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

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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

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[PART II—SEC. 3 (ii)]

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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

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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

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[PART II—SEC. 3 (ii)]

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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

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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.

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[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

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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.

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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

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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

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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

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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.

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2462

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[PART II—SEC. 3 (ii)]

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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

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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

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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.

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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?"

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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.

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,Qñ lhñ vkbZñ

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vf/kdj.k ukxiqj ds iapkV ¼vkbZMh la[;k 284@2003½ dks izdkf'kr

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[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

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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.

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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

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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.

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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

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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

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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.

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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.

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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

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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

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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

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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

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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

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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:—

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"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

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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

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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

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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

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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.

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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

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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

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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

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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."

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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."

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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

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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

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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

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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

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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

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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,

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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

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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

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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

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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.

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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

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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,

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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

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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

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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

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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.

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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

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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

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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

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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.

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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

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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

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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

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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,

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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

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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.

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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

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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

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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

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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

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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-

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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-

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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;

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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.

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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

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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.

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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

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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

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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

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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

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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

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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

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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

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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

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[PART II—SEC. 3 (ii)]

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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)]

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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

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[PART II—SEC. 3 (ii)]

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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)]

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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.

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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

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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

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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).

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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

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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

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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

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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

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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

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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

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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

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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

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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

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(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

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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

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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."

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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.

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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

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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

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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.

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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

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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

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dks izkIr gqvk FkkA

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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

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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.

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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

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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

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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

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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

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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

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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

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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

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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;

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(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

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(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

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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

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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

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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

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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".

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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

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gSnjkckn ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds

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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

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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

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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

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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

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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

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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

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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

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[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

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[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)]

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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

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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)]

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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

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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.

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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

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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

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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

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[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.