to the
workman and as such, the workman is not entitled to any
relief.
4. Both parties have led oral evidence in support of
their respective claims, besides placing reliance on
documentary evidence.
The workman in support of his claim has examined
himself as a witness. In his evidence, which is on affidavit,
the workman has reiterated the facts mentioned in the
statement of claim.
5. In his cross-examination, the workman has admitted
that his original appointment was through contractor and
he has not filed any document showing payment of salary
to him by the F.C.I..
6. One Shri Mohan Govindrao Temburne has been
examined as a witness on behalf of the Party No. 1. This
witness has also reiterated the facts mentioned in the written
statement, in his examination-in-chief, which is on affidavit.
In his cross-examination, this witness has admitted the
suggestions that contract for supply of security guards
was given to Singh Security services for two years and
subsequently, the contract of Singh Security was extended
till 15.12.1996 and contract for supply of security guards
was given to M/S Chaitanya Security and Investigation
Services, Amaravati from January, !992 to May, 1992 and
to M/S Security Services Intelligence Bureau, Thane from
01.06.1992 to 31.03. 1993 and to M/S Industrial Security
and Fire Services from 16.12.1996 to 15.12.1998 by FCI. The
witness has also admitted that inspite of change of
contractors, the workman worked continuously in FCI from
01.06.1992 to 14.03.1999. This witness has also admitted
the suggestion that on 14.03.1999, the contract of M/S
Industrial Security and Fire Services was expired. In his
cross-examination, this witness has further admitted that
the concerned officers of the FCI were issuing necessary
directions to the workman and other security guards
regarding the place and time of their performing duties and
the security guards posted at the gate of the Depot of FCI
were keeping accounts in a register. regarding the number
of incoming and out- going vehicles to and from the depot
respectively and home guards and police personnel of the
state were engaged for watch and ward purpose of the
depot, after the disengagement of the workman and other
security guards and the work of watch and ward is a
continuous process in the FCI and the same is of perennial
in nature. This witness has further stated that the
contractors engaged by FCI were paying the wages to the
security guards deployed by them.
7. At the time of argument, it was submitted by the
union representative for the workman that the workman
was engaged by the management of FCI on 01.06.1992 at
Gondia depot as a security guard and he worked
continuously without any interruption till 14th March,1999
and his services were terminated orally by the Party No.1,
without following the due procedure of law and the workman
had completed more than 240 days of work in each year
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2479
Server3/E/1250RR/1250RR(27-51)
and before termination of the services of the workman,
neither one month's notice nor one month's wages in lieu
of notice nor retrenchment compensation was given to the
workman, as required under section 25-F of the Act and
after termination of the services of the workman, fresh hands
were engaged by Party No.1 to extract the duties of security
guard, in violation of the provision of section 25-H of the
Act and the work of security guard is perennial in nature,
hence the termination of the workman is void and illegal.
It was further submitted by the union representative
for the workman that the Party No.1 had shown the workman
as contract labour, but the so called contract was made
only on papers and the workman was actually working
under the direct control and supervision of the Party No.1
and he was never a contract labour and such action of the
Party No.1 was sham and only a camouflage to deny the
legitimate claim of the workman and the so called contract
between the management and the contractor was bogus
and not genuine and the Central Government by
notification dated 01.11.1990 abolished the employment of
contract labour and directed to give employment to contract
labours engaged by the management and therefore, the
management of FCI was bound to abolish the contract
labour system and to give employment to the workman.
It was further submitted by the union representative
that on 29.06.2007, an application was filed by the workman
for production of nine documents relating to him, from
which, it could have been held without any doubt that the
workman was an employee of the Party No.1 and not a
contract labour and after hearing the Parties, the Tribunal
by order dated 30.05.2008 directed the Party No.1 to produce
the documents, but inspite of the order passed by the
Tribunal for production of documents, the Party No. 1 failed
to produce the documents and as such, adverse inference
is to be drawn against the Party No.l.
In support of such contentions, reliance was placed
by the union representative on the decisions reported in
2005 ICLR-254 (Statesman Ltd. Anr. Vs. Eight Industrial
Tribunal, West Bengal ors.) and 2004 (103) FLR-187
(Municipal Corporation, Faridabad and Shri Niwas).
It was also submitted by the union representative
that neither the Party No.1 nor the so called contractors
engaged by the Party No.1 were registered with the Regional
Labour Commissioner as per rules to engage contract
labours and infact the so called contractors were mediators
and not contractors and even though there was legal ban
on engagement of contract labourers, the Party No.1
engaged the workman and some others as security guards
and from the pleadings of the parties, the evidence on
record and the admission of the witness examined on behalf
of the Party No. 1 that from the date of his initial engagement
the workman worked till 14.03.1999 clearly show that the
workman was the employee of the Party No.1 and the party
No.1 is the real employer and there was master and servant
relationship between the Party No.1 and the workman and
the so called contract given to the contractor expired on
31.12.1998 and though Party No.1 unilaterally extended the
contract, the contractor did not accept the same and without
any contractor, the workman continued the work with party
No.1 till 14.03.1999 and the Party No.1 paid the wages from
01.01.1999 to 14.03.1999 to the workman and such facts
also prove that the workman was the employee of Party
No.1 and it was Party No.1, who terminated the services of
the workman without compliance of the mandatory
provisions of section 25- F of the Act. In support of the
submissions, the union representative placed reliance on
the decisions reported in 1994 II CLR-402 (R.K. Panda Vs.
Steel Authority), 2003 (98) FLR-826 (M/s. Bharat Heavy
Electricals Ltd. Vs. State of UP) and 2011 (128) FLR-99
(Mahesh Kumar Sharma Vs. D.F.O., General Forest Division,
Sheopur).
It was also submitted by the union representative
for the workman that Party No.1 has admitted the claims
made by the workman and has not been able to prove their
claim that the workman was a contract labour, by producing
cogent evidence in support of the same and as such, the
workman is entitled for reinstatement in service with
continuity and full back wages.
8. Per contra, it was submitted by the learned advocate
for the Party No.1 that the workman was never appointed
by Party No.1 and he has engaged by the contractor as a
security guard and as such, the concerned contractor is a
necessary party and inspite of raising such objection in
the written statement, the workman did not implead the
contractor as a party and for that the reference is not
maintainable. It was further submitted by the learned
advocate for the Party No.1 that the workman was engaged
by the contractor and as the contract of the contractor
came to an end in March, 1999, the services of the workman
were terminated by the contractor and as such, there was
no question of Party No.1 complying with the due procedure
of termination and there was no relationship of master and
servant between the Party No.1 and the workman and the
Party No.1 was exempted by the Central Government from
the ban imposed for engagement of contract labourers, so
contract was given to the security contractor, as per rules,
for supply of security guards and due to the notification of
the Government for abolition of contract labour system,
Home guards and Police personnel were appointed as
security guards and Party No.1 has no control over the
workman and the security contractor was submitting bills
for payment for supply of security guards and the security
contractor was paying the wages to the workman. It was
further submitted by the learned advocate for the Party
No.1 that the workman and some others had approached
the Hon'ble High Court, Nagpur Bench in W.P. 1389 of 1999
for the reliefs sought in this reference and the Honble High
Court while depositing of the said petition have held that
the termination of the workman by the contractor was a
2480
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(27-51)
valid one and the action of FCI was legal and as such, the
workman cannot agitate the question again and the decision
of the Hon'ble High Court operates as res-judicata between
the parties and the workman is not entitled to any relief.
In the alternative, it was submitted by the learned
advocate for the Party No.1 that the party no.1 is a "State"
as per the provisions of Article 12 of the Constitution of
India and it has a set Rules for appointment of its employees
and it is clear that the workman was never engaged by
Party No.1 as per the Rules of appointment and no evidence
has been adduced by the workman to prove that he had
worked for 240 days with Party No.1 in the preceding 12
calendar months of the date of the alleged termination and
as such, there was no question of compliance of section
25-F or 25-H of the Act and the workman is not entitled to
any relief.
In support of such contentions, the learned
advocates for the Party No.1 placed reliance on the
decisions of the Hon'ble Apex Court reported in Appeal
(Civil) 7038/2002 (M/s. Essen Deinki Vs. Rajiv Kumar),
Appeal (Civil) 6303-6316 of 2003 (Manager, RBI, Bangalore
Vs. S. Mani), Appeal (Civil)-6511 of 2005 (Surendranagar
District Panchayat Vs. Dayachai Amar Singh), Appeal (Civil)
3639/2006 (Krishna Bhagaya Jala Nigam Vs. Md. Raffi) and
Appeal (Civil) 2969/2004 (Rajsthan State Gangasagar Mills
Ltd. Vs. State of Rajasthan).
9. First of all, I will take up the submission made by
learned advocate for the Party No.1 that the present.
reference is hit by the principles of res-judicata, due to the
decision of the Honble High Court, Nagpur Bench in W.P.
1389/99.
It is not disputed that the workman along with 78
others through the union, "Rashtriya Mazdoor Sena
Saptahit Jaibhim" had filed Writ Petition No. 1389/99 before
the Hon'ble High Court of Judicature at Bombay, Nagpur
Bench, Nagpur, for their regularisation and the Hon'ble
High Court did not grant such relief. On perusal of the
order passed by the Honble High Court on 29.07.2002 in
the said writ petition, it is found that the workman and
others claimed regularisation on the ground that they were
employed by the contractor for doing regular work of the
Food Corporation of India and in view of the same, they
have become workmen of Food Corporation of India, since
the work on which they were employed is of perennial
nature. However, it is found from the judgment that the
Honble High Court did not consider the main relief and
passed the following order:
"In view of the judgment of the Constitution Bench
in Steel Authority of India Ltd. and others Vs.
National Union water front workers and others
[reported in 2001 (7) SCC1], the relief sought by the
petitioners cannot be granted since the petition
involves disputed question of facts as also other
facts which are required to be adjudicated by
appropriate authority. Accordingly, the main prayer
to absorb them cannot be granted.
*
*
*
*
*
In view of the rejection of the main prayer, the question
of granting other prayer does not arise. In case, the
petitioners approach the appropriate authority, the
appropriate authority shall take decision in the matter
within a period of one year. The applicants are free to
approach the appropriate authority for redressal of
their grievances."
So, it is clear from the orders passed by the Hon'ble
High Court as mentioned above that the Honble High Court
did not consider the claim made by the workman and others
on merit and granted them the liberty to approach the
appropriate authority for redress. Hence, the reference
cannot be said to be hit by the principles of res-judicata.
So, there is no force in the contention raised by the learned
advocate for the party No. 1.
10. In this reference, it is never the case of the
workman that he was directly appointed or engaged by the
Party No.1 as a security guard. In the very beginning of the
statement of claim, it has been mentioned by the workman
that he was initially engaged at Food Corporation of India
Depot, Gondia as a security guard, through a contractor. In
paragraph 4 of the statement of claim, the workman has
mentioned that, "In the year 1992, he was engaged by the
Food Corporation of India through contractor, for a period
of 2 years, but the contract was made on paper." The case
of the workman is that after every two years, the Party No.1
on papers showed the change of contractors, but he was
not disturbed from services and he worked continuously
without any break till 14.03.1999 and as he worked as a
security guard of perennial nature, he is entitled for
reinstatement in service. The workman has also claimed
that as the Central Government issued notification on
01.11.1990 to abolish the contract labour system in FCI and
directed to give employment to contract labours engaged
by the management and Party No.1 implemented such
direction at Nagpur and Manmad only and gave
employment and regularized and absorbed the services of
the Security Guards working at Nagpur and Manmad and
did not implement the same at Wardha and other places to
deprive him from the benefits under the Labour Laws.
In his evidence on affidavit also, the workman has
mentioned that he was initially engaged in Food
Corporation of India as a security guard through a
contractor.
From the evidence on record and the own admission
of the workman in the cross-examination including the
specific admission that he was engaged by the contractor
and the contractor left him to FCI and he was appointed
through Singh Securities Services, it is clear that the
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2481
Server3/E/1250RR/1250RR(27-51)
workman was engaged by the contractor. The workman
has not produced any evidence to show that he was
directly engaged by the Party No. 1.
11. At this juncture, I think it apropos to mention
about the principles enunciated by the Hon'ble Apex Court
regarding contract labours, in the decision reported in 1994
II CLR-402 (Supra), on which reliance is placed by the union
representative and the two decisions reported in 1985-II
LLJ-4 (S.C.) (The workman of the Food Corporation of India
Vs. M/s. Food Corporation of India) and 2001 LAB IC 3656
(S.C.) (Steel Authority of India Ltd. and others Vs. National
Union Water Front Workers and others).
In the decision reported in 1994-II CLR-402 (supra)
the Honble Apex Court have held that:—
2. With the industrial growth, the relation between
the employer and the employees also has taken a new turn.
At one time the establishment being the employer all
persons working therein were the employees of such
employer. But slowly the employer including Central and
State Governments started entrusting many of the jobs to
contractors. Contractors in their turn employed a worker,
who has no direct relationship with the establishment in
which they were employed. Many contractors exploited
the labourers engaged by them in various manners
including the payment of low wages. Hence, the Contract
Labour (Regulation and Abolition) Act, 1970 was enacted
to regulate the employment of contract labour in certain
establishment and to provide for its abolition in certain
circumstances and for matters connected therewith.
3. The "Contract Labour" has been defined in Section
2 (1) (b) to mean a workman, who has been employed as
contract labour in or in connection with the work of an
establishment when he is hired in or in connection with
such work by or through a contractor, with or without the
knowledge of the principal employer. Section 2 (1) (c)
defines "Contractor" to mean a person who undertakes to
produce a given result for the establishment, other than a
mere supply of goods or articles of manufacture to such
establishment, through• contract labour or who supplies
contract labour for any work of the establishment and
includes a sub contractor. "Principal employer" has been
defined to mean (i) in relation to any office or department
of the Government or a local authority, the head of that
office or department or such other officer as the
government or the local authority, as the case may be, may
specify in this behalf and (ii) in a factory, the owner or
occupier of the factory. In view of section 10, of 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," Sub-section (2) of Section 10 requires
that before issuing any such notification, in relation to an
establishments, the appropriate Government shall have
regard to the conditions of work and benefits provided for
the contract labour in that establishment and other relevant
factars. One of the relevant factors, which is to be taken
into consideration is whether the work performed by the
contract labourers is of perennial nature. Section 12 enjoins
that no contractor to whom this Act is applicable shall
undertake or execute any work through contract labour
except under and in accordance with a license issued in
that behalf by the licensing authority. The license so issued
may contain conditions in respect of hours of work, fixation
of wages and other essential amenities in respect of contract
labour as the appropriate Government may deem fit to
impose in accordance with rules. Section 20 provides that
if any amenity required to be provided under section 16,
section 17, section 18, or section 19 for the benefit of the
contract labour employed in an establishment, is not
provided by the contractor within the time prescribed by
the contractor within the time prescribed therefore, such
amenity shall be provided by the principal employer within
such time as may be prescribed and all expensed incurred
by the principal employer in providing the amenity may be
recovered by the principal employer from the contractor
"either by deduction from any amount payable to the
contractor under any contract or as a debt payable by the
contractor". Section 21 says that a contractor shall be
responsible for the payment of wages to each worker
employed by him as contract labour but at the same time in
order to protect the interest of such contract labour, it
requires every principal employer to nominate a
representative duly authorized by him to be present at the
time of disbursement of wages by the contractor. It shall be
the duty of the contractor to ensure the disbursement of
wages in the presence of the authorized representative of
the principal employer. Because of sub-section (4) of
section 21, if the contractor fails to make payment of wages
within the prescribed period, then the principal employer
shall be liable to make payment of wages in full to the
contact labour employed by the contractor and recover
the amount so paid from the contractor. Any contravention
of the provisions aforesaid has been made penal for which
punishment can be imposed.
4. From the provisions referred to above, it is apparent
that the framers of the Act have allowed and recognized
contract labour and they have never purported to abolish
it in its entirety. The primary object appears to be that there
should not be any exploitation of the contract labourers by
the contractor or the establishment. For achieving that
object, statutory restrictions and responsibilities have been
imposed on the contractor as well as on the principal
employer. Of course if any expenses are incurred for
providing any amenity to the contract labourers or towards
the payment of wages by the principle employer he is
entitled to deduct the same from the bill of the contractor.
The Act also conceives that all appropriate government
may after consultation with the central board or the state
2482
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(27-51)
board, as the case may be, prohibit by notification in official
gazette, employment of contract labour in any process,
operation or other work in any establishment, taking all
facts and circumstances of employment of contract labour
in such process, operation or the work into consideration.
5. Of late a trained amongst the contract labourers is
discernible that after having work for some years, they
make a claim that they should be absorbed by the principal
employer and be treated as employees of the principal
employer especially when the principal employer is the
central government or the state government or an authority
which can be held to be state within the meaning of Article
12 of the constitution, although no right flows from the
provisions of the act for the contract labourers to be
absorbed or to become the employees of the principal
employer. This court in the case of Gammon India Limited
Vs. Union of India (1974) I SCC 596, pointed out the object
and scope of the act as follows:—
"The Act was passed to prevail the exploitation of
contract labour and also to introduce better condition
of work. The Act provides for regulation and abolition
of contract labour. The underline policy of the Act is
to abolish contract labour, wherever possible and
practicable and where it cannot be abolished to
altogether, the policy of the Act is that the working
conditions of the contract labour should be so
regulated as to ensure payment of wages and
provisions of essential amenities. This is why the
Act provides for regulated conditions of work and
contemplates progressive abolition to the extent
contemplated by Section 10 of the Act."
In the case of B.H.E.L. Workers' Association V. Union
of India, 1985 I CLR SC 165 = (1985) I SCC 630 it was
pointed out that Parliament has not abolished the contract
labour as such but has provided for its abolition by the
Central Government in appropriate cases under section 10
of the Act. It is not for the court to enquire into the question
and to decide whether the employment of contract labour
in any process, operation or other work in any establishment
should be abolished or not. That has to be decided by the
government after considering the relevant aspects as
required by Section 10 of the Act. Again in the case of
Mathura Refinery Mazdoor Sangh Vs. Indian Oil
Corporation Ltd., 1991 I CLR 684, this court refused to
direct the Indian Oil Corporation Ltd., to absorb the contract
labourers in its employment saying that, the contract
labourers have not been found to have direct connection
with the refinery. In other words, there was no relationship
of employer and employee between the Indian Oil
Corporation Ltd. and the contract labourers concerned.
Again in Dena Nath Vs. National Fertilizers Ltd., 1992 I
CLR 1, this court pointed out that the aforesaid Act has
two purposes to serve (i) to regulate the conditions of
service of the worker employed by the contractor who is
engaged by a principal employer, and (ii) to provide for the
abolition of contract labour altogether, in certain notified
processes, operation or other works in any establishment
by the appropriate government, under section 10 of the
Act. It was further stated that neither the Act nor the Rules
framed by the Central Government or by any appropriate
government provide that upon abolition of contract labour,
the labourers would be directly absorbed by the principal
employer.
6. It is true that with passage of time and purely with
a view to safeguard the interests of workers, many principal
employers while renewing the contracts have been insisting
that the contractor or the new contractor retains the old
employees. Infact such a condition is incorporated in the
contract itself. However, such a clause in the contract which
is benevolently inserted in the contract to protect the
continuance of the source of livelihood of the contract
labour cannot by itself give rise to a right to regularization
in the employment of the principal employer. Whether the
contract labourers have become the employees of the
principal employer in course of time and on whether the
engagement and employment of labourers through a
contractor is a mere camouflage and a smoke screen, as
has been urged in this case, is a question of fact is to be
established by the contract labourers on the basis of the
requisite material. It is not possible for High Court or this
court, while exercising writ jurisdiction or jurisdiction under
Article 136 to decide such questions only on the basis of
the affidavits. It need not to be pointed out that in all such
cases, the labourers are initially employed and engaged by
the contractors. As such at what point of time a direct link
is established between the contract labourers and the
principal employer, eliminating the contractor from the
scene, is a matter which has to be established on material
produced before the court. Normally, the Labour Court and
the Industrial Tribunal, under the Industrial Disputes Act
are the Competent Fora to adjudicate such disputes on the
basis of the oral and documentary evidence produced
before them."
12. In the decision reported in 1985-II LLOJ-4 (supra)
the Hon'ble Apex Court have held that:—
"Briefly stated, when corporation engaged a
contractor for handling foodgrain at Siliguri Depot,
the corporation had nothing to do with the manner
of handling work done by the contractor, the labour
force employed by him, payments made by him etc.
In such a fact situation, there was no privity of
contract of employer and workmen between the
corporation and the workmen. "Workmen" has been
defined (omitting the words not necessary) in the
Industrial Disputes Act to mean (any person
including an apprentice) employed in any industry
to do...... " 'The expression' employed has at least
two known connotations, but as used in the
definition, the context would indicate that it is used
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2483
Server3/E/1250RR/1250RR(27-51)
in the sense of a relationship brought about by
express or implied contract of service in which the
employee renders service for which he is engaged
by the employer and the latter agrees to pay him in
cash or kind as agreed between them or statutorily
prescribed. It discloses a relationship of command
and obedience. The essential condition of a person
being a workman within the terms of the definition is
that he should be employed to do the work in that
industry and that there should be, in other words, an
employment of his by the employer and that there
should be a relationship between the employer and
employee or master and servant unless a person is
thus employed there can be no question of his being
a "workman" within the definition of the term as
contained in the Act.
Dharangadhara Chemical Works Ltd. Vs. State of
Saurashtra (1957 - I - LLJ - 477). Now where a
contractor employs a workman to do the work which
he contracted with a third person to accomplish on
the definition as it stands, the workman of the
contractor would not without something more
become the workman of that third person. Therefore,
when the workmen employed by the contractor were
certainly not the workmen of the corporation and no
claim to that effect has been made by the union."
13. In the decision reported in 2001 LAB IC - 3656
(supra) the Hon'ble Apex Court have held that:—
"The principle that a beneficial legislation needs to
be constructed liberally in favour of the class for
whose benefit it is intended, does not extend to
reading in the provisions of the Act what the
legislature has not provided whether expressly or by
necessary implication, or substituting remedy or
benefits for that provided by the legislature. The
intendment of the CLRA Act is to regulate the
conditions of service of the contract labour and to
authorize in Section 10(1) prohibition of contract
labour system by the appropriate Government on
consideration of factors enumerated in sub-section (2)
of Section 10 of the Act among other relevant factors.
But, the presence of some or all those factors, provide
no ground for absorption of contract labour on
issuing notification under Section 10(1) by the
appropriate Government, is not alluded to either in
Section 10 or at any other place in the Act and 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
the Supreme 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 it absorption of contract labour
in the establishment of principal employer or a lesser
or a 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.
Thus on issuance of prohibition notification under
S. 10(1) of the CLRA Act prohibiting employment of contract
labour or otherwise, in an industrial dispute brought before
it by any contract 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 legislations so as to deprive the workers of the
benefit there under. 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 concerned establishment. If
the contract is found to be genuine and the principal
employer intends to employ regular workmen he shall give
preference to the erstwhile contract labour. It otherwise
found suitable, and, if necessary, by relaxing the condition
as to maximum age appropriately taking into consideration
the age of the workers at the time of their initial employment
by the contractor and also relaxing the condition as to
academic qualifications other than technical qualifications.
Air India's case 1997 AIR SCW430 Overruled
prospectively. M.A.T. Nos. 1704 and 1705 of 1999, D/-12-8-
1999 (Cal): C.O. No. 6545(W) if 1996, D/9-5-1997(Cal): W.A.
Nos. 345-354 of 1997m D/ - 17-4-1998 (Kant): W.P. No. 4050
of 1999, D/ - 2-8-2000 (Bom) and W.P. No. 2616 of 1999,
D/ - 23-12-1999 (Bom), 1998 Lab IC 2571 (Cal), Reversed.
It cannot be said that by virtue of engagement of
contract labour by the contractor in any work of or in
connection with the work of an establishment, the
relationship of master and servant is created between
the principal employer and the contract labour. Even
a combined reading of the definition of the terms
"Contract labour", "Establishment" and "Workman"
does not show that the legal relationship between
the person employed in any industry and the owner
of the industry is created irrespective of the fact as
to who has brought about such relationship. The
word "Workman" is defined in wide terms. It is a
generic term of which contract labour is a species. It
is true that combined reading of the terms
"Establishment" and "Workman" shows that a
workman engaged in any establishment would have
direct relationship with the principal employer as a
servant of master. But what is true of a workman
could not be correct of contract labour. When the
2484
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(27-51)
provisions of the Act neither contemplate creation
of direct relationship of master and servant between
the principal employer and the contract labour nor
can such relationship be implied from the provisions
of the action issuing notification under Section 10(1)
of the CLRA Act. A fortiori much less can such a
relationship be found to exist from the rules and the
forms made there under."
So, keeping in view the principles enunciated by the
Hon'ble Apex Court in the decisions mentioned above, the
present case in hand is to be considered.
14. So far the contention raised by the union
representative regarding drawing of adverse inference
against the Party No.1 for non-production of documents
as ordered by the Tribunal on the application of the
workman is concerned, it is to be mentioned that it is
admitted by the workman that he was engaged through the
contractor in F.C.I. and due his such engagement, it was
quite natural for the Party No.1 to direct him to perform
different duties as a security guard and to see that duties
entrusted to him were done properly. Moreover, the Party
no.1 have produced number of documents to show that
the workman was a contract labour and payment of wages
to him was made by the contractors. Hence, for non-
production of the documents by Party No.1, there is no
need to draw any adverse inference. As the facts and
circumstances of the case in hand are quite different from
the facts and circumstances of the cases referred in the
decisions by the Hon'ble Courts, on which reliance has
been placed by the union representative, with respect, I am
of the view that the said decisions have no clear application
of this case.
15. So far the contention raised by the union
representative regarding the non-registration of the Party
No.1 or the contractors with the Regional Labour
Commissioner as per Rules is concerned, it is to be
mentioned that such a plea has neither been taken in the
statement of claim nor any thing has been stated in that
regard in the evidence of the workman. In absence of such
pleading, the contention cannot be entertained. Moreover,
it is clear from the pleadings of the parties and the evidence
on record and the specific suggestions given to the witness
examined on behalf of the Party No.1 in his cross-
examination that contract for supply of security guards
was given by Party No.1 to different contractors from
01.03.1989 till 14.03.1999.
Moreover, for the sake of argument, even if, it is held
that the Party No.1 had engaged the workman and others
as contract labourers in violation of the provisions of the
Contract Labour (Regulations and Abolition) Act, 1976,
then the persons responsible for such violation are liable
for criminal prosecution, but such violation of the
provisions of the above said Act, does not confer any
right on the workman to claim regularisation in service.
16. In this case, the letter No. U-23013/11/89/LW dated
28.05.92, Govt. of India, Ministry of Labour shows that the
prohibition of employment of contract labour in sweeping,
cleaning, dusting and watching of buildings owned or
occupied by the establishments of Food Corporation of
India and some other departments was lifted by the Central
Government. So, the engagement of contract labour by the
Party No. 1 cannot be said to be illegal. It is also found from
the materials on record that the appointment of labour
contractor by Party No. 1 for supply of Security Guards
was genuine and the same was not only on papers as claimed
by the workman. The workman has failed to prove such
claim by adducing cogent or reliable evidence. The
engagement of labour contractor by Party No. 1 was not a
mere ruse or camouflage to evade compliance of the various
beneficial legislations, so as to deprive the workman of the
benefits there under. The workman has not been able to
produce any document to show that at any point of time,
Party No. 1 paid his wages as their employee. It is clear
from the evidence that Party No. 1 paid wages of the last
three months to the workman in presence of the Labour
Commissioner, as the contractor did not pay the same. As
it is clear from the evidence on record that the workman
was engaged as a contract labour with Party No. 1, by the
contractor and as such, it can be held that there was no
relationship of master and servant between the Party No. 1
and the workman. Hence, there was no question of
termination of the services by the Party No. 1 or compliance
of the provisions of Sections 25-F or 25-H of the Act.
In view of the facts and circumstances of the case as
mentioned above, which are quite different from the facts
and the circumstances of the cases referred in the decisions,
on which reliance is placed by the union representative,
with respect, I am of the view that the said decisions have
no clear application to the present case in hand.
17. It is the own case of the workman that he was
engaged by the contractor. So the contractor, who had
engaged the workman is a necessary party in the reference.
The said contractor has not been added as a party in this
reference. Due to non-joinder of necessary party, the
reference is bad in law.
In view of the materials on record and the discussions
made above and applying the principles enunciated by the
Hon'ble Apex Court in the three decisions mentioned above,
the reference cannot be answered in favour of the workman.
Hence, it is ordered:—
ORDER
The reference is answered in the negative. The
workman is not entitled to any relief.
J.P.CHAND, Presiding Officer
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2485
Server3/E/1250RR/1250RR(27-51)
ubZ fnYyh] 15 ekpZ] 2013
dkñvkñ 867-
—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,Qñ lhñ vkbZñ
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 ukxiqj ds iapkV ¼vkbZMh la[;k 284@2003½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 15@03@2013 dks izkIr gqvk FkkA
[lañ ,y&22012@227@2003&vkbZ vkj ¼lh ,e&II½]
chñ,eñ iVuk;d] MsLd vf/kdkjh
New Delhi, the 15th March, 2013
S.O. 867.—In pursunace of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref. 284/2003 of
the Cent. Govt. Indus. Tribunal-cum-Labour Court,
NAGPUR as shown in the Annexure, in the industrial
dispute between the management of Food Corporation of
India, and their workmen, received by the Central
Government on 15/03/2013
[No-L-22012/227/2003-IR(CM-II)
B.M. PATNAIK, Desk Officer
ANNEXURE
BEFORE SHRI J.P. CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No. CGIT/NGP/284/2003
Date: 07-03-2013.
Party No. 1(a)
:
The District Manager.
Food Corporation of India,
Ajani, Nagpur ,
Nagpur, 440015.
Party No.1(b)
:
The Senior Regional Manager,
Food Corporation of India,
Mistry Bhawan, Dinshaw Wacha
Road, Churchgatye
Mumbai - 400020.
Versus
Party No. 2
:
The Secretary,
Rashtriya Mazdoor Sena, Hind Nagar
Ward No. 2, Near Boduha Vihar,
Post: Wardha, Distt, Wardha (M.S.)
AWARD
(Dated: 7th March, 2013)
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 Food Corporation of India and their
workman, Shri Arvind Namdeorao Barbudhe, for
adjudication, as per letter No. L-22012/227/2003-IR (CM-II)
dated 08.12.2003, with the following schedule:—
"Whether the action of the management of Food
Corporation of India, Nagpur (M.S.) in terminating
the services of Shri Arvind Namdeorao Barbudhe,
Security Guard w.e.f. 14.03.1999 is legal and justified?
If not, to what relief the concerned 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 Arvind
Namdeorao Barbudhe ("the workman" in short), filed the
statement of claim and the management of Food Corporation
of India ("Party No. 1" in short) filed their written statement.
The case of the workman as presented in the
statement of claim is that he was in the employment of
Party No. 1 from 23.01.1992 and he was initially engaged
through a contractor at Gondia Depot of Party No. 1, as a
Security Guard and he was in continuous service without
any interruption till 14th March, 1999, when his services
were terminated orally by Party No. 1, without following
the due procedure of law and he had completed more than
240 days of work in each year and the termination of his
services on 14.03.1999 was not in good faith, but in
colourable exercise of the rights and powers by the Party
No. 1 and while terminating his services, neither one
month's notice nor one month's wages in lieu of notice nor
retrenchment compensation was given to him as required
under Section 25-F of the Act and after his illegal
termination, fresh hands from the department of home guard
and police were engaged by Party No. 1 to extract the duties
of Security Guards, in violation of the provision of Section
25-H of the Act and the work which he was performing is
constantly in existence and the same is of a perennial nature
and as his termination is illegal and unlawful, he is entitled
for reinstatement in service with continuity and fullback
wages.
The further case of the workman is that is 1992, he
was engaged by the Party No. 1 through the contractor for
a period of two years, but the contract was made only on
papers and after every two years, the Party No. 1 changed
the contractor on papers only and the engagement of the
so-called contractor did not replace the Security Guards
and he was also not disturbed from his services and he
was merely shown to be engaged by the contractors, but
actually, he was working under the direct control and
supervision of the Party No. 1 and the contractor had no
role to play in the same and the work performed by him was
being assigned to him by Party No. 1 and he was a regular
employee of Party No. 1 and Party No. 1 was his real
employer and not the contractor as alleged and the
engagement and change of contactors by Party No. 1 from
time to time was sham and only a camouflage to deny his
legitimate claim and the contract between Party No. 1 and
2486
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(27-51)
the contractor was bogus and not genuine and therefore,
his oral termination from services was against the
mandatory provisions of the Act and the Central
Government decided to abolish the appointment of contract
labour as contemplated under Section 10 of the Contract
Labour (Regulation and Abolition) Act, 1970 and issued
notification on 01.11.1990 with directions to abolish the
contract labour system in the establishment of the Party
No. 1 and to give employment to contract labours engaged
by the management and therefore, it was the mandatory
duty of the Party No. 1 to abolish the contract labour system
in all places and management of FCI implemented the
notification only at Nagpur and Manmad and absorbed
the Security Guards working at Nagpur and Manmad, but
at Akola, Amravati, Wardha and Gondia districts, the
contract labour system was continued by the management,
with an intention to deprive him from the benefits under
the labour laws.
It is further pleaded by the workman that his salary
was paid by the Party No. 1 and not by the contractor and
his daily attendance was also marked by the Asstt.
Manager of FCI, Wardha Depot and the Party No. 1 was
supervising his work through their officers and he had no
relation with the so called contractors engaged by the Party
No. 1 and Party No. 1 also supplied the articles, such as,
torch, lathi, whistle and uniform etc. to him and in view of
the long spell of work being carried out by him, he is entitled
to be reinstated in service with continuity and full back
wages.
3. The Party No. 1 in their written statement have
pleaded inter alia that the workman was never in their
employment and the workman has not impleded the
contractor, who appointed him, as a Party and the workman
was engaged by the contractor as a Security Guard at FCI
Depot and the said contractor is a necessary party and in
absence of the contractor, the proceeding cannot proceed
and the workman was not in their service uninterruptedly
till 14th March, 1999 and since the contract of the contractor
came to an end, the services of the workman were terminated
by the contractor and the original period of contract given
to the contractor for providing Security services was up to
1998 and the same was extended as per the terms and
conditions till March, 1999 and as the workman was not
employed by them, there was no question of following the
procedure of termination by them and they were not the
employer of the workman and the services of the workman
were never utilized by them as employer from 23.01.1992 to
14.03.1999 , without any break in service and the workman
did not complete 240 days of work in a year as alleged and
as the workman was engaged by the Security Contractor,
there was no relationship of master and servant between
them and the workman at any point of time and under
Section 10 of the Contract Labour (Regularisation and
Abolition) Act, they were exempted by the Central
Government, so the allegations made by the workman
against them are not true and there was no question of
violation of the provisions of 25 (H) of the Act and the
work does not constantly exist and the work of providing
security guards was given to other Government Agencies
like Police Personnel and Home guards and therefore, the
workman has no right to claim any relief from them and the
work of security is not perennial in nature and as and when
their godowns are filled with food grains, then only, services
of the security guards are required and in pursuance of the
notification issued by the Central Government abolishing
contract labour system, they appointed Home guards and
Police personnel as security guards.
The further case of Party No. 1 is that for the relief as
claimed, by the workman had filed a writ petition before the
Hon'ble High Court, Nagpur Bench bearing W.P. No. 1389/
99 and the Hon'ble High Court rejected the said WP and
denied the relief prayed for and therefore, this Tribunal has
no jurisdiction to decide the reference and the decision of
the Hon'ble Court operates as res-judicata and they floated
tenders for the contract and lowest bidder was awarded
the contract and the change of contractor in every two
years was not on papers only and they had no say in the
appointment of security guards by the security contractor
and they had no control over the appointment and service
conditions of the workman, who was an employee of the
security agency and he was never their employee and the
security contractor was the employer of the workman.
The further case of Party No.1 is that the appropriate
government decided to abolish the employment of the
contract labour as contemplated under Section 10 of the
Contract Labour (Regularisation and Abolition) Act, 1970
and the interpretation of the notification issued on
01.11.1990 put by the workman is not correct and they were
exempted from the operation of the Act of 1970 in the year
1989 and the said exemption was withdrawn in the year
1999 and therefore, the security contact given to the
contractor was terminated and hence, the services of the
workman were terminated by the security contractor and
they did not pay the salary to the workman and it was the
contractor, who was paying the same to the workman and
when the contractor failed to pay the salary to the workman,
they paid the amount as per the directions given by the
ALC from time to time and the said amount was recovered
from the contract's bill and they only used to check the
attendance of the security guards to find out as to whether
the contractor had made arrangement of the requisite
number of security guards, as per their requirement and they
did not have the power to terminate any employee appointed
by the contractor and they did not provide any article, such
as torch, Lathi, whistle and uniform etc. to the workman and
as such, the workman is not entitled to any relief.
4. Both parties have led oral evidence in support of
their respective claims, besides placing reliance on
documentary evidence.
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2487
Server3/E/1250RR/1250RR(27-51)
The workman in support of his claim has examined
himself as a witness. In his evidence, which is on affidavit
the workman has reiterated the facts mentioned in the
statement of claim.
5. In his cross-examination, the workman has admitted
that his original appointment was through contractor and
he has not filed any document showing payment of salary
to him by the F.C.I
6. One Shri Mohan Govindrao Temburne has been
examined as a witness on behalf of the Party No. 1. This
witness has also reiterated the facts mentioned in the written
statement, in his examination-in-chief, which is on affidavit.
In his cross-examination, this witness has admitted the
suggestions that contract for supply of security guards
was given to Singh Security services for two years and
subsequently, the contract of Singh Security was extended
till 15.12.1996 and contract for supply of security guards
was given to M/S. Chaitanya Security and Investigation
Services, Amaravati from January, 1992 to May, 1992 and
to M/S. Security Services Intelligence Bureau, Thane from
01.06.1992 to 31.03. 1993 and to M/S. Industrial Security
and Fire Services from 16.12.1996 to 15.12.1998 by FCI. The
witness has also admitted that inspite of change of
contractors, the workman worked continuously in FCI from
23.01.1992 to 14.03.1999. This witness has also admitted
the suggestion that on 14.03.1999, the contract of M/S.
Industrial Security and Fire Services was expired. In his
cross-examination, this witness has further admitted that
the concerned officers of the FCI were issuing necessary
directions to the workman and other security guards
regarding the place and time of their performing duties and
the security guards posted at the gate of the Depot of FCI
were keeping accounts in a register regarding the number
of incoming and outgoing vehicles to and from the depot
respectively and home guards and police personnel of the
state were engaged for watch and ward purpose of the
depot, after the disengagement of the workman and other
security guards and the work of watch and ward is a
continuous process in the FCI and the same is of perennial
in nature. This witness has further stated that the
contractors engaged by FCI were paying the wages to the
security guards deployed by them.
7. At the time of argument, it was submitted by the
union representative for the workman that the workman
was engaged by the management of FCI on 23.01.1992 at
Gondia depot as a security guard and he worked
continuously without any interruption till 14th March,1999
and his services were terminated orally by the Party No.1,
without following the due procedure of law and the workman
had completed more than 240 days of work in each year
and before termination of the services of the workman,
neither one month's notice nor one month's wages in lieu
of notice nor retrenchment compensation was given to the
workman, as required under section 25-F of the Act and
after termination of the services of the workman, fresh hands
were engaged by Party No.1 to extract the duties of security
guard, in violation of the provision of section 25-H of the
Act and the work of security guard is perennial in nature,
hence the termination of the workman is void and illegal.
It was further submitted by the union representative
for the workman that the Party No.1 had shown the workman
as contract labour, but the so called contract was made
only on papers and the workman was actually working
under the direct control and supervision of the Party No.1
and he was never a contract labour and such action of the
Party No.1 was sham and only a camouflage to deny the
legitimate claim of the workman and the so called contract
between management and the contractor was bogus and
not genuine and the Central Government by notification
dated 01.11.1990 abolished the employment of contract
labour and directed to give employment to contract labours
engaged by the management and therefore, the management
of FCI was bound to abolish the contract labour system
and to give employment to the workman.
It was further submitted by the union representative
that on 29.06.2007, an application was filed by the workman
for production of nine documents relating to him, from
which, it could have been held without any doubt that the
workman was an employee of the Party No.1 and not a
contract labour and after hearing the parties, the Tribunal
by order dated 30.05.2008 directed the Party No.1 to produce
the documents, but inspite of the order passed by the
Tribunal for production of documents, the Party No.1 failed
to produce the documents and as such, adverse inference
is to be drawn against the Party No. 1 .
In support of such contentions, reliance was placed
by the union representative on the decisions reported in
2005 I-CLR-254 (Statesman Ltd. & Anr. Vs. Eight Industrial
Tribunal, West Bengal & ors.) and 2004 (103) FLR-187
(Municipal Corporation, Faridabad and Shri Niwas).
It was also submitted by the union representative
that neither the Party No.1 nor the so called contractors
engaged by the Party No.1 were registered with the Regional
Labour Commissioner as per rules to engage contract
labours and infact the so called contractors were mediators
and not contractors and even though there was legal ban
on engagement of contract labourers, the Party No.1
engaged the workman and some others as security guards
and from the pleadings of the parties, the evidence on
record and the admission of the witness examined on behalf
of the Party No. 1 that from the date of his initial engagement
the workman worked till 14.03.1999 clearly show that the
workman was the employee of the Party No.1 and the party
No.1 is the real employer and there was master and servant
relationship between the Party No.1 and the workman and
the so called contract given to the contractor expired on
31.12.1998 and though Party No.1 unilaterally extended the
contract, the contractor did not accept the same and without
any contractor, the workman continued the work with Party
2488
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(27-51)
no.1 till 14.03.1999 and the party No.1 paid the wages from
01.01.1999 to 14.03.1999 to the workman and such facts
also prove that the workman was the employee of party
No.1 and it was party No.1, who terminated the services of
the workman without compliance of the mandatory
provisions of section 25-F of the Act. In support of the
submissions, the union representative placed reliance on
the decisions reported in 1994 II CLR-402 (R.K. Panda Vs.
Steel Authority), 2003 (98) FLR-826 (M/ s. Bharat Heavy
Electricals Ltd. Vs. State of UP) and 2011 (128) FLR-99
(Mahesh Kumar Sharma Vs. D.F.O., General Forest Division,
Sheopur).
It was also submitted by the union representative
for the workman that party No.1 has admitted the claims
made by the workman and has not been able to prove their
claim that the workman was a contract labour, by producing
cogent evidence in support of the same and as such, the
workman is entitled for reinstatement in service with
continuity and full back wages.
8. Per contra, it was submitted by the learned advocate
for the party No.1 that the workman was never appointed
by party No.1 and he has engaged by the contractor as a
security guard and as such, the concerned contractor is a
necessary party and inspite of raising such objection in
the written statement, the workman did not implead the
contractor as a party and for that the reference is not
maintainable. It was further submitted by the learned
advocate for the party No.1 that the workman was engaged
by the contractor and as the contract of the contractor
came to an end in March, 1999, the services of the workman
were terminated by the contractor and as such, there was
no question of party No.1 complying with the due procedure
of termination and there was no relationship of master and
servant between the party No.1 and the workman and the
party No.1 was exempted by the Central Government from
the ban imposed for engagement of contract labourers, so
contract was given to the security contractor, as per rules,
for supply of security guards and due to the notification of
the Government for abolition of contract labour system,
Home guards and Police personnel were appointed as
security guards and party no.1 has no control over the
workman and the security contractor was submitting bills
for payment for supply of security guards and the security
contractor was paying the wages to the workman. It was
further submitted by the learned advocate for the party
No.1 that the workman and some others had approached
the Hon'ble High Court, Nagpur Bench in W.P. 1389 of 1999
for the reliefs sought in this reference and the Hon'ble
High Court while depositing of the said petition have held
that the termination of the workman by the contractor was
a valid one and the action of FCI was legal and as such, the
workman cannot agitate the question again and the decision
of the Hon'ble High Court operates as res-judicata between
the parties and the workman is not entitled to any relief.
In the alternative, it was submitted by the learned
advocate for the party No.1 that the party no.1 is a "State"
as per the provisions of Article 12 of the Constitution of
India and it has a set Rules for appointment of its employees
and it is clear that the workman was never engaged by
party no.1 as per the Rules of appointment and no evidence
has been adduced by the workman to prove that he had
worked for 240 days with party No.1 in the preceding 12
calendar months of the date of the alleged termination and
as such, there was no question of compliance of section
25-F or 25-H of the Act and the workman is not entitled to
any relief.
In support of such contentions, the learned
advocates for the party No.1 placed reliance on the
decisions of the Hon'ble Apex Court reported in Appeal
(Civil) 7038/2002 (M/s. Essen Deinki Vs. Rajiv Kumar),
Appeal (Civil) 6303-6316 of 2003 (Manager, RBI, Bangalore
Vs. S. Mani), Appeal (Civil)-6511 of 2005 (Surendranagar
District Panchayat Vs. Dayachai Amar Singh), Appeal (Civil)
3639/2006 (Krishna Bhagaya Jala Nigam Vs. Md. Raffi) and
Appeal (Civil) 2969/2004 (Rajsthan State Gangasagar Mills
Ltd. Vs. State of Rajasthan).
9. First of all, I will take up the submission made by
the learned advocate for the party No.1 that the present
reference is hit by the principles of res-judicata, due to the
decision of the Hon'ble High Court, Nagpur Bench in W.P.
1389/99.
It is not disputed that the workman along with 78
others through the union, "Rashtriya Mazdoor Sena
Saptahit Jaibhim" had filed Writ Petition No. 1389/99 before
the Hon'ble High Court of Judicature at Bombay, Nagpur
Bench, Nagpur, for their regularisation and the Hon'ble
High Court did not grant such relief. On perusal of the
order passed by the Hon'ble High Court on 29.07.2002 in
the said writ petition, it is found that the workman and
others claimed regularisation on the ground that they were
employed by the contractor for doing regular work of the
Food Corporation of India and in view of the same, they
have become workmen of Food Corporation of India, since
the work on which they were employed is of perennial
nature. However, it is found from the judgment that the
Hon'ble High Court did not consider the main relief and
passed the following order:
"In view of the judgment of the Constitution Bench
in Steel Authority of India Ltd. and others Vs.
National Union Water Front Workers and others
[reported in 2001 (7) SCC1], the relief sought by the
petitioners cannot be granted since the petition
involves disputed question of facts as also other
facts which are required to be adjudicated by
appropriate authority. Accordingly, the main prayer
to absorb them cannot be granted.
*****
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2489
Server3/E/1250RR/1250RR(27-51)
In view of the rejection of the main prayer, the question
of granting other prayer does not arise. In case, the
petitioners approach the appropriate authority, the
appropriate authority shall take decision in the matter
within a period of one year. The applicants are free to
approach the appropriate authority for redressal of
their grievances."
So, it is clear from the orders passed by the Hon'ble
High Court as mentioned above that the Hon'ble High Court
did not consider the claim made by the workman and others
on merit and granted them the liberty to approach the
appropriate authority for redress. Hence, the reference
cannot be said to be hit by the principles of res-judicata.
So, there is no force in the contention raised by the learned
advocate for the party No.l.
10. In this reference, it is never the case of the
workman that he was directly appointed or engaged by the
party No.1 as a security guard. In the very beginning of the
statement of claim, it has been mentioned by the workman
that he was initially engaged at Food Corporation of India
Depot, Gondia as a security guard, through a contractor. In
paragraph 4 of the statement of claim, the workman has
mentioned that, "In the year 1992, he was engaged by the
Food Corporation of India through contractor, for a period
of 2 years, but the contract was made on paper." The case
of the workman is that after every two years, the party No.1
on papers showed the change of contractors, but he was
not disturbed from services and he worked continuously
without any break till 14.03.1999 and as he worked as a
security guard of perennial nature, he is entitled for
reinstatement in service. The workman has also claimed
that as the Central Government issued notification on
01.11.1990 to abolish the contract labour system in FCI and
directed to give employment to contract labours engaged
by the management and party No.1 implemented such
direction at Nagpur and Manmad only and gave
employment and regularized and absorbed the services of
the Security Guards working at Nagpur and Manmad and
did not implement the same at Wardha and other places to
deprive him from the benefits under the Labour Laws.
In his evidence on affidavit also, the workman has
mentioned that he was initially engaged in Food
Corporation of India as a security guard through a
contractor.
From the evidence on record and the own admission
of the workman in the cross-examination including the
specific admission that he was engaged by the contractor
and the contractor left him to FCI and he was appointed
through Singh Securities Services, it is clear that the
workman was engaged by the contractor. The workman
has not produced any evidence to show that he was
directly engaged by the Party No. 1.
11. At this juncture, I think it apropos to mention
about the principles enunciated by the Hon'ble Apex Court
regarding contract labours, in the decision reported in 1994
II CLR-402 (Supra), on which reliance is placed by the union
representative and the two decisions reported in 1985-II
LLJ-4 (S.C.) (The workman of the Food Corporation of India
Vs M/s Food Corporation of India) and 2001 LAB IC 3656
(S.C.) (Steel Authority of India Ltd. and others Vs. National
Union Water Front Workers and others).
In the decision reported in 1994-II CLR-402 (Supra)
the Hon'ble Apex Court have held that:—
2. With the industrial growth, the relation between
the employer and the employees also has taken a new turn.
At one time the establishment being the employer all
persons working therein was the employees of such
employer. But slowly the employer including Central and
State Governments started entrusting many of the jobs to
contractors. Contractors in their turn employed a worker,
who has no direct relationship with the establishment in
which they were employed. Many contractors exploited
the labourers engaged by them in various manners
including the payment of low wages. Hence, the Contract
Labour (Regulation and Abolition) Act, 1970 was enacted
to regulate the employment of contract labour in certain
establishment and to provide for its abolition in certain
circumstances and for matters connected therewith.
3. The "Contract Labour" has been defined in Section
2 (1) (b) to mean a workman, who has been employed as
contract labour in or in connection with the work of an
establishment when he is hired in or in connection with
such work by or through a contractor, with or without the
knowledge of the principal employer. Section 2 (1) (c)
defines "Contractor" to mean a person who undertakes to
produce a given result for the establishment, other than a
mere supply of goods or articles of manufacture to such
establishment, through contract labour or who supplies
contract labour for any work of the establishment and
includes a subcontractor. "Principal employer" has been
defined to mean (i) in relation to any office or department
of the Government or a local authority, the head of that
office or department or such other officer as the
government or the local authority, as the case may be, may
specify in this behalf and (ii) in a factory, the owner or
occupier of the factory. In view of section 10, of 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," Sub-section (2) of Section 10 requires
that before issuing any such notification, in relation to an
establishments, 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. One of the relevant factors, which is to be taken
into consideration is whether the work performed by the
2490
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(27-51)
contract labourers is of perennial nature. Section 12 enjoins
that no contractor to whom this Act is applicable shall
undertake or execute any work through contract labour
except under and in accordance with a license issued in
that behalf by the licensing authority. The license so issued
may contain conditions in respect of hours of work, fixation
of wages and other essential amenities in respect of contract
labour as the appropriate Government may deem fit to
impose in accordance with rules. Section 20 provides that
if any amenity required to be provided under section 16,
section 17, section 18, or section 19 for the benefit of the
contract labour employed in an establishment, is not
provided by the contractor within the time prescribed by
the contractor within the time prescribed therefore, such
amenity shall be provided by the principal employer within
such time as may be prescribed and all expensed incurred
by the principal employer in providing the amenity may be
recovered by the principal employer from the contractor
"either by deduction from any amount payable to the
contractor under any contract or as a debt payable by the
contractor". Section 21 says that a contractor shall be
responsible for the payment of wages to each worker
employed by him as contract labour but at the same time in
order to protect the interest of such contract labour, it
requires every principal employer to nominate a
representative duly authorized by him to be present at the
time of disbursement of wages by the contractor. It shall be
the duty of the contractor to ensure the disbursement of
wages in the presence of the authorized representative of
the principal employer. Because of sub-section (4) of
section 21, if the contractor fails to make payment of wages
within the prescribed period, then the principal employer
shall be liable to make payment of wages in full to the
contact labour employed by the contractor and recover
the amount so paid from the contractor. Any contravention
of the provisions aforesaid has been made penal for which
punishment can be imposed.
4. From the provisions referred to above, it is apparent
that the framers of the Act have allowed and recognized
contract labour and they have never purported to abolish
it in its entirety. The primary object appears to be that there
should not be any exploitation of the contract labourers by
the contractor or the establishment. For achieving that
object, statutory restrictions and responsibilities have been
imposed on the contractor as well as on the principal
employer. Of course if any expenses are incurred for
providing any amenity to the contract labourers or towards
the payment of wages by the principle employer he is
entitled to deduct the same from the bill of the contractor.
The Act also conceives that all appropriate government
may after consultation with the central board or the state
board, as the case may be, prohibit by notification in official
gazette, employment of contract labour in any process,
operation or other work in any establishment, taking
all facts and circumstances of employment of contract
labour in such process, operation or the work into
consideration.
5. Of late a trained amongst the contract labourers is
discernible that after having work for some years, they
make a claim that they should be absorbed by the principal
employer and be treated as employees of the principal
employer especially when the principal employer is the
central government or the state government or an authority
which can be held to be state within the meaning of Article
12 of the constitution, although no right flows from the
provisions of the act for the contract labourers to be
absorbed or to become the employees of the principal
employer. This court in the case of Gammon India limited
Vs. Union of India (1974) I SCC 596, pointed out the object
and scope of the act as follows:—
"The Act was passed to prevail the exploitation of
contract labour and also to introduce better condition
of work. The Act provides for regulation and abolition
of contract labour. The underline policy of the Act is
to abolish contract labour, wherever possible and
practicable and where it cannot be abolished to
altogether, the policy of the Act is that the working
conditions of the contract labour should be so
regulated as to ensure payment of wages and
provisions of essential amenities. This is why the
Act provides for regulated conditions of work and
contemplates progressive abolition to the extent
contemplated by Section 10 of the Act".
In the case of B.H.E.L. Workers' Association Vs.
Union of India, 1985 I CLR SC 165 = (1985) 1 SCC 630 it was
pointed out that Parliament has not abolished the contract
labour as such but has provided for its abolition by the
Central Government in appropriate cases under section 10
of the Act. It is not for the court to enquire into the question
and to decide whether the employment of contract labour
in any process, operation or other work in any establishment
should be abolished or not. That has to be decided by the
government after considering the relevant aspects as
required by Section 10 of the Act. Again in the case of
Mathura Refinery Mazdoor Sangh Vs. Indian Oil
Corporation Ltd., 1991 I CLR 684, this court refused to
direct the Indian Oil Corporation Ltd., to absorb the contract
labourers in its employment saying that, the contract
labourers have not been found to have direct connection
with the refinery. In other words, there was no relationship
of employer and employee between the Indian Oil
Corporation Ltd. and the contract labourers concerned.
Again in Dena Nath Vs. National Fertilizers Ltd., 1992 I CLR
1, this court pointed out that the aforesaid Act has two
purposes to serve (i) to regulate the conditions of service
of the worker employed by the contractor who is engaged
by a principal employer and (ii) to provide for the abolition
of contract labour altogether, in certain notified processes,
operation or other works in any establishment by the
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2491
Server3/E/1250RR/1250RR(27-51)
appropriate government, under section 10 of the Act. It
was further stated that neither the Act nor the Rules framed
by the central government or by any appropriate
government provide that upon abolition of contract labour,
the labourers would be directly absorbed by the principal
employer.
6. It is true that with passage of time and purely with
a view to safeguard the interests of workers, many principal
employers while renewing the contracts have been insisting
that the contractor or the new contractor retains the old
employees. Infact such a condition is incorporated in the
contract itself. However, such a clause in the contract which
is benevolently inserted in the contract to protect the
continuance of the source of livelihood of the contract
labour cannot by itself give rise to a right to regularization
in the employment of the principal employer. Whether the
contract labourers have become the employees of the
principal employer in course of time and on whether the
engagement and employment of labour through a
contractor a mere, camouflage and smoke screen, as has
been urged in this case, is a question of fact is to be
established by the contract labourers on the basis of the
requisite material. It is not possible for High Court or this
court, while exercising writ jurisdiction or jurisdiction under
Article 136 to decide such questions only on the basis of
the affidavits. It need not to be pointed out that in all such
cases, the labourers are initially employed and engaged by
the contractors. As such at what point of time a direct link
is established between the contract labourers and the
principal employer, eliminating the contractor from the
scene, is a matter which has to be established on material
produced before the court. Normally, the Labour Court and
the Industrial Tribunal, under the Industrial Disputes Act
are the Competent Fora to adjudicate such disputes on the
basis of the oral and documentary evidence produced
before them."
12. In the decision reported in 1985-II LLOJ-4 (Supra)
the Hon'ble Apex Court have held that:—
"Briefly stated, when corporation engaged a
contractor for handling food grain at Siliguri Depot,
the corporation had nothing to do with the manner
of handling work done by the contractor, the labour
force employed by him, payments made by him etc.
In such a fact situation, there was no privity of
contract of employer and workmen between the
corporation and the workmen. "Workmen" has been
defined (omitting the words not necessary) in the
Industrial Disputes Act to mean (any person
including an apprentice) employed in any industry
to do " 'The expression' employed has at least two
known connotations, but as used in the definition,
the context would indicate that it is used in the sense
of a relationship brought about by express or implied
contract of service in which the employee renders
service for which he is engaged by the employer and
the latter agrees to Pay him in cash or kind as agreed
between them or statutorily prescribed. It discloses
a relationship of command and obedience. The
essential condition of a person being a workman
within the terms of the definition is that he should be
employed to do the work in that industry and that
there should be, in other words, an employment of
his by the employer and that there should be a
relationship between the employer and employee or
master and servant unless a person is thus employed
there can be no question of his being a "workman"
within the definition of the term as contained
in the Act.
Dharangadhara Chemical Works Ltd. Vs. State of
Saurashtra (1957 - I - LLJ - 477). Now where a
contractor employs a workman to do the work which
he contracted with a third person to accomplish on
the definition as it stands, the workman of the
contractor would not without something more
become the workman of that third person. Therefore,
when the workmen employed by the contractor were
certainly not the workmen of the corporation and no
claim to that effect has been made by the union."
13. In the decision reported in 2001 LAB IC - 3656
(Supra) the Hon'ble Apex Court have held that:—
"The principle that a beneficial legislation needs to
be constructed liberally in favour of the class for
whose benefit it is intended, does not extend to
reading in the provisions of the Act what the
legislature has not provided whether expressly or by
necessary implication, or substituting remedy or
benefits for that provided by the legislature. The
intendment of the CLRA Act is to regulate the
conditions of service of the contract labour and to
authorize in Section 10(1) prohibition of contract
labour system by the appropriate Government on
consideration of factors enumerated in sub-section
(2) of Section 10 of the Act among other relevant
factors. But, the presence of some or all those factors,
provide no ground for absorption of contract labour
on issuing notification under Section 10(1) by the
appropriate Government, is not alluded to either in
Section 10 or at any other place in the Act and 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
the Supreme 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 it absorption of contract labour in
the establishment of principal employer or a lesser or a
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.
2492
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(52-67)
Thus on issuance of prohibition notification under
S. 10(1) of the CLRA Act prohibiting employment of
contract labour or otherwise, in an industrial dispute
brought before it by any contract 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 legislations so as to deprive the
workers of the benefit there under. 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 concerned establishment. If the contract
is found to be genuine and the principal employer
intends to employ regular workmen he shall give
preference to the erstwhile contract labour. It
otherwise found suitable, and, if necessary, by
relaxing the condition as to maximum age
appropriately taking into consideration the age of
the workers at the time of their initial employment by
the contractor and also relaxing the condition as to
academic qualifications other than technical
qualifications.
Air India's case 1997 AIR SCW430 Overruled
prospectively. M.A.T. Nos. 1704 and 1705 of
1999, D/ - 12-8-1999 (Cal): C.O. No. 6545(W) if 1996,
D/ -9-5-1997(Cal): W.A. Nos. 345-354 of 1997m D/-9-
51997 (Cal): W.A. Nos. 345-354 of 1997m D/-17-4-
1998 (Kant): W.P. No. 4050 of 1999, D/ - 2-8-2000
(Bom) and W.P. No. 2616 of 1999, D/ - 23-12-1999
(Bom), 1998 Lab IC 2571 (Cal), Reversed.
It cannot be said that by virtue of engagement of
contract labour by the contractor in any work of or in
connection with the work of an establishment, the
relationship of master and servant is created between
the principal employer and the contract labour. Even
a combined reading of the definition of the terms
"Contract labour", "Establishment" and "Workman"
does not show that the legal relationship between
the person employed in any industry and the owner
of the industry is created irrespective of the fact as
to who has brought about such relationship. The
word "Workman" is defined in wide terms. It is a
generic term of which contract labour is a species. It
is true that combined reading of the terms
"Establishment" and "Workman" shows that a
workman engaged in any establishment would have
direct relationship with the principal employer as a
servant of master. But what is true of a workman
could not be correct of contract labour. When the
provisions of the Act neither contemplate creation
of direct relationship of master and servant between
the principal employer and the contract labour nor
can such relationship be implied from the provisions
of the action issuing notification under Section 10(1)
of the CLRA Act. A fortiori much less can such a
relationship be found to exist from the rules and the
forms made there under."
So, keeping in view the principles enunciated by the
Hon'ble Apex Court in the decisions mentioned above, the
present case in hand is to be considered.
14. So far the contention raised by the union
representative regarding drawing of adverse inference
against the party No.1 for non-production of documents
as ordered by the Tribunal on the application of the
workman is concerned, it is to be mentioned that it is
admitted by the workman that he was engaged through the
contractor in F.C.I. and due his such engagement, it was
quite natural for the party No.1 to direct him to perform
different duties as a security guard and to see that duties
entrusted to him were done properly. Moreover, the party
No.1 has produced number of documents to show that the
workman was a contract labour and payment of wages to
him was made by the contractors. Hence, for non-
production of the documents by party No.1, there is no
need to draw any adverse inference. As the facts and
circumstances of the case in hand are quite different from
the facts and circumstances of the cases referred in the
decisions by the Hon'ble Courts, on which reliance has
been placed by the union representative, with respect, I am
of the view that the said decisions have no clear application
of this case.
15. So far the contention raised by the union
representative regarding the non-registration of the party
No.1 or the contractors with the Regional Labour
Commissioner as per Rules is concerned, it is to be
mentioned that such a plea has neither been taken in the
statement of claim nor any thing has been stated in that
regard in the evidence of the workman. In absence of such
pleading, the contention cannot be entertained. Moreover,
it is clear from the pleadings of the parties and the evidence
on record and the specific suggestions given to the witness
examined on behalf of the party No.1 in his cross-
examination that contract for supply of security guards
was given by party No.1 to different contractors from
01.03.1989 till 14.03.1999.
Moreover, for the sake of argument, even if, it is held
that the party No.1 had engaged the workman and others
as contract labourers in violation of the provisions of the
Contract Labour (Regulations and Abolition) Act, 1976,
then the persons responsible for such violation are liable
for criminal prosecution, but such violation of the
provisions of the above said Act, does not confer any
right on the workman to claim regularisation in service.
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2493
Server3/E/1250RR/1250RR(52-67)
16. In this case, the letter No. U-23013/11/89/LW
dated 28.05.92, Govt. of India, Ministry of Labour shows
that the prohibition of employment of contract labour in
sweeping, cleaning, dusting and watching of buildings
owned or occupied by the establishments of Food
Corporation of India and some other departments was lifted
by the Central Government. So, the engagement of contract
labour by the Party No. 1 cannot be said to be illegal. It is
also found from the materials on record that the appointment
of labour contractor by Party No. 1 for supply of Security
Guards was genuine and the same was not only on papers
as claimed by the workman. The workman has failed to
prove such claim by adducing cogent or reliable evidence.
The engagement of labor contractor by Party No. 1 was
not a mere ruse or camouflage to evade compliance of the
various beneficial legislations, so as to deprive the workman
of the benefits there under. The workman has not been
able to produce any document to show that at any point of
time, Party No. 1 paid his wages as their employee. It is
clear from the evidence that Party No. 1 paid wages of the
last three months to the workman in presence of the Labour
Commissioner, as the contractor did not pay the same. As
it is clear from the evidence on record that the workman
was engaged as a contract labour with Party No. 1, by
the contractor and as such, it can be held that there
was no relationship of master and servant between the
Party No. 1 and the workman. Hence, there was no question
of termination of the services by the Party No. 1 or
compliance of the provisions of Sections 25-F or 25-H of
the Act.
In view of the facts and circumstances of the case
as mentioned above, which are quite different from the
facts and the circumstances of the cases referred in the
decisions, on which reliance is placed by the union
representative, with respect, I am of the view that the said
decisions have no clear application to the present case in
hand.
17.It is the own case of the workman that he was
engaged by the contractor. So the contractor, who had
engaged the workman, is a necessary party in the reference.
The said contractor has not been added as a party in this
reference. Due to non-joinder of necessary party, the
reference is bad in law.
In view of the materials on record and the discussions
made above and applying the principles enunciated by the
Hon'ble Apex Court in the three decisions mentioned above,
the reference cannot be answered in favour of the workman.
Hence, it is ordered:—
ORDER
The reference is answered in the negative. The
workman is not entitled to any relief.
J.P. Chand, Presiding Officer
ubZ fnYyh] 15 ekpZ] 2013
dk-vk- 868-
—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,QñlhñvkbZñ 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 ukxiqj
ds iapkV ¼vkbZMh la[;k 291@2003½ ds izdkf'kr djrh gS] tks dsUnzh;
ljdkj dks 15@03@2013 dks izkIr gqvk FkkA
[lañ ,y&22012@234@2003&vkbZ vkj ¼lh ,e&II)]
chñ,eñ iVuk;d] MsLd vf/kdkjh
New Delhi, the 15th March, 2013
S.O. 868.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref, 291/2003 of
the Cent.Govt.Indus. Tribunal-cum-Labour Court, Nagpur
as shown in the Annexure, in the industrial dispute
between the managment of Food Corporation of India
their workmen, received by the Central Government on
15/03/2013
[No. L-22012/234/2003 - IR(CM-II)]
B.M. Patnaik, Desk Officer
ANNEXURE
BEFORE SHRI J.P. CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No. CGIT/NGP/291/2003
Date: 07.03.2013.
Party No. 1(a) :
The District Manager,
Food Corporation of India,
Ajani, Nagpur,
Nagpur - 440015.
Party No. 1(b) :
The Senior Regional Manager,
Food Corporation of India,
Mistry Bhawan, Dinshaw Wacha
Road, Churchgatye,
Mumbai - 400020.
Versus
Party No. 2 : The Secretary,
Rashtriya Mazdoor Sena, Hind Nagar
Ward No. 2, Near Budha Vihar,
Post: Wardha, Distt. Wardha (M.S.)
AWARD
(Dated: 7th March, 2013)
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 Food Corporation of India and their
2494
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(52-67)
workman, Shri Sadik Allauddin Khan for adjudication, as
per letter No. L-22012/234/2003-IR (CM-II) dated 08.12.2003,
with the following schedule:—
"Whether the action of the management of Food
Corporation of India, Nagpur (M.S.) in terminating
the services of Shri Sadik Allauddin Khan, Security
Guard w.e.f. 14.03.1999 is legal and justified? If not,
to what relief the concerned 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, Smt. Hilima, widow and legal
heir of the deceased workman, Shri Sadik Allauddin Khan,
who died on 24.01.2003 ('the applicant" in short), filed the
statement of claim and the management of Food Corporation
of India ("Party No. 1" in short) filed their written statement.
The case of the applicant as presented in the
statement of claim is that her deceased husband, Sadik
Allauddin Khan (the "workman" in short) was in the
employment of Party No. 1 from 22.11.1987 and he was
initially engaged through a contractor at Gondia Depot of
Party No. 1, as a Security Guard and he was in continuous
service without any interruption till 14th March, 1999, when
his services were terminated orally by Party No. 1, without
following the due procedure of law and he had completed
more than 240 days of work in each year and the termination
of his services on 14.03.1999 was not in good faith, but in
colourable exercise of the rights and powers by the Party
No. 1 and while terminating his services, neither one
month's notice nor one month's wages in lieu of notice nor
retrenchment compensation was given to him as required
under section 25-F of the Act and after his illegal
termination, fresh hands from the department of home guard
and police were engaged by Party No. 1 to extract the duties
of Security Guards, in violation of the provision of section
25-H of the Act and the work which he was performing is
constantly in existence and the same is of a perennial nature
and as his termination is illegal and unlawful, he is entitled for
reinstatement in service with continuity and full back wages.
The further case of the applicant is that in 1987, the
workman was engaged by the Party No. 1 through the
contractor for a period of two years, but the contract was
made only on papers and after every two years, the Party
No. 1 changed the contractor on papers only and the
engagement of the so-called contractor did not replace the
Security Guards and he was also not disturbed from his
services and he was merely shown to be engaged by the
contractors, but actually, he was working under the direct
control and supervision of the Party No. 1 and the
contractor had no role to play in the same and the work
performed by him was being assigned to him by Party
No. 1 and he was a regular employee of Party No. 1 and
Party No. 1 was his real employer and not the contractor as
alleged and the engagement and change of contractors by
Party No. 1 from time to time was sham and only a
camouflage to deny his legitimate claim and the contract
between Party No. 1 and the contractor was bogus and not
genuine and therefore, his oral termination from services
was against the mandatory provisions of the Act and the
Central Government decided to abolish the appointment of
contract labour as contemplated under section 10 of the
Contract Labour (Regulation and Abolition) Act, 1970 and
issued notification on 01.11.1990 with directions to abolish
the contract labour system in the establishment of the Party
No. 1 and to give employment to contract labour engaged
by the management and therefore, it was the mandatory
duty of the Party No. 1 to abolish the contract labour system
in all places and management of FCI implemented the
notification only at Nagpur and Manmad and absorbed
the Security Guards working at Nagpur and Manmad, but
at Akola, Amravati, Wardha and Gondia district, the contract
labour system was continued by the management, with an
intention to deprive him from the benefits under the labour
laws.
It is further pleaded by the applicant that the salary
of the workman was paid by the Party No. 1 and not by the
contractor and his daily attendance was also marked by
the Asstt. Manager of FCI, Wardha Depot and the Party
No. 1 was supervising his work through their officers and
he had no relation with the so called contractors engaged
by the Party No. 1 and Party No. 1 also supplied the articles,
such as, torch, lathi, whistle and uniform etc. to him and in
view of the long spell of work being carried out by him, he
is entitled to be reinstated in service with continuity and
full back wages. The applicant has prayed to give all
consequential benefits to the legal heir of the workman.
3. The Party No. 1 in their written statement have
pleaded inter alia that the workman was never in their
employment and the workman has not impleded the
contractor, who appointed him, as a Party and the workman
was engaged by the contractor as a Security Guard at FCI
Depot and the said contractor is a necessary party and in
absence of the contractor, the proceeding cannot proceed
and the workman was not in their service uninterruptedly
till 14th March, 1999 and since the contract of the contractor
came to an end, the services of the workman were terminated
by the contractor and the original period of contract given
to the contractor for providing Security services was up to
1998 and the same was extended as per the terms and
conditions till March, 1999 and as the workman was not
employed by them, there was no question of following the
procedure of termination by them and they were not the
employer of the workman and the services of the workman
were never utilized by them as employer from 22.11.1987 to
14.03.1999, without any break in service and the workman
did not complete 240 days of work in a year as alleged and
as the workman was engaged by the Security Contractor,
there was no relationship of master and servant between
them and the workman at any point of time and under
section 10 of the Contract Labour (Regularisation and
Abolition) Act, they were exempted by the Central
Government, so the allegations made by the workman
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2495
Server3/E/1250RR/1250RR(52-67)
against them are not true and there was no question of
violation of the provisions of 25(H) of the Act and the work
does not constantly exist and the work of providing security
guards was given to other Government Agencies like Police
Personnel and Home guards and therefore, the workman
has no right to claim any relief from them and the work of
security is not perennial in nature and as and when their
godowns are filled with food grains, then only, services of
the security guards are required and in pursuance of the
notification issued by the Central Government abolishing
contract labour system, they appointed Home guards and
Police personnel as security guards.
The further case of Party No. 1 is that for the relief as
claimed, by the workman had filed a writ petition before the
Hon'ble High Court, Nagpur Bench bearing W.P. No. 1389/
99 and the Hon'ble High Court rejected the said WP and
denied the relief prayed for and therefore, this Tribunal has
no jurisdiction to decide the reference and the decision of
the Hon'ble Court operates as res-judicata and they floated
tenders for the contract and lowest bidder was awarded
the contract and the change of contractor in every two
years was not on papers only and they had no say in the
appointment of security guards by the security contractor
and they had no control over the appointment and service
conditions of the workman, who was an employee of the
security agency and he was never their employee and the
security contractor was the employer of the workman.
The further case of Party No. 1 is that the appropriate
government decided to abolish the employment of the
contract labour as contemplated under section 10 of the
Contract Labour (Regularisation and Abolition) Act, 1970
and the interpretation of the notification issued on
01.11.1990 put by the workman is not correct and they were
exempted from the operation of the Act of 1970 in the year
1989 and the said exemption was withdrawn in the year
1999 and therefore, the security contact given to the
contractor was terminated and hence, the services of the
workman were terminated by the security contractor and
they did not pay the salary to the workman and it was the
contractor, who was paying the same to the workman and
when the contractor failed to pay the salary to the workman,
they paid the amount as per the directions given by the
ALC from time to time and the said amount was recovered
from the contract's bill and they only used to check the
attendance of the security guards to find out as to whether
the contractor had made arrangement of the requisite
number of security guards, as per their requirement and
they did not have the power to terminate any employee
appointed by the contractor and they did not provide any
article, such as torch, Lathi, whistle and uniform etc. to the
workman and as such, the workman is not entitled to any
relief
4. Both parties have led oral evidence in support of
their respective claims, besides placing reliance on
documentary evidence.
The applicant in support of the claim has examined
herself as a witness. In his evidence, which is on affidavit,
the applicant has reiterated the facts mentioned in the
statement of claim.
In her cross-examination, she has stated that her
husband was working in F.C.I. but she cannot say who had
engaged him.
5. One Shri Mohan Govindrao Temburne has been
examined as a witness on behalf of the Party No. 1. This
witness has also reiterated the facts mentioned in the written
statement, in his examination-in-chief, which is on affadavit.
In his cross-examination, this witness has admitted the
suggestions that contract for supply of security guards
was given to Singh Security services for two years and
thereafter the contract was given to the Industrial Security
and Fire Services and Sadik Khan was sent by Singh
Security Services to work as a Security Guard as per the
contract and Sadik Khan was also engaged by Industrial
Security and Fire Services as a Security Guard. This witness
has also admitted that as per the requirements of F.C.I.,
Sadik Khan and other Security Guards were being deployed
to different places as per the directions of the Depot
Manager.
6. At the time of argument, it was submitted by the
union representative for the applicant that the workman
was engaged by the management of FCI on 22.11.1987 at
Gondia depot as a security guard and he worked
continuously without any interruption till 14th March, 1999
and his services were terminated orally by the Party No. 1,
without following the due procedure of law and the workman
had completed more than 240 days of work in each year
and before termination of the services of the workman,
neither one month's notice nor one month's wages in lieu
of notice nor retrenchment compensation was given to the
workman, as required under section 25-F of the Act and
after termination of the services of the workman, fresh hands
were engaged by Party No. 1 to extract the duties of security
guard, in violation of the provision of section 26-H of the
Act and the work of security guard is perennial in nature,
hence the termination of the workman is void and illegal.
It was further submitted by the union representative
for the workman that the Party No. 1 had shown the workman
as contract labour, but the so called contract was made
only on papers and the workman was actually working
under the direct control and supervision of the Party No. 1
and he was never a contract labour and such action of the
Party No. 1 was sham and only a camouflage to deny the
legitimate claim of the workman and the so called contract
between the management and the contractor was bogus
and not genuine and the Central Government by
notification dated 01.11.1990 abolished the employment of
contract labour and directed to give employment to contract
labours engaged by the management and therefore, the
management of FCI was bound to abolish the contract
2496
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(52-67)
labour system and to give employment to the workman.
It was further submitted by the union representative
that on 29.06.2007, an application was filed by the workman
for production of nine documents relating to him, from
which, it could have been held without any doubt that the
workman was an employee of the Party No. 1 and not a
contract labour and after hearing the parties, the Tribunal
by order dated 30.05.2008 directed the Party No. 1 to produce
the documents, but inspite of the order passed by the
Tribunal for production of documents, the Party No. 1 failed
to produce the documents and as such, adverse inference
is to be drawn against the Party No. 1.
In support of such contentions, reliance was placed
by the union representative on the decisions reported in
2005 I-CLR-254 (Statesman Ltd. & Anr. Vs. Eight Industrial
Tribunal, West Bengal & ors.) and 2004 (103) FLR-187
(Municipal Corporation, Faridabad and Shri Niwas).
It was also submitted by the union representative
that neither the Party No. 1 nor the so called contractors
engaged by the Party No. 1 were registered with the Regional
Labour Commission as per rules to engage contract labours
and infact the so called contractors were mediators and
not contractors and even though there was legal ban on
engagement of contract labourers, the Party No. 1 engaged
the workman and some others as security guards and from
the pleadings of the parties, the evidence on record and
the admission of the witness examined on behalf of the
Party No. 1 that from the date of his initial engagement the
workman worked till 14.03.1999 clearly show that the
workman was the employee of the Party No. 1 and the
Party No. 1 is the real employer and there was master and
servant relationship between the Party No. 1 and the
workman and the so called contract given to the contractor
expired on 31.12.1998 and though Party No. 1 unilaterally
extended the contract, the contractor did not accept the
same and without any contractor, the workman continued
the work with Party No. 1 till 14.03.1999 and the Party No. 1
paid the wages from 01.01.1999 to 14.03.1999 to the workman
and such facts also prove that the workman was the
employee of Party No. 1 and it was Party No. 1, who
terminated the services of the workman without compliance
of the mandatory provisions of section 25-F of the Act. In
support of the submissions, the union representatives
placed reliance on the decisions reported in 1994 II CLR-
402 (R.K. Panda Vs. Steel Authority), 2003 (98) FLR-826
(M/s. Bharat Heavy Electricals Ltd. Vs. State of UP) and
2011 (128) FLR-99 (Mahesh Kumar Sharma Vs. D.F.O.,
General Forest Division, Sheopur).
It was also submitted by the union representative
for the workman that Party No. 1 has admitted the claims
made by the workman and has not been able to prove their
claim that the workman was a contract labour, by producing
cogent evidence in support of the same and as such, the
workman is entitled for reinstatement in service with
continuity and full back wages.
7. Per contra, it was submitted by the learned advocate
for the Party No. 1 that the workman was never appointed
by Party No. 1 and he has engaged by the contractor as a
security guard and as such, the concerned contractor is a
necessary party and inspite of raising such objection in
the written statement, the workman did not implead the
contractor as a party and for that the reference is not
maintainable. It was further
Submitted by the learned advocate for the Party
No. 1 that the workman was engaged by the contractor and
as the contract of the contractor came to an end in March,
1999, the services of the workman were terminated by the
contractor and as such, there was no question of Party
No. 1 complying with the due procedure of termination and
there was no relationship of master and servant between
the Party No. 1 and the workman and the Party No. 1 was
exempted the Central Government from the ban imposed
for engagement of contract labourers, so contract was given
to the security contractor, as per rules, for supply of security
guards and due to the notification of the Government for
abolition of contract labour system, Home guards and
Police personnel were appointed as security guards and
Party No. 1 has no control over the workman and the
security contractor was submitting bills for payment for
supply of security guards and the security contractor was
paying the wages to the workman. It was further submitted
by the learned advocate for the Party No. 1 that the workman
and some others had approached the Hon'ble High Court,
Nagpur Bench in W.P. 1389 of 1999 for the reliefs sought in
this reference and the Hon'ble High Court while depositing
of the said petition have held that the termination of the
workman by the contractor was a valid one and the action
of FCI was legal and as such, the workamn cannot agitate
the question again and the decision of the Hon'ble High
Court operates as res-judicata between the parties and the
workman is not entitled to any relief.
In the alternative, it was submitted by the learned
advocate for the Party No. 1 that the Party No. 1 is a "State"
as per the provisions of Article 12 of the Constitution of
India and it has a set Rules for appointment of its employees
and it is clear that the workman was never engaged by
Party No. 1 as per the Rules of appointment and no evidence
has been adduced by the workman to prove that he had
worked for 240 days with Party No. 1 in the preceding 12
calendar months of the date of the alleged termination and
as such, there was no question of compliance of section
25-F or 25-H of the Act and the workman is not entitled to
any relief.
In support of such contentions, the learned
advocates for the Party No. 1 placed reliance on the
decisions of the Hon'ble Apex Court reported in Appeal
(Civil) 7038/2002 (M/s. Essen Deinki Vs. Rajiv Kumar),
Appeal (Civil) 6303-6316 of 2003 (Manager, RBI, Bangalore
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2497
Server3/E/1250RR/1250RR(52-67)
Vs. S. Mani), Appeal (Civil)-6511 of 2005 (Surendranagar
District Panchayat Vs. Dayachai Amar Singh), Appeal (Civil)
3639/2006 (Krishna Bhagaya Jala Nigam Vs. Md. Raffi) and
Appeal (Civil) 2969/2004 (Rajasthan State Gangasagar Mills
Ltd. Vs. State of Rajasthan.
8. First of all, I will take up the submission made by
the learned advocate for the party No. 1 that the present
reference is hit by the principles of res-judicata, due to the
decision of the Hon'ble High Court, Nagpur Bench in W.P.
1389/99.
It is not disputed that the workman alongwith
78 others through the union, "Rashtriya Mazdoor Sena
Saptahit Jaibhim" had filed Writ Petition No. 2389/99 before
the Hon'ble High Court of Judicature at Bombay, Nagpur
Bench, Nagpur, for the regularisation and the Hon'ble High
Court did not grant such relief. On perusal of the order
passed by the Hon'ble High Court on 29.07.2002 in the said
writ petition, it is found that the workman and others claimed
regularisation on the ground that they were employed by
the contractor for doing regular work of the Food
Corporation of India and in view of the same, they have
become workmen of Food Corporation of India, since the
work on which they were employed is of perennial nature.
However, it is found from the judgment that the Hon'ble
High Court did not consider the main relief and passed the
following order:
"In view of the judgment of the Constitution Bench
in Steel Authority of India Ltd. And others Vs.
National Union Water Front Workers and others
[reported in 2001 (7) SCC1], the relief sought by the
petitioners cannot be granted since the petition
involves disputed question of facts as also other
facts which are required to be adjudicated by
appropriate authority. Accordingly, the main prayer
to absorb them cannot be granted.
******
In view of the rejection of the main prayer, the question
of granting other prayer does not arise. In case, the
petitioners approach the appropriate authority, the
appropriate authority shall take decision in the matter
within a period of one year. The applicants are free to
approach the appropriate authority for redressal of
their grievances."
So, it is clear from the orders passed by the Hon'ble
High Court as mentioned above that the Hon'ble High Court
did not consider the claim made by the workman and others
on merit and granted them the liberty to approach the
appropriate authority for redress. Hence, the reference
cannot be said to be hit by the principles of res-judicata.
So, there is no force in the contention raised by the learned
advocate for the Party No. 1.
9. In this reference, it is never the case of the workman
that he was directly appointed or engaged by the Party
No. 1 as a security guard. In the very beginning of the
statement of claim, it has been mentioned by the workman
that he was initially engaged at Food Corporation of India
Depot, Gondia as a security guard, through a contractor. In
paragraph 4 of the statement of claim, the workman has
mentioned that, "In the year 1987, he was engaged by the
Food Corporation of India through contractor, for a period
of 2 years, but the contract was made on paper." The case
of the workman is that after every two years, the Party
No. 1 on papers showed the change of contractors, but he
was not disturbed from services and he worked
continuously without any break till 14.03.1999 and as he
worked as a security guard of perennial nature, he is entitled
for reinstatement in service. The workman has also claimed
that the Central Government issued notification on
01.11.1990 to abolish the contract labour system in FCI and
directed to give employment to contract labours engaged
by the management and Party No. 1 implemented such
direction at Nagpur and Manmad only and gave
employment and regularized and absorbed the services of
the Security Guards working at Nagpur and Manmad and
did not implement the same at Wardha and other places to
deprive him from the benefits under the Labour Laws.
In his evidence on affidavit also, the workman has
mentioned that he was initially engaged in Food
Corporation of India as a security guard through a
contractor.
From the evidence on record and the own admission
the workman in the cross-examination including the specific
admission that he was engaged by the contractor and the
contractor left him to FCI and he was appointed through
Singh Securities Services, it is clear that the workman was
engaged by the contractor. The workman has not produced
any evidence to show that he was directly engaged by the
Party No. 1.
10. At this juncture, I think it apropos to mention
about the principles enunciated by the Hon'ble Apex Court
regarding contract labours, in the decision reported in
1994- II CLR-402 (Supra), on which reliance is placed by
the union representative and the two decisions reported in
1985-II LLJ-4 (S.C.) (The workman of the Food Corporation
of India Vs. M/s. Food Corporation of India) and 2001 LAB
IC 3656 (S.C.) (Steel Authority of India Ltd. And others Vs.
National Union Water Front Workers and others).
In the decision reported in 1994-II CLR-402 (supra)
the Hon'ble Apex Court have held that:—
2. With the industrial growth, the relation between
the employer and the employees also has taken a new
turn. At one time the establishment being the employer all
persons working therein were the employees of such
2498
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(52-67)
employer. But slowly the employer including Central and
State Governments started entrusting many of the jobs to
contractors. Contractors in their turn employed a worker,
who has no direct relationship with the establishment in
which they were employed. Many contractors exploited
the labourers engaged by them in various manners
including the payment of low wages. Hence, the Contract
Labour (Regulation and Abolition) Act, 1970 was enacted
to regulate the employment of contract labour in certain
establishment and to provide for its abolition in certain
circumstances and for matters connected therewith.
3. The "Contract Labour" has been defined in Section
2(1)(b) to mean a workman, who has been employed as
contract labour in or in connection with the work of an
establishment when he is hired in or in connection with
such work by or through a contractor, with or without the
knowledge of the principal employer. Section 2(1)(c) defines
"Contractor" to mean a person who undertakes to produce
a given result for the establishment, other than a mere
supply of goods or articles of manufacture to such
establishment, through contract labour or who supplies
contract labour for any work of the establishment and
includes a sub-contractor. "Principal employer" has been
defined to mean (i) in relation to any office or department
of the Government or a local authority, the head of that
office or department or such other officer as the
government or the local authority, as the case may be, may
specific in this behalf, and (ii) in a factory, the owner or
occupier of the factory. In view of section 10, of 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." Sub-section (2) of Section 10 requires
that before issuing any such notification, in relation to an
establishments, 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. One of the relevant factors, which is to be taken
into consideration is whether the work performed by the
contract labourees is of perennial nature. Section 12 enjoins
that no contractor to whom this Act is applicable shall
undertake or execute any work through contract labour
except under and in accordance with a license issued in
that behalf by the licensing authority. The license so issued
may contain conditions in respect of hours of work, fixation
andf wages another essential amenities in respect of
contract labour as the appropriate Government may deem
fit to impose in accordance with rules. Section 20 provides
that if any amenity required to be provided under section
16, section 17, section 18, or section 19 for the benefit of
the contract labour employed in an establishment, is not
provided by the contractor within the time prescribed by
the contractor within the time prescribed therefore, such
amenity shall be provided by the principal employer within
such time as may be prescribed and all expensed incurred
by the principal employer in providing the amenity may be
recovered by the principal employer from the contractor
"either by deduction from any amount payable to the
contractor under any contract or as a debt payable by the
contractor". Section 21 says that a contractor shall be
responsible for the payment of wages to each worker
employed by him as contract labour but at the same time in
order to protect the interest of such contract labour, it
requires every principal employer to nominate a
representative duly authorized by him to be present at the
time of disbursement of wages by the contractor. It shall
be the duty of the contractor to ensure the disbursement
of wages in the presence of the authorized representative
of the principal employer. Because of sub-section (4) of
section 21, if the contractor fails to make payment of wages
within the prescribed period, then the principal employer
shall be liable to make payment of wages in full to the
contract labour employed by the contractor and recover
the amount so paid from the contractor. Any contravention
of the provisions aforesaid has been made penal for which
punishment can be imposed.
4. From the provisions referred to above, it is apparent
that the framers of the Act have allowed and recognized
contract labour and they have never purported to abolish
it in its entirety. The primary object appears to be that there
should not be any exploitation of the contract labourers by
the contractor or the establishment. For achieving that
object, statutory restrictions and responsibilities have been
imposed on the contractor as well as on the principal
employer. Of course if any expenses are incurred for
providing any amenity to the contract labourers or towards
the payment of wages by the principal employer he is
entitled to deduct the same from the bill of the contractor.
The Act also conceives that all appropriate Government
may after consultation with the central board or the state
board, as the case may be, prohibit by notification in official
gazette, employment of contract labour in any process,
operation or other work in any establishment, taking a all
facts and circumstances of employment of contract labour
in such process, operation or the work into consideration.
5. Of late a trained amongst the contract labourers is
discernible that after having work for some years, they
make a claim that they should be absorbed by the principal
employer and be treated as employees of the principal
employer especially when the principal employer is the
central government or the state government or an authority
which can be held to be state within the meaning of Article
12 of the constitution, although no right flows from the
provisions of the act for the contract labourers to be
absorbed or to become the employees of the principal
employer. This court in the case of Gammon India Limited
V. Union of India (1974) I SC 596, pointed out the object
and scope of the act as follows:—
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2499
Server3/E/1250RR/1250RR(52-67)
"The Act was passed to prevail the exploitation of
contract labour and also to introduce better condition
of work. The Act provides for regulation and abolition
of contract labour. The underline policy of the Act is
to abolish contract labour, wherever possible and
practicable and where it cannot be abolished to
altogether, the policy of the Act is that the working
conditions of the contract labour should be so
regulated as to ensure payment of wages and
provisions of essential amenities. This is why the
Act provides for regulated conditions of work and
contemplates progressive abolition to the extent
contemplated by Section 10 of the Act."
In the case of B.H.E.L. Workers' Association Vs.
Union of India, 1985 I CLR SC 165 = (1985) 1 SSC 630 it was
pointed out that Parliament has not abolished the contract
labour as such but has provided for its abolition by the
Central Government in appropriate cases under section 10
of the Act. It is not for the court to enquire into the question
and to decide whether the employment of contract labour
in any process, operation or other work in any establishment
should be abolished or not. That has to be decided by the
Government after considering the relevant aspects as
required by Section 10 of the Act. Again in the case of
Mathura Refinery Mazdoor Sangh Vs. Indian Oil
Corporation Ltd., 1991 I CLR 684, this court refused to
direct the Indian Oil Corporation Ltd., to absorb the contract
labourers in its employment saying that, the contract
labourers have not been found to have direct connectiion
with the refinery. In other words, there was no relationship
of employer and employee between the Indian Oil
Corporation Ltd. and the contract labourers concerned.
Again in Dena Nath Vs. National Fertilizers Ltd., 1992 I
CLR 1, this court pointed out that the aforesaid Act has
two purposes to serve (i) to regulate the conditions of
service of the worker employed by the contractor who is
engaged by a principal employer and (ii) to provide for the
abolition of contract labour altogether, in certain notified
processes, operation or other works in any establishment
by the appropriate government, under section 10 of the
Act. It was further stated that neither the Act nor the Rules
framed by the central government or by any appropriate
government provide that upon abolition of contract labour,
the labourers would be directly absorbed by the principal
employer.
6. It is true that with passage of time and purely with
a view to safeguard the interests of workers, many principal
employers while renewing the contracts have been insisting
that the contractor or the new contractor retains the old
employees. Infact such a condition is incorporated in the
contract itself. However, such a clause in the contract which
is benevolently inserted in the contract to protect the
continuance of the source of livelihood of the contract
labour cannot by itself give rise to a right to regularization
in the employment of the prinicpal employer. Whether the
contract labourers have become the employees of the
principal employer in course of time and on whether the
engagement and employment of labourers through a
contractor is a mere camouflage and a smoke screen, as
has been urged in this case, is a question of fact is to be
established by the contract labourers on the basis of the
requisite material. It is not possible for High Court or this
court, while exercising writ jurisdiction or jurisdiction under
Article 136 to decide such questions only on the basis of
the affidavits. It need not to be pointed out that in all such
cases, the labourers are initially employed and engaged by
the contractors. As such at what point of time a direct link
is established between the contract labourers and the
principal employer, eliminating the contractor from the
scene, is a matter which has to be established on material
produced before the court. Normally, the Labour Court and
the Industrial Tribunal, under the Industrial Disputes Act
are the Competent Fora to adjudicate such disputes on the
basis of the oral and documentary evidence produced
before them."
11. In the decision reported in 1985-II LLOJ-4 (supra)
the Hon'ble Apex Court have held that:—
"Briefly stated, when corporation engaged a
contractor for handling foodgrains at Siliguri Depot,
the corporation had nothing to do with the manner
of handling work done by the contractor, the labour
force employed by him, payments made by him etc.
In such a fact situation, there was no privity of
contract of employer and workmen between the
corporation and the workmen. "Workmen" has been
defined (omitting the words not necessary) in the
Industrial Disputes Act to mean (any person
including an apprentice) employed in any industry
to do......". 'The expression' employed has at least
two known connotations, but as used in the
definition, the context would indicate that it is used
in the sense of a relationship brought about by
express or implied contract of service in which the
employee renders service for which he is engaged
by the employer and the latter agrees to pay him in
cash or kind as agreed between them or statutorily
prescribed. It discloses a relationship of command
and obedience. The essential condition of a person
being a workman within the terms of the definition is
that he should be employed to do the work in that
industry and that there should be, in other words, an
employment of his by the employer and that there
should be a relationship between the employer and
employee or master and servant unless a person is
thus employed there can be no question of his being
a "workman" within the definition of the term as
contained in the Act.
Dharangadhara Chemical Works Ltd. Vs. State of
Saurashtra (1957-I-LLJ-477). Now where a contractor
employs a workman to do the work which he contracted
2500
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(52-67)
with a third person to accomplish on the definition as it
stands, the workman of the contractor would not without
something more become the workman of that third person.
Therefore, when the workmen employed by the contractor
were certainly not the workmen of the corporation and no
claim to that effect has been made by the union."
12. In the decision reported in 2001 LAB IC-3656
(supra) the Hon'ble Apex Court have held that:—
"The principle that a beneficial legislation needs to
be constructed liberally in favour of the class for
whose benefit it is intended, does not extend to
reading in the provisions of the Act what the
legislature has not provided whether expressly or by
necessary implication, or substituting remedy or
benefits for that provided by the legislature. The
intendment of the CLRA Act is to regulate the
conditions of service of the contract labour and to
authorize in Section 10(1) prohibition of contract
labour system by the appropriate Government on
consideration of factors enumerated in sub-section
(2) of Section 10 of the Act among other relevant
factors. But, the presence of some or all those factors,
provide no ground for absorption of contract labour
on issuing notification under Section 10(1) by the
appropriate Government, is not alluded to either in
Section 10 or at any other place in the Act and 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 the
Supreme 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
it absorption of contract labour in the establishment
of principal employer or a lesser or a harsher
punishment. Such an interpretation of the provisions
of the statute will be far beyond the prinicple of ironing
out the creases and the scope of interpretative
legislation and as such clearly impermissible.
Thus on issuance of prohibition notification under
S. 10(1) of the CLRA Act prohibiting employment of
contract labour or otherwise, in an industrial dispute
brought before it by any contract 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 legislations so as to deprive the
workers of the benefit there under. 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 concerned establishment. If the contract
is found to be genuine and the principal employer
intends to employ regular workmen he shall give
preference to the erstwhile contract labour. It
otherwise found suitable, and, if necessary, by
relaxing the condition as to maximum age
appropriately taking into consideration of the age of
the workers at the time of their initial employment by
the contractor and also relaxing the condition as to
academic qualifications other than technical
qualifications.
Air India's case 1997 AIR SCW430 Overruled
prospectively. M.A.T. Nos. 1704 and 1705 of 1999,
D/-12-8-1999 (Cal): C.O. No. 6545(W) if 1996,
D/9-5-1997(Cal): W.A. Nos. 345-354 of 1997m D/-17-
4-1998 (Kant): W.P.No. 4050 of 1999, D/-2-8-2000
(Bom) and W.P. No. 2616 of 1999, D/-23-12-1999
(Bom), 1998 Lab IC 2571 (Cal), Reversed.
It cannot be said that by virtue of engagement of
contract labour by the contractor in any work of or in
connection with the work of an establishment, the
relationship of master and servant is created between
the principal employer and the contract labour. Even
a combined reading of the definition of the terms
"Contract labour", "Establishment" and "Workman"
does not show that the legal relationship between
the person employed in any industry and the owner
of the industry is created irrespective of the fact as
to who has brought about such relationship. the word
"Workman" is defined in wide terms. It is a generic
term of which contract labour is a species. It is true
that combined reading of the terms "Establishment"
and "Workman" shows that a workman engaged in
any establishment would have direct relationship
with the principal employer as a servant of master.
But what is true of a workman could not be correct of
contract labour. When the provisions of the Act
neither contemplate creation of direct relationship of
master and servant between the principal employer
and the contract labour nor can such relationship be
implied from the provisions of the action issuing
notification under Section 10(1) of the CLRA Act. A
fortiori much less can such a relationship be found
to exist from the rules and the forms made there
under."
So, keeping the view the principles enunciated by
the Hon'ble Apex Court in the decisions mentioned above,
the present case in hand is to be considered.
13. So far the contention raised by the union
representative regarding drawing of adverse inference
against the party No. 1 for non-production of documents
as ordered by the Tribunal on the application of the
workman is concerned, it is to be mentioned that it is
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2501
Server3/E/1250RR/1250RR(52-67)
admitted by the workman that he was engaged thorugh the
contractor in F.C.I. and due his such engagement, it was
quite natural for the party No. 1 to direct him to perform
different duties as a security guard and to see that duties
entrusted to him were done properly. Moreover, the party
No. 1 have produced number of documents to show that
the workman was a contract labour and payment of wages
to him was made by the contractors. Hence, for non-
production of the documents by party No. 1, there is no
need to draw any adverse inference. As the facts and
circumstances of the case in hand are quite different from
the facts and circumstances of the cases referred in the
dicisions by the Hon'ble Courts, on which reliance has
been placed by the union representatives, with respect, I
am of the view that the said decisions have no clear
application of this case.
14. So far the contention raised by the union
representative regarding the non-registration of the party
No. 1 or the contractors with the Regional Labour
Commissioner as per Rules is concerned, it is to be
mentioned that such a plea has neither been taken in the
statement of claim nor any thing has been stated in that
regard in the evidence of the workman. In absence of such
pleading, the contention cannot be entertained. Moreover,
it is clear from the pleadings of the parties and the evidence
on record and the specific suggestions given to the witness
examined on behalf of the party No. 1 in his cross-
examination that contract for supply of security guards
was given by party No. 1 to different contractors from
01.03.1989 till 14.03.1999.
Moreover, for the sake of argument, even if, it is held
that the party No. 1 had engaged the workman and others
as contract labourers in violation of the provisions of the
Contract Labour (Regulations and Abolition) Act, 1976,
then the persons responsible for such violation are liable
for criminal prosecution, but such violation of the
provisions of the above said Act, does not confer any
right on the workman to claim regularisation in service.
15. In this case, the letter No. U-23013/11/89/LW
dated 28.05.92, Govt. of India, Ministry of Labour shows
that the prohibition of employment of contract labour in
sweeping, cleaning dusting and watching of buildings
owned or occupied by the establishments of Food
Corporation of India and some other departments was lifted
by the Central Government. So, the engagement of contract
labour by the Party No. 1 cannot be said to be illegal. It is
also found from the materials on record that the appointment
of labour contractor by Party No. 1 for supply of Security
Guards was genuine and the same was not only on papers
as claimed by the workman. The workman has failed to
prove such claim by adducing cogent or reliable evidence.
The engagement of labour contractor by Party No. 1 was
not a mere ruse or camouflage to evade compliance of the
various beneficial legislations, so as to deprive the workman
of the benefits there under. The workman has not been
able to produce any documents to show that at any point
of time, Party No. 1 paid his wages as their employee. It is
clear from the evidence that Party No. 1 paid wages of the
last three months to the workman in presence of the Labour
Commissioner, as the contractor did not pay the same. As
it is clear from the evidence on record that the workman
was engaged as a contract labour with Party No. 1, by the
contractor and as such, it can be held that there was no
relationship of master and servant between the Party No. 1
and the workman. Hence, there was no question of
termination of the services by the Party No. 1 or
compliance of the provisions of Sections 25-F or 25-H of
the Act.
In view of the facts and circumstances of the case as
mentioned above, which are quite different from the
facts and the circumstances of the cases referred in the
decisions, on which reliance is placed by the union
representative, with respect, I am of the view that the said
decisions have no clear application to the present case in
hand.
16. It is the own case of the workman that he was
engaged by the contractor. So the contractor, who had
engaged the workman is a necessary party in the reference.
The said contractor has not been added as a party in this
reference. Due to non-joinder of necessary party, the
reference is bad in law.
In view of the materials on record and the discussions
made above and applying the principles enunciated by the
Hon'ble Apex Court in the three decisions mentioned above,
the reference cannot be answered in favour of the workman.
Hence, it is ordered:—
ORDER
The reference is answered in the negative. The
workman is not entitled to any relief.
J.P. CHAND, Presiding Officer
ubZ fnYyh] 15 ekpZ] 2013
dk-vk- 869-
—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,Qñ lhñ vkbZñ
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
ukxiqj ds iapkV ¼vkbZMh la[;k 287@2003½ dks izdkf'kr djrh gS]
tks dsUnzh; ljdkj dks 15@03@2013 dks izkIr gqvk FkkA
[lañ ,yñ&22012@230@2003&vkbZ vkj ¼lh ,e&II½]
chñ,eñ iVuk;d] MsLd vf/kdkjh]
2502
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(52-67)
New Delhi, the 15th March, 2013
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. 287/2003 of
the Cent. govt. Indus. Tribunal-cum-Labour Court,
NAGPUR as shown in the Annexure, in the industrial
dispute between the management of Food Corporation of
India, and their workmen, received by the Central
Government on 15/03/2013.
[No. L-22012/\230/2003-IR(CM-II)]
B.M. PATNAIK, Desk Officer,
ANNEXURE
BEFORE SHRI J. P. CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOURT COURT, NAGPUR
Case No. CGIT/NGP/287/2003
Date: 07.03.2013
Party No. 1 (a):
The District Manager,
Food Corporation of India,
Ajani, Nagpur,
Nagpur-440015.
Party No. 1 (b):
The Senior Regional Manager,
Food Corporation of India,
Mistry Bhawan, Dinshaw Wacha
Road, Churchgatye,
Mumbai-400020.
Versus
Party No. 2
:
The Secretary,
Rashtriya Mazdoor Sena, Hind Nagar
Ward No. 2, Near Boudha Vihar,
Post: Wardha, Distt. Wardha (M.S.)
AWARD
(Dated: 7th March, 2013)
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 Food Corporation of India and their
workman, Shri Anil Shriram Bhande, for adjudication, as
per letter No. L-22012/230/2003-IR (CM-II) dated 08.12.2003,
with the following schedule:—
"Whether the action of the management of Food
Corporation of India, Nagpur (M.S.) in terminating
the services of Shri Anil Shriram Bhande, Security
Guard w.e.f. 14.03.1999 is legal and justified? If not,
to what relief the concerned 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 Anil Shriram
Bhande ("the workman" in short), filed the statement of
claim and the management of Food Corporation of India
("Party No. 1" in short) filed their written statement.
The case of the workman as presented in the
statement of claim is that he was in the employment of
Party No. 1 from 23.01.1992 and he was initially engaged
through a contractor at Gondia Depot of Party No. 1 as a
Security Guard and he was in continuous service without
any interruption till 14th March, 1999, when his services
were terminated orally by Party No. 1, without following
the due procedure of law and he had completed more than
240 days of work in each year and the termination of his
services on 14.03.1999 was not in good faith, but in
colourable exercise of the rights and powers by the Party
No. 1 and while terminating his services, neither one
month's notice nor one month's wages in lieu of notice nor
retrenchment compensation was given to him as required
under section 25-F of the Act and after his illegal
termination, fresh hands from the department of home guard
and police were engaged by Party No. 1 to extract the duties
of Security guards, in violation of the provision of section
25-H of the Act and the work which he was performing is
constantly in existence and the same is of a perennial nature
and as his termination is illegal and unlawful, he is entitled
for reinstatement in service with continuity and full back
wages.
The further case of the workman is that in 1992, he
was engaged by the Party No. 1 through the contractor for
a period of two years, but the contract was made only on
papers and after every two years, the Party No. 1 changed
the contractor on papers only and the engagement of the
so-called contractor did not replace the Secuirty Guards
and he was also not disturbed from his services and he
was merely shown to be engaged by the contractors, but
actually, he was working under the direct control and
supervision of the Party No. 1 and the contractor had no
role to play in the same and the work performed by him was
being assigned to him by Party No. 1 and he was a regular
employee of Party No. 1 and Party No. 1 was his real
employer and not the contractor as alleged and the
engagement and change of contractors by Party No. 1 from
time to time was sham and only a camouflage to deny his
legitimate claim and the contract between Party No. 1 and
the contractor was bogus and not genuine and therefore,
his oral termination from services was against the
mandatory provisions of the Act and the Central
Government decided to abolish the appointment of contract
labour as contemplated under section 10 of the Contract
Labour (Regulation and Abolition) Act, 1970 and issued
notification on 01.11.1990 with directions to abolish the
contract labour system in the establishment of the Party
No. 1 and to give employment to contract labours engaged
by the management and therefore, it was the mandatory
duty of the Party No. 1 to abolish the contract labour system
in all places and management of FCI implemented the
notification only at Nagpur and Manmad and absorbed
the Security Guards working at Nagpur and Manmad, but
at Akola, Amravati, Wardha and Gondia districts, the
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2503
Server3/E/1250RR/1250RR(52-67)
contract labour system was continued by the management,
with an intention to deprive him from the benefits under
the labour laws.
It is further pleaded by the workman that his salary
was paid by the Party No. 1 and not by the contractor and
his daily attendance was also marked by the Asstt.
Manager of FCI, Wardha Depot and the Party No. 1 was
supervising his work through their officers and he had no
relation with the so-called contractors engaged by the Party
No. 1 and Party No. 1 also supplied the articles, such as,
torch, lathi, whistle and uniform etc to him and in view of
the long spell of work being carried out by him, he is entitled
to be reinstated in service with continuity and full back
wages.
3. The Party No. 1 in their written statement have
pleaded inter alia that the workman was never in their
employment and the workman has not impleded the
contractor, who appointed him, as a Party and the workman
was engaged by the contractor as a Security Guard at FCI
Depot and the said contractor is a necessary party and in
absence of the contractor, the proceeding cannot proceed
and the workman was not in their service uninterruptedly
till 14th March, 1999 and since the contract of the contractor
came to an end, the services of the workman were terminated
by the contractor and the original period of contract given
to the contractor for providing Security services was up to
1998 and the same was extended as per the terms and
conditions till March, 1999 and as the workman was not
employed by them, there was no question of following the
procedure of termination by them and they were not the
employer of the workman and the services of the workman
were never utilized by them as employer from 23.01.1992 to
14.03.1999, without any break in service and the workman
did not complete 240 days of work in a year as alleged and
as the workman was engaged by the Security Contractor,
there was no relationship of master and servant between
them and the workman at any point of time and under
section 10 of the Contract Labour (Regularisation and
Abolition) Act, they were exempted by the Central
Government, so the allegations made by the workman
against them are not true and there was no question of
violation of the provisions of 25 (H) of the Act and the
work does not constantly exist and the work of providing
security guards was given to other Government Agencies
like Police Personnel and Home guards and therefore, the
workman has no right to claim any relief from them and the
work of security is not perennial in nature and as and when
their go-downs are filled with food grains, then only,
services of the security guards are required and in
pursuance of the notification issued by the Central
Government abolishing contract labour system, they
appointed Home guards and Police personnel as security
guards.
The further case of party No. 1 is that for the relief as
claimed, by the workman had filed a writ petition before the
Hon'ble High Court, Nagpur Bench bearing W.P. No. 1389/
99 and the Hon'ble High Court rejected the said WP and
denied the relief prayed for and therefore, this Tribunal has
no jurisdiction to decide the reference and the decision of
the Hon'ble Court operates as res-judicata and they floated
tenders for the contract and lowest bidder was awarded
the contract and the change of contractor is every two
years was not on papers only and they had no say in the
appointment of security guards by the security contractor
and they had no control over the appointment and service
conditions of the workman, who was an employee of the
security agency and he was never their employee and the
security contractor was the employer of the workman.
The further case of party No. 1 is that the appropriate
government decided to abolish the employment of the
contract labour as contemplated under section 10 of the
Contract Labour (Regularisation and Abolition) Act, 1970
and the interpretation of the notification issued on
01.11.1990 put by the workman is not correct and they
were exempted from the operation of the Act of 1970 in the
year 1989 and the said exemption was withdrawn in the
year 1999 and therefore, the security contact given to the
contractor was terminated and hence, the services of the
workman were terminated by the security contractor and
they did not pay the salary to the workman and it was the
contractor, who was paying the same to the workman and
when the contractor failed to pay the salary to the workman,
they paid the amount as per the directions given by the
ALC from time to time and the said amount was recovered
from the contract's bill and they only used to check the
attendance of the security guards to find out as to whether
the contractor had made arrangement of the requisite
number of security guards, as per their requirement and
they did not have the power to terminate any employee
appointed by the contractor and they did not provide any
article, such as torch, Lathi, whistle and uniform etc to the
workman and as such, the workman is not entitled to any
relief.
4. Both parties have led oral evidence in support of
their respective claims, besides placing reliance on
documentary evidence.
The workman in support of his claims has examined
himself as a witness. In his evidence, which is on affidavit,
the workman has reiterated the facts mentioned in the
statement of claim.
2504
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(52-67)
5. In his cross-examination, the workman has admitted
that his original appointment was through contractor and
he has not filed any document showing payment of salary
to him by the F.C.I.
6. One Shri Mohan Govindrao Temburne has been
examined as a witness on behalf of the party No. 1. This
witness has also reiterated the facts mentioned in the written
statement, in his examination-in-chief, which is on affidavit.
In his cross-examination, this witness has admitted the
suggestions that contract for supply of security guards
was given to Singh Security Services for two years and
subsequently, the contract of Singh Security was extended
till 15.12.1996 and contract for supply of security guards
was given to M/s Chaitanya Security and Investigation
Services, Amaravati from January, !992 to May, 1992 and to
M/s Security Services Intelligence Bureau, Thane from
01.06.1992 to 31.03.1993 and to M/s Industrial Security and
Fire Services from 16.12.1996 to 15.12.1998 by FCI. The
witness has also admitted that inspite of change of
contractors, the workman worked continuously in FCI from
23.01.1992 to 14.03.1999. This witness has also admitted
the suggestion that on 14.03.1999, the contract of M/s
Industrial Security and Fire Services was expired. In his
cross-examination, this witness has further admitted that
the concerned officers of the FCI were issuing necessary
directions to the workman and other security guards
regarding the place and time of their performing duties and
the security guards posted at the gate of the Depot of FCI
were keeping accounts in a register regarding the number
of incoming and out- going vehicles to and from the depot
respectively and home guards and police personnel of the
state were engaged for watch and ward purpose of the
depot, after the disengagement of the workman and other
security guards and the work of watch and ward is a
continuous process in the FCI and the same is of perennial
in nature. This witness has further stated that the
contractors engaged by FCI were paying the wages to the
security guards deployed by them.
7. At the time of argument, it was submitted by the
union representative for the workman that the workman
was engaged by the management of FCI on 23.01.1992 at
Gondia depot as a security guard and he worked
continuously without any interruption till 14th March,1999
and his services were terminated orally by the party No.1,
without following the due procedure of law and the workman
had completed more than 240 days of work in each year
and before termination of the services of the workman,
neither one month's notice nor one month's wages in lieu
of notice nor retrenchment compensation was given to the
workman, as required under section 25-F of the Act and
after termination of the services of the workman, fresh hands
were engaged by party No.1 to extract the duties of security
guard, in violation of the provision of section 25-H of the
Act and the work of security guard is perennial in nature,
hence the termination of the workman is void and illegal.
It was further submitted by the union representative
for the workman that the party No.1 had shown the workman
as contract labour, but the so-called contract was made on
papers and the workman was actually working under the
direct control and supervision of the party No.1 and he
was never a contract labour and such action of the party
No.1 was sham and only a camouflage to deny the legitimate
claim of the workman and the so-called contract between
the management and the contractor was bogus and not
genuine and the Central Government by notification dated
01.11.1990 abolished the employment of contract labour
and directed to give employment to contract labours
engaged by the management and therefore, the management
of FCI was bound to abolish the contract labour system
and to give employment to the workman.
It was further submitted by the union representative
that on 29.06.2007, an application was filled by the workman
for production of nine documents relating to him, from
which, it could have been held without any doubt that the
workman was an employee of the party No.1 and not a
contract labour and after hearing the parties, the Tribunal
by order dated 30.05.2008 directed the party No.1 to produce
the documents, but inspite of the order passed by the
Tribunal for production of documents, the party No.1 failed
to produce the documents and as such, adverse inference
is to be drawn against the party No.l.
In support of such contentions, reliance was placed
by the union representative on the decisions reported in
2005 ICLR-254 (Statesman Ltd. & Anr. Vs. Eight Industrial
Tribunal, West Bengal & ors.) and 2004 (103) FLR-187
(Municipal Corporation, Faridabad and Shri Niwas).
It was also submitted by the union representative
that neither the party No.1 nor the so-called contractors
engaged by the party No.1 were registered with the Regional
Labour Commissioner as per rules to engage contract
labours and infact the so-called contractors were mediators
and not contractors and even though there was legal ban
on engagement of contract labourers, the party No.1
engaged the workman and some others as security guards
and from the pleadings of the parties, the evidence on
record and the admission of the witness examined on behalf
of the Party No. 1 that from the date of his initial engagement
the workman worked till 14.03.1999 clearly show that the
workman was the employee of the party No.1 and the party
No.1 is the real employer and there was master and servant
relationship between the party No.1 and the workman and
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2505
Server3/E/1250RR/1250RR(52-67)
the so called contract given to the contractor expired on
31.012.1998 and though party No.1 unilaterally extended
the contract, the contractor did not accept the same and
without any contractor, the workman continued the work
with party No.1 till 14.03.1999 and the party No.1 paid the
wages from 01.01.1999 to 14.03.1999 to the workman and
such facts also prove that the workman was the employee
of party No.1 and it was party No.1, who terminated the
services of the workman without compliance of the
mandatory provisions of section 25-F of the Act. In support
of the submissions, the union representative placed reliance
on the decisions reported in 1994 II CLR-402 (R.K. Panda
Vs. Steel Authority), 2003 (98) FLR-826 (M/s. Bharat Heavy
Electricals Ltd. Vs. State of UP) and 2011 (128) FLR-99
(Mahesh Kumar Sharma Vs. D.F.O., General Forest Division,
Sheopur).
It was also submitted by the union representative
for the workman that party No.1 has admitted the claims
made by the workman and has not been able to prove their
claim that the workman was a contract labour, by producing
cogent evidence in support of the same and as such, the
workman is entitled for reinstatement in service with
continuity and full back wages.
8. Per contra, it was submitted by the learned advocate
for the party No. 1 that the workman was never appointed
by party No. 1 and he has engaged by the contractor as a
security guard and as such, the concerned contractor is a
necessary party and inspite of raising such objection in
the written statement, the workman did not implead the
contractor as a party and for that the reference is not
maintainable. It was further submitted by the learned
advocate for the party No. 1 that the workman was engaged
by the contractor and as the contract of the contractor
came to an end in March, 1999, the services of the workman
were terminated by the contractor and as such, there was
no question of party No. 1 complying with the due
procedure of termination and there was no relationship of
master and servant between the party No. 1. and the
workman and the party No. 1 was exempted by the Central
Government from the ban imposed for engagement of
contract labourers, so contract was given to the security
contractor, as per rules, for supply of security guards and
due to the notification of the Government for abolition of
contract labour system, Home guards and Police personnel
were appointed as security guards and party No. 1 has no
control over the workman and the security contractor was
submitting bills for payment for supply of security guards
and the security contractor was paying the wages to the
workman. It was further submitted by the learned advocate
for the party No. 1 that the workman and some others had
approached the Hon'ble High Court, Nagpur Bench in W.P.
1389 of 1999 for the reliefs sought in this reference and the
Hon'ble High Court while depositing of the said petition
have held that the termination of the workman by the
contractor was a valid one and the action of FCI was legal
and as such, the workman cannot agitate the question again
and the decision of the Hon'ble High Court operates as
res-judicata between the parties and the workman is not
entitled to any relief.
In the alternative, it was submitted by the learned
advocate for the party No. 1 that the party No. 1 is a "State"
as per the provisions of Article 12 of the Constitution of
India and it has a set Rules for appointment of its employees
and it is clear that the workman was never engaged by
party No. 1 as per the Rules of appointment and no evidence
has been adduced by the workman to prove that he had
worked for 240 days with party No. 1 in the preceding 12
calendar months of the date of the alleged termination and
as such, there was not question of compliance of Section
25-F or 25-H of the Act and the workman is not entitled to
any relief.
In support of such contentions, the learned
advocates for the party No. 1 placed reliance on the
decisions of the Hon'ble Apex Court in Appeal (Civil) 7038/
2002 (M/s. Essen Deinki Vs. Rajiv Kumar), Appeal (Civil)
6303-6316 of 2003 (Manager, RBI, Bangalore Vs. S. Mani),
Appeal (Civil)-6511 of 2005 (Surendranagar District
Panchayat Vs. Dayachai Amar Singh), Appeal (Civil) 3639/
2006 (Krishna Bhagaya Jala Nigam Vs. Md. Raffi) and Appeal
(Civil) 2969/2004 (Rajasthan State Gangasagar Mills Ltd.
Vs. State of Rajasthan).
9. First of all, I will take up the submission made by
the learned advocate for the party No. 1 that the present
reference is hit by the principles of res- judicata, due to the
decision of the Hon'ble High Court, Nagpur Bench in W.P.
1389/99.
It is not disputed that the workman along with 78
others through the union, "Rashtriya Mazdoor Sena
Saptahit Jaibhim" had filed Writ Petition No. 1389/99 before
the Hon'ble High Court of Judicature at Bombay, Nagpur
Bench, Nagpur, for their regularisation and the Hon'ble
High Court did not grant such relief. On perusal of the
order passed by the Hon'ble High Court on 29.07.2002 in
the said writ petition, it is found that the workman and
others claimed regularisation on the ground that they were
employed by the contractor for doing regular work of the
Food Corporation of India and in view of the same, they
have become workmen of Food Corporation of India, since
the work on which they were employed is of perennial
nature. However, it is found from the judgment that the
Hon'ble Court did not consider the main relief and passed
2506
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(52-67)
the following order:
"In view of the judgment of the Constitution Bench
in Steel Authority of India Ltd. and others Vs.
National Union Water Front Workers and others
[reported in 2001 (7) SCC1], the relief sought by the
petitioners cannot be granted since the petition
involves disputed question of facts as also other
facts which are required to be adjudicated by
appropriate authority. Accordingly, the main prayer
to absorb them cannot be granted.
** ** **
In view of the rejection of the main prayer, the question
of granting other prayer does not arise. In case, the
petitioners approach the appropriate authority, the
appropriate authority shall take decision in the matter
within a period of one year. The applicants are free to
approach the appropriate authority for redressal of
their grievances."
So, it is clear from the orders passed by the Hon'ble
High Court as mentioned above that the Hon'ble High Court
did not consider the claim made by the workman and others
on merit and granted them the liberty to approach the
appropriate authority for redress. Hence, the reference
cannot be said to be hit by the principles of res-judicata.
So, there is no force in the contention raised by the learned
advocate for the party No. 1.
10. In this reference, it is never the case of the
workman that he was directly appointed or engaged by the
party No. 1 as a security guard. In the very beginning of
the statement of claim, it has been mentioned by the
workman that he was initially engaged at Food Corporation
of India Depot, Gondia as a security guard, through a
contractor. In paragraph 4 of the statement of claim, the
workman has mentioned that, "the year 1992, he was
engaged by the Food Corporation of India through
contractor, for a period of 2 years, but the contract was
made on paper". The case of the workman is that after
every two years, the party No. 1 on papers showed the
change of contractors, but he was not disturbed from
services and he worked continuously without any break
till 14.03.1999 and as he worked as a security guard of
perennial nature, he is entitled for reinstatement in service.
The workman has also claimed that as the Central
Government issued notification on 01. 11. 1990 to abolish
the contract labour system in FCI and directed to give
employment to contract labours engaged by the
management and party No. 1 implemented such direction
at Nagpur and Manmad only and gave employment and
regularized and absorbed the services of the Security Guards
working at Nagpur and Manmad and did not implement the
same at Wardha and other places to deprive him from the
benefits under the Labour Laws.
In his evidence on affidavit also, the workman has
mentioned that he was initially engaged in Food
Corporation of India as a security guard through a
contractor.
From the evidence on record and the own admission
of the workman in the cross-examination including the
specific admission that he was engaged by the contractor
and the contractor left him to FCI and he was appointed
through Singh Securities Services, it is clear that the
workman was engaged by the contractor. The workman
has not produced any evidence to show that he was
directly engaged by the Party No. 1.
11. At this juncture, I think it apropos to mention
about the principles enunciated by the Hon'ble Apex Court
regarding contract labours, in the decision reported in 1994
II CLR-402 (Supra), on which reliance is placed by the union
representative and the two decisions reported in 1985-II
LLJ-4 (S.C.) (The workman of the Food Corporation of India
Vs M/s Food Corporation of India) and 2001 LAB IC 3656
(S.C.) (Steel Authority of India Ltd. and others Vs. National
Union Water Front workers and others).
In the decision reported in 1994-II CLR-402 (Supra)
the Hon'ble Apex Court have held that:—
2. With the industrial growth, the relation between
the employer and the employees also has taken a new turn.
At one time the establishment being the employer all
persons working therein were the employees of such
employer. But slowly the employer including Central and
State Governments started entrusting many of the jobs to
contractors. Contractors in their turn employed a worker,
who has no direct relationship with the establishment in
which they were employed. Many contractors exploited
the labourers engaged by them in various manners
including the payment of low wages. Hence, the Contract
Labour (Regulation and Abolition) Act, 1970 was enacted
to regulate the employment of contract labour in certain
establishment and to provide for its abolition in certain
circumstances and for matters connected therewith.
3. The "Contract Labour" has been defined in Section
2 (1) (b) to mean a workman, who has been employed as
contract labour in or in connection with the work of an
establishment when he is hired in or in connection with
such work by or through a contractor, with or without the
knowledge of the principal employer. Section 2 (1) (c)
defines "Contractor" to mean a person who undertakes to
produce a given result for the establishment, other than a
mere supply of goods or articles of manufacture to such
establishment, through contract labour or who supplies
contract labour for any work of the establishment and
includes a sub-contractor. "Principal employer" has been
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2507
Server3/E/1250RR/1250RR(52-67)
defined to mean (i) in relation to any office or department
of the Government or a local authority, the head of that
office or department or such other officer as the
government or the local authority, as the case may be, may
specify in this behalf and (ii) in a factory, the owner or
occupier of the factory. In view of section 10, of 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," Sub-section (2) of Section 10 requires
that before issuing any such notification, in relation to an
establishments, 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. One of the relevant factors, which is to be taken
into consideration is whether the work performed by the
contract labourers is of perennial nature. Section 12 enjoins
that no contractor to whom this Act is applicable shall
undertake or execute any work through contract labour
except under and in accordance with a license issued in
that behalf by the licensing authority. The license so issued
may contain conditions in respect of hours of work, fixation
of wages and other essential amenities in respect of contract
labour as the appropriate Government may deem fit to
impose in accordance with rules. Section 20 provides that
if any amenity required to be provided under section 16,
section 17, section 18, or section 19 for the benefit of the
contract labour employed in an establishment, is not
provided by the contractor within the time prescribed by
the contractor within the time prescribed therefore, such
amenity shall be provided by the principal employer within
such time as may be prescribed and all expensed incurred
by the principal employer in providing the amenity may be
recovered by the principal employer from the contractor
"either by deduction from any amount payable to the
contractor under any contract or as a debt payable by the
contractor". Section 21 says that a contractor shall be
responsible for the payment of wages to each worker
employed by him as contract labour but at the same time in
order to protect the interest of such contract labour, it
requires every principal employer to nominate a
representative duly authorized by him to be present at the
time of disbursement of wages by the contractor. It shall be
the duty of the contractor to ensure the disbursement of
wages in the presence of the authorized representative of
the principal employer. Because of sub-section (4) of
section 21, if the contractor fails to make payment of wages
within the prescribed period, then the principal employer
shall be liable to make payment of wages in full to the
contact labour employed by the contractor and recover
the amount so paid from the contractor. Any contravention
of the provisions aforesaid has been made penal for which
punishment can be imposed.
4. From the provisions referred to above, it is apparent
that the framers of the Act have allowed and recognized
contract labour and they have never purported to abolish
it in its entirety. The primary object appears to be that there
should not be any exploitation of the contract labourers by
the contractor or the establishment. For achieving that
object, statutory restrictions and responsibilities have been
imposed on the contractor as well as on the principal
employer. Of course if any expenses are incurred for
providing any amenity to the contract labourers or towards
the payment of wages by the principle employer he is
entitled to deduct the same from the bill of the contractor.
The Act also conceives that all appropriate government
may after consultation with the central board or the state
board, as the case may be, prohibit by notification in official
gazette, employment of contract labour in any process,
operation or other work in any establishment, taking all
facts and circumstances of employment of contract labour
in such process, operation or the work into consideration.
5. Of late a trained amongst the contract labourers is
discernible that after having work for some years, they
make a claim that they should be absorbed by the principal
employer and be treated as employees of the principal
employer especially when the principal employer is the
central government or the state government or an authority
which can be held to be state within the meaning of Article
12 of the constitution, although no right flows from the
provisions of the act for the contract labourers to be
absorbed or to become the employees of the principal
employer. This court in the case of Gammon India Limited
V. Union of India (1974) I SCC 596, pointed out the object
and scope of the act as follows:—
"The Act was passed to prevail the exploitation of
contract labour and also to introduce better condition
of work. The Act provides for regulation and abolition
of contract labour. The underline policy of the Act is
to abolish contract labour, wherever possible and
practicable and where it cannot be abolished to
altogether, the policy of the Act is that the working
conditions of the contract labour should be so
regulated as to ensure payment of wages and
provisions of essential amenities. This is why the
Act provides for regulated conditions of work and
contemplates progressive abolition to the extent
contemplated by Section 10 of the Act."
2508
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(2) (68-120)
In the case of B.H.E.L. Workers' Association V. Union
of India, 1985 I CLR SC 165 = (1985) 1 SCC 630 it was
pointed out that Parliament has not abolished the contract
labour as such but has provided for its abolition by the
Central Government in appropriate cases under section 10
of the Act. It is not for the court to enquire into the question
and to decide whether the employment of contract labour
in any process, operation or other work in any establishment
should be abolished or not. That has to be decided by the
government after considering the relevant aspects as
required by Section 10 of the Act. Again in the case of
Mathura Refinery Mazdoor Sangh V. Indian Oil Corporation
Ltd., 1991 I CLR 684, this court refused to direct the Indian
Oil Corporation Ltd., to absorb the contract labourers in its
employment saying that, the contract labourers have not
been found to have direct connection with the refinery. In
other words, there was no relationship of employer and
employee between the Indian Oil Corporation Ltd. and the
contract labourers concerned. Again in Dena Nath V.
National Fertilizers Ltd., 1992 I CLR 1, this court pointed
out that the aforesaid Act has two purposes to serve (i) to
regulate the conditions of service of the worker employed
by the contractor who is engaged by a principal employer
and (ii) to provide for the abolition of contract labour
altogether, in certain notified processes, operation or other
works in any establishment by the appropriate government,
under section 10 of the Act. It was further stated that neither
the Act nor the Rules framed by the central government or
by any appropriate government provide that upon abolition
of contract labour, the labourers would be directly absorbed
by the principal employer.
6. It is true that with passage of time and purely with
a view to safeguard the interests of workers, many principal
employers while renewing the contracts have been insisting
that the contractor or the new contractor retains the old
employees. Infact such a condition is incorporated in the
contract itself. However, such a clause in the contract which
is bene-volently inserted in the contract to protect the
continuance of the source of livelihood of the contract
labour cannot by itself give rise to a right to regularization
in the employment of the principal employer. Whether the
contract labourers have become the employees of the
principal employer in course of time and on whether the
engagement and employment of labourers through a
contractor is a mere camouflage and a smoke screen, as
has been urged in this case, is a question of fact is to be
established by the contract labourers on the basis of the
requisite material. It is not possible for High Court or this
court, while exercising writ jurisdiction or jurisdiction under
Article 136 to decide such questions only on the basis of
the affidavits. It need not to be pointed out that in all such
cases, the labourers are initially employed and engaged by
the contractors. As such at what point of time a direct link
is established between the contract labourers and the
principal employer, eliminating the contractor from the
scene, is a matter which has to be established on material
produced before the court. Normally, the Labour Court and
the Industrial Tribunal, under the Industrial Disputes Act
are the Competent Flora to adjudicate such disputes on
the basis of the oral and documentary evidence produced
before them."
12. In the decision reported in 1985-11 LLOJ-4 (supra)
the Hon'ble Apex Court have held that:—
"Briefly stated, when corporation engaged a
contractor for handling food grain at Siliguri
Depot, the corporation had nothing to do with
the manner of handling work done by the
contractor, the labour force employed by him,
payments made by him etc. In such a fact situation,
there was no privity of contract of employer and
workmen between the corporation and the
workmen. "Workmen" has been defined (omitting
the words not necessary) in the Industrial
Disputes Act to mean (any person including an
apprentice) employed in any industry to do...........".
'The expression' employed has at least two known
connotations, but as used in the definition, the
context would indicate that it is used in the sense
of a relationship brought about by express or
implied contract of service in which the employee
renders service for which he is engaged by the
employer and the latter agrees to pay him in cash
or kind as agreed between them or statutorily
prescribed. It discloses a relationship of command
and obedience. The essential condition of a
person being a workman within the terms of the
definition is that he should be employed do to the
work in that industry and that there should be, in
other words, an employment of his by the
employer and that there should be a relationship
between the employer and employee or master
and servant unless a person is thus employed
there can be no question of his being a "workman"
within the definition of the term as contained in
the Act.
Dharangadhara Chemical Works Ltd. Vs. State of
Saurashtra (1957 - I - LLJ - 477). Now where a
contractor employs a workman to do the work
which he contracted with a third person to
accomplish on the definition as it stands, the
workman of the contractor would not without
something more become the workman of that third
person. Therefore, when the workmen employed
by the contractor were certainly not the workmen
of the corporation and no claim to that effect has
been made by the union."
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2509
Server3/E/1250RR/1250RR(2) (68-120)
13. In the decision reported in 2001 LAB IC - 3656
(supra) the Hon'ble Apex Court have held that:—
"The principle that a beneficial legislation needs
to be constructed liberally in favour of the class
for whose benefit it is intended, does not extend
to reading in the provisions of the Act what the
legislature has not provided whether expressly or
by necessary implication, or substituting remedy
or benefits for that provided by the legislature.
The intendment of the CLRA Act is to regulate
the conditions of service of the contract labour
and to authorize in Section 10(1) prohibition of
contract labour system by the appropriate
Government on consideration of factors
enumerated in sub-section (2) of Section 10 of the
Act among other relevant factors. But, the
presence of some or all those factors, provide no
ground for absorption of contract labour on
issuing notification under Section 10(1) by the
appropriate Government, is not alluded to either
in Section 10 or at any other place in the Act and
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 the Supreme 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 it
absorption of contract labour in the establishment
of principal employer or a lesser or a 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.
Thus on issuance of prohibition notification
under S. 10(1) of the CLRA Act prohibiting
employment of contract labour or otherwise, in
an industrial dispute brought before it by any
contract 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 legislations so
as to deprive the workers of the benefit there under.
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 concerned establishment. If the contract is
found to be genuine and the principal employer
intends to employ regular workmen he shall give
preference to the erstwhile contract labour. It
otherwise found suitable, and, if necessary, by
relaxing the condition as to maximum age
appropriately taking into consideration the age
of the workers at the time of their initial
employment by the contractor and also relaxing
the condition as to academic qualifications other
than technical qualifications.
Air India's case 1997 AIR SCW430
Overruled prospectively. M.A.T. Nos. 1704 and
1705 of 1999, D/ -12-8-1999 (Cal): C.O. No. 6545(W)
if 1996, D/ -09-5-1997 (Cal): W.A. Nos. 345-354 of
1997m D/ -17-4-1998 (Kant): W.P. No. 4050 of
1999, D/ -2-8-2000 (Bom): and W.P. No. 2616 of
1999, D/ -23-12-1999 (Bom), 1998 Lab IC 2571
(Cal), Reversed.
It cannot be said that by virtue of
engagement of contract labour by the contractor
in any work of or in connection with the work of
an establishment, the relationship of master and
servant is created between the principal employer
and the contract labour. Even a combined reading
of the definition of the terms "Contract labour",
"Establishment" and "Workman" does not show
that the legal relationship between the person
employed in any industry and the owner of the
industry is created irrespective of the fact as to
who has brought about such relationship. The
word "Workman" is defined in wide terms. It is a
generic term of which contract labour is a species.
It is true that combined reading of the terms
"Establishment" and "Workman" shows that a
workman engaged in any establishment would
have direct relationship with the principal
employer as a servant of master. But what is true
of a workman could not be correct of contract
labour. When the provisions of the Act neither
contemplate creation of direct relationship of
master and servant between the principal employer
and the contract labour nor can such relationship
be implied from the provisions of the action issuing
notification under Section 10(1) of the CLRA Act.
A fortiori much less can such a relationship be
found to exist from the rules and the forms made
there under".
So, keeping in view the principles enunciated by the
Hon'ble Apex Court in the dicisions mentioned above, the
present case in hand is to be considered.
14. So far the contention raised by the union
representative regarding drawing of adverse inference
against the Party No. 1 for non-production of ducuments
as ordered by the Turibunal on the application of the
workman is concerned, it is to be mentioned that it is
2510
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(2) (68-120)
admitted by the workman that he was engaged through the
contractor in F.C.I. and due his such engagement, it was
quite natural for the Party No. 1 to direct him to perform
different duties as a security guard and to see that duties
entrusted to him were done properly. Moreover, the Party
No. 1 have produced number of documents to show that
the workman was a contract labour and payment of wages
to him was made by the contractors. Hence, for non-
production of the documents by Party No. 1, there is no
need to draw any adverse inference. As the facts and
circumstances of the case in hand are quite different from
the facts and circumstances of the cases referred in the
decisions by the Hon'ble Courts, or which reliance has
been placed by the union representative, with respect, I am
of the view that the said decisions have no clear application
of this case.
15. So far the contention raised by the union
representative regarding the non-registration of the Party
No. 1 or the contractors with the Regional Labour
Commissioner as per Rules is concerned, it is to be
mentioned that such a plea has neither been taken in the
statement of claim nor any thing has been stated in that
regard in the evidence of the workman. In absence of such
pleading, the contention cannot be entertained. Moreover,
it is clear from the pleadings of the parties and the evidence
on record and the specific suggestions given to the witness
examined on behalf of the Party No. 1 in his cross-
examination that contract for supply of security guards
was given by Party No. 1 to different contractors from
01.03.1989 till 14.03.1999.
Moreover, for the sake of argument, even if, it is held
that the Party No. 1 had engaged the workman and others
as contract labourers in violation of the provisions of the
Contract Labour (Regulations and Abolition) Act, 1976,
then the persons responsible for such violation are liable
for criminal prosecution, but such violation of the
provisions of the above said Act, does not confer any
right on the workman to claim regularisation in service.
16. In this case, the letter No. U-23013/11/89/LW
dated 28.05.92, Govt. of India, Ministry of Labour shows
that the prohibition of employment of contract labour in
sweeping, cleaning, dusting and watching of buildings
owned or occupied by the establishments of Food
Corporation of India and some other departments was lifted
by the Central Government. So, the engagement of contract
labour by the Party No. 1 cannot be said to be illegal. It is
also found from the materials on record that the appointment
of labour contractor by Party No. 1 for supply of Security
Guards was genuine and the same was not only on papers
as claimed by the workman. The workman has failed to
prove such claim by adducing cogent or reliable evidence.
The engagement of labour contractor by Party No. 1 was
not a mere ruse or comouflage to evade compliance of the
various beneficial legislations, so as to deprive the workman
of the benefits there under. The workman has not been
able to produce any document to show that at any point of
time, Party No. 1 paid his wages as their employee. It is
clear from the evidence that Party No. 1 paid wages of the
last three months to the workman in presence of the Labour
Commissioner, as the contractor did not pay the same. As
it is clear from the evidence on record that the workman
was engaged as a contract labour with Party No. 1, by the
contractor as such, it can be held that there was no
relationship of master and servant between the Party No. 1
and the workman. Hence, there was no question of
termination of the services by the Party No. 1 or compliance
of the provisions of Sections 25-F or 25-H of the Act.
In view of the facts and circumstances of the case as
mentioned above, which are quite different from the facts
and the circumstances of the cases referred in the decisions,
on which reliance is placed by the union representative,
with respect, I am of the view that the said decisions have
no clear application to the present case in hand.
17. It is the own case of workman that he was engaged
by the contractor. So the contractor, who had engaged the
workman is a necessary party in the reference. The said
contractor has not been added as a party in this reference.
Due to non-joinder of necessary party, the reference is bad
in law.
In view of the materials on record and the discussions
made above and applying the principles enunciated by the
Hon'ble Apex Court in the three decisions mentioned above,
the reference cannot be answered in favour of the workman.
Hence, it is ordered:—
ORDER
The reference is answered in the negative. The workman
is not entitled to any relief.
J.P. CHAND, Presiding Officer
ubZ fnYyh] 15 ekpZ] 2013
dk-vk- 870-
—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,QñlhñvkbZñ
d
s
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 ukxiqj
ds iapkV ¼vkbZMh la[;k 292@2003½ dks izdkf'kr djrh gS tks dsUnzh;
ljdkj dks 15@03@2013 dks izkIr gqvk FkkA
¼chñ,eñ iVuk;d½ MsLd vf/kdkjh
[lañ ,y&22012@235@2003&vkbZñvkjñ ¼lh ,e-II½]
New Delhi, the 15th March, 2013
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. 292/2003
of the Central Government Industrial Tribunal-cum-Labour
Court NAGPUR as shown in the Annexure, in the Industrial
dispute between the management of Food Corporation of
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2511
Server3/E/1250RR/1250RR(2) (68-120)
India, and their workmen, received by the Central
Government on 15/03/2013
[No. L-22012/235/2003-IR(CM-II)]
B.M. PATNAIK, Desk Officer.
ANNEXURE
BEFORE SHRI J.P. CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No. CGIT/NGP/292/2003
Date: 07.03.2013.
Party No. 1(a) :
The District Manager
Food Corporation of India,
Ajani, Nagpur,
Nagpur—440015.
Party No. 1(b) :
The Senior Regional Manager,
Food Corporation of India,
Mistry Bhawan, Dinshaw Wacha
Road, Churchgate,
Mumbai—400020.
Versus
Party No. 2
:
The Secretary,
Rashtriya Mazdoor,sena, Hind Nagar
Ward No. 2, Near Boudha Vihar,
Post: Wardha, Distt. Wardha (M.S)
AWARD
(Dated: 7th March, 2013)
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 Food Corporation of India and their
workman, Shri Vijay Domeshwar Faye, for adjudication, as
per letter No. L-22012/235/2003-IR (CM-II) dated
08.12.2003, with the following schedule:—
"Whether the action of the mangement of Food
Corporation of India, Nagpur (M.S.) in terminating the
services of Shri Vijay Domeshwar Faye, Security Guard
w.e.f. 14.03.1999 is legal and justified? If not, to what relief
the concerned 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 Vijay
Domeshwar Faye ("the workman" in short), filed the
statement of claim and the management of Food Corporation
of India ("Party No. 1" in short) filed their written statement.
The case of the workman as presented in the
statement of claim is that he was in the employment of
Party No. 1 from 09.10.1998 and he was initially engaged
through a contractor at Gondia Depot of Party No. 1, as a
Security Guard and he was in continuous service without
any interruption till 14th March, 1999, when his service
were terminated orally by Party No.1, without following
the due procedure of law and he had completed more than
240 days of work in each year and the termination of his
services on 14.03.1999 was not in good faith, but in
colourable exercise of the rights and powers by the Party
No. 1 and while terminating his services, neither one
month's notice nor one month's wages in lieu of notice nor
retrenchment compensation was given to him as required
under section 25-F of the Act and after his illegal
termination, fresh hands from the department of home guard
and police were engaged by Party No. 1 to extract the duties
of Security guards, in violation of the provision of section
25-H of the Act and the work which he was performing is
constantly in existence and the same is of a perennial nature
and as his termination is illegal and unlawful, he is entitled
for reinstatement in service with continuity and full back
wages.
The further case of the workman is that in 1998,
he was engaged by the Party No. 1 through the contractor
for a period of two years, but the contract was made only
on papers and after every two years, the Party No. 1
changed the contractor on papers only and the engagement
of the so-called contractor did not replace the Security
Guards and he was also not disturbed from his services
and he was merely shown to be engaged by the contractors,
but actually, he was working under the direct control and
supervision of the Party No. 1 and the contractor had no
role to play in the same and the work performed by him was
being assigned to him by Party No. 1 and he was regular
employee of Party No. 1 and Party No. 1 was his real
employer and not the contractor as alleged and the
engagement and change of contractors by Party No. 1 from
time to time was sham and only a camouflage to deny his
legitimate claim and the contract between Party No. 1 and
the contractor was bogus and not genuine and therefore,
his oral termination from services was against the
mandatory provisions of the Act and the Central
Government decided to abolish the appointment of contract
labour as contemplated under section 10 of the Contract
Labour (Regulation and Abolition) Act, 1970 and issued
notification on 01.11.1990 with directions to abolish the
contract labour system in the establishment of the Party
No. 1 and to give employment to contract labours engaged
by the management and therefore, it was the mandatory
duty of the Party No. 1 to abolish the contract labour system
in all places and management of FCI implemented the
notification only at Nagpur and Manmad and absorbed
the Security Guards working at Nagpur and Manmad, but
at Akola, Amravati, Wardha and Gondia districts, the
contract labour system was continued by the management,
with an intention to deprive him from the benefits under
the labour laws.
It is further pleaded by the workman that his salary
was paid by the Party No. 1 and not by the contractor and
2512
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(2) (68-120)
his daily attendance was also marked by the Asstt.
Manager of FCI, Wardha Depot and the Party No. 1 was
supervising his work through their officers and he had no
relation with the so called contractors engaged by the Party
No. 1 and Party No. 1 also supplied the articles, such as,
torch, lathi, whistle and uniform etc to him and in view of
the long spell of work being carried out by him, he is entitled
to be reinstated in service with continuity and full back
wages.
3. The Party No. 1 in their written statement have
pleaded inter alia that the workman was never in their
employment and the workman has not impleded the
contractor, who appointed him, as a Party and the workman
was engaged by the contractor as a Security Guard at FCI
Depot and the said contractor is a necessary party and in
absence of the contractor, the proceeding cannot proceed
and the workman was not in their service uninterruptedly
till 14th March, 1999 and since the contract of the contractor
came to an end, the services of the workman were terminated
by the contractor and the original period of contract given
to the contractor for providing Security services was up to
1998 and the same was extended as per the terms and
conditions till March, 1999 and as the workman was not
employed by them, there was no question of following the
procedure of termination by them and they were not the
employer of the workman and the services of the workman
were never utilized by them as employer from 09.10.1998 to
14.03.1999, without any break in service and the workman
did not complete 240 days of work in a year as alleged and
as the workman was engaged by the Security Contractor,
there was no relationship of master and servant between
them and the workman at any point of time and under
section 10 of the Contract Labour (Regularisation and
Abolition) Act, they were exempted by the Central
Government, so the allegations made by the workman
against them are not true and there was no question of
violation of the provisions of 25 (H) of the Act and the
work does not constantly exist and the work of providing
security guards was given to other Government Agencies
like Police Personnel and Home guards and therefore, the
workman has no right to claim any relief from them and the
work of security is not perennial in nature and as and when
their godowns are filled with food grains, then only, services
of the security guards are required and in pursuance of the
notification issued by the Central Government abolishing
contract labout system, they appointed Home guards and
Police personnel as security guards.
The further case of Party No. 1 is that for the relief
as claimed, by the workman had filed a writ petition before
the Hon'ble High Court, Nagpur Bench bearing W.P. No.
1389/99 and the Hon'ble High Court rejected the said WP
and denied the relief prayed for and therefore, this Tribunal
has no jurisdiction to decide the reference and the decision
of the Hon'ble Court operates as res-judicata and they
floated tenders for the contract and lowest bidder was
awarded the contract and the change of contractor in every
two years was not on papers only and they had no say in
the appointment of secuirty guards by the security
contractor and they has no control over the appointment
and service conditions of the workman, who was an
employee of the security agency and he was never their
employee and the security contractor was the employer of
the workman.
The further case of Party No. 1 is that the
appropriate government decided to abolish the employment
of the contract labour as contemplated under section 10 of
the Contract Labour (Regularisation and Abolition) Act,
1970 and the interpretation of the notification issued on
01.11.1990 put by the workman is not correct and they were
exempted from the operation of the Act of 1970 in the year
1989 and the said exemption was withdrawn in the year
1999 and therefore, the security contact given to the
contractor was terminated and hence, the services of the
workman were terminated by the security contractor and
they did not pay the salary to the worman and it was the
contractor, who was paying the same to the workman and
when the contractor failed to pay the salary to the workman,
they paid the amount as per the directions given by the
ALC from time to time and the said amount was recovered
from the contract's bill and they only used to check the
attendance of the security guards to find out as to whether
the contractor had made arrangement of the requisite
number of security guards, as per their requirement and
they did not have the power to terminate any employee
appointed by the contractor and they did not provide any
article, such as torch, Lathi, whistle and uniform etc to the
workman and as such, the workman is not entitled to any
relief.
4. Both parties have led oral evidence in support
of their respective claims, besides placing reliance on
documentary evidence.
The workman in support of his claim has examined
himself as a witness. In his evidence, which is on affidavit,
the workman has reiterated the facts mentioned in the
statement of claim.
5. In his cross-examination, the workman has
admitted that his original appointment was through
contractor and he has not filed any document showing
payment of salary to him by the F.C.I.
6. One Shri Mohan Govindrao Temburne has been
examined as a witness on behalf of the Party No. 1. This
witness has also reiterated the facts mentioned in the written
statement, in his examination-in-chief, which is on affidavit.
In his cross-examination, this witness has admitted the
suggestion that the workman, Vijay Faye was engaged by
the contractor as a Security Guard for some days, after the
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2513
Server3/E/1250RR/1250RR(2) (68-120)
death of Keshav D. Faye.
7. At the time of argument, it was submitted by
the union representative for the workman that the workman
was engaged by the management of FCI on 09.10.1998 at
Gondia depot as a security guard and he worked
continuously without any interruption till 14th March, 1999
and his services were terminated orally by the Party No. 1,
without following the due procedure of law and the
workman had completed more than 240 days of work in
each year and before termination of the services of the
workman, neither one month's notice nor one month's
wages in lieu of notice nor retrenchment compensation
was given to the workman, as required under section 25-F
of the Act and after termination of the services of the
workman, fresh hands were engaged by Party No. 1 to
extract the duties of security guard, in violation of the
provision of section 25-H of the Act and the work of
security guard is pernnial in nature, hence the termination
of the workman is void and illegal.
It was further submitted by the union
representative for the workman that the Party No.1 had
shown the worman as contract labour, but the so called
contract was made only on papers and the workman was
actually working under the direct control and supervision
of the Party No. 1 and he was never a contract labour and
such action of the Party No. 1 was sham and only a
camouflage to deny the legitimate claim of the workman
and the so called contract between the management and
the contractor was bogus and not genunine and the Central
Government by notification dated 01.11.1990 abolished the
employment of contract labour and directed to give
employment to contract labours engaged by the
management and therefore, the management of FCI was
bound to abolish the contract labour system and to give
employment to the workman.
It was further submitted by the union
representative that on 29.06.2007, an application was filed
by the workman for production of nine documents relating
to him, from which, it could have been held without any
doubt that the workman was an employee of the party
no. 1 and not a contract labour and after hearing the parties,
the Tribunal by order dated 30.5.2008 directed the Party
No. 1 to produce the doucuments, but inspite of the order
passed by the Tribunal for production of documents, the
Party No. 1 failed to produce the documents and as such,
adverse inference is to be drawn against the Party No. 1.
In support of such contentions, reliance was
placed by the union representative on the decisions
reported in 2005 I-CLR-254 (Statesmen Ltd. & Anr. Vs. Eight
Industrial Tribunal, West Bengal & ors.) and 2004 (103)
FLR-187 (Municipal Corporation, Faridabad and Shri
Niwas).
It was also submitted by the union representative
that neither the Party No. 1 nor the so called contractors
engaged by the Party No. 1 were registered with the Regional
Labour Commissioner as per rules to engage contract
labours and infact the so called contractors were mediators
and not contractors and even though there was legal ban
on engagement of contract labourers, the Party No. 1
engaged the workman and some others as security guards
and from the pleadings of the parties, the evidence on
record and the admission of the witness examined on behalf
of the Party No. 1 that from the date of his initial engagement
till 14.03.1999 clearly show that the workman was the
employee of the Party No. 1 and the Party No. 1 is the real
employer and there was master and servant relationship
between the Party No. 1 and the workman and the so called
contract given to the contractor expired on 31.012.1998
and though Party No. 1 unilaterally extended the contract,
the contractor did not accept the same and without any
contractor, the workman continued the work Party No. 1 till
14.03.1999 and the Party No. 1 paid the wages from 01.01.1999
to 14.03.1999 to the workman and such facts also prove
that the workman was the employee of Party No. 1 and it
was Party No. 1, who terminated the services of the
workman without compliance of the mandatory provisions
of section 25-F of the Act. In support of the submissions,
the union representative placed reliance on the decisions,
reported in 1994 II CLR-402 (R.K. Panda Vs. Steel
Authority), 2003 (98) FLR-826 (M/s. Bharat Heavy
Electricals Ltd. Vs. State of UP) and 2011 (128) FLR-99
(Mahesh Kumar Sharma Vs. D.F.O., General Forest Division,
Sheopur).
It was also submitted by the union representative
for the workman that Party No. 1 has admitted the claims
made by the workman and has not been able to prove their
claim that the workman was a contract labour, by producing
cogent evidence in support of the same and as such, the
workman is entitled for reinstatement in service with
continuity and full back wages.
8. Per contra, it was submitted by the learned
advocate for the Party No.1 that the workman was never
appointed by Party No.1 and he has engaged by the
contractor is a security guard and as such, the concerned
contractor is a necessary party and inspite of raising such
objection in the written statement, the workman did not
implead the contractor as a party and for that the reference
is not maintainable. It was further submitted by the learned
advocate for the Party No. 1 that the workman was engaged
by the contractor and as the contract of the contractor
came to an end in March, 1999, the services of the workman
were terminated by the contractor and as such, there was
no question of Party No.1 complying with the due procedure
of termination and there was no relationship of master and
servant between the Party No. 1 and the workman and the
Party No. 1 was exempted by the Central Government from
the ban imposed for engagement of contract labourers, so
contract was given to the security contractor, as per rules,
2514
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(2) (68-120)
for supply of security guards and due to the notification of
the Government for abolition of contract labour system,
Home guards and Police personnel were appointed as
security guards and Party No. 1 has no control over the
workman and the security contractor was submitting bills
for payment for supply of security guards and the security
contractor was paying the wages to the workman. It was
further submitted by the learned advocate for the Party
No. 1 that the workman and some others had approached
the Hon'ble High Court, Nagpur Bench in W.P. 1389 of 1999
for the reliefs sought in this reference and the Hon'ble
High Court while depositing of the said petition have held
that the termination of the workman by the contractor was
a valid one and the action of FCI was legal and as such, the
workman cannot agitate the question again and the decision
of the Hon'ble High Court operates as res-judicata between
the parties and the workman is not entitled to any relief.
In the alternative, it was submitted by the learned
advocate for the Party No. 1 that the Party No. 1 is a "State"
as per the provisions of Article 12 of the Constitution of
India and it has a set Rules for appointment of its employees
and it is clear that the workman was never engaged by
Party No. 1 as per the Rules of appointment and no evidence
has been adduced by the workman to prove that he had
worked for 240 days with Party No. 1 in the preceding 12
calendar months of the date of the alleged termination and
as such, there was no question of compliance of section
25-F or 25-H of the Act and the workman is not entitled to
any relief.
In support of such contentions, the learned
advocates for the Party No. 1 placed reliance on the
decisions of the Hon'ble Apex Court reported in Appeal
(Civil) 7038/2002 (M/s. Essen Deinki Vs. Rajiv Kumar),
Appeal (Civil) 6303-6316 of 2003 (Manager, RBI, Bangalore
Vs. S. Mani), Appeal (Civil)-6511 of 2005 (Surendranagar
District Panchayat Vs. Dayachai Amar Singh), Appeal (Civil)
3639/2006 (Krishna Bhagaya Jala Nigam Vs. Md. Raffi) and
Appeal (Civil) 2969/2004 (Rajasthan State Gangasagar Mills
Ltd. Vs. State of Rajasthan).
9. First of all, I will take up the submission made by
the learned advocate for the Party No. 1 that the present
reference is hit by the principles of res-judicata, due to the
decision of the Hon'ble High Court, Nagpur Bench in W.P.
1389/99.
It is not disputed that the workman alongwith 78
others through the union, "Rashtriya Mazdoor Sena
Saptahit Jaibhim" had filed Writ Petition no. 1389/99 before
the Hon'ble High Court of Judicature at Bombay, Nagpur
Bench, Nagpur, for their regularisation and the Hon'ble
High Court did not grant such relief. On perusal of the
order passed by the Hon'ble High Court on 29.07.2002 in
the said writ petition, it is found that the workman and
others claimed regularisation on the ground that they were
employed by the contractor for doing regular work of the
Food Corporation of India and in view of the same, they
have become workmen of Food Corporation of India, since
the work on which they were employed is of perennial
nature. However, it is found from the judgement that the
Hon'ble High Court did not consider the main relief and
passed the following order:
"In view of the Judgement of the Constitution
Bench in Steel Authority of India Ltd. and others
Vs. National Uniion water front workers and
others (reported in 2001 (7) SCC1), the relief sought
by the petitioners cannot be granted since the
petition involves disputed question of facts as
also other facts which are required to be
adjudicated
by
appropriate
authority.
Accordingly, the main prayer to absorb them
cannot be granted.
**
**
**
**
In view of the rejection of the main prayer, the
question of granting other prayer does not arise.
In case, the petitioners approach the appropriate
authority, the appropriate authority shall take
decision in the matter within a period of one year.
The applicants are free to approach the
appropriate authority for redressal of their
grievances."
So, it is clear from the orders passed by the Hon'ble
High Court as mentioned above that the Hon'ble High Court
did not consider the claim made by the workman and others
on merit and granted them the liberty to approach the
appropriate authority for redress. Hence, the reference
cannot be said to be hit by the principles of res-judicata.
So, there is no force in the contention raised by the learned
advocate for the Party No. 1.
10. In this reference, it is never the case of the
workman that he was directly appointed or engaged by the
Party No. 1 as a security guard. In the very beginning of
the statement of claim, it has been mentioned by the
workman that he was initially engaged at Food Corporation
of India Depot, Gondia as a security guard, through a
contractor. In paragraph 4 of the statement of claim, the
workman has mentioned that, "In the year 1998, he was
engaged by the Food Corporation of India through
contractor, for a period of 2 years, but the contract was
made on paper." The case of the workman is that after
every two years, the Party No. 1 on papers showed the
change of contractors, but he was not disturbed from
services and he worked continuously without any break
till 14.03.1999 and as he worked as a security guard of
perennial nature, he is entitled for reinstatement in service.
The workman has also claimed that as the Central
Government issued notification on 01.11.1990 to abolish
the contract labour system in FCI and directed to give
employment to contract labours engaged by the
management and Party No. 1 implemented such direction
at Nagpur and Manmad only and gave employment and
regularized and absorbed the services of the Security Guards
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2515
Server3/E/1250RR/1250RR(2) (68-120)
working at Nagpur and Manmad and did not implement the
same at Wardha and other places to deprive him from the
benefits under the Labour Laws.
In his evidence on affidavit also, the workman has
mentioned that he was initially engaged in Food
Corporation of India as a security guard through a
contractor.
From the evidence on record and the own admission
of the workman in the cross-examination including the
specific admission that he was engaged by the contractor
and the contractor left him to FCI and he was appointed
through Singh Securities Services, it is clear that the
workman was engaged by the contractor. The workman
has not produced any evidence to show that he was
directly engaged by the Party No. 1.
11. At this juncture, I think it apropos to mention
about the principles enunciated by the Hon'ble Apex Court
regarding contract labours, in the decision reported in 1994
II CLR-402 (Supra), on which reliance is placed by the union
representative and the two decisions reported in 1985-IILLJ-
4 (S.C.) (The workman of the Food Corporation of India Vs.
M/s Food Corporation of India) and 2001 LAB IC 3656
(S.C.) (Steel Authority of India Ltd. and others Vs. National
Union Water Front Workers and others).
In the decision reported in 1994-II CLR-402 (supra)
the Hon'ble Apex Court have held that:—
2. With the industrial growth, the relation between
the employer and the employees also has taken a
new turn. At one time the establishment being the
employer all persons working therein were the
employees of such employer. But slowly the
employer including Central and State
Governments started entrusting many of the jobs
to contractors. Contractors in their turn employed
a worker, who has no direct relationship with the
establishment in which they were employed.
Many contractors exploited the labourers engaged
by them in various manners including the payment
of low wages. Hence, the Contract Labour
(Regulation and Abolition) Act, 1970 was enacted
to regulate the employment of contract labour in
certain establishment and to provide for its
abolition in certain circumstances and for matters
connected therewith.
3. The "Contract Labour" has been defined in
Section 2 (1) (b) to mean a workman, who has
been employed as contract labour in or in
connection with the work of an establishment when
he is hired in or in connection with such work by
or through a contractor, with or without the
knowledge of the principal employer. Section 2
(1) (c) defines "Contractor" to mean a person who
undertakes to produce a given result for the
establishment, other than a mere supply of goods
or articles of manufacture to such establishment,
through contract labour or who supplies contract
labour for any work of the establishment and
includes a sub-contractor. "Principal employer"
has been defined to mean (i) in relation to any
office or department of the Government or a local
authority, the head of that office or department or
such other officer as the government or the local
authority, as the case may be, may specify in this
behalf and (ii) in a factory, the owner or occupier
of the factory. In view of section 10, of 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," Sub-section (2) of Section 10
requires that before issuing any such notification,
in relation to an establishments, 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. One of the relevant factors, which is to be
taken into consideration is whether the work
performed by the contract labourers is of perennial
nature. Section 12 enjoins that no contractor to
whom this Act is applicable shall undertake or
execute any work through contract labour except
under and in accordance with a license issued in
that behalf by the licensing authority. The license
so issued may contain conditions in respect of
hours of work, fixation of wages and other
essential amenities in respect of contract labour
as the appropriate Government may deem fit to
impose in accordance with rules. Section 20
provides that if any amenity required to be
provided under section 16, section 17, section 18,
or section 19 for the benefit of the contract labour
employed in an establishment, is not provided by
the contractor within the time prescribed by the
contractor within the time prescribed therefor, such
amenity shall be provided by the principal
employer within such time as may be prescribed
and all expensed incurred by the principal
employer in providing the amenity may be
recovered by the principal employer from the
contractor "either by deduction from any amount
payable to the contractor under any contract or
as a debt payable by the contractor". Section 21
says that a contractor shall be responsible for the
payment of wages to each worker employed by
him as contract labour but at the same time in
order to protect the interest of such contract
labour, it requires every principal employer to
nominate a representative duly authorized by him
2516
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(2) (68-120)
to be present at the time of disbursement of wages
by the contractor. It shall be the duty of the
contractor to ensure the disbursement of wages
in the presence of the authorized representative
of the principal employer. Because of sub-section
(4) of section 21, if the contractor fails to make
payment of wages within the prescribed period,
then the principal employer shall be liable to make
payment of wages in full to the contact labour
employed by the contractor and recover the
amount so paid from the contractor. Any
contravention of the provisions aforesaid has
been made penal for which punishment can be
imposed.
4. From the provisions referred to above, it is
apparent that the framers of the Act have allowed
and recognized contract labour and they have
never purported to abolish it in its entirety. The
primary object appears to be that there should
not be any exploitation of the contract labourers
by the contractor or the establishment. For
achieving that object, statutory restrictions and
responsibilities have been imposed on the
contractor as well as on the principal employer.
Of courses if any expenses are incurred for
providing any amenity to the contract labourers
or towards the payment of wages by the principle
employer he is entitled to deduct the same from
the bill of the contractor. The Act also conceives
that all appropriate government may after
consultation with the central board or the state
board, as the case may be, prohibit by notification
in official gazette, employment of contract labour
in any process, operation or other work in any
establishment, taking all facts and circumstances
of employment of contract labour in such process,
operation or the work into consideration.
5. Of late a trained amongst the contract labourers
is discernible that after having work for some
years, they make a claim that they should be
absorbed by the principal employer and be treated
as employees of the principal employer especially
when the principal employer is the central
government or the state government or an
authority which can be held to be state within the
meaning of Article 12 of the constitution, although
no right flows from the provisions of the act for
the contract labourers to be absorbed or to
become the employees of the principal employer.
This court in the case of Gammon India Limited V.
Union of Inida (1974) I SCC 596, pointed out the
object and scope of the act as follows:—
"The Act was passed to prevail the exploitation
of contract labour and also to introduce better
condition of work. The Act provides for regulation
and abolition of contract labour. The underline
policy of the Act is to abolish contract labour,
wherever possible and practicable and where it
cannot be abolished to altogether, the policy of
the Act is that the working conditions of the
contract labour should be so regulated as to
ensure payment of wages and provisions of
essential amenities. This is why the Act provides
for regulated conditions of work and contemplates
progressive abolition to the extent contemplated
by Section 10 of the Act."
In the case of B.H.E.L. Workers' Association V.
Union of India, 1985 I CLR SC 165=(1985) 1 SCC
630 it was pointed out that Parliament has not
abolished the contract labour as such but has
provided for its abolition by the Central
Government in appropriate cases under section
10 of the Act. It is not for the court to enquire into
the question and to decide whether the
employment of contract labour in any process,
operation or other work in any establishment
should be abolished or not. That has to be decided
by the government after considering the relevant
aspects as required by Section 10 of the Act. Again
in the case of Mathura Refinery Mazdoor Sangh
V. Indian Oil Corporation Ltd., 1991 I CLR 684, this
court refused to direct the Indian Oil Corporation
Ltd., to absorb the contract labourers in its
employment saying that, the contract labourers
have not been found to have direct connection
with the refinery. In other words, there was no
relationship of employer and employee between
the Indian Oil Corporation Ltd. and the contract
labourers concerned. Again in Dena Nath V.
National Fertilizers Ltd., 1992 I CLR 1, this court
pointed out that the aforesaid Act has two
purposes to serve (i) to regulate the conditions of
service of the worker employed by the contractor
who is engaged by a principal employer and (ii) to
provide for the abolition of contract labour
altogether, in certain notified processes, operation
or other works in any establishment by the
appropriate government, under section 10 of the
Act. It was further stated that neither the Act nor
the Rules framed by the central government or by
any appropriate government provide that upon
abolition of contract labour, the labourers would
be directly absorbed by the principal employer.
6. It is true that with passage of time and purely
with a view to safeguard the interests of workers,
many principal employers while renewing the
contracts have been insisting that the contractor
or the new contractor retains the old employees.
Infact such a condition is incorporated in the
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2517
Server3/E/1250RR/1250RR(2) (68-120)
contract itself. However, such a clause in the
contract which is benevolently inserted in the
contract to protect the continuance of the source
of livelihood of the contract labour cannot by
itself give rise to a right to regularization in the
employment of the principal employer. Whether
the contract labourers have become the
employees of the principal employer in course of
time and on whether the engagement and
employment of labourers through a contractor is
a mere camouflage and a smoke screen, as has
been urged in this case, is a question of fact is to
be established by the contract labourers on the
basis of the requisite material. It is not possible
for High Court or this court, while exercising writ
jurisdiction or jurisdiction under Article 136 to
decide such questions only on the basis of the
affidavits. It need not to be pointed out that in all
such cases, the labourers are initially employed
and engaged by the contractors. As such at what
point of time a direct link is established between
the contract labourers and the principal employer,
eliminating the contractor from the scene, is a
matter which has to be established on material
produced before the court. Normally, the Labour
Court and the Industrial Tribunal, under the
Industrial Disputes Act are the Competent Fora
to adjudicate such disputes on the basis of the
oral and documentary evidence produced before
them."
12. In the decision reported in 1985-II LLOJ-4 (supra)
the Hon'ble Apex Court have held that:—
"Briefly stated, when corporation engaged a
contractor for handling foodgrain at Siliguri
Depot, the corporation had nothing to do with
the manner of handling work done by the
contractor, the labour force employed by him,
payments made by him etc. In such a fact situation,
there was no privity of contract of employer and
workmen between the corporation and the
workmen. "Workmen" has been defined (omitting
the words not necessary) in the Industrial
Disputes Act to mean (any person including an
apprentice) employed in any industry to do
..........". 'The expression' employed has at least
two known connotiations, but as used in the
definition, the context would indicate that it is
used in the sense of a relationship brought about
by express or implied contract of service in which
the employee renders service for which he is
engaged by the employer and the latter agrees to
pay him in cash or kind as agreed between them
or statutorily prescribed. It discloses a
relationship of command and obedience. The
essential condition of a person being a workman
within the terms of the definition is that he should
be employed to do the work in that industry and
that there should be, in other words, an employment
of his by the employer and that there should be a
relationship between the employer and employee
or master and servant unless a person is thus
employed there can be no question of his being a
"workman" within the definition of the term as
contained in the Act.
Dharangadhara Chemical Works Ltd. Vs. State of
Saurashtra (1957-I-LLJ-477). Now where a
contractor employs a workman to do the work
which he contracted with a third person to
accomplish on the definition as it stands, the
workman of the contractor would not without
something more become the workman of that third
person. Therefore, when the workmen employed
by the contractor were certainly not the workmen
of the corporation and no claim to that effect has
been made by the union."
13. In the decision reported in 2001 LAB IC-3656
(supra) the Hon'ble Apex Court have held that:—
"The principle that a beneficial legislation needs
to be constructed liberally in favour of the class
for whose benefit it is intended, does not extend
to reading in the provisions of the Act what the
legislature has not provided whether expressly or
by necessary implication, or substituting remedy
or benefits for that provided by the legislature.
The intendment of the CLRA Act is to regulate
the conditions of service of the contract labour
and to authorize in Section 10(1) prohibition of
contract labour system by the appropriate
Government on consideration of factors
enumerated in sub-section (2) of Section 10 of the
Act among other relevant factors. But, the
presence of some or all those factors, provide no
ground for absorption of contract labour on
issuing notification under Section 10(1) by the
appropriate Government, is not alluded to either
in Section 10 or at any other place in the Act and
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 the Supreme 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 it
absorption of contract labour in the establishment
of principal employer or a lesser or a 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.
2518
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(2) (68-120)
Thus on issuance of prohibition notification under
S. 10(1) of the CLRA Act
prohibiting employ-
ment of contract labour or otherwise, in an
industrial dispute brought before it by any
contract 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 legislations so
as to deprive the workers of the benefit there under.
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 concerned establishment. If the contract is
found to be genuine and the principal employer
intends to employ regular workmen he shall give
preference to the erstwhile contract labour. It
otherwise found suitable, and, if necessary, by
relaxing the condition as to maximum age
appropriately taking into consideration the age
of the workers at the time of their initial
employment by the contractor and also relaxing
the condition as to academic qualifications other
than technical qualifications.
Air India's case 1997 AIR SCW430 Overruled
prospectively. M.A.T. Nos. 1704 and 1705 of 1999,
D/ - 12-8-1999 (Cal): C.O. No. 6545(W) if 1996, D/ -
9-5-1997(Cal): W.A. Nos. 345-354 of 1997m D/ -
17-4-1998 (Kant): W.P. Nos. 4050 of 1999, D/ - 2-8
2000 (Bom) and W.P. No. 2616 of 1999, D/ - 23-12
1999 (Born) 1998 Lab IC 2571 (Cal), Reversed.
It cannot be said that by virtue of engagement of
contract labour by the contractor in any work of
or in connection with the work of an
establishment, the relationship of master and
servant is created between the principal employer
and the contract labour. Even a combined reading
of the definition of the terms "Contract labour",
"Establishment" and "Workman" does not show
that the legal relationship between the person
employed in any industry and the owner of the
industry is created irrespective of the fact as to
who has brought about such relationship. The
word "Workman" is defined in wide terms. It is a
generic term of which contract labour is a species.
It is true that combined reading of the terms
"Establishment" and "Workman" shows that a
workman engaged in any establishment would
have direct relationship with the principal
employer as a servant of master. But what is true
of a workman could not be correct of contract
labour. When the provisions of the Act neither
contemplate creation of direct relationship of
master and servant between the principal employer
and the contract labour nor can such relationship
be implied from the provisions of the action issuing
notification under Section 10(1) of the CLRA Act.
A fortiori much less can such a relationship be
found to exist from the rules and the forms made
there under."
So, keeping in view the principles enunciated by the
Hon'ble Apex Court in the decisions mentioned above, the
present case in hand is to be considered.
14. So far the contention raised by the union
representative regarding drawing of adverse inference
against the Party No.1 for nonproduction of documents as
ordered by the Tribunal on the application of the workman
is concerned, it is to be mentioned that it is admitted by the
workman that he was engaged through the contractor in
F.C.I. and due his such engagement, it was quite natural for
the Party No.1 to direct him to perform different duties as a
security guard and to see that duties entrusted to him were
done properly. Moreover, the Party No.1 have produced
number of documents to show that the workman was a
contract labour and payment of wages to him was made by
the contractors. Hence, for non- production of the
documents by Party No.1, there is no need to draw any
adverse inference. As the facts and circumstances of the
case in hand are quite different from the facts and
circumstances of the cases referred in the decisions by the
Hon'ble Courts, on which reliance has been placed by the
union representative, with respect, I am of the view that
the said decisions have no clear application of this case.
15. So far the contention raised by the union
representative regarding the non-registration of the Party
No.1 or the contractors with the Regional Labour
Commissioner as per Rules is concerned, it is to be
mentioned that such a plea has neither been taken in the
statement of claim nor any thing has been stated in that
regard in the evidence of the workman. In absence of such
pleading, the contention cannot be entertained. Moreover,
it is clear from the pleadings of the parties and the evidence
on record and the specific suggestions given to the witness
examined on behalf of the Party No.1 in his cross-
examination that contract for supply of security guards
was given by Party No.1 to different contractors from
01.03.1989 till 14.03.1999.
Moreover, for the sake of argument, even if, it is held
that the Party No.1 had engaged the workman and others
as contract labourers in violation of the provisions of the
Contract Labour (Regulations and Abolition) Act, 1976,
then the persons responsible for such violation are liable
for criminal prosecution, but such violation of the
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2519
Server3/E/1250RR/1250RR(2) (68-120)
provisions of the above said Act, does not confer any
right on the workman to claim regularisation in service.
16. In this case, the letter No. U-23013/11/89/LW
dated 28.05.92, Govt. of India, Ministry of Labour shows
that the prohibition of , employment of contract labour in
sweeping, cleaning, dusting and watching of buildings
owned or occupied by the establishments of Food
Corporation of India and some other departments was lifted
by the Central Government. So, the engagement of contract
labour by the Party No. 1 cannot be said to be illegal. It is
also found from the materials on record that the appointment
of labour contractor by Party No. 1 for supply of Security
Guards was genuine and the same was not only on papers
as claimed by the workman. The workman has failed to
prove such claim by adducing cogent or reliable evidence.
The engagement of labor contractor by Party No. 1 was
not a mere ruse or camouflage to evade compliance of the
various beneficial legislations, so as to deprive the workman
of the benefits there under. The workman has not been
able to produce any document to show that at any point of
time, Party No. 1 paid his wages as their employee. It is
clear from the evidence that Party No. 1 paid wages of the
last three months to the workman in presence of the Labour
Commissioner, as the contractor did not pay the same. As
it is clear from the evidence on record that the workman
was engaged as a contract labour with Party No. 1, by the
contractor and as such, it can be held that there was no
relationship of master and servant between the Party No. 1
and the workman. Hence, there was no question of
termination of the services by the Party No. 1 or compliance
of the provisions of Sections 25-F or 25-H of the Act.
In view of the facts and circumstances of the case as
mentioned above, which are quite different from the facts
and the circumstances of the cases referred in the decisions,
on which reliance is placed by the union representative,
with respect, I am of the view that the said decisions have
no clear application to the present case in hand.
17. It is the own case of the workman that he was
engaged by the contractor. So the contractor, who had
engaged the workman is a necessary party in the reference.
The said contractor has not been added as a party in this
reference. Due to non-joinder of necessary party, the
reference is bad in law.
In view of the materials on record and the discussions
made above and applying the principles enunciated by the
Hon'ble Apex Court in the three decisions mentioned above,
the reference cannot be answered in favour of the workman.
Hence, it is ordered:-
ORDER
The reference is answered in the negative. The workman
is not entitled to any relief.
J.P. CHAND, Presiding Officer
ubZ fnYyh] 15 ekpZ] 2013
dk-vk- 871-
—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,QñlhñvkbZñ 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/kdkj.k
ukxiqj ds iapkV ¼vkbZMh la[;k 294@2003½ dks izdkf'kr djrh gS]
tks dsUnzh; ljdkj dks 15@03@2013 dks izkIr gqvk FkkA
lañ ,y&22012@237@2003&vkbZ vkj ¼lh ,e&II½
chñ,eñ iVuk;d] MsLd vf/kdkjh
New Delhi, the 15th March, 2013
S.O. 871.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref. 294/2003 for
the Cent. Govt. Indus. Tribunal-cum-Labour Court,
NAGPUR as shown in Annexure, in the industrial dispute
between the management of Food Corporation of India,
Food Corporation of India, and their workmen, received
by the Central Government on 15/03/2013
[No. L-22012/237/2003-IR (CM-II)]
B.M. PATNAIK, Desk Officer
ANNEXURE
BEFORE SHRI J.P. CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No. CGIT/NGP/294/2003
Dated: 07.03.2013
Party No. 1(a) :
The District Manager
Food Corporation of India,
Ajani, Nagpur,
Nagpur—440015.
Party No. 1(b) :
The Senior Regional Manager,
Food Corporation of India,
Mistry Bhawan, Dinshaw Wacha
Road, Churchgatye,
Mumbai—400020.
Versus
Party No. 2
:
The Secretary,
Rashtriya Mazdoor, Sena, Hind Nagar
Ward No. 2, Near Boudha Vihar,
Post: Wardha, Distt. Wardha (M.S)
AWARD
(Dated: 7th March, 2013)
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 Food Corporation of India and their
workman, Shri Pramod Haribhau Panche, for adjudication,
2520
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(2) (68-120)
as per letter No.L-22012/237/2003-IR (CM-II) dated
08.12.2003, with the following schedule:—
"Whether the action of the management of Food
Corporation of India, Nagpur (M.S.) in terminating the
services of Shri Pramod Haribhau Panche, Security Guard
w.e.f. 14.03.1999 is legal and justified? If not, to what relief
the concerned 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 Pramod
Haribhau Panche ("the workman" in short), filed the
statement of claim and the management of Food Corporation
of India ("Party No. 1" in short) filed their written statement.
The case of the workman as presented in the
statement of claim is that he was in the employment of
Party No. 1 from 01.06.1992 and he was initially engaged
through a contractor at Gondia Depot of Party No. 1, as a
Security Guard and he was in continuous service without
any interruption till 14th March, 1999, when his services
were terminated orally by Party No. 1, without following
the due procedure of law and he had completed more than
240 days of work in each year and the termination of his
services on 14.03.1999 was not in good faith, but in
colourable exercise of the rights and powers by the Party
No. 1 and while terminating his services, neither one
month's notice nor one month's wages in lieu of notice nor
retrenchment compensation was given to him as required
under section 25-F of the Act and after his illegal
termination, fresh hands from the department of home guard
and police were engaged by Party No. 1 to extract the duties
of Security guards, in violation of the provision of section
25-H of the Act and the work which he was performing is
constantly in existence and the same is of a perennial nature
and as his termination is illegal and unlawful, he is entitled
for reinstatement in service with continuity and full back
wages.
The further case of the workman is that in 1992, he
was engaged by the Party No. 1 through the contractor for
a period of two years, but the contract was made only on
papers and after every two years, the Party No. 1 changed
the contractor on papers only and the engagement of the
so-called contractor did not replace the Security Guards
and he was also not disturbed from his services and he
was merely shown to be engaged by the contractors, but
actually, he was working under the direct control and
supervision of the Party No. 1 and the contractor had no
role to play in the same and the work performed by him was
being assigned to him by Party No. 1 and he was a regular
employee of Party No. 1 and Party No. 1 was his real
employer and not the contractor as alleged and the
engagement and change of contractors by Party No. 1 from
time to time was sham and only a camouflage to deny his
legitimate claim and the contract between Party No. 1 and
the contractor was bogus and not genuine and therefore,
his oral termination from services was against the
mandatory provisions of the Act and the Central
Government decided to abolish the appointment of contract
labour as contemplated under Section 10 of the Contract
Labour (Regulation and Abolition) Act, 1970 and issued
notification on 01.11.1990 with directions to abolish the
contract labour system in the establishment of the Party
No. 1 and to give employment to contract labours engaged
by the management and therefore, it was the mandatory
duty of the Party No. 1 to abolish the contract labour system
in all places and management of FCI implemented the
notification only at Nagpur and Manmad and absorbed
the Security Guards working at Nagpur and Manmad, but
at Akola, Amravati, Wardha and Gondia districts, the
contract labour system was continued by the management,
with an intention to deprive him from the benefits under
the labour laws.
It is further pleaded by the workman that his salary
was paid by the Party No. 1 and not by the contractor and
his daily attendance was also marked by the Asstt.
Manager of FCI, Wardha Depot and the Party No. 1 was
supervising his work through their officers and he had no
relation with the so called contractors engaged by the Party
No. 1 and Party No. 1 also supplied the articles, such as,
torch, lathi, whistle and uniform etc. to him and in view of
the long spell of work being carried out by him, he is entitled
to be reinstated in service with continuity and full back
wages.
3. The Party No. 1 in their written statement have
pleaded inter alia that the workman was never in their
employment and the workman has not impleded the
contractor, who appointed him, as a Party and the workman
was engaged by the contractor as a Security Guard at FCI
Depot and the said contractor is a necessary party and in
absence of the contractor, the proceeding cannot proceed
and the workman was not in their service uninterruptedly
till 14th March, 1999 and since the contract of the contractor
came to an end, the services of the workman were terminated
by the contractor and the original period of contract given
to the contractor for providing Security services was up to
1998 and the same was extended as per the terms and
conditions till March, 1999 and as the workman was not
employed by them, there was no question of following the
procedure of termination by them and they were not the
employer of the workman and the services of the workman
were never utilized by them as employer from 01.06.1992 to
14.03.1999, without any break in service and the workman
did not complete 240 days of work in a year as alleged and
as the workman was engaged by the Security Contractor,
there was no relationship of master and servant between
them and the workman at any point of time and under
section 10 of the Contract Labour (Regularisation and
Abolition) Act, they were exempted by the Central
Government, so, the allegations made by the workman
agasist them are not true and there was no question of
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2521
Server3/E/1250RR/1250RR(2) (68-120)
violation of the provisions of 25 (H) of the Act and the
work does not constantly exist and the work of providing
security guards was given to other Government Agencies
like Police Personnel and Home guards and therefore, the
workman has no right to claim any relief from them and the
work of security is not perennial in nature and as and when
.their go-downs are filled with food grains, then only,
services of the security guards are required and in
pursuance of the notification issued by the Central
Government abolishing contract labour system, they
appointed Home guards and Police personnel as security
guards.
The further case of Party No.1 is that for the relief as
claimed, by the workman had filed a writ petition before the
Hon'ble High Court, Nagpur Bench bearing W.P. No. 1389/
99 and the Hon'ble High Court rejected the said WP and
denied the relief prayed for and therefore, this Tribunal has
no jurisdiction to decide the reference and the decision of
the Hon'ble Court operates as res-judicata and they floated
tenders for the contract and lowest bidder was awarded
the contract and the change of contractor in every two
years was not on papers only and they had no say in the
appointment of security guards by the security contractor
and they had no control over the appointment and service
conditions of the workman, who was an employee of the
security agency and he was never their employee and the
security contractor was the employer of the workman.
The further case of Party No.1 is that the appropriate
government decided to abolish the employment of the
contract labour as contemplated under Section 10 of the
Contract Labour (Regularisation and Abolition) Act, 1970
and the interpretation of the notification issued on
01.11.1990 put by the workman is not correct and they were
exempted from the operation of the Act of 1970 in the year
1989 and the said exemption was withdrawn in the year
1999 and therefore, the security contact given to the
contractor was terminated and hence, the services of the
workman were terminated by the security contractor and
they did not pay the salary to the workman and it was the
contractor, who was paying the same to the workman and
when the contractor failed to pay the salary to the workman,
they paid the amount as per the directions given by the
ALC from time to time and the said amount was recovered
from the contract's bill and they only used to check the
attendance of the security guards to find out as to whether
the contractor had made arrangement of the requisite
number of security guards, as per their requirement and
they did not have the power to terminate any employee
appointed by the contractor and they did not provide any
article, such as torch, Lathi, whistle and uniform etc. to the
workman and as such, the workman is not entitled to any
relief.
4. Both parties have led oral evidence in support of
their respective claims, besides placing reliance on
documentary evidence.
The workman in support of his claim has examined
himself as a witness. In his evidence, which is on Affidavit,
the workman has reiterated the facts mentioned in the
statement of claim.
5. In his cross-examination, the workman has
admitted that his original appointment was through
contractor and he has not filed any document showing
payment of salary to him by the F.C.I.
6. One Shri Mohan Govindrao Temburne has been
examined as a witness on behalf of the Party No. 1. This
witness has also reiterated the facts mentioned in the written
statement, in his examination-in-chief, which is on affidavit.
In his cross-examination, this witness has admitted the
suggestions that contract for supply of security guards
was given to Singh Security services for two years and
subsequently, the contract of Singh Security was extended
till 15.12.1996 and contract for supply of security guards
was given to M/S. ,Chaitanya Security and Investigation
Services, Amaravati from January, 1992 to May, 1992 and
to M/S Security Services Intelligence Bureau, Thane from
01.06.1992 to 31.03. 1993 and to M/S Industrial Security
and Fire Services from 16.12.1996 to 15.12.1998 by FCI. The
witness has also admitted that inspite of change of
contractors, the workman worked continuously in FCI from
01.06.1992 to 14.03.1999. This witness has also admitted
the suggestion that on 14.03.1999, the contract of M/S
Industrial Security and Fire Services was expired. In his
cross-examination, this witness has further admitted that
the concerned officers of the FCI were issuing necessary
directions to the workman and other security guards
regarding the place and time of their performing duties and
the security guards posted at the gate of the Depot of FCI
were keeping accounts in a register regarding the number
of incoming and out-going vehicles to and from the depot
respectively and home guards and police personnel of the
state were engaged for watch and ward purpose of the
depot, after the disengagement of the workman and other
security guards and the work of watch and ward is a
continuous process in the FCI and the same is of perennial
in nature. This witness has further stated that the
contractors engaged by FCI were paying the wages to the
security guards deployed by them.
7. At the time of argument, it was submitted by the
union representative for the workman that the workman
was engaged by the management of FCI on 01.06.1992 at
Gondia depot as a security guard and he worked
continuously without any interruption till 14th March,1999
and his services were terminated orally by the Party No.1,
without following the due procedure of law and the workman
had completed more than 240 days of work in each year
and before termination of the services of the workman,
neither one month's notice nor one month's wages in lieu
of notice nor retrenchment compensation was given to the
workman, as required under section 25-F of the Act and
2522
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(2) (68-120)
after termination of the services of the workman, fresh hands
were engaged by Party No.1 to extract the duties of security
guard, in violation of the provision of section 25-H of the
Act and the work of security guard is perennial in nature,
hence the termination of the workman is void and illegal.
It was further submitted by the union representative
for the workman that the Party No.1 had shown the workman
as contract labour, but the so called contract was made
only on papers and the workman was actually working
under the direct control and supervision of the Party No.1
and he was never a contract labour and such action of the
Party No.1 was sham and only a camouflage to deny the
legitimate claim of the workman and the so called contract
between the management and the contractor was bogus
and not genuine and the Central Government by
notification dated 01.11.1990 abolished the employment of
contract labour and directed to give employment to contract
labours engaged by the management and therefore, the
management of FCI was bound to abolish the contract
labour system and to give employment to the workman.
It was further submitted by the union representative
that on 29.06.2007, an application was filed by the workman
for production of nine documents relating to him, from
which, it could have been held without any doubt that the
workman was an employee of the Party No.1 and not a
contract labour and after hearing the parties, the Tribunal
by order dated 30.05.2008 directed the Party No.1 to produce
the documents, but inspite of the order passed by the
Tribunal for production of documents, the Party No.1 failed
to produce the documents and as such, adverse inference
is to be drawn against the Party No.1.
In support of such contentions, reliance was placed
by the union representative on the decisions reported in
2005 ICLR-254 (Statesman Ltd. & Anr. Vs. Eight Industrial
Tribunal, West Bengal & ors.) and 2004 (103) FLR-187
(Municipal Corporation, Faridabad and Shri Niwas).
It was also submitted by the union representative
that neither the Party No.1 nor the so called contractors
engaged by the Party No.1 were registered with the Regional
Labour Commissioner as per rules to engage contract
labours and infact the so called contractors were mediators
and not contractors and even though there was legal ban
on engagement of contract labourers, the Party No.1
engaged the workman and some others as security guards
and from the pleadings of the parties, the evidence on
record and the admission of the witness examined on behalf
of the Party No. 1 that from the date of his initial engagement
the workman worked till 14.03.1999 clearly show that the
workman was the employee of the Party No.1 and the Party
No.1 is the real employer and there was master and servant
relationship between the Party No.1 and the workman and
the so called contract given to the contractor expired on
31.012.1998 and though Party No. 1 unilaterally extended
the contract, the contractor did not accept the same and
without any contractor, the workman continued the work
with Party No. 1 till 14.03.1999 and the Party No. 1 paid the
wages from 01.01.1999 to 14.03.1999 to the workman and
such facts also prove that the workman was the employee
of Party No. 1 and it was Party No.1, who terminated the
services of the workman without compliance of the
mandatory provisions of section 25F of the Act. In support
of the submissions, the union representative placed reliance
on the decisions reported in 1994 II CLR-402 (R.K. Panda
Vs. Steel Authority), 2003 (98) FLR-826 (M/s. Bharat Heavy
Electricals Ltd. Vs. State of UP) and 2011 (128) FLR-99
(Mahesh Kumar Sharma Vs. D.F.O., General Forest Division,
Sheopur).
It was also submitted by the union representative
for the workman that Party No. 1 has admitted the claims
made by the workman and has not been able to prove their
claim that the workman was contract labour, by producing
cogent evidence in support of the same and as such, the
workman is entitled for reinstatement in service with
countinuity and full back wages.
8. Per contra, it was submitted by the learned advocate
for the Party No. 1 that the workman was never appointed
by Party No. 1 and he has engaged by the contractor as a
security guard and as such, the concerned contractor is a
necessary party and inspite of raising such objection in
the written statement, the workman did not implead the
contractor as a party and for that the reference is not
maintainable. It was further submitted by the learned
advocate for the Party No. 1 that the workman was engaged
by the contractor and as the contract of the contractor
came to an end in March, 1999, the services of the workman
were terminated by the contractor and as such, there was
no question of Party No. 1 complying with the due
procedure of termination and there was no relationship of
master and servant between the Party No. 1 and the workman
and the Party No.1 was exempted by the Central
Government from the ban imposed for engagement of
contract labourers, so contract was given to the security
contractor, as per rules, for supply of security guards and
due to the notification of the Government for abolition of
contract labour system, Home Guards and Police personnel
were appointed as security guards and Party No. 1 has no
control over the workman and the security contractor was
submitting bills for payment for supply of security guards
and the security contractor was paying the wages to the
workman. It was further submitted by the learned advocate
for the Party No.1 that the workman and some others had
approached the Hon'ble High Court, Nagpur Bench in
W.P. 1389 of 1999 for the reliefs sought in this reference
and the Hon'ble High Court while depositing of the said
petition have held that the termination of the workman by
the contractor was a valid one and the action of FCI was
legal and as such, the workman cannot agitate the question
again and the decision of the Hon'ble High Court operates
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2523
Server3/E/1250RR/1250RR(2) (68-120)
as res-judicata between the parties and the workman is not
entitled to any relief.
In the alternative, it was submitted by the learned
advocate for the Party No. 1 that the Party No. 1 is a "State"
as per the provisions of Article 12 of the Constitution of
India and it has a set Rules for appointment of its employees
and it is clear that the workman was never engaged by
Party No. 1 as per the Rules of appointment and no evidence
has been adduced by the workman to prove that he had
worked for 240 days with Party No.1 in the preceding
12 calendar months of the date of the alleged termination
and as such, there was no question of compliance of section
25-F or 25-H of the Act and the workman is not entitled to
any relief.
In support of such contentions, the learned
advocates for the Party No.1 placed reliance on the
decisions of the Hon'ble Apex Court reported in Appeal
(Civil) 7038/2002 (M/s. Essen Deinki Vs. Rajiv Kumar),
Appeal (Civil) 6303-6316 of 2003 (Manager, RBI, Bangalore
Vs. S. Mani), Appeal (Civil)-6511 of 2005 (Surendranagar
District Panchayat Vs. Dayachai Amar Singh), Appeal (Civil)
3639/2006 (Krishna Bhagaya Jala Nigam Vs. Md. Raffi) and
Appeal (Civil) 2969/2004 (Rajsthan State Gangasagar Mills
Ltd. Vs. State of Rajasthan).
9. First of all, I will take up the submission made by
the learned advocate for the Party No. 1 that the present
reference is hit by the principles of res-judicata, due to the
decision of the Hon'ble High Court, Nagpur Bench in W.P.
1389/99.
It is not disputed that the workman alongwith
78 others through the union, "Rashtriya Mazdoor Sena
Saptahit Jaibhim" had filed Writ Petition No. 1389/99 before
the Hon'ble High Court of Judicature at Bombay, Nagpur
Bench, Nagpur, for their regularisation and the Hon'ble
High Court did not grant such relief. On perusal of the
order passed by the Hon'ble High Court on 29.07.2002 in
the said writ petition, it is found that the workman and
others claimed regularisation on the ground that they were
employed by the contractor for doing regular work of the
Food Corporation of India and in view of the same, they
have become workmen of Food Corporation of India, since
the work on which they were employed is of perennial
nature. However, it is found from the judgment that the
Hon'ble High Court did not consider the main relief and
passed the following order:
"In view of the judgment of the Constitution Bench
in Steel Authority of India Ltd. and others Vs. National
Union water front workers and others (reported in 2001 (7)
SCC1), the relief sought by the petitioners cannot be granted
since the petition involves disputed question of facts as
also other facts which are required to be adjudicated by
appropriate authority. Accordingly, the main prayer to
absorb them cannot be granted.
** ** ** **
In view of the rejection of the main prayer, the
question of granting other prayer does not arise.
In case, the petitioners approach the appropriate
authority, the appropriate authority shall take
decision in the matter within a period of one year.
The applicants are free to approach the
appropriate authority for redressal of their
grievances."
So, it is clear from the orders passed by the Hon'ble
High Court as mentioned above that the Hon'ble High Court
did not consider the claim made by the workman and others
on merit and granted them the liberty to approach the
appropriate authority for redress. Hence, the reference
cannot be said to be hit by the principles of res-judicata.
So, there is no force in the contention raised by the learned
advocate for the Party No. 1.
10. In this reference, it is never the case of the
workman that he was directly appointed or engaged by the
Party No. 1 as a security guard. In the very beginning of
the statement of claim, it has been mentioned by the
workman that he was initially engaged at Food Corporation
of India Depot, Gondia as a security guard, through a
contractor. In paragraph 4 of the statement of claim, the
workman has mentioned that, "In the year 1992, he was
engaged by the Food Corporation of India through
contractor, for a period of 2 years, but the contract was
made on paper." The case of the workman is that after
every two years, the Party No. 1 on papers showed the
change of contractors, but he was not disturbed from
services and he worked continuously without any break
till 14.03.1999 and as he worked as a security guard of
perennial nature, he is entitled for reinstatement in service.
The workman has also claimed that as the Central
Government issued notification on 01.11.1990 to abolish
the contract labour system in FCI and directed to give
employment to contract labours engaged by the
management and Party No.1 implemented such direction at
Nagpur and Manmad only and gave employment and
regularized and absorbed the services of the Security
Guards working at Nagpur and Manmad and did not
implement the same at Wardha and other places to deprive
him from the benefits under the Labour Laws.
In his evidence on affidavit also, the workman has
mentioned that he was initially engaged in Food
Corporation of India as a security guard through a
contractor.
2524
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(2) (68-120)
From the evidence on record and the own admission
of the workman in the cross-examination including the
specific admission that he was engaged by the contractor
and the contractor left him to FCI and he was appointed
through Singh Securities Services, it is clear that the
workman was engaged by the contractor. The workman
has not produced any evidence to show that he was
directly engaged by the Party No. 1.
11. At this juncture, I think it apropos to mention
about the principles enunciated by the Hon'ble Apex Court
regarding contract labours, in the decision reported in 1994
II CLR-402 (Supra), on which reliance is placed by the union
representative and the two decisions reported in 1985-II
LLJ-4 (S.C.) (The workman of the Food Corporation of India
Vs M/s Food Corporation of India) and 2001 LAB IC 3656
(S.C.) (Steel Authority of India Ltd. and others Vs. National
Union Water Front Workers and others).
In the decision reported in 1994-II CLR-402 (supra)
the Hon'ble Apex Court have held that:—
2. With the industrial growth, the relation between
the employer and the employees also has taken a
new turn. At one time the establishment being the
employer all persons working therein were the
employees of such employer. But slowly the
employer including Central and State
Governments started entrusting many of the jobs
to contractors. Contractors in their turn employed
a worker, who has no direct relationship with the
establishment in which they were employed.
Many contractors exploited the labourers engaged
by them in various manners including the payment
of low wages. Hence, the Contract Labour
(Regulation and Abolition) Act, 1970 was enacted
to regulate the employment of contract labour in
certain establishment and to provide for its
abolition in certain circumstances and for matters
connected therewith.
3. The "Contract Labour" has been defined in
Section 2 (1) (b) to mean a workman, who has
been employed as contract labour in or in
connection with the work of an establishment when
he is hired in or in connection with such work by
or through a contractor, with or without the
knowledge of the principal employer. Section 2
(1) (c) defines "Contractor" to mean a person who
undertakes to produce a given result for the
establishment, other than a mere supply of goods
or articles of manufacture to such establishment,
through contract labour or who supplies contract
labour for any work of the establishment and
includes a sub-contractor. "Principal employer"
has been defined to mean (i) in relation to any
office or department of the Government or a local
authority, the head of that office or department or
such other officer as the government or the local
authority, as the case may be, may specify in this
behalf and (ii) in a factory, the owner or occupier
of the factory. In view of section 10, of 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,"
Sub-section (2) of Section 10
requires that before issuing any such notification,
in relation to an establishments, 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. One of the relevant factors, which is to be
taken into consideration is whether the work
performed by the contract labourers is of perennial
nature. Section 12 enjoins that no contractor to
whom this Act is applicable shall undertake or
execute any work through contract labour except
under and in accordance with a license issued in
that behalf by the licensing authority. The license
so issued may contain conditions in respect of
hours of work, fixation of wages and other
essential amenities in respect of contract labour
as the appropriate Government may deem fit to
impose in accordance with rules. Section 20
provides that if any amenity required to be
provided under section 16, section 17, section 18,
or section 19 for the benefit of the contract labour
employed in an establishment, is not provided by
the contractor within the time prescribed by the
contractor within the time prescribed therefore,
such amenity shall be provided by the principal
employer within such time as may be prescribed
and all expensed incurred by the principal
employer in providing the amenity may be
recovered by the principal employer from the
contractor "either by deduction from any amount
payable to the contractor under any contract or
as a debt payable by the contractor". Section 21
says that a contractor shall be responsible for the
payment of wages to each worker employed by
him as contract labour but at the same time in
order to protect the interest of such contract
labour, it requires every principal employer to
nominate a representative duly authorized by him
to be present at the time of disbursement of wages
by the contractor. It shall be the duty of the
contractor to ensure the disbursement of wages
in the presence of the authorized representative
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2525
Server3/E/1250RR/1250RR(2) (68-120)
of the principal employer. Because of sub-section
(4) of section 21, if the contractor fails to make
payment of wages within the prescribed period,
then the principal employer shall be liable to make
payment of wages in full to the contact labour
employed by the contractor and recover the
amount so paid from the contractor. Any
contravention of the provisions aforesaid has
been made penal for which punishment can be
imposed.
4. From the provisions referred to above, it is
apparent that the framers of the Act have allowed
and recognized contract labour and they have
never purported to abolish it in its entirety. The
primary object appears to be that there should
not be any exploitation of the contract labourers
by the contractor or the establishment. For
achieving that object, statutory restrictions and
responsibilities have been imposed on the
contractor as well as on the principal employer.
Of course if any expenses are incurred for
providing any amenity to the contract labourers
or towards the payment of wages by the principle
employer he is entitled to deduct the same from
the bill of the contractor. The Act also conceives
that all appropriate government may after
consultation with the central board or the state
board, as the case may be, prohibit by notification
in official gazette, employment of contract labour
in any process, operation or other work in any
establishment, taking all facts and circumstances
of employment of contract labour in such process,
operation or the work into consideration.
5. Of late a trained amongst the contract labourers
is discernible that after having work for some
years, they make a claim that they should be
absorbed by the principal employer and be treated
as employees of the principal employer especially
when the principal employer is the central
government or the state government or an
authority which can be held to be state within the
meaning of Article 12 of the constitution, although
no right flows from the provisions of the act for
the contract labourers to be absorbed or to
become the employees of the principal employer.
This court in the case of Gammon India limited V.
Union of India (1974) I SCC 596, pointed out the
object and scope of the act as follows:—
"The Act was passed to prevail the exploitation
of contract labour and also to introduce better
condition of work. The Act provides for regulation
and abolition of contract labour. The underline
policy of the Act is to abolish contract labour,
wherever possible and practicable and where it
cannot be abolished to altogether, the policy of
the Act is that the working conditions of the
contract labour should be so regulated as to
ensure payment of wages and provisions of
essential amenities. This is why the Act provides
for regulated conditions of work and contemplates
progressive abolition to the extent contemplated
by Section 10 of the Act."
In the case of B.H.E.L. Workers' Association V.
Union of India, 1985 I CLR SC 165 = (1985) 1 SCC
630 it was pointed out that Parliament has not
abolished the contract labour as such but has
provided for its abolition by the Central
Government in appropriate cases under section
10 of the Act. It is not for the court to enquire into
the question and to decide whether the
employment of contract labour in any process,
operation or other work in any establishment
should be abolished or not. That has to be decided
by the government after considering the relevant
aspects as required by Section 10 of the Act. Again
in the case of Mathura Refinery Mazdoor Sangh
V. Indian Oil Corporation Ltd., 1991 I CLR 684, this
court refused to direct the Indian Oil Corporation
Ltd., to absorb the contract labourers in its
employment saying that, the contract labourers
have not been found to have direct connection
with the refinery. In other words, there was no
relationship of employer and employee between
the Indian Oil Corporation Ltd. and the contract
labourers concerned. Again in Dena Nath V.
National Fertilizers Ltd., 1992 I CLR 1, this court
pointed out that the aforesaid Act has two
purposes to serve (i) to regulate the conditions of
service of the worker employed by the contractor
who is engaged by a principal employer and (ii) to
provide for the abolition of contract labour
altogether, in certain notified processes, operation
or other works in any establishment by the
appropriate government, under section 10 of the
Act. It was further stated that neither the Act nor
the Rules framed by the central government or by
any appropriate government provide that upon
abolition of contract labour, the labourers would
be directly absorbed by the principal employer.
6. It is true that with passage of time and purely
with a view to safeguard the interests of workers,
many principal employers while renewing the
contracts have been insisting that the contractor
or the new contractor retains the old employees.
Infact such a condition is incorporated in the
contract itself. However, such a clause in the
contract which is benevolently inserted in the
contract to protect the continuance of the source
of livelihood of the contract labour cannot by
2526
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(2) (68-120)
itself give rise to a right to regularization in the
employment of the principal employer. Whether
the contract labourers have become the
employees of the principal employer in course of
time and on whether the engagement and
employment of labourers through a contractor is
a mere camouflage and a smoke screen, as has
been urged in this case, is a question of fact is to
be established by the contract labourers on the
basis of the requisite material. It is not possible
for High Court or this court, while exercising writ
jurisdiction or jurisdiction under Article 136 to
decide such questions only on the basis of the
affidavits. It need not to be pointed out that in all
such cases, the labourers are initially employed
and engaged by the contractors. As such at what
point of time a direct link is established between
the contract labourers and the principal employer,
eliminating the contractor from the scene, is a
matter which has to be established on material
produced before the court. Normally, the Labour
Court and the Industrial Tribunal, under the
Industrial Disputes Act are the Competent Fora
to adjudicate such disputes on the basis of the
oral and documentary evidence produced before
them."
12. In the decision reported in 1985-11 LLOJ-4 (supra)
the Hon'ble Apex Court have held that:—
"Briefly stated, when corporation engaged a
contractor for handling foodgrain at Siliguri
Depot, the corporation had nothing to do with
the manner of handling work done by the
contractor, the labour force employed by him,
payments made by him etc. In such a fact situation,
there was no privity of contract of employer and
workmen between the corporation and the
workmen. "Workmen" has been defined (omitting
the words not necessary) in the Industrial
Disputes Act to mean (any person including an
apprentice) employed in any industry to do...... "
'The expression' employed has at least two known
connotations, but as used in the definition, the
context would indicate that it is used in the sense
of a relationship brought about by express or
implied contract of service in which the employee
renders service for which he is engaged by the
employer and the latter agrees to pay him in cash
or kind as agreed between them or statutorily
prescribed. It discloses a relationship of command
and obedience. The essential condition of a
person being a workman within the terms of the
definition is that he should be employed to do the
work in that industry and that there should be, in
other words, an employment of his by the
employer and that there should be a relationship
between the employer and employee or master
and servant unless a person is thus employed
there can be no question of his being a "workman"
within the definition of the term as contained in
the Act.
Dharangadhara Chemical Works Ltd. Vs. State of
Saurashtra (1957 - I - LLJ - 477). Now where a
contractor employs a workman to do the work
which he contracted with a third person to
accomplish on the definition as it stands, the
workman of the contractor would not without
something more become the workman of that third
person. Therefore, when the workmen employed
by the contractor were certainly not the workmen
of the corporation and no claim to that effect has
been made by the union."
13. In the decision reported in 2001 LAB IC - 3656
(supra) the Hon'ble Apex Court have held that:—
"The principle that a beneficial legislation needs
to be constructed liberally in favour of the class
for whose benefit it is intended, does not extend
to reading in the provisions of the Act what the
legislature has not provided whether expressly or
by necessary implication, or substituting remedy
or benefits for that provided by the legislature.
The intendment of the CLRA Act is to regulate
the conditions of service of the contract labour
and to authorize in Section 10(1) prohibition of
contract labour system by the appropriate
Government on consideration of factors
enumerated in sub-section (2) of Section 10 of the
Act among other relevant factors. But, the
presence of some or all those factors, provide no
ground for absorption of contract labour on
issuing notification under Section 10(1) by the
appropriate Government, is not alluded to either
in Section 10 or at any other place in the Act and
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 the Supreme 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 it
absorption of contract labour in the establishment
of principal employer or a lesser or a 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.
Thus on issuance of prohibition notification under
S. 1 0 ( 1 ) of the CLRA Act prohibiting employment
of contract labour or otherwise, in an industrial
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2527
Server3/E/1250RR/1250RR(2) (68-120)
dispute brought before it by any contract 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 legislations so as to deprive the workers
of the benefit there under. 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 concerned establishment. If the
contract is found to be genuine and the principal
employer intends to employ regular workmen he
shall give preference to the erstwhile contract
labour. It otherwise found suitable, and, if
necessary, by relaxing the condition as to maximum
age appropriately taking into consideration the
age of the workers at the time of their initial
employment by the contractor and also relaxing
the condition as to academic qualifications other
than technical qualifications.
Air India's case 1997 AIR SCW430 Over ruled
prospectively. M.A.T. Nos. 1704 and 1705 of 1999,
D/ - 12-8-1999 (Cal): C.O. No. 6545(W) if 1996, D/
-9-5-1997(Cal): W.A. Nos. 345-354 of 1997m D/ -
17-4-1998 (Kant): W.P. No. 4050 of 1999, D/ - 2-8-
2000 (Born) and W.P. No. 2616 of 1999, D/ - 23-12-
1999 (Born), 1998 Lab IC 2571 (Cal), Reversed.
It cannot be said that by virtue of engagement of
contract labour by the contractor in any work of
or in connection with the work of an
establishment, the relationship of master and
servant is created between the principal employer
and the contract labour. Even a combined reading
of the definition of the terms "Contract labour",
"Establishment" and "Workman" does not show
that the legal relationship between the person
employed in any industry and the owner of the
industry is created irrespective of the fact as to
who has brought about such relationship. The
word "Workman" is defined in wide terms. It is a
generic term of which contract labour is a species.
It is true that combined reading of the terms
"Establishment" and "Workman" shows that a
workman engaged in any establishment would
have direct relationship with the principal
employer as a servant of master. But what is true
of a workman could not be correct of contract
labour. When the provisions of the Act neither
contemplate creation of direct relationship of
master and servant between the principal employer
and the contract labour nor can such relationship
be implied from the provisions of the action issuing
notification under Section 10(1) of the CLRA Act.
A fortiori much less can such a relationship be
found to exist from the rules and the forms made
there under."
So, keeping in view the principles enunciated by the
Hon'ble Apex Court in the decisions mentioned above, the
present case in hand is to be considered.
14. So far the contention raised by the union
representative regarding drawing of adverse inference
against the Party No. 1 for non-production of documents
as ordered by the Tribunal on the application of the
workman is concerned, it is to be mentioned that it is
admitted by the workman that he was engaged through the
contractor in F.C.I. and due his such engagement, it was
quite natural for the Party No. 1 to direct him to perform
different duties as a security guard and to see that duties
entrusted to him were done properly. Moreover, the Party
No.1 have produced number of documents to show that
the workman was a contract labour and payment of wages
to him was made by the contractors. Hence, for non-
production of the documents by Party No. 1, there is no
need to draw any adverse inference. As the facts and
circumstances of the case in hand are quite different from
the facts and circumstances of the cases referred in the
decisions by the Hon'ble Courts, on which reliance has
been placed by the union representative, with respect, I am
of the view that the said decisions have no clear application
of this case.
15. So far the contention raised by the union
representative regarding the non-registration of the Party
No. 1 or the contractors with the Regional Labour
Commissioner as per Rules is concerned, it is to be
mentioned that such a plea has neither been taken in the
statement of claim nor any thing has been stated in that
regard in the evidence of the workman. In absence of such
pleading, the contention cannot be entertained. Moreover,
it is clear from the pleadings of the parties and the evidence
on record and the specific suggestions given to the witness
examined on behalf of the Party No. 1 in his cross-
examination that contract for supply of security guards
was given by Party No. 1 to different contractors from
01.03.1989 till 14.03.1999.
Moreover, for the sake of argument, even if, it is held
that the Party No. 1 had engaged the workman and other as
contract labourers in violation of the provisions of the
Contract Labour (Regulations and Abolition) Act, 1976,
then the persons responsible for such violation are liable
for criminal prosecution, but such violation of the
provisions of the above said Act, does not confer any
right on the workman to claim regularisation in service.
2528
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(2) (68-120)
16. In this case, the letter No. U-23013/11/89/LW
dated 28.05.92, Govt. of India, Ministry of Labour shows
that the prohibition of employment of contract labour in
sweeping, cleaning, dusting and watching of buildings
owned or occupied by the establishments of Food
Corporation of India and some other departments was lifted
by the Central Government. So, the engagement of contract
labour by the Party No. 1 cannot be said to be illegal. It is
also found from the materials on record that the appointment
of labour contractor by Party No. 1 for supply of Security
Guards was genuine and the same was not only on papers
as claimed by the workman. The workman has failed to
prove such claim by adducing cogent or reliable evidence.
The engagement of labor contractor by Party No. 1 was
not a mere ruse or camouflage to evade compliance of the
various beneficial legislations, so as to deprive the workman
of the benefits there under. The workman has not been
able to produce any document to show that at any point of
time, Party No. 1 paid his wages as their employee. It is
clear from the evidence that Party No. 1 paid wages of the
last three months to the workman in presence of the Labour
Commissioner, as the contractor did not pay the same. As
it is clear from the evidence on record that the workman
was engaged as a contract labour with Party No. 1, by the
contractor and as such, it can be held that there was no
relationship of master and servant between the Party No. 1
and the workman. Hence, there was no question of
termination of the services by the Party No. 1 or compliance
of the provisions of Sections 25-F or 25-H of the Act.
In view of the facts and circumstances of the case as
mentioned above, which are quite different from the facts
and the circumstances of the cases referred in the decisions,
on which reliance is placed by the union representative,
with respect, I am of the view that the said decisions have
no clear application to the present case in hand.
17. It is the own case of the workman that he was
engaged by the contractor. So the contractor, who had
engaged the workman, is a necessary party in the reference.
The said contractor has not been added as a party in this
reference. Due to non-joinder of necessary party, the
reference is bad in law.
In view of the materials on record and the discussions
made above and applying the principles enunciated by the
Hon'ble Apex Court in the three decisions mentioned above,
the reference cannot be answered in favour of the workman.
Hence, it is ordered:—
ORDER
The reference is answered in the negative. The workman
is not entitled to any relief.
J.P. CHAND, Presiding Officer
ubZ fnYyh] fnukad 15 ekpZ] 2013
dk-vk- 872-—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj
,Qñ lhñ vkbZñ ds izcaè ra= 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 ¼vkbZMh la[;k 305@2003½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 15@03@2013 dks izkIr gqvk FkkA
[lañ ,y&22012@282@2003&vkbZ vkj ¼lh ,e&II½]
chñ,eñ iVuk;d] MsLd vfèdkjh
New Delhi, the 15th March, 2013
S.O. 872.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref. 305/2003 of
the Cent. Govt. Indus. Tribunal-cum-Labour Court,
NAGPUR as shown in the Annexure, in the industrial
dispute between the management of Food Corporation of
India, Food Corporation of India, and their workmen,
received by the Central Government on 15/03/2013
[No. L-22012/282/2003 - IR (CM-II)]
B.M. Patnaik, Desk Officer
ANNEXURE
BEFORE SHRI J.P. CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No. CGIT/NGP/305/2003
Date: 07.03.2013.
Party No. 1(a) :
The District Manager
Food Corporation of India,
Ajani, Nagpur,
Nagpur—440015.
Party No. 1(b) :
The Senior Regional Manager,
Food Corporation of India,
Mistry Bhawan, Dinshaw Wacha
Road, Churchgatye,
Mumbai—400020.
Versus
Party No. 2
:
The Secretary,
Rashtriya Mazdoor,Sena, Hind Nagar
Ward No. 2, Near Boudha Vihar,
Post: Wardha, Distt. Wardha (M.S)
AWARD
(Dated: 7th March, 2013)
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 Food Corporation of India and their
workman, Shri Vijay Haridas Borkar, for adjudication, as
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2529
Server3/E/1250RR/1250RR(2) (68-120)
per letter No.L-22012/282/2003- IR (CM-II) dated 08.12.2003,
with the following schedule:-
"Whether the action of the management of Food
Corporation of India, Nagpur (M.S.) in terminating the
services of Shri Vijay Haridas Borkar, Security Guard w.e.f.
14.03.1999 is legal and justified? If not, to what relief the
concerned 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 Vijay Haridas
Borkar ("the workman" in short), filed the statement of
claim and the management of Food Corporation of India
("Party No. 1" in short) filed their written statement.
The case of the workman as presented in the
statement of claim is that he was in the employment of
Party No. 1 from 01.01.1992 and he was initially engaged
through a contractor at Gondia Depot of Party No. 1, as a
Security Guard and he was in continuous service without
any interruption till 14th March, 1999, when his services
were terminated orally by Party No. 1, without following
the due procedure of law and he had completed more than
240 days of work in each year and the termination of his
services on 14.03.1999 was not in good faith, but in
colourable exercise of the rights and powers by the Party
No. 1, and while terminating his services, neither one
month's notice nor one month's wages in lieu of notice nor
retrenchment compensation was given to him as required
under section 25-F of the Act and after his illegal
termination, fresh hands from the department of home guard
and police were engaged by Party No. 1 to extract the duties
of Security guards, in violation of the provision of section
25-H of the Act and the work which he was performing is
constantly in existence and the same is of a perennial nature
and as his termination is illegal and unlawful, he is entitled
for reinstatement in service with continuity and full back
wages.
The further case of the workman is that in 1992, he
was engaged by the Party No. 1 through the contractor for
a period of two years, but the contract was made only on
papers and after every two years, the Party No. 1 changed
the contractor on papers only and the engagement of the
so called contractor did not replace the Security Guards
and he was also not disturbed from his services and he
was merely shown to be engaged by the contractors, but
actually, he was working under the direct control and
supervision of the Party No. 1 and the contractor had no
role to play in the same and the work performed by him was
being assigned to him by Party No. 1 and he was a regular
employee of Party No. 1 and Party No. 1 was his real
employer and not the contractor as alleged and the
engagement and change of contractors by Party No. 1 from
time to time was sham and only a camouflage to deny his
legitimate claim and the contract between Party No. 1 and
the contractor was bogus and not genuine and therefore,
his oral termination from services was against the
mandatory provisions of the Act and the Central
Government decided to abolish the appointment of contract
labour as contemplated under section 10 of the Contract
Labour (Regulation and Abolition) Act, 1970 and issued
notification on 01.11.1990 with directions to abolish the
contract labour system in the establishment of the Party
No. 1 and to give employment to contract labours engaged
by the management and therefore, it was the mandatory
duty of the Party No. 1 to abolish the contract labour system
in all places and management of FCI implemented the
notification only at Nagpur and Manmad and absorbed
the Security Guards working at Nagpur and Manmad, but
at Akola, Amravati, Wardha and Gondia districts, the
contract labour system was continued by the management,
with an intention to deprive him from the benefits under
the labour laws.
It is further pleaded by the workman that his salary
was paid by the Party No. 1 and not by the contractor and
his daily attendance was also marked by the Asstt.
Manager of FCI, Wardha Depot and the Party No. 1 was
supervising his work through their officers and he had no
relation with the so called contractors engaged by the Party
No. 1 and Party No. 1 also supplied the articles, such as,
torch, lathi, whistle and uniform etc. to him and in view of
the long spell of work being carried out by him, he is entitled
to be reinstated in service with continuity and full back
wages.
3. The Party No. 1 in their written statement have
pleaded inter alia that the workman was never in their
employment and the workman has not impleded the
contractor, who appointed him, as a Party and the workman
was engaged by the contractor as a Security Guard at FCI
Depot and the said contractor is a necessary party and in
absence of the contractor, the proceeding cannot proceed
and the workman was not in their service uninterruptedly
till 14th March, 1999 and since the contract of the contractor
came to an end, the services of the workman were terminated
by the contractor and the original period of contract given
to the contractor for providing Security services was up to
1998 and the same was extended as per the terms and
conditions till March, 1999 and as the workman was not
employed by them, there was no question of following the
procedure of termination by them and they were not the
employer of the workman and the services of the workman
were never utilized by them as employer from 01.01.1992
to14.03. 1999 , without any break in service and the workman
did not complete 240 days of work in a year as alleged and
as the workman was engaged by the Security Contractor,
there was no relationship of master and servant between
them and the workman at any point of time and under
section 10 of the Contract Labour (Regularisation and
Abolition) Act, they were exempted by the Central
Government, so the allegations made by the workman
against them are not true and there was no question of
2530
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(2) (68-120)
violation of the provisions of 25 (H) of the Act and the
work does not constantly exist and the work of providing
security guards was given to other Government Agencies
like Police Personnel and Home guards and therefore, the
workman has no right to claim any relief from them and the
work of security is not perennial in nature and as and when
their godowns are filled with foodgrains, then only, services
of the security guards are required and in pursuance of the
notification issued by the Central Government abolishing
contract labour system, they appointed Home guards and
Police personnel as security guards.
The further case of Party No.1 is that for the relief as
claimed, by the workman had filed a writ petition before the
Hon'ble High Court, Nagpur Bench bearing W.P. No. 1389/
99 and the Hon'ble High Court rejected the said WP and
denied the relief prayed for and therefore, this Tribunal has
no jurisdiction to decide the reference and the decision of
the Hon'ble Court operates as res-judicata and they floated
tenders for the contract and lowest bidder was awarded
the contract and the change of contractor in every two
years was not on papers only and they had no say in the
appointment of security guards by the security contractor
and they had no control over the appointment and service
conditions of the workman, who was an employee of the
security agency and he was never their employee and the
security contractor was the employer of the workman.
The further case of Party No.1 is that the appropriate
government decided to abolish the employment of the
contract labour as contemplated under section 10 of the
Contract Labour (Regularisation and Abolition) Act, 1970
and the interpretation of the notification issued on
01.11.1990 put by the workman is not correct and they were
exempted from the operation of the Act of 1970 in the year
1989 and the said exemption was withdrawn in the year
1999 and therefore, the security contract given to the
contractor was terminated and hence, the services of the
workman were terminated by the security contractor and
they did not pay the salary to the workman and it was the
contractor, who was paying the same to the workman and
when the contractor failed to pay the salary to the workman,
they paid the amount as per the directions given by the
ALC from time to time and the said amount was recovered
from the contract's bill and they only used to check the
attendance of the security guards to find out as to whether,
the contractor had made arrangement of the requisite
number of security guards, as per their requirement and
they did not have the power to terminate any employee
appointed by the contractor and they did not provide any
article, such as torch, Lathi, whistle and uniform etc to the
workman and as such, the workman is not entitled to any
relief.
4. Both parties have led oral evidence in support of
their respective claims, besides placing reliance on
documentary evidence.
The workman in support of his claim has examined
himself as a witness. In his evidence, which is on affidavit
the workman has reiterated the facts mentioned in the
statement of claim.
5. In his cross-examination, the workman has admitted
that his original appointment was through contractor and
he has not filed any document showing payment of salary
to him by the F.C.I.. An amount of Rs. 1550.85 was paid to
him in presence of Labour Enforcement Officer and others
and they were sent by Industrial Security and Fire Services
to the Asstt. Manager, F.C.I., Gondia branch, after taking of
their signatures against their names as per Exhibit M-V and
Exhibit M-VI is his application having his photograph and
signature to Singh Security Services for employment.
6. One Shri Mohan Govindrao Temburne has been
examined as a witness on behalf of the Party No. 1. This
witness has also reiterated the facts mentioned in the written
statement, in his examination-in-chief, which is on affidavit.
In his cross-examination, this witness has admitted the
suggestions that contract for supply of security guards
was given to Singh Security services for two years and
subsequently, the contract of Singh Security was extended
till 15.12.1996 and contract for supply of security guards
was given to M/s Chaitanya Security and Investigation
Services, Amaravati from January, !992 to May, 1992 and to
M/s Security Services Intelligence Bureau, Thane from
01.06.1992 to 31.03. 1993 and to M/s Industrial Security
and Fire Services from 16.12.1996 to 15.12.1998 by FCI. The
witness has also admitted that inspite of change of
contractors, the workman worked continuously in FCI from
01.01.1992 to 14.03.1999. This witness has also admitted
the suggestion on 14.03.1999, the contract of M/s Industrial
Security and Fire Services was expired. In his cross-
examination, this witness has further admitted that the
concerned officers of the FCI were issuing necessary
directions to the workman and other security guards
regarding the place and time of their performing duties and
the security guards posted at the gate of the Depot of FCI
were keeping accounts in a register regarding the number
of incoming and out- going vehicles to and from the depot
respectively and home guards and police personnel of the
state were engaged for watch and ward purpose of the
depot, after the disengagement of the workman and other
security guards and the work of watch and ward is a
continuous process in the FCI and the same is of perennial
in nature. This witness has further stated that the
contractors engaged by FCI were paying the wages to the
security guards deployed by them.
7. At the time of argument, it was submitted by the
union representative for the workman that the workman
was engaged by the management of FCI on 01.01.1992 at
Gondia depot as a security guard and he worked
continuously without any interruption till 14th March,1999
and his services were terminated orally by the Party No.1,
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2531
Server3/E/1250RR/1250RR(2) (68-120)
without following the due procedure of law and the workman
had completed more than 240 days of work in each year
and before termination of the services of the workman,
neither one month's notice nor one month's wages in lieu
of notice nor retrenchment compensation was given to the
workman, as required under section 25-F of the Act and
after termination of the services of the workman, fresh hands
were engaged by Party No.1 to extract the duties of security
guard, in violation of the provision of section 25-H of the
Act and the work of security guard is perennial in nature,
hence the termination of the workman is void and illegal.
It was further submitted by the union representative
for the workman that the Party No.1 had shown the workman
as contract labour, but the so called contract was made
only on papers and the workman was actually working
under the direct control and supervision of the Party No.1
and he was never a contract labour and such action of the
Party No.1 was sham and only a camouflage to deny the
legitimate claim of the workman and the so called contract
between the management and the contractor was bogus
and not genuine and the Central Government by
notification dated 01.11.1990 abolished the employment of
contract labour and directed to give employment to contract
labours engaged by the management and therefore, the
management of FCI was bound to abolish the contract
labour system and to give employment to the workman.
It was further submitted by the union representative
that on 29.06.2007, an application was filed by the workman
for production of nine documents relating to him, from
which, it could have been held without any doubt that the
workman was an employee of the Party No.1 and not a
contract labour and after hearing the parties, the Tribunal
by order dated 30.05.2008 directed the Party No.1 to produce
the documents, but inspite of the order passed by the
Tribunal for production of documents, the Party No.1 failed
to produce the documents and as such, adverse inference
is to be drawn against the Party No. 1.
In support of such contentions, reliance was placed
by the union representative on the decisions reported in
2005 ICLR-254 (Statesman Ltd. & Anr. Vs. Eight Industrial
Tribunal, West Bengal & ors.) and 2004 (103) FLR-187
(Municipal Corporation, Faridabad and Shri Niwas).
It was also submitted by the union representative
that neither the Party No.1 nor the so called contractors
engaged by the Party No.1 were registered with the Regional
Labour Commissioner as per rules to engage contract
labours and infact the so called contractors were mediators
and not contractors and even though there was legal ban
on engagement of contract labourers, the Party No.1
engaged the workman and some others as security guards
and from the pleadings of the parties, the evidence on
record and the admission of the witness examined on behalf
of the Party No. 1 from the date of his initial engagement
the workman worked till 14.03.1999 clearly show that the
workman was the employee of the Party No.1 and the Party
No.1 is the real employer and there was master and servant
relationship between the Party No.1 and the workman and
the so called contract given to the contractor expired on
31.12.1998 and though Party No.1 unilaterally extended the
contract, the contractor did not accept the same and without
any contractor, the workman continued the work with Party
No.1 till 14.03.1999 and the Party No.1 paid the wages from
01.01.1999 to 14.03.1999 to the workman, and such facts
also prove that the workman was the employee of Party
No.1 and it was Party No.1, who terminated the services of
the workman without compliance of the mandatory
provisions of section 25-F of the Act. In support of the
submissions, the union representative placed reliance on
the decisions reported in 1994 II CLR-402 (R.K. Panda Vs.
Steel Authority), 2003 (98) FLR-826 (M/s. Bharat Heavy
Electricals Ltd. Vs. State of UP) and 2011 (128) FLR-99
(Mahesh Kumar Sharma Vs. D.F.O., General Forest Division,
Sheopur).
It was also submitted by the union representative
for the workman that Party No.1 has admitted the claims
made by the workman and has not been able to prove their
claim that the workman was a contract labour, by producing
cogent evidence in support of the same and as such, the
workman is entitled for reinstatement in service with
continuity and full back wages.
8. Per contra, it was submitted by the learned advocate
for the Party No.1 that the workman was never appointed
by Party No.1 and he has engaged by the contractor as a
security guard and as such, the concerned contractor is a
necessary party and inspite of raising such objection in
the written statement, the workman did not implead the
contractor as a party and for that the reference is not
maintainable. It was further submitted by the learned
advocate for the Party No.1 that the workman was engaged
by the contractor and as the contract of the contractor
came to an end in March, 1999, the services of the workman
were terminated by the contractor and as such, there was
no question of Party No.1 complying with the due procedure
of termination and there was no relationship of master and
servant between the Party No.1 and the workman and the
Party No.1 was exempted by the Central Government from
the ban imposed for engagement of contract labourers, so
contract was given to the security contractor, as per rules,
for supply of security guards and due to the notification of
the Government for abolition of contract labour system,
Home guards and Police personnel were appointed as
security guards and Party No.1 has no control over the
workman and the security contractor was submitting bills
for payment for supply of security guards and the security
contractor was paying the wages to the workman. It was
further submitted by the learned advocate for the Party
No.1 that the workman and some others had approached
the Hon'ble High Court, Nagpur Bench in W.P. 1389 of 1999
for the reliefs sought in this reference and the Hon'ble
2532
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(2) (68-120)
High Court while depositing of the said petition have held
that the termination of the workman by the contractor was
a valid one and the action of FCI was legal and as such, the
workman cannot agitate the question again and the decision
of the Hon'ble High Court operates as res-judicata between
the parties and the workman is not entitled to any relief.
In the alternative, it was submitted by the learned
advocate for the Party No.1 that the Party No.1 is a "State"
as per the provisions of Article 12 of the Constitution of
India and it has a set Rules for appointment of its employees
and it is clear that the workman was never engaged by
Party No.1 as per the Rules of appointment and no evidence
has been adduced by the workman to prove that he had
worked for 240 days with Party No.1 in the preceding
12 calendar months of the date of the alleged termination
and as such, there was no question of compliance of section
25-F or 25-H of the Act and the workman is not entitled to
any relief.
In support of such contentions, the learned
advocates for the Party No.1 placed reliance on the
decisions of the Hon'ble Apex Court reported in Appeal
(Civil) 7038/2002 (M/s. Essen Deinki Vs. Rajiv Kumar),
Appeal (Civil) 6303-6316 of 2003 (Manager, RBI, Bangalore
Vs. S. Mani), Appeal (Civil)-6511of 2005 (Surendranagar
District Panchayat Vs. Dayachai Amar Singh), Appeal (Civil)
3639/2006 (Krishna Bhagaya Jala Nigam Vs. Md. Raffi) and
Appeal (Civil) 2969/2004 (Rajsthan State Gangasagar Mills
Ltd. Vs. State of Rajasthan).
9. First of all, I will take up the submission made by
the learned advocate for the Party No.1 that the present
reference is hit by the principles of res-judicata, due to the
decision of the Hon'ble High Court, Nagpur Bench in W.P.
1389/99.
It is not disputed that the workman along with
78 others through the union, "Rashtriya Mazdoor Sena
Saptahit Jaibhim" had filed Writ Petition No. 1389/99 before
the Hon'ble High Court of Judicature at Bombay, Nagpur
Bench, Nagpur, for their regularisation and the Hon'ble
High Court did not grant such relief. On perusal of the
order passed by the Hon'ble High Court on 29.07.2002 in
the said writ petition, it is found that the workman and
others claimed regularisation on the ground that they were
employed by the contractor for doing regular work of the
Food Corporation of India and in view of the same, they
have become workmen of Food Corporation of India, since
the work on which they were employed is of perennial
nature. However, it is found from the judgment that the
Hon'ble High Court did not consider the main relief and
passed the following order:
"In view of the judgment of the Constitution Bench
in Steel Authority of India Ltd. and others Vs.
National Union Water Front Workers and others
[reported in 2001 (7) SCC1], the relief sought by
the petitioners cannot be granted since the
petition involves disputed question of facts as
also other facts which are required to be
adjudicated by appropriate authority. Accordingly,
the main prayer to absorb them cannot be granted.
**
**
**
**
In view of the rejection of the main prayer, the
question of granting other prayer does not arise.
In case, the petitioners approach the appropriate
authority, the appropriate authority shall take
decision in the matter within a period of one year.
The applicants are free to approach the
appropriate authority for redressal of their
grievances."
So, it is clear from the orders passed by the Hon'ble
High Court as mentioned above that the Hon'ble High Court
did not consider the claim made by the workman and others
on merit and granted them the liberty to approach the
appropriate authority for redress. Hence, the reference
cannot be said to be hit by the principles of res-judicata.
So, there is no force in the contention raised by the learned
advocate for the Party No.1.
10. In this reference, it is never the case of the
workman that he was directly appointed or engaged by the
Party No.1 as a security guard. In the very beginning of the
statement of claim, it has been mentioned by the workman
that he was initially engaged at Food Corporation of India
Depot, Gondia as a security guard, through a contractor. In
paragraph 4 of the statement of claim, the workman has
mentioned that, "In the year 1992, he was engaged by the
Food Corporation of India through contractor, for a period
of 2 years, but the contract was made on paper." The case
of the workman is that after every two years, the Party No.1
on papers showed the change of contractors, but he was
not disturbed from services and he worked continuously
without any break till 14.03.1999 and as he worked as a
security guard of perennial nature, he is entitled for
reinstatement in service. The workman has also claimed
that as the Central Government issued notification on
01.11.1990 to abolish the contract labour system in FCI and
directed to give employment to contract labours engaged
by the management and Party No.1 implemented such
direction at Nagpur and Manmad only and gave
employment and regularized and absorbed the services of
the Security Guards working at Nagpur and Manmad and
did not implement the same at Wardha and other places to
deprive him from the benefits under the Labour Laws.
In his evidence on affidavit also, the workman has
mentioned that he was initially engaged in Food
Corporation of India as a security guard through a
contractor.
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2533
Server3/E/1250RR/1250RR(2) (68-120)
From the evidence on record and the own admission
of the workman in the cross-examination including the
specific admission that he was engaged by the contractor
and the contractor left him to FCI and he was appointed
through Singh Securities Services, it is clear that the
workman was engaged by the contractor. The workman
has not produced any evidence to show that he was
directly engaged by the Party No. 1.
11. At this juncture, I think it apropos to mention
about the principles enunciated by the Hon'ble Apex Court
regarding contract labours, in the decision reported in 1994
II CLR-402 (Supra), on which reliance is placed by the union
representative and the two decisions reported in 1985-II
LLJ-4 (S.C.) (The workman of the Food Corporation of India
Vs. M/s. Food Corporation of India) and 2001 LAB IC 3656
(S.C.) (Steel Authority of India Ltd. and others Vs. National
Union Water Front Workers and others).
In the decision reported in 1994-II CLR-402 (Supra)
the Hon'ble Apex Court have held that:—
2. With the industrial growth, the relation between
the employer and the employees also has taken a
new turn. At one time the establishment being the
employer all persons working therein were the
employees of such employer. But slowly the
employer including Central and State
Governments started entrusting many of the jobs
to contractors. Contractors in their turn employed
a worker, who has no direct relationship with the
establishment in which they were employed.
Many contractors exploited the labourers engaged
by them in various manners including the payment
of low wages. Hence, the Contract Labour
(Regulation and Abolition) Act, 1970 was enacted
to regulate the employment of contract labour in
certain establishment and to provide for its
abolition in certain circumstances and for matters
connected therewith.
3. The "Contract Labour" has been defined in
Section 2 (1) (b) to mean a workman, who has
been employed as contract labour in or in
connection with the work of an establishment when
he is hired in or in connection with such work by
or through a contractor, with or without the
knowledge of the principal employer. Section 2
(1) (c) defines "Contractor" to mean a person who
undertakes to produce a given result for the
establishment, other than a mere supply of goods
or articles of manufacture to such establishment,
through contract labour or who supplies contract
labour for any work of the establishment and
includes a sub contractor. "Principal employer"
has been defined to mean (i) in relation to any
office or department of the Government or a local
authority, the head of that office or department or
such other officer as the government or the local
authority, as the case may be, may specify in this
behalf and (ii) in a factory the owner or occupier
of the factory. In view of section 10, of 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," Sub-section (2) of Section 10
requires that before issuing any such notification,
in relation to an establishments, 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. One of the relevant factors, which is to be
taken into consideration is whether the work
performed by the contract labourers is of perennial
nature. Section 12 enjoins that no contractor to
whom this Act is applicable shall undertake or
execute any work through contract labour except
under and in accordance with a license issued in
that behalf by the licensing authority. The license
so issued may contain conditions in respect of
hours of work, fixation of wages and other
essential amenities in respect of contract labour
as the appropriate Government may deem fit to
impose in accordance with rules. Section 20
provides that if any amenity required to be
provided under section 16, section 17, section 18,
or section 19 for the benefit of the contract labour
employed in an establishment, is not provided by
the contractor within the time prescribed by the
contractor within the time prescribed therefore,
such amenity shall be provided by the principal
employer within such time as may be prescribed
and all expensed incurred by the principal
employer in providing the amenity may be
recovered by the principal employer from the
contractor "either by deduction from any amount
payable to the contractor under any contract or
as a debt payable by the contractor". Section 21
says that a contractor shall be responsible for the
payment of wages to each worker employed by
him as contract labour but at the same time in
order to protect the interest of such contract
labour, it requires every principal employer to
nominate a representative duly authorized by him
to be present at the time of disbursement of wages
by the contractor. It shall be the duty of the
contractor to ensure the disbursement of wages
in the presence of the authorized representative
of the principal employer. Because of sub-section
(4) of section 21, if the contractor fails to make
payment of wages within the prescribed period,
then the principal employer shall be liable to make
2534
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(2) (68-120)
payment of wages in full to the contact labour
employed by the contractor and recover the
amount so paid from the contractor. Any
contravention of the provisions aforesaid has
been made penal for which punishment can be
imposed.
4. From the provisions referred to above, it is
apparent that the framers of the Act have allowed
and recognized contract labour and they have
never purported to abolish it in its entirety. The
primary object appears to be that there should
not be any exploitation of the contract labourers
by the contractor or the establishment. For
achieving that object, statutory restrictions and
responsibilities have been imposed on the
contractor as well as on the principal employer.
Of course if any expenses are incurred for
providing any amenity to the contract labourers
or towards the payment of wages by the principle
employer he is entitled to deduct the same from
the bill of the contractor. The Act also conceives
that all appropriate government may after
consultation with the central board or the state
board, as the case may be, prohibit by notification
in official gazette, employment of contract labour
in any process, operation or other work in any
establishment, taking all facts and circumstances
of employment of contract labour in such process,
operation or the work into consideration.
5. Of late a trained amongst the contract labourers
is discernible that after having work for some
years, they make a claim that they should be
absorbed by the principal employer and be treated
as employees of the principal employer especially
when the principal employer is the central
government or the state government or an
authority which can be held to be state within the
meaning of Article 12 of the constitution, although
no right flows from the provisions of the act for
the contract labourers to be absorbed or to
become the employees of the principal employer.
This court in the case of Gammon India limited Vs.
Union of India (1974) I SCC 596, pointed out the
object scope of the act as follows:—
"The Act was passed to prevail the exploitation
of contract labour and also to introduce better
condition of work. The Act provides for regulation
and abolition of contract labour. The underline
policy of the Act is to abolish contract labour,
wherever possible and practicable and where it
cannot be abolished to altogether, the policy of
the Act is that the working conditions of the
contract labour should be so regulated as to
ensure payment of wages and provisions of
essential amenities. This is why the Act provides
for regulated conditions of work and contemplates
progressive abolition to the extent contemplated
by Section 10 of the Act."
In the case of B.H.E.L. Workers' Association VS.
Union of India, 1985 I CLR SC 165 = (1985) 1 SCC
630 it was pointed out that Parliament has not
abolished the contract labour as such but has
provided for its abolition by the Central
Government in appropriate cases under section
10 of the Act. It is not for the court to enquire into
the question and to decide whether the
employment of contract labour in any process,
operation or other work in any establishment
should be abolished or not. That has to be decided
by the government after considering the relevant
aspects as required by Section 10 of the Act. Again
in the case of Mathura Refinery Mazdoor Sangh
V. Indian Oil Corporation Ltd., 1991 I CLR 684,
this court refused to direct the Indian Oil
Corporation Ltd., to absorb the contract labourers
in its employment saying that, the contract
labourers have not been found to have direct
connection with the refinery. In other words, there
was no relationship of employer and employee
between the Indian Oil Corporation Ltd. and the
contract labourers concerned. Again in Dena Nath
VS. National Fertilizers Ltd., 1992 I CLR 1, this
court pointed out that the aforesaid Act has two
purposes to serve (i) to regulate the conditions of
service of the worker employed by the contractor
who is engaged by a principal employer and (ii) to
provide for the abolition of contract labour
altogether, in certain notified processes, operation
or other works in any establishment by the
appropriate government, under section 10 of the
Act. It was further stated that neither the Act nor
the Rules framed by the central government or by
any appropriate government provide that upon
abolition of contract labour, the labourers would
be directly absorbed by the principal employer.
6. It is true that with passage of time and purely
with a view to safeguard the interests of workers,
many principal employers while renewing the
contracts have been insisting that the contractor
or the new contractor retains the old employees.
Infact such a condition is incorporated in the
contract itself. However, such a clause in the
contract which is benevolently inserted in the
contract to protect the continuance of the source
of livelihood of the contract labour cannot by
itself give rise to a right to regularization in the
employment of the principal employer. Whether
the contract labourers have become the
employees of the principal employer in course of
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2535
Server3/E/1250RR/1250RR(2) (68-120)
time and on whether the engagement and
employment of labourers through a contractor is
a mere camouflage and a smoke screen, as has
been urged in this case, is a question of fact is to
be established by the contract labourers on the
basis of the requisite material. It is not possible
for High Court or this court, while exercising writ
jurisdiction or jurisdiction under Article 136 to
decide such questions only on the basis of the
affidavits. It need not to be pointed out that in all
such cases, the labourers are initially employed
and engaged by the contractors. As such at what
point of time a direct link is established between
the contract labourers and the principal employer,
eliminating the contractor from the scene, is a
matter which has to be established on material
produced before the court. Normally, the Labour
Court and the Industrial Tribunal, under the
Industrial Disputes Act are the Competent Fora
to adjudicate such disputes on the basis of the
oral and documentary evidence produced before
them."
12. In the decision reported in 1985-II LLOJ-4 (Supra)
the Hon'ble Apex Court have held that:—
"Briefly stated, when corporation engaged a
contractor for handling foodgrain at Siliguri
Depot, the corporation had nothing to do with
the manner of handling work done by the
contractor the labour force employed by him,
payments made by him etc. In such a fact
situation, there was no privity of contract of
employer and workmen between the corporation
and the workmen. "Workmen" has been defined
(omitting the words not necessary) in the
Industrial Disputes Act to mean (any person
including an apprentice) employed in any industry
to do....... " 'The expression' employed has at least
two known connotations, but as used in the
definition, the context would indicate that it is
used in the sense of a relationship brought about
by express or implied contract of service in which
the employee renders service for which he is
engaged by the employer and the latter agrees to
pay him in cash or kind as agreed between them
or statutorily prescribed. It discloses a
relationship of command and obedience. The
essential condition of a person being a workman
within the terms of the definition is that he should
be employed to do the work in that industry and
that there should be, in other words, an employment
of his by the employer and that there should be a
relationship between the employer and employee
or master and servant unless a person is thus
employed there can be no question of his being a
"workman" within the definition of the term as
contained in the Act.
Dharangadhara Chemical Works Ltd. Vs. State of
Saurashtra (1957 - I - LLJ - 477). Now where a
contractor employs a workman to do the work
which he contracted with a third person to
accomplish on the definition as it stands, the
workman of the contractor would not without
something more become the workman of that third
person. Therefore, when the workmen employed
by the contractor were certainly not the workmen
of the corporation and no claim to that effect has
been made by the union."
13. In the decision reported in 2001 LAB IC - 3656
(Supra) the Hon'ble Apex Court have held that:—
"The principle that a beneficial legislation needs
to be constructed liberally in favour of the class
for whose benefit it is intended, does not extend
to reading in the provisions of the Act what the
legislature has not provided whether expressly or
by necessary implication, or substituting remedy
or benefits for that provided by the legislature.
The intendment of the CLRA Act is to regulate
the conditions of service of the contract labour
and to authorize in Section 10 (1) prohibition of
contract labour system by the appropriate
Government on consideration of factors
enumerated in sub-section (2) of Section 10 of the
Act among other relevant factors. But, the
presence of some or all those factors, provide no
ground for absorption of contract labour on
issuing notification under Section 10 (1) by the
appropriate Government, is not alluded to either
in Section 10 or at any other place in the Act and
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 the Supreme 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 it
absorption of contract labour in the establishment
of principal employer or a lesser or a 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.
Thus on issuance of prohibition notification under
S. 10 (1) of the CLRA Act prohibiting employment
of contract labour or otherwise, in an industrial
dispute brought before it by any contract in regard
to conditions of service, the industrial adjudicator
will have to consider the question whether the
2536
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(2) (68-120)
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 legislations so as to deprive the workers
of the benefit there under. 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 concerned establishment. If the
contract is found to be genuine and the principal
employer intends to employ regular workmen he
shall give preference to the erstwhile contract
labour. It otherwise found suitable, and, if
necessary, by relaxing the condition as to maximum
age appropriately taking into consideration the
age of the workers at the time of their initial
employment by the contractor and also relaxing
the condition as to academic qualifications other
than technical qualifications.
Air India's case 1997 AIR SCW430
Overruled prospectively. M.A.T. Nos. 1704 and
1705 of 1999, D/ - 12-8-1999 (Cal): C.O. No. 6545(W)
if 1996, D/ -9-5-1997(Cal): W.A. Nos. 345-354 of
1997m D/ - 17-4-1998 (Kant): W.P. No. 4050 of 1999,
D/ - 2-8-2000 (Bom) and W.P. No. 2616 of 1999, D/
- 23-121999 (Bom), 1998 Lab IC 2571 (Cal),
Reversed.
It cannot be said that by virtue of
engagement of contract labour by the contractor
in any work of or in connection with the work of
an establishment, the relationship of master and
servant is created between the principal employer
and the contract labour. Even a combined reading
of the definition of the terms "Contract labour",
"Establishment" and "Workman" does not show
that the legal relationship between the person
employed in any industry and the owner of the
industry is created irrespective of the fact as to
who has brought about such relationship. The
word "Workman" is defined in wide terms. It is a
generic term of which contract labour is a species.
It is true that combined reading of the terms
"Establishment" and "Workman" shows that a
workman engaged in any establishment would
have direct relationship with the principal
employer as a servant of master. But what is true
of a workman could not be correct of contract
labour. When the provisions of the Act neither
contemplate creation of direct relationship of
master and servant between the principal employer
and the contract labour nor can such relationship
be implied from the provisions of the action issuing
notification under Section 10 (1) of the CLRA Act.
A fortiori much less can such a relationship be
found to exist from the rules and the forms made
there under."
So, keeping in view the principles enunciated by the
Hon'ble Apex Court in the decisions mentioned above, the
present case in hand is to be considered.
14. So far the contention raised by the union
representative regarding drawing of adverse inference
against the Party No.1 for non-production of documents
as ordered by the Tribunal on the application of the
workman is concerned, it is to be mentioned that it is
admitted by the workman that he was engaged through the
contractor in F.C.I. and due his such engagement, it was
quite natural for the Party No.1 to direct him to perform
different duties as a security guard and to see that duties
entrusted to him were done properly. Moreover, the Party
No.1 have produced number of documents to show that
the workman was a contract labour and payment of wages
to him was made by the contractors. Hence, for
non- production of the documents by Party No.1, there is
no need to draw any adverse inference. As the facts and
circumstances of the case in hand are quite different from
the facts and circumstances of the cases referred in the
decisions by the Hon'ble Courts, on which reliance has
been placed by the union representative, with respect, I am
of the view that the said decisions have no clear application
of this case.
15. So far the contention raised by the union
representative regarding the non-registration of the Party
No.1 or the contractors with the Regional Labour
Commissioner as per Rules is concerned, it is to be
mentioned that such a plea has neither been taken in the
statement of claim nor any thing has been stated in that
regard in the evidence of the workman. In absence of such
pleading, the contention cannot be entertained. Moreover,
it is clear from the pleadings of the parties and the evidence
on record and the specific suggestions given to the witness
examined on behalf of the Party No.1 in his cross-
examination that contract for supply of security guards
was given by Party No.1 to different contractors from
01.03.1989 till 14.03.1999.
Moreover, for the sake of argument, even if, it is held
that the Party No.1 had engaged the workman and others
as contract labourers in violation of the provisions of the
Contract Labour (Regulations and Abolition) Act, 1976,
then the persons responsible for such violation are liable
for criminal prosecution, but such violation of the
provisions of the above said Act, does not confer any
right on the workman to claim regularisation in service.
16. In this case, the letter No. U-23013/11/89/LW
dated 28.05.92, Govt. of India, Ministry of Labour shows
that the prohibition of employment of contract labour in
sweeping, cleaning, dusting and watching of buildings
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2537
Server3/E/1250RR/1250RR(2) (68-120)
owned or occupied by the establishments of Food
Corporation of India and some other departments was lifted
by the Central Government. So, the engagement of contract
labour by the Party No. 1 cannot be said to be illegal. It is
also found from the materials on record that the appointment
of labour contractor by Party No. 1 for supply of Security
Guards was genuine and the same was not only on papers
as claimed by the workman. The workman has failed to
prove such claim by adducing cogent or reliable evidence.
The engagement of labour contractor by Party No. 1 was
not a mere ruse or camouflage to evade compliance of the
various beneficial legislations, so as to deprive the workman
of the benefits there under. The workman has not been
able to produce any document to show that at any point of
time, Party No. 1 paid his wages as their employee. It is
clear from the evidence that Party No. 1 paid wages of the
last three months to the workman in presence of the Labour
Commissioner, as the contractor did not pay the same. As
it is clear from the evidence on record that the workman
was engaged as a contract labour with Party No. 1, by the
contractor and as such, it can be held that there was no
relationship of master and servant between the Party No. 1
and the workman. Hence, there was no question of
termination of the services by the Party No. 1 or compliance
of the provisions of Sections 25-F or 25-H of the Act.
In view of the facts and circumstances of the case as
mentioned above, which are quite different from the facts
and the circumstances of the cases referred in the decisions,
on which reliance is placed by the union representative,
with respect, I am of the view that the said decisions have
no clear application to the present case in hand.
17. It is the own case of the workman that he was
engaged by the contractor. So the contractor, who had
engaged the workman is a necessary party in the reference.
The said contractor has not been added as a party in this
reference. Due to non joinder of necessary party, the
reference is bad in law.
In view of the materials on record and the discussions
made above and applying the principles enunciated by the
Hon'ble Apex Court in the three decisions mentioned above,
the reference cannot be answered in favour of the workman.
Hence, it is ordered:—
ORDER
The reference is answered in the negative. The workman
is not entitled to any relief.
J.P.CHAND, Presiding Officer
ubZ fnYyh] 15 ekpZ] 2013
dk-vk- 873-
—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,QñlhñvkbZñ 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 ukxiqj
ds iapkV ¼vkbZMh la[;k 309@2003½ dks izdkf'kr djrh gS] tks dsUnzh;
ljdkj dks 15@03@2013 dks izkIr gqvk FkkA
[lañ ,y 22012@291@2003&vkbZvkj ¼lh,e&II½]
chñ,eñ iVuk;d] MsLd vf/kdkjh
New Delhi the 15th March, 2013
S.O. 873.—In pursuance of Section 17 of the
Industiral disputes Act, 1947 (14 of 1947), the Central
Government hereby published the Award Ref. 309/2003 of
the Cent. Govt. Indus. Tribunal-cum-Labour Court,
NAGPUR as shown in the Annexure, in Annexure, in the
industrial dispute between the management of Food
Corporation of India, Food Corporation of India, and the
their workmen, received by the Central Government on
15/03/2013.
[No. L-22012/291/2003-IR (CM-II]
B.M. PATNAIK Desk Officer
ANNEXURE
BEFORE SHRI J.P. CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No. CGIT/NGP/309/2003
Date: 07.03.2013.
Party No. 1(a) :
The District Manager,
Food Corporation of India,
Ajani, Nagpur,
Nagpur—440015.
Party No. 1(b) :
The Senior Regional Manager,
Food Corporation of India,
Mistry Bhawan, Dinshaw Wacha
Road, Churchgate,
Mumbai—400020.
Versus
Party No. 2
:
The Secretary,
Rashtriya Mazdoor Sena, Hind Nagar
Ward No. 2, Near Boudha Vihar,
Post: Wardha, Distt. Wardha (M.S)
AWARD
(Dated: 7th March, 2013)
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 Food Corporation of India and their
workman, Shri Pravin Shridharrao Bhayde, for adjudication,
as per letter No.-L22012/291/2003-IR (CM-II) dated
08.12.2003, with the following schedule:—
"Whether the action of the management of Food
Corporation of India, Nagpur (M.S.) in terminating the
2538
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(2) (68-120)
services of Shri Pravin Shridharrao Bhayde , Security Guard
w.e.f. 14.03.1999 is legal and justified? If not, to what relief
the concerned 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 Pravin
Shridharrao Bhayde ('the workman" in short), filed the
statement of claim and the management of Food Corporation
of India ("Party No. 1" in short) filed their written statement.
The case of the workman as presented in the
statement of claim is that he was in the employment of
Party No. 1 from 23.1.1992 and he was initially engaged
through a contractor at Gondia Depot of Party No. 1, as a
Security Guard and he was in continuous service without
any interruption till 14th March, 1999, when his services
were terminated orally by Party No. 1, without following
the due procedure of law and he had completed more than
240 days of work in each year and the termination of his
services on 14.03.1999 was not in good faith, but in
colourable exercise of the rights and powers by the Party
No. 1 and while terminating his services, neither one
month's notice nor one month's wages in lieu of notice nor
retrenchment compensation was given to him as required
under section 25-F of the Act and after his illegal
termination, fresh hands from the department of home guard
and police were engaged by Party No. 1 to extract the duties
of Security guards, in violation of the provision of section
25-H of the Act and the work which he was performing is
constantly in existence and the same is of a perennial nature
and as his termination is illegal and unlawful, he is entitled
for reinstatement in service with continuity and full back
wages.
The further case of the workman is that in 1992; he
was engaged by the Party No. 1 through the contractor for
a period of two years, but the contract was made only on
papers and after every two years, the Party No. 1 changed
the contractor on papers only and the engagement of the
so-called contractor did not replace the Security Guards
and he was also disturbed from his services and he was
merely shown to be engaged by the contractors, but
actually, he was working under the direct control and
supervision of the Party No. 1 and the contractor had no
role to play in the same and the work performed by him was
being assigned to him by Party No. 1 and he was a regular
employee of Party No. 1 and Party No. 1 was his real
employer and not the contractor as alleged and the
engagement and change of contractors by Party No. 1 from
time to time was sham and only a camouflage to deny his
legitimate claim and the contract between Party No. 1 and
the contractor was bogus and not genuine and therefore,
his oral termination from services was against the
mandatory provisions of the Act and the Central
Government decided to abolish the appointment of contract
labour as contemplated under section 10 of the Contract
Labour (Regulation and Abolition) Act, 1970 and issued
notification on 01.11.1990 with directions to abolish the
contract labour system in the establishment of the Party
No. 1 and to give employment to contract labours engaged
by the management and therefore, it was the mandatory
duty of the Party No. 1 to abolish the contract labour system
in all places and management of FCI implemented the
notification only at Nagpur and Manmad and absorbed
the Security Guards working at Nagpur and Manmad, but
at Akola, Amravati, Wardha and Gondia districts, the
contract labour system was continued by the management,
with an intention to deprive him from the benefits under
the labour laws.
It is further pleaded by the workman that his salary
was paid by the Party No. 1 and not by the contractor and
his daily ,attendance was also marked by the Asstt. Manager
of FCI, Wardha Depot and the Party No. 1 was supervising
his work through their officers and he had no relation with
the so called contractors engaged by the Party No. 1 and
Party No. 1 also supplied the articles, such as, torch, lathi,
whistle and uniform etc. to him and in view of the long spell
of work being carried out by him, he is entitled to be
reinstated in service with continuity and full back wages.
3. The Party No. 1 in their written statement have
pleaded inter alia that the workman was never in their
employment and the workman has not impleded the
contractor, who appointed him, as a Party and the workman
was engaged by the contractor as a Security Guard at FCI
Depot and the said contractor is a necessary party and in
absence of the contractor, the proceeding cannot proceed
and the workman was not in their service uninterruptedly
till 14th March, 1999 and since the contract of the contractor
came to an end, the services of the workman were terminated
by the contractor and the original period of contract given
to the contractor for providing Security services was up to
1998 and the same was extended as per the terms and
conditions till March, 1999 and as the workman was not
employed by them, there was no question of following the
procedure of termination by them and they were not the
employer of the workman and the services of the workman
were never utilized by them as employer from 23.1.1992 to
14.03. 1999 , without any break in service and the workman
did not complete 240 days of work in a year as alleged and
as the workman was engaged by Security Contractor, there
was no relationship of master and servant between them
and the workman at any point of time and under section 10
of the Contract Labour (Regularisation and Abolition) Act,
they were exempted by the Central Government, so the
allegations made by the workman against them are not true
and there was no question of violation of provisions of 25
(H) of the Act and the work does not constantly exist and
the work of providing security guards was given to other
Government Agencies like Police Personnel and Home
guards and therefore, the workman has no right to claim
any relief from them and the work of security is not perennial
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2539
Server3/E/1250RR/1250RR(2) (68-120)
in nature and as and when their godowns are filled with
food grains, then only, services of the security guards are
required and in pursuance of the notification issued by the
Central Government abolishing contract labour system,
they appointed Home guards and Police personnel as
security guards.
The further case of Party No.1 is that for the relief as
claimed, by the workman had filed a writ petition before the
Hon'ble High Court, Nagpur Bench bearing W.P. No. 1389/99
and the Hon'ble High Court rejected the said W.P. and
denied the relief prayed for and therefore, this Tribunal has
no jurisdiction to decide the reference and the decision of
the Hon'ble Court operates as res-judicata and they floated
tenders for the contract and lowest bidder was awarded
the contract and the change of contractor in every two
years was not on papers only and they had no say in the
appointment of security guards by the security contractor
and they had no control over the appointment and service
conditions of the workman, who was an employee of the
security agency and he was never their employee and the
security contractor was the employer of the workman.
The further case of Party No.1 is that the appropriate
government decided to abolish the employment of the
contract labour as contemplated under Section 10 of the
Contract Labour (Regularisation and Abolition) Act, 1970
and the interpretation of the notification issued on
01.11.1990 put by the workman is not correct and they were
exempted from the operation of the Act of 1970 in the year
1989 and the said exemption was withdrawn in the year
1999 and therefore, the security contact given to the
contractor was terminated and hence, the services of the
workman were terminated by the security contractor and
they did not pay the salary to the workman and it was the
contractor, who was paying the same to the workman and
when the contractor failed to pay the salary to the workman,
•they paid the amount as per the directions given by the
ALC from time to time and the said amount was recovered
from the contract's bill and they only used to check the
attendance of the security guards to find out as to whether
the contractor had made arrangement of the requisite
number of security guards, as per their requirement and
they did not have the power to terminate any employee
appointed by the contractor and they did not provide any
article, such as torch, lathi, whistle and uniform etc. to the
workman and as such, the workman is not entitled to any
relief.
4. Both parties have led oral evidence in support of
their respective claims, besides placing reliance on
documentary evidence.
The workman in support of his claim has examined
himself as a witness. In his evidence, which is on affidavit,
the workman has reiterated the facts mentioned in the
statement of claim.
5. In his cross-examination, the workman has admitted
that he has not filed any appointment order or any document
to show the date from which he was working under the
management. The workman has admitted that his original
appointment was through contractor and he was appointed
through the contractor, "Chaitanya Security" and he had
applied to "Chaitanya Security" for services and he worked
under the management as directed by "Chaitanya Security"
and he has not filed any document showing payment of
salary to him by the F.C.I.. The workman has also admitted
that the contractor was used to be changed after every two
years and they approached the ALC and ALC directed the
F.C.I. to pay them and therefore F.C.I. paid them.
6. One Shri Mohan Govindrao Temburne has been
examined as a witness on behalf of the Party No. 1. This
witness has also reiterated the facts mentioned in the written
statement, in his examination-in-chief, which is on affidavit.
In his cross-examination, this witness has admitted the
suggestions that contract for supply of security guards
was given to Singh Security services for two years and
subsequently, the contract of Singh Security was extended
till 15.12.1996 and contract for supply of security guards
was given to M/s Chaitanya Security and Investigation
Services, Amaravati from January, 1992 to May, 1992 and
to M/s Security Services Intelligence Bureau, Thane from
01.06.1992 to 31.03. 1993 and to M/s Industrial Security
and Fire Services from 16.12.1996 to 15.12.1998 by F.C.I.
The witness has also admitted that inspite of change of
contractors, the workman worked continuously in F.C.I.
from 23.01.1992 to 14.03.1999. This witness has also admitted
the suggestion that on 14.03.1999, the contract of M/s
Industrial Security and Fire Services was expired. In his
cross-examination, this witness has further admitted that
the concerned officers of the F.C.I. were issuing necessary
directions to the workman and other security guards
regarding the place and time of their performing duties and
the security guards posted at the gate of the Depot of
F.C.I. were keeping accounts in a register regarding the
number of in-coming and outgoing vehicles to and from
the depot respectively and home guards and police
personnel of the state were engaged for watch and ward
purpose of the depot, after the disengagement of the
workman and other security guards and the work of watch
and ward is a continuous process in the F.C.I. and the same
is of perennial in nature. This witness has further stated
that the contractors engaged by F.C.I. were paying the
wages to the security guards deployed by them.
7. At the time of argument, it was submitted by the
union representative for the workman that the workman
was engaged by the management of F.C.I. on 23.01.1992 at
Gondia depot as a security guard and he worked
continuously without any interruption till 14th March, 1999
and his services were terminated orally by the Party No.1,
without following the due procedure of law and the workman
had completed more than 240 days of work in each year
2540
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(2) (68-120)
and before termination of the services of the workman,
neither one month's notice nor one month's wages in lieu
of notice nor retrenchment compensation was given to the
workman, as required under Section 25-F of the Act and
after termination of the services of the workman, fresh hands
were engaged by Party No. 1 to extract the duties of security
guard, in violation of the provision of Section 25-H of the
Act and the work of security guard is perennial in nature,
hence the termination of the workman is void and illegal.
It was further submitted by the union representative
for the workman that the Party No.1 had shown the workman
as contract labour, but the so called contract was made
only on papers and the workman was actually working
under the direct control and supervision of the Party No.1
and he was never a contract labour and such action of the
Party No.1 was sham and only a camouflage to deny the
legitimate claim of the workman and the so called contract
between the management and the contractor was bogus
and not genuine and the Central Government by
notification dated 01.11.1990 abolished the employment of
contract labour and directed to give employment to contract
labours engaged by the management and therefore, the
management of F.C.I. was bound to abolish the contract
labour system and to give employment to the workman.
It was further submitted by the union representative
that on 29.06.2007, an application was filed by the workman
for production of nine documents relating to him, from
which, it could have been held without any doubt that the
workman was an employee of the Party No.1 and not a
contract labour and after hearing the parties, the Tribunal
by order dated 30.05.2008 directed the Party No.1 to produce
the documents, but inspite of the order passed by the
Tribunal for production of documents, the Party No.1 failed
to produce the documents and as such, adverse inference
is to be drawn against the the Party No. 1.
In support of such contentions, reliance was placed
by the union representative on the decisions reported in
2005 ICLR-254 (Statesman Ltd. and Anr. Vs. Eight Industrial
Tribunal, West Bengal & ors.) and 2004 (103) FLR-187
(Municipal Corporation, Faridabad and Shri Niwas).
It was also submitted by the union representative
that neither the Party No.1 nor the so called contractors
engaged by the Party No.1 were registered with the Regional
Labour Commissioner as per rules to engage contract
labours and infact the so called contractors were mediators
and not contractors and even though there was legal ban
on engagement of contract labourers, the Party No.1
engaged the workman and some others as security guards
and from the pleadings of the parties, the evidence on
record and the admission of the witness examined on behalf
of the Party No.1 that from the, date of his initial engagement
the workman worked till 14.03.1999 clearly show that the
workman was the employee of the Party No.1 and the Party
No.1 is the real employer and there was master and servant
relationship between the Party No.1 and the workman and
the so called contract given to the contractor expired on
31.012.1998 and though Party No.1 unilaterally extended
the contract, the contractor did not accept the same and
without any contractor, the workman continued the work
with Party No.1 till 14.03.1999 and the Party No.1 paid the
wages from 01.01.1999 to 14.03.1999 to the workman and
such facts also prove that the workman was the employee
of Party No.1 and it was Party No.1, who terminated the
services of the workman without compliance of the
mandatory provisions of Section 25-F of the Act. In support
of the submissions the union representative placed reliance
on the decisions reported in 1994 II CLR-402 (R.K. Panda
Vs. Steel Authority), 2003 (98) FLR-826 (M/s. Bharat Heavy
Electricals Ltd. Vs. State of UP) and 2011 (128) FLR-99
(Mahesh Kumar Sharma Vs. D.F.O., General Forest Division,
Sheopur).
It was also submitted by the union representative
for the workman that Party No.1 has admitted the claims
made by the workman and has not been able to prove their
claim that the workman was a contract labour, by producing
cogent evidence in support of the same and as such, the
workman is entitled for reinstatement in service with
continuity and full back wages.
8. Per contra, it was submitted by the learned advocate
for the Party No.1 that the workman was never appointed
by Party No.1 and he has engaged by the contractor as a
security guard and as such, the concerned contractor is a
necessary party and inspite of raising such objection in
the written statement, the workman did not implead the
contractor as a party and for that the reference is not
maintainable. It was further submitted by the learned
advocate for the Party No.1 that the workman was engaged
by the contractor and as the contract of the contractor
came to an end in March, 1999, the services of the workman
were terminated by the contractor and as such, there was
no question of Party No.1 complying with the due procedure
of termination and there was no relationship of master and
servant between the Party No.1 and the workman and the
Party No.1 was exempted by the Central Government from
the ban imposed for engagement of contract labourers, so
contract was given to the security contractor, as per rules,
for supply of security guards and due to the notification of
the Government for abolition of contract labour system,
Home Guards and Police personnel were appointed as
security guards and Party No.1 has no control over the
workman and the security contractor was submitting bills
for payment for supply of security guards and the security
contractor was paying the wages to the workman. It was
further submitted by he learned advocate for the Party
No.1 that the workman and some others had approached
the Hon'ble High Court, Nagpur Bench in W.P. 1389 of 1999
for the reliefs sought in this reference and the Hon'ble
High Court while depositing of the said petition have held
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2541
Server3/E/1250RR/1250RR(2) (68-120)
that the termination of the workman by the contractor was
a valid one and the action of F.C.I. was legal and as such,
the workman cannot agitate the question again and the
decision of the Hon'ble High Court operates as res-judicata
between the parties and the workman is not entitled to any
relief.
In the alternative, it was submitted by the learned
advocate for the Party No.1 that the Party No.1 is a "State"
as per the provisions of Article 12 of the Constitution of
India and it has a set Rules for appointment of its employees
and it is clear that the workman was never engaged by
Party No.1, as per the Rules of appointment and no evidence
has been adduced by the workman to prove that he had
worked for 240 days with Party No.1 in the preceding 12
calendar months of the date of the alleged termination and
as such, there was no question of compliance of Section
25-F or 25-H of the Act and the workman is not entitled to
any relief.
In support of such contentions, the learned
advocates for the Party No.1 placed reliance on the
decisions of the Hon'ble Apex Court in Appeal (Civil) 7038/
2002 (M/s. Essen Deinki Vs. Rajiv Kumar), Appeal (Civil)
6303-6316 of 2003 (Manager, RBI, Bangalore Vs. S Mani),
Appeal (Civil)-6511 of 2005 (Surendranagar District
Panchayat Vs. Dayachai Amar Singh), Appeal (Civil) 3639/
2006 (Krishna Bhagaya Jala Nigam Vs. Md. Raffi) and
Appeal (Civil) 2969/2004 (Rajsthan State Gangasagar Mills
Ltd. Vs. State of Rajasthan).
9. First of all, I will take up the submission made by
the learned advocate for the Party No.1 that the present
reference is hit by the principles of res-judicata, due to the
decision of the Hon'ble High Court, Nagpur Bench in W.P.
1389/99.
It is not disputed that the workman along with 78
others through the union, "Rashtriya Mazdoor Sena
Saptahit Jaibhim" had filed Writ Petition No. 1389/99 before
the Hon'ble High Court of Judicature at Bombay, Nagpur
Bench, Nagpur, for their regularisation and the Hon'ble
High Court did not grant such relief. On perusal of the
order passed by the Hon'ble High Court on 29.07.2002 in
the said writ petition, it is found that the workman and
others claimed regularisation on the ground that they were
employed by the contractor for doing regular work of the
Food Corporation of India and in view of the same, they
have become workmen of Food Corporation of India, since
the work on which they were employed is of perennial
nature. However, it is found from the judgment that the
Hon'ble High Court did not consider the main relief and
passed the following order:
"In view of the judgment of the Constitution Bench
in Steel Authority of India Ltd. and others Vs.
National Union water front workers and others
(reported in 2001(7) SCC1), the relief sought by
the petitioners cannot be granted since the
petition involves disputed question of facts as
also other facts which are required to be
adjudicated by appropriate authority. Accordingly,
the main prayer to absorb them cannot be granted.
**
**
**
**
In view of the rejection of the main prayer, the
question of granting other prayer does not arise.
In case, the petitioners approach the appropriate
authority, the appropriate authority shall take
decision in the matter within a period of one year.
The applicants are free to approach the
appropriate authority for redressal of their
grievances."
So, it is clear from the orders passed by the Hon'ble
High Court as mentioned above that the Hon'ble High Court
did not consider the claim made by the workman and others
on merit and granted them the liberty to approach the
appropriate authority for redress. Hence, the reference
cannot be said to be hit by the principles of res-judicata.
So, there is no force in the contention raised by the learned
advocate for the Party No.1.
10. In this reference, it is never the case of the
workman that he was directly appointed or engaged by the
Party No.1 as a security guard. In the very beginning of the
statement of claim, it has been mentioned by the workman
that he was initially engaged at Food Corporation of India
Depot, Gondia as a security guard, through a contractor. In
paragraph 4 of the statement of claim, the workman has
mentioned that, "In the year 1992, he was engaged by the
Food Corporation of India through contractor, for a period
of 2 years, but the contract was made on paper." The case
of the workman is that after every two years, the Party No.1
on papers showed the change of contractors, but he was
not disturbed from services and he worked continuously
without any break till 14.03.1999 and as he worked as a
security guard of perennial nature, he is entitled for
reinstatement in service. The workman has also claimed
that as the Central Government issued notification on
01.11.1990 to abolish the contract labour system in F.C.I.
and directed to give employment to contract labours
engaged by the management and Party No.1 implemented
such direction at Nagpur and Manmad only and gave
employment and regularized and absorbed the services of
the Security Guards working at Nagpur and Manmad and
did not implement the same at Wardha and other places to
deprive him from the benefits under the Labour Laws.
In his evidence on affidavit also, the workman has
mentioned that he was initially engaged in Food
Corporation of India as a security guard through a
contractor.
From the evidence on record and the own admission
of the workman in the cross-examination including the
specific admission that he was engaged by the contractor
2542
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(2) (68-120)
and the contractor left him to FCI and he was appointed
through Singh Securities Services, it is clear that the
workman was engaged by the contractor. The workman
has not produced any evidence to show that he was
directly engaged by the Party No. 1.
11. At this juncture, I think it apropos to mention
about the principles enunciated by the Hon'ble Apex Court
regarding contract labours, in the decision reported in 1994
II CLR-402 (Supra), on which reliance is placed by the union
representative and the two decisions reported in 1985-II
LLJ-4 (S.C.) (The workman of the Food Corporation of India
Vs M/s Food Corporation of India) and 2001 LAB IC 3656
(S.C.) (Steel Authority of India Ltd. and others Vs. National
Union Water Front Workers and others).
In the decision reported in 1994-II CLR-402 (supra)
the Hon'ble Apex Court have held that:—
2. With the industrial growth, the relation between
the employer and the employees also has taken a
new turn. At one time the establishment being the
employer all persons working therein were the
employees of such employer. But slowly the
employer including Central and State
Governments started entrusting many of the jobs
to contractors. Contractors in their turn employed
a worker, who has no direct relationship with the
establishment in which they were employed.
Many contractors exploited the labourers engaged
by them in various manners including the payment
of low wages. Hence, the Contract Labour
(Regulation and Abolition) Act, 1970 was enacted
to regulate the employment of contract labour in
certain establishment and to provide for its
abolition in certain circumstances and for matters
connected therewith.
3. The "Contract Labour" has been defined in
Section 2 (1) (b) to mean a workman, who has
been employed as contract labour in or in
connection with the work of an establishment when
he is hired in or in connection with such work by
or through a contractor, with or without the
knowledge of the principal employer. Section 2
(1) (c) defines "Contractor" to mean a person who
undertakes to produce a given result for the
establishment, other than a mere supply of goods
or articles of manufacture to such establishment,
through contract labour or who supplies contract
labour for any work of the establishment and
includes a subcontractor. "Principal employer" has
been defined to mean (i) in relation to any office
or department of the Government or a local
authority, the head of that office or department or
such other officer as the government or the local
authority, as the case may be, may specify in this
behalf and (ii) in a factory, the owner or occupier
of the factory. In view of section 10, of 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,"
Sub-section (2) of Section 10
requires that before issuing any such notification,
in relation to an establishments, 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. One of the relevant factors, which is to be
taken into consideration is whether the work
performed by the contract labourers is of perennial
nature. Section 12 enjoins that no contractor to
whom this Act is applicable shall undertake or
execute any work through contract labour except
under and in accordance with a license issued in
that behalf by the licensing authority. The license
so issued may contain conditions in respect of
hours of work, fixation of wages and other
essential amenities in respect of contract labour
as the appropriate Government may deem fit to
impose in accordance with rules. Section 20
provides that if any amenity required to be
provided under section 16, section 17, section 18,
or section 19 for the benefit of the contract labour
employed in an establishment, is not provided by
the contractor within the time prescribed by the
contractor within the time prescribed therefore,
such amenity shall be provided by the principal
employer within such time as may be prescribed
and all expensed incurred by the principal
employer in providing the amenity may be
recovered by the principal employer from the
contractor "either by deduction from any amount
payable to the contractor under any contract or
as a debt payable by the contractor". Section 21
says that a contractor shall be responsible for the
payment of wages to each worker employed by
him as contract labour but at the same time in
order to protect the interest of such contract
labour, it requires every principal employer to
nominate a representative duly authorized by him
to be present at the time of disbursement of wages
by the contractor. It shall be the duty of the
contractor to ensure the disbursement of wages
in the presence of the authorized representative
of the principal employer. Because of sub-section
(4) of section 21, if the contractor fails to make
payment of wages within the prescribed period,
then the principal employer shall be liable to make
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2543
Server3/E/1250RR/1250RR(2) (68-120)
payment of wages in full to the contact labour
employed by the contractor and recover the
amount so paid from the contractor. Any
contravention of the provisions aforesaid has
been made penal for which punishment can be
imposed.
4. From the provisions referred to above, it is
apparent that the framers of the Act have allowed
and recognized contract labour and they have
never purported to abolish it in its entirety. The
primary object appears to be that there should
not be any exploitation of the contract labourers
by the contractor or the establishment. For
achieving that object, statutory restrictions and
responsibilities have been imposed on the
contractor as well as on the principal employer.
Of course if any expenses are incurred for
providing any amenity to the contract labourers
or towards the payment of wages by the principle
employer he is entitled to deduct the same from
the bill of the contractor. The Act also conceives
that all appropriate government may after
consultation with the central board or the state
board, as the case may be, prohibit by notification
in official gazette, employment of contract labour
in any process, operation or other work in any
establishment, taking all facts and circumstances
of employment of contract labour in such process,
operation or the work into consideration.
5. Of late a trained amongst the contract labourers
is discernible that after having work for some
years, they make a claim that they should be
absorbed by the principal employer and be treated
as employees of the principal employer especially
when the principal employer is the central
government or the state government or an
authority which can be held to be state within the
meaning of Article 12 of the constitution, although
no right flows from the provisions of the act for
the contract labourers to be absorbed or to
become the employees of the principal employer.
This court in the case of Gammon India Limited V.
Union of India (1974) I SCC 596, pointed out the
object and scope of the act as follows:—
"The Act was passed to prevail the exploitation
of contract labour and also to introduce better
condition of work. The Act provides for regulation
and abolition of contract labour. The underline
policy of the Act is to abolish contract labour,
wherever possible and practicable and where it
cannot be abolished to altogether, the policy of
the Act is that the working conditions of the
contract labour should be so regulated as to
ensure payment of wages and provisions of
essential amenities. This is why the Act provides
for regulated conditions of work and contemplates
progressive abolition to the extent contemplated
by Section 10 of the Act."
In the case of B.H.E.L. Workers' Association V.
Union of India, 1985 I CLR SC 165 = (1985) 1 SCC
630 it was pointed out that Parliament has not
abolished the contract labour as such but has
provided for its abolition by the Central
Government in appropriate cases under section
10 of the Act. It is not for the court to enquire into
the question and to decide whether the
employment of contract labour in any process,
operation or other work in any establishment
should be abolished or not. That• has to be
decided by the government after considering the
relevant aspects as required by Section 10 of the
Act. Again in the case of Mathura Refinery
Mazdoor Sangh V. Indian Oil Corporation Ltd.,
1991 I CLR 684, this court refused to direct the
Indian Oil Corporation Ltd., to absorb the contract
labourers in its employment saying that, the
contract labourers have not been found to have
direct connection with the refinery. In other words,
there was no relationship of employer and
employee between the Indian Oil Corporation Ltd.
and the contract labourers concerned. Again in
Dena Nath V. National Fertilizers Ltd., 1992 I CLR
1, this court pointed out that the aforesaid Act
has two purposes to serve (i) to regulate the
conditions of service of the worker employed by
the contractor who is engaged by a principal
employer and (ii) to provide for the abolition of
contract labour altogether, in certain notified
processes, operation or other works in any
establishment by the appropriate government,
under section 10 of the Act. It was further stated
that neither the Act nor the Rules framed by the
central government or by any appropriate
government provide that upon abolition of
contract labour, the labourers would be directly
absorbed by the principal employer.
6. It is true that with passage of time and purely
with a view to safeguard the interests of workers,
many principal employers while renewing the
contracts have been insisting that the contractor
or the new contractor retains the old employees.
Infact such a condition is incorporated in the
contract itself. However, such a clause in the
contract which is benevolently inserted in the
contract to protect the continuance of the source
of livelihood of the contract labour cannot by
itself give rise to a right to regularization in the
employment of the principal employer. Whether
the contract labourers have become the
2544
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(2) (68-120)
employees of the principal employer in course of
time and on whether the engagement and
employment of labourers through a contractor is
a mere camouflage and a smoke screen, as has
been urged in this case, is a question of fact is to
be established by the contract labourers on the
basis of the requisite material. It is not possible
for High Court or this court, while exercising writ
jurisdiction or jurisdiction under Article 136 to
decide such questions only on the basis of the
affidavits. It need not to be pointed out that in all
such cases, the labourers are initially employed
and engaged by the contractors. As such at what
point of time a direct link is established between
the contract labourers and the principal employer,
eliminating the contractor from the scene, is a
matter which has to be established on material
produced before the court. Normally, the Labour
Court and the Industrial Tribunal, under the
Industrial Disputes Act are the Competent Fora
to adjudicate such disputes on the basis of the
oral and documentary evidence produced before
them."
12. In the decision reported in 1985-II LLOJ-4 (supra)
the Hon'ble Apex Court have held that:—
"Briefly stated, when corporation engaged a
contractor for handling foodgrain at Siliguri
Depot, the corporation had nothing to do with
the manner of handling work done by the
contractor, the labour force employed by him,
payments made by him etc. In such a fact situation,
there was no privity of contract of employer and
workmen between the• corporation and the
workmen. "Workmen" has been defined (omitting
the words not necessary) in the Industrial
Disputes Act to mean (any person including an
apprentice) employed in any industry to do
............" 'The expression' employed has at least
two known connotations, but as used in the
definition, the context would indicate that it is
used in the sense of a relationship brought about
by express or implied contract of service in which
the employee renders service for which he is
engaged by the employer and the latter agrees to
pay him in cash or kind as agreed between them
or statutorily prescribed. It discloses a
relationship of command and obedience. The
essential condition of a person being a workman
within the terms of the definition is that he should
be employed to do the work in that industry and
that there should be, in other words, an employment
of his by the employer and that there should be a
relationship between the employer and employee
or master and servant unless a person is thus
employed there can be no question of his being a
"workman" within the definition of the term as
contained in the Act.
Dharangadhara Chemical Works Ltd. Vs. State of
Saurashtra (1957 - I - LLJ - 477). Now where a
contractor employs a workman to do the work
which he contracted with a third person to
accomplish on the definition as it stands, the
workman of the contractor would not without
something more become the workman of that third
person. Therefore, when the workmen employed
by the contractor were certainly not the workmen
of the corporation and no claim to that effect has
been made by the union."
13. In the decision reported in 2001 LAB IC - 3656
(supra) the Hon'ble Apex Court have held that:—
"The principle that a beneficial legislation needs
to be constructed liberally in favour of the class
for whose benefit it is intended, does not extend
to reading in the provisions of the Act what the
legislature has not provided whether expressly or
by necessary implication, or substituting remedy
or benefits for that provided by the legislature.
The intendment of the CLRA Act is to regulate
the conditions of service of the contract labour
and to authorize in Section 10(1) prohibition of
contract labour system by the appropriate
Government on consideration of factors
enumerated in sub-section (2) of Section 10 of the
Act among other relevant factors. But, the
presence of some or all those factors, provide no
ground for absorption of contract labour on
issuing notification under Section 10(1) by the
appropriate Government, is not alluded to either
in Section 10 or at any other place in the Act and
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 the Supreme 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 it
absorption of contract labour in the establishment
of principal employer or a lesser or a 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.
Thus on issuance of prohibition notification under
S. 10(1) of the CLRA Act prohibiting employment
of contract labour or otherwise, in an industrial
dispute brought before it by any contract in regard
to conditions of service, the industrial adjudicator
will have to consider the question whether the
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2545
Server3/E/1250RR/1250RR(2) (68-120)
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 legislations so as to deprive the workers
of the benefit there under. 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 concerned establishment. If the
contract is found to be genuine and the principal
employer intends to employ regular workmen he
shall give preference to the erstwhile contract
labour. It otherwise found suitable, and, if
necessary, by relaxing the condition as to maximum
age appropriately taking into consideration the
age of the workers at the time of their initial
employment by the contractor and also relaxing
the condition as to academic qualifications other
than technical qualifications.
Air India's case 1997 AIR SCW430 Overruled
prospectively. M.A.T. Nos. 1704 and 1705 of 1999,
D/ - 12-8-1999 (Cal): C.O. No. 6545(W) if 1996, D/ -
9-5-1997(Cal): W.A. Nos. 345-354 of 1997, D/ - 17-
4-1998 (Kant): W.P. No. 4050 of 1999 D/ - 2-8- 2000
(Bom) and W.P. No. 2616 of 1999, D/ - 23-12- 1999
(Bom), 1998 Lab IC 2571 (Cal), Reversed.
It cannot be said that by virtue of
engagement of contract labour by the contractor
in any work of or in connection with the work of
an establishment, the relationship of master and
servant is created between the principal employer
and the contract labour. Even a combined reading
of the definition of the terms "Contract labour",
"Establishment" and "Workman" does not show
that the legal relationship between the person
employed in any industry and the owner of the
industry is created irrespective of the fact as to
who has brought about such relationship. The
word "Workman" is defined in wide terms. It is a
generic term of which contract labour is a species.
It is true that combined reading of the terms
"Establishment" and "Workman" shows that a
workman engaged in any establishment would
have direct relationship with the principal
employer as a servant of master. But what is true
of a workman could not be correct of contract
labour. When the provisions of the Act neither
contemplate creation of direct relationship of
master and servant between the principal employer
and the contract labour nor can such relationship
be implied from the provisions of the action issuing
notification under Section 10(1) of the CLRA Act.
A fortiori much less can such a relationship be
found to exist from the rules and the forms made
there under."
So, keeping in view the principles enunciated by the
Hon'ble Apex Court in the decisions mentioned above, the
present case in hand is to be considered.
14. So far the contention raised by the union
representative regarding drawing of adverse inference
against the Party No.1 for non-production of documents
as ordered by the Tribunal on the application of the
workman is concerned, it is to be mentioned that it is
admitted by the workman that he was engaged through the
contractor in F.C.I. and due his such engagement, it was
quite natural for the Party No.1 to direct him to perform
different duties as a security guard and to see that duties
entrusted to him were done properly. Moreover, the Party
No.1 have produced number of documents to show that
the workman was a contract labour and payment of wages
to him was made by the contractors. Hence, for non-
production of the documents by Party No.1, there is no
need to draw any adverse inference. As the facts and
circumstances of the case in hand are quite different from
the facts and circumstances of the cases referred in the
decisions by the Hon'ble Courts, on which reliance has
been placed by the union representative, with respect, I am
of the view that the said decisions have no clear application
of this case.
15. So far the contention raised by the union
representative regarding the non-registration of the Party
No.1 or the contractors with the Regional Labour
Commissioner as per Rules is concerned, it is to be
mentioned that such a plea has neither been taken in the
statement of claim nor any thing has been stated in that
regard in the evidence of the workman. In absence of such
pleading, the contention cannot be entertained. Moreover,
it is clear from the pleadings of the parties and the evidence
on record and the specific suggestions given to the witness
examined on behalf of the Party No.1 in his cross-
examination that contract for supply of security guards
was given by Party No.1 to different contractors from
01.03.1989 till 14.03.1999.
Moreover, for the sake of argument, even if, it is held
that the Party No.1 had engaged the workman and others
as contract labourers in violation of the provisions of the
Contract Labour (Regulations and Abolition) Act, 1976,
then the persons responsible for such violation are liable
for criminal prosecution, but such violation of the
provisions of the above said Act, does not confer any
right on the workman to claim regularisation in service.
16. In this case, the letter No. U-23013/11/89/LW
dated 28.05.92, Govt. of India, Ministry of Labour shows
that the prohibition of employment of contract labour in
2546
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(2) (68-120)
sweeping, cleaning, dusting and watching of buildings
owned or occupied by the establishments of Food
Corporation of India and some other departments was lifted
by the Central Government. So, the engagement of contract
labour by the Party No. 1 cannot be said to be illegal. It is
also found from the materials on record that the appointment
of labour contractor by Party No. 1 for supply of Security
Guards was genuine and the same was not only on papers
as claimed by the workman. The workman has failed to
prove such claim by adducing cogent or reliable evidence.
The engagement of labour contractor by Party No. 1 was
not a mere ruse or camouflage to evade compliance of the
various beneficial legislations, so as to deprive the workman
of the benefits there under. The workman has not been
able to produce any document to show that at any point of
time, Party No. 1 paid his wages as their employee. It is
clear from the evidence that Party No. 1 paid,wages of the
last three months to the workman in presence of the Labour
Commissioner, as the contractor did not pay the same. As
it is clear from the evidence on record that the workman
was engaged as a contract• labour with Party No. 1, by the
contractor and as such, it can be held that there was no
relationship of master and servant between the Party No. 1
and the workman. Hence, there was no question of
termination of the services by the Party No. 1 or compliance
of the provisions of Sections 25-F or 25-H of the Act.
In view of the facts and circumstances of the case as
mentioned above, which are quite different from the facts
and the circumstances of the cases referred in the decisions,
on which reliance is placed by the union representative,
with respect, I am of the view that the said decisions have
no clear application to the present case in hand.
17. It is the own case of the workman that he was
engaged by the contractor. So the contractor, who had
engaged the workman is a necessary party in the reference.
The said contractor has not been added as a party in this
reference. Due to non-joinder of necessary party, the
reference is bad in law.
In view of the materials on record and the discussions
made above and applying the principles enunciated by the
Hon'ble Apex Court in the three decisions mentioned above,
the reference cannot be answered in favour of the, workman.
Hence, it is ordered:—
ORDER
The reference is answered in the negative. The workman
is not entitled to any relief.
J.P. CHAND, Presiding Officer
ubZ fnYyh] 15 ekpZ] 2013
dk-vk- 874-
—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,QñlhñvkbZñ ds
izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaè esa
fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèdj.k ukxiqj
ds iapkV ¼vkbZMhla[;k 308@2003½ dks izdkf'kr djrh gS] tks dsUnzh;
ljdkj dks 15@03@2013 dks izkIr gqvk FkkA
[lañ ,y&22012@290@2003&vkbZ vkj ¼lh ,e&II½]
chñ,eñ iVuk;d] MsLd vfèdkjh
New Delhi, 15th March, 2013
S.O. 874.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref. 308/2003 of
the Cent. Govt. Indus. Tribunal-cum-Labour Court, Nagpur
as shown in the Annexure, in the industrial dispute between
the management of Food Corporation of India, and their
workmen, received by the Central Government on
15/03/2013.
[(No. L -22012/290/2003-IR (CM-II)]
B.M. PATNAIK , Desk Officer
ANNEXURE
BEFORE SHRI J.P. CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No. CGIT/NGP/308/2003
Date: 07.03.2013.
Party No. 1(a) :
The District Manager
Food Corporation of India,
Ajani, Nagpur,
Nagpur—440015.
Party No. 1(b) :
The Senior Regional Manager,
Food Corporation of India,
Mistry Bhawan, Dinshaw Wacha
Road, Churchgate,
Mumbai—400020.
VERSUS
Party No. 2
:
The Secretary,
Rashtriya Mazdoor,sena, Hind Nagar
Ward No. 2, Near Boudha Vihar,
Post: Wardha, Distt. Wardha (M.S)
AWARD
(Dated: 7th March, 2013)
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 Food Corporation of India and their
workman, Shri Rajesh Bhaidas Borkar, for adjudication, as
per letter No.L-22012/290/2003- IR (CM-II) dated 08.12.2003,
with the following schedule:—
"Whether the action of the management of Food
Corporation of India, Nagpur (M.S.) in terminating the
services of Shri Rajesh Bhaidas Borkar, Security Guard w.e.f.
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2547
Server3/E/1250RR/1250RR(2) (68-120)
14.03.1999 is legal and justified? If not, to what relief the
concerned 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 Rajesh
Bhaidas Borkar ("the workman" in short), filed the statement
of claim and the management of Food Corporation of India
("Party No. 1" in short) filed their written statement.
The case of the workman as presented in the
statement of claim is that he was in the employment of
Party No. 1 from 01.01.1992 and he was initially engaged
through a contractor at Gondia Depot of Party No. 1, as a
Security Guard and he was in continuous service without
any interruption till 14th March, 1999, when his services
were terminated orally by Party No. 1, without following
the due procedure of law and he had completed more than
240 days of work in each year and the termination of his
services on 14.03.1999 was not in good faith, but in
colourable exercise of the rights and powers by the Party
No. 1 and while terminating his services, neither one
month's notice nor one month's wages in lieu of notice nor
retrenchment compensation was given to him as required
under section 25-F of the Act and after his illegal
termination, fresh hands from the department of home guard
and police were engaged by Party No. 1 to extract the duties
of Security guards, in violation of the provision of section
25-H of the Act and the work which he was performing is
constantly in existence and the same is of a perennial nature
and as his termination is illegal and unlawful, he is entitled
for reinstatement in service with continuity and full back
wages.
The further case of the workman is that in 1992, he
was engaged by the Party No. 1 through the contractor for
a period of two years, but the contract was made only on
papers and after every two years, the Party No. 1 changed
the contractor on papers only and the engagement of the
so-called contractor did not replace the Security Guards
and he was also not disturbed from his services and he
was merely shown to be engaged by the contractors, but
actually, he was working under the direct control and
supervision of the Party No. 1 and the contractor had no
role to play in the same and the work performed by him was
being assigned to him by Party No. 1 and he was a regular
employee of Party No. 1 and Party No. 1 was his real
employer and not the contractor as alleged and the
engagement and change of contractors by Party No. 1 from
time to time was sham and only a camouflage to deny his
legitimate claim and the contract between Party No. 1 and
the contractor was bogus and not genuine and therefore,
his oral termination from services was against the
mandatory provisions of the Act and the Central
Government decided to abolish the appointment of contract
labour as contemplated under section 10 of the Contract
Labour (Regulation and Abolition) Act, 1970 and issued
notification on 01.11.1990 with directions to abolish the
contract labour system in the establishment of the Party
No. 1 and to give employment to contract labours engaged
by the management and therefore, it was the mandatory
duty of the Party No. 1 to abolish the contract labour system
in all places and management of FCI implemented the
notification only at Nagpur and Manmad and absorbed
the Security Guards working at Nagpur and Manmad, but
at Akola, Amravati, Wardha and Gondia districts, the
contract labour system was continued by the management,
with an intention to deprive him from the benefits under
the labour laws.
It is further pleaded by the workman that his salary
was paid by the Party No. 1 and not by the contractor and
his daily attendance was also marked by the Asstt.
Manager of FCI, Wardha Depot and the Party No. 1 was
supervising his work through their officers and he had no
relation with the so called contractors engaged by the Party
No. 1 and Party No. 1 also supplied the articles, such as,
torch, lathi, whistle and uniform etc. to him and in view of
the long spell of work being carried out by him, he is entitled
to be reinstated in service with continuity and full back
wages.
3. The Party No. 1 in their written statement have
pleaded inter alia that the workman was never in their
employment and the workman has not impleded the
contractor, who appointed him, as a Party and the workman
was engaged by the contractor as a Security Guard at FCI
Depot and the said contractor is a necessary party and in
absence of the contractor, the proceeding cannot proceed
and the workman was not in their service uninterruptedly
till 14th March, 1999 and since the contract of the contractor
came to an end, the services of the workman were terminated
by the contractor and the original period of contract given
to the contractor for providing Security services was up to
1998 and the same was extended as per the terms and
conditions till March, 1999 and as the workman was not
employed by them, there was no question of following the
procedure of termination by them and they were not the
employer of the workman and the services of the workman
were never utilized by them as employer from 01.01.1992
to14.03. 1999 , without any break in service and the workman
did not complete 240 days of work in a year as alleged and
as the workman was engaged by the Security Contractor,
there was no relationship of master and servant between
them and the workman at any point of time and under
section 10 of the Contract Labour (Regularisation and
Abolition) Act, they were exempted by the Central
Government, so the allegations made by the workman
against them are not true and there was no question of
violation of the provisions of 25 (H) of the Act and the
work does not constantly exist and the work of providing
security guards was given to other Government Agencies
like Police Personnel and Home guards and therefore, the
workman has no right to claim any relief from them and the
2548
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(2) (68-120)
work of security is not perennial in nature and as and when
their godowns are filled with foodgrains, then only, services
of the security guards are required and in pursuance of the
notification issued by the Central Government abolishing
contract labour system, they appointed Home guards and
Police personal as security guards.
The further case of Party No.1 is that for the relief as
claimed, by the workman had filed a writ petition before the
Hon'ble High Court, Nagpur Bench bearing W.P. No. 1389/
99 and the Hon'ble High Court rejected the said WP and
denied the relief prayed for and therefore, this Tribunal has
no jurisdiction to decide the reference and the decision of
the Hon'ble Court operates as res-judicata and they floated
tenders for the contract and lowest bidder was awarded
the contract and the change of contractor in every two
years was not on papers only and they had no say in the
appointment of security guards by the security contractor
and they had no control over the appointment and service
conditions of the workman, who was an employee of the
security agency and he was never their employee and the
security contractor was the employer of the workman.
The further case of Party No.1 is that the appropriate
Government decided to abolish the employment of the
contract labour as contemplated under section 10 of the
Contract Labour (Regularisation and Abolition) Act, 1970
and the interpretation of the notification issued on
01.11.1990 put by the workman is not correct and they were
exempted from the operation of the Act of 1970 in the year
1989 and the said exemption was withdrawn in the year
1999 and therefore, the security contact given to the
contractor was terminated and hence, the services of the
workman were terminated by the security contractor and
they did not pay the salary to the workman and it was the
contractor, who was paying the same to the workman and
when the contractor failed to pay the salary to the workman,
they paid the amount as per the directions given by the
ALC from time to time and the said amount was recovered
from the contract's bill and they only used to check the
attendance of the security guards to find out as to whether
the contractor had made arrangement of the requisite
number of security guards, as per their requirement and
they did not have the power to terminate any employee
appointed by the contractor and they did not provide any
article, such as torch, Lathi, whistle and uniform etc. to the
workman and as such, the workman is not entitled to any
relief.
4. Both parties have led oral evidence in support of
their respective claims, besides placing reliance on
documentary evidence.
The workman in support of his claim has examined
himself as a witness. In his evidence, which is on affidavit,
the workman has reiterated the facts mentioned in the
statement of claim.
5. In his cross-examination, the workman has admitted
that his original appointment was through contractor and
he has not filed any document showing payment of salary
to him by the F.C.I..
6. One Shri Mohan Govindrao Temburne has been
examined as a witness on behalf of the Party No.1. This
witness has also reiterated the facts mentioned in the written
statement, in his examination-in-chief, which is on affidavit.
In his cross-examination, this witness has admitted the
suggestions that contract for supply of security guards
was given to Singh Security services for two years and
subsequently, the contract of Singh Security was extended
till 15.12.1996 and contract for supply of security guards
was given to M/s. Chaitanya Security and Investigation
Services, Amaravati from January, !992 to May, 1992 and to
M/s. Security Services Intelligence Bureau, Thane from
01.06.1992 to 31.03.1993 and to M/s. Industrial Security
and Fire Services from 16.12.1996 to 15.12.1998 by FCI. The
witness has also admitted that inspite of change of
contractors, the workman worked continuously in FCI from
01.01.1992 to 14.03.1999. This witness has also admitted
the suggestion that on 14.03.1999, the contract of M/s.
Industrial Security and Fire Services was expired. In his
cross-examination, this witness has further admitted that
the concerned officers of the FCI were issuing necessary
directions to the workman and other security guards
regarding the place and time of their performing duties and
the security guards posted at the gate of the Depot of FCI
were keeping accounts in a register regarding the number
of incoming and out- going vehicles to and from the depot
respectively and home guards and police personnel of the
state were engaged for watch and ward purpose of the
depot, after the disengagement of the workman and other
security guards and the work of watch and ward is a
continuous process in the FCI and the same is of perennial
in nature. This witness has further stated that the
contractors engaged by FCI were paying the wages to the
security guards deployed by them.
7. At the time of argument, it was submitted by the
union representative for the workman that the workman
was engaged by the management of FCI on 01.01.1992 at
Gondia depot as a security guard and he worked
continuously without any interruption till 14th March,1999
and his services were terminated orally by the Party No.1,
without following the due procedure of law and the workman
had completed more than 240 days of work in each year
and before termination of the services of the workman,
neither one month's notice nor one month's wages in lieu
of notice nor retrenchment compensation was given to the
workman, as required under section 25-F of the Act and
after termination of the services of the workman, fresh hands
were engaged by Party No.1 to extract the duties of security
guard, in violation of the provision of section 25-H of the
Act and the work of security guard is perennial in nature,
hence the termination of the workman is void and illegal.
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2549
Server3/E/1250RR/1250RR(2) (68-120)
It was further submitted by the union representative
for the workman that the Party No.1 had shown the workman
as contract labour, but the so called contract was made
only on papers and the workman was actually working
under the direct control and supervision of the Party No.1
and he was never a contract labour and such action of the
Party No.1 was sham and only a camouflage to deny the
legitimate claim of the workman and the so called contract
between the management and the contractor was bogus
and not genuine and the Central Government by
notification dated 01.11.1990 abolished the employment of
contract labour and directed to give employment to contract
labours engaged by the management and therefore, the
management of FCI was bound to abolish the contract
labour system and to give employment to the workman.
It was further submitted by the union representative
that on 29.06.2007, an application was filed by the workman
for production of nine documents relating to him, from
which, it could have been held without any doubt that the
workman was an employee of the Party No.1 and not a
contract labour and after hearing the parties, the Tribunal
by order dated 30.05.2008 directed the Party No.1 to produce
the documents, but inspite of the order passed by the
Tribunal for production of documents, the Party No.1 failed
to produce the documents and as such, adverse inference
is to be drawn against the Party No.1.
In support of such contentions, reliance was placed
by the union representative on the decisions reported in
2005 ICLR-254 (Statesman Ltd. & Anr. Vs. Eight Industrial
Tribunal, West Bengal & Ors.) and 2004 (103) FLR-187
(Municipal Corporation, Faridabad and Shri Niwas).
It was also submitted by the union representative
that neither the Party No.1 nor the so called contractors
engaged by the Party No.1 were registered with the Regional
Labour Commissioner as per rules to engage contract
labours and infact the so called contractors were mediators
and not contractors and even though there was legal ban
on engagement of contract labourers, the Party No.1
engaged the workman and some others as security guards
and from the pleadings of the parties, the evidence on
record and the admission of the witness examined on behalf
of the Party No. 1 that from the date of his initial engagement
the workman worked till 14.03.1999 clearly show that the
workman was the employee of the Party No.1 and the Party
No.1 is the real employer and there was master and servant
relationship between the Party No.1 and the workman and
the so called contract given to the contractor expired on
31.12.1998 and though Party No.1 unilaterally extended the
contract, the contractor did not accept the same and without
any contractor, the workman continued the work with Party
No.1 till 14.03.1999 and the Party No.1 paid the wages from
01.01.1999 to 14.03.1999 to the workman and such facts
also prove that the workman was the employee of Party
No.1 and it was Party No.1, who terminated the services of
the workman without compliance of the mandatory
provisions of section 25-F of the Act. In support of the
submissions, the union representative placed reliance on
the decisions reported in 1994 II CLR-402 (R.K. Panda Vs.
Steel Authority), 2003 (98) FLR-826 (M/s. Bharat Heavy
Electricals Ltd. Vs. State of UP) and 2011 (128) FLR-99
(Mahesh Kumar Sharma Vs. D.F.O., General Forest Division,
Sheopur).
It was also submitted by the union representative
for the workman that Party No.1 has admitted the claims
made by the workman and has not been able to prove their
claim that the workman was a contract labour, by producing
cogent evidence in support of the same and as such, the
workman is entitled for reinstatement in service with
continuity and full back wages.
8. Per contra, it was submitted by the learned advocate
for the Party No.1 that the workman was never appointed
by Party No.1 and he has engaged by the contractor as a
security guard and as such, the concerned contractor is a
necessary party and inspite of raising such objection in
the written statement, the workman did not implead the
contractor as a party and for that the reference is not
maintainable. It was further submitted by the learned
advocate for the Party No.1 that the workman was engaged
by the contractor and as the contract of the contractor
came to an end in March, 1999, the services of the workman
were terminated by the contractor and as such, there was
no question of Party No.1 complying with the due procedure
of termination and there was no relationship of master and
servant between the Party No.1 and the workman and the
Party No.1 was exempted by the Central Government from
the ban imposed for engagement of contract labourers, so
contract was given to the security contractor, as per rules,
for supply of security guards and due to the notification of
the Government for abolition of contract labour system,
Home guards and Police personnel were appointed as
security guards and Party No.1 has no control over the
workman and the security contractor was submitting bills
for payment for supply of security guards and the security
contractor was paying the wages to the workman. It was
further submitted by the learned advocate for the Party
No.1 that the workman and some others had approached
the Hon'ble High Court, Nagpur Bench in W.P. 1389 of 1999
for the reliefs sought in this reference and the Hon'ble
High Court while depositing of the said petition have held
that the termination of the workman by the contractor was
a valid one and the action of FCI was legal and as such, the
workman cannot agitate the question again and the decision
of the Hon'ble High Court operates as res-judicata between
the parties and the workman is not entitled to any relief.
In the alternative, it was submitted by the learned
advocate for the Party No.1 that the Party No.1 is a "State"
as per the provisions of Article 12 of the Constitution of
India and it has a set Rules for appointment of its employees
2550
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(2) (68-120)
and it is clear that the workman was never engaged by
Party No.1 as per the Rules of appointment and no evidence
has been adduced by the workman to prove that he had
worked for 240 days with Party No.1 in the preceding 12
calendar months of the date of the alleged termination and
as such, there was no question of compliance of section
25-F or 25-H of the Act and the workman is not entitled to
any relief.
In support of such contentions, the learned
advocates for the Party No.1 placed reliance on the
decisions of the Hon'ble Apex Court reported in Appeal
(Civil) 7038/2002 (M/s. Essen Deinki Vs. Rajiv Kumar),
Appeal (Civil) 6303-6316 of 2003 (Manager, RBI, Bangalore
Vs. S. Mani), Appeal (Civil) 6511 of 2005 (Surendranagar
District Panchayat Vs. Dayachai Amar Singh), Appeal (Civil)
3639/2006 (Krishna Bhagaya Jala Nigam Vs. Md. Raffi) and
Appeal (Civil) 2969/2004 (Rajsthan State Gangasagar Mills
Ltd. Vs. State of Rajasthan).
9. First of all, I will take up the submission made by
the learned advocate for the Party No.1 that the present
refecence is hit by the principles of res-judicata, due to the
decision of the Hon'ble High Court, Nagpur Bench in W.P.
1389/99.
It is not disputed that the workman alongwith 78
others through the union, "Rashtriya Mazdoor Sena
Saptahit Jaibhim" had filed Writ Petition No. 1389/99 before
the Hon'ble High Court of Judicature at Bombay, Nagpur
Bench, Nagpur, for their regularisation and the Hon'ble
High Court did not grant such relief. On perusal of the
order passed by the Hon'ble High Court on 29.07.2002 in
the said writ petition, it is found that the workman and
others claimed regularisation on the ground that they were
employed by the contractor for doing regular work of the
Food Corporation of India and in view of the same, they
have become workmen of Food Corporation of India, since
the work on which they were employed is of perennial
nature. However, it is found from the judgment that the
Hon'ble High Court did not consider the main relief and
passed the following order:
"In view of the judgment of the Constitution Bench
in Steel Authority of India Ltd. and others Vs.
National Union Water front Workers and others
[reported in 2001(7) SCC1], the relief sought by
the petitioners cannot be granted since the
petition involves disputed question of facts as
also other facts which are required to be
adjudicated by appropriate authority. Accordingly,
the main prayer to absorb them cannot be granted.
**
**
**
**
In view of the rejection of the main prayer, the
question of granting other prayer does not arise.
In case, the petitioners approach the appropriate
authority, the appropriate authority shall take
decision in the matter within a period of one year.
The applicants are free to approach the
Appropriate authority for redressal of their
grievances."
So, it is clear from the orders passed by the Hon'ble
High Court as mentioned above that the Hon'ble High Court
did not consider the claim made by the workman and others
on merit and granted them the liberty to approach the
appropriate authority for redress. Hence, the reference
cannot be said to be hit by the principles of res-judicata.
So, there is no force in the contention raised by the learned
advocate for the party No.l.
10. In this reference, it is never the case of the
workman that he was directly appointed or engaged by the
Party No. I as a security guard. In the very beginning of the
statement of claim, it has been mentioned by the workman
that he was initially engaged at Food Corporation of India
Depot, Gondia as a security guard, through a contractor. In
paragraph 4 of the statement of claim, the workman has
mentioned that, "In the year 1992, he was engaged by the
Food Corporation of India through contractor, for a period
of 2 years, but the contract was made on paper." The case
of the workman is that after every two years, the Party No.1
on papers showed the change of contractors, but he was
not disturbed from services and he worked continuously
without any break till 14.03.1999 and as he worked as a
security guard of perennial nature, he is entitled for
reinstatement in service. The workman has also claimed
that as the Central Government issued notification on
01.11.1990 to abolish the contract labour system in FCI and
directed to give employment to contract labours engaged
by the management and Party No.1 implemented such
direction at Nagpur and Manmad only and gave
employment and regularized and absorbed the services of
the Security Guards working at Nagpur and Manmad and
did not implement the same at Wardha and other places to
deprive him from the benefits under the Labour Laws.
In his evidence on affidavit also, the workman has
mentioned that he was initially engaged in Food Corporation
of India as a security guard through a contractor.
From the evidence on record and the own admission
of the workman in the cross-examination including the
specific admission that he was engaged by the contractor
and the contractor left him to FCI and he was appointed
through Singh Securities Services, it is clear that the
workman was engaged by the contractor. The workman
has not produced any evidence to show that he was
directly engaged by the Party No. 1.
11. At this juncture, I think it apropos to mention
about the principles enunciated by the Hon'ble Apex Court
regarding contract labours, in the decision reported in 1994
II CLR-402 (Supra), on which reliance is placed by the union
representative and the two decisions reported in 1985-II
LLJ-4 (S.C.) (The Workman of the Food Corporation of India
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2551
Server3/E/1250RR/1250RR(2) (68-120)
Vs M/s Food Corporation of India) and 2001 LAB IC 3656
(S.C.) (Steel Authority of India Ltd. and others Vs. National
Union Water Front Workers and others).
In the decision reported in 1994-II CLR-402 (supra)
the Hon'ble Apex Court have held that:-
2. With the industrial growth, the relation between
the employer and the employees also has taken a
new turn. At one time the establishment being the
employer all persons working therein were the
employees of such employer. But slowly the
employer including Central and State
Governments started entrusting many of the jobs
to contractors. Contractors in their turn employed
a worker, who has no direct relationship with the
establishment in which they were employed.
Many contractors exploited the labourers engaged
by them in various manners including the payment
of low wages. Hence, the Contract Labour
(Regulation and Abolition) Act, 1970 was enacted
to regulate the employment of contract labour in
certain establishment and to provide for its
abolition in certain circumstances and for matters
connected therewith.
3. The "Contract Labour" has been defined in
Section 2(1)(b) to mean a workman, who has been
employed as contract labour in or in connection
with the work of an establishment when he is hired
in or in connection with such work by or through
a contractor, with or without the knowledge of
the principal employer. Section 2 (1) (c) defines
"Contractor" to mean a person who undertakes
to produce a given result for the establishment,
other than a mere supply of goods or articles of
manufacture to such establishment, through
contract labour or who supplies contract labour
for any work of the establishment and includes a
sub-contractor. "Principal employer" has been
defined to mean (i) in relation to any office or
department of the Government or a local authority,
the head of that office or department or such other
officer as the government or the local authority,
as the case may be, may specify in this behalf and
(ii) in a factory, the owner or occupier of the
factory. In view of section 10, of 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,"
Sub-section (2) of Section 10 requires that before
issuing any such notification, in relation to an
establishments, 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. One of
the relevant factors, which is to be taken into
consideration is whether the work performed by
the contract labourers is of perennial nature.
Section 12 enjoins that no contractor to whom
this Act is applicable shall undertake or execute
any work through contract labour except under
and in accordance with a license issued in that
behalf by the licensing authority. The license so
issued may contain conditions in respect of hours
of work, fixation of wages and other essential
amenities in respect of contract labour as the
appropriate Government may deem fit to impose
in accordance with rules. Section 20 provides that
if any amenity required to be provided under
section 16, section 17, section 18, or section 19
for the benefit of the contract labour employed in
an establishment, is not provided by the contractor
within the time prescribed therefore, such amenity
shall be provided by the principal employer within
such time as may be prescribed and all expensed
incurred by the principal employer in providing
the amenity may be recovered by the principal
employer from the contractor "either by deduction
from any amount payable to the contractor under
any contract or as a debt payable by the
contractor". Section 21 says that a contractor shall
be responsible for the payment of wages to each
worker employed by him as contract labour but at
the same time in order to protect the interest of
such contract labour, it requires every principal
employer to nominate a representative duly
authorized by him to be present at the time of
disbursement of wages by the contractor. It shall
be the duty of the contractor to ensure the
disbursement of wages in the presence of the
authorized representative of the principal
employer. Because of sub-section (4) of section
21, if the contractor fails to make payment of wages
within the prescribed period, then the principal
employer shall be liable to make payment of wages
in full to the contact labour employed by the
contractor and recover the amount so paid from
the contractor. Any contravention of the
provisions aforesaid has been made penal for
which punishment can be imposed.
4. From the provisions referred to above, it is
apparent that the framers of the Act have allowed
and recognized contract labour and they have
never purported to abolish it in its entirety. The
primary object appears to be that there should
not be any exploitation of the contract labourers
by the contractor or the establishment. For
2552
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(2) (68-120)
achieving that object, statutory restrictions and
responsibilities have been imposed on the
contractor as well as on the principal employer.
Of course if any expenses are incurred for
providing any amenity to the contract labourers
or towards the payment of wages by the principle
employer he is entitled to deduct the same from
the bill of the contractor. The Act also conceives
that all appropriate government may after
consultation with the central board or the state
board, as the case may be, prohibit by notification
in official gazette, employment of contract labour
in any process, operation or other work in any
establishment, taking all facts and circumstances
of employment of contract labour in such process,
operation or the work into consideration.
5. Of late a trained amongst the contract labourers
is discernible that after having work for some
years, they make a claim that they should be
absorbed by the principal employer and be treated
as employees of the principal employer especially
when the principal employer is the central
government or the state government or an
authority which can be held to be state within the
meaning of Article 12 of the constitution, although
no right flows from the provisions of the act for
the contract labourers to be absorbed or to
become the employees of the principal employer.
This court in the case of Gammon India limited V.
Union of India (1974) I SCC 596, pointed out the
object and scope of the act as follows:—
"The Act was passed to prevail the exploitation
of contract labour and also to introduce better
condition of work. The Act provides for regulation
and abolition of contract labour. The underline
policy of the Act is to abolish contract labour,
wherever possible and practicable and where it
cannot be abolished to altogether, the policy of
the Act is that the working conditions of the
contract labour should be so regulated as to
ensure payment of wages and provisions of
essential amenities. This is why the Act provides
for regulated conditions of work and contemplates
progressive abolition to the extent contemplated
by Section 10 of the Act."
In the case of B.H.E.L. Workers' Association V.
Union of India, 1985 I CLR SC 165 = (1985) 1 SCC
630 it was pointed out that Parliament has not
abolished the contract labour as such but has
provided for its abolition by the Central
Government in appropriate cases under section
10 of the Act. It is not for the court to enquire into
the question and to decide whether the
employment of contract labour in any process,
operation or other work in any establishment
should be abolished or not. That has to be decided
by the government after considering the relevant
aspects as required by Section 10 of the Act. Again
in the case of Mathura Refinery Mazdoor Sangh
V. Indian Oil Corporation Ltd., 1991 I CLR 684, this
court refused to direct the Indian Oil Corporation
Ltd., to absorb the contract labourers in its
employment saying that, the contract labourers
have not been found to have direct connection
with the refinery. In other words, there was no
relationship of employer and employee between
the Indian Oil Corporation Ltd. and the contract
labourers concerned. Again in Dena Nath V.
National Fertilizers Ltd., 1992 I CLR 1, this court
pointed out that the aforesaid Act has two
purposes to serve (i) to regulate the conditions of
service of the worker employed by the contractor
who is engaged by a principal employer and (ii) to
provide for the abolition of contract labour
altogether, in certain notified processes, operation
or other works in any establishment by the
appropriate government, under section 10 of the
Act. It was further stated that neither the Act nor
the Rules framed by the central government or by
any appropriate government provide that upon
abolition of contract labour, the labourers would
be directly absorbed by the principal employer.
6. It is true that with passage of time and purely
with a view to safeguard the interests of workers,
many principal employers while renewing the
contracts have been insisting that the contractor
or the new contractor retains the old employees.
Infact such a condition is incorporated in the
contract itself. However, such a clause in the
contract which is benevolently inserted in the
contract to protect the continuance of the source
of livelihood of the contract labour cannot by
itself give rise to a right to regularization in the
employment of the principal employer. Whether
the contract labourers have become the
employees of the principal employer in course of
time and on whether the engagement and
employment of labourers through a contractor is
a mere camouflage and a smoke screen, as has
been urged in this case, is a question of fact is to
be established by the contract labourers on the
basis of the requisite material. It is not possible
for High Court or this court, while exercising writ
jurisdiction or jurisdiction under Article 136 to
decide such questions only on the basis of the
affidavits. It need not to be pointed out that in all
such cases, the labourers are initially employed
and engaged by the contractors. As such at what
point of time a direct link is established between
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2553
Server3/E/1250RR/1250RR(2) (68-120)
the contract labourers and the principal employer,
eliminating the contractor from the scene, is a
matter which has to be established on material
produced before the court. Normally, the Labour
Court and the Industrial Tribunal, under the
Industrial Disputes Act are the Competent Fora
to adjudicate such disputes on the basis of the
oral and documentary evidence produced before
them."
12. In the decision reported in 1985-II LLOJ-4 (supra)
the Hon'ble Apex Court have held that:—
"Briefly stated, when corporation engaged a
contractor for handling foodgrain at Siliguri
Depot, the corporation had nothing to do with
the manner of handling work done by the
contractor, the labour force employed by him,
payments made by him etc. In such a fact situation,
there was no privity of contract of employer and
workmen between the corporation and the
workmen. "Workmen" has been defined (omitting
the words not necessary) in the Industrial
Disputes Act to mean (any person including an
apprentice) employed in any industry to do......".
'The expression' employed has at least two known
connotations, but as used in the definition, the
context would indicate that it is used in the sense
of a relationship brought about by express or
implied contract of service in which the employee
renders service for which he is engaged by the
employer and the latter agrees to pay him in cash
or kind as agreed between them or statutorily
prescribed. It discloses a relationship of command
and obedience. The essential condition of a
person being a workman within the terms of the
definition is that he should be employed to do the
work in that industry and that there should be, in
other words, an employment of his by the
employer and that there should be a relationship
between the employer and employee or master
and servant unless a person is thus employed
there can be no question of his being a "workman"
within the definition of the term as contained in
the Act.
Dharangadhara Chemical Works Ltd. Vs. State of
Saurashtra [1957 (I) LLJ 477]. Now where a
contractor employs a workman to do the work
which he contracted with a third person to
accomplish on the definition as it stands, the
workman of the contractor would not without
something more become the workman of that third
person. Therefore, when the workmen employed
by the contractor were certainly not the workmen
of the corporation and no claim to that effect has
been made by the union."
13. In the decision reported in 2001 LAB IC 3656
(supra) the Hon'ble Apex Court have held that:—
"The principle that a beneficial legislation needs
to be constructed liberally in favour of the class
for whose benefit it is intended, does not extend
to reading in the provisions of the Act what the
legislature has not provided whether expressly or
by necessary implication, or substituting remedy
or benefits for that provided by the legislature.
The intendment of the CLRA Act is to regulate
the conditions of service of the contract labour
and to authorize in Section 10(1) prohibition of
contract labour system by the appropriate
Government on consideration of factors
enumerated in sub-section (2) of Section 10 of the
Act among other relevant factors. But, the
presence of some or all those factors, provide no
ground for absorption of contract labour on
issuing notification under Section 10(1) by the
appropriate Government, is not alluded to either
in Section 10 or at any other place in the Act and
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 the Supreme 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 it
absorption of contract labour in the establishment
of principal employer or a lesser or a 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.
Thus on issuance of prohibition notification under
S. 10(1) of the CLRA Act prohibiting employment
of contract labour or otherwise, in an industrial
dispute brought before it by any contract 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 legislations so as to deprive the workers
of the benefit there under. 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
2554
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(2) (68-120)
labour in the concerned establishment. If the
contract is found to be genuine and the principal
employer intends to employ regular workmen he
shall give preference to the erstwhile contract
labour. It otherwise found suitable, and, if
necessary, by relaxing the condition as to maximum
age appropriately taking into consideration the
age of the workers at the time of their initial
employment by the contractor and also relaxing
the condition as to academic qualifications other
than technical qualifications.
Air India's case 1997 AIR SCW430 Overruled
prospectively. M.A.T. Nos. 1704 and 1705 of 1999,
D/ - 12-8-1999 (Cal): C.O. No. 6545(W) if 1996
D/-9-5-1997(Cal): W.A. Nos. 345-354 of 1997m
D/ 17-4-1998 (Kant): W.P. No. 4050 of 1999,
D/ - 2-8.- 2000 (Born) and W.P. No. 2616 of 1999, D/ -
23-12- 1999 (Born), 1998 Lab IC 2571 (Cal), Reversed.
It cannot be said that by virtue of engagement of
contract labour by the contractor in any work of
or in connection with the work of an
establishment, the relationship of master and
servant is created between the principal employer
and the contract labour. Even a combined reading
of the definition of the terms "Contract labour",
"Establishment" and "Workman" does not show
that the legal relationship between the person
employed in any industry and the owner of the
industry is created irrespective of the fact as to
who has brought about such relationship. The
word "Workman" is defined in wide terms. It is a
generic term of which contract labour is a species.
It is true that combined reading of the terms
"Establishment" and "Workman" shows that a
workman engaged in any establishment would
have direct relationship with the principal
employer as a servant of master. But what is true
of a workman could not be correct of contract
labour. When the provisions of the Act neither
contemplate creation of direct relationship of
master and servant between the principal employer
and the contract labour nor can such relationship
be implied from the provisions of the action issuing
notification under Section 10(1) of the CLRA Act.
A fortiori much less can such a relationship be
found to exist from the rules and the forms made
there under."
So, keeping in view the principles enunciated by the
Hon'ble Apex Court in the decisions mentioned above, the
present case in hand is to be considered.
14. So far the contention raised by the union
representative regarding drawing of adverse inference
against the Party No. 1 for non-production of documents
as ordered by the Tribunal on the application of the workman
is concerned, it is to be mentioned that it is admitted by the
workman that he was engaged through the contractor in
F.C.I. and due his such engagement, it was quite natural for
the Party No.1 to direct him to perform different duties as a
security guard and to see that duties entrusted to him were
done properly. Moreover, the Party No.1 have produced
number of documents to show that the workman was a
contract labour and payment of wages to him was made by
the contractors. Hence, for non-production of the
documents by Party No.1, there is no need to draw any
adverse inference. As the facts and circumstances of the
case in hand are quite different from the facts and
circumstances of the cases referred in the decisions by the
Hon'ble Courts, on which reliance has been placed by the
union representative, with respect, I am of the view that the
said decisions have no clear application of this case.
15. So far the contention raised by the union
representative regarding the non-registration of the Party
No.1 or the contractors with the Regional Labour
Commissioner as per Rules is concerned, it is to be mentioned
that such a plea has neither been taken in the statement of
claim nor any thing has been stated in that regard in the
evidence of the workman. In absence of such pleading, the
contention cannot be entertained. Moreover, it is clear from
the pleadings of the parties and the evidence on record and
the specific suggestions given to the witness examined on
behalf of the Party No.1 in his cross-examination that contract
for supply of security guards was given by Party No.1 to
different contractors from 01.03.1989 till 14.03.1999.
Moreover, for the sake of argument, even if, it is held
that the Party No.1 had engaged the workman and others
as contract labourers in violation of the provisions of the
Contract Labour (Regulations and Abolition) Act, 1976,
then the persons responsible for such violation are liable
for criminal prosecution, but such violation of the
provisions of the above said Act, does not confer any
right on the workman to claim regularisation in service.
16. In this case, the letter No. U-23013/11/89/LW
dated 28.05.92, Govt. of India, Ministry of Labour shows
that the prohibition of employment of contract labour in
sweeping, cleaning, dusting and watching of buildings
owned or occupied by the establishments of Food
Corporation of India and some other departments was lifted
by the Central Government. So, the engagement of contract
labour by the Party No. 1 cannot be said to be illegal. It is
also found from the materials on record that the appointment
of labour contractor by Party No. 1 for supply of Security
Guards was genuine and the same was not only on papers
as claimed by the workman. The workman has failed to
prove such claim by adducing cogent or reliable evidence.
The engagement of labour contractor by Party No. 1 was
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2555
Server3/E/1250RR/1250RR(2) (68-120)
not a mere ruse or camouflage to evade compliance of the
various beneficial legislations, so as to deprive the workman
of the benefits thereunder. The workman has not been able
to produce any document to show that at any point of
time, Party No. 1 paid his wages as their employee. It is
clear from the evidence that Party No. 1 paid wages of the
last three months to the workman in presence of the Labour
Commissioner, as the contractor did not pay the same. As
it is clear from the evidence on record that the workman
was engaged as a contract labour with Party No. 1, by the
contractor and as such, it can be held that there was no
relationship of master and servant between the Party No. 1
and the workman. Hence, there was no question of
termination of the services by the Party No. 1 or compliance
of the provisions of Sections 25-F or 25-H of the Act.
In view of the facts and circumstances of the case as
mentioned above, which are quite different from the facts
and the circumstances of the cases referred in the decisions,
on which reliance is placed by the union representative,
with respect, I am of the view that the said decisions have
no clear application to the present case in hand.
17. It is the own case of the workman that he was
engaged by the contractor. So the contractor, who had
engaged the workman is a necessary party in the reference.
The said contractor has not been added as a party in this
reference. Due to non-joinder of necessary party, the
reference is bad in law.
In view of the materials on record and the discussions
made above and applying the principles enunciated by the
Hon'ble Apex Court in the three decisions mentioned above,
the reference cannot be answered in favour of the workman.
Hence, it is ordered:—
ORDER
The reference is answered in the negative. The workman
is not entitled to any relief.
J.P. CHAND, Presiding Officer
ubZ fnYyh] 15 ekpZ] 2013
dkñvkñ 875-
—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 fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèdj.k
tcyiqj ds iapkV ¼vkbZMh la[;k 104@2008½ dks izdkf'kr djrh gS]
tks dsUnzh; ljdkj dks 15@03@2013 dks izkIr gqvk FkkA
[lañ ,y&22012@172@2007&vkbZ vkj ¼lh ,e&II½]
chñ,eñ iVuk;d] MsLd vfèdkjh
New Delhi, the 15th March, 2013
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.104/08 of the
Cent. Govt. Indus. Tribunal-cum-Labour Court, Jabalpur
as shown in the Annexure, in the industrial dispute between
the management of WCL, and their workmen, received by
the Central Government on 15/03/2013.
[No. L-22012/172/2007-IR(CM-II)]
B.M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL CUM LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/104/08
Presiding Officer: SHRI R.B. PATLE
The Organisation Secretary (Legal),
Rashtriya Koyla Khadan Mazdoor Sangh (INTUC),
Regional Office, Chandametta,
PO Chandametta,
Chhindwara
Union/Workman
Versus
The Chief General Manager,
WCL, Pench Area,
PO Parasia,
Chhindwara
Management
AWARD
Passed on this 27th day of February, 2013
1.
As per letter dated 6-10-08 by the Government of
India, Ministry of Labour, New Delhi, the reference
is received. The reference is made to this Tribunal
under Section -10 of I.D. Act, 1947 as per Notification
No.L-22012/172/2007-IR (CM-II). The dispute under
reference relates to:
"Whether the action of the management of M/S WCL
in not considering the additional qualification
acquired by Shri Shankar Lal Sahu for promotion to
the post of Technical & Sup. Gr.A-I is legal and
justified? To what relief is the workman concerned
entitled?"
2.
After receiving reference, notices were issued to the
parties. 1st party/workman has not submitted his
statement of claim and as such proceeded exparte
against workman.
3.
Management filed its Written Statement denying
claim of the applicant. It is submitted that claim of 1st
party/workman for promotion on the basis of
additional qualification is not tenable. As per NCWA,
promotions are given as per Cadre Scheme. The
2556
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(2) (68-120)
qualifications required for different posts are stated.
The Seniority list of overman of the grade was
displayed on 8-12-2004. The promotions of Technical
Supervisor Group A are provided with Para 12.6.0 of
NCWA-VI. That DPC was constituted on 30-3-05.
20 employees promoted considering policy of
reservation and the marks secured by them. That
applicant is not entitled to the promotion claimed by
him. IInd party/management prayed for rejection of
reference.
4.
Considering pleadings on record, the points which
arise for my consideration and determination are as
under. My findings are recorded against each of them
for the reasons as below:—
(i) Whether the action of the
In Negative
management of M/S WCL in
not considering the additional
qualification acquired by
Shri Shankar Lal Sahu for promotion
to the post of Technical & Sup.
Gr.A-I is just and legal?
(ii) If not, what relief the
The claim of
workman is entitled to?"
1st party/
workman is
rejected.
REASONS
5.
Though 1st party/workman is claiming promotion
on the ground of additional qualification acquired
by him, he has not submitted his Statement of claim
neither he adduced evidence. 1st party/workman is
proceeded exparte. He had failed to produce
evidence. Management has filed affidavit of its
witness Shri Uday Kumar Mehta denying the relief
claimed by the applicant submitting details of the
promotions provided under NCWA Cadre Scheme.
The evidence of management's witness remained
unchallenged, therefore I record my finding on the
Point No.1 in Negative.
6.
In the result, I pass the following order—
1. 1st party/workman has not established the denial
of promotion by IInd party is illegal.
2. Claim of 1st party/workman for promotion is
rejected.
R.B. PATLE, Presiding Officer
ubZ fnYyh] 15 ekpZ] 2013
dk-vk- 876-
—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj izlkj Hkkjrh ds
izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaè esa
fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèdj.k
uañ 2] p.Mhx<+ ds iapkV ¼vkbZMh la[;k 1289@2006½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 15@03@2013 dks izkIr gqvk FkkA
[lañ ,y&42012@171@2005&vkbZ vkj ¼lh ,e&II½]
chñ,eñ iVuk;d] MsLd vfèdkjh
New Delhi, the 15th March, 2013
S.O. 876.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref. 1289/2006 of
the Cent. Govt-Indus. Tribunal-cum-Labour Court No 2,
Chandigarh as shown in the Annexure, in the industrial
dispute between the management of Prasar Bharati,
Broadcasting Corporation of India, and their workmen,
received by the Central Government on 15/03/2013.
[No. L-42012/171/2005-IR(CM-II)]
B.M. PATNAIK, Desk Officer
ANNEXURE
IN THE CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT-II, CHANDIGARH
Present:
Sri A.K. Rastogi, Presiding Officer.
Case No. I. D. No.1289/2006
Registered on 30.11.2006
Sh. Nikka Ram, So. Sh. Chaudhary Ram, R/o Village Badog,
PO Jobri, Tehsil Arki, Solan (HP).
Petitioner
Versus
The Director, Prasar Bharati, Broadcasting Corporation of
India, Doordarshan Kendra, Shimla (HP).
Respondents
Appearances
For the workman
Sh. Sumit Raj Sharma Advocate.
For the Management
Sh. K.K. Thakur Advocate.
AWARD
Passed on 22nd February, 2013
Central Government vide Notification No. L-42012/
171/2005 [IR(CM-II)] Dated 30.10.2006, by exercising its
powers under Section 10 Sub Section (1) Clause (d) and
Sub Section (2-A) of the Industrial Disputes Act, 1947
(hereinafter referred to as 'Act') has referred the following
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2557
Server3/E/1250RR/1250RR(2) (68-120)
Industrial dispute for adjudication to this Tribunal:—
"Whether the action of the management of
Doordarshan Kendra, Shimla, in terminating the
services of Sh. Nikka Ram, w.e.f. January, 2003 is
legal and justified? If not, to what relief is the
workman entitled?"
The claimants case for the purpose of the dispute
under. reference is that he had been engaged by OP for
working on assignment basis for 10 days in a month in
camera section as Lighting Assistant w.e.f. July 2000 up to
October 2000 at a fixed wage of Rs. 330/- per day but from
November 2000 he was paid only Rs. 220/- per day till June
2003 when his services were illegally terminated. He had
completed 240 days of continuous service in every calendar
year preceding the year of his illegal retrenchment. He has
alleged the violation of Section 25F, 25G and 25H of the
Act. Besides it, he has raised the plea of short payment,
non-payment for overtime and non-payment of travelling
allowance. He has prayed for his reinstatment with full
back wages and continuous service and also for
regularization. But the present reference is about the legality
and justification of his termination and about the relief, if
any, to which he is found entitled hence other issues raised
in the claim statement are beyond the scope of reference.
Respondent filed written statement to contest the
case. It has been pleaded that this Tribunal has no
jurisdiction with regard to the dispute as it was within the
jurisdiction of Central Administrative Tribunal and the
workman along with others had filed OA No.243-HP-2003
before the Central Administrative Tribunal, Chandigarh
which had been dismissed by the Tribunal on 17.11.2004.
The workman is therefore estopped also from filing this
claim petition before this Tribunal. It was also pleaded that
no retrenchment compensation as provided under Section
25F of the Act was payable to the workman and there is no
violation of Section 25G and 25H of the Act. He is not
entitled to regularization. On merits it has been pleaded
that the workman had been engaged as casual worker by
the Doordarshan Kendra Shimla on assignment basis on
contract for a period not exceeding 10 days in a month at
the approved rates as stipulated in the contract. His
services were utilized for the purpose for which he had
been engaged and necessary payment as per the terms of
the contract was made to him for each and every assignment
rendered by him. He was never booked for more than 10
days in a month in any calendar year and it is not correct to
say that he has worked for more than 240 days in a calendar
year. His engagement was discontinued by Doordarshan
Kendra, Shimla because there was not sufficient work in
Camera Section necessitating booking of casual hands as
news coverage being done by stringers. The availability of
advanced digital cameras which could be handled by one
person independently and does not require the help of
Helper/Lighting Assistant for which the workman had been
engaged. It was also pleaded that the functioning of the
Kendra is maintained with the regular staff employed by
the organization and the need to engage casual artists in
any category arises only in case there is any appreciable
increase in the workload pertaining to production or telecast
of programes and the same cannot be handled by the regular
staff. The artists engaged on casual basis automatically
get disengaged after expiry of the period of contract and
no formal, written or oral communication is required.
The workman filed a replication to say that he had
been engaged as casual worker and had not been appointed
against any regular post governed by the rules of
amendment. Hence, the reference is maintainable before
this Tribunal. There is no estopple on the workman on
account of the order of the Hon'ble Central Administrative
Tribunal. Rest of the replica is the reiteration of the claim
statement.
Vide order dated 14.10.2011 the case was ordered to
proceed ex parte against respondents. Earlier the
management had failed to file the reply to the application
of the workman for producing documents and nor had
produced summoned documents.
In evidence workman examined himself and affidavit
of O.G.D. Sharma, Station Direction had been filed on' behalf
of management.
I have heard the learned counsel for the workman
and perused the evidence on record. As per statement dated
19.1.2012 of the learned counsel for the workman the
workman is not insisting on his reinstatement and
regularization and is pressing his claim for back wages
only.
The workman has alleged the violation of Section
25F, 25G and 25H of the Act. He is entitled to back wages
only when the termination of his service is found illegal.
As per his own admission his engagement was on
assignment basis for 10 days in a month. Though he had
pleaded that the respondent used to assign work to him for
whole of the month against the assignment order, but it is
not acceptable. In the claim statement he has referred Key
Entry Register and In and Out Register as a proof of his
engagement for the entire month. But merely on the basis
of entry and exit in the premises it cannot be accepted that
the person concerned had visited the premises in
connection of his engagement. Regarding payment also
the workman says that he has been paid for 10 days in a
month only. Therefore it cannot be accepted that
throughout his period of engagement from July 2000 to
June 2003 he worked for whole month on payment of 10
days wages only. Obviously he had been working with the
respondents for 10 days in a month and could not complete
in any case 240 days service in 12 calendar months
preceding to the date of his termination. He is therefore not
entitled to the protection of Section 25F of the Act. He was
2558
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(2) (68-120)
not entitled to any retrenchment compensation, notice or
notice pay. The termination of his services cannot be said
to be illegal and unjustified on account of violation of
Section 25F of the Act.
The workman has pleaded the retention of his juniors
at the time of termination of his services and has alleged
the violation of Section 25G of the Act. But in his statement
he has stated about the re-engagement of the juniors and
he has named the alleged junior workman. Obviously his
statement does not substantiate his plea that juniors were
retained at the time of his termination. Obviously he has
failed to prove the violation of Section 25G of the Act.
Section 25H of the Act is about the right of re-
employment. The entitlement of workman to right to re-
employment or the violation of Section 25H of the Act is
not subject matter of the reference.
From the above going discussion it is clear that there
is no illegality or unjustification in the termination of the
services of the workman hence, he is not entitled to back
wages. Reinstatement and regularization has not been
pressed by the learned counsel for the workman, but
otherwise also the workman is not entitled to reinstatement
or regularization also. Reference is accordingly answered
against the workman. Let two copies of the Award be sent
to the Central Government for further necessary action.
ASHOK KUMAR RASTOGI, Presiding Officer,
ubZ fnYyh] 15 ekpZ] 2013
dk-vk- 877-
—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,Qñ lhñ vkbZñ
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
ukxiqj ds iapkV ¼vkbZMh la[;k 295@2003½ dks izdkf'kr djrh gS tks
dsUnzh; ljdkj dks 15@03@2013 dks izkIr gqvk FkkA
[lañ ,y&22012@238@2003&vkbZñvkjñ¼lhñ,eñ&II½]
chñ,eñ iVuk;d] MsLd vf/kdkjhs
New Delhi, the 15 March, 2013
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 295/2003 of
the Central Government Industrial Tribunal-cum-Labour
Court Nagpur as shown in the Annexure, in the Industrial
dispute between the management of Food Corporation of
India, Food Corporation of India, and their workman,
received by the Central Government on 15/03/2013.
[No. L-22012/238/2003-IR(CM-II)]
B.M. Patnaik, Desk Officer
ANNEXURE
BEFORE SHRI J.P. CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No. CGIT/NGP/295/2003
Date: 07.03.2013.
Party No. 1(a) :
The District Manager
Food Corporation of India,
Ajani, Nagpur,
Nagpur—440015.
Party No. 1(b) :
The Senior Regional Manager,
Food Corporation of India,
Mistry Bhawan, Dinshaw Wacha
Road, Churchgate,
Mumbai—400020.
Versus
Party No. 2
:
The Secretary,
Rashtriya Mazdoor,sena, Hind Nagar
Ward No. 2, Near Boudha Vihar,
Post: Wardha, Distt. Wardha (M.S)
AWARD
(Dated: 7th March, 2013)
In exercise of the powers conferred by clause (d) of
subsection (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 Food Corporation of India and their
workman, Shri Sunil Vitthal Raut, for adjudication, as per
letter No.L-22012/238/2003- IR (CM-II) dated 08.12.2003,
with the following schedule:
"Whether the action of the management of Food
Corporation of India, Nagpur (M.S.) in terminating the
services of Shri Sunil Vitthal Raut, Security Guard w.e.f.
14.03.1999 is legal and justified? If not, to what relief the
concerned 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 Sunil Vitthal
Raut (the workman" in short), filed the statement of claim
and the management of Food Corporation of India ("Party
No. 1" in short) filed their written statement.
The case of the workman as presented in the
statement of claim is that he was in the employment of
Party No. 1 from 01.01.1994 and he was initially engaged
through a contractor at Gondia Depot of Party No. 1, as a
Security Guard and he was in continuous service without
any interruption till 14th March, 1999, when his services
were terminated orally by Party No. 1, without following
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2559
Server3/E/1250RR/1250RR(2) (68-120)
the due procedure of law and he had completed more than
240 days of work in each year and the termination of his
services on 14.03.1999 was not in good faith, but in
colourable exercise of the rights and powers by the Party
No. 1 and while terminating his services, neither one
month's notice nor one month's wages in lieu of notice nor
retrenchment compensation was given to him as required
under section 25-F of the Act and after his illegal
termination, fresh hands from the department of home guard
and police were engaged by Party No. 1 to extract the duties
of Security guards, in violation of the provision of section
25-H of the Act and the work which he was performing is
constantly in existence and the same is of a perennial nature
and as his termination is illegal and unlawful, he is entitled
for reinstatement in service with continuity and full back
wages.
The further case of the workman is that in 1994, he
was engaged by the Party No. 1 through the contractor for
a period of two years, but the contract was made only on
papers and after every two years, the Party No. 1 changed
the contractor on papers only and the engagement of the
so-called contractor did not replace the Security Guards
and he was also not disturbed from his services and he
was merely shown to be engaged by the contractors, but
actually, he was working under the direct control and
supervision of the Party No. 1 and the contractor had no
role to play in the same and the work performed by him was
being assigned to him by Party No. 1 and he was a regular
employee of Party No. 1 and Party No. 1 was his real
employer and not the contractor as alleged and the
engagement and change of contractors by Party No. 1 from
time to time was sham and only a camouflage to deny his
legitimate claim and the contract between Party No. 1 and
the contractor was bogus and not genuine and therefore,
his oral termination from services was against the
mandatory provisions of the Act and the Central
Government decided to abolish the appointment of contract
labour as contemplated under section 10 of the Contract
Labour (Regulation and Abolition) Act, 1970 and issued
notification on 01.11.1990 with directions to abolish the
contract labour system in the establishment of the Party
No. 1 and to give employment to contract labours engaged
by the management and therefore, it was the mandatory
duty of the Party No. 1 to abolish the contract labour system
in all places and management of FCI implemented the
notification only at Nagpur and Manmad and absorbed
the Security Guards working at Nagpur and Manmad, but
at Akola, Amravati, Wardha and Gondia districts, the
contract labour system was continued by the management,
with an intention to deprive him from the benefits under
the labour laws.
It is further pleaded by the workman that his salary
was paid by the Party No. 1 and not by the contractor and
his daily attendance was also marked by the Asstt.
Manager of FCI,' Wardha Depot and the Party No. I was
supervising his work through their officers and he had no
relation with the so called contractors engaged by the Party
No. 1 and Party No. 1 also supplied the articles, such as,
torch, lathi, whistle and uniform etc to him and in view of
the long spell of work being carried out by him, he is entitled
to be reinstated in service with continuity and full back
wages.
3. The Party No. 1 in their written statement have
pleaded inter alia that the workman was never in their
employment and the workman has not impleded the
contractor, who appointed him, as a Party and the workman
was engaged by the contractor as a Security Guard at FCI
Depot and the said contractor is a necessary party and in
absence of the contractor, the proceeding cannot proceed
and the workman was not in their service uninterruptedly
till 14th March, 1999 and since the. contract of the
contractor came to an end, the services of the workman
were terminated by the contractor and the original period
of contract given to the contractor for providing Security
services was up to 1998 and the same was extended as per
the terms and conditions till March, 1999 and as the
workman was not employed by them, there was no question
of following the procedure of termination by them and they
were not the employer of the workman and the services of
the workman were never utilized by them as employer from
01.01.1994 to 14.03.1999 , without any break in service and
the workman did not complete 240 days of work in a year as
alleged and as the workman was engaged by the Security
Contractor, there was no relationship of master and servant
between them and the workman at any point of time and
under section 10 of the Contract Labour (Regularisation
and Abolition) Act, they were exempted by the Central
Government, so the allegations made by the workman
against them are not true and there was no question of
violation of the provisions of 25 (H) of the Act and the
work does not constantly exist and the work of providing
security guards was given to other Government Agencies
like Police Personnel and Home guards and therefore, the
workman has no right to claim any relief from them and the
work of security is not perennial in nature and as and when
their go-downs are filled with food grains, then only,
services of the security guards are required and in
pursuance of the notification issued by the Central
Government abolishing contract labour system, they
appointed Home guards and Police personnel as security
guards.
2560
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(2) (68-120)
The further case of Party No.1 is that for the relief as
claimed, by the workman had filed a writ petition before the
Hon'ble High Court, Nagpur Bench bearing W.P. No. 1389/
99 and the Hon'ble High Court rejected the said WP and
denied the relief prayed for and therefore, this Tribunal has
no jurisdiction to decide the reference and the decision of
the Hon'ble Court operates as res-judicata and they floated
tenders for the contract and lowest bidder was awarded
the contract and the change of contractor in every two
years was not on papers only and they had no say in the
appointment of security guards by the security contractor
and they had no control over the appointment and service
conditions of the workman, who was an employee of the
security agency and he was never their employee and the
security contractor was the employer of the workman.
The further case of Party No.1 is that the appropriate
government decided to abolish the employment of the
contract labour as contemplated under section 10 of the
Contract Labour (Regularisation and Abolition) Act, 1970
and the interpretation of the notification issued on
01.11.1990 put by the workman is not correct and they were
exempted from the operation of the Act of 1970 in the year
1989 and the said exemption was withdrawn in the year
1999 and therefore, the security contact given to the
contractor was terminated and hence, the services of the
workman were terminated by the security contractor and
they did not pay the salary to the workman and it was the
contractor, who was paying the same to the workman and
when the contractor failed to pay the salary to the workman,
they paid the amount as per the directions given by the
ALC from time to time and the said amount was recovered
from the contract's bill and they only used to check the
attendance of the security guards to find out as to whether
the contractor had made arrangement of the requisite
number of security guards, as per their requirement and
they did not have the power to terminate any employee
appointed by the contractor and they did not provide any
article, such as torch, lathi, whistle and uniform etc to the
workman and as such, the workman is not entitled to any
relief.
4. Both parties have led oral evidence in support of
their respective claims, besides placing reliance on
documentary evidence.
The workman in support of his claim has examined
himself as a witness. In his evidence, which is on affidavit,
the workman has reiterated the facts mentioned in the
statement of claim.
5. In his cross-examination, the workman has admitted
that his original appointment was through contractor and
he has not filed any document showing payment of salary
to him by the F.C.I.
6. One Shri Mohan Govindrao Temburne has been
examined as a witness on behalf of the Party No.l. This
witness has also reiterated the facts mentioned in the
written statement, in his examination-in-chief, which is on
affidavit. In his cross-examination, this witness has admitted
the suggestions that contract for supply of security guards
was given to Singh Security services for two years and
subsequently, the contract of Singh Security was extended
till 15.12.1996 and contract for supply of security guards
was given to M/s Chaitanya Security and Investigation
Services, Amaravati from January, !992 to May, 1992 and to
M/s Security Services Intelligence Bureau, Thane from
01.06.1992 to 31.03. 1993 and to M/s Industrial Security
and Fire Services from 16.12.1996 to 15.12.1998 by FCI. The
witness has also admitted that inspite of change of
contractors, the workman worked continuously in FCI from
01.01.1994 to 14.03.1999. This witness has also admitted
the suggestion that on 14.03.1999, the contract of
M/S Industrial Security and Fire Services was expired. In
his cross-examination, this witness has further admitted
that the concerned officers of the FCI were issuing
necessary directions to the workman and other security
guards regarding the place and time of their performing
duties and the security guards posted at the gate of the
Depot of FCI were keeping accounts in a register regarding
the number of incoming and out- going vehicles to and
from the depot respectively and home guards and police
personnel of the state were engaged for watch and ward
purpose of the depot, after the disengagement of the
workman and other security guards and the work of watch
and ward is a continuous process in the FCI and the same
is of perennial in nature. This witness has further stated
that the contractors engaged by FCI were paying the wages
to the security guards deployed by them.
7. At the time of argument, it was submitted by the
union representative for the workman that the workman
was engaged by the management of FCI on 01.01.1994 at
Gondia depot as a security guard and he worked
continuously without any interruption till 14th March, 1999
and his services were terminated orally by the Party No.1,
without following the due procedure of law and the workman
had completed more than 240 days of work in each year
and before termination of the services of the workman,
neither one month's notice nor one month's wages in lieu
of notice nor retrenchment compensation was given to the
workman, as required under section 25-F of the Act and
after termination of the services of the workman, fresh hands
were engaged by Party No.1 to extract the duties of security
guard, in violation of the provision of section 25-H of the
Act and the work of security guard is perennial in nature,
hence the termination of the workman is void and illegal.
It was further submitted by the union representative
for the workman that the Party No.1 had shown the workman
as contract labour, but the so called contract was made only
on papers and the workman was actually working under the
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2561
Server3/E/1250RR/1250RR(3)
direct control and supervision of the Party No.1 and he
was never a contract labour and such action of the Party
No.1 was sham and only a camouflage to deny the legitimate
claim of the workman and the so called contract between
the management and the contractor was bogus and not
genuine and the Central Government by notification dated
01.11.1990 abolished the employment of contract labour
and directed to give employment to contract labours
engaged by the management and therefore, the management
of FCI was bound to abolish the contract labour system
and to give employment to the workman.
It was further submitted by the union representative
that on 29.06.2007, an application was filed by the workman
for production of nine documents relating to him, from
which, it could have been held without any doubt that the
workman was an employee of the Party No.1 and not a
contract labour and after hearing the parties, the Tribunal
by order dated 30.05.2008 directed the Party No.1 to produce
the documents, but inspite of the order passed by the
Tribunal for production of documents, the Party No.1 failed
to produce the documents and as such, adverse inference
is to be drawn against the Party No. 1.
In support of such contentions, reliance was placed
by the union representative on the decisions reported in
2005 I-CLR-254 (Statesman Ltd. 86 Anr. Vs. Eight Industrial
Tribunal, West Bengal & ors.) and 2004 (103) FLR-187
(Municipal Corporation, Faridabad and Shri Niwas).
It was also submitted by the union representative
that neither the Party No.1 nor the so called contractors
engaged by the Party No.1 were registered with the Regional
Labour Commissioner as per rules to engage contract
labours and infact the so called contractors were mediators
and not contractors and even though there was legal ban
on engagement of contract labourers, the Party No.1
engaged the workman and some others as security guards
and from the pleadings of the parties, the evidence on
record and the admission of the witness examined on behalf
of the Party No. 1 that from the date of his initial engagement
the workman worked till 14.03.1999 clearly show that the
workman was the employee of the Party No.1 and the Party
No.1 is the real employer and there was master and servant
relationship between the Party No.1 and the workman and
the so called contract given to the contractor expired on
31.012.1998 and though Party No.1 unilaterally extended
the contract, the contractor did not accept the same and
without any contractor, the workman continued the work
with Party No.1 till 14.03.1999 and the Party No.1 paid the
wages from 01.01.1999 to 14.03.1999 to the workman and
such facts also prove that the workman was the employee
of Party No.1 and it was Party No.1, who terminated the
services of the workman without compliance of the
mandatory provisions of section 25- F of the Act. In support
of the submissions, the union representative placed reliance
on the decisions reported in 1994 II CLR-402 (R.K. Panda
Vs. Steel Authority), 2003 (98) FLR-826 (M/s. Bharat Heavy
Electricals Ltd. Vs. State of U.P.) and 2011 (128) FLR-99
(Mahesh Kumar Sharma Vs. D.F.O., General Forest Division,
Sheopur).
It was also submitted by the union representative
for the workman that Party No.1 has admitted the claims
made by the workman and has not been able to prove their
claim that the workman was a contract labour, by producing
cogent evidence in support of the same and as such, the
workman is entitled for reinstatement in service with
continuity and full back wages.
8. Per contra, it was submitted by the learned advocate
for the Party No.1 that the workman was never appointed
by Party No.1 and he has engaged by the contractor as a
security guard and as such, the concerned contractor is a
necessary party and inspite of raising such objection in
the written statement, the workman did not implead the
contractor as a party and for that the reference is not
maintainable. It was further submitted by the learned
advocate for the Party No.1 that the workman was engaged
by the contractor and as the contract of the contractor
came to an end in March, 1999, the services of the workman
were terminated by the contractor and as such, there was
no question of Party No.1 complying with the due procedure
of termination and there was no relationship of master and
servant between the Party No.1 and the workman and the
Party No.1 was exempted by the Central Government from
the ban imposed for engagement of contract labourers, so
contract was given to the security contractor, as per rules,
for supply of security guards and due to the notification of
the Government for abolition of contract labour system,
Home guards and Police personnel were appointed as
security guards and Party No.1 has no control over the
workman and the security contractor was submitting bills
for payment for supply of security guards and the security
contractor was paying the wages to the workman. It was
further submitted by the learned advocate for the Party
No.1 that the workman and some others had approached
the Hon'ble High Court, Nagpur Bench in W.P. 1389 of 1999
for the reliefs sought in this reference and the Hon'ble
High Court while depositing of the said petition have held
that the termination of the workman by the contractor was
a valid one and the action of FCI was legal and as such, the
workman cannot agitate the question again and the decision
of the Hon'ble High Court operates as res-judicata between
the parties and the workman is not entitled to any relief.
In the alternative, it was submitted by the learned
advocate for the Party No.1 that the Party No.1 is a "State"
as per the provisions of Article 12 of the Constitution of
India and it has a set Rules for appointment of its employees
and it is clear that the workman was never engaged by
Party No.1 as per the Rules of appointment and no evidence
has been adduced by the workman to prove that he had
worked for 240 days with Party No.1 in the preceding
2562
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(3)
12 calendar months of the date of the alleged termination
and as such, there was no question of compliance of section
25-F or 25-H of the Act and the workman is not entitled to
any relief.
In support of such contentions, the learned
advocates for the Party No.1 placed reliance on the
decisions of the Hon'ble Apex Court reported in Appeal
(Civil) 7038/2002 (M/s. Essen Deinki Vs. Rajiv Kumar),
Appeal (Civil) 6303-6316 of 2003 (Manager, RBI, Bangalore
Vs. S. Mani), Appeal (Civil)-6511 of 2005 (Surendranagar
District Panchayat Vs. Dayachai Amar Singh), Appeal (Civil)
3639/2006 (Krishna Bhagaya Jala Nigam Vs. Md. Raffi) and
Appeal (Civil) 2969/2004 (Rajsthan State Gangasagar Mills
Ltd. Vs. State of Rajasthan).
9. First of all, I will take up the submission made by
the learned advocate for the Party No.1 that the present
reference is hit by the principles of res-judicata, due to the
decision of the Hon'ble High Court, Nagpur Bench in W.P.
1389/99.
It is not disputed that the workman alongwith
78 others through the union, "Rashtriya Mazdoor Sena
Saptahit Jaibhim" had filed Writ Petition No. 1389/99 before
the Hon'ble High Court of Judicature at Bombay, Nagpur
Bench, Nagpur, for their regularisation and the Hon'ble
High Court did not grant such relief. On perusal of the
order passed by the Honble High Court on 29.07.2002 in
the said writ petition, it is found that the workman and
others claimed regularisation on the ground that they were
employed by the contractor for doing regular work of the
Food Corporation of India and in view of the same, they
have become workmen of Food Corporation of India, since
the work on which they were employed is of perennial
nature. However, it is found from the judgment that the
Honble High Court did not consider the main relief and
passed the following order:
"In view of the judgment of the Constitution Bench
in Steel Authority of India Ltd. and others
Vs. National Union water front workers and others
(reported in 2001(7) SCC1), the relief sought by
the petitioners cannot be granted since the
petition involves disputed question of facts as
also other facts which are required to be
adjudicated by appropriate authority. Accordingly,
the main prayer to absorb them cannot be granted.
**
**
**
**
In view of the rejection of the main prayer, the
question of granting other prayer does not arise.
In case, the petitioners approach the appropriate
authority, the appropriate authority shall take
decision in the matter within a period of one year.
The applicants are free to approach the
appropriate authority for redressal of their
grievances."
So, it is clear from the orders passed by the Hon'ble
High Court as mentioned above that the Hon'ble High Court
did not consider the claim made by the workman and others
on merit and granted them the liberty to approach the
appropriate authority for redress. Hence, the reference
cannot be said to be hit by the principles of res-judicata.
So, there is no force in the contention raised by the learned
advocate for the Party No. 1.
10. In this reference, it is never the case of the
workman that he was directly appointed or engaged by the
Party No.1 as a security guard. In the very beginning of the
statement of claim, it has been mentioned by the workman
that he was initially engaged at Food Corporation of India
Depot, Gondia as a security guard, through a contractor. In
paragraph 4 of the statement of claim, the workman has
mentioned that, "In the year 1994, he was engaged by the
Food Corporation of India through contractor, for a period
of 2 years, but the contract was made on paper." The case
of the workman is that after every two years, the Party No.1
on papers showed the change of contractors, but he was
not disturbed from services and he worked continuously
without any break till 14.03.1999 and as he worked as a
security guard of perennial nature, he is entitled for
reinstatement in service. The workman has also claimed
that as the Central Government issued notification on
01.11.1990 to abolish the contract labour system in FCI and
directed to give employment to contract labours engaged
by the management and Party No.1 implemented such
direction at Nagpur and Manmad only and gave
employment and regularized and absorbed the services of
the Security Guards working at Nagpur and Manmad and
did not implement the same at Wardha and other places to
deprive him from the benefits under the Labour Laws.
In his evidence on affidavit also, the workman has
mentioned that he was initially engaged in Food
Corporation of India as a security guard through a
contractor.
From the evidence on record and the own admission
of the workman in the cross-examination including the
specific admission that he was engaged by the contractor
and the contractor left him to FCI and he was appointed
through Singh Securities Services, it is clear that the
workman was engaged by the contractor. The workman
has not produced any evidence to show that he was
directly engaged by the Party No. 1.
11. At this juncture, I think it apropos to mention
about the principles enunciated by the Hon'ble Apex Court
regarding contract labours, in the decision reported in 1994
II CLR-402 (Supra), on which reliance is placed by the union
representative and the two decisions reported in 1985-II
LLJ-4 (S.C.) (The workman of the Food Corporation of India
Vs. M/s. Food Corporation of India) and 2001 LAB IC 3656
(S.C.) (Steel Authority of India Ltd. and others Vs. National
Union Water Front Workers and others).
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2563
Server3/E/1250RR/1250RR(3)
In the decision reported in 1994-II CLR-402 (supra)
the Hon'ble Apex Court have held that:—
2. With the industrial growth, the relation between
the employer and the employees also has taken a
new turn. At one time the establishment being the
employer all persons working therein were the
employees of such employer. But slowly the
employer including Central and State
Governments started entrusting many of the jobs
to contractors. Contractors in their turn employed
a worker, who has no direct relationship with the
establishment in which they were employed.
Many contractors exploited the labourers engaged
by them in various manners including the payment
of low wages. Hence, the Contract Labour
(Regulation and Abolition) Act, 1970 was enacted
to regulate the employment of contract labour in
certain establishment and to provide for its
abolition in certain circumstances and for matters
connected therewith.
3. The "Contract Labour" has been defined in
Section 2 (1) (b) to mean a workman, who has
been employed as contract labour in or in
connection with the work of an establishment when
he is hired in or in connection with such work by
or through a contractor, with or without the
knowledge of the principal employer. Section 2 ( 1)
(c) defines "Contractor" to mean a person who
undertakes to produce a given result for the
establishment, other than a mere supply of goods
or articles of manufacture to such establishment,
through contract labour or who supplies contract
labour for any work of the establishment and
includes a sub-contractor. "Principal employer"
has been defined to mean (i) in relation to any
office or department of the Government or a local
authority, the head of that office or department or
such other officer as the government or the local
authority, as the case may be, may specify in this
behalf and (ii) in a factory, the owner or occupier
of the factory. In view of section 10, of 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," Sub-section (2) of Section 10
requires that before issuing any such notification,
in relation to an establishments, 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. One of the relevant factors, which is to be
taken into consideration is whether the work
performed by the contract labourers is of perennial
nature. Section 12 enjoins that no contractor to
whom this Act is applicable shall undertake or
execute any work through contract labour except
under and in accordance with a license issued in
that behalf by the licensing authority. The license
so issued may contain conditions in respect of
hours of work fixation of wages and other essential
amenities in respect of contract labour as the
appropriate Government may deem fit to impose
in accordance with rules. Section 20 provides that
if any amenity required to be provided under
section 16, section 17, section 18, or section 19
for the benefit of the contract labour employed in
an establishment, is not provided by the contractor
within the time prescribed by the contractor
therefore, such amenity shall be provided by the
principal employer within such time as may be
prescribed and all expensed incurred by the
principal employer in providing the amenity may
be recovered by the principal employer from the
contractor "either by deduction from any amount
payable to the contractor under any contract or
as a debt payable by the contractor". Section 21
says that a contractor shall be responsible for the
payment of wages to each worker employed by
him as contract labour but at the same time in
order to protect the interest of such contract
labour, it requires every principal employer to
nominate a representative duly authorized by him
to be present at the time of disbursement of wages
by the contractor. It shall be the duty of the
contractor to ensure the disbursement of wages
in the presence of the authorized representative
of the principal employer. Because of sub-section
(4) of section 21, if the contractor fails to make
payment of wages within the prescribed period,
then the principal employer shall be liable to make
payment of wages in full to the contact labour
employed by the contractor and recover the
amount so paid from the contractor. Any
contravention of the provisions aforesaid has
been made penal for which punishment can be
imposed.
4. From the provisions referred to above, it is
apparent that the framers of the Act have allowed
and recognized contract labour and they have
never purported to abolish it in its entirety. The
primary object appears to be that there should
not be any exploitation of the contract labourers
by the contractor or the establishment. For
achieving that object, statutory restrictions and
responsibilities have been imposed on the
contractor as well as on the principal employer.
Of course if any expenses are incurred for
providing any amenity to the contract labourers
2564
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(3)
or towards the payment of wages by the principle
employer he is entitled to deduct the same from
the bill of the contractor. The Act also conceives
that all appropriate government may after
consultation with the central board or the state
board, as the case may be, prohibit by notification
in official gazette, employment of contract labour
in any process, operation or other work in any
establishment, taking all facts and circumstances
of employment of contract labour in such process,
operation or the work into consideration.
5. Of late a trained amongst the contract labourers
is discernible that after having work for some
years, they make a claim that they should be
absorbed by the principal employer and be treated
as employees of the principal employer especially
when the principal employer is the central
government or the state government or an
authority which can be held to be state within the
meaning of Article 12 of the constitution, although
no right flows from the provisions of the act for
the contract labourers to be absorbed or to
become the employees of the principal employer.
This court in the case of Gammon India limited V.
Union of India (1974) I SCC 596, pointed out the
object and scope of the act as follows:—
"The Act was passed to prevail the exploitation
of contract labour and also to introduce better
condition of work. The Act provides for regulation
and abolition of contract labour. The underline
policy of the Act is to abolish contract labour,
wherever possible and practicable and where it
cannot be abolished to altogether, the policy of
the Act is that the working conditions of the
contract labour should be so regulated as to
ensure payment of wages and provisions of
essential amenities. This is why the Act provides
for regulated conditions of work and contemplates
progressive abolition to the extent contemplated
by Section 10 of the Act."
In the case of B.H.E.L. Workers' Association V.
Union of India, 1985 I CLR SC 165 = (1985) 1 SCC
630 it was pointed out that Parliament has not
abolished the contract labour as such but has
provided for its abolition by the Central
Government in appropriate cases under section
10 of the Act. It is not for the court to enquire into
the question and to decide whether the
employment of contract labour in any process,
operation or other work in any establishment
should be abolished or not. That has to be decided
by the government after considering the relevant
aspects as required by Section 10 of the Act. Again
in the case of Mathura Refinery Mazdoor Sangh
V. Indian Oil Corporation Ltd., 1991 I CLR 684, this
court refused to direct the Indian Oil Corporation
Ltd., to absorb the contract labourers in its
employment saying that, the contract labourers
have not been found to have direct connection
with the refinery. In other words, there was no
relationship of employer and employee between
the Indian Oil Corporation Ltd. and the contract
labourers concerned. Again in Dena Nath V.
National Fertilizers Ltd., 1992 I CLR 1, this court
pointed out that the aforesaid Act has two
purposes to serve (i) to regulate the conditions of
service of the worker employed by the contractor
who is engaged by a principal employer and (ii) to
provide for the abolition of contract labour
altogether, in certain notified processes, operation
or other works in any establishment by the
appropriate government, under section 10 of the
Act. It was further stated that neither the Act nor
the Rules framed by the central government or by
any appropriate government provide that upon
abolition of contract labour, the labourers would
be directly absorbed by the principal employer.
6. It is true that with passage of time and purely
with a view to safeguard the interests of workers,
many principal employers while renewing the
contracts have been insisting that the contractor
or the new contractor retains the old employees.
Infact such a condition is incorporated in the
contract itself. However, such a clause in the
contract which is benevolently inserted in the
contract to protect the continuance of the source
of livelihood of the contract labour cannot by
itself give rise to a right to regularization in the
employment of the principal employer. Whether
the contract labourers have become the
employees of the principal employer in course of
time and on whether the engagement and
employment of labourers through a contractor is
a mere camouflage and a smoke screen, as has
been urged in this case, is a question of fact is to
be established by the contract labourers on the
basis of the requisite material. It is not possible
for High Court or this court, while exercising writ
jurisdiction or jurisdiction under Article 136 to
decide such questions only on the basis of the
affidavits. It need not to be pointed out that in all
such cases, the labourers are initially employed
and engaged by the contractors. As such at what
point of time a direct link is established between
the contract labourers and the principal employer,
eliminating the contractor from the scene, is a
matter which has to be established on material
produced before the court. Normally, the Labour
Court and the Industrial Tribunal, under the
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2565
Server3/E/1250RR/1250RR(3)
Industrial Disputes Act are the Competent Fora
to adjudicate such disputes on the basis of the
oral and documentary evidence produced before
them."
12. In the decision reported in 1985-II LLOJ-4 (supra)
the Hon'ble Apex Court have held that:—
"Briefly stated, when corporation engaged a
contractor for handling foodgrain at Siliguri
Depot, the corporation had nothing to do with
the manner of handling work done by the
contractor, the labour force employed by him,
payments made by him etc. In such a fact situation,
there was no privity of contract of employer and
workmen between the corporation and the
workmen. "Workmen" has been defined (omitting
the words not necessary) in the Industrial
Disputes Act to mean (any person including an
apprentice) employed in any industry to do......"
'The expression' employed has at least two known
connotations, but as used in the definition, the
context would indicate that it is used in the sense
of a relationship brought about by express or
implied contract of service in which the employee
renders service for which he is engaged by the
employer and the latter agrees to pay him in cash
or kind as agreed between them or statutorily
prescribed. It discloses a relationship of command
and obedience. The essential condition of a
person being a workman within the terms of the
definition is that he should be employed to do the
work in that industry and that there should be, in
other words, an employment of his by the
employer and that there should be a relationship
between the employer and employee or master
and servant unless a person is thus employed
there can be no question of his being a "workman"
within the definition of the term as contained in
the Act.
Dharangadhara Chemical Works Ltd. Vs. State of
Saurashtra (1957 - I - LLJ - 477). Now where a
contractor employs a workman to do the work
which he contracted with a third person to
accomplish on the definition as it stands, the
workman of the contractor would not without
something more become the workman of that third
person. Therefore, when the workmen employed
by the contractor were certainly not the workmen
of the corporation and no claim to that effect has
been made by the union."
13. In the decision reported in 2001 LAB IC - 3656
(supra) the Hon'ble Apex Court have held that:—
"The principle that a beneficial legislation needs
to be constructed liberally in favour of the class
for whose benefit it is intended, does not extend
to reading in the provisions of the Act what the
legislature has not provided whether expressly or
by necessary implication, or substituting remedy
or benefits for that provided by the legislature.
The intendment of the CLRA Act is to regulate
the conditions of service of the contract labour
and to authorize in Section 10(1) prohibition of
contract labour system by the appropriate
Government on consideration of factors
enumerated in sub-section (2) of Section 10 of the
Act among other relevant factors. But, the
presence of some or all those factors, provide no
ground for absorption of contract labour on
issuing notification under Section 10(1) by the
appropriate Government, is not alluded to either
in Section 10 or at any other place in the Act• and
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 the Supreme 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 it
absorption of contract labour in the establishment
of principal employer or a lesser or a 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.
Thus on issuance of prohibition notification under
S. 10(1) of the CLRA Act prohibiting employment
of contract labour or otherwise, in an industrial
dispute brought before it by any contract 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 legislations so as to deprive the workers
of the benefit there under. 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 concerned establishment. If the
contract is found to be genuine and the principal
employer intends to employ regular workmen he
shall give preference to the erstwhile contract
labour. It otherwise found suitable, and, if
necessary, by relaxing the condition as to maximum
age appropriately taking into consideration the
2566
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(3)
age of the workers at the time of their initial
employment by the contractor and also relaxing
the condition as to academic qualifications other
than technical qualifications.
Air India's case 1997 AIR SCW430
Overruled prospectively. M.A.T. Nos. 1704 and
1705 of 1999, D/ - 12-8-1999 (Cal): C.O. No 6545(W)
if 1996, D/-9-5-1997(Cal): W.A. Nos. 345-354 of
1997m D/ - 17-4-1998 (Kant): W.P. No. 4050 of 1999,
D/ - 2-8- 2000 (Born) and W.P. No. 2616 of 1999,
D/ - 23-12- 1999 (Born), 1998 Lab IC 2571 (Cal),
Reversed.
It cannot be said that by virtue of engagement
of contract labour by the contractor in any work of
or in connection with the work of an establishment,
the relationship of master and servant is created
between the principal employer and the contract
labour. Even a combined reading of the definition
of the terms "Contract labour", "Establishment"
and "Workman" does not show that the legal
relationship between the person employed in any
industry and the owner of the industry is created
irrespective of the fact as to who has brought about
such relationship. The word "Workman" is defined
in wide terms. It is a generic term of which contract
labour is a species. It is true that combined reading
of the terms "Establishment" and "Workman"
shows that a workman engaged in any
establishment would have direct relationship with
the principal employer as a servant of master. But
what is true of a workman could not be correct of
cantract labour. When the provisions of the Act
neither contemplate creation of direct relationship
of master and servant between the principal
employer and the contract labour nor can such
relationship be implied from the provisions of the
action issuing notification under Section 10(1) of
the CLRA Act. A fortiori much less can such a
relationship be found to exist from the rules and
the forms made there under."
So, keeping in view the principles enunciated by the
Honble Apex Court in the decisions mentioned above, the
present case in hand is to be considered.
14. So far the contention raised by the union
representative regarding drawing of adverse inference
against the Party No.1 for non-production of documents
as ordered by the Tribunal on the application of the workman
is concerned, it is to be mentioned that it is admitted by the
workman that he was engaged through the contractor in
F.C.I. and due his such engagement, it was quite natural for
the Party No.1 to direct him to perform different duties as a
security guard and to see that duties entrusted to him were
done properly. Moreover, the Party No.1 has produced
number of documents to show that the workman was a
contract labour and payment of wages to him was made by
the contractors. Hence, for non- production of the
documents by Party No.1, there is no need to draw any
adverse inference. As the facts and circumstances of the
case in hand are quite different from the facts and
circumstances of the cases referred in the decisions by the
Hon'ble Courts, on which reliance has been placed by the
union representative, with respect, I am of the view that
the said decisions have no clear application of this case.
15. So far the contention raised by the union
representative regarding the non-registration of the Party
No.1 or the contractors with the Regional Labour
Commissioner as per Rules is concerned, it is to be
mentioned that such a plea has neither been taken in the
statement of claim nor any thing has been stated in that
regard in the evidence of the workman. In absence of such
pleading, the contention cannot be entertained. Moreover,
it is clear from the pleadings of the parties and the evidence
on record and the specific suggestions given to the witness
examined on behalf of the Party No.1 in his cross-
examination that contract for supply of security guards
was given by Party No.1 to different contractors from
01.03.1989 till 14.03.1999.
Moreover, for the sake of argument, even if, it is held
that the Party No.1 had engaged the workman and others
as contract labourers in violation of the provisions of the
Contract Labour (Regulations and Abolition) Act, 1976,
then the persons responsible for such violation are liable
for criminal prosecution, but such violation of the
provisions of the above said Act, does not confer any
right on the workman to claim regularisation in service.
16. In this case, the letter No. U-23013/11/89/LW
dated 28.05.92, Govt. of India, Ministry of Labour shows
that the prohibition of employment of contract labour in
sweeping, cleaning, dusting and watching of buildings
owned or occupied by the establishments of Food
Corporation of India and some other departments was lifted
by the Central Government. So, the engagement of contract
labour by the Party No. 1 cannot be said to be illegal. It is
also found from the materials on record that the appointment
of labour contractor by Party No. 1 for supply of Security
Guards was genuine and the same was not only on papers
as claimed by the workman. The workman has failed to
prove such claim by adducing cogent or reliable evidence.
The engagement of labor contractor by Party No. 1 was
not a mere ruse or camouflage to evade compliance of the
various beneficial legislations, so as to deprive the
workman of the benefits there under. The workman has
not been able to produce any document to show that at
any point of time, Party No. 1 paid his wages as their
employee. It is clear from the evidence that Party No. 1
paid wages of the last three months to the workman in
presence of the Labour Commissioner, as the contractor
did not pay the same. As it is clear from the evidence on
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2567
Server3/E/1250RR/1250RR(3)
record that the workman was engaged as a contract labour
with Party No. 1, by the contractor and as such, it can be
held that there was no relationship of master and servant
between the Party No. 1 and the workman. Hence, there
was no question of termination of the services by the Party
No. 1 or compliance of the provisions of Sections 25-F or
25-H of the Act.
In view of the facts and circumstances of the case as
mentioned above, which are quite different from the facts
and the circumstances of the cases referred in the decisions,
on which reliance is placed by the union representative,
with respect, I am of the view that the said decisions have
no clear application to the present case in hand.
17. It is the own case of the workman that he was
engaged by the contractor. So the contractor, who had
engaged the workman is a necessary party in the reference.
The said contractor has not been added as a party in this
reference. Due to non-joinder of necessary party, the
reference is bad in law.
In view of the materials on record and the discussions
made above and applying the principles enunciated by the
Hon'ble Apex Court in the three decisions mentioned above,
the reference cannot be answered in favour of the workman.
Hence, it is ordered:—
ORDER
The reference is answered in the negative. The
workman is not entitled to any relief.
J.P.CHAND, Presiding Officer
ubZ fnYyh] 15 ekpZ] 2013
dkñvkñ 878.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,Qñ lhñ vkbZñ
ds izcaè 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 ukxiqj
ds iapkV ¼vkbZMh la[;k 312@2003½ dks izdkf'kr djrh gS tks dsUnzh;
ljdkj dks 15@03@2013 dks izkIr gqvk FkkA
[lañ ,y&22012@294@2003&vkbZñvkjñ¼lhñ,eñ&II½]
chñ,eñ iVuk;d] MsLd vf/kdkjhs
New Delhi, Dated: 15/03/2013
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 312/2003 of
the Central Government Industrial Tribunal-cum-Labour
Court, Nagpur as shown in the Annexure, in the Industrial
dispute between the management of Food Corporation of
India, Food Corporation of India, and their workman,
received by the Central Government on 15/03/2013.
[No. L-22012/294/2003-IR(CM-II)]
B.M. PATNAIK, Desh Officer
ANNEXURE
BEFORE SHRI J.P.CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No.CGIT/NGP/312/2003 Date: 07.03.2013
Party No. 1(a) :
The, District Manager,
Food Corporation of India,
Ajani, Nagpur,
Nagpur -440015.
Party No. 1(b) :
The Senior Regional Manager,
Food Corporation of India,
Mistry Bhawan, Dinshaw Wacha Road,
Churchgatye,
Mumbai - 400020.
Versus
Party No.2
:
The Secretary,
Rashtriya Mazdoor Sena, Hind Nagar
Ward No. 2, Near Boudha Vihar,
Post: Wardha, Distt. Wardha (M.S.)
AWARD
(Dated: 7th March, 2013)
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 Food Corporation of India and their
workman, Shri Jitendra Dhyaneswhar Choudhari, for
adjudication, as per letter No.-L22012/294/2003-1R (CM-II)
dated 08.12.2003, with the following schedule:—
"Whether the action of the management of Food
Corporation of India, Nagpur (M.S.) in terminating
the services of Shri Jitendra Dhyaneswhar
Choudhari, Security Guard w.e.f. 14.03.1999 is legal
and justified? If not, to what relief the concerned
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 Jitendra
Dhyaneswhar Choudhari (the workman" in short), filed the
statement of claim and the management of Food Corporation
of India ("Party No. 1" in short) filed their written statement.
The case of the workman as presented in the
statement of claim is that he was in the employment of
Party No. 1 from 01.06.1992 and he was initially engaged
through a contractor at Gondia Depot of Party No. 1, as a
2568
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(3)
Security Guard and he was in continuous service without
any interruption till 14th March, 1999, when his services
were terminated orally by Party No. 1, without following
the due procedure of law and he had completed more than
240 days of work in each year and the termination of his
services on 14.03.1999 was not in good faith, but in
colourable exercise of the rights and powers by the Party
No. 1 and while terminating his services, neither one
month's notice nor one month's wages in lieu of notice nor
retrenchment compensation was given to him as required
under section 25-F of the Act and after his illegal
termination, fresh hands from the department of home guard
and police were engaged by Party No. 1 to extract the duties
of Security guards, in violation of the provision of section
25-H of the Act and the work which he was performing is
constantly in existence and the same is of a perennial nature
and as his termination is illegal and unlawful, he is entitled
for reinstatement in service with continuity and full back
wages.
The further case of the workman is that in 1992, he
was engaged by the Party No. 1 through the contractor for
a period of two years, but the contract was made only on
papers and after every two years, the Party No. 1 changed
the contractor on papers only and the engagement of the
so-called contractor did not replace the Security Guards
and he was also not disturbed from his services and he
was merely shown to be engaged by the contractors, but
actually, he was working under the direct control and
supervision of the Party No. 1 and the contractor had no
role to play in the same and the work performed by him was
being assigned to him by Party No. 1 and he was a regular
employee of Party No. 1 and Party No. 1 was his real
employer and not the contractor as alleged and the
engagement and change of contractors by Party No. 1 from
time to time was sham and only a camouflage to deny his
legitimate claim and the contract between Party No. 1 and
the contractor was bogus and not genuine and therefore,
his oral termination from services was against the
mandatory provisions of the Act and the Central
Government decided to abolish the appointment of contract
labour as contemplated under section 10 of the Contract
Labour (Regulation and Abolition) Act, 1970 and issued
notification on 01.11.1990 with directions to abolish the
contract labour system in the establishment of the Party
No. 1 and to give employment to contract labours engaged
by the management and therefore, it was the mandatory
duty of the Party No. 1 to abolish the contract labour system
in all places and management of FCI implemented the
notification only at Nagpur and Manmad and absorbed
the Security Guards working at Nagpur and Manmad, but
at Akola, Amravati, Wardha and Gondia districts, the
contract labour system was continued by the management,
with an intention to deprive him from the benefits under
the labour laws.
It is further pleaded by the workman that his salary
was paid by the Party No. 1 and not by the contractor and
his daily attendance was also marked by the Asstt. Manager
of FCI, Wardha Depot and the Party No. 1 was supervising
his work through their officers and he had no relation with
the so called contractors engaged by the Party No. 1 and
Party No. 1 also supplied the articles, such as, torch, lathi,
whistle and uniform etc. to him and in view of the long spell
of work being carried out by him, he is entitled to be
reinstated in service with continuity and full back wages.
3. The Party No. 1 in their written statement have
pleaded inter alia that the workman was never in their
employment and the workman has not impleded the
contractor, who appointed him, as a Party and the workman
was engaged by the contractor as a Security Guard at FCI
Depot and the said contractor is a necessary party and in
absence of the contractor, the proceeding cannot proceed
and the workman was not in their service uninterruptedly
till 14th March, 1999 and since the contract of the contractor
came to an end, the services of the workman were terminated
by the contractor and the original period of contract given
to the contractor for providing Security services was up to
1998 and the same was extended as per the terms and
conditions till March, 1999 and as the workman was not
employed by them, there was no question of following the
procedure of termination by them and they were not the
employer of the workman and the services of the workman
were never utilized by them as employer from 01.06.1992
to14.03. 1999 , without any break in service and the workman
did not complete 240 days of work in a year as alleged and
as the workman was engaged by tile Security Contractor,
there was no relationship of master and servant between
them and the workman at any point of time and under
section 10 of the Contract Labour (Regularisation and
Abolition) Act, they were exempted by the Central
Government, so the allegations made by the workman
against them are not true and there was no question of
violation of the provisions of 25 (H) of the Act and the
work does not constantly exist and the work of providing
security guards was given to other Government Agencies
like Police Personnel and Home guards and therefore, the
workman has no right to claim any relief from them and the
work of security is not perennial in nature and as and when
their go-downs are filled with food grains, then only,
services of the security guards are required and in
pursuance of the notification issued by the Central
Government abolishing contract labour system, they
appointed Home guards and Police personnel as security
guards.
The further case of Party No.1 is that for the relief as
claimed, by the workman had filed a writ petition before the
Hon'ble High Court, Nagpur Bench bearing W.P. No. 1389/
99 and the Hon'ble High Court rejected the said WP and
denied the relief prayed for and therefore, this Tribunal has
no jurisdiction to decide the reference and the decision of
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2569
Server3/E/1250RR/1250RR(3)
the Hon'ble Court operates as res-judicata and they floated
tenders for the contract and lowest bidder was awarded
the contract and the change of contractor in every two
years was not on papers only and they had no say in the
appointment of security guards by the security contractor
and they had no control over the appointment and service
conditions of the workman, who was an employee of the
security agency and he was never their employee and the
security contractor was the employer of the workman.
The further case of Party No.1 is that the appropriate
government decided to abolish the employment of the
contract labour as contemplated under section 10 of the
Contract Labour (Regularisation and Abolition) Act, 1970
and the interpretation of the notification issued on
01.11.1990 put by the workman is not correct and they were
exempted from the operation of the Act of 1970 in the year
1989 and the said exemption was withdrawn in the year
1999 and therefore, the security contact given to the
contractor was terminated and hence, the services of the
workman were terminated by the security contractor and
they did not pay the salary to the workman and it was the
contractor, who was paying the same to the workman and
when the contractor failed to pay the salary to the workman,
they paid the amount as per the directions given by the
ALC from time to time and the said amount was recovered
from the contract's bill and they only used to check the
attendance of the security guards to find out as to whether
the contractor had made arrangement of the requisite
number of security guards, as per their requirement and
they did not have the power to terminate any employee
appointed by the contractor and they did not provide any
article, such as torch, Lathi, whistle and uniform etc to the
workman and as such, the workman is not entitled to any
relief.
4. Both parties have led oral evidence in support of
their respective claims, besides placing reliance on
documentary evidence.
The workman in support of his claim has examined
himself as a witness. In his evidence, which is on affidavit,
the workman has reiterated the facts mentioned in the
statement of claim.
5. In his cross-examination, the workman has admitted
that his original appointment was through contractor and
he has not filed any document showing payment of salary
to him by the FCI.
6. One Shri Mohan Govindrao Temburne has been
examined as a witness on behalf of the Party No. 1. This
witness has also reiterated the facts mentioned in the written
statement, in his examination-in-chief, which is on affidavit.
In his cross-examination, this witness has admitted the
suggestions that contract for supply of security guards
was given to Singh Security services for two years and
subsequently, the contract of Singh Security was extended
till 15.12.1996 and contract for supply of security guards
was given to M/s. Chaitanya Security and Investigation
Services, Amaravati from January, 1992 to May, 1992 and
to M/s. Security Services Intelligence Bureau, Thane from
01.06.1992 to 31.03. 1993 and to M/s. Industrial Security
and Fire Services from 16.12.1996 to 15.12.1998 by FCI. The
witness has also admitted that inspite of change of
contractors, the workman worked continuously in FCI from
01.06.1992 to 14.03.1999. This witness has also admitted
the suggestion that on 14.03.1999, the contract of
M/s. Industrial Security and Fire Services was expired. In
his cross-examination, this witness has further admitted
that the concerned officers of the FCI were issuing
necessary directions to the workman and other security
guards regarding the place and time of their performing
duties and the security guards posted at the gate of the
Depot of FCI were keeping accounts in a register regarding
the number of incoming and out- going vehicles to and
from the depot respectively and home guards and police
personnel of the state were engaged for watch and ward
purpose of the depot, after the disengagement of the
workman and other security guards and the work of watch
and ward is a continuous process in the FCI and the same
is of perennial in nature. This witness has further stated
that the contractors engaged by FCI were paying the wages
to the security guards deployed by them.
7. At the time of argument, it was submitted by the
union representative for the workman that the workman
was engaged by the management of FCI on 01.06.1992 at
Gondia depot as a security guard and he worked
continuously without any interruption till 14th March,1999
and his services were terminated orally by the Party No. 1,
without following the due procedure of law and the workman
had completed more than 240 days of work in each year
and before termination of the services of the workman,
neither one month's notice nor one month's wages in lieu
of notice nor retrenchment compensation was given to the
workman, as required under section 25-F of the Act and
after termination of the services of the workman, fresh hands
were engaged by Party No.1 to extract the duties of security
guard, in violation of the provision of section 25-H of the
Act and the work of security guard is perennial in nature,
hence the termination of the workman is void and illegal.
It was further submitted by the union representative
for the workman that the Party No.1 had shown the workman
as contract labour, but the so called contract was made
only on papers and the workman was actually working
under the direct control and supervision of the Party No.1
and he was never a contract labour and such action of the
Party No.1 was sham and only a camouflage to deny the
legitimate claim of the workman and the so called contract
between the management and the contractor was bogus
and not genuine and the Central Government by
notification dated 01.11.1990 abolished the employment of
2570
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(3)
contract labour and directed to give employment to contract
labours engaged by the management and therefore, the
management of FCI was bound to abolish the contract
labour system and to give employment to the workman.
It was further submitted by the union representative
that on 29.06.2007, an application was filed by the workman
for production of nine documents relating to him, from
which, it could have been held without any doubt that the
workman was an employee of the Party No.1 and not a
contract labour and after hearing the parties, the Tribunal
by order dated 30.05.2008 directed the Party No.1 to produce
the documents, but inspite of the order passed by the
Tribunal for production of documents, the Party No.1 failed
to produce the documents and as such, adverse inference
is to be drawn against the Party No. 1.
In support of such contentions, reliance was placed
by the union representative on the decisions reported in
2005 I-CLR-254 (Statesman Ltd. 86 Anr. Vs. Eight Industrial
Tribunal, West Bengal and ors.) and 2004 (103) FLR-187
(Municipal Corporation, Faridabad and Shri Niwas).
It was also submitted by the union representative
that neither the Party No.1 nor the so called contractors
engaged by the Party No.1 were registered with the Regional
Labour Commissioner as per rules to engage contract
labours and infact the so called contractors were mediators
and not contractors and even though there was legal ban
on engagement of contract labourers, the Party No.1
engaged the workman and some others as security guards
and from the pleadings of the parties, the evidence on
record and the admission of the witness examined on behalf
of the Party No. 1 that from the date of his initial engagement
the workman worked till 14.03.1999 clearly show that the
workman was the employee of the Party No.1 and the Party
No.1 is the real employer and there was master and servant
relationship between the Party No.1 and the workman and
the so called contract given to the contractor expired on
31.012.1998 and though Party No.1 unilaterally extended
the contract, the contractor did not accept the same and
without any contractor, the workman continued the work
with Party No.1 till 14.03.1999 and the Party No.1 paid the
wages from 01.01.1999 to 14.03.1999 to the workman and
such facts also prove that the workman was the employee
of Party No.1 and it was Party No.1, who terminated the
services of the workman without compliance of the
mandatory provisions of section 25-F of the Act. In support
of the submissions, the union representative placed reliance
on the decisions reported in 1994 II CLR-402 (R.K. Panda
Vs. Steel Authority), 2003 (98) FLR-826 (M/s. Bharat Heavy
Electricals Ltd. Vs. State of UP) and 2011 (128) FLR-99
(Mahesh Kumar Sharma Vs. D.F.O., General Forest Division,
Sheopur).
It was also submitted by the union representative
for the workman that Party No.1 has admitted the claims
made by the workman and has not been able to prove their
claim that the workman was a contract labour, by producing
cogent evidence in support of the same and as such, the
workman is entitled for reinstatement in service with
continuity and full back wages.
8. Per contra, it was submitted by the learned advocate
for the Party No. 1 that the workman was never appointed
by Party No.1 and he has engaged by the contractor as a
security guard and as such, the concerned contractor is a
necessary party and inspite of raising such objection in
the written statement, the workman did not implead the
contractor as a party and for that the reference is not
maintainable. It was further submitted by the learned
advocate for the Party No.1 that the workman was engaged
by the contractor and as the contract of the contractor
came to an end in March, 1999, the services of the workman
were terminated by the contractor and as such, there was
no question of Party No.1 complying with the due procedure
of termination and there was no relationship of master and
servant between the Party No.1 and the workman and the
Party No.1 was exempted by the Central Government from
the ban imposed for engagement of contract labourers, so
contract was given to the security contractor, as per rules,
for supply of security guards and due to the notification of
the Government for abolition of contract labour system,
Home guards and Police personnel were appointed as
security guards and Party No.1 has no control over the
workman and the security contractor was submitting bills
for payment for supply of security guards and the security
contractor was paying the wages to the workman. It was
further submitted by the learned advocate for the Party
No.1 that the workman and some others had approached
the Hon'ble High Court, Nagpur Bench in W.P. 1389 of 1999
for the reliefs sought in this reference and the Hon'ble
High Court while depositing of the said petition have held
that the termination of the workman by the contractor was
a valid one and the action of FCI was legal and as such, the
workman cannot agitate the question again and the decision
of the Hon'ble High Court operates as res-judicata between
the parties and the workman is not entitled to any relief.
In the alternative, it was submitted by the learned
advocate for the Party No.1 that the Party No.1 is a "State"
as per the provisions of Article 12 of the Constitution of
India and it has a set Rules for appointment of its employees
and it is clear that the workman was never engaged by
Party No.1 as per the Rules of appointment and no evidence
has been adduced by the workman to prove that he had
worked for 240 days with Party No.1 in the preceding 12
calendar months of the date of the alleged termination and
as such, there was no question of compliance of section
25-F or 25-H of the Act and the workman is not entitled to
any relief.
In support of such contentions, the learned
advocates for the Party No.1 placed reliance on the
decisions of the Hon'ble Apex Court reported in Appeal
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2571
Server3/E/1250RR/1250RR(3)
(Civil) 7038/2002 (M/s. Essen Deinki Vs. Rajiv Kumar),
Appeal (Civil) 6303-6316 of 2003 (Manager, RBI, Bangalore
Vs. S. Mani), Appeal (Civil)-6511 of 2005 (Surendranagar
District Panchayat Vs. Dayachai Amar Singh), Appeal (Civil)
3639/2006 (Krishna Bhagaya Jala Nigam Vs. Md. Raffi) and
Appeal (Civil) 2969/2004 (Rajsthan State Gangasagar Mills
Ltd. Vs. State of Rajasthan).
9. First of all, I will take up the submission made by
the learned advocate for the Party No.1 that the present
reference is hit by the principles of res-judicata, due to the
decision of the Hon'ble High Court, Nagpur Bench in W.P.
1389/99.
It is not disputed that the workman alongwith 78
others through the union, "Rashtriya Mazdoor Sena
Saptahit Jaibhim" had filed Writ Petition No. 1389/99 before
the Hon'ble High Court of Judicature at Bombay, Nagpur
Bench, Nagpur, for their regularisation and the Hon'ble
High Court did not grant such relief. On perusal of the
order passed by the Hon'ble High Court on 29.07.2002 in
the said writ petition, it is found that the workman and
others claimed regularisation on the ground that they were
employed by the contractor for doing regular work of the
Food Corporation of India and in view of the same, they
have become workmen of Food Corporation of India, since
the work on which they were employed is of perennial
nature. However, it is found from the judgment that the
Hon'ble High Court did not consider the main relief and
passed the following order:
"In view of the judgment of the Constitution Bench
in Steel Authority of India Ltd. and others Vs.
National Union water front workers and others
(reported in 2001 (7) SCC1), the relief sought by
the petitioners cannot be granted since the
petition involves disputed question of facts as
also other facts which are required to be
adjudicated by appropriate authority. Accordingly,
the main prayer to absorb them cannot be granted.
**
**
**
**
In view of the rejection of the main prayer, the
question of granting other prayer does not arise.
In case, the petitioners approach the appropriate
authority, the appropriate authority shall take
decision in the matter within a period of one year.
The applicants are free to approach the
appropriate authority for redressal of their
grievances."
So, it is clear from the orders passed by the Hon'ble
High Court as mentioned above that the Hon'ble High Court
did not consider the claim made by the workman and others
on merit and granted them the liberty to approach the
appropriate authority for redress. Hence, the reference
cannot be said to be hit by the principles of res-judicata.
So, there is no force in the contention raised by the learned
advocate for the Party No. 1.
10. In this reference, it is never the case of the
workman that he was directly appointed or engaged by the
Party No.1 as a security guard. In the very beginning of the
statement of claim, it has been mentioned by the workman
that he was initially engaged at Food Corporation of India
Depot, Gondia as a security guard, through a contractor. In
paragraph 4 of the statement of claim, the workman has
mentioned that, "In the year 1992, he was engaged by the
Food Corporation of India through contractor, for a period
of 2 years, but the contract was made on paper." The case
of the workman is that after every two years, the Party No.1
on papers showed the change of contractors, but he was
not disturbed from services and he worked continuously
without any break till 14.03.1999 and as he worked as a
security guard of perennial nature, he is entitled for
reinstatement in service. The workman has also claimed
that as the Central Government issued notification on
01.11.1990 to abolish the contract labour system in FCI and
directed to give employment to contract labours engaged
by the management and Party No.1 implemented such
direction at Nagpur and Manmad only and gave
employment and regularized and absorbed the services of
the Security Guards working at Nagpur and Manmad and
did not implement the same at Wardha and other places to
deprive him from the benefits under the Labour Laws.
In his evidence on affidavit also, the workman has
mentioned that he was initially engaged in Food
Corporation of India as a security guard through a
contractor.
From the evidence on record and the own admission
of the workman in the cross-examination including the
specific admission that he was engaged by the contractor
and the contractor left him to FCI and he was appointed
through Singh Securities Services, it is clear that the
workman was engaged by the contractor. The workman
has not produced any evidence to show that he was
directly engaged by the Party No. 1.
11. At this juncture, I think it apropos to mention
about the principles enunciated by the Hon'ble Apex Court
regarding contract labours, in the decision reported in 1994
II CLR-402 (Supra), on which reliance is placed by the union
representative and the two decisions reported in 1985-II
LLJ-4 (S.C.) (The workman of the Food Corporation of India
Vs M/s. Food Corporation of India) and 2001 LAB IC 3656
(S.C.) (Steel Authority of India Ltd. and others Vs. National
Union Water Front Workers and others).
In the decision reported in 1994-II CLR-402 (Supra)
the Hon'ble Apex Court have held that:—
2. With the industrial growth, the relation between
the employer and the employees also has taken a
new turn. At one time the establishment being the
2572
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(3)
employer all persons working therein were the
employees of such employer. But slowly the
employer including Central and State
Governments started entrusting many of the jobs
to contractors. Contractors in their turn employed
a worker, who has no direct relationship with the
establishment in which they were employed.
Many contractors exploited the labourers engaged
by them in various manners including the payment
of low wages. Hence, the Contract Labour
(Regulation and Abolition) Act, 1970 was enacted
to regulate the employment of contract labour in
certain' establishment and to provide for its
abolition in certain circumstances and for matters
connected therewith.
3. The "Contract Labour" has been defined in
Section 2 (1) (b) to mean a workman, who has
been employed as contract labour in or in
connection with the work of an establishment when
he is hired in or in connection with such work by
or through a contractor, with or without the
knowledge of the principal employer. Section 2
(1) (c) defines "Contractor" to mean a person who
undertakes to produce a given result for the
establishment, other than a mere supply of goods
or articles of manufacture to such establishment,
through contract labour or who supplies contract
labour for any work of the establishment and
includes a sub-contractor. "Principal employer"
has been defined to mean (i) in relation to any
office or department of the Government or a local
authority, the head of that office or department or
such other officer as the government or the local
authority, as the case may be, may specify in this
behalf, and (ii) in a factory, the owner or occupier
of the factory. In view of section 10, of 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," Sub-section (2) of Section 10
requires that before issuing any such notification,
in relation to an establishments, 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. One of the relevant factors, which is to be
taken into consideration is whether the work
performed by the contract labourers is of perennial
nature. Section 12 enjoins that no contractor to
whom this Act is applicable shall undertake or
execute any work through contract labour except
under and in accordance with a license issued in
that behalf by the licensing authority. The license
so issued may contain conditions in respect of
hours of work, fixation of wages and other
essential amenities in respect of contract labour
as the appropriate Government may deem fit to
impose in accordance with rules. Section 20
provides that if any amenity required to be
provided under section 16, section 17, section 18,
or section 19 for the benefit of the contract labour
employed in an establishment, is not provided by
the contractor within the time prescribed by the
contractor within the time prescribed therefore,
such amenity shall be provided by the principal
employer within such time as may be prescribed
and all expensed incurred by the principal
employer in providing the amenity may be
recovered by the principal employer from the
contractor "either by deduction from any amount
payable to the contractor under any contract or
as a debt payable by the contractor". Section 21
says that a contractor shall be responsible for the
payment of wages to each worker employed by
him as contract labour but at the same time in
order to protect the interest of such contract
labour, it requires every principal employer to
nominate a representative duly authorized by him
to be present at the time of disbursement of wages
by the contractor. It shall be the duty of the
contractor to ensure the disbursement of wages
in the presence of the authorized representative of
the principal employer. Because of sub-section (4)
of section 21, if the contractor fails to make
payment of wages within the prescribed period,
then the principal employer shall be liable to make
payment of wages in full to the contact labour
employed by the contractor and recover the
amount so paid from the contractor. Any
contravention of the provisions aforesaid has
been made penal for which punishment can be
imposed.
4. From the provisions referred to above, it is
apparent that the framers of the Act have allowed
and recognized contract labour and they have
never purported to abolish it in its entirety. The
primary object appears to be that there should
not be any exploitation of the contract labourers
by the contractor or the establishment. For
achieving that object, statutory restrictions and
responsibilities have been imposed on the
contractor as well as on the principal employer.
Of course if any expenses are incurred for
providing any amenity to the contract labourers
or towards the payment of wages by the principal
employer he is entitled to deduct the same from
the bill of the contractor. The act also conceives
that all appropriate Government may after
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2573
Server3/E/1250RR/1250RR(3)
consultation with the central board or the state
board, as the case may be, prohibit by notification
in official gazette, employment of contract labour
in any process, operation or other work in any
establishment, taking all facts and circumstances
of employment of contract labour in such process,
operation or the work into consideration.
5. Of late a trained amongst the contract labourers
is discernible that after having work for some
years, they make a claim that they should be
absorbed by the principal employer and be treated
as employees of the principal employer especially
when the principal employer is the central
government or the state government or an
authority which can be held to be state within the
meaning of Article 12 of the constitution, although
no right flows from the provisions of the Act for
the contract labourers to be absorbed or to
become the employees of the principal employer.
This court in the case of Gammon India limited V.
Union of India (1974) I SCC 596, pointed out the
object and scope of the act as follows:—
"The Act was passed to prevail the exploitation
of contract labour and also to introduce better
condition of work. The Act provides for regulation
and abolition of contract labour. The underline
policy of the Act is to abolish contract labour,
wherever possible and practicable and where it
cannot be abolished to altogether, the policy of
the Act is that the working conditions of the
contract labour should be so regulated as to
ensure payment of wages and provisions of
essential amenities. This is why the Act provides
for regulated conditions of work and contemplates
progressive abolition to the extent contemplated
by Section 10 of the Act."
In the case of B.H.E.L. Workers' Association V.
Union of India, 1985 I CLR SC 165 = (1985) 1 SCC
630 it was pointed out that Parliament has not
abolished the contract labour as such but has
provided for its abolition by the Central
Government in appropriate cases under Section 10
of the Act. It is not for the court to enquire into
the question and to decide whether the
employment of contract labour in any process,
operation or other work in any establishment
should be abolished or not. That has to be decided
by the government after considering the relevant
aspects as required by Section 10 of the Act. Again
in the case of Mathura Refinery Mazdoor Sangh
V. Indian Oil Corporation Ltd., 1991 I CLR 684, this
court refused to direct the Indian Oil Corporation
Ltd., to absorb the contract labourers in its
employment saying that, the contract labourers
have not been found to have direct connection
with the refinery. In other words, there was no
relationship of employer and employee between
the Indian Oil Corporation Ltd. and the contract
labourers concerned. Again in Dena Nath V.
National Fertilizers Ltd., 1992 I CLR 1, this court
pointed out that the aforesaid Act has two
purposes to serve (i) to regulate the conditions of
service of the worker employed by the contractor
who is engaged by a principal employer, and (ii)
to provide for the abolition of contract labour
altogether, in certain notified processes, operation
or other works in any establishment by the
appropriate Government, under Section 10 of the
Act. It was further stated that neither the Act nor
the Rules framed by the central government or by
any appropriate government provide that upon
abolition of contract labour, the labourers would
be directly absorbed by the principal employer.
6. It is true that with passage of time and purely
with a view to safeguard the interests of workers,
many principal employers while renewing the
contracts have been insisting that the contractor
or the new contractor retains the old employees.
Infact such a condition is incorporated in the
contract itself. However, such a clause in the
contract which is benevolently inserted in the
contract to protect the continuance of the source
of livelihood of the contract labour cannot by
itself give rise to a right to regularization in the
employment of the principal employer. Whether
the contract labourers have become the
employees of the principal employer in course of
time and on whether the engagement and
employment of labourers through a contractor is
a mere camouflage and a smoke screen, as has
been urged in this case, is a question of fact is to
be established by the contract labourers on the
basis of the requisite material. It is not possible
for High Court or this court, while exercising writ
jurisdiction or jurisdiction under Article 136 to
decide such questions only on the basis of the
affidavits. It need not to be pointed out that in all
such cases, the labourers are initially employed
and engaged by the contractors. As such at what
point of time a direct link is established between
the contract labourers and the principal employer,
eliminating the contractor from the scene, is a
matter which has to be established on material
produced before the court. Normally, the Labour
Court and the Industrial Tribunal, under the
Industrial Disputes Act are the Competent Fora
to adjudicate such disputes on the basis of the
oral and documentary evidence produced before
them."
2574
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(3)
12. In the decision reported in 1985-11 LLOJ-4 (supra)
the Hon'ble Apex Court have held that:—
"Briefly stated, when corporation engaged a
contractor for handling foodgrain at Siliguri
Depot, the corporation had nothing to do with
the manner of handling work done by the
contractor, the labour force employed by him,
payments made by him etc. In such a fact situation,
there was no privity of contract of employer and
workmen between the corporation and the
workmen. "Workmen" has been defined (omitting
the words not necessary) in the Industrial
Disputes Act to mean (any person including an
apprentice) employed in any industry to do...... ".
'The expression' employed has at least two known
connotations, but as used in the definition, the
context would indicate that it is used in the sense
of a relationship brought about by express or
implied contract of service in which the employee
renders service for which he is engaged by the
employer and the latter agrees to pay him in cash
or kind as agreed between them or statutorily
prescribed. It discloses a relationship of command
and obedience. The essential condition of a
person being a workman within the terms of the
definition is that he should be employed to do the
work in that industry and that there should be, in
other words an employment of his by the employer
and that there should be a relationship between
the employer and employee or master and servant
unless a person is thus employed there can be no
question of his being a "workman" within the
definition of the term as contained in the Act.
Dharangadhara Chemical Works Ltd. Vs. State of
Saurashtra (1957 - I - LLJ - 477). Now where a
contractor employs a workman to do the work
which he contracted with a third person to
accomplish on the definition as it stands, the
workman of the contractor would not without
something more become the workman of that third
person. Therefore, when the workmen employed
by the contractor were certainly not the workmen
of the corporation and no claim to that effect has
been made by the union."
13. In the decision reported in 2001 LAB IC - 3656
(supra) the Hon'ble Apex Court have held that:—
"The principle that a beneficial legislation needs
to be constructed liberally in favour of the class
for whose benefit it is intended, does not extend
to reading in the provisions of the Act what the
legislature has not provided whether expressly or
by necessary implication, or substituting remedy
or benefits for that provided by the legislature.
The intendment of the CLRA Act is to regulate
the conditions of service of the contract labour
and to authorize in Section 10(1) prohibition of
contract labour system by the appropriate
Government on consideration of factors
enumerated in sub-section (2) of Section 10 of the
Act among other relevant factors. But, the
presence of some or all those factors, provide no
ground for absorption of contract labour on
issuing notification under Section 10(1) by the
appropriate Government, is not alluded to either
in Section 10 or at any other place in the Act and
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 the Supreme 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 it
absorption of contract labour in the establishment
of principal employer or a lesser or a 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.
Thus on issuance of prohibition notification under
S. 10(1) of the CLRA Act prohibiting employment
of contract labour or otherwise, in an industrial
dispute brought before it by any contract 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 legislations so as to deprive the workers
of the benefit there under. 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 concerned establishment. If the
contract is found to be genuine and the principal
employer intends to employ regular workmen he
shall give preference to the erstwhile contract
labour. It otherwise found suitable, and, if
necessary, by relaxing the condition as to maximum
age appropriately taking into consideration the
age of the workers at the time of their initial
employment by the contractor and also relaxing
the condition as to academic qualifications other
than technical qualifications.
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2575
Server3/E/1250RR/1250RR(3)
Air India's case 1997 AIR SCW430 Ovgrruled
prospectively. M.A.T. Nos. 1704 and 17b 1999,
D/-12-8-1999 (Cal): C.O. No. 6545(W) if 1996,
D/-9-5-1997(Cal): W.A. Nos. 345-354 of 1997,
D/-17-4-1998 (Kant): W.P. No. 4050 of 1999,
D/-2-8- 2000 (Bom) and W.P. No. 2616 of 1999,
D/-23-12-1999 (Bom), 1998 Lab IC 2571 (Cal),
Reversed.
It cannot be said that by virtue of engagement of
contract labour by the contractor in any work of
or in connection with the work of an
establishment, the relationship of master and
servant is created between the principal employer
and the contract labour. Even a combined reading
of the definition of the terms "Contract labour",
"Establishment" and "Workman" does not show
that the legal relationship between the person
employed in any industry and the owner of the
industry is created irrespective of the fact as to
who has brought about such relationship. The
word "Workman" is defined in wide terms. It is a
generic term of which contract labour is a species.
It is true that combined reading of the terms
"Establishment" and "Workman" shows that a
workman engaged in any establishment would
have direct relationship with the principal
employer as a servant of master. But what is true
of a workman could not be correct of contract
labour. When the provisions of the Act neither
contemplate creation of direct relationship of
master and servant between the principal employer
and the contract labour nor can such relationship
be implied from the provisions of the action issuing
notification under Section 10(1) of the CLRA Act.
A fortiori much less can such a relationship be
found to exist from the rules and the forms made
there under."
So, keeping in view the principles enunciated by the
Honble Apex Court in the decisions mentioned above, the
present case in hand is to be considered.
14. So far the contention raised by the union
representative regarding drawing of adverse inference
against the party No.1 for non-production of documents
as ordered by the Tribunal on the application of the
workman is concerned, it is to be mentioned that it is
admitted by the workman that he was engaged through the
contractor in F.C.I. and due his such engagement, it was
quite natural for the Party No.1 to direct him to perform
different duties as a security guard and to see that duties
entrusted to him were done properly. Moreover, the Party
No.1 have produced number of documents to show that
the workman was a contract labour and payment of wages
to him was made by the contractors. Hence, for non-
production of the documents by Party No.1, there is no
need to draw any adverse inference. As the facts and
circumstances of the case in hand are quite different from
the facts and circumstances of the cases referred in the
decisions by the Hon'ble Courts, on which reliance has
been placed by the union representative, with respect, I am
of the view that the said decisions have no clear application
of this case.
15. So far the contention raised by the union
representative regarding the non-registration of the Party
No.1 or the contractors with the Regional Labour
Commissioner as per Rules is concerned, it is to be
mentioned that such a plea has neither been taken in the
statement of claim nor any thing has been stated in that
regard in the evidence of the workman. In absence of such
pleading, the contention cannot be entertained. Moreover,
it is clear from the pleadings of the parties and the evidence
on record and the specific suggestions given to the witness
examined on behalf of the Party No.1 in his cross-
examination that contract for supply of security guards
was given by Party No.1 to different contractors from
01.03.1989 till 14.03.1999.
Moreover, for the sake of argument, even if, it is held
that the Party No.1 had engaged the workman and other as
contract labourers in violation of the provisions of Contract
Labour (Regulations and Abolition) Act, 1976, then• the
persons responsible for such violation are liable for criminal
prosecution, but such violation of the provisions of the
above said Act, does not confer any right on the workman
to claim regularisation in service.
16. In this case, the letter No. U-23013/11/89/LW
dated 28.05.92, Govt. of India, Ministry of Labour shows
that the prohibition of employment of contract labour in
sweeping, cleaning, dusting and watching of buildings
owned or occupied by the establishments of Food
Corporation of India and some other departments was lifted
by the Central Government. So, the engagement of contract
labour by the Party No. 1 cannot be said to be illegal. It is
also found from the materials on record that the appointment
of labour contractor by Party No. 1 for supply of Security
Guards was genuine and the same was not only on papers
as claimed by the workman. The workman has failed to
prove such claim by adducing cogent or reliable evidence.
The engagement of labor contractor by Party No. 1 was
not a mere use or camouflage to evade compliance of the
various beneficial legislations, so as to deprive the workman
of the benefits there under. The workman has not been
able to produce any document to show that at any point of
time, Party No. 1 paid his wages as their employee. It is
clear from the evidence that Party No. 1 paid wages of the
last three months to the workman in presence of the Labour
Commissioner, as the contractor did not pay the same. As
it is clear from the evidence on record that the workman
was engaged as a contract labour with Party No. 1, by the
2576
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(3)
contractor and as such, it can be held that there was no
relationship of master and servant between the Party No. 1
and the workman. Hence, there was no question of
termination of the services by the Party No. 1 or compliance
of the provisions of Sections 25-F or 25-H of the Act.
In view of the facts and circumstances of the case as
mentioned above, which are quite different from the facts
and the circumstances of the cases referred in the decisions,
on which reliance is placed by the union representative,
with respect, I am of the view that the said decisions have
no clear application to the present case in hand.
17.It is the own case of the workman that he was
engaged by the contractor. So the contractor, who had
engaged the workman is a necessary party in the reference.
The said contractor has not been added as a party in this
reference. Due to non-joinder of necessary party, the
reference is bad in law.
In view of the materials on record and the discussions
made above and applying the principles enunciated by the
Hon'ble Apex Court in the three decisions mentioned above,
the reference cannot be answered in favour of the workman.
Hence, it is ordered:—
ORDER
The reference is answered in the negative. The
workman is not entitled to any relief.
J.P. CHAND, Presiding Officer
ubZ fnYyh] 15 ekpZ] 2013
dkñvkñ 879.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,lñ bZñ 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 tcyiqj ds iapkV ¼vkbZMh la[;k 165@2003½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 15@03@2013 dks izkIr gqvk FkkA
[lañ ,y&22012@282@2002&vkbZñvkjñ¼lhñ,eñ&II½]
chñ ,eñ iVuk;d] MsLd vf/kdkjhs
New Delhi, Dated: 15/03/2013
Notification
S.O 879.—In pursuance of Section 17 of the
Industrial Dispute Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref. 165/03 of the
Central Government Industrial Tribunal-cum- Labour Court,
Jabalpur as shown in the Annexure, in the Industrial dispute
between the management of Chirimiri Area of SECL and
their workman, received by the Central Government on
15/03/2013.
[No. L-22012/282/2002-IR(CM-II)]
B.M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL CUM LABOUR COURT, JABALPUR
NO. CGIT/LC/R/165/03
Presiding Officer: SHRI R.B. PATLE
The Secretary,
Bhartiya Khadan Mazdoor Sangh MP,
M/72, Bartunga Colony,
P O Chirimiri,
Distt. Korea,
Chhattisgarh
Workman/Union
Versus
The Chief General Manager,
Chirimiri Area of South Eastern Coalfields Ltd.,
P O Chirimiri, Distt. Korea,
Korea Chhattisgarh
Management
AWARD
Passed on this 1st day of March, 2013
1. As per letter dated 13-10-2003 by the Government
of India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section - 10 of I.D. Act, 1947 as per Notification
No. L-22012/282/2002-IR(CM-II). The dispute under
reference relates to:
"Whether the action of the management of South Easten
Coalifields Limited, Chirimiri Area in not promoting
Shri Ravindra Tiwari as Electrician Grade-IV w.e.f. 2-6-1989 is
legal and justified? If not, to what relief the workman is
entitled?"
2. After receiving the reference, notices were issued
to the parties. Ist party/workman submitted Statement of
Claim at Page 6/1 to 6/4. The case of Ist party/workman as
per statement of claim is that he was appointed as Category-I
Mazdoor from 9-7-82. He was promoted as Electrician Helper
Cat-II w.e.f. 1-1-1987 vide order dated 31.12.1986 on
recommendation of the Departmental Promotion Committee.
As per management's circular dated 7-4-89, stipulated criteria
for promotion on the post of Electrician Category-IV. As per
the said circular, workman whose academic qualification is
Matriculation with ITI having one year experience as
Category-1 and 2 years experience as category-II will be
eligible for promotion as Electrician Category-IV provided
the obtains LT Permit under Indian Electricity Rules for mines
in respect of employees in Excavation Cadre.
3. It is submitted that 1st party-Ravindra Tiwari
fulfilled the criteria for promotion to the post of Electrician
Category-IV. The DPC took place from time to time,
recommended his name for promotion to the post of
electrician Grade IV w.e.f. 1-5-89. His name was deleted in
order dated 29-5-89. The Junior employees Shri Seonarayan
Yadav and Shri Sajan Prasad Patel were promoted. Ist party/
workman was not promoted with them.
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2577
Server3/E/1250RR/1250RR(3)
4. Ist party further submits that he was promoted to
the post of Electrician Grade-IV w.e.f. 1-1-92 as per order
dated 13-4-92 instead from 1-5-89. His seniority has not
been maintained at per with promotees as per order dated
19-5-89. That on representation, he was given notional
seniority in Grade-V from 21-10-95 without back wages as
per order dated 12-4-99. It is contended by the Ist party
that he is discriminated because of Union activities, he is
denied promotion to Electrician Grade-IV from 1-5-89. He
prays for the said promotion.
5. IInd party/management submitted Written
Statement at page 8/1 to 8/4. It is contended that the Ist
party is granted promotion of Electrician Grade-IV from
1-1-92. The reference is not tenable. The dispute involved
was raised by the Union. It was settled by granting notional
seniority in Category-V. Once the dispute has been settled,
the same issue cannot be raised again on the same cause
of action. The earlier dispute was raised by Bhartiya Khadan
Mazdoor Sangh. The said Union is not in existence.
6. IInd party/management submits that Ist party/
workman was appointed in Category-I as par order
dated 11-8-92. He was promoted to the post of Electrical
Helper Category-II vide order dated 31.12.1986. that the
Cadre Scheme stipulates eligibility norms and promotion is
granted subject to availability of posts. Simply qualifying
the eligibility norms cannot be treated as a basis or right
for promotion unless and until the post is vacant as per
sanctioned manpower budget. In the DPC held in 1989
recommended the case of Shri Ravindra Tiwari was
typographical mistake. The promotion order dated 2-6-89
was therefore corrected. His name was erased. That Ist
party/workman was promoted to the post of Electrician
Cat.-IV w.e.f. 1-1-1992 and promoted to the post of Electrician
Cat.-V w.e.f. 1-7-1998. The workman was given notional
seniority in Cat.-V from 21-10-95. It is submitted the reference
in dispute is not tenable. All other allegations of Ist party/
workman are denied. IInd party/management prays for
rejection of claim of workman.
7. Considering pleadings on record, the points which
arise for my consideration and determination are as under.
My findings are recorded against each of them for the
reasons as below:—
(i) Whether the action of the
management of South Eastern
Coalfields Limited, Chirimiri Area
in not promoting Shri Ravindra
Tiwari as Electrician Grade-IV
w.e.f. 2-6-1989 is legal and
justified?
(ii) If not, what relief the workman
is entitled to?"
REASONS
8. In support of his claim, Ist party Shri Ravindra
Tiwari filed affidavit of his evidence at page 9/1 to 9/2
covering all the points. That he was appointed as Mazdoor
from 9-7-82. He was promoted to electrical Helper Category- II
w.e.f. 1-1-1987. The management issued circular
dated 7-4-1989 stipulating criteria for the post of Electrician
Cat.-IV. That his name was considered by DPC but his
name was delected in the promotion order dated 2-6-89,
junior employee Shri Seonarayan Yadav and Shri Sajan
Prasad Patel were promoted. He was discriminated. He was
promoted to the post of Electrician Cat.-IV w.e.f. 1-1-92, he
was promoted to Electrician Cagetory.-V w.e.f. 1-7-98.
9 Ist party/workman has produced documents Exhibit
W/6,7 & 8 to substantiate his evidence. In his cross-
examination, Ist party says that he is Secretary of Bhartiya
Mazdoor Sangh, MP. He knows about service condition of
employees in Coal Mines. As per NCWA and Cadre Scheme,
he was granted notional seniority from 1995 without wages.
That he has passed Higher Secondary Examination with
ITI Electrician at the time of his initial appointment in
Category-I. His evidence in cross-examination does not
show any ground for disbelieving his evidence.
10. The management submitted affidavit of evidence
of its witness Shri O.P. Tamrakar consistent with the
pleadings in the Written Statement filed by IInd Party. So
far as contention of IInd Party that the dispute of promotion
was settled in earlier dispute, any document are not
produced on record. The order of reference made by the
Govt. of India is not challenged. Therefore the contentions
of IInd Party that reference is not tenable cannot be
entertained. In his cross-examination, management's
witness has stated that he was member of DPC. The
members used to sign the proceedings of DPC. Such
proceeding is not produced on record. The witness of
management says that promotion order was issued by
Dy. GM for Cat.-II and marked as Exhibit M-2. he admits
that Shri Seonarayan Yadav and Shri Sajan Prasad Patel
were promoted. They were also promoted to Category-IV
as per document Exhibit M-3 & 4.
11. The Cadre Scheme Exhibit M-3 provides eligibility
for Electrician and not in dispute. There is also no dispute
about eligibility criteria by Ist Party for the said post.
Document M-1- appointment order of Ist party workman
dated 9-8-92 shows name of Ist Party appearing at Sl. No.
15. Document M-2 shows his name at Sl. No. 46 whereas
names of shri Seonarayan Yadav and Shri Sajan Prasad
Patel and appearing at Sl.No. 55 & 56. It is clear that they
are junior to Ist Party. Documents M/4 - Shri Seonarayan
Yadav and Shri Sajan Prasad Patel are promoted at Sl. No. 1
& 2 and name of Ist Party Shri Ravindra Tiwari appearing at
Sl. No. 5 is erased. As per evidence in cross-examination of
Ist party/workman is
entitled to promotion
to
the
post
of
Electrician Grade-IV
w.e.f. 2-6-89 and
monetary benefits.
In Negative
2578
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(3)
management's witness, proceeding of DPC is not produced.
Therefore reasons why Ist party Ravindra Tiwari was not
promoted are not established when Shri Seonarayan Yadav
and Shri Sajan Prasad Patel were junior to the Ist party
Ravindra Tiwari are promoted. the denial of promotion to
Ist party without cogent reasons is certainly a
discriminatory act done in colourable exercise of powers. It
cannot be sustained. As per document Exhibit M-5, Ist
party was promoted to Electrician Grade-IV from 1-1-92 he
was granted notional seniority on the post of electrician
Category V as per document Exhibit M-6 dated 12-4-99.
12. The subsequent promotions given to Ist party
cannot take away his right of promotion to the post of
Electrician Category-IV from the date junior employees
Shri Seonarayan Yadav and Shri Sajan Prasad Patel were
promoted. For above reasons, the action of management
denying promotion to Ist party is not legal. Accordingly I
record my finding on Point No. 1.
13. In the result, I pass following award—
"1.
The action of IInd party/managment denying
promotion to Ist party of Electrician Category
IV from 2-6-89 is illegal.
2.
IInd party is directed to promote Ist party to
the post of Electrician Grade-IV. w.e.f. 2-6-89
and to pay monetary benefits as per rules
within 30 days.
ubZ fnYyh] 18] ekpZ] 2013
dkñvkñ 880.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj cSad 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; ia.kth ds iapkV ¼lanHkZ la[;k vkbZ Vh
18@2004½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 18@03@2013
dks izkIr gqvk FkkA
[lañ ,y&12012@09@2004&vkbZñvkjñ¼ch&II½]
'kh'k jke] vuqHkkx vf/kdkjhs
New Delhi, The 18th March, 2013
S.O. 880.—In pursuance of Section 17 of the
Industrial Dispute Act, 1947, the Central Government
hereby publishes the Award (Ref. No. IT/18/2004) of the
Central Government Industrial Tribunal/Labour Court
PANAJI 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 18/03/2013
[No. L-12012/09/2004-IR(B-II)]
SHEESH RAM, Section Officer
ANNEXURE
IN THE INDUSTIAL TRIBUNAL AND LABOUR
COURT GOVERNMENT OF GOA AT PANAJI
(BEFORE SMT. BIMBA K. THALY, PRESIDING
OFFICER)
REF. NO. IT/18/2004
Shri Suresh G. Redkar,
H.No.101, Pedda Waddo,
Margao-Goa 403601
...
Workman/Party
V/s
Bank of India,
Zonal Office (Goa),
Dempo House,
Campal, Panaji.
...
Employer/Party II
Workman/Party I is represented by Adv. Shri.S.K. Manjrekar
Employer/Party II is represented by Adv. Shri P.J. Kamat.
AWARD
(Passed on 28th day 01 January, 2013)
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) (for short the
Act), the Central Government by order dated 31/5/04 bearing
No. L-12012/9/2004-1R(B-II) has referred the following
dispute for adjudication by this Tribunal.
"Whether the action of the management of Bank
of India in terminating the services of Shri Suresh
G. Redkar, sub staff w.e.f. 27/3/2003 is legal and
justified? If not, to what relief is the concerned
workman is entitled to?"
2. On receipt of the reference, a case was registered
under No. IT/ 18/04 and registered A.D. notices were issued
to the parties upon which Party I filed the claim statement
at Exb. 3 and Party II filed the written statement at Exb. 8.
Party I then filed the rejoinder at Exb. 9.
3. The case in short is that Party I was employed with
Party II as a Sepoy cum Hamal (sub staff) and was required
to do all such work as assigned to him from time to time.
One of the duties assigned to Party I was to collect cash
from the bank and make payment of electricity, telephone,
water bills etc. The Party I was issued a charge sheet
alleging that he had misappropriated an amount of Rs. 2730/
- which was given to him on 22/2/2002 towards payment of
electricity bill No. 494539 dated 12/2/02. It was also alleged
that Party I had temporarily misappropriated an amount of
Rs. 3229/- which was given to him on 23/10/01 for payment
of electricity bill No. 456709 dated 22/10/01, by making the
payment only on 7/11/2001. An enquiry in respect of the
said charges was conducted. The Party I had admitted the
charges leveled against him. The Enquiry Officer submitted
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2579
Server3/E/1250RR/1250RR(3)
his findings on 16/1/2003 holding the Party I guilty of the
charges leveled. Show cause notice was issued to Party I
on the proposed punishment. By order dated 27/3/03,
services of the Party I were terminated and the appeal filed
by Party I was also dismissed by the Appellate Authority.
4. In the claim statement Party I has denied having
committed any misconduct and has stated that the amount
of Rs. 3229/- received by him from the bank in October
towards the electricity bill dated 22/10/01 was not paid on
the same day as there was a long queue and subsequently
he remained busy with some other work. He has stated that
he paid the said amount on 7/11/01 and according to him
the delay in making payment was not intentional. He has
denied that he had temporarily misappropriated the said
amount. He has further stated that the amount of Rs. 2730/-
which was received by him on 22/2/02 towards payment of
electricaty bill dated 12/2/02, could not be paid on the same
day due to heavy rush and also because he had to perform
other duties. He has stated that on the next day while
coming to the bank he lost the bill as well as the cash of
Rs. 2730/-. The Party I has stated that he was unable to
repay the money due to his poor financial condition and
that he did not report the matter to the bank, out of fear. He
has stated that the bank had sought his explanation vide
letter dated 28/6/02 and he paid the entire amount with late
charges and interest on 11/7/02. He has stated that he
explained to the bank the circumstances under which the
amount had remained unpaid. He has stated that the bank
authorities had closed the matter being satisfied with the
explanation given. Party I has stated that on 18/10/02 he
was called to the Zonal Office Panaji and was told that his
statement was required for records and he was asked to
write and sign the statement as dictated by the officer of
the bank. He has stated that he was thereafter issued a
charge sheet, which was vague, ambiguous and belated.
He has stated that the charge sheet was based on the
settlement dated 10/04/02 and according to him as the
alleged misconduct was committed prior to the settlement,
he could not have been charged for the said misconduct
on the basis of the said settlement. Party I had challenged
the fairness of the enquiry.
5. In the written statement, it is the case of Party II
that Party I had committed acts specified in the charge
sheet which acts constitute misconduct under Bi-partite
settlements. Party II has stated that Party I did not give his
explanation to the charge sheet. Party II has stated that
Party I was represented in the enquiry by his representative
Shri. G.V. Wagle and that he and his representative had
fully participated in the enquiry. The Party II has stated
that the charges were explained to the Party I and that he
had admitted the charges voluntarily and unconditionally.
Party II has stated that the statement of the Party I was
recorded as per his say. The copy of the findings of the
Enquiry Officer was furnished to the Party 1 along with the
show cause notice on proposed punishment. The Party I
was given a personal hearing and on considering the
gravity of the misconduct, the services of the Party I were
terminated w.e.f. 27/3/03. Thus. Party II has stated that Party
I is not entitled to any relief.
6. Based on the pleadings of the parties, the
following issues were framed:—
1. Whether the Party I proves that the domestic
enquiry held against him is not fair and proper?
2. Whether the charges of misconduct are proved
to the satisfaction of the Tribunal by acceptable
evidence?
3. Whether the Party I proves that the action of the
Party II in terminating his services w.e.f. 27/3/03 is
illegal and unjustified?
4. Whether the Party I is entitled to any relief?
5. What Award?
7. Issue No.1 and 2 were treated as preliminary issues
and by order dated 8/12/08 issue No.1 was answered in the
negative and the issue No. 2 was answered in the positive.
8. In the course of evidence on issue No. 3, 4 and 5
Party I examined himself and closed the case. Party II did
not lead evidence on these issues.
9. Heard Lnd. Adv. Shri. S.K. Manjrekar for Party I
and Lnd. Adv. Shri. P.J. Kamat for Party II. Both the Lnd.
Advocates filed written submissions at Exb. 52 and Exb. 53
respectively.
10. I have gone through the records of the case and
have duly considered the arguments advanced. My findings
on the issue No. 3, 4 and 5 are as under:
Issue No. 3........... in the negative.
Issue No. 4........... in the negative.
Issue No. 5........... as per order below.
REASONS
11. Issue No. 3: In his arguments Lnd. Adv.
Shri. Manjrekar stated that Party I did not pay bill of
Rs. 2730/- in time but according to Party II a bill of
Rs. 11597/- was received by the bank on 24/6/02 and thus it
is evident that another two bills which were issued in
between were also not paid. He also stated that the total
arrears shown was Rs. 7503/- and even after adjusting
unpaid bill given to Party I there is difference of Rs. 4773/-.
According to him, subsequent two bills given to some
other messenger were also not paid but bank has not taken
action against those messengers. Thus, he stated that bank
has discriminated in the matter and has thereby victimized
Party I and therefore considering the above aspect
punishment imposed is disproportionate to the proved
misconduct.
2580
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(3)
12. Lnd. Advocate for Party I also stated that Party I
paid the amount of Rs. 2730/- of the lost bill and also paid
fine of Rs. 216/-. He stated that bank has considered the
said amount of electricity bill as temporary overdraft to
Party I and collected the interest per month for the period
from March to June, besides fine on the said amount. Thus,
according to him no loss has been caused to the bank and
that Party I should not have been punished once again by
way of termination of services for the same offence.
13. On the other hand Lnd. Adv. Shri. P. J. Kamat
stated that honesty in financial institution is a prime factor
and misappropriation of money causes loss to the
institution and the institution in turn looses confidence in
the employee. He also stated that no sympathy could not
be shown to the employee who is involved in the
misappropriation of the amount, in a financial institution.
14. I do not find force in the submissions advanced
by Lnd. Advocate for Party I on the subject of
discrimination by the bank and this is because, the same is
obviously not a ground to be considered while deciding
the quantum of punishment. It may be mentioned here that
each case has to be decided on the basis of the facts of the
said case so also the evidence brought on record to
establish those facts and therefore the concept of so-called
discrimination on the part of the bank cannot be looked
into while deciding this issue. That apart, payment of
penalty and interest to the bank, by itself cannot, undo the
acts of misappropriation committed by Party I as the bank
has recovered the same as per its procedure. Thus, these
aspects cannot weigh in favour of Party I to say that the
punishment imposed is disproportionate to the proved
misconduct.
15. Lnd. Advocate for Party I relied on the judgment
in the case of Ravindra N. Chaudhari v/s. Zonal Manager,
IDBI Bank Ltd. 2012 LLR 1267 in which the workman who
had misappropriated the money on temporary basis was
terminated from services and upon he raising an industrial
dispute he was granted reinstatement without back wages.
The workman filed writ petition demanding reinstatement
with full back wages and continuity of service and it has
been held that the reinstatement should not be always
followed by back wages in every case. In this case, no
evidence was led by the bank to show that concerned
workman had fabricated the record as alleged and he
was guilty of misappropriation. Contrary to this, in the
instant case the workman had admitted in his statement
dated 18/10/02 (Exb. 24), Appeal Memo dated 21.4.03
(Exb. 29) and in his plea that he had appropriated the said
amount to his personal use and therefore the observations
in the above case are not applicable to the case in hand.
16. On the other hand Lnd. Advocate for Party II
relied on the judgment in the case of Janatha Bazar v/s.
The Secretary, Sahakari Noukarara Sangha 2000(87) FLR
483 the observations in which indicate that once the act of
misappropriation is proved, may be for a small or large
amount, there is no question of showing uncalled for
sympathy and reinstating the employee in service. It is
also held in this judgment that in case of proved
misappropriation, there is no question of considering past
record and it is the discretion of the employer, to consider
the same in appropriate cases, but the Labour Court cannot
substitute the penalty imposed by the employer in such
cases.
17. Lnd. Advocate for Party II also relied on the
judgment in the case of Divisional Controller, M.S.R.T.C.,
Division Office, Buldana v/s. Pramod Onkarao Deshmukh
2007 ICLR 271 in which the respondent who was a bus
conductor in appellant corporation was found to have
collected ticket fare from three passengers without issuing
tickets to them and as such he was dismissed from service
and upon challenge, Labour Court held termination to be
proper but the Industrial Court found the punishment, to
be shockingly disproportionate and directed his
reinstatement. The writ petition filed by the appellant was
dismissed but in writ appeal it was held that there was
absolutely no material on record to hold that the punishment
which was imposed upon the respondent was shockingly
disproportionate to the proved misconduct. It is observed
in this judgment that the misconduct being related to the
misappropriation of money and resultant loss of confidence
in the respondent by the management of the corporation,
the punishment, could not have been said to be
disproportionate to the proved misconduct.
18. In the instant case vide order dated 8/12/08 it is
held that the material on record amply proves that an amount
of Rs. 2730/- was given to Party I on 23/10/01 for payment
of electricity bill so also that the statement at Exb. 24, the
appeal memo at Exb. 29 and the plea of the Party I indicates
that the Party I had appropriated the said amount to his
personal use. It is also held that Party I had paid the bill of
Rs. 2730/- only on 11/7/02 after receipt of show cause notice
where as the amount of Rs. 3229/- was paid after a period of
15 days. It is further held that there was thus
misappropriation/temporary misappropriation of the
amount, which was given to the Party I for payment of
bills. It is further observed that such acts are certainly
prejudicial to the interest of the bank and constitute
misconduct under clause 5(j) of the Bipartite settlement.
19. In the light of above observations viz-a-viz the
ratios culled out in the judgments in the cases of Janatha
Bazar and Pramod 0. Deshmukh (both cited supra) the
punishment imposed on the Party I herein cannot be said
to be shockingly disproportionate to the proved
misconduct.
20. Be that as it may, in his arguments Lnd. Advocate
for Party I invited my attention to the practice which was
prevailing at Quepem branch of the bank which was to
handover the cash and bills to the messenger who used to
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2581
Server3/E/1250RR/1250RR(3)
pay those bills on the same day or on the subsequent day
as and when he got time and if not paid on that day the
cash handed over to him was not to be re-deposited and
that from 17/7/03 the bank had started the procedure of
making payment by way of pay order or demand draft. He
also stated that he had tried to seek the required information
on the above subject from the Public Information Officer of
the Bank and upon their refusal, from the Appellate
Authority who informed him that the branch has started
payment by demand draft w.e.f. 17/7/03. It is his contention
that the above documents would prove the innocence of
Party I as, Party I has been unnecessarily punished for the
faulty procedure, which was being followed by the bank. It
may be mentioned here that, Party I has not produced any
documentary evidence on the above subject and even for
that matter since vide order dated 8/12/08 it is held that the
charges of misconduct are proved to the satisfaction of
the Tribunal by acceptable evidence, it is now not open to
Party I to re-agitate this issue by saying that those
documents, if furnished to him, would prove his innocence.
21. Be that as it may, Party I has been held guilty of
misconduct under clause 5(j) of the settlement dated
10/4/02 (Exb. 38). clasue 6 of Exb. 38 provides that an
employee found guilty of gross misconduct may:
(a) be dismissed without notice; or
(b) be removed from services with superannuation
benefits i.e. Pension and/or Provident Fund and
Gratuity as would be due otherwise under the
Rules or Regulations prevailing at the relevant
time and without disqualification for further
employment; or
(c) be compulsorily retired with superannuation
benefits i.e. Pension and/or Provident Fund and
Gratuity as would be due otherwise under the
Rules or Regulations prevailing at the relevant
time and without disqualification from future
employment; or
(d) be discharged from service with superannuation
benefits i.e. Pension and/or Provident Fund and
Gratuity as would be due otherwise under the
Rules or Regulations prevailing at the relevant
time and without disqualification from future
employment; or
(e) be brought down to lower stage in the scale of
pay up to a minimum of two stages; or
(f) have his increments stopped with or without
cumulative effect; or
(g) have his special pay withdrawn; or
(h) be warned or censured, or have an adverse
remark entered against him; or
(i) be fined.
22. The punishment awarded in this case is of removal
from service with superannuation benefits i.e. Pension and/
or Provident Fund and Gratuity without disqualifying the
Party I from future employment and therefore it is clear that
compared to the acts or proved misconducts committed by
the Party I, the punishment is not shockingly
disproportionate. Thus, I find no force in the submissions
of Lnd. Advocate for Party I that punishment imposed on
the Party I is illegal, unjustified and bad in law. Hence my
findings.
23. Issue No. 4: In view of discussion supra, Party I
is not entitled to any relief.
24. In the result, I pass the following
ORDER
1. It is hereby held that the action of the management
of Bank of India in terminating the services of
Shri. Suresh G. Redkar, sub staff w.e.f. 27/3/2003,
is legal and justified.
2. The Party I Shri. Suresh G. Redkar is therefore not
entitled to any relief.
3. No order as to costs.
Inform the Government accordingly.
Place: Panaji.
B.K. Thaly, Presiding Officer
Dated: 28/1/2013
ubZ fnYyh] 18 ekpZ 2013
dkñvkñ 881.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ¯lMhdsV cSad 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; 1] fnYyh ds iapkV ¼lanHkZ la[;k vkbZñMh
uañ 268@2011½ dks izdkf'kr djrh gS] tks dasnzh; ljdkj dks
18@03@2013 dks izkIr gqvk FkkA
[lañ ,y&12012@185@2002&vkbZ vkj ¼ch&II½
'kh'k jke] vuqHkkx vf/kdkjh
New Delhi, the 18th March, 2013
S.O. 881.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947, the Central Government
hereby publishes the award (I.D. No. 268/2011) of the
Central Government Industrial Tribunal/Labour Court-I,
New Delhi now as shown in the Annexure in the Industrial
Dispute between the employers in relation to the
management of SYNDICATE BANK and their workman,
which was received by the Central Government on
18/03/2013.
[No. L-12012/185/2002-IR(B-II½
SHEESH RAM, Section Officer
2582
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(3)
ANNEXURE
BEFORE DR. R.K. YADAV, PRESIDING
OFFICER, CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL NO.1,
KARKARDOOMA COURTS
COMPLEX, DELHI
I. D. No.268/2011
Shri Virender Singh,
121-B, Bank Colony,
Vill. Mandoli,
Delhi — 110093.
Workman...
Versus
The Asst. General Manager,
Syndicate Bank,
Sarojini House,
6-Bhagwan Dass Road,
New Delhi-110001.
Management...
AWARD
A clerk posted at Chandni Chowk branch, Syndicate
Bank (in short the bank) was served with a charge sheet,
since he resorted to excessive borrowings beyond his
repaying capacity,from the bank as well as outside agencies,
stood co-obligant to loans availed by other employees
from co-operative societies without prior permission from
the competent authority and availed loans from a co-
operative society by way of submission of false/forged
documents and when it came to light, he abruptly closed
that account, obtained documents, in original, from the
society and destroyed the same to conceal his fraudulent
act. He did not submit reply to the charge sheet. A domestic
enquiry was constituted against him. The Disciplinary
Authority concurred with the report of the Enquiry Officer
and awarded punishment of compulsory retirement from
service. His appeal also came to be dismissed. Aggrieved
by the act of the bank, the clerk raised an industrial dispute
before the Conciliation Officer. Since his claim was
contested by the bank, conciliation proceedings ended
into a failure. On consideration of failure report, submitted
by the Conciliation Officer, the appropriate Government
referred the dispute to this Tribunal for adjudication, vide
order No.L-12012/185/2002-IR(B-II), New Delhi dated
25.03.2003 with following terms:
"Whether action of the management of Syndicate
Bank in terminating service of Shri Virender Singh,
ex-clerk, employee No.449755 (through
compulsory retirement from service) with effect
from 05.03.2010 is just, fair and legal? If not, what
relief the concerned workman is entitled to and
from which date?"
2. Claim statement was filed by the clerk, namely,
Shri Virender Singh, pleading therein that charge sheet was
served upon him levelling allegations of excessive
borrowings from outside agencies and submission of some
false documents. Subsequently, a departmental enquiry was
conducted wherein employer submitted a document, which
was simply an office note. No reasonable opportunity was
given to him to cross examine author of that document. Other
vital documents, relating to the charge, were not allowed to
be dispelled by way of examination of their authors. No
ocular or documentary evidence was placed on record to
establish that he submitted false documents to outside
agencies to procure loan and later on adjusted the loan and
destroyed those documents.
3. He asserts that the bank had denied legitimate
financial help to him like demand loan and festival advance,
even in event of the immediate marriage of his sister. He
was compelled by his employer to borrow money from
outside sources. The bank had failed to prove that loans
taken by him from outside agencies, were beyond his
repaying powers. He had not indulged in excessive
borrowings from outside agencies. He obtained loan for
the marriage of his sister. When that loan was obtained, he
was drawing a sum of Rs.12,000.00 per month as his wages.
The bank had issued no circular to bar an employee to
procure loan from outside agencies. Even otherwise,
procuring loans from outside agencies amounts to minor
misconduct. According to him, he was entitled to avail
loan facilities like housing loan, demand loan, vehicle loan,
festival loan, PF Loan and Thrift and Credit Society loans,
medical advance for his heart surgery, leave travel and
leave encashment advance and additional housing loan,
totalling to Rs.16 lakh as per his service conditions. The
bank had illegally refused to provide these financial facilities
to him and as such he was compelled to procure small
amount of loans from outside thrift and credit societies,
which loans were within his repaying capacity.
4. He agitates that he was wrongly charge sheeted
for grave misconduct of doing acts prejudicial to the
interest of the bank. Since he had already repaid the loans,
no loss was caused to the bank. No dues certificate was
produced by him even prior to passing of final order of
punishment. The Disciplinary Authority implemented order
dated 05.03.2001 without waiting for the order of the
Appellate Authority. He claims that orders passed by the
Disciplinary Authority as well as the Appellate Authority
may be declared illegal and he may be reinstated in service
of the bank, with continuity, full back wages and all
consequential benefits.
5. Claim was demurred by the bank pleading that the
claimant resorted to excessive borrowing beyond his
repaying capacity from the bank as well as outside agencies.
He stood co-obligant to loans availed by other employees
from co-operative societies without obtaining prior
permission from the competent authority. He concealed
his direct and indirect liabilities, while availing loans from
the bank under staff loan schemes. He availed loan of Rs.1
lakh from Gharonda Nationalized Bank Employees Salary
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2583
Server3/E/1250RR/1250RR(3)
Earners Co-operative Thrift and Credit Society, Karnal, by
submitting false/forged documents. When matter came to
light, he arranged closure of the said loan abruptly,
obtained documents from the said society and destroyed
it to conceal his fraudulent acts. Charge sheet was served
upon the claimant, to which he opted not to submit reply. A
domestic enquiry was constituted. Enquiry Officer
conducted enquiry on several dates by giving fair and
reasonable opportunities to defend his case. Enquiry was
in consonance with principles of natural justice. Enquiry
Officer submitted his report dated 30.12.2000, wherein he
concluded that charges levelled against him stood proved.
Copy of the enquiry report was submitted, to which he had
not offered his comments. The Disciplinary Authority
proposed punishment of retirement from service. Personal
hearing was given to the claimant and punishment of
compulsory retirement from service was awarded vide order
dated 05.03.2001. The Appellate Authority also gave
personal hearing to the claimant, who found no substance
in his appeal. His appeal was dismissed vide order dated
22.06.2001.
6. The bank disputes that legitimate financial help
was denied to him. He had already availed most of loan
facilities available from the bank, such as demand loan,
vehicle loan, secured overdraft, housing loan, additional
housing loan etc. He borrowed heavily from outside
agencies apart from availing loans from the bank, beyond
his repaying capacity. Societies were forced to initiate
recovery steps against him. Attachment orders were also
obtained by the societies against the claimant. He issued
various cheques, out of which 18 cheques were returned
unpaid from September 1999 to April 2000. Those cheques
were returned unpaid, since he had availed loans beyond
his repaying capacity. His acts not only tarnished image of
the bank but he dragged the bank into avoidable litigation.
He also resorted to submission of false and forged
documents for availing loans from Gharonda Nationalized
Bank Employees Salary Earners Co-operative Thrift and
Credit Society, Karnal. His acts were highly detrimental to
the image, reputation and standing of the bank. It is wrong
to assert that he had committed minor misconduct.
Misconduct committed by him was a grave one. It does
not lie in the mouth of the claimant to project that no
prejudice was caused to the interest of the bank, since no
financial loss was there.
7. The bank asserts that order dated 05.03.2001
commensurate to his misconduct. Being a public sector
financial institution, the bank deals with public money. An
employee, who has lost integrity and honesty, cannot
continue in service. If such an employee is allowed to
continue in service, it would cause high prejudice to the
interest of the bank, since public will lose faith and
confidence in banking system. Image of the institution
would seriously be affected if such an employee is kept on
rolls of the bank. A banking company needs absolute
devotion, diligence, integrity and honesty from its
employees. It is wrong to allege that the Disciplinary
Authority implemented its order without waiting for the
orders of Appellate Authority. Once a punishment is
awarded to an employee, it becomes operative without
awaiting orders of the Appellate Authority. There is no
case in favour of the claimant for his reinstatement in service
with continuity full back wages and all consequential
benefits.
8. In rejoinder, claimant reiterates facts pleaded in
the claim statement.
9. On pleadings of the parties, following issues were
settled:
(i)
Whether the enquiry is fair and proper ?
(ii)
As in terms of reference.
10 Vide order No.Z/22019/6/2007-IR(C-II), New Delhi
dated 11.02.2008, case was transferred to Central
Government Industrial Tribunal No.II, New Delhi, for
adjudication by the appropriate Government. It was
retransferred to this Tribunal for adjudication vide order
No.Z-22019/6/2007-IR(B-II), New Delhi dated 30.03.2011 by
the appropriate Government.
11. On consideration of facts testified by the claimant
and those detailed by Shri T.R. Rajagopalan, preliminary
issue was answered in favour of the claimant and against
the bank, vide order dated 06.09.2011.
12.To prove misconduct, the bank examined
Shri Ashok Kumar and Shri M.P. Vishwanathan in the case.
Claimant entered the witness box again to rebut facts
unfolded by the aforesaid two witnesses. No other witness
was examined by either of the parties.
13. Arguments were heard at the bar. Shri Rajesh
Mahindru, authorized representative, advanced arguments
on behalf of the bank. Shri Harish Sharma, authorised
representative, presented case on behalf of the claimant.
Written submissions were also filed by the claimant. I have
given my careful consideration to the arguments advanced
at the bar and cautiously perused the record. My findings
on issues involved in the controversy are as follows:—
Issue No. 2
14. Shri Ashok Kumar unfolds in his affidavit
Ex.MW2/A, tendered as evidence, that charge sheet
Ex.MW2/1 was served on the claimant. While working as
clerk at Chandni Chowk branch of the bank, he maintained
Saving Bank Account No.526, which was subsequently
renumbered as 70256. He also maintained Staff Overdraft
Account No.72/98. He issued cheques drawn on these
accounts, without maintaining sufficient balance to meet
proceeds of those cheques. He issued four cheques
amounting to Rs.70536.20 drawn on saving bank account.
He had also issued 14 cheques aggregating to Rs.37527.00
2584
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(3)
drawn on his overdraft account, which cheques were
returned unpaid for want of balance. Details of those
cheques are mentioned in Ex.MW1/2 and Ex.MW1/7
respectively. Three cheques for an amount of Rs.17500.00,
drawn on overdraft account, were presented more than
once and returned unpaid for want of balance. Details of
these cheques are mentioned in Ex.MW2/4. Copy of
statements of saving bank account and overdraft account
are Ex.MW2/4 and Ex.MW2/5 respectively. Copy of cheque
and draft return register is Ex.MW2/7. Letter dated
06.09.1999, which is Ex.MW2/8, was issued to the claimant,
which was replied by him on 07.09.1999. Copy of the said
reply is Ex.MW2/9. Vide letter Ex.MW2/10, matter relating
to issuance of cheques without maintaining balance was
reported to the Zonal Office. Claimant failed to follow
guidelines of the bank, issued as per circular No.80/88/BC
and 90/94/BC.
15.He narrates that the claimant had taken advance
of Rs.80,000.00 from demand loan account No.38/98, a sum
of Rs.22,960.00 from OSL account No.7/98, Rs.9000.00 from
overdraft account No.7298, Rs.172533.00 towards Housing
Loan and a sum of Rs.90,000.00 as additional housing loan
from the bank. He also took a loan of Rs.35,000.00 from
M/s Sweekar Finance Pvt. Ltd. and Rs.10,000.00 from
Shri Avish Nagpal. He had an outstanding balance of
Rs.13,810.00 towards Mittal Engineering Corporation, a sum
of Rs.40,000.00 towards Delhi Co-operative Thrift and
Credit Society, Rs.50,000.00 towards National Bank
Employees Co-operative (NA) Thrift and Credit Society,
Rs.50,000.00 towards Jwala Co-operative Urban Thrift and
Credit Society and Rs.1 lakh towards Gharonda
Nationalized Bank Employees Salary Earners Co-operative
Thrift and Credit Society, Kernal, as per information received
from them. Details of his borrowings from outside agencies
and outstanding liabilities are enlisted in Ex.MW2/11. It
was observed that he borrowed beyond his capacity to
repay, since he defaulted in repaying dues to certain lenders.
Details of his defaults are mentioned in Ex.MW2/12. Some
of the societies have addressed letters dated 23.02.2000,
22.01.1999, 17.05.2000, 05.06.2000, 18.02.1999, 07.06.1999,
26.04.1998, 30.06.2000 and 28.06.2000 to the bank. These
letters are Ex.MW2/13 to Ex.MW2/15 and Ex.MW2/17 to
Ex.MW2/23. Attachment orders were issued by the
Assistant Collector, Co-operative Societies, which orders
are Ex.MW2/16.
16. On 22.06.1998, he submitted application for
availing loan from Asaf Ali Road branch of the bank,
wherein he did not mention his direct and indirect liability
from outside agencies. He concealed facts relating to
borrowings from outside agencies, while taking loan from
the bank. Copy of loan application and estimate of amount
to be spent on kaan chedan ceremony of his daughter are
Ex.MW2/24 and Ex.MW2/25 respectively. He also stood
surety for loans, availed by Shri S.P.S. Sandhu and Shri Net
Ram and executed surety bonds which are Ex.MW2/26 and
Ex.MW2/27 respectively. He had not obtained permission
from the competent authority when he became a co-obligant
for aforesaid employees. He had also not reported these
facts to the bank and acted against guidelines issued in
that regard.
17. Shri Ashok Kumar declares that the claimant
deposited DD No.L 74035 dated 23.05.2000 for a sum of
Rs.49,000.00 issued by State Bank of Patiala, Karnal, in
favour of the manager of the bank, to be credited to salary
account No.70526 maintained by him at Chandni Chowk
branch of the bank. Copy of draft and pay in slip are
Ex.MW2/28 and Ex.MW2/29 respectively. He also
deposited DD No.L 40775 issued by State Bank of Patiala
in favour of the manager of the bank to be credited to
salary account No.70526 maintained by him with Chandni
Chowk branch of the bank. Copy of demand draft and pay
in slip are Ex.MW2/20 and Ex.MW2/31 respectively. Above
demand drafts were proceeds of the loan, taken by him
from Gharonda Nationalized Bank Employees Salary Earners
Co-operative Thrift and Credit Societies, Karnal. Since the
bank had neither forwarded any application for taking loan
by the claimant, nor gave any no objection certificate in
that regard, it called for details of demand drafts from the
claimant, vide letter dated 24.05.2000. In his reply dated
13.06.2000, which is Ex.MW2/32, the claimant disclosed
that he had obtained loan from the aforesaid society. The
bank sought verification of details from the society, vide
letter dated 16.06.2000. Society informed the bank, vide its
letter dated 27.06.2000 that the claimant had availed loan
on 29.05.2000 and had adjusted that loan in full and final
settlement and nothing was outstanding from him. The
society had requested for return of demand drafts
purchased by them against loan proceeds availed by the
claimant. Reasons of request for return of the drafts to the
society were not mentioned in the letter, copy of which is
Ex.MW2/33. The claimant also requested the bank for return
of those drafts, vide his letter dated 30.06.2000. Letter written
by the claimant and the one written by the society are
Ex.MW2/39 and Ex.MW2/40 respectively.
18. The witness announces that the claimant availed
sick leave from 22.06.2000 to 27.06.2000. His leave
application and medical certificates are Ex.MW2/34 to
Ex.MW2/38. On 26.06.2000, Shri M.P. Vishwanathan, Deputy
Chief Officer, was deputed to visit the society for
verification of documents/loan application, submitted by
the claimant for raising loan. Vide his office note dated
01.07.2000, Shri Vishwanathan reported that he visited
office of the society and verified documents/loan
application, submitted by the claimant. Shri Vishwanathan
reported that the claimant executed loan application in blank,
over which bank seal was affixed on two pages of the
documents with signature No.9554B written below the
signatures. The said number was allotted to him(witness),
when he was posted at Chandni Chowk branch of the bank.
He wrote letter Ex.MW2/43 and denied that he had signed
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2585
Server3/E/1250RR/1250RR(3)
those documents on behalf of the bank or in his personal
capacity.
19. Shri Ashok Kumar details that the claimant, vide
letter dated 16.08.2000,informed the bank that the
documents collected by him from the society were lost,
copy of which letter is Ex.MW2/41. These facts project
that the claimant submitted non-genuine letter/undertaking
on behalf of the bank for availing loan from the aforesaid
society. He preferred to adjust the loan in a hurry, while
being on sick leave, without actually receiving the loan
proceeds. These facts indicate that it was so done with a
view to hide facts which go to establish that he had
submitted non-genuine documents/letters containing his
forged signatures. To conceal his fraudulent acts, he
hurriedly closed the loan, received original documents from
the society and destroyed it. Claimant prepared false
documents in the name of the bank, affixed seal of the
bank, forged his signatures(witness) and availed loan from
the society.
20. Shri M.P. Vishwanathan details in affidavit
Ex.MW3/A, tendered as evidence, that at the relevant time,
he was working as Deputy Chief Officer(Vigilance), New
Delhi. At the instructions of the Chief Vigilance Officer, he
visited office of the Gharonda Nationalized Bank Employees
Salary Earners Co-operative Thrift and Credit Society,
Karnal, located at Kothi No. 1344, Sector 9, Urban Estate,
Karnal, on 26.06.2000. He met Shri Komal Prakash, President
of the society, who showed documents and loan application
submitted by the claimant, for availing loan. Loan
application was executed in bank. Seal of the bank was
affixed on two pages of the document with signature and
number 9554B written beneath the signatures. Shri Komal
Prakash told him that the claimant had availed loan of Rs.1
lakh. He requested Shri Komal Prakash to supply certified
copies of those documents, who told him that the
documents would be sent to the bank by post, after
consulting the Secretary of the Society. He again visited
the office of the Society on 28.06.2000 for collection of
photocopy of documents, after telephonic discussions
with the Secretary of the Society. When he reached the
office of the Society on 28.06.2000, Shri Rathore, Secretary
of the Society, informed him that the claimant has closed
his account on 27.06.2000. Documents were handed over
to the claimant. Shri Rathore issued letter dated 27.06.2000
in that regard, which is Ex.MW2/40. He prepared his note
narrating the whole incident, which note is Ex.MW2/42.
21. In his affidavit Ex.WW1/B, tendered as evidence,
the claimant details that the entire action of the bank is
based on prejudice and bias qua him. The bank did not
care to see before start of the enquiry that he had already
cleared his dues. His request for renewal of demand loan
was rejected by the bank in October 1999. For other
employees, such facilities were renewed in routine. He
asserts that details of dishonoured cheques are irrelevant
since payees of those cheques had not initiated any action,
when cheques were dishonoured. He had issued cheques
in hope of getting his demand loan renewed. Refusal of
renewal of demand loan resulted into dishonour of those
cheques. The bank had not suffered any loss on account
of return of those cheques as unpaid. He deposited two
drafts in his SB account, which were withheld without any
intimation and assigning any reason. There was no valid
reason withholding credit of those drafts, except to show
him in very bad shape. On one hand, he has been shown as
a person who resorted to excessive borrowings and failed
to honour his cheques and on the other his two demand
drafts were withheld with a view to victimise him.
22. He details that documents received by him from
Gharonda Nationalized Bank Employees Salary Earners
Co-operative Thrift and Credit Society, Karnal, were lost in
a crowded bus. He informed the bank in that regard and
lodged a report with the police. There was no reason for
the bank to disbelieve his submissions in that regard. Those
documents were proof of repayment of his debt. He would
not destroy them to his own peril. He does not dispute that
he became co-obligant to loans of two employees. However,
he projects that a number of employees like him have stood
co-obligant for loans taken by other employees. When
penalty was proposed, the Disciplinary Authority failed to
consider his representation dated 29.01.2001. His appeal
was also dismissed, without considering the entire record.
During course of cross examination, he concedes that he
availed loan facilities from the bank. He also admits that he
took loan of Rs.35,000.00 from Sweekar Finance Pvt. Ltd.
and loan of Rs.10,000.00 from Shri Avish Nagpal, which
loans were taken in 1988. Loan of Rs.40,000.00 was taken
from Mittal Engineering Corporation in 1997. Loan of
Rs.40000.00 was taken from the Delhi Co-operative Thrift
and Credit Society in 1997. Loan of Rs.25000.00 was
obtained from Green Co-operative Thrift and Credit Society
in 1996. He borrowed Rs.50000.00 from Nationalized Bank
Employees Co-operative (NA) Thrift and Credit Society in
1999. A sum of Rs.50,000.00 was borrowed from Jwala Co-
operative Urban Thrift and Credit Society in February 1996.
He also availed loan of Rs.48000.00 from Delhi Nagrik Sehkar
Bank in 1986. A sum of Rs.7800.00 was his liability towards
Hissar District Bank Urban Salary Earners Thrift and Credit
Society in 1998. He admits that all above loans were pending
against him in 1998.
23. When facts unfolded by Shri Ashok Kumar,
Shri M.P. Vishwanathan and those detailed by the claimant
are appreciated, it came to light that the claimant resorted
to borrowings from various outside agencies without
permission of the competent authority. He does not feel
shy in admitting his liabilities. On the other hand, he raises
an accusing finger on the bank alleging that his demand
loan facility was not renewed, which led to a situation that
cheques issued for repayment were dishonoured. He
attacks the bank agitating that his demand drafts were
2586
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(3)
withheld intentionally without any intimation to him and
justification in that regard. According to him, the bank had
not suffered any loss when he resorted to outside
borrowings and issued cheques, which were dishonoured.
It has also not been disputed that when he failed to make
repayment of loan amounts to the societies, they wrote to
the bank requesting repayment of amounts. He does not
dispute letters Ex.MW2/13 to Ex.MW2/23, written by those
societies to the bank requesting for repayment of loan
amounts.
24. Whether his conduct in that regard amounts to
misconduct? For an answer to this proposition, it is
expedient to note disciplinary powers available to the bank.
Shastri Award enlists gross misconduct and minor
misconduct, in respect of which disciplinary action may be
taken against an employee. In para 521 (4) it defines gross
misconduct as following acts and omissions on the part of
an employee:
"(4) By the expression "gross misconduct" shall
be meant any of the following acts and omissions
on the part of an employee;
(a) engaging in any trade or business outside
the scope of his duties except with the
permission of the bank;
(b) unauthorized disclosure of information
regarding the affairs of the bank or any of its
customers or any other person connected
with the business of the bank which is
confidential or the disclosure of which is likely
to be prejudicial to the interests of the bank;
(c) drunkenness or riotous or disorderly or
indecent behavior on the premises of the
bank;
(d) willful damage or attempt to cause damage to
the property of the bank or any of its
customers;
(e) willful insubordination or disobedience of
any lawful and reasonable order of the
management or of a superior;
(f) habitual doing of any act which amounts to
"minor misconduct" as defined below,
"habitual" meaning a course of action taken
or persisted in notwithstanding that at least
on three previous occasions censure or
warnings have been administered or an
adverse remark has been entered against him;
(g) wilful slowing down in performance of work;
(h) gambling or betting on the premises of the
bank;
(i) speculation in stocks, shares, securities or
any commodity, whether of his account
account or that of any other persons;
(j) doing any act prejudicial to the interests of
the bank, or gross negligence or negligence
involving or likely to involve the bank in
serious loss;
(k) giving or taking a bribe or illegal gratification
from a customer or an employee of the bank;
(I) abetment or instigation of any of the acts or
omissions above mentioned".
25. In para 521(5) penalties which may be imposed
for gross misconduct have been detailed, which are
extracted thus:
"(5) An employee found guilty of gross
misconduct may:
(a) be dismissed without notice, or
(b) be warned or censured, or have an adverse
remark entered against him, or
(c) be fined, or
(d) have his increment stopped, or
(e) have his misconduct condoned and be merely
discharged.
26. Minor misconduct shall mean any of the following
acts and omission on the part of an employee, as obtained
in para 521 (6) of the Shastri Award:
"(6) By the expression "minor misconduct" shall
be meant any of the following acts and omissions
on the part of an employee;
(a) absence without leave or overstaying
sanctioned leave without sufficient grounds;
(b) unpunctual or irregular attendance;
(c) neglect of work, negligence in performing
duties;
(d) breach of any rule of business of the bank or
instruction for the running of any department;
(e) committing nuisance on the premises of the
bank;
(f) entering or leaving the premises of the bank
except by an entrance provided for the
purpose;
(g) attempt to collect or collecting monies within
the premises of the bank without the previous
permission of the management or except as
allowed by any rule or law for the time being
in force;
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2587
Server3/E/1250RR/1250RR(3)
(h) holding or attempting to hold or attending
any meeting on the premises of the bank
without the previous permission of the
management or except in accordance with the
provisions of any rule or law for the time being
in force;
(i) canvassing for union membership or
collection of union dues or subscriptions
within the premises of the bank without the
previous permission of the management or
except in accordance with the provisions of
any rule or law for the time being in force;
(j) failing to show proper consideration, courtesy
or attention towards officers, customers or
other employees of the bank; unseemly or
unsatisfactory behavior while on duty;
(k) marked disregard of ordinary requirements
of decency and cleanliness in person or
dress;
(l) incurring debts to an extent considered by
the management as excessive;"
27.Punishment which may be awarded for minor
misconduct have been maintained in para 521(7) of the
said award, which are extracted thus:
"(7) An employee found guilty of minor
misconduct may:
(a) be warned or censured ; or
(b) have an adverse remark entered against him;
or
(c) have his increment stopped for a period not
longer than six months".
28. In para 18.28, Desai Award makes it clear that
procedure laid down by Shastri Tribunal "for termination
of employment and taking other disciplinary action" in
paragraphs 520 and 521 and in paragraphs 518 and 519 to
the extent quoted above, subject to the modification
indicated shall remain the same.
29. In bipartite settlement dated 19th October, 1996,
commonly known as 1st bipartite settlement, no change
was made either in the misconducts described as gross
misconduct or minor misconduct, besides penalties
provided for the same. In para 19.9 it was mentioned that a
workman found guilty of a misconduct, whether gross or
minor, shall not be given more than one punishment in
respect of any one charge. In settlement dated 22.11.79,
punishments provided for gross-misconduct were
supplemented with following punishments, besides those
already provided:
(a) have his special allowance withdrawn, or
(b) have his pay reduced to the next lower stage up
to a maximum period of two years, in case he
had reached the maximum in the scale of pay.
30. In sixth bipartite settlement dated 14.2.95 following
sub clauses were added under the head "gross
misconduct", defined in 1st bipartite settlement and Shastri
Award:
(p) remaining unauthorisedly absent without
intimation continuously for a period exceeding 30 days;
(q) misbehaviour towards customers arising out of
bank's business;
(r) contesting election for Parliament/Legislative
Assembly/Legislative Council/local bodies/municipal
corporation/ panchayat, without explicit written permission
of the bank;
31. Following clauses were also added under "minor
misconduct" defined in 1st bipartite settlement and Shastri
Award:
(n) refusal to attend training programmes without
assigning sufficient and valid reason.
(o) not wearing while on duty, identity card issued
by the bank.
32. Punishments, provided for gross misconduct by
Shastri Award and 1st settlement were substituted by sixth
bipartite settlement. In para 21 (4) following Punishments
were provided for gross misconduct.
(a) be dismissed without notice; or
(b) be removed from service with superannuation
benefits i.e. Pension and/or Provident Fund and
Gratuity as would be due otherwise under the
Rules or Regulations prevailing at the relevant
time and without disqualification from future
employment ; or
(c) be compulsorily retired with superannuation
benefits i.e. Pension and/or Provident Fund and
Gratuity as would be due otherwise under the
Rules or Regulations preailing at the relevant
time and without disqualification from future
employment ; or
(d) be discharged from service with superannuation
benefits i.e. Pension and/or Provident Fund and
Gratuity as would be due otherwise under the
Rules or Regulations prevailing at the relevant
time and without disqualification from future
employment ; or
(e) be brought down to lower stage in the scale of
pay up to a maximum of two stages; or
(f) have his increment/s stopped with or without
cumulative effect; or
2588
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(3)
(g) have his special pay withdrawn; or
(h) be warned or censured, or have an adverse
remark entered against him; or be find.
33. As projected above, incurring debts to an extent
considered by the management as excessive was coined
as a minor misconduct by the Shastry Award. 6th Bipartite
Settlement dated 14.02.1995 added some clauses under the
head gross misconduct as well as minor misconduct, leaving
misconduct of incurring debts to the extent considered by
the bank as excessive unchanged. Therefore, it is apparent
that if an employee incurs debts to an extent considered by
the bank as excessive, it is a minor misconduct. Question
for consideration would be as to whether the bank had
been able to establish that the claimant had incurred debts,
which were excessive. On that aspect, Shri Ashok Kumar
highlights that the claimant had drawn cheques on his
saving bank account as well as overdraft account, which
stood dishonoured for want of funds. Four cheques, details
of which are given in Ex.MW2/2 were dishonoured, when
sufficient funds were not there in saving bank account of
the claimant. 14 cheques, details of which are enlisted in
Ex.MW2/3, drawn on overdraft account, were dishonoured.
Cheques were relating to amount of Rs.70536.20 and
Rs.37527.00 respectively. Copy of statement of saving bank
account No.70526 and overdraft account No.7298, which
are Ex.MW2/15 and Ex.MW2/16 respectively, have been
perused. It emerges over the record that the claimant issued
cheques to the parties without maintaining adequate
balance in aforesaid accounts and thus cheques were
returned unpaid. Claimant projects a picture that in the
year 1998, he used to pay a sum of Rs.11,000.00 per month
towards various loans. He hastens to add that after payment
of instalments, a sum of R.2500.00 per month used to be his
carry home salary. These facts stand discredited by loan
application Ex.MW2/24, which projects a different story.
This application was moved by the claimant to the bank on
22.06.1998, wherein he details that his gross salary was
Rs.8593.59 and after deductions, his carry home salary was
Rs.3031.75. Deductions detailed by the claimant in the
aforesaid application pertains to loans/advances taken from
the bank. When his loans liability of Rs.11000.00 per months
towards loans obtained from various societies is to be
adjusted he was unable to pay even 40% of that loan out of
his carry home salary. There would not be even a Single
penny left with him to run his kitchen. Therefore, it is
obvious that borrowings of the claimant in the year 1998
were excessive. The bank had been able to bring it over the
record that the claimant incurred excessive indebtedness,
which was beyond his means of repayment.
34. Much hue and cry has been made that in case his
overdraft facility would have been renewed, he would have
discharged his liabilities towards other agencies. This cry
is in wilderness. If the bank would have renewed his demand
loan facilities, in that situation instalments towards that
facility would make his carry home salary negligible. How
he would have adjusted his liabilities towards other
agencies and run his kitchen are not brought over record
by the claimant. It is obvious that the claimant had incurred
debts which were not only considered excessive by the
bank but in reality were excessive to his repaying capacity.
He committed minor misconduct under clause (I) of para
521 (6) of the Shastry Award for such minor misconduct,
punishment of warning/censure, recording of adverse
remark or stoppage of one increment for a period not longer
than six months can be imposed on the claimant.
35. At the cost of repetition, it is pointed out that the
claimant admits that his liabilities towards payment of loans
taken from various societies was Rs.11000.00 in the year
1998.
When he availed advance of Rs.80,000.00 from
the bank for kaan chedan ceremony of his daughter,
application Ex.MW2/24 was moved by him on 22.06.1998.
In column No.10, he details his direct liability to the bank.
However, he conceals his direct liabilities from outside
agencies in the application. His indirect liabilities with the
bank and other outside agencies were not at all projected
by him in column No.10 of the application. On this mis-
representation of facts in loan application, which is
Ex.MW2/24, the bank sanctioned advance of Rs.80,000.00
in favour of the claimant. Therefore, it is emerging that
facts were misrepresented by the claimant, when aforesaid
advance of Rs.80,000.00 was obtained by him.
36. He availed loans from outside agencies and
became co-obligant too in respect of Shri Satender Pal Singh
and Shri Netran without prior permission from the
competent authority. The claimant violated guidelines
stipulated in circular No.234/93/BC, which amounts to
misconduct within clause 19.5(e) of the first Bipartite
Settlement dated 19.10.1996. However, charge sheet
Ex.MW2/1 stipulated that the claimant committed gross
misconduct of doing an act prejudicial to the interest of the
bank or gross negligence or negligence involving or likely
to involve the bank in serious loss. When separate
misconduct has been coined for disobedience of any
reasonable orders of the bank or superiors, then for that
act the bank cannot claim that the claimant did acts
prejudicial to its interest or it was an act of gross negligence
likely to involve the bank in serious loss. In such a situation,
it crystallizes that for violation of the aforesaid circular, the
bank had not served charge sheet on the claimant.
Resultantly, the Tribunal would not forge a new case for
the bank and hold the claimant accountable for the same.
37. As unfolded by Shri Ashok Kumar, demand drafts
L 740395 dated 23.05.2000 for Rs. 49000.00 and DD No.DL
740399 dated 23.05.2000 for a sum of Rs.40775.00, issued
by State Bank of Patiala, Karnal, in favour of manager of
the bank, to be credited to the salary account No.70526 of
the claimant were deposited on the strength of pay in slip
Ex, WW2/29 and Ex. WW2/31 respectively. Those demand
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2589
Server3/E/1250RR/1250RR(3)
drafts are proved as Ex. WW2/28 and Ex. WW2/30 respectively.
Shri Ashok Kumar declares that the bank had not forwarded
any application for taking loan by the claimant nor issued
any no objection certificate in that regard. The bank called
for details from the claimant vide letter 24.05.2000 and in
reply submitted on 13.06.2000, he disclosed to have he
availed loan from Gharonda Nationalized Bank Employees
Salary Earners Co-operative Thrift and Credit Societies,
Karnal. He projects therein that the bank was not involved
in any manner in that loan. The bank sought verification of
details, vide letter dated 16.06.2000. The society responded,
vide its letter dated 27.06.2000 The society also made a
request for return of the above drafts purchased by them
for loan proceeds of loan availed by the claimant. On
26.06.2000, Shri M.P. Vishwanathan was deputed for
verification of documents/loan application. He reported
that the loan application was executed in blank and seal of
the bank was affixed on two pages of the documents, with
signatures and No.9554 B was written below the signatures.
Shri Ashok Kumar explains that the said signature number
was allotted to him at the relevant time. He had not issued
any no objection certificate or signed loan application
either on behalf of the bank or in his personal capacity. He
wrote letter Ex.MW2/43 to the bank in that regard. Factum
of availing loan from above society is not a matter of
dispute. Claimant concedes that loan application was
moved, which was granted without any security/guarantee.
Deposit of aforesaid two drafts with the bank is also an
admitted fact.
38. It came to light that the claimant moved an
application for loan to Gharonda Nationalized Bank
Employees Salary Earners Co-operative Thrift and Credit
Societies, Karnal, on 24.05.2000. His claim has been that
the loan application was granted by the society, without
any security/guarantee. Question arises as to whether any
financial institution would consider such an application
for loan, without being supported by any documents? An
ordinary prudent man would respond that such an
application would be summarily rejected, if it is not
supported by any documentary evidence or security or
guarantee from a third party. It is case of the claimant that
none stood guarantee for that loan. It is not his case that
the bank issued no objection certificate in his favour for
seeking loan. He nowhere projects that salary certificate
was issued by the bank, to support his application for
loan. These circumstances make it apparent that the claimant
fabricated a story in that regard. Shri Ashok Kumar details
that Shri Vishwanathan submitted his report Ex. WW2/42
unfolding therein that the loan application was executed in
blank and seal of the bank was affixed on two pages, with
signatures underneath which No.9554B was written. Shri
Vishwanathan entered the witness box to give reaffirmation
to facts unfolded by Shri Ashok Kumar. He presents that
he visited office of the society on 26.06.2000 and met Shri
Komal Prakash. Shri Prakash showed loan application of
the applicant, executed in blank over which seal of the
bank was affixed on two pages with signatures underneath
which No.9554B was written. His report Ex.MW2/42 details
those very facts.
39. Basic question, which needs consideration, is
whether Shri M.P. Vishwanathan and Shri Ashok Kumar
are to be relied? Claimant dispels theory of animosity
between him and Shri M.P. Vishwanathan, not to talk of
projecting -history of ill will between the two. The claimant
nowhere alleged that Shri Vishwanathan had motives to
depose facts against him. No evidence worth name was
brought over the record to probabalize that Shri
Vishwsanathan and Shri Ashok Kumar were not worthy of
credence. These two witnesses stood rigors of cross
examination and fared well. Facts unfolded by them were
found to be in consonance with ordinary human behaviour
and natural course of events. Their depositions remained
intact and above board. Intrinsic worth of their evidence
remained unassailed. Considering the facts in entirely, I am
of the considered opinion that Shri Vishwanathan and Shri
Ashok Kumar are reliable witnesses.
40. Out of facts testified by Shri Vishwanathan, which
get reaffirmation through his report Ex.MW2/42, it came to
light that he visited office of the society on 26.06.2000. He
met Shri Komal Prakash, who told him that the claimant had
obtained loan of Rs.1 lakh from the said society. This
proposition is not disputed by the claimant. Shri
Vishwanathan details in Ex.MW2/42 that the loan
application was executed in blank and bank's seal was affixed
on two pages with signatures and No.9554B was written
beneath the signatures. Shri Ashok Kumar declares that
the said signature number was allotted to him at the relevant
time and he never signed loan application of the claimant
either in personal capacity or in official capacity.
Consequently, it is evident that ocular evidence detailed
by Shri Vishwanathan, relating to the contents of the loan
application, are relevant and admissible, in the light of the
facts that the said application was in possession of the
claimant and he had withheld it intentionally. When these
ocular facts are appreciated, it stood established that the
loan application was executed in blank by the claimant
over which seal of the bank was affixed , besides, forged
signature of Shri Ahok Kumar and No.9554B was also
written beneath his forged signatures.
41. Admittedly, the claimant availed medical leave
from 22.06.2000 to 27.06.2000. His leave application as well
as medical certificates are proved as Ex.MW2/34 to Ex.MW2/
38. Claimant visited office of the society on 27.06.2000. He
adjusted the loan, closed the account and obtained original
documents from the Secretary of the Society. He presented
certificate Ex.WW2/40 to the bank. This certificate was
issued by the Society on 27.06.2000, detailing therein that
the loan granted to the claimant stood adjusted and nothing
was due from him. All loan documents, in original, were
2590
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(3)
returned to the claimant, which were produced by him at
the time of raising loan. Thus, it is emerging over the record
that hurriedly the claimant approached the society, adjusted
the loan and obtained all documents, in original, from the
society. He files certificate Ex.MW2/40, but withholds
original loan documents.
42. Theory of loss of those documents, during travel
in a public transport bus,. has been projected by the
claimant. Surprisingly, certificate Ex.MW2/40 was not lost.
He wants this Tribunal to believe that this certificate was
kept separately while loan documents were kept in a bag,
which was lost on the way. He presents, in his written
statement for that the society did not return his application
for membership and application for Ioan. However, different
case was projected by him in his letter Ex.WW1/2, written
to the bank on 10.11.2000. In that letter, he admits that after
closing the loan account, he obtained back original
documents only to produce the same before the bank to
call the allegation a bluff, that too with good intention.
Therefore, in Ex. WW1/2 an admission has been made by
the claimant to the effect that he obtained all loan
documents from the society with a view to confront the
bank authorities to specify that seal of the bank with
signature and No.9554B was not there on his loan
application. Certificate Ex.MW2/40 confirms that all loans
documents in original has been returned to the claimant. It
would not be expected from an ordinary prudent man that
he would keep certificate Ex.MW2/40 separately from other
documents. Therefore, his story of loss of those documents
in a public transport bus on his inward journey is not
probable. It emerges that the loan documents were
intentionally withheld by the claimant.
43. Would it lie in the mouth of the claimant to assert
that by adjustment of loan, he had not made the bank to
suffer any loss or to cause prejudice in any manner? By the
entire episode, it emerges that the claimant does not
maintain integrity and honesty in his dealings with outside
agencies, when he availed loans from them and issued
cheques to discharge his liabilities. He went on forging
the documents, with a view to serve his interest. The
claimant represents employees of the bank, when he deals
with outside agencies. His actions are perceived as actions
of employees of the bank in general. When such a picture
is painted, it certainly shakes confidence of common
populace in banking system. An employee who commits
forgery is a black sheep, in whom the employer cannot
repose any confidence. He would bring disrepute to the
institution, where he is employed. Factum of his being on
the rolls of the bank would deface image of the bank also.
Consequently, it is evident that by his acts and conduct,
claimant committed gross misconduct and did acts
prejudicial to the interest of the bank.
44. What should be the appropriate punishment,
which can be awarded to the claimant, is a proposition
which would be addressed to by this Tribunal? Right of an
employer to inflict punishment of discharge or dismissal is
not unfettered. The punishment imposed must
commensurate with gravity of the misconduct, proved
against the delinquent workman. Prior to enactment of
section 11-A of the Industrial Disputes Act, 1947 (in short
the Act), it was not open to the industrial adjudicator to
vary the order of punishment on finding that the order of
dismissal was too severe and was not commiserative with
the act of misconduct. In other words, the industrial
adjudicator could not interfere with the punishment as it
was not required to consider propriety or adequacy of
punishment or whether it was excessive or too severe. Apex
Court, in this connection, had, however, laid down in Bengal
Bhatdee Coal Company [1963 (I) LLJ 291] that where order
of punishment was shockingly disproportionate with the
act of the misconduct which no reasonable employer would
impose in like circumstances, that itself would lead to the
inference of victimization or unfair labour practice which
would vitiate order of dismissal or discharge. But by
enacting the provisions of section 11-A of the Act the
Legislature has transferred the discretion of the employer,
in imposing punishment, to the industrial adjudicator. It is
now the satisfaction of the industrial adjudicator to finally
decide the quantum of punishment for proved acts of
misconduct, in cases of discharge or dismissal. If the
Tribunal is satisfied that the order of discharge or dismissal
is not justified in any circumstances on the facts of a case,
it has the power not only to set aside order of punishment
and direct reinstatement with back wages, but it has also
the power to impose certain conditions as it may deem fit
and also to give relief to the workman, including award of
lesser punishment in lieu of discharge or dismissal.
45. It is established law that imposing punishment
for a proved act of misconduct is a matter for the punishing
authority to decide and normally it should not be interfered
with by the Industrial Tribunals. The Tribunal is not required
to consider the propriety or adequacy of punishment. But
where the punishment is shockingly disproportionate,
regard being had to the particular conduct and past record,
or is such as no reasonable employer would ever impose in
like circumstance, the Tribunal may treat the imposition of
such punishment as itself showing victimization or unfair
labour practice. Law to this effect was laid by the Apex
Court in Hind Construction and Engineering Company Ltd.
[1965 (I) LLJ 462]. Likewise in Management of the
Federation of Indian Chambers of Commerce and Industry
[1971 (II) LLJ 630] the Apex Court ruled that the employer
made a mountain out of a mole hill and had blown a trivial
matter into one involving loss of prestige and reputation
and as such punishment of dismissal was held to be
unwarranted. In Ram Kishan [1996 (I) LLJ 982] the
delinquent employee was dismissed from service for using
abusive language against a superior officer. On the facts
and in the circumstances of the case, the Apex Court held
that the punishment of dismissal was harsh and
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2591
Server3/E/1250RR/1250RR(3)
disproportionate to the gravity of the charge imputed to
the delinquent. It was ruled therein, "when abusive
language is used by anybody against a superior, it must be
understood in the environment in which that person is
situated and the circumstances surrounding the event that
led to the use of abusive language. No straight-jacket
formula could be evolved in adjudicating whether the
abusive language in the given circumstances would
warrant dismissal from service. Each case has to be
considered on its own facts".
46. In B.M. Patil [1996 (II) LLJ 536], Justice Mohan
Kumar of Karnataka High Court observed that in exercise
of discretion, the Disciplinary Authority should not act
like a robot and justice should be moulded with humanism
and understanding. It has to assess each case on its own
merit and each set of fact should be decided with reference
to the evidence recording the allegation, which should be
basis of the decision. The past conduct of the worker may
be a ground for assuming that he might have a propensity
to commit the misconduct and to assess the quantum of
punishment to be imposed. In that case a conductor of the
bus was dismissed from service for causing revenue loss
of 50p to the employer by irregular sale of tickets. It was
held that the punishment was too harsh and
disproportionate to the act of misconduct.
47. After insertion of section 11-A of the Act, the
jurisdiction to interfere with the punishment is there with
the Tribunal, who has to see whether punishment imposed
by the employer commensurate with the gravity of the act
of misconduct. If it comes to the conclusion the misconduct
is proved, it may still hold that the punishment is not justified
because misconduct alleged and proved is such as it does
not warrant punishment of discharge or dismissal and where
necessary, set aside the order of discharge or dismissal
and direct reinstatement with or without any terms or
conditions as it thinks fit or give any other relief, including
the award of lesser punishment, in lieu of discharge or
dismissal, as the circumstance of the case may warrant.
Reference can be made to a precedent in Sanatak Singh
(1984 Lab.I.C.817). The discretion to award punishment
lesser than the punishment of discharge or dismissal has
to be judiciously exercised and the Tribunal can interfere
only when it is satisfied that the punishment imposed by
the management is highly disproportionate to the decree
of the guilt of the workman. Reference can be made to the
precedent in Kachraji Motiji Parmar [1994 (II) LLJ 332]. Thus
it is evident that the Tribunal has now jurisdiction and
power of substituting its own measure of punishment in
place of the managerial wisdom, once it is satisfied that the
order of discharge or dismissal is not justified. On facts
and in the circumstances of a case, section 11A of the Act
specifically gives two folds powers to the Industrial
Tribunal, first is virtually the power of appeal against
findings of fact made by the Enquiry Officer in his report
with regard to the adequacy of the evidence and the
conclusion on facts and secondly of foremost importance,
is the power of reappraisal of quantum of punishment.
48. In Bharat Heavy Electricals Ltd. [2005 (2) S.C.C.
481] the Apex Court was confronted with the proposition
as to whether power available to the Industrial Tribunal
under section 11-A of the Act are unlimited. The Court
opined that "there is no such thing as unlimited jurisdiction
vested with any judicial or quasi judicial forum and
unfettered discretion is sworn enemy of the constitutional
guarantee against discrimination. An unlimited jurisdiction
leads to unreasonableness. No authority, be it
administrative or judicial, has any power to exercise the
discretion vested in it unless the same is based on justifiable
grounds supported by acceptable materials and reasons
thereof". The Apex Court relied its judgement in C.M.C.
Hospital Employees Union [1987 (4) S.C.C. 691] wherein it
was held that "section 11-A cannot be considered as
conferring an arbitrary power on the Industrial Tribunal or
the Labour Court. The power under section 11-A of the Act
has to be exercised judiciously and the Industrial Tribunal
or Labour Court is expected to interfere with the decision
of a management under section 11-A of the Act only when
it is satisfied that the punishment imposed by the
management is highly disproportionate to the degree of
guilt of the workmen concerned. The Industrial Tribunal or
Labour Court has to give reasons for its decision". In
Hombe Gowda Educational Trust [(2006 (1) S.C.C. 430) the
Apex Court announced that the Tribunal would not normally
interfere with the quantum of punishment imposed by the
employer unless an appropriate case is made out therefore.
49. Power to set aside order of discharge or dismissal
and grant relief of reinstatement or lesser punishment is
not untrammeled power. This power has to be exercised
only Tribunal is satisfied that the order of discharge or
dismissal was not justified. This satisfaction of the Tribunal
is objective satisfaction and not subjective one. It involves
application of the mind by the Tribunal to various
circumstances like nature of delinquency committed by
the workman, his past conduct, impact of delinquency on
employer's business, besides length of service rendered
by him. Furthermore, the Tribunal has to consider whether
the decision taken by the employer is just or not. Only after
taking into consideration these aspects, the Tribunal can
upset the punishment imposed by the employer. The
quantum of punishment cannot be interfered with without
recording specific findings on points referred above. No
indulgence is to be granted to a person, who is guilty of
grave misconduct like cheating, fraud, misappropriation of
employers fund, theft of public property etc. A reference
can be made to the precedent in Bhagirath Mal Rainwa
[1995 (I) LLJ 960].
50. Question for consideration comes as to whether
punishment awarded to the claimant was shockingly
disproportionate to his misconduct, justifying interference
2592
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(3)
by this Tribunal? In Firestone Tyre and Rubber Company
of India (Pvt.) Ltd. [1973 (1) S.C.C. 813], the Apex Court
ruled that once misconduct is proved, the Tribunal had to
sustain order of punishment unless it was harsh indicating
victimization. It has been further laid therein that if a proper
enquiry is conducted by an employer and a correct finding
arrived at regarding the misconduct, the Tribunal, even
though now empowered to differ from the conclusion arrived
at by the management, will have to give very cogent reasons
for not accepting the view of the employer. Again in
Divisional Controller K.S.R.T.C. (N.W.K.R.T.C) [2005 (3)
S.C.C. 254] it was laid that question of quantum of
punishment would not be weighed on amount of money
misappropriated but it should be based on loss of
confidence, which is a primary factor to be taken into
account. Once a person is found guilty of misappropriating
his employer's fund, there is nothing wrong for the
employer to lose confidence or faith in such a person,
awarding punishment of dismissal.
51. Whether punishment of compulsory retirement
from service commensurate to the misconduct of the
claimant? An employee who forges documents in order to
serve his interest cannot be expected to render efficient
and honest services to his employer as well as the public at
large. One who commits offence with a view to axe his
grind, may go to any extent in dealing with money of public.
His dishonest intention may persuade him to embezzle
money of customers also. For such an employee, employer
is not expected to repose confidence and faith. Therefore,
such an employee cannot claim to be retained in service.
Claimant was compulsorily retired from service of the bank.
It does not cast any stigma on him. He may avail future
employment with others. His right to get retiral benefits are
also not marred.
52.These facts make it apparent that punishment of
compulsory retirement commensurate to the misconduct
of the claimant. No evidence worth name has been
highlighted to show that he has been victimized or bank
had mala fide intention or followed unfair labour practice.
Whether the penalty of compulsory retirement from service
would relate back to the date of order of dismissal passed
by the bank for an answer, it is expedient to consider the
precedents handed down by the Apex Court. In Ranipur
Colliery [(1959) Supp. 2 SCR 719] the employer conduct a
domestic enquiry though defective and passed an order of
dismissal and moved the Tribunal for approval of that order.
It was ruled therein that if the enquiry is not defective, the
Tribunal has only to see whether there was a prima facie
case for dismissal and whether the employer had come to
the bona fide conclusion that the employee was guilty of
misconduct. Thereafter on coming to that conclusion that
the employer had bona fide come to the conclusion that
the employee was guilty, that is, there was no unfair labour
practice and no victimization, the Tribunal would grant the
approval which would relate back to the date from which
the employer had ordered the dismissal. If the enquiry is
defective for any reason, the Tribunal would also have to
consider for itself on the evidence adduced before it
whether the dismissal was justified. However on coming to
the conclusion on its own appraisal of evidence adduced
before it that the dismissal was justified its approval of the
order of dismissal made by the employer on defective
enquiry would still relate back to the date when order was
made.
53. In Phulbari Tea Estate [1960 (I) S.C.R. 32] the
domestic enquiry held by the employer culminating in the
order of dismissal was found to be invalid, being in gross
violation of the rules of natural justice. Even before the
Tribunal, the employer did not lead proper evidence to
justify the order of dismissal and contended itself by merely
producing the statement of certain witnesses recorded
during the domestic enquiry and the workman had no
opportunity to cross-examine the witnesses before the
Tribunal. In the absence of any evidence before it, justifying
the dismissal, the Tribunal set aside the order of dismissal
and granted compensation in lieu of reinstatement, which
order was upheld by the Apex Court. In that case question
of relating back of the order of dismissal did not arise.
54. In P.H. Kalyani [1963 (1) LLJ 673] the employer
dismissed the workman after holding a domestic enquiry
into the charges. Since some dispute was pending before
the Industrial Tribunal, the employer applied for "approval"
of action of dismissal in compliance with the proviso' to
section 33(2)(b) of the Act. The workman made an
application under section 33-A of the Act. Apart from relying
on validity of domestic enquiry, the employer adduced all
the evidence before the Tribunal in support of its action.
On basis of evidence before it, the Tribunal came to the
conclusion that the facts of misconduct committed by the
workman were of serious nature involving danger to human
life and therefore dismissed the application under section
33-A and accorded "approval" to the action of dismissal
taken by the employer. In this situation the Apex Court
held that if the enquiry is not defective and the action of
the employer is bona fide, the tribunal will grant the
approval" and the dismissal would "relate back to the date
from which the employer had ordered dismissal", If the
enquiry is invalid for any reason. The Tribunal will have to
consider for itself on the evidence adduced before whether
the dismissal was justified. If it comes to the conclusion on
its own a praisal of such evidence that the dismissal was
justified, the dismissal would "still relate back to the date
when the order was made". Sasa Musa Sugar Works case
(supra) was distinguished saying that observations made
therein "apply only to a case where the employer had neither
dismissed the employee nor had come to the conclusion
that a case for dismissal had been made. In that case, the
dismissal of the employee takes effect from the date of the
award and so untill then the relation of employer and
employee will continue in law and in fact".
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2593
Server3/E/1250RR/1250RR(3)
55. D.C. Roy [(1976) Lab. I.C. 1142] is the illustration
where domestic enquiry held by the employer was found
to be invalid being violative of principles of natural justice
and the employer had justified the order of dismissal by
leading evidence before the Labour Court, on appraisal of
which the Labour Court found the order of dismissal
justified. In appeal, the Apex Court upheld the award with
the observation that "the ratio of Kalyani's case (supra)
would therefore, govern the case and the judgment of the
Labour Court must relate back to the date on which the
order of dismissal was passed".
56. In Gujrat Steel Tubes Ltd. [1980 (1) LLJ 137]
inverted image of the D.C. Roy's case was presented by a
majority of three judge bench wherein it was held that
"where no enquiry has preceded punitive discharge, and
the Tribunal for the first time upholds the punishment, this
court in D.C. Roy vs. Presiding Officer (supra) has taken
the view that full wages be paid untill the date of the award.
There cannot be any relation back of the date of dismissal
when the management passed the void order". Though
the court ruled that law laid in D.C. Roy is correct yet it
followed obiter instead of the decision. Observations of
the Apex Court in above decision, bearing on the relate
back rule, were faulted in R.Thiruvirkolam [1997 (1) SCC 9]
on the ground that they "are not in the line with the decision
in Kalyani which was binding or with D.C. Roy to which
learned Judge Krishna lyer J. was a party. It also does not
match with the juristic principle discussed in Wade". The
view taken in R.Thiruvirkolam (supra) was affirmed in Punjab
Dairy Development Corporation Ltd. [1997 (2) LLJ 1041].
57. In view of the catena of decisions, detailed above,
it is clear that an employer can justify its action by leading
evidence before the Tribunal. This equally applies to cases
of total absence of enquiry and defective enquiry. A case
of defective enquiry stands on the same footing as no
enquiry. If no evidence is led or evidence adduced does
not justify the dismissal by the employer, the Tribunal can
order reinstatement or payment of compensation as it may
think fit. But if it finds on the evidence adduced before it
that the dismissal is justified, the doctrine of relate back is
pressed into service to bridge the time gap between the
rupture of the relationship of employer and employee and
the finding of the Tribunal.
58. In view of the catena of decisions, detailed above,
it is clear that an employer can justify its action by leading
evidence before the Tribunal. This equally applies to cases
of total absence of enquiry and defective enquiry. A case
of defective enquiry stands on the same footing as no
enquiry. If no evidence is led or evidence adduced does
not justify the dismissal by the employer, the Tribunal can
order reinstatement or payment of compensation as it may
think fit. But if it finds on the evidence adduced before it
that the dismissal is justified, the doctrine of relate back is
pressed into service to bridge the time gap between the
Tribunal rupture of the relationship of employer and
employee and the finding of the Tribunal.
59. If the workman is to be paid wages upto the date
of the award of the Tribunal, the Parliament has to enact
so, declares the Delhi High Court in Ranjit Singh Tomar
(ILR 1983 Delhi 802). Obviously the Act does not make any
provision for the situation. Precedents in Ghanshyam Das
Shrivastava [1973 (1) SCC 656], Capt. M. Paul Anthony
[1999 (3) SCC 679] and South Bengal State Transport
Corporation [2006 (2) SCC 584] nowhere deal with the
controversy, hence are not discussed.
60. In view of the above law, it is ordered that the
punishment of compulsory retirement from service will relate
back to the date when the bank awarded that punishment
to the claimant. Award is, accordingly, passed. It be sent to
the appropriate Government for publication.
Dated : 28.02.2013
DR. R.K. YADAV, Presiding Officer
ubZ fnYyh] 19 ekpZ 2013
dkñvkñ 882.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj LVsV cSad vkWQ
gSnjkckn 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 fnYyh ds iapkV ¼lanHkZ la[;k 236@2011½ dks izdkf'kr
djrh gS] tks daUnzh; ljdkj dks 19-03-2013 dks izkIr gqvk FkkA
[lañ ,y&12012@03@2011&vkbZ vkj ¼ch&I]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 19th March, 2013
S.O. 882.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. 236/2011) of
the Cent. Govt. Indus. Tribunal-cum-Labour Court,
New Delhi as shown in the Annexure, in the industrial
dispute between the management of State Bank of
Hyderabad and their workmen, received by the Central
Government on 19/03/2013.
[No. L-12012/03/2011-IR(B-I]
SUMATI SAKLANI, Section Officer
2594
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(3)
ANNEXURE
BEFORE DR. R.K. YADAV, PRESIDING OFFICER,
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL
NO.1, KARKARDOOMA COURTS COMPLEX, DELHI
I.D. No. 236/2011
Shri Subodh Narayan Jha,
RZF-30/57, Dabri Extn.
East, Janakpuri,
New Delhi - 110045.
Workman...
Versus
The General Manager,
State Bank of Hyderabad,
Scope Complex, Lodhi Road,
New Delhi-110003.
Manager.....
AWARD
A clerk/typist posted at Scope Complex branch of
State Bank of Hyderabad (in short the bank) resorted to
outside borrowings without prior permission from the
competent authority and forged signatures of bank officials
on undertaking-cum-no-objection certificate, submitted to
various Thrift and Credit Co-operative Societies. He availed
loan of Rs.1 Lakh from Nationalized Bank Employees (SE)
Co-operative NA Thrift and Credit Society, Rs.50,000.00
from Public Sector Bank Employees Co-operative Thrift
and Credit Society Rohtak, Rs.50,000.00 from Commercial
Bank Employees Co-operative Thrift and Credit Society,
Rohtak and Rs.80,000.00 from PNB Employees Thrift and
Credit Society Ltd., Ghaziabad, U.P.
2. When these borrowings and forgery came to light,
he was placed under suspension on 07.12.2006. Charge
sheet dated 07.05.2007 was served upon him. Statement of
defence dated 05.06.2007, submitted by him, was not found
to be satisfactory. A departmental enquiry was constituted.
Shri S.K. Acharya was appointed as Enquiry Officer by the
bank. On conclusion of the enquiry, Shri Acharyia
submitted his report dated 06.08.2007 to the Disciplinary
Authority. Disciplinary Authority concurred with the
findings of the Enquiry Officer and awarded punishment
of discharge from service of the bank with superannuation
benefits, vide order dated 11.01.2008. Aggrieved by the
order, the clerk/typist raised a demand for reinstatement in
service. When his demand was not conceded to, he raised
an industrial dispute before the Conciliation Officer, Since
the bank contested his claim, conciliation proceedings
ended into a failure. On consideration of failure report,
submitted by the Conciliation Officer, appropriate
Government referred the dispute to this Tribunal for
adjudication, vide order No. L-12012/03/2011-1R(B-1),
New Delhi dated 02.06.2011 with following terms.
"Whether action of the management of State Bank
of Hyderabad in imposing penalty of discharge
from service and with superannuation benefits
upon Shri Subodh Narayan Jha, ex-Clerk vide their
order dated 11.01.2008 is legal and justified? To
what relief the workman is entitled?
3. Claim statement was filed by the clerk/typist,
namely, Shri Subodh Narayan Jha pleading that he was
appointed as clerk by the bank on 01.10.1997. His salary
was Rs.3450.00 per month. He was transferred to KG Marg
branch of the bank in January 1998, from where he was
transferred to Scope Complex Branch, Lodhi Road,
New Delhi. Since his father was ailing, he had to take loans
for his treatment. Loan of Rs.1 lakh was taken by him from
Nationalized Bank Employees (SE) Co-operative NA Thrift
and Credit Society on 17.03.2006. He took another loan of
Rs.50,000.00 from Commercial Bank Employees Cooperative
Thrift and Credit Society, Rohtak on 13.11.2006. Since his
father was a cardiac patient, he was compelled to take
another loan of Rs.80,000.00 from Public Sector Bank
Employees Co-operative Thrift and Credit Society Rohtak.
Yet another loan of Rs.80,000.00 was taken by him on
07.01.2005 from PNB employees Thrift and Credit Society
Ltd., Ghaziabad, U.P. All the above loans were taken by
him due to ailment of his father. He was chargesheeted by
the bank and enquiry was conducted. Enquiry was a sham.
Enquiry Officer committed gross violation of principles of
natural justice. Finding was recorded against him, holding
him guilty of the charges. His services were terminated on
20.06.2008. Charge of borrowing money from outside
sources does not fall in the category of misconduct, not to
talk of gross misconduct. He had borrowed funds from
different societies in a hurry to save life of his father. He
had not forged signatures of any officer nor any forgery
was within his knowledge. He had submitted his papers to
an agent, who fraudulently obtained his signatures. It was
the agent who had committed fraud. Neither report of
handwriting expert was produced nor proper enquiry was
conducted to substantiate act of fraud against him. He had
caused no loss to the bank. Sole charge of not taking
approval from the bank authorities would project that
punishment disproportionate to his misconduct was
awarded. He claims that punishment awarded to him was
too harsh to sustain. His good length of unblemished
service was not take into consideration while awarding
punishment to him. He claims reinstatement in service with
continuity and full back wages.
4. Demurral was made by the bank pleading that the
claimant obtained various loans from outside agencies
without prior approval/permission from the competent
authority. He also submitted forged declaration while
seeking loans from outside agencies. He produced letter of
undertaking containing forged signatures with SS No.7650.
No officer with SS No.7650 was there in the bank at the
relevant time. He also furnished false declaration to outside
agencies, stating therein that he had not availed loan from
any other society. Those loans were taken by the claimant
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2595
Server3/E/1250RR/1250RR(3)
from outside agencies in violation of rules and regulations
governing his service conditions.
5. The bank presents that when factum of his availing
loan from various outside agencies came to light, he was
placed under suspension. Charge sheet was served upon
him. He submitted his statement of defence which was not
found to be satisfactory. An enquiry was constituted
against him. Enquiry Officer conducted enquiry in
accordance with the principles of natural justice.
Opportunity was given to him to defend himself. Enquiry
was conducted in a fair and proper manner. Disciplinary
Authority concurred with the findings of the Enquiry Officer
and awarded punishment of discharge from service with
superannuation benefits.
6. Claim projected by the claimant that forgery was
committed by an agent is unfounded. He committed fraud,
forged signatures of officers of the bank and gave wrong
declaration to outside agencies to the effect that he had
not borrowed any money from any other co-operative
society. Misconduct committed by him is so alarming that
it led the bank to lose confidence in him. Punishment
awarded to the claimant commensurate to his misconduct.
Action of the bank is legal and justified. Claim for
reinstatement in service is untenable, hence, it may be
dismissed.
7. On pleading of the parties, following issues were
settled:
(1) Whether enquiry conducted by the management
is just, fair and proper?
(2) Whether punishment awarded to the claimant is
proportional to the misconduct?
(3) As in terms of reference.
8. Issue relating to virus of enquiry was treated as
preliminary issue. Claimant opted not to adduce any
evidence on the preliminary issue. On consideration of
affidavit of Shri P.C. Das, tendered as evidence and
submissions by the parties, preliminary issue was answered
in favour of the claimant and against the bank vide order
dated 13.01.2012.
9. The bank examined Shri Satish Ahlawat to prove
misconduct of the claimant. Claimant opted not to adduce
any evidence in rebuttal.
10. Arguments were heard at the bar. Shri Pramod
Kumar, authorized representative, advanced arguments on
behalf of the bank. The claimant abstained away from the
proceedings and opted not to advance any arguments. I
have given my careful considerations to the arguments
advanced at the bar and cautiously perused the record.
My findings on issues involved in the controversy are as
follows:—
Issue No.2
11. Shri Ahlawat swears in his affidavit, Ex. MW1/A,
tendered as evidence, that the claimant was working as
clerk/typist with Scope Complex, Lodhi Road Branch, of
the bank, when he obtained various loans from outside
agencies without approval/permission from the competent
authority. He submitted forged declaration while obtaining
loans. He submitted fake irrevocable letter of undertaking
to Nationalized Bank Employees (SC) Co-operative Thrift
and Credit Society, Rohtak purported to have been signed
by an officer with SS No.7650. There was no such officer in
the Bank with SS No.7650 during the relevant time.
Therefore, irrevocable letter of undertaking was forged one.
The claimant had also submitted false declaration to the
societies stating therein that he had not availed any loan
from any other society. Claimant had also obtained loans
from Commercial Bank Employees Co-operative Urban SC
Thrift and Credit Society Ltd., PNB Employees (SC) Thrift
and Credit Society, Ghaziabad, UP and Public Sector Bank
Employees Co-operative (SC) Thrift and Credit Society Ltd.,
Rohtak. The above loans were obtained by him in violation
of services conditions by which he was governed. When
an employee of doubtful integrity and dishonest nature is
in the service of the bank, it causes great injustice and
irreparable loss to the bank, where public money is
involved.
12. During course of cross examination, Shri Ahlawat
unfolds that after going through documents Ex. MW1/9,
Ex. MW1/12, Ex. MW1/W1, Ex. MW1/W2, Ex. MW1/W3,
Ex. MW1/W4, Ex. MW1/W5, Ex. MW1/W6 and Ex. MW1/
13, he came to know that the claimant had given
undertakings to the societies referred above. He had
mentioned SS No.7650 and SS No. 5330 on undertaking
while SS No.7650 was not allotted to any officer. Officer to
whom SS No. 5330 was allotted had not issued any
certificate in favour of the claimant. Thus, it emerges that
the above two certificates/undertaking were forged by him.
13. When facts unfolded by Shri Ahlawat are
scanned alongwith documents proved by him, it emerged
that the claimant had obtained loans from various
Cooperative Thrift and Credit Societies, viz. Nationalized
Bank Employees (SE) Cooperative NA Thrift and Credit
Society, Public Sector Bank Employees Cooperative Thrift
and Credit Society Rohtak, Commercial Bank Employees
Cooperative Thrift and Credit Society, Rohtak and PNB
Employees Thrift and Credit Society Ltd., Ghaziabad, U.P.
In his statement of defence, which has been proved as
Ex. MW1/3, claimant nowhere disputes factum of availing
loans from the aforesaid societies. He projects that taking
loans from co-operative societies does not require prior
permission from the competent authority. Consequently,
out of facts unfolded by Shri Ahlawat and those conceded
by the claimant in Ex. MW1/3, it stood established that the
claimant obtained loans from the aforesaid four co-operative
2596
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(3)
societies without obtaining prior permission from the
competent authority.
14. Shri Ahlawat announces that the claimant gave
an undertaking to Nationalized Bank Employees (SE)
Co-operative NA Thrift and Credit Society , Rohtak, which
is Ex.MW1/9. When this document is scanned, it came to
light that an irrevocable letter of undertaking was furnished
to the aforesaid society besides a certificate to the effect
that no disciplinary proceedings were pending against the
claimant. Ex.MW1/9 purports to have been signed by an
Assistant General Manger, whose specimen signatures
were given number SS No. 7650. Ex.MW1/WD1 was also
proved by Shri Ahlawat wherein claimant purportedly
authorized the bank to deduct amount of instalment from
his salary/subsistence allowance and remit that amount to
the aforesaid society towards loan of Rs.1 lakh. Shri
Ahlawat testified that SS No.7650 was not allotted to any
officer of the bank. Therefore, out of facts unfolded by Shri
Ahlawat and contents of Ex.MW1/9 it stood established
that the claimant fabricated the document and tendered it
to the aforesaid society when a loan of Rs.1 lakh was avaled.
Ex.MW1/VV6 was proved by Shri Ahlawat, which is an
irrevocable letter of undertaking furnished by the claimant
to Public Sector Bank Urban (SE) Thrift and Credit Society,
Rohtak when he availed loan of Rs.50000.00 from the said
society. While moving application for loan, he furnished
documents, Ex.MW1/W2, purported to have been issued
by a Manager having SS No.5330. Shri Ahlawat testified
Ex.MW1/W2 was not issued by the officer to whom SS
No.5330 was allotted. Consequently, facts unfolded by Shri
Ahlawat bring it over record that the claimant forged
Ex.MW1/W2 and tendered it to the Commercial Bank
Employees Co-operative Thrift and Credit Society, Rohtak,
when he availed loan of Rs.50000.00 from the said society.
15. Much hue and cry was made by the claimant to
this effect that obtaining loans from co-operative societies
without prior permission from the competent authority does
not amount to any misconduct. His contention has
substance in that regard. Clause 19.7 of Bipartite Settlement
dated 10.04.2002 coins a minor misconduct of incurring
debts to the extent considered by the management as
excessive. Employee is not constrained to obtain prior
permission from the competent authority when he avails
loans, no matter such loan is obtained by him from his
employer or an outside agency. He commits minor
misconduct whenhe incurs debts, which is considered
excessive by his employer. Consequently, it is evident that
for incurring debts from a co-operative society. The claimant
was not under obligation to obtain prior permission from
the bank.
16. As proved above, claimed forged Ex.MW1/9 and
Ex.MW1/W2 when he obtained loans from Nationalized
Bank Employees (SE) Co-operative NA Thrift and Credit
Society, Public Sector Bank Employees Co-operative Thrift
and Credit Society Rohtak, Commercial Bank Employees
Co-operative Thrift and Credit Society, Rohtak and PNB
employees Thrift and Credit Society Ltd., Ghaziabad, UP.
Forged documents Ex.MW1/9 and Ex.MW1/W2 have been
brought over record. Claimant tried to explain that these
documents were forged by the Agents of the aforesaid
societies . He failed even to name that agent who had
allegedly forged aforesaid documents. On the other hand,
he was beneficiary of the loans. His signatures do appear
on the above documents. He failed to explain as to how he
handed over these two documents to an agent, leaving the
columns blank. Therefore, it is evident that explanation
offered by the claimant in that regard is farther from truth.
It was the claimant who forged these documents and used
the same as genuine, knowing it to be forged one. By
producing these two forged documents, he made aforesaid
societies to grant loan in his favour Therefore, it stood
established that acts of forgery and cheating were
committed by the claimant.
17.When an employee of a bank commits acts of
cheating and fraud and obtains loans from outside
agencies, he puts reputation of his employer to stake. By
such an act, the employee degrades himself in the eyes of
the public at large and ridicules position of his employer.
Consequently, it is evident that such an act is prejudicial to
the interest of his employer. Doing an act prejudicial to the
interest of the bank has been coined as a 'major misconduct'
under clause 19.5(j) of the Bipartite Settlement dated
10.04.2002. Taking into account all these facts, it is
concluded that the bank has been able to establish that
gross misconduct was committed by the claimant when he
forged aforesaid two documents, used the same as genuine
ones and availed loans from the aforesaid societies.
18. Question for consideration comes as to whether
there are any justifications for punishment of dismissal?
Right of an employer to inflict punishment of discharge or
dismissal is not unfettered. The punishment imposed must
be commensurate with gravity of the misconduct, proved
against the delinquent workman. Prior to enactment of
section 11-A of the Act, it was not open to the industrial
adjudicator to vary the order of punishment on finding
that the order of dismissal was too severe and was not
commensurate with the act of misconduct. In other words,
the industrial adjudicator could not interfere with the
punishment as it was not required to consider propriety or
adequacy of punishment or whether it was excessive or
too severe. Apex Court, in this connection, had, however,
laid down in Bengal Bhatdee Coal Company [1963(1) LLJ
291] that where order of punishment was shockingly
disproportionate with the act of the misconduct which no
reasonable employer would impose in like circumstances,
that itself would lead to the inference of victimization or
unfair labour practice which would vitiate order of dismissal
or discharge. But by enacting the provisions of section
11-A of the Act, the Legislature has transferred the
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2597
Server3/E/1250RR/1250RR(3)
discretion of the employer, in imposing punishment, to the
industrial adjudicator. It is now the satisfaction of the
industrial adjudicator to finally decide the quantum of
punishment for proved acts of misconduct, in cases of
discharge or dismissal. If the Tribunal is satisfied that the
order of discharge or dismissal is not justified in any
circumstances on the facts of a case, it has the power not
only to set aside order of punishment and direct
reinstatement with back wages, but it has also the power to
imposed certain conditions as it may deem fit and also to
give relief to the workman, including award of lesser
punishment in lieu of discharge or dismissal.
19. It is established law that imposing punishment
for a proved act of misconduct is a matter for the punishing
authority to decide and normally it should not be interfered
with by the Industrial Tribunals. The Tribunal is not required
to consider the propriety or adequacy of punishment. But
where the punishment is shockingly disproportionate,
regard being had to the particular conduct and past record,
or is such as no reasonable employer would ever impose in
like circumstance, the Tribunal may treat the imposition of
such punishment as itself showing victimization or unfair
labour practice. Law to this effect was laid by the Apex
Court in Hind Construction and Engineering Company
Labour [1965 (1) LLJ 462]. Likewise in Management of the
Federation of Indian Chambers of Commerce and Industry
[1971 (II) LLJ 630] the Apex Court ruled that the employer
made a mountain out of a mole hill and had blown a trivial
matter into one involving loss of prestige and reputation
and as such punishment of dismissal was held to be
unwarranted. In Ram Kishan [1996 (1) LLJ 982] the
delinquent employee was dismissed from service for using
abusive language against a superior officer. On the facts
and in the circumstances of the case, the Apex Court held
that the punishment of dismissal was harsh and
disproportionate to the gravity of the charge imputed to
the delinquent. It was ruled therein, "when abusive
language is used by anybody against a superior, it must be
understood in the environment in which that person is
situated and the circumstances surrounding the event that
led to the use of abusive language. No straight- jacket
formula could be evolved in adjudicating whether the
abusive language in the given circumstances would
warrant dismissal from service. Each case has to be
considered on its own facts".
20. In B.M.Patil [1996 (11)LLJ 536], Justice Mohan
Kumar of Karnataka High court observed that in exercise
of discretion, the disciplinary authority should not act like
a robot and justice should be moulded with humanism and
understanding. It was assess each case on its own merit
and each set of fact should be decided with reference to
the evidence recording the allegation, which should be
basis of the decision. The past conduct of the worker may
be a ground for assuming that he might have a propensity
to commit the misconduct and to assess the quantum of
punishment to be imposed. In that case a conductor of the
bus was dismissed from service for causing revenue loss
of 50p to the employer by irregular sale of tickets. It was
held that the punishment was to harsh and disproportionate
to the act of misconduct.
21. After insertion of section 11-A of the Act, the
jurisdiction to interfere with the punishment is there with
the Tribunal, who has to see whether punishment imposed
by the employer commensurates with the gravity of the act
of misconduct. If it comes to the conclusion that the
misconduct is proved , it may still hold that the punishment
is not justified because misconduct alleged and proved is
such as it does not warrant punishment of discharge or
dismissal and where necessary, set aside the order of
discharge or dismissal and direct reinstatement with or
without any terms or conditions as it thinks fit or give any
other relief, including the award of lesser punishment, in
lieu of discharge or dismissal, as the circumstance of the
case may warrant. Reference can be made to a precedent in
Sanatak Singh (1984 Lab. I.C.817). The discretion to award
punishment lesser than the punishment of discharge or
dismissal has to be judiciously exercised and the Tribunal
can interfere only when it is satisfied that the punishment
imposed by the management is highly disproportionate to
the decree of the guilt of the workman. Reference can be
made to the precedent in Kachraji Motiji Parmar [1994 (II)
LLJ 332]. Thus it is evident that the Tribunal has now
jurisdiction and power of substituting its own measure of
punishment in place of the managerial wisdom, once it is
satisfied that the order of discharge of dismissal is not
justified. On facts and in the circumstances of a case,
Section 11A of the Act specifically gives two folds powers
to the Industrial Tribunal, first is virtually the power of
appeal against findings of fact made by the Enquiry Officer
in his report with regard to the adequacy of the evidence
and the conclusion on facts and secondly of foremost
importance, is the power of reappraisal of quantum of
punishment.
22. Power to set aside order of discharge or dismissal
and grant relief of reinstatement or lesser punishment is
not untramaled power. This power has to be exercised only
when Tribunal is satisfied that the order of discharge or
dismissal was not justified. This satisfaction of the Tribunal
is objective satisfaction and not subjective one. It involves
application of the mind by the Tribunal to various
circumstances like nature of delinquency omitted by the
workman, his past conduct, impact of delinquency on
employer's business, besides length of service rendered
by him. Furthermore, the Tribunal has to consider whether
the decision taken by the employer is just or not. Only after
taking into consideration these aspects, the Tribunal can
upset the punishment imposed by the employer. The
quantum of punishment cannot be interfered with without
recording specific findings on points referred above. No
indulgence is to be granted to a person, who is guilty of
2598
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(3)
grave misconduct like cheating, fraud, misappropriation of
employers fund, theft of public property etc. A reference
cannot be made to the precedent in Bhagirath Mal Rainwa
[1995 (1) LLJ 960].
23. In the light of above legal propositions, it would
be considered as to whether punishment awarded to the
claimant commensurate to his misconduct? As projected
above, the claimant availed loans from various societies
referred above, without prior permission from the
competent authority. He forged signatures with S.S.No. 7650
on an irrevokable letter of undertaking given to the
Nationalised Bank Employees (S.E.) Co-operative N.A.
Thrift and Credit Society, Rohtak. He also forged document
Ex.MW1/W2, which purported to have been signed by an
officer of the bank with S.S.No.5330. He gave that certificate
alongwith loan application to the Commercial Bank
Employees Co-operative Thrift and Credit Society, Rohtak.
Forgery on these documents were not disputed by the
claimant. He opted not to disclose his barrowings to the
societies, when he availed loans from them. Thus it is
evident that the claimant mis-represented facts before those
societies and obtained loan by deception. He used forged
docuemnts as genuine, konwing the some to be forged. All
these facts bring it over the record that serious offences of
forgery, cheating and using forged documents as genuine
were committed by the claimant.
24. Forgery, cheating and using forged docuemnts
as genuine are serious misconduct, besides being criminal
offence. One who commits forgery and cheating makes
position of his employer ridiculous. Such an employee not
only hoodwinks his employer but customers also. He puts
his employer's reputation to stake in its eyes of the
customers as well as general public. The customer, who
finds himself defrauded, is put to shock and agony. On the
other hand the employer loose faith in such an employee.
All these factors are sufficient to conclude that such an
employee looses his right to continue in job.
25. Whether such employee should be awarded
punishment of discharge simplicitier? Punishment of
discharge simplicitier neither operates as stigma nor debars
him from getting retrial benefits. Retrial benefits are given
to an employee for efficient services rendered to the
employer. One who defrauded the employer as well as the
customer cannot be said to have rendered efficient service.
Therefore such an employee cannot put a claim for retrial
benefits. His debase act would make him to receive ultimate
penalty. Therefore I am of the considered opinion that no
case is made out to show that punishment awarded to the
claimant was disproportionate to his misconduct,
warranting interference by the Tribunal. No case of
victimization, malafide or unfair labour practice has been
put forward by the claimant, in the matter of award of
punishment to him. All these reasons would make me to
comment that punishment awarded to the claimant
commensurate to his misconduct. Issue is, therefore,
answered in favour of the bank and against the claimant.
ISSUE NO. 3
26. Not even an iota of evidence was brought over
the record by the claimant to question legality of
punishment awarded to him. When there is vacuum of
evidence of malafide, arbitrariness, victimization and
exercise of unfair labour practice on the part of the bank, it
cannot be said that punishment awarded to the claimant
was not justified. There cannot be any reason to inter-
meddle with the punishment of discharge from service with
superannuation benefits awarded to the claimant.
Consequently it is announced that punishment of discharge
from service with superannuation benefits awarded to the
claimant vide order dated 11.01.2008 commensurate to his
misconduct and withstand standards of legality as well as
justifiability. No interference is called for in the punishment
by this Tribunal.
27. Whether punishment of discharge from service
with superannuation benefits would relate back to the date
of order, passed by the bank? For an answer, it is expedient
to consider the precedents handed down by the Apex Court.
In Ranipur Colliery [(1959) Supp. 2 SCR 719] the employer
conducted a domestic enquiry though defective and
passed an order of dismissal and moved the Tribunal for
approval of that order. It was ruled therein that if the enquiry
is not defective, the Tribunal has only to see whether there
was a prima facie case for dismissal and whether the
employer had come to the bonafide conclusion that the
employee was guilty of misconduct. Thereafter on coming
to that conclusion that the employer had bonafide come to
the conclusion that the employee was guilty, that is, there
was no unfair labour practice and no victimization, the
Tribunal would grant the approval which would relate back
to the date from which the employer had ordered the
dismissal. If the enquiry is defective for any reason, the
Tribunal would also have to consider for itself on the
evidence adduced before it whether the dismissal was
justified. However on coming to the conclusion on its own
appraisal of evidence adduced before it that the dismissal
was justified its approval of the order of dismissal made by
the employer on defective enquiry would still relate back
to the date when order was made.
28. In Phulbari Tea Estate [1960 (I) S.C.R. 32] the
domestic enquiry held by the employer culminating in the
order of dismissal was found to be invalid, being in gross
violation of the rules of natural justice. Even before the
Tribunal, the employer did not lead proper evidence to
justify the order of dismissal and contended itself by merely
producing the statement of certain witnesses recorded
during the domestic enquiry and the workman had no
opportunity to cross- examine the witnesses before the
Tribunal. In the absence of any evidence before it, justifying
the dismissal, the Tribunal set aside the order of dismissal
and granted compensation in lieu of reinstatement, which
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2599
Server3/E/1250RR/1250RR(3)
order was upheld by the Apex Court. In that case question
of relating back of the order of dismissal did not arise.
29. In P.H. Kalyani [1963 (1) LLJ 673] the employer
dismissed the workman after holding a domestic enquiry
into the charges. Since some dispute was pending before
the Industrial Tribunal, the employer applied for "approval"
of action of dismissal in compliance with the proviso to
section 33(2)(b) of the Act. The workman made an
application under section 33-A of the Act. Apart from relying
on validity of domestic enquiry, the employer adduced all
the evidence before the Tribunal in support of its action.
On basis of evidence before it, the Tribunal came to the
conclusion that the facts of misconduct committed by the
workman were of serious nature involving danger to human
life and therefore dismissed the application under section
33-A and accorded "approval" to the action of dismissal
taken by the employer. In this situation the Apex Court
held that if the enquiry is not defective and the action of
the employer is bonafide, the Tribunal will grant the
"approval" and the dismissal would "relate back to the
date from which the employer had ordered dismissal". If
the enquiry is invalid for any reason, the Tribunal will have
to consider for itself on the evidence adduced before it,
whether the dismissal was justified. If it comes to the
conclusion on its own appraisal of such evidence that the
dismissal was justified, the dismissal would "still relate
back to the date when the order was made". Sasa Musa
Sugar Works case (supra) was distinguished saying that
observations made therein "apply only to a case where the
employer had neither dismissed the employee nor had come
to the conclusion that a case for dismissal had been made.
In that case, the dismissal of the employee takes effect
from the date of the award and so untill then the relation of
employer and employee will continue in law and in fact".
30. D.C.Roy (1976 Lab. I.C. 1142) is the illustration
where domestic enquiry held by the employer was found
to be invalid being violative of principles of natural justice
and the employer had justified the order of dismissal by
leading evidence before the Labour Court, on appraisal of
which the Labour Court found the order of dismissal
justified. In appeal, the Apex Court upheld the award with
the observation that "the ratio of Kalyani's case (supra)
would therefore, govern the case and the judgment of the
Labour Court must relate back to the date on which the
order of dismissal was passed".
31. In Gujrat Steel Tubes Ltd. [1980 (1) LLJ 137]
inverted image of the D.C. Roy's case was presented by a
majority of three judge bench wherein it was held that
"where no enquiry has preceded punitive discharge, and
the Tribunal for the first time upholds the punishment, this
court in D.C. Roy vs. Presiding Officer (supra) has taken
the view that full wages be paid untill the date of the award.
There cannot be any relation back of the date of dismissal
when the management passed the void order". Though
the court ruled that law laid in D.C.Roy is correct yet it
followed obiter instead of the decision. Observations of
the Apex Court in above decision, bearing on the relate
back rule, were faulted in R.Thiruvirkolam [1997 (1) SCC 9]
on the ground that they "are not in the line with the decision
in Kalyani which was binding or with D.C. Roy to which
learned Judge Krishna lyer J. was a party. It also does not
match with the juristic principle discussed in Wade". The
view taken in R.Thiruvirkolam (supra) was affirmed in Punjab
Dairy Development Corporation Ltd. [1997 (2) LLJ 1041].
32. In view of the catena of decisions, detailed above,
it is clear that an employer can justify its action by leading
evidence before the Tribunal. This equally applies to cases
of total absence of enquiry and defective enquiry. A case
of defective enquiry stands on the same footing as no
enquiry. If no evidence is led or evidence adduced does
not justify the discharge from service by the employer, the
Tribunal can order reinstatement or payment of
compensation as it may think fit. But if it finds on the
evidence adduced before it that the discharge from service
is justified, the doctrine of relate back is pressed into service
to bridge the time gap between the rupture of the
relationship of employer and employee and the finding of
the Tribunal.
33. If the workman is to be paid wages upto the date
of the award of the Tribunal, the Parliament has to enact
so, declares the Delhi High Court in Ranjit Singh Tomar
(ILR 1983 Delhi 802). Obviously the Act does not make any
provision for the situation. Precedents in Ghanshyam Das
Shrivastava [1973 (1) SCC 656], Capt. M.Paul Anthony [1999
(3) SCC 679] and South Bengal State Transport Corporation
[2006 (2) SCC 584] nowhere deal with the controversy,
hence are not discussed.
34. In view of the above law, it is ordered that the
order of discharge from service with superannuation
benefits will relate back to the date when the bank passed
order of discharge from service against the claimant. Claim
put forward by Shri Subodh Narain Jha is liable to be
brushed aside. Accordingly, his claim is dismissed. An
award is passed in favour of the bank and against the
claimant. It be sent to the appropriate Government for
publication.
Dated 04.02.2013
Sd/-
Dr. R.K. YADAV, Presiding Officer
ubZ fnYyh] 20 ekpZ 2013
dkñvkñ 883.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj chñlhñlhñ,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 uañ 1] /kuckn ds iapkV ¼lanHkZ la[;k 88@1999½ dks
2600
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(3)
izdkf'kr djrh gS] tks dasnzh; ljdkj dks 20@03@2013 dks izkIr gqvk
FkkA
[Qkñ lañ ,y&20012@531@1998&vkbZ vkj ¼lh&I½]
,eñdsñ ¯lg] vuqHkkx vf/kdkjh
New Delhi, the 20th March, 2013
S.O. 883.—In pursuance of Section 17 of the
Industrial Dispute Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 88/1999)
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 M/s. BCCL and their workman, which was
received by the Central Government on 20/03/2013.
[No. L-20012/531/1998-IR(C-I)]
M.K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL (NO. 1) DHANBAD
IN THE MATTER OF A REFERENCE U/S 10(1) (D) (2A)
OF I.D. ACT, 1947
Ref. No. 88 of 1999
Employers in relation to the management of Koyla
Bhawan of M/S B.C.C.L.
and
Their workmen
Present
:
Sri Ranjan Kumar Saran,
Presiding officer
Appearances
:
For the Employers :
None
For the Workman
:
Sri N.G. Arun, Rep.
State :-Jharkhand
Industry:- Coal.
Dated. 05/03/2013
AWARD
By Order No.L-20012/531/98-(C-I), dated 17/05/1999,
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 disputes for
adjudication to this Tribunal:
SCHEDULE
^^D;k ohñlhñlhñ,yñ ds izca/k ra= }kjk fl)ukFk 'kqDy dks
le;iwoZ lsokfuo`Ùk fd;k x;k\ ;fn gkW rks deZdkj fdl jkgr ds ik=
gSa\**
2. The case is received from the Ministry of Labour
on 15.06.1999. Both parties are noticed. The Union files
their written statement on 26.11.1999. And rejoinder filed
by the Sponsoring Union on 12.06.2000. One witness on
behalf of the management examined and one document
has been marked as Ext. M-1.
3. Short point is to be decided in the reference is as
to superannuation of the workman, taking his Date of Birth
is 1935 is justified or not. The claim of the workman is his
Date of Birth is 1.5.1938 not 1.5.1935. In this case from the
side of the management one witness has been examined
and one document Ext. M-1 marked.
4. The witness Sri Bipin Bihari Rai MW-1 says
previously the workman was working at Eastern India Coal
Company Ltd and thereafter joined in BCCL. The witness
marked the relevant page of From "B" register Ext. M-1,
Where Serial No. 32454, contains the name and Date of
Birth of the workman. Where it is mentioned the Date of
Birth of the workman was 1.5.1935.
5. The workman though filed some documents, has
not proved the same not examined himself as a witness and
not gave evidence to the effect that his Date of Birth is
1.5.1938. Therefore taking into the oral and documentary
evidence filed by the workman came to the conclusion that
the Date of Birth of the workman is 1.5.1935 not 1.5.1938.
6. Considering the facts and circumstance, I hold
that the management superannuating, Sri Sidhnath Shukla
in time is justified and the concerned workman is not entitled
to any relief. The reference answered against the workman.
This is my award
R.K. SARAN, Presiding Officer
ubZ fnYyh] 20 ekpZ 2013
dkñvkñ 884.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj chñlhñlhñ,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
uañ 1] /kuckn ds iapkV ¼lanHkZ la[;k 75@2001½ dks izdkf'kr djrh
gS] tks dsUnzh; ljdkj dks 20@03@2013 dks izkIr gqvk FkkA
[Qkñ lañ ,y&20012@604@2000&vkbZ vkj ¼lh&I½]
,eñdsñ ¯lg] vuqHkkx vf/kdkjh
New Delhi, the 20th March, 2013
S.O. 884.—In pursuance of Section 17 of the
Industrial Dispute Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 75/2001)
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 M/s. BCCL and their workman, which was
received by the Central Government on 20/03/2013.
[F. No. L-20012/604/2000-IR(C-I)]
M.K. SINGH, Ssection Officer
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2601
Server3/E/1250RR/1250RR(3)
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL (NO. 1) DHANBAD
IN THE MATTER OF A REFERENCE U/S 10(1) (D) (2A)
OF I.D. ACT, 1947
Ref. No. 75 of 2001
Employers in relation to the management of Pootki
Balihari Colliery of M/S. B.C.C.L.
and
Their workmen
Present
:
Sri Ranjan Kumar Saran,
Presiding officer
Appearances:
For the Employers :
Sri D.K. Verma, Advocate
For the Workman
:
Sri M.M. Khan, Advocate
State:- Jharkhand
Industry:- Coal.
Dated. 08/03/2013
AWARD
By Order No.L-20012/604/2000-(C-I), dated 16/03/
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
disputes for adjudication to this Tribunal:
SCHEDULE
"Whether the action of the management of Pootki
Colliery of M/S BCCL in dismissing the service of Smt.
Ramadana Devi, sweeper from the company w.e.f. 11.4.96 is
justified? if not to what relief is the concerned workman
entitled?"
1. The case is received from the Ministry of Labour
on 03.04.2001 Both parties are noticed. The Union files
their written statement on 06.09.2002. And rejoinder filed
by the Sponsoring Union on 28.07.2003. The workman was
a lady sweeper, working in BCCL, she has been dismissed
from her service on the ground of habitual absentee
unauthorisedly.
2. The concerned workman Smt. Ramdana Devi is
already died on 18.8.2009. As such the substitution allowed
in the name of his son Sri Shankar Bhuiya. As Sri Shankar
Bhuia is the legal heirs of Late Smt. Ramdana Devi.
3. The domestic enquiry conducted by the
management is accept by the Id. counsel for the workman
in this case. And the acceptance petition of the Id. counsel
of the workman is accept by the tribunal, it is held as fair
and proper and the said order became final. The ground for
dismissal is habitual absence. Her duty period is given
below.
1992—172 days
1993—193 days
1994—96 days
4. If above is the period of workman duty as sweeper.
The whole domestic enquiry proceeding is accepted as fair
and proper by Id. counsel of the workman it means the
habitual absence is accepted. As per Ext. MW-1 the duty
period is only 96 days in 1994. the entire cleaning system
will be collapsed.
5. It is argued by the workman, that the continuance
absence ought not attract major penalty. But the nature of
work always matters. If a sweepress, remains absent
continuously, the management has not committed any error
specially. When the domestic enquiry has been held as fair
and proper.
6. considering the facts and circumstance, I hold that
the action of the management of pootki colliery of M/s.
BCCL in dismissing the service of late smt. Ramdana Devi,
sweeper from the company w.e.f. 11.6.96 is justified and
fair. Hence the son of the concerned workman is not entitled
to any relief. Reference answered against the workman.
This is my award.
R.K. SARAN, Presiding Officer
ubZ fnYyh] 20 ekpZ 2013
dkñvkñ 885.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj chñlhñlhñ,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
uañ 1] /kuckn ds iapkV ¼lanHkZ la[;k 41@2009½ dks izdkf'kr djrh
gS] tks dsUnzh; ljdkj dks 20@03@2013 dks izkIr gqvk FkkA
[lañ ,y&20012@49@2009&vkbZ vkj ¼lh&I½]
,eñdsñ ¯lg] vuqHkkx vf/kdkjh
New Delhi, the 20th March, 2013
S.O. 885.—In pursuance of Section 17 of the
Industrial Dispute Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 41/2009)
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 M/s. BCCL and their workman, which was
received by the Central Government on 20/03/2013.
[No. L-20012/49/2009-IR(C-I)]
M.K. SINGH, Section Officer
2602
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(3)
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL (N0. 1), DHANBAD.
IN THE MATTER OF A REFERENCE U/S 10(1) (D) (2A)
OF I.D. ACT, 1947.
REF. NO. 41 OF 2009
Employers in relation to the management of W.J. Area of
M/S. B. C.C.L.
and
Their workmen.
Present
:
Sri Ranjan Kumar Saran,
Presiding officer
Appearances
:
For the Employers. :
Sri D.K. Verma, Advocate
For the workman.
:
Sri C.K. Jha, Rep.
State
:
Jharkhand
Industry
:
Coal.
Dated. 04/03/2013
AWARD
By Order No. L-20012/49/2009-IR (CM-I), dated
09/07/2009, 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 Dispute Act, 1947, referred the following
disputes for adjudication to this Tribunal:
SCHEDULE
"Whether the action of the management of Bhatdee
Colliery of M/S. BCCL in not allowing Sri Raju
Vishwakarma, M/Loader to resume his duty in the
duty, company is legal and justified? (ii) To what
relief is the concerned workan entitled?"
2. The case is received from the Ministry of Labour
on 17.07.2009. After notice, both parties appeared, the
workman/Union files their written statement on 05.03.2010.
And the management files their written statement-cum-
rejoinder on 27.01.2011. Evidence taken from both side on
preliminary point regarding fairness of domestic enquiry
and document marked.
3. The workman was not allowed to work i.e. refused
to join as he was a habitual absentee from duty. After a
departmental enquiry and after show cause the workman
was removed. Here the preliminary enquiry conducted, it is
observed that the domestic enquiry was fair and proper.
4. The main misconduct against the workman that he
was a habitual absentee. His absentee statement is given
below:
Year
Attendance
2000
112 days
2001
31 days
2002
82 days
2003
63 days
5. The question is save and except the absence he has
not other misconduct. Definitely long absence will hamper
the work of the management. The workman in his evidence
has stated that he was unnecessarily detained in jail on false
allegations for which he could not attend his duty.
6. Moreover the dupty personnel manager Bhatdee
colliery recommended to allow the workman to join duty in
following words which is quoted below:
"In this particular case the accused workman has
not found guilty by the Court. The pension
contribution for the gap period is concerned, it
will not be the liability of the management as per
circular too.
On the circumstances as stated above, we propose
to allow him to join his duty subject to submitting
original documents as stated above and medical
fitness, approval of the competent authority BCCL,
since the absenteeism period is more that one &
half years.
sSubmitted to the chief General Manager, WJA
Moonidih for his kind perusal and necessary
action."
7. If this is the recommendation it is not understood
why a chance is not given to the workman.
8. Considering the fact and circumstances the action
of the management of Bhatdee colliery of M/S. BCCL in
not allowing Sri Raju Vishwakarma, M/Loader to resume
the duty in the company is not justified. The opinion of the
Tribunal, dismissal is a harsh punishment to the workman.
Hence he be reinstated in the said post after due formality
without back wages.
This is my award.
R.K. SARAN, Presiding Officer
ubZ fnYyh ] 20 ekpZ] 2013
dk-vk-
886.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj chñlhñlhñ,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
uañ 1] /kuckn ds iapkV ¼lanHkZ la[;k 198@1997½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 20&03&2013 dks izkIr gqvk FkkAs
[lañ ,y@20012@352@1996&vkbZvkj¼lh&1½]
,eñdsñ flag] vuqHkkx vf/kdkjh
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2603
Server3/E/1250RR/1250RR(3)
New Delhi, the 20th March, 2013
S.O. 886.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 198/1997)
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 ralation to the
management of M/s. BCCL and their workmen, which was
received by the Central Government on 20/03/2013.
[No. L-20012/352/1996-IR(C-I)]
M.K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL (N0. 1), DHANBAD.
IN THE MATTER OF A REFERENCE U/S 10(1) (D) (2A)
OF I.D. ACT, 1947.
REF. NO. 198 OF 1997
Employers in relation to the management of Barora Area
of M/S. B. C.C.L.
and
Their workmen.
Present
:
Sri Ranjan Kumar Saran,
Presiding officer
Appearances:
For the Employers. :
None
For the workman.
:
Sri K. Chakraborty, Rep.
State
: Jharkhand
Industry
: Coal.
Dated. 04/03/2013
AWARD
By Order No. L-20012/352/96-IR (C-I), dated
25/11/1997, 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
disputes for adjudication to this Tribunal:
SCHEDULE
"Whether the demand of the Union for the fixation
of the salary of Sh. S.M. Loraiya Accountant at Rs.
1,481/- in the year 1987? is justified? if so, to what
relief is the workman entitled?"
2. The case is received from the Ministry of Labour
on 03.12.1997. Both parties are noticed. The Union files
their written statement on 21.01.1998. After that rejoinder
and document received and marked. The only point to be
decided in the reference is whether the workman is entitled
to one advance increment. Since he has passed graduation
in the year 1986 during his service tenure, as per the circular
of the management.
3. In this case said circular has been filed by the
workman w-1. the relevant portion of the said circular is
extracted below:
"It has been decided to grant one advance increment
to the under graduate ministerial staff irrespective of
their place of posting who obtained a degree viz-
B.A, B.Sc, B.Com from a recognized University or
equivalent institute.
Advance increment will be admissible in respect of
the employees who have already obtained higher
qualification during the service period from 20.11.1974
to 31.12.1982. This benefit will not be applicable
beyond 31st December 1982."
4. From the above circular it is clear that the
employees who became a graduate beyond 31st December
1982, are not entitled to one advance increment. The
workman in his evidence has stated that he passed B.Com
first part. In the year 1986 he completed his graduation.
5. Therefore according to the circular, the workman
is not entitled to get any advance increment. His further
claim that his juniors are getting higher scale than him, the
basis is not known to this Tribunal nor that has been
explained by the workman before us for entitled to the
relief claimed.
6. Considering the facts and circumstance, I hold that
the demand of the union for the fixation of the salary of Sri
S.M. Loraiya Accountant at Rs. 1,481/- in the year 1987 is
not justified, Hence the workman is not entitled to get any
relief, the reference is answered against the workman.
This is my award
R.K. SARAN, Presiding Officer
ubZ fnYyh ] 20 ekpZ] 2013
dk-vk-
887.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj chñlhñlhñ,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 uañ
1] /kuckn ds iapkV ¼lanHkZ la[;k 4@2003½ dks izdkf'kr djrh gS]
tks dsUnzh; ljdkj dks 20&03&2013 dks izkIr gqvk FkkA
[la- ,y@20012@181@2002&vkbZvkj¼lh&1½]
,eñdsñ flag] vuqHkkx vf/kdkjh
New Delhi, the 20th March, 2013
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. 4 of
2003) of the Central Government Industrial Tribunal-cum-
2604
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(3)
Labour Court, No. 1, Dhanbad as shown in the Annexure,
in the Industrial Dispute between the employers in ralation
to the management of M/s. BCCL and their workmen, which
was received by the Central Government on 20/03/2013.
[No. L-20012/181/2002-IR(C-I)]
M.K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL (N0. 1), DHANBAD.
IN THE MATTER OF A REFERENCE U/S 10(1) (D) (2A)
OF I.D. ACT, 1947.
Ref. No. 4 of 2003
Employers in relation to the management of P.B. Area of
M/S.B. C.C.L.
and
Their workmen.
Present
:
Sri Ranjan Kumar Saran,
Presiding officer
Appearances:
For the Employers. :
Shi D.K. Verma, Advocate
For the workman.
:
None
State
:
Jharkhand
Industry
:
Coal.
Dated. 08/03/2013
AWARD
By Order No. L-20012/181/2002 (C-I), dated
10/12/2002, 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 Dispute Act, 1947, referred the following
disputes for adjudication to this Tribunal:
SCHEDULE
"Whether the demand of Sampurna BCCL Chalak
Samittee from the management of P.B. Area of M/S.
BCCL, for regularisation of S/Sri Lalan Singh, Sohar
Singh and Mahesh Yadav as Driver in Cat-V w.e.f.
1992 and fix pay of the concerned workman in the
corresponding category and scale from 1992 itself is
fair and justified? If so, to what relief are the
concerned workman entitled?"
2. The case is received from the Ministry of Labour
on 01.01.2003 Both parties are noticed. The workman files
their wirtten statement on 17.02.2003. And rejoinder filed
by the workmen on 26.08.2003. The short point involved in
the case is whether the workmen named mentioned on the
reference are to be regularised as Driver Category V
from 2002.
3. By office order No. 11906 dated 06.09.1990, Sri
Lalan Singh and Sohar Singh alongwith others are allowed
to work as Dumper/Tripper Driver trainee, in their existing
category/group wages and after their training they will be
regularised at their respective categories. Accordingly the
above named person after their training as shown are to be
regularised as Driver in category-V w.e.f. 31.3.1992, as
recommended by the Deputy Chief Personnel Manager
Pootkee Balihari area to the Competent Authority vide REF:
PBA; regularisation 92/2170 Dated 31.03.1992/11.4.92.
4. The above named workman were regularised from
31.03.1992 by the Deputy CME/Agent, Bhagabandh Colliery
as per order No. 66 Dated 04.06.1992. But it is not understood
as to how Lalan Singh and Sohar Singh were regularised in
1998, in category-V without showing any reason or
justification.
5. Therefore, it is ordered as recommended earlier,
trained workman Lalan Singh and Sohar Singh are to be
regularised in category-V w.e.f. 31.03.1992 not from the Date
22.9.98
6. Considering the facts and circumstances, I hold
that the demand of sampurna BCL chalak samitee from the
management of P.B. Area for regularisation of Sri Lalan
Singh and Sohar Singh is fair and justified as Driver in cat-
V w.e.f. 1992 and they will be allowed to get benefits of
category-V workman w.e.f. 31.3.1992. But Sri Mahesh Yadav
is not regularised in service and not entitled to any relief.
The reference allowed in part.
This is my award.
Sd/-
R.K. SARAN, Presiding Officer
ubZ fnYyh ] 22 ekpZ] 2013
dk-vk-
888.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj eSllZ bZñlhñ,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
uañ 2] /kuckn ds iapkV ¼lanHkZ la[;k 3@1992½ dks izdkf'kr djrh
gS] tks dsUnzh; ljdkj dks 22&03&2013 dks izkIr gqvk FkkA
[la- ,y@20012@179@1991&vkbZvkj¼lh&1½]
,eñdsñ flag] vuqHkkx vf/kdkjh
New Delhi, the 22nd March, 2013
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. 3/1992) of
the Central Government Industrial Tribunal-cum-Labour
Court, No. 2, Dhanbad as shown in the Annexure, in the
Industrial Dispute between the employers in relation to the
management of M/s. ECL and their workmen, which was
received by the Central Government on 22/03/2013.
[No. L-20012/179/1991-IR(C-I)]
M.K. SINGH, Section Officer
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2605
Server3/E/1250RR/1250RR(3)
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. 03 OF 1992
Parties
:
Employer in relation to the
management of Chapapur II
Colliery of E.C.L. and their
workmen.
Appearances
:
On behalf of the workmen
:
None
On behalf of the management
:
Late B.M. Pd., Ld.
Adv.
State: Jharkhand
:
Industry: Coal
Dated, Dhanbad, the 4th Feb., 2013
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(179)/91.IR (Coal-I) dt. 14.1.1992.
SCHEDULE
"Whether S/Shri Abdul Kalam and 166 other
contractor workers are workman of the Chapapur-II Colliery
of M/s. Eastern Coalfields Ltd. and whether the demand
that these persons be regularised in the service of the said
management is justified? If so, to what relief these persons
are entitled?"
2. The case of the sponsoring union—Bihar Colliery
Kamgar Union, Jharnapara, Hirapur, Dhanbad (Jharkhand)
is that workmen Abdul Kalam and 166 other had been
performing the job of permanent nature driller, blaster,
explosive carrier, auto electrician, fitter mechanic, store
attendant, shoval operator, tarex operator, turner, store
keeper etc. in prohibited category in Chapapur II Colliery
of M/s. E.C.L. since long. All the jobs are given in the
Wage Board. Recommendations as implemented by the
management. They worked under the direct control of the
management; as per the Mines Act, Rules and Regulations,
all the workmen engaged in the job of removal of
overburden, stone cutting, raising coal and other jobs of
permanent nature are legal bound to work under the direct
control and supervision of the competent person.
Practically they were raising 90% of the coal for all purposes.
They had put in more than 190/240 days attendance in
each calendar year. Though they were the employees of
the employers for all purposes, the management with an
ulterior motive to victimise them, and for personal gain of
its officers, entrusted the job to so called contractor, and
accordingly the management had been giving them their
wages through alleged contractor only to deprive them
and arranging all the papers only to camouflage the real
issue only in view to deprive the poor workmen. Other
workmen of the Coal Industry were and are getting wages
as per NCWA II, III & IV. The action of the management in
paying the workmen much below the rates of NCWA was
illegal, arbitrary and denial to equal pay for work of equal
nature. Neither the alleged contractor had any licence nor
the management had any registration certificate for it.
Despite several times representation by the workman and
the Union for their regularisation, the anti-labour
managements refusal to amicably settle the Industrial
Dispute on 4.12.1990 before the A.L.C. (C), Dhanbad, it
resulted in the reference for an adjudication. The action of
the management in not regularising them in service and
under-paying their due wages was illegal, arbitrary and
unjustified and against the principle of natural justice.
3. In its rejoinder categorically denying all the
allegations of the management the union has denied the
reference barred by alleged Tripartite Settlement dt.
11.9.1991 between Arbind Construction Company Ltd. and
Dhanbad Karmachari Sangh before the ALC(C), rather the
workmen were and are members of Bihar Colliery Kamgar
Union; Dhanbad Karmchari Sangh had no authority to raise
or settle any dispute for them. When the dispute was raised
at that time the name of the colliery was Chapapur II Colliery
it is still functioning, however, it was a pleasure of the
management to change the name of the colliery as and
when required. The workmen were directly involved in the
production of coal in the colliery, as they had performed
the job of permanent nature—both raising of coal and
cutting of stones. All the workmen were engaged by the
management through intermediary for performing
permanent job, so any settlement with alleged intermediary
by stranger union is not enforceable in respect of the
reference.
4. Whereas the contra pleaded case of the
management is that the present Industrial Dispute is not
maintainable, as the sponsoring union has no locus standi
in it on the ground that alleged person are not the member
of it; there was never any employer and employee
relationship between Shri Abdul Kalam and others 166
persons quite stranger to and the management. The
Reference is barred by Tripartite Settlement dt. 11.9.1991
between M/s. Arbind Construction Coal Ltd., Contractors
and the Dhanbad Karmchari Sangh before the ALC (C),
Dhanbad. Though there is no colliery named Chapapur II
Colliery; now, the Eastern Coalfields Ltd., has one Chapapur
Colliery in the year 1988, the management had opened a
2606
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(3)
Mechanised Quarry to be operated exclusively through
hired heavy Earthmoving Machinery of Arbind
Construction Coal Ltd, The aforesaid Quary at Chapapur
was a separate Mine with a separate Industrial
Establishment under the provisions of the Mines Act and
the Industrial Dispute Act. But due to unavoidable
circumstances and litigation by the aforesaid Company, it
worked upto July, 1991 and the Mechanised Quarry was
closed as now, in respect of which there is no proposal to
operate it again. Since as per the arrangements of the
management for operation of the Mechanised Quarry
through the hired Heavy Earth Moving Machinery of the
aforesaid Company was on temporary basis, so the owners
of the aforesaid Machinery had to arrange their own men
for their Machinery, as the part of their establishment was
outside the Mechanised Quarry.
5. Further case of the management is that the
management paid the aforesaid Company for the Machinery
hired for the operation of the Mechanised Quarry of the
management and the company itself had to pay their workers
whomsoever engaged by it casually. The management was
unconcerned with such persons casually employed by the
company or with the payment of their wages by it, and the
company has similar commitment with other parties in
respect of the casual engagement of persons in that regard.
The Company had engaged their own Supervisor for
supervising the work of the operation etc. of its Machinery.
After the end of the arrangement between the Management
and the aforesaid Company, it took away its machinery and
dealt with its workers as per the conditions of their
engagement, because its Heavy Earth Moving Machinery
and men were inseparable for the Company. As such the
claim for the regularisation of the persons by the
management as claimed by the Union is not at all justified
nor any such question arises. Besides that the aforesaid
Company of Heavy Earth Moving Machinery had never
employed as many as 167 persons in respect of the
aforesaid arrangement for its operation because the number
of persons engaged by the aforesaid company was variable
and far lesser from time to time. At the end of the hiring
arrangements of the Machinery by the management the
Industrial Dispute raised by the aforesaid Union and served
a strike notice upon the M/s. Arbind Construction Coal
Ltd., and the matter in conciliation proceeding before the
ALC (C), Dhanbad under the I.D. Act was seized as a result
of the settlement between the above Company, the Union
and workmen engaged by the Company on 11.9.1991. Since
the matter was settled, it was closed once for all, which is
an absolute bar to the present Reference, thus the Bihar
Colliery Kamgar Union, another Trade Union, cannot be
allowed to undo the aforesaid settlement and seek any
benefit for the alleged persons' forceful employment into
the management; these persons are imposter who never
worked under aforesaid Company. The management has
no obligation to provide these persons or any genuine
workers of the aforesaid Company any employment. The
Eastern Coalfields Ltd., is a Government Company under
Sec. 617 of the Companies Act, is entirely financed by the
Central Government is a state at least for the purpose of
Part III of the Constitution being a Central Public Sector
Undertaking. All recruitments in the Government
Department and Public Sector Undertakings should be made
through the Employment Exchange after due compliance
with the provisions of the Employment Exchange
(Compulsory Notification of Vacancies) at. There can be
no backdoor employment of the persons. The E.C.L. has
already burden of surplus workers.
6. The Management in its rejoinder, denying
categorically the allegations of the Union, has stated that
the recommendations of the Central Wage Board for Coal
Industry, then a non-statutory Wage Board, (even to that
extent accepted by the Central Government) ceased to be
in force from 01.01.1995. The work effected through hired
earth moving machinery in quarries was never prohibited
The Mines Act, Mines Rules and Coal Mines Regulation
deal with safety matters and arrangements in that
connection, which is quite different from supervision of
the work. Many jobs in Coal Mines are being executed by
different Coal Mines Workers through contractors and
licences as per their licences issued by the Licencing
Authority concerned under the Contract Labour
(Regulation & Abolition) Act, 1970. In all such cases, the
contractors' workers remain workers of contractors only.
The work done by machines is quite distinct from
work done manually. Only some manually jobs on contract
are prohibited by the said Act but since the introduction of
aforesaid heavy Machinery of different in Coal Industry is
of different, contractual manual jobs have no applications.
As the management never employed the alleged persons,
so the question for stopping them by it from services neither
arises nor can be. The Sec. F of the I.D. Act is quite
irrelevant.
FINDING WITH REASONING.
7. In the reference case, WWI Ram Chandra Biswas,
one Sl. No. 45 of the workmen's list, in behalf of the Union
concerned and MWI Chandi Charan Nag, the then Survey
Officer and MW2 R.J. Singh for the management have
examined.
According to the statement of WWI Ramen Chandra
Biswas (Sl. No. 45) all the workmen including him
continuously worked as Compressor Operator, bloster,
Driller Explosive Carrier, Shavel Dumper Operator, Store
Keeper, Mechanic and Fitter etc. at Chapapur Colliery in
the year 1987 and 1988 under the management since their
appointment in the former year. They every day used to
mark their attendance, collected instruments from the stores
and used to work as distributed by the management for
more than 240 days each year. They worked with permanent
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2607
Server3/E/1250RR/1250RR(3)
workers, and used to draw their wages as per the
photocopies of their Pay Slips issued by Arvind
Construction Co. Ltd. (with objection) (for Oct. 90 to March
91)-Extt. W. 3 series (with objection) but not according to
N.C.W.A Out of his 18 photocopies of the I.D. Cards issued
by M/s. Arvind Construction Co. Ltd., signed by the Project
Officer as Extt. 1 series, those of the I.D. Cards of Kashi
Nath, Sahdeo Gorai Sunil Kr. Singh and Santosh Viswakarma
are beyond the list of the workmen enclosed with the
Reference. So far as the photocopies of the Form of their
Appointment as Extt. W. 2 series (with objection) are
concerned, these are total eight in number out of which its
copies of Parash Mandal (Sl. No. 2), Bula Mallih (both
double copies) and T.P. Mandal (both latter unlisted), and
rest, and the rest are of K.C. Yadav, aforesaid Parash Mandal,
Surendra Pd. Singh and Ramen Chandra Vishwas (Sl. No.
153, 2, 6, and 8 respectively).
8. Besides that, the minutes of discussion held
between the management (Ext. W. 4), the copy of order for
hiring of equipment, heavy earth moving machine (Ext. W.
5), the copies of alleged Attendance of the persons
employed in Open Cast at Chapapur Colliery II in 253 sheets
for period from 4th Sept. to 25th December, 1989, and from
1st Jan. to 16th April, 1990 (weekly) which are not
Attendance but monthly Chart based on six days work per
weekly chart under the signature of Sri Ashok Dutta Gupta
Attendance Clerk, the photocopies of the Order dt. 29.1.90
of the Safety Officer, Chapapur Colliery about the basic
training of three contractual labourers (S/Sri B.K. Dubey,
Chinta Haran Das and Fatik Mandal) (Ext. W 7) of the
Vocational Training Certificate of Fatik Mandal (Ext. W. 8)
of his Attendance Report for the period from 29th Jan. to
10th Feb, 1990 (Ext. W. 9), of Payment of Salary Ext. W. 10
unmentioned in the evidence of WW1, and the photocopies
of Payment Sheet (Ext. W. 11 Series - in 19 (nineteen) sheets
of total 216 employees for the month of March, 1990 only)—
all along the aforesaid Extt. with objection—have been
brought on the record by WWI Ramen Chandra Biswas.
But the workman (WWI) has admitted that they have
not got any appointment letter, any Pay Slips or any Identity
Card from the management, expressing his ignorance of
any contractor other than the Arvind Construction Co.
Ltd., which supplied heavy earth moving equipment to the
management.
9. Whereas the statement of MWI Chandi Charan
Nag, the then Survey Officer of Chapapur Colliery under
the management seems to affirm the case of the
management. According to him, while his posting as then
Survey Officer at the Chapapur Colliery, the management
entered into the contract dt. 14th April, 1988 (Ext. M. 4)
with the Arvind Construction Co. Ltd on acceptance of the
management's tender by them, and thereafter the work order
dt. 14.4.88 (Ext. M. 1) of the management was accepted by
the Company for hiring of heavy earth removal machineries.
These aforesaid machineries were to be operated by the
operators of the Construction Company. The management
used to maintain its record i.e. the Measurement Book (Ext.
M-2, MB. No. 10 of Quary No. 10 (Ext. 1989-90) relating to
the work done by the said Company. The management
used to pay money to the company according to their bills
submitted by then after its proper verification for the work
done by it (the Bills marked Ext. M. 3 series total 25 sheets,
out of which eight Bills with the sixteen statements etc. of
the Explosive Materials supplied to the Company and one
statement of Arrear Income Tax for the relevant period of
the 1989) as per the said Contractual terms and conditions.
The said Arvind Construction Company was given to the
Contract for taking up the mechanical works in the same
and identical Chapapur Colliery or Chapapur II Colliery, in
the single existence. Since the management had no
involvement in engagement of any worker by the said
Company, there was no existence of employer-employee
relationship between the management and the aforesaid
Company. The contractual work started from 1989 and
completed in the year 1999, thereafter no relationship
whatsoever existed between the management and the said
construction works including its workers.
10. Further statement of the management witness
(MWI), is that in an Open Cast Mine, cutting of earth,
stone and coal is essential. Each mine has to maintain Form
B Register, and attendance of any worker in the Mine
should be noted in either of Form C, D or E. Management
also engages different types of workers to operate different
machines for cutting earth, stone, coal as for lifting coal.
The said Arvind Construction Company was also given a
contract for cutting earth, coal and stone during the year
1987-88 (voluntarily stated not to have been posted there).
Independently no contract was given to the said Company
for raising coal.
11. Likewise is the statement of MW2 R.J.P. Singh,
the Under Manager of the Chapapur Colliery which seems
quite supportive to that of Sri Chandi Charan Nag (MW1).
The witness (MW2) has maintained the case of the
Management that in the year 1989, some machine and tools
were hired by the management from the Arvind Construction
Company for engaging over burden removal. Those
machines and tools were operated by the men of the said
company for removal of over burden under their supervision
from 1989 to 1991 at the colliery. Shovel, dumper, drilling
machines etc. were hired by the management from the
company for taking up the job. In all 5-6 workers were
engaged for operation of the said machines. The
management used to measure the work done by the
company (Ext. M.2-Measurement Book identified) as per
the work order, Bills (with statement) and the terms &
conditions (Extt. M-1, M.3 series and M.4 respectively)
and payment was made to the said company by the
management on the basis of the Bills. The working of the
said mechanised quarry through hired machinery of the
2608
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(3)
Company only upto March, 1991 due to unavoidable
circumstances and litigation of the Company and the
closure of the quarry as mentioned in para 5 of the Written
Statement of the management has been justified by the
witness (MW1). He has stated the measurement book (Ext.
M.2) has note about the measurement of cutting coal and
its transportation, but it clearly relates to excavation at the
quarry of Chapapur Colliery II (as Colliery I was closed in
about 1978) known as Chapapur Colliery since then.
Maintenance of Form B Register containing particulars of
every worker in every colliery, and recording of Attendance
of workers working in the mine., have also been asserted
by the witness (MW1), but he tailed to assert who were the
workmen in the instant reference case.
12. On the careful consideration of the materials as
adduced and available on behalf of both the parties, I find
the following facts:
That not a single document of the workmen
establishes the employer—employee relationship between
both the parties, rather it proves their status as temporary
workers of their contractor : Arvind Construction Co. Ltd.
for their job/work of heavy burden earth removal through
its heavy machinery. Each document of the workmen
establishes their payment of wages made by the said
company for their performance and that the workmen/the
Union Representative has utterly failed to prove that they
had continuously but actually worked for 240 days in any
calendar year as required under Section 25 B (2) (b) (ii) of
the Industrial Dispute Act, 1947 though, it stands
unquestionable on account of their being workers for the
said company.
Under these circumstances, it is held and accordingly
awarded in the terms of reference as such:
None of S/Shri Abdul Kalam and 166 other
contractor workers are workmen of the Chapapur
II Colliery of M/s Eastern Coalfields Ltd., so their
demand for regularisation in the service of the
said management is total unjustified. In result,
these persons are not entitled to any relief.
Sd/-
KISHORI RAM, Presiding Officer
ubZ fnYyh] 22 ekpZ] 2013
dkñvkñ 889.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj chñlhñlhñ,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
uañ 2 /kuckn ds iapkV ¼lanHkZ la[;k 32@2005½ dks izdkf'kr djrh
gS tks dsUnzh; ljdkj dks 22-03-2013 dks izkIr gqvk FkkA
[lañ ,y&22012@206@2004&vkbZ vkj ¼lh&I½]
,e- ds- flag] vuqHkkx vf/kdkjh
New Delhi, the 22nd March, 2013
S.O. 889.—In pursuance of Section 17 of the
Industrial Dispute Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 32/2005
of the Central Government IndustrialTribunal-cum-Labour
Court No. 2, Dhanband 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 22.03.2013.
[No. L-22012/206/2004-IR (C-I)
M.K. SINGH, 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. 32 OF 2005
Parties
:
Employer in relation to the management
of Kusunda Area of M/s BCCL and their
workman.
Apperances:
On behalf of the workman
: None
On behalf of the management
: Mr. U.N. Lal, Ld. Adv.
State
: Jharkhand Industry: Coal
Dated, Dhanbad, the 15th Feb., 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-20012/206/2004-IR(C-I) dt. 24.3.2005.
SCHEDULE
"Whether action of the management of M/s BCCL
not to give employment to Sri Kundan dependant
son of Late Nanka Bhuiya, Bhatta Trammer of
Capsule Workshop, Godhur under Kusunda Area of
M/s BCCL under the provisions of NCWA is
justified? If not, to what relief if the said dependant
entitled?"
2. Neither Mr. K.N. Singh, the Union Representative
for Petitioner Kundan nor the Petitioner present nor any
witness of the peititioner produced despite last change.
But Mr. U.N. Lal, Ld. Advocate of the management is
present.
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2609
Server3/E/1250RR/1250RR(3)
Perused the case record. It stands clear that the case
has been pending for the evidence of the workman since
31.10.2011 and since thereafter the petitioner has been given
ample opportunities for his evidence in the case related to
his employment as dependant son of Late Nanak Bhuiya,
Bhatta Trammer of Capsul Workshop, Godhur under
Kusunda Area of M/s BCCL, yet the Union / the Petitioner
did not respond to the Regd. Notices dt. 3.4.12 and 5.11.12.
The very conduct of the Union Representative as well as
of the Petitioner clear reflects the fact that neither of them
is interested in pursuing the case of its final adjudication.
Under these circumstances, proceeding with the case
for uncertainty is unwarranted. Hence the case is closed
and accordingly, it is passed an order of no industrial
dispute existent.
Sd/-
KISHORI RAM, Presiding Officer
ubZ fnYyh] 22 ekpZ] 2013
dkñvkñ 890-
—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj chñlhñlhñ,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
uañ 2] /kuckn ds iapkV ¼lanHkZ la[;k 5@2008½ dks izdkf'kr djrh
gS tks dsUnzh; ljdkj dks 22-03-2013 dks izkIr gqvk FkkA
[lañ ,y&22012@129@2007&vkbZ vkj ¼lh&I½]
,e- ds- flag] vuqHkkx vf/kdkjh
New Delhi, the 22nd March, 2013
S.O. 890.— In pursuance of Section 17 of the
Industrial Dispute Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No 5/2008)
of the Central Government Industrial Tribunal-cum-Labour
Court No. 2, Dhanband as shown in the Annexure, in the
Industrial dispute between the employers in relation to the
management of M/s. BCCL and their workman, received
by the Central Government on 22.03.2013.
[No. L-20012/129/2007-IR (C-I)
M.K. Singh, 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. 05 OF 2008
PARTIES
:
Employer in relation to the management
of Katras Area of M/s BCCL and their
workman.
Apperances:
On behalf of the workman :
Mr. R.R. Ram, Ld. Adv.
On behalf of the management:
Mr. D.K.Verma Ld.
Adv.
State:
Jharkhand Industry:
Coal
Dated, Dhanbad, the 14th Feb., 2013
AWARD
The Government of India, Ministry of Labour in
exercise of the power 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-20012/129/2007-IR(CM-I) dt. 07.01.2008.
SCHEDULE
"Whether the action of the management of Salanpur
Colliery of M/s BCCL in not providing dependent
employment to Kumari Shima, D/o Late Asha Devi,
General Mazdoor under the provisions of NCWA is
justified and legal? If not, to what relief is the
dependent daughter of Late Asha Devi entitled?"
2. Mr. R. R. Ram, Ld. Advocate-cum-Union
Representative for Petitioner Kumari Shima and Mr. D.K.
Verma, the Ld. Advocate for the management are present,
but neither Rejoinder of the petitioner nor any documents
filed any of the parties. The Union Representative orally
submitted that for the closure of the case on the ground
that the peittioner has left to contest the case.
Perused the case record. I find that the case has
been pending for filing a Rejoinder on behalf of the
petitioner since 13.6.2012, for which Reg. Notice dt. 02.01.13
was issued to the Union. The present Reference relates to
an issue concerning the employment of dependant
petitioner Kumari Shima D/o Late Asha Devi, the General
Mazdoor. In view of the submission of the Union
Representative for the petitioner, it stands clear that no
Industrial Dispute exists; therefore accordingly, an order
of No Industrial Dispute existent is passed.
Sd/-
KISHORI RAM, Presiding Officer
ubZ fnYyh] 22 ekpZ] 2013
dkñvkñ 891-
—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj chñlhñlhñ,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 uañ 2] /kuckn ds iapkV ¼lanHkZ la[;k 34@1995½ dks
2610
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(3)
izdkf'kr djrh gS tks dsUnzh; ljdkj dks 22-03-2013 dks izkIr gqvk
FkkA
[lañ ,y&22012@84@1994&vkbZ vkj ¼lh&I½]
,e- ds- flag] vuqHkkx vf/kdkjh
New Delhi, the 22nd March, 2013
S.O. 891.—In pursuance of Section 17 of the
Industrial Dispute Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 34/1995
of the Central Government Industrial Tribunal-cum-Labour
Court No. 2, Dhanband 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 22.03.2013.
[No. L-22012/84/1994-IR (CM-I)
Sd/-
M.K. SINGH, 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. 34 OF 1995
Parties :
Employer in relation to the
management of Simlabahal Colliery of
M/s BCCL (Bhalgora Area) and their
workman.
Apperances:
On behalf of the workman : Mr. S.N.
Goswami, Ld. Advocate.
On behalf of the management: None
State:
Jharkhand Industry: Coal
Dated, Dhanbad, the 4th Feb., 2013
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(84)/94.I.R.(Coal-I) dt. 10.03.1995.
SCHEDULE
"Whether the action of the management of
Simlabahal Colliery under Bhalgora Area of BCCL,
PO: Jharia, Distt: Dhanbad in dismissing from service
of Shri Jogendra Turi, Ex-Tyndal with effect from
1.9.1993 is justified? If not to what relief the workman
is entitled to?"
2. The case of the sponsoring union is that workman
Jogendra Turi was employed as Miner/Loader on 28.8.1972,
subsequently converted as Tyndal on time rate, but he was
dismissed from his service by the management of Simlabahal
Colliery under Bhalgora Area of B.C.C.L. Jharia, Distt:
Dhanbad w.e.f. 1.9.1993 as the letter No. BCCL/S.B.C./PO/
193/2040 dt. 31.8./1.9.1993 on the charges of impersonation
under clause 18(i)(a) and 18(i)(o) of the Model/Certified
Standing Orders as applicable to the establishment as per
the letter No. BCCL/BA/SBC/89/1828 dt. 10.11.89, though
he rendered his satisfactory services for more than seventeen
years. The workman had submitted his satisfactory
explanation to the chargesheet, yet the management held
the domestic enquiry. His dismissal was based on perverse
finding of the Enquiry Officer which was unbased on valied
evidence facts either legal are documentary, after inordinately
delaying the departmental enquiry adversely affecting the
workman's defence. Therefore, it has been urged for
unjustifying his dismissal and for his reinstatement in his
services of the Company with full back wages and others
benefits deemed fit and proper.
3. Further the workman himself in his rejoinder with
specifical denials has pleased that the management's
Enquiry Officer was biased who did not give him full
opportunity for defence. Hence, the enquiry was held
against the principle of natural justice. The Disciplinary
Authority did not apply his mind. The Employer is not a
public servant u/s 21 clause 12 of the I.P.C., as the Officers
of the BCCL are not rendering the sovereign function of
the state, being so no immunity is granted to them.
4. Whereas the contra pleaded case of the
management is that workman Jogendra Turi, Ex-Tyndal was
issued the aforesaid chargesheet, as he had secured
employment at Simlabahal Colliery by fraudulently
impersonating as Jogendra Turi S/o Sri Bipan Turi as Tyndal
from 28.8.72 against I/D No. 72438 furnishing therein his
bio-data with leave address Village, PO/PS. Goh, Distt: Gaya
presently in Aurangabad. That was revealed during the
verification of Bio-data filed by him as per his Affidavit dt.
13.2.1985 before the Colliery Authority/G.M. for correcting
his name Jogendra Singh S/o Sheo Shanker Singh of same
village as contrasted with his details earlier recorded on
the Colliery Form B Register at Sl. No. 109. He was charged
with misconduct under clause 18(1)(a) and 18(i)(o) of the
Model/Certified Standing Order applicable to the Colliery.
Though he replied to the chargesheet, finding it
unsatisfactory the enquiry was fairly, legally, and as per
the principle of natural justice held by Sri C.K. Pandey
Dy. P.M., as the appointed Enquiry Officer. He fully
participated in it for his defence, for which he was asked to
keep co-worker, and was given full opportunity to cross
examine the prosecution witnesses, adduce evidence and
produce defence witnesses. After due enquiry, the Enquiry
Officer submitted his enquiry report with the enquiry
proceeding, finding and holding him guilty of the charges.
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2611
Server3/E/1250RR/1250RR(3)
In result, the Competent Authority accepting the findings
of the Enquiry Officer considered his dismissal from the
service of the Company as per the letter dt. 31st Sept., 1993,
in view of his misconduct of serious nature. The workman
is not entitled to any relief. It is also alleged the BCCL as a
Govt. Company u/s 161 of the Company Act, it is wholly
financed by the Central Government, so the Employers of
the Company are public servant u/s 21(12) of the I.P.C. It has
been proposed for decision over first instance as a preliminary
issue as to its fairness, and if found on fair, then for an
opportunity for afresh evidence on merit.
5. Categorically denying the allegations of the
workman, the management in its rejoinder has stated that
Shri Turi also produced his defence witnesses. The delay,
if any, was due to the fault of the workman. He was dismissed
on the proved charges, which were of grave nature. Thus
his dismissal was quite just and proper.
FINDING WITH REASONINGS
6. In this reference, the domestic enquiry was held
neither fair and proper in favour of the workman as per the
order No. 37 dt. 21.6.1999 of the Tribunal; the management
accordingly produced the following three witnesses on
merits as under:
MW1: Balram Prasad, Sr. Inspector Vigilance;
MW2: Joginder Turi s/o Bipan Turi r/o vill.
Kurkutand, P.S. Tundi Dhanbad, and
MW3: Naresh Murmu, Ex-Mukhaiya, Dhanbad.
WWI Jogendra Turi of same parentage but of
different village/PO Goh, Distt: Aurangabad (Gaya) with
present address of Simlabhalal Colliery, PO: Jharia, Distt:
Dhanbad examined on behalf of the union concerned.
7. In this reference case, on consideration of the
afresh materials of both the parties on merits, I find that
MWI Balram Prasad, Sr. Inspector, Vigilance, has explicitly
stated that on the letter dt. 18.2.1986 of the G.K. Kustore
with its Annexure photocopy of the Affidavit (Ext. M.8) to
the Chief Vigilance Officer, as per whose order, he went the
native village ("Kurkutand") of the concerned workman
and in presence of Naresh Murmu, the Mukhiya of the
Village, he got the Certificate of workman (Yogendra Turi
S/o Late BipanTuri) in the pen and signature of the Mukhiya
(Ext. M.9), collected the Voter List of 280 Tundi Vidhan
Sabha (Ext. M-10), recorded the statement of aforesaid
workman under his LTI (Ext. M. 11) in presence of two
independant witnesses, and thereafter, he (MW1) submitted
his verification report typed and duly signed by himself
(Ext. M-12). Proving the statement of Mr. P.S. Ramchandran,
the Dy. Chief Vigilance Officer, BCCL as Ext. M-13
concerning the investigation of the case of impersonation
by one Yogendra Singh in the name of Sri Yogendra Turi,
and his own statement (as Ext. M. 14) recorded by the E. O.
(Enquiry Officer) in the departmental enquiry, the
management witness (MWI on merit) has established that
the alleged workman was not the actual workman, rather he
was working by false personfication as Yogendra Turi,
whose address as in the Form-B Register was totally
different from that of alleged workman Yogendra Singh,
who also disclosed in his affidavit his false identity, in
respect of which an F.I.R. was lodged, but the fate of it
unknown to him. According to him (MWI), on the basis of
his report, the concerned (alleged) workman was
chargesheeted, and at its enquiry, he was found guilty, and
on the report of the E.O. (Enquiry Officer), the Disciplinary
Authority dismissed him from the service. No defence could
substantially cross the M.W.1 Balram Prasad the Inspector
(Vigilance) except the fact that as his report (Ext. M. 12)
was confidential, so he confidentially submitted to the
management, and actual workman Yogendra Turi was
unexamined during the enquiry (departmental).
8. M.W. 3 Naresh Murmu (on merit) is the Ex-
Mukhiya of village Kurkutand. His statement as quite
supportive to the spot verification by the Vigilance
Inspector B. Prasad (M.W. 1) on merit in his presence as
endorsed by him (Ext. M. 11/1) on the statement of Yogendra
Turi at his village Kurkutand, P.S. Tundi, Dhanbad. The
witness (MW3) also stated to have issued the Certificate
(Ext. M.9) as identified in respect of actual villager Yogendra
Turi, who had personally told him while he worked.
9. Likewise the statement of MW2 Yogendra Turi
(on merit) an illiterate person is inevitably condusive to the
spot verification of him and his parentage by the
Sr. Inspector Vigilance B. Prasad (identified) in presence of
the Mukhiya at his village. His statement in the Reference
as also stated before the Inspector (Vigilance) evidently
depicts that he was employed at Simlabahal Colliery by the
private management about six months before its
nationalisation, after which, the management for purpose
of keeping record of his each work started taking
photograph of them, while he was on night shift duty, and
on joining there to get his photograph, when he saw a
quarrel and assault ("maramari") going on between (the
anti social activities of) the local people and the workers
resulting in his panic, he left the place and since then, he
never went to the colliery for duty, as he had seriously
fallen ill, and thereafter on visit of the one officer of the
BCCL/Koyla Bhawan (virtually) the Inspector (Vigilance)
to his village, he disclosed his name and parentage. His
version also proves that the private management had taken
his L.T.I. on the Register when he started to work there, his
name, parentage and village were properly recorded in the
Register, though he did not take his photograph.
10. Whereas the affidavited statement of the present
workman Jogendra Turi as WWI as son of same Late
parentage Bipan Turi but as resident of Village/Post Office
Goh, Distt: Aurangabad (Gaya) Bihar is that admittedly he
had not got any appointment letter, rather he was initially
appointed as Miner Loader at Simalabahal Colliery on
2612
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(3)
28.8.1992 before the nationalisation of Coalmines, his name
was recorded in the statutory Register and Form B Register
bearing No. 108, CMPF A/c No. 419024 and I.D. Card No. of
2438 with his photographs affixed under his L.T.I. (Ext. W. 1)
he had undergone the Gravy Training from 7th to 19th
November, 1977 and 4th Sept. to 30th Oct., 1978 as per his
Certificates (Extt. W. 2 & 2/1 respectively, but both dateless
of their issuance); he served as Tyndal as per the
Authorisation No. 32 dt. 16.12.1987 of the General Manager,
Simlabahal Colliery, Bhalgora Area of BCCL (Ext. W. 3);
and he submitted his representations dt. 23.10.90 and
13.11.1989 for permission to resume his duty (Extt.4 and 4/
1 respectively, but out of them the latter is the carbon copy
of his reply to his chargesheet). According to the workman
in the reference under an adjudication, he was wrongly
dismissed from his service by the incompetent authority
on the basis of the illegal chargesheet of impersonation
and illegal enquiry into the said charges though he
participated in it, but the admission of the present workman,
his cross-examination that he as son of Bipan Turi as per
Voter List of his Village belongs to Village/PO Goh, Distt.:
Gaya now in Aurnagabad, stands his case unproved in
lack of any documentary proof to that effect His (WWI)
further explicit admission that at the relevant time, at the
substance of others instigation, he got his name and
parentage changed as Yogendra Singh S/o Shri Shanker
Singh Bipan for the purpose of service and that he used to
escape the arrest despite his reply' utterly fail to justify and
reason for change of his Title from 'Tyri to' Singh' and his
parentage from Bipan Turi to Shri Shanker Singh after his
alleged long service.
11. Mr. S.N. Goswami, the Ld. Counsel for the present
workman submits that he was a genuine worker who was
illegally dismissed from his service for his alleged
misconduct of inpersonation.But in the face of the clear
admission of the about his double titled parentage and
residence which is quite distinct from the name, parentage
and address of original workman (MW2), the identity of
the present workman stands out sorted as ingenuine person,
because a person by Dusadh Caste (S.C.) can not be a
person of title "Turi". The contention of Mr. S.N. Goswami
Advocate for the present workman has not at all pit and
substance, hence untenable.
12. In view of the aforesaid findings, I hold in terms
of the Reference that the action of the management of
Simlabahal Colliery under Bhalgora Area of BCCL,PO:
Jharia, Distt: Dhanbad in dismissing Sri Jagendra Turi, Ex-
Tyndal from service w.e.f. 01.09.1993 is quite legally justified.
Therefore, the workman (alleged) is not entitled to any
relief. Hence it is ordered.
sd/-
KISHORI RAM, Presiding Officer
ubZ fnYyh] 22 ekpZ] 2013
dkñvñ 892-
—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947
dk 14½] dh èkjk 17 ds vuqlj.k esa] dsUnzh; chñlhñlhñ,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]
uañ 2] èuckn ds iapkV ¼lanHkZ la[;k 14@1947½ dks izdkf'kr djrh
gS] tks dsUnzh; ljdkj dks 22@03@2013 dks izkIr gqvk FkkA
[lañ ,y&20012@126@2007&vkbZ vkj ¼lh&I½]
,eñ dsñ flag] vuqHkkx vfèdkjh
New Delhi, the 22nd March, 2013
S.O. 892.—In pursuance of Section 17 of the
Industrial Dispute Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 6/2008)
of the Central Government Industrial Tribunal-cum-Labour
Court No. 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 22/03/2013.
[No. L-20012/126/2007-IR(C-I)]
M.K. SINGH, 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. 6 OF 2008
Parties:
Employer in relation to the management
of Eastern Jharia of M/s. BCCL and their
workmen.
Appearances:
On behalf of the workman:
None
On behalf of the management:
None
State: Jharkhand
Industry: Coal
Dated, Dhanbad, the 14th Feb, 2013
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-20012/126/07-IR(CM-I) dt. 07.01.2008.
SCHEDULE
"Whether the demand of Shri Jagraj Singh S/o Late
Sukhdeo Singh, Dumper Operator to provide dependent
[Hkkx II—[k.M 3 (ii)]
Hkkjr dk jkti= % vizSy 13] 2013@pS= 23] 1935
2613
Server3/E/1250RR/1250RR(3)
employment to him under the provisions of NCWA from
the management of Patherdih Coal Washery Colliery of
M/s. BCCL is legal and justified? If so, to what relief is the
dependant son of Late Sukhdeo Singh entitled?."
2. Neither Union Representative for 'Sampurna Bharat
Cooking Coal Ltd., Chalak Samittee at Patherdih Coal
Washery, Qr. No. F-68, Patherdih Coal Washery, Dhanbad
nor petitioner Jagraj Singh S/o Late Sukhdeo Singh, Dumper
Operator, appeared nor any written statement filed on his
behalf, nor any representative for the General Manager,
E.J. Area of M/s. BCCL, Bhowra, Dhanbad, appeared.
On perusal of the case record, it stands clear that the
case has been pending from the very begining, i.e., since
15.3.2011 for filing written statement on behalf of the Union
Representative for the petitioner, but despite four Regd.
notices not only to the Union concerned on their addresses
noted in the Reference itself, none of them appeared either
for proper representation or for filing written statement of
the petitioner. The conduct of the Union Representative as
well as that of the petitioner clearly shows their
unwillingness or disinterestedness in pursuing the case.
Under these circumstances, the proceeding with the
case for uncertainty is unwarranted. At Present, it seems
no longer the industrial dispute exists; hence the case is
closed and accordingly it is passed an order of no dispute
of the I.D. existent.
Sd/-
KISHORI RAM, Presiding Officer
ubZ fnYyh] 22 ekpZ] 2013
dkñvkñ 893-
—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj chñlhñlhñ,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]
uañ 2] èuckn ds iapkV ¼lanHkZ la[;k 13@2006½ dks izdkf'kr djrh
gS] tks dsUnzh; ljdkj dks 22@03@2013 dks izkIr gqvk FkkA
[lañ ,y&20012@298@2003&vkbZ vkj ¼lh&I½]
,eñ dsñ flag] vuqHkkx vfèdkjh
New Delhi, the 22nd March, 2013
S.O. 893.—In pursuance of Section 17 of the
Industrial Dispute Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 13/2006)
of the Central Government Industrial Tribunal-cum-Labour
Court No. 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 22/03/2013.
[No. L-20012/298/2003-IR(C-I)]
M.K. SINGH, 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. 13 OF 2006.
Parties:
Employer in relation to the management of
Sijua Area of M/s. BCCL and their workmen.
Appearances:
On behalf of the workman:
None
On behalf of the management: Mr. D.K. Verma, Ld. Adv.
State: Jharkhand
Industry: Coal
Dated, Dhanbad, the 5th Feb, 2013.
AWARD
The Government of India, Ministry of Labour, in
exercise of the power 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-20012/298/2003-IR(C-I) dt. 30.03.2006.
SCHEDULE
"Whether the demand of the Janta Mazdoor Sangh,
from the management of BCCL, Sijua Area, that
Sh. Deo Kumar Singh, Drill Operator, may be
regularized as 'Pit Supervisor', justified? If so, to what
relief is the workman entitled and from what date?"
2. None representated the Union-Janta Mazdoor
Sangh nor workman Deo Kumar Singh appeared nor any
rejoinder nor any documents filed in behalf of the workman
despite more than sufficient opportunities and Regd.
notices having been issue to the Union on the address
noted in the Reference itself upto 26.11.2012. Mr. D.K.
Verma, the Ld. Advocate for the management is present.
The perusal of the case record, transpires that the
case has been pending for the rejoinder and documents of
the workman since 2.11.2011, for which Regd. notices were
issued through Regd. post, even then neither the Union
Representative nor the workman could file any rejoinder
and the documents of the workman. The very conduct of
the Union Representative as well as that of the workman
clearly indicates they are not willing to contest the case for
the reason best known to them. It relates to an issue of
regularisation of the workman as Pit Supervisor.
Under these circumstances, the case is closed and
according an order of no Industrial Dispute existent is
passed.
Sd/-
KISHORI RAM, Presiding Officer
2614
THE GAZETTE OF INDIA : APRIL 13, 2013/CHAITRA 23, 1935
[PART II—SEC. 3 (ii)]
Server3/E/1250RR/1250RR(3)
ubZ fnYyh] 22 ekpZ] 2013
dkñvkñ 894-
—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj eSllZ
chñlhñlhñ,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] uañ 2] èuckn ds iapkV ¼lanHkZ la[;k 40@1999½
izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 22@03@2013 dks izkIr gqvk
FkkA
[lañ ,y&20012@756@1997&vkbZ vkj ¼lh&I½]
,eñ dsñ flag] vuqHkkx vfèdkjh
New Delhi, the 22nd March, 2013
S.O. 894.—In pursuance of Section 17 of the
Industrial Dispute Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 40/1999)
of the Central Government Industrial Tribunal-cum-Labour
Court No. 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 22/03/2013.
[No. L-20012/756/1997-IR(C-I)]
M.K. SINGH, 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. 40 OF 1999
Parties:
Employer in relation to the management of
Sijua Area of M/s. BCCL and their workmen.
Appearances:
On behalf of the workman:
Mr. N.G. Arun, Ld. Adv./
Union Representative
On behalf of the management:Mr. D.K. Verma, Ld. Adv.
State: Jharkhand
Industry: Coal
Dated, Dhanbad, the 26th Feb, 2013
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-20012/756/97-IR(C-I) dt. 18.1.1999.
SCHEDULE
"Whether the action of the management in not
providing employment to the dependant son,
Sri Rajendra Nonia, son of Shri Moti Nonia, Ex.M/
Loader of Sendra Bansjora Colliery as per para 9.4.2
of NCWA-IV is legal and justified. If not, to what
relief Shri Rajendra Nonia, son of Shri Moti Nonia is
entitled?"
PRINTED BY THE MANAGER, GOVERNMENT OF INDIA PRESS, RING ROAD, MAYAPURI, NEW DELHI-110064
AND PUBLISHED BY THE CONTROLLER OF PUBLICATIONS, DELHI-110054.
GMGIPMRND—1250RR (S3)—25-07-2013.