jftLVªh lañ Mhñ ,yñ

jftLVªh lañ Mhñ ,yñ—(,u

,u)04@000

@000

@0007@200

@200

@2003—1313131313

REGISTERED NO. DL—(N)04/0007/2003—13

izkf/dkj ls izdkf'kr

PUBLISHED BY AUTHORITY

lkIrkfgd

WEEKLY

la- 25º

ubZ fnYyh] twu 16—twu 22] 2013] 'kfuokj@T;s"B 26—vk"kk<+ 1] 1935

No. 25]

NEW DELHI, JUNE 16—JUNE 22, 2013, SATURDAY/JYAISTHA 26—ASADHA 1, 1935

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

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

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

(Other than the Ministry of Defence)

———————

dkfeZd] yksd f'kdk;r rFk

dkfeZd] yksd f'kdk;r rFkk isa'ku ea=ky;

k isa'ku ea=ky;

¼dkfeZd vkSj izf'k{k.k foHkkx½

ubZ fnYyh] 13 twu] 2013

dk-vk- 1152

1152

1152-—dsUnzh; ljdkj ,rn~}kjk naM izfØ;k lafgrk]

1973 ¼1974 dk vf/kfu;e la- 2½ dh /kkjk 24 dh mi/kkjk ¼8½

}kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq, jk"Vªh; jkt/kkuh {ks= fnYyh esa

fnYyh fo'ks"k iqfyl LFkkiuk ¼ds-v- C;wjks½ }kjk laLFkkfir ekeys tks

fd mUgsa dsUnzh; vUos"k.k C;wjks }kjk lkSais x, gSa] ijh{k.k U;k;ky;ksa rFkk

vihyksa@iqujh{k.kksa ;k fof/k }kjk LFkkfir iqujh{k.k ;k vihyh; U;k;ky;ksa

esa bu ekeyksa ls mRiUu vU; ekeyksa dk lapkyu djus ds fy,

Jh vt; dqekj xqIrk] odhy dks fo'ks"k yksd vfHk;kstd ds :i esa

fu;qDr djrh gSA

[Qk- la- 225@15@2013&,ohMh&II]

jktho tSu] voj lfpo

MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES

AND PENSIONS

(Department of Personnel and Training)

New Delhi, the 13th June, 2013

S.O. 1152.—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 Ajay Kumar Gupta, Advocate as Special

Public Prosecutor for conducting prosecution of cases

instituted by Delhi Special Police Establishment in the

National Capital Territory of Delhi entrusted to him by the

Central Bureau of Investigation in the trial courts and

appeals/revisions or other matters arising out of the said

cases in revisional or appellate courts established by law.

[F. No. 225/15/2013-AVD-II]

RAJIV JAIN, Under Secy.

2553 GI/2013

(3025)

3026

THE GAZETTE OF INDIA : JUNE 22, 2013/ASADHA 1, 1935

[PART II—SEC. 3 (ii)]

foÙk ea=ky;

¼foÙkh; lsok,a foHkkx½

ubZ fnYyh] 14 twu] 2013

dkdk

dkdk-vk

vkvk

vkvk- 1153

1153

1153- —jk"Vªh;d`r cSad ¼izca/k ,oa izdh.kZ mica/k½

Ldhe] 1970@1980 ds [kaM 9 ds mi&[kaM ¼1½ vkSj ¼2½ ds lkFk

ifBr cSaddkjh daiuh ¼miØeksa dk vtZu ,oa varj.k½ vf/kfu;e]

1970@1980 dh /kkjk 9 dh mi&/kkjk ¼3½ ds [kaM ¼³½ }kjk iznÙk

'kfDr;ksa dk iz;ksx djrs gq,] dsUnzh; ljdkj] ,rn~}kjk] vksfj;aVy

cSad vkQ dkelZ ds fo'ks"k lgk;d Jh fdax'kqd Hkêkpk;Z ¼tUe

frfFk 20-01-1958½ dks in dk izHkkj laHkkyus dh rkjh[k ls rhu o"kZ

dh vof/k ds fy, vFkok vksfj;aVy cSad vkQ dkelZ ds deZdkj

deZpkjh ds :i esa muds inHkkj NksM+us rd vFkok vxys vkns'kksa

rd] tks Hkh igys gks] vksfj;aVy cSad vkQ dkelZ ds funs'kd e.My

esa deZdkj deZpkjh funs'kd ds :i esa fu;qDr djrh gSA

[Qk- la- 6@23@2012&chvks&I]

euh"k dqekj] voj lfpo

MINISTRY OF FINANCE

(Department of Financial Services)

New Delhi, the 14th June, 2013

S.O. 1153.—In exercise of the powers conferred by

clause (e) of Sub-section 3 Section 9 of the Banking

Companies (Acquisition and Transfer of Undertakings) Act,

1970/1980 read with Sub-clause (1) & (2) of Clause 9 of The

Nationalised Banks (Management and Miscellaneous

Provisions) Scheme, 1970/1980, the Central Government

hereby appoints Shri Kingshuk Bhattacharya (Date of Birth:

20.01.1958), Special Assistant, Oriental Bank of Commerce

as Workmen Employee Director on the Board of Directors

of Oriental Bank of Commerce for a period of three years

with effect from the date of his taking over the charge of

the post or until he ceases to be a Workmen Employee of

Oriental Bank of Commerce or till further orders, whichever

is the earliest.

[F. No. 6/23/2012-BO-I]

MANISH KUMAR, Under Secy.

ubZ fnYyh] 17 twu] 2013

dkdk

dkdk-vkvkvkvkvk- 1154

1154

1154- —thou chek fuxe vf/kfu;e] 1956 ¼1956

dk 31½ dh /kkjk 4 }kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq,] dsUnzh;

ljdkj] ,rn~}kjk] Hkkjrh; thou chek fuxe ¼,yvkbZlh½ ds orZeku

izHkkjh Jh FkkWel eSF;w Vh- ds LFkku ij ,yvkbZlh ds izca/k funs'kd Jh

,lñ dsñ jkW; dks muds dk;Z&Hkkj xzg.k djus dh rkjh[k ls ikap o"kZ

dh vof/k ds fy, ;k fnukad 31-07-2018 rd vFkkZr~ muds vf/

kof"kZrk dh vk;q izkIr djus dh frfFk rd ;k vxys vkns'kksa rd] tks

Hkh igys gks] Hkkjrh; thou chek fuxe dk v/;{k fu;qDr djrh gSA

[Qk- la- ,-&15011@10@2012&chek&I]

fiz;k dqekj] funs'kd ¼chek½

New Delhi, the 17th June, 2013

S.O. 1154.—In exercise of the powers conferred by

section 4 of the Life Insurance Corporation Act, 1956 (31 of

1956), the Central Government hereby appoints Shri S.K.

Roy, Managing Director, Life Insurance Corporation of India

(LIC) as Chairman, LIC vice Sh. Thomas Mathew T, Current-

In-Charge for a period of five years with effect from the

date of his taking over the charge of the post or till 31.7.2018

i.e. the date of his attaining the age of superannuation or

until further orders, whichever is the earliest.

[F. No. A-15011/10/2012-Ins.-I]

PRIYA KUMAR, Director (Insurance)

vkns'k

ubZ fnYyh] 19 fnlEcj] 2012

dkdkdkdkdk-vkvkvkvkvk- 1155

1155

1155- —tcfd dsUnz ljdkj us] o"kZ 2002 esa] Hkkjrh;

vkS|ksfxd fodkl cSad ¼Hkkjrh; y?kq m|ksx fodkl cSad] Hkkjrh;

vkS|ksfxd fuos'k cSad ,oa ,fDte cSad lfgr½ }kjk fy, x, _.kksa gsrq

jk"Vªh; C;kt _.k nh?kkZof/k ifjpkyu [¼,uvkbZlh½ ¼,yVhvks½] ds

izfr ns;rkvksa vkSj blds lkFk&lkFk vkbZchvkjMh cdk;k _.k O;oLFkk

ds izfr ns;rk dks vius vf/kdkj esa fy;k FkkA Hkkjrh; vkS|ksfxd

fodkl cSad ds ekeys esa dqy jkf'k 2]130-50 djksM+ #i;s ¼ek= nks

gtkj ,d lkS rhl djksM+ vkSj ipkl yk[k #i;s½ Fkh] ftlesa ,uvkbZlh

¼,yVhvks½ ds fy, 1]157-02 djksM+ #i;s ¼ek= ,d gtkj ,d lkS

lÙkkou djksM+ ,oa nks yk[k #i;s½ vkSj vkbZchvkjMh _.k O;oLFkk ds

izfr 973-48 djksM+ #i, ¼ek= ukS lkS frgrj djksM+ ,oa vM+rkyhl

yk[k #i;s½ FksA Hkkjr ljdkj }kjk bu ns;rkvksa dks vius vf/kdkj esa

fy;k x;k Fkk rFkk blds cnys esa cSad us Hkkjr ljdkj dks nks

vkbZMhchvkbZ vks,e,uvkbZ ckaM Ük`a[kyk,a&1 ¼Vh;j&I½ tkjh dh Fkh

tks Øe'k% 1]157-02 djksM+ #i;s ,oa 973-48 djksM+ #i;s ds ewY;

dh Fkh vkSj ftu ij Øe'k% 8% ,oa 11-88 % dh nj ij C;kt yxk;k

x;k Fkk vkSj tks 30 ekpZ] 2022 ,oa 31 ekpZ] 2022 dks ifjiDo gksuh

FkhA blds vykok] tcfd bu ckaMksa dh ifjorZuh;rk laca/kh /kkjk esa

;g O;oLFkk gS fd ;s ckaM bfDoVh esa ifjorZuh; gSa vFkok bUgsa vkxs 20

o"kZ dh vof/k ds fy, ml le; mi;qDr C;kt nj ij iqufuZ/kkZfjr

fd;k tk ldrk gSA vr% vkbZMhchvkbZ cSad fyfeVsM us bu ckaMksa dks

bfDoVh esa ifjofrZr djus dk vuqjks/k fd;k FkkA

2- tcfd dsUnzh; ljdkj] Hkkjrh; fjtoZ cSad ls ijke'kZ djus

vkSj fo|eku ifjfLFkfr;ksa dks /;ku esa j[kus ds i'pkr~ bl ckr ls

lger gS fd mi;qZDr ckaMksa dk ifjorZu bfDoVh ds :i esa djuk yksd

fgr esa gS vkSj bl ifjorZu ls cSad dh C;kt ns;rk de gksxh ftlls

bldh ykHkiznrk esa lq/kkj gksxk vkSj blds lkFk&lkFk cSad ds 'ks;j&ewY;

esa Hkh o`f) gksxhA

3- vr% daiuh vf/kfu;e] 1956 ¼1956 dk 1½ dh /kkjk 81 dh

mi&/kkjk ¼4½ }kjk iznÙk 'kfDr;ksa ds vuqlj.k esa] vc dsUnzh; ljdkj]

,rn~}kjk ;g funs'k nsrh gS fd 2]130-50 djksM+ #i, ¼ek= nks gtkj

,d lkS rhl djksM+ ,oa ipkl yk[k #i;s½ rd ds Vh;j&I iwath ckaM

[Hkkx II—[k.M 3 (ii)]

Hkkjr dk jkti= % twu 22] 2013@vk"kk<+ 1] 1935

3027

bfDoVh iwath esa ifjofrZr fd, tk,a vkSj vkbZMhchvkbZ cSad }kjk mDr

ifjorZu lsch ds fn'kk&funsZ'kksa ds vuqlkj r; dh xbZ nj ij nl&nl

#i;s vafdr ewY; ds bZfDoVh 'ks;j tkjh djds fd;k tk,xkA

[Qk- la- 10@11@2011&chvks,]

,e- ,e- nkSyk] voj lfpo

ORDER

New Delhi, the 19th December, 2012

S.O. 1155.—Whereas Central Government had, in 2002,

taken over liabilities towards National Interest Credit-Long

Term Operations [NIC (LTO)] for the loans availed by

Industrial Development Bank of India (alongwith Small

Industries Development Bank of India, Industrial

Investment Bank of India and Exim Bank) and also liability

towards IBRD outstanding lines of credit. The total amount

in case of Industrial Development Bank of India was

Rs. 2,130.50 crore (Rs. Two thousand one hundred thirty

crore and fifty lacs only), comprising Rs. 1,157.02 crore

(Rs. One thousand one hundred fifty seven crore and

two lacs only) for NIC (LTO) and Rs. 973.48 crore (Rs.

Nine hundred seventy three crore and forty eight lacs

only) towards IBRD lines of credit. These liabilities were

taken over by GoI and, in turn, the Bank issued to GoI two

IDBI, OMNI bonds Series-I (Tier-I) for an aggregate value

of Rs. 1,157.02 crore and Rs. 973.48 crore carrying interest

thereon @ 8% and 11.88% maturing on March 30, 2022

and March 31, 2022 respectively. And whereas the

convertibility clause of these bonds provides that these

bonds are convertible into equity or can be rolled over

for a period of another 20 years at an interest rate that

may be appropriate at that time and, as such, IDBI Bank

Ltd. requested for conversion of these bonds into equity.

2. And whereas the Central Government, after

consultation with the Reserve Bank of India and having due

regard to the prevailing circumstances, is satisfied that

conversion of the above bonds into equity is in the public

interest and this conversion will reduce the interest liability of

the Bank thereby improving its profitability and

simultaneously will increase the share price of the Bank as well.

3. Now, therefor, in pursuance of the powers conferred

by Sub-section (4) of Section 81 of the Companies Act,

1956 (1 of 1956), the Central Government hereby directs

that the Tier I Capital Bonds to the tune of Rs. 2,130.50

crore (Rs. Two thousand one hundred thirty crore and fifty

lacs only) be converted into Equity Capital and the said

conversion will be effected by the IDBI Bank through issue

of equity shares of face value of Rs. 10 (Rs. Ten) each at

the rate to be decided as per SEBI guidelines.

[F. No. 10/11/2011-BOA]

M. M. DAWLA, Under Secy.

;qok dk;Z

;qok dk;ZØe ,oa [ksy ea=ky;

e ,oa [ksy ea=ky;

ubZ fnYyh] 12 twu] 2013

dk-vk- 1156-—dsUnzh; ljdkj ,rn~}kjk jktHkk"kk ¼la?k ds

'kkldh; iz;kstuksa ds fy, iz;ksx½ fu;e 1976 ds fu;e 10 ds

mi fu;e ¼4½ ds vuqlj.k esa ;qok dk;ZØe vkSj [ksy ea=ky; ds

Lok;Ùk'kklh dk;kZy; Hkkjrh; [ksy izkf/kdj.k] pkS/kjh nsoh yky mÙkjh

dsUnz] lksuhir ¼gfj;k.kk½] ftlds 80% ls vf/kd deZpkjho`an us

fganh dk dk;Zlk/kd Kku izkIr dj fy;k gS] dks

vf/klwfpr djrh gSA

[fe- la- bZ&11011@2@2008&fg- ,-]

Fkaxysefy;u] mi lfpo

MINISTRY OF YOUTH AFFAIRS AND SPORTS

New Delhi, the 12th June, 2013

S.O. 1156.—In pursuance of sub-rule (4) of Rule of 10

of Official Language (use for official purpose of the Union)

Rule 1976, the Central Government hereby notifies Sports

Authority of India, Chaudhary Devi Lal Northen Centre,

Sonipat an autonomous office of Ministry of Youth Affairs

& Sports, whereof more than 80% staff have acquired

working knowledge of Hindi.

[F. No. E-11011/2/2008-H.U.]

THANGLEMLIAN, Dy. Secy.

ekuo lalk/ku fodkl ea=ky;

¼mPprj f'k{kk foHkkx½

¼jktHkk"kk ;wfuV½

ubZ fnYyh] 14 twu] 2013

dkdk

dkdk-vkvkvkvkvk- 1157

1157

1157- —dsUnzh; ljdkj] jktHkk"kk ¼la?k ds 'kkldh;

iz;kstuksa ds fy, iz;ksx½ fu;e] 1976 ds fu;e 10 ds mi fu;e 4 ds

vuqlj.k esa] ekuo lalk/ku fodkl ea=ky; ¼Ldwy f'k{kk ,oa lk{kjrk

foHkkx½ ds varxZr fuEufyf[kr tokgj uoksn; fo|ky;ksa dks] ,sls

dk;kZy;ksa ds :i esa] ftlds 80 izfr'kr ls vf/kd deZpkjh&o`Un us

fgUnh dk dk;Zlk/kd Kku izkIr dj fy;k gS] vf/klwfpr djrh gS%

Øe la-

fo|ky; dk uke rFkk irk

tokgj uoksn; fo|ky;] iksjcanj ¼xqtjkr½

tokgj uoksn; fo|ky;] cqpjokMk] nho ¼neu ,oa nho½

[la- 11011&1@2013&czk-Hkk-,-]

vuUr dqekj flag] la;qDr lfpo

MINISTRY OF HUMAN RESOURCE DEVELOPMENT

(Department of Higher Education)

(O. L. UNIT)

New Delhi, the 14th June, 2013

S.O. 1157.—In pursuance of sub- rule (4) of rule 10 of

the Official Languages (Use for Official Purposes of the

Union) Rules, 1976, the Central Government hereby notifies

the following Jawahar Navodaya Vidyalayas of Navodaya

Vidyalaya Samiti under the Ministry of Human Resource

Development (Department of School Education & Literacy)

as offices, whose more than 80% members of the staff have

acquired working knowledge of Hindi:

Sl. No. Name and address of the School

Jawahar Navodaya Vidyalaya, Porbander (Gujarat)

3028

THE GAZETTE OF INDIA : JUNE 22, 2013/ASADHA 1, 1935

[PART II—SEC. 3 (ii)]

Jawahar Navodaya Vidyalaya, Butcherwada, Diu

(Daman & Diu)

[No. 11011-1/2013-O.L.U.]

ANANT KUMAR SINGH, Jt. Secy.

miHkksDrk ekeys] [kk| vkSj lkoZtfud forj.k ea=ky;

¼miHkksDRkk ekeys foHkkx½

¼Hkkjrh; ekud C;wjks½

ubZ fnYyh 14 twu] 2013

dkdkdkdkdk-vkvkvkvkvk- 1158-

—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 gSa%—

vuqlwph

la'kksf/kr Hkkjrh; ekud ¼dksa½

la'kks/ku dh la[;k

la'kks/ku ykxw gksus

dh la[;k o"kZ vkSj 'kh"kZd

vkSj frfFk

dh frfFk

¼1½

¼2½

¼3½

vkbZ ,l 10918%1984

02] ebZ 2013

31&05&2013

bl Hkkjrh; la'kks/ku dh izfr;kWa 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] ukxiqj] iVuk] iq.ks rFkk fr#ouUrkiqje esa fcØh gsrq

miyC/k gSaA

[lanHkZ bZVh 11@Vh&35]

vkj- lh- eSF;w] oSKkfud ^,Q* ,oa izeq[k ¼fo|qr rduhdh½

MINISTRY OF CONSUMER AFFAIRS, FOOD AND

PUBLIC DISTRIBUTION

(Department of Consumer Affairs)

(BUREAU OF INDIAN STANDARDS)

New Delhi, the 14th June, 2013

S.O. 1158.—In pursuance of clause (b) of sub-rule (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 Schedule hereto annexed has been issued:

SCHEDULE

No. & Year of the

No. & Year

Date from which

Indian Standards

of the

the Amendment

Amendment

shall have effect

(1)

(2)

(3)

IS 10918:1984 Specification

02, May 2013

31-05-2013

for vented type nickel

cadmium batteries

Copy of this Amendment is available with the Bureau of

Indian Standards, Manak Bhavan, 9, Bahadur Shah Zafar

Marg, New Delhi-110002 and Regional offices: New Delhi,

Kolkata, Chandigarh, Chennai, Mumbai and also Branch

offices: Ahmedabad, Bangalore, Bhopal, Bhubaneshwar,

Coimbatore, Guwahati, Hyderabad, Jaipur, Kanpur, Nagpur,

Patna, Pune and Thiruvananthapuram.

[Ref. ET 11/T-35]

R. C. MATHEW, Scientist ‘F’ & Head (Electrotechnical)

dks;yk ea=ky;

ubZ fnYyh] 18 twu] 2013

dkdkdkdkdk-vkvkvkvkvk- 1159

1159

1159.—dsUnzh; ljdkj dks ;g izrhr gksrk gS fd blls

mikc) vuqlwph esa mfYyf[kr ifj{ks= dh Hkwfe esa ls dks;yk vfHkizkIr

fd, tkus dh laHkkouk gS(

vkSj] js[kkad la[;k vkjbZoh@09@2012] rkjh[k 19 vDrwcj] 2012

dk] ftlesa mDr vuqlwph esa of.kZr Hkwfe ds {ks= dk vUrfoZ"V gS]

fujh{k.k] lsaVªy dksyQhYM~l fyfeVsM ¼Hkwfe vkSj jktLo foHkkx½]

njHkaxk gkml] jkaph&834029 ¼>kj[kaM½ ds dk;kZy; esa ;k egkizca/kd]

jktgjk {ks=] njHkaxk gkml] jkaph ¼>kj[kaM½ mik;qDr] ftyk prjk

¼>kj[kaM½ vkSj mik;qDr] ftyk gtkjhckx ¼>kj[kaM½ ds dk;kZy; esa

;k egkizca/kd ¼[kkst izHkkx½] vkjvkbZ III] dsUnzh; [kku ;kstuk vkSj

fMtkbu laLFkku fyfeVsM] xksaMokuk Iysl] dkads jksM+] jkaph >kj[kaM ds

dk;kZy; esa ;k dks;yk fu;a=d] 1] dkmafly gkÅl LVªhV]

dksydkrk&700001 ds dk;kZy; esa fd;k tk ldsxkA

vr% vc] dsUnzh; ljdkj] dks;yk /kkjd {ks= ¼vtZu vkSj fodkl½

vf/kfu;e] 1957 ¼1957 dk 20½ ¼ftls blesa blds i'pkr~ mDr

vf/kfu;e dgk x;k gS½ dh /kkjk 4 dh mi/kkjk ¼1½ }kjk iznÙk

'kfDr;ksa dk iz;ksx djrs gq, mDr vuqlwph esa of.kZr Hkwfe esa dks;ys dk

iwosZ{k.k djus ds vius vk'k; dh lwpuk nsrh gSA

mDr vuqlwph esa of.kZr Hkwfe esa fgrc) dksbZ O;fDr bl vf/klwpuk

ds izdk'ku dh rkjh[k ls uCcs fnu dh vof/k ds Hkhrj egkizca/kd]

lsaVªy dksyQhYM~l fyfeVsM] jktgjk {ks=] ftyk prjk ¼>kj[kaM½ ;k

egkizca/kd] lsaVªy dksyQhYM~l fyfeVsM] ¼Hkwfe vkSj jktLo foHkkx½]

njHkaxk gkml] jkaph&834029 ¼>kj[kaM½ ds dk;kZy; esa—

(i) mDr vf/klwpuk dh /kkjk 4 dh mi&/kkjk ¼3½ ds v/khu

dh xbZ fdlh dkjZokbZ ls gqbZ {kfr ;k gksus okyh lEHkkO;

{kfr ds fy, vf/kfu;e dh /kkjk 6 ds v/khu izfrdj dk

nkok dj ldsxk( vFkok

(ii) vf/kfu;e dh /kkjk 13 dh mi&/kkjk ¼1½ ds v/khu iwosZ{k.k

vuqKfIr;ksa ds izHkkoghu gksus ds laca/k esa ;k vf/kfu;e dh

/kkjk 13 dh mi&/kkjk ¼4½ ds v/khu [kuu iV~Vs ds izHkkoghu

gksus ds fy, izfrdj dk nkok dj ldsxk vkSj mDr

vf/kfu;e dh /kkjk 13 dh mi/kkjk ¼1½ ds [kaM (i) ls

(iv) esa fofufnZ"V enksa ds laca/k esa mixr O;; nf'kZr djus

ds fy, iwoksZDr Hkwfe ls lacaf/kr ekufp=ksa] pkVks± vkSj vU;

nLrkostksa dks ifjnÙk dj ldsxkA

[Hkkx II—[k.M 3 (ii)]

Hkkjr dk jkti= % twu 22] 2013@vk"kk<+ 1] 1935

3029

vuqlwph

ipjk vkSj ipjk lkmFk dksy ekbfuax CykWd

ftyk&gtkjhckx vkSj prjk ¼>kj[kaM½

¼js[kkad la[;k vkjbZoh@09@2012] rkjh[k 19 vDrwcj] 2012½

lHkh vf/kdkj%

Ø -

ekStk@xzke

Fkkuk

xzke@Fkkuk ftyk dk

{ks=

fVIi.kh

la-

la[;k

uke

¼,dM+ esa½

¼1½

¼2½

¼3½

¼4½

¼5½

¼6½

¼7½

pV~Vhcfj;krq cM+dkxkao

gtkjhckx 204-00

Hkkx

tksjnkx

cM+dkxkao

gtkjhckx 545-00

Hkkx

ukok[kki

VaMok

prjk

139-00

Hkkx

ipU<+k

VaMok

prjk

722-11

iw.kZ

fl>qvk

VaMok

prjk

565-18

iw.kZ

mjlq

VaMok

prjk

158-71

Hkkx

cqd:

VaMok

prjk

997-00

Hkkx

dqy% 3331-50 ,dM+ ¼yxHkx½

;k 1348-78 gsDVs;j ¼yxHkx½

xzke pV~Vhcfj;krq esa vf/kx`ghr fd, tkus ds vk'k; ds IykV

la[;kad% 5¼Hkkx½] 6¼Hkkx½] 7¼Hkkx½] 8 ls 60] 61¼Hkkx½] 62]

63] 64¼Hkkx½] 69¼Hkkx½] 70¼Hkkx½] 71¼Hkkx½] 73¼Hkkx½]

74¼Hkkx½] 75 ls 103] 104¼Hkkx½] 105] 106¼Hkkx½] 107¼Hkkx½]

114¼Hkkx½] 115¼Hkkx½] 116] 117¼Hkkx½] 2016] 2023 ls 2066A

xzke tksjnkx esa vf/kx`ghr fd, tkus ds vk'k; ds IykV la[;kad%

1] 2¼Hkkx½] 3] 4] 12¼Hkkx½] 615¼Hkkx½] 616¼Hkkx½] 617 ls

621] 622¼Hkkx½] 623 ls 636] 2014] 2015] 2016] 2017] 2022]

2023] 2024¼Hkkx½A

xzke ukok[kki esa vf/kx`ghr fd, tkus ds vk'k; ds IykV la[;kad%

24¼Hkkx½] 35¼Hkkx½] 37¼Hkkx½] 45¼Hkkx½] 46¼Hkkx½] 49¼Hkkx½]

50 ls 61] 62¼Hkkx½] 63 ls 349] 350¼Hkkx½] 351] 352¼Hkkx½]

353] 354] 355¼Hkkx½] 377¼Hkkx½] 378¼Hkkx½] 382¼Hkkx½] 383]

387¼Hkkx½] 388¼Hkkx½] 389 ls 416] 417¼Hkkx½] 457¼Hkkx½]

458¼Hkkx½] 459¼Hkkx½] 460¼Hkkx½] 461 ls 779

xzke ipU<+k esa vf/kx`ghr fd, tkus ds vk'k; ds IykV la[;kad%

1¼Hkkx½] 2 ls 514] 515¼Hkkx½] 516 ls 2418

xzke fl>qvk esa vf/kx`ghr fd, tkus ds vk'k; ds IykV la[;kad%

1¼Hkkx½] 2 ls 1385] 1386¼Hkkx½] 1387 ls 1390

xzke mjlq esa vf/kx`fgr fd, tkus ds vk'k; ds IykV la[;kad%

585¼Hkkx½] 586 ls 645

xzke cqjlq esa vf/kx`ghr fd, tkus ds vk'k; ds IykV la[;kad%

1 ls 809] 810¼Hkkx½] 811¼Hkkx½] 812¼Hkkx½] 813] 814¼Hkkx½]

815¼Hkkx½] 817¼Hkkx½] 847¼Hkkx½] 849¼Hkkx½] 886] 887] 888]

889] 890¼Hkkx½] 891¼Hkkx½] 893 ls 899] 900¼Hkkx½] 901 ls

905] 906¼Hkkx½] 909¼Hkkx½] 911¼Hkkx½] 912 ls 918] 919¼Hkkx½]

920¼Hkkx½] 986¼Hkkx½] 987¼Hkkx½] 988 ls 1051] 1052¼Hkkx½]

1053¼Hkkx½] 1056¼Hkkx½] 1057¼Hkkx½] 1058¼Hkkx½] 1105 ls 1112]

1115 ls 1158] 1159¼Hkkx½] 1160¼Hkkx½] 1162¼Hkkx½] 1163 ls

1178] 1179¼Hkkx½] 1180 ls 1193] 1194¼Hkkx½] 1195¼Hkkx½]

1196¼Hkkx½] 1197¼Hkkx½] 1198] 1216 ls 1226] 1227 ¼Hkkx½]

1229] 1230] 1246] 1248¼Hkkx½] 1250¼Hkkx½] 1252 ls 1261

lhek o.kZu%

d&[k&x

js[kk fcanq ^d* ls vkjaHk gksrh gS vkSj xzke ukok[kki vkSj

lsjankx] ipU<+k vkSj fcaxykr fl>qvk vkSj dqekjkax dyka]

cqd: vkSj mjlq dh if'peh lfEefyr lhek ds

lkFk&lkFk vkSj xM+gh ukyk ds e/; ls gksrs gq, fcanq ^x*

ij feyrh gSA

x&?k

js[kk] xzke cqd: ls gksrs gq, fcanq ^?k* ij feyrh gSA

?k&M+

js[kk cqd:] tksjnkx] pV~Vhcfj;krq xzkeksa ds vkaf'kd Hkkx

ls gksrs gq, fcanq ^M+* ij feyrh gSA

M+&d

js[kk pV~Vhcfj;krq vkSj ukok[kki xzkeksa ds vkaf'kd Hkkx

ls gksrs gq, izkjaHk fcanq ^d* ij feyrh gSA

[Qk- la- 43015@10@2010&ihvkjvkbZMCY;w&I]

oh- ,l- jk.kk] voj lfpo

MINISTRY OF COAL

New Delhi, the 18th June, 2013

S.O. 1159.—Whereas it appears to the Central

Government that coal is likely to be obtained from the land

in the locality described in the Schedule annexed hereto;

And whereas the plan bearing number Rev/09/2012, dated

the 19th October, 2012 containing details of the areas of land

described in the said Schedule may be inspected at the office

of the Central Coalfields Limited (Land and Revenue

Department), Darbhanga House, Ranchi—834 029 (Jharkhand)

or at the office of the General Manager, Rajhara Area,

Darbhanga House, Ranchi (Jharkhand), Deputy

Commissioner, District—Chatra, Jharkhand, Deputy

Commissioner, District—Hazaribag, Jharkhand or at the Office

of the General Manager (Exploration Division), RI—III, Central

Mine Planning and Design Institute Limited, Gondwana Palace,

Kanke Road, Ranchi, Jharkhand or at the Office of the Coal

Controller, 1, Council House Street, Kolkata—700 001.

Now, therefore, in exercise of the powers conferred by

sub-section (1) of section 4 of the Coal Bearing Areas

(Acquisition and Development) Act, 1957 (20 of 1957),

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

Government hereby gives notice of its intention to prospect

for coal from the lands described in the said Schedule.

Any person interested in the land described in the

aforesaid Schedule may—

(i) Claim compensation under section 6 of the Act for

any damage caused or likely to be caused by any

action taken under sub-section (3) of section 4 of

the said Act; or

3030

THE GAZETTE OF INDIA : JUNE 22, 2013/ASADHA 1, 1935

[PART II—SEC. 3 (ii)]

(ii) Claim compensation under sub-section (1) of section

13 of the Act in respect of prospecting license ceasing

to have effect or under sub-section (4) of section 13

of the Act for mining lease ceasing to have effect and

deliver all maps, charts and other documents relating

to the aforesaid land to show the expenditure incurred

in respect of items specified in clauses (i) to (iv) of

sub-section (1) of section 13 of the said Act,

to the office of the General Manager, Central

Coalfields Limited, Rajhara Area, District-Chatra

(Jharkhand) or General Manager, Central Coalfields

Limited (Land and Revenue Department),

Darbhanga House, Ranchi-834 029 (Jharkhand)

within a period of ninety days from the date of

publication of this notification.

SCHEDULE

Pachra and Pachra South Coal Mining Block

District-Hazaribagh and Chatra (Jharkhand)

(plan bearing number Rev/09/2012, dated the 19th October, 2012)

ALL RIGHT:

Sl.

Mauja/

Thana

Village/

Name of

Area

Remarks

No.

Village

Thana

District

(in acres)

Number

(1)

(2)

(3)

(4)

(5)

(6)

(7)

Chhattibariatu

Barkagaon

Hazaribagh

204.00

Part

Jordag

Barkagaon

Hazaribagh

545.00

Part

Nawakhap

Tandwa

Chatra

139.00

Part

Pachandha

Tandwa

Chatra

722.11

Full

Sijhua

Tandwa

Chatra

565.18

Full

Ursu

Tandwa

Chatra

158.71

Part

Bukru

Tandwa

Chatra

997.00

Part

Total:

3331.50 Acres (approximately)

or 1348.78 hectares (approximately)

Intention of Plot numbers to be acquired in village

Chhattibariatu—5(P), 6(P), 7(P), 8 to 60, 61(P), 62, 63, 64(P),

69(P), 70(P), 71(P), 73(P), 74(P), 75 to 103, 104(P), 105, 106

(P), 107(P), 114(P), 115(P), 116, 117(P), 2016, 2023 to 2066.

Intention of Plot numbers to be acquired in village

Jordag—1, 2 (P), 3, 4, 12 (P), 615 (P), 616(P), 617 to 621,

622(P), 623 to 636, 2014, 2015, 2016, 2017, 2022, 2023, 2024(P).

Intention of Plot numbers to be acquired in village

Nawakhap—24(P), 35(P), 37(P), 45 (P), 46(P), 49(P), 50 to

61, 62(P), 63 to 349 350(P), 351, 352(P), 353, 354, 355(P), 377

(P), 378(P), 382(P), 383, 387(P), 388(P), 389 to 416, 417(P),

457(P), 458(P), 459(P), 460(P), 461 to 779.

Intention of Plot numbers to be acquired in village

Pachandha—1(P), 2 to 514, 515(P), 516 to 2418.

Intention of Plot numbers to be acquired in village

Sijhua—1(P), 2 to 1385, 1386(P), 1387 to 1390.

Intention of Plot numbers to be acquired in village

Ursu—585(P), 586 to 645.

Intention of Plot numbers to be acquired in village Bukru:

1 to 809, 810(P), 811(P), 812 (P), 813, 814(P) 815(P), 817(P),

847(P), 849, 886, 887, 888, 889, 890(P), 891 (P), 983 to 899,

900(P), 901 to 905, 906(P), 909(P), 911(P), 912 to 918, 919(P),

920(P), 986 (P), 987(P), 988 to 1051, 1052(P), 1053(P), 1056(P),

1057(P), 1058(P), 1105 to 1112, 1115 to 1158, 1159(P), 1160(P),

1162(P), 1163 to 1178, 1179(P), 1180 to 1193, 1194(P), 1195(P),

1196(P), 1197(P), 1198, 1216 to 1226, 1227(P), 1229, 1230,

1246, 1248(P), 1250(P), 1252 to 1261.

Boundary Description:

A-B-C

Line start from point 'A' passes through along

with center line of Garhi Nadi) Western common

boundary of villages Nawakhap and Serandag

Pachandha and Bingalat Sijhua and Kumarang

Kalan, Bukru and Ursu and meets at point 'C'.

C-D

Line passes through in village Bukru and meets

at point 'D'.

D-E

Line passes, through in part village Bukru, Jordag

and Chhatibaraitu and meets at point 'E'.

[Hkkx II—[k.M 3 (ii)]

Hkkjr dk jkti= % twu 22] 2013@vk"kk<+ 1] 1935

3031

E-A

Line Passes, through in part villages Chattibariatu

and Nawakhap and meets at starting point 'A'.

[F. No. 43015/10/2010-PRIW-I]

V. S. RANA, Under Secy.

vkns'k

kns'k

ubZ fnYyh] 18] twu] 2013

dkdk

dkdk- vk

vk- 1160

1160

1160.—dks;yk /kkjd {ks= ¼vtZu vkSj fodkl½

vf/kfu;e] 1957 ¼1957 dk 20½ ¼ftls blesa blds i'pkr~ mDr

vf/kfu;e dgk x;k gS½ dh /kkjk 9 dh mi/kkjk ¼1½ ds v/khu tkjh

Hkkjr ds jkti=] Hkkx II [kaM 3] mi[kaM (ii), rkjh[k 11 fnlEcj]

2010 esa izdkf'kr Hkkjr ljdkj ds dks;yk ea=ky; dh vf/klwpuk

dkñvkñ la[;kad 3002] rkjh[k 8 fnlEcj] 2010 ij mDr vf/kwlpuk

ls layXu vuqlwph esa of.kZr Hkwfe esa ;k ,slh Hkwfe ¼ftls blesa blds

i'pkr~ mDr vf/kfu;e dgk x;k gS½] ij ds lHkh vf/kdkj] mDr

vf/kfu;e dh /kkjk 10 dh mi/kkjk ¼1½ ds v/khu] lHkh foYyaxeksa ls

eqDr gksdj] vkR;afrd :i esa dsUnzh; ljdkj esa fufgr gks x, Fks(

vkSj] dsUnzh; ljdkj dk ;g lek/kku gks x;k gS fd osLVuZ

dksyQhYM~l fyfeVsM] ukxiqj ¼ftls blesa blds i'pkr~ ljdkjh

daiuh dgk x;k gS½] ,sls fuca/kuksa vkSj 'krks± dk vuqikyu djus ds

fy, jtkean gS] tks dsUnzh; ljdkj bl fufeÙk vf/kjksfir djuk mfpr

le>s(

vr% vc] dsUnzh; ljdkj] mDr vf/kfu;e dh /kkjk 11 dh

mi/kkjk ¼1½ }kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq,] ;g funs'k nsrh gS

fd mDr Hkwfe vkSj bl izdkj fufgr Hkwfe esa ;k ml ij ds lHkh

vf/kdkj rkjh[k 11 fnlEcj] 2010 ls dsUnh; ljdkj esa bl izdkj

fufgr cus jgus ds ctk,] fuEufyf[kr fuca/kuksa vkSj 'krks± ds v/khu

jgrs gq,] ljdkjh daiuh esa fufgr gks tk,axs] vFkkZr~—

(i) ljdkjh daiuh] mDr vf/kfu;e ds mica/kksa ds v/khu ;Fkk

vo/kkfjr izfrdj] C;kt] uqdlkfu;ksa vkSj oSlh gh enksa dh

ckcr~ fd, x, lHkh lank;ksa dh dsUnzh; ljdkj dks izfriwfrZ

djsxh(

(ii) 'krZ ¼1½ ds v/khu ljdkjh daiuh }kjk dsUnzh; ljdkj dks

lans; jdeksa dk vo/kkj.k djus ds iz;kstuksa ds fy, mDr

vf/kfu;e dh /kkjk 14 ds v/khu ,d vf/kdj.k dk xBu

fd;k tk,xk vkSj ,sls fdlh vf/kdj.k dh lgk;rk ds fy,

fu;qDr O;fDr;ksa ds laca/k esa mixr lHkh O;;] ljdkjh daiuh

}kjk ogu fd, tk,axs vkSj bl izdkj fufgr mDr Hkwfe esa ;k

ml ij ds vf/kdkjksa ds fy, ;k muds laca/k esa tksfd vihy

vkfn lHkh fof/kd dk;Zokfg;ksa dh ckcr~ mixr] lHkh O;;

Hkh] ljdkjh daiuh }kjk ogu fd, tk,axs(

(iii) ljdkjh daiuh] dsUnzh; ljdkj ;k mlds in/kkfj;ksa dh] ,sls

fdlh vU; O;; ds laca/k esa {kfriwfrZ djsxh] tks bl izdkj

fufgr mDr Hkwfe esa ;k ml ij ds vf/kdkjksa ds ckjs esa]

dsUnzh; ljdkj ;k mlds in/kkfj;ksa }kjk ;k muds fo#) fdUgha

dk;Zokfg;ksa ds laca/k esa vko';d gks(

(iv) ljdkjh daiuh dks dsUnzh; ljdkj ds iwoZ vuqeksnu ds fcuk

mDr Hkwfe dks fdlh vU; O;fDr dks varfjr djus dh 'kfDr

ugha gksxh( vkSj

(v) ljdkjh daiuh] ,sls funs'kksa vkSj 'krks± dk ikyu djsxh] tks

dsUnzh; ljdkj }kjk] tc dHkh vko';d gks] mDr Hkwfe ds

fof'k"V {ks=ksa ds fy, fn, tk,a ;k vf/kjksfir fd, tk,aA

[Qk- la- 43015@06@2009&ihvkjvkbZMCY;w&I]

oh- ,l- jk.kk] voj lfpo

ORDER

New Delhi, the 18th June, 2013

S.O. 1160.—Whereas on the publication of the

notification of the Government of India in the Ministry of

Coal, Number S.O. 3002, dated the 8th December, 2010, in

the Gazette of India, Part II, Section 3, Sub-section (ii),

dated the 11th December, 2010, issued under Sub-Section (1)

of Section 9 of the Coal Bearing Areas (Acquisition and

Development) Act, 1957 (20 of 1957) hereinafter referred to

as the said Act), the land and the rights in or over the land

described in the schedule appended to the said notification

(hereinafter referred to as the said land) vested absolutely

in the Central Government free from all encumbrances under

Sub-Section (1) of Section 10 of the said Act;

And whereas the Central Government is satisfied that

the Western Coalfields Limited, Nagpur (hereinafter referred

to as the Government company) is willing to comly with

such terms and conditions as the Central Government thinks

fit to impose in this behalf.

Now, therefore, in exercise of the powers conferred by

Sub-Section (1) of Section 11 of the said Act, the Central

Government hereby directs that the said land and rights in

or over the said land so vested shall, with effect from

11th December, 2010, instead of continuing to so vest in the

Central Government, shall vest in the Government company,

subject to the following terms and conditions, namely:—

(i) the Government company shall reimburse to the

Central Government all payments made in respect

of compensation, interest damages and the like, as

determined under the provisions of the said Act;

(ii) a Tribunal shall be constituted under section 14 of

the said Act, for the purpose of determining the

amounts payable to the Central Government by the

Government company under condition (1) and all

expenditure incurred in connection with any such

tribunal and persons appointed to assist the said

tribunal shall be borne by the Government company

and similarly, all expenditure incrurred in respect of

all legal proceedings like appeals, etc. for or in

connection with the rights, in or over the said land,

so vested, shall also be borne by the Government

company;

3032

THE GAZETTE OF INDIA : JUNE 22, 2013/ASADHA 1, 1935

[PART II—SEC. 3 (ii)]

(iii) The Government company shall indemnify the

Central Government or its officials against any other

expenditure that may be necessary in connection

with any proceedings by or against the Central

Government or its officials regarding the rights in

or over the said land so vesting;

(iv) the Government comapny shall have no power to

transfer the said lands to any other person without

the prior approval of the Central Government; and

(v) the Government company shall abide by such

directions and conditions as may be given or

imposed by the Central Government for particular

areas of the said land, as and when necessary.

[F. No. 43015/06/2009-PRIW-I]

V. S. RANA, Under Secy.

ubZ fnYyh] 19 twu] 2013

dkdkdkdkdk-vkvkvkvkvk- 1161

1161

1161.—dsUnzh; ljdkj dks ;g izrhr gksrk gS fd blls

mikc) vuqlwph esa mfYyf[kr ifj{ks= dh Hkwfe esa ls dks;yk vfHkizkIr

gksus dh laHkkouk gS(

mDr vuqlwph esa of.kZr Hkwfe ds varxZr vkus okys {ks= dh js[kkad

la[;k lh&1¼bZ½III/ tsts,uvkj@886&0912] rkjh[k 14 flrEcj]

2012] dk fujh{k.k osLVuZ dksyQhYM~l fyfeVsM ¼jktLo foHkkx½]

dksy bLVsV] flfoy ykbZUl] ukxiqj&440001 ¼egkjk"Vª½ ds dk;kZy;

esa ;k eq[; egkizca/kd ¼,DlIyksjs'ku izHkkx½] dsUnzh; [kku ;kstuk

vkSj fMtkbu laLFkku] xksaMokuk iWysl] dkads jksM+] jkaph&834001 ds

dk;kZy; esa ;k dks;yk fu;a=d] 1] dkmafly gkml LVªhV]

dksydkrk&700001 ds dk;kZy; esa ;k ftyk dysDVj] ;oreky

¼egkjk"Vª½ ds dk;kZy; esa fd;k tk ldrk gSA

vr%] vc] dsUnzh; ljdkj] dks;yk /kkjd {ks= ¼vtZu vkSj

fodkl½ vf/kfu;e] 1957 ¼1957 dk 20½ ¼ftls blesa blds i'pkr~

mDr vf/kfu;e dgk x;k gS½ dh /kkjk 4 dh mi/kkjk ¼1½ }kjk iznÙk

'kfDr;ksa dk iz;ksx djrs gq, iwoksZDr vuqlwph esa of.kZr Hkwfe esa dks;ys

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

mi;qZDr mfYyf[kr vuqlwph esa of.kZr Hkwfe esa fgrc) dksbZ O;fDr—

(i) mDr vf/kfu;e dh /kkjk 6 ds v/khu fdlh {kfr ;k mDr

vf/kfu;e dh /kkjk 4 dh mi&/kkjk ¼3½ ds v/khu dh xbZ

fdlh dkjZokbZ ls gksus okys {kfr dh laHkkouk ds fy, izfrdj

dk nkok dj ldsxk( ;k

(ii) mDr vf/kfu;e dh /kkjk 13 dh mi&/kkjk ¼1½ ds v/khu

izo`Ùk ugha jg xbZ iwosZ{k.k vuqKfIr;ksa ds laca/k esa ;k

vf/kfu;e dh /kkjk 13 dh mi&/kkjk ¼4½ ds v/khu izo`Ùk ugha

jg x, [kuu iês ds fy, izfrdj dk nkok dj ldsxk vkSj mDr

vf/kfu;e dh /kjk 13 dh mi&/kjk ¼1½ ds [kaM (i) ls (iv) esa

fofufnZ"V enksa ds laca/k esa mixr O;; dks nf'kZr djus ds

fy, Hkwfe ls lacaf/kr lHkh ekufp=ksa] pkVks± vkSj vU; nLrkostksa

dks ifjnÙk dj ldsxkA

bl vf/klwpuk ds jkti= esa izdk'ku dh rkjh[k ls uCcs fnu dh

vof/k ds Hkhrj] {ks=h; egkizca/kd] osLVuZ dksyQhYM~l fyfeVsM

o.kh mÙkj {ks= iksLV o.kh] rglhy o.kh] ftyk ;oreky ¼egkjk"Vª½

;k egkizca/kd] osLVuZ dksyQhYM~l fyfeVsM] Hkwfe vkSj jktLo foHkkx]

dksy bLVsV] flfoy ykbZUl ukxiqj&440001 ¼egkjk"Vª½ ds dk;kZy;

dks HkstsxkA

vuqlwph

f'ko.kh vksiudkLV Cykd

o.kh mÙkj {ks=

ftyk&;oreky ¼egkjk"Vª½

[js[kkad la[;k lh&1¼bZ½III/ tsts,uvkj@886&0912] rkjh[k 14 flrEcj] 2012]

Ø ñ

xzke dk

iVokjh

rglhy

ftyk

{ks=Qy

fVIi.kh

lañ

uke

lfdZy la[;k

¼gsDVj esa½

¼,dM+ esa½

¼1½ ¼2½

¼3½

¼4½

¼5½

¼6½

¼7½

¼8½

f'ko.kh

ekjsxkao

;oreky

372-61

920-72

Hkkx

>xMk

ekjsxkao

;oreky

156-92

387-74

laiw.kZ

eqdVk

ekjsxkao

;oreky

139-31

344-24

Hkkx

dkuMk

ekjsxkao

;oreky

80-92

199-95

Hkkx

dqy {ks=% 749-76 gsDVj ¼yxHkx½

;k 1852-65 ,dM+ ¼YkxHkx½

[Hkkx II—[k.M 3 (ii)]

Hkkjr dk jkti= % twu 22] 2013@vk"kk<+ 1] 1935

3033

lhek o.kZu%

d&[k&x

js[kk xzke f'ko.kh esa fcUnq ^d* ls vkjaHk gksrh gS rFkk

o/kkZ unh ds nf{k.kh fdukjs ls xqtjrh gS] fQj xzke

f'ko.kh ,oa xzke >xMk dh lfEefyr lhek dks fcUnq

^[k* ij ikj djrh gS rFkk o/kkZ unh ds fdukjs ls vkxs

c<+rh gqbZ xzke >xMk rFkk xzke eqdVk dh lfEefyr

lhek ij fcUnq ^x* ij feyrh gSA

x&?k&³ &p js[kk xzke >xMk rFkk xzke eqdVk dh lfEefyr lhek

dks fcUnq ^x* ij ikj djrh gS vkSj o/kkZ unh ds nf{k.kh

fdukjs ls xqtjrh gqbZ fcUnq ^?k* rd vkrh gS rFkk xzke

eqdVk esa ls xqtjrh gqbZ fcUnq ^³* rd igqaprh gS] fQj

xzke eqdVk ,oa xzke dkuMk dh lfEefyr lhek ls

xqtjrh gqbZ fcUnq ^p* ij feyrh gSA

p&N&t&> js[kk xzke eqdVk rFkk xzke dkuMk dh lfEefyr lhek

dks ikj djrh gS vkSj xzke dkuMk esa ls xqtjrh gS] fQj

lM+d dks ikj djrh gqbZ xzke dkuMk esa ls fcUnq ^N* ls

fcUnq ^t* rd vkrh gS] fQj xzke dkuMk ,oa f'ko.kh

dh xzke lhek dks ikj djrh gS rFkk xzke f'ko.kh esa ls

xqtjrh gqbZ fcUnq ^>* ij feyrh gSaA

>&d

js[kk xzke f'ko.kh ,oa xzke ikjMh dh lfEefyr lhek ls

xqtjrh gqbZ o/kkZ unh ds nf{k.kh fdukjs ij vkjafHkd

fcUnq ^d* ij feyrh gSA

[Qkñ lañ 43015@30@2012&ihvkjvkbZMCY;w&I]

ohñ,lñ jk.kk] voj lfpo

New Delhi, the 19th June, 2013

S.O. 1161.—Whereas, it appears to the Central

Government that coal is likely to be obtained from the land

in the locality mentioned in the Schedule annexed hereto;

And, Whereas, the Plan bearing number C-I(E)III/JJNR/

886-0912, dated the 14th September, 2012 containing of the

areas of land described in the said Schedule may be

inspected at the office of the Western Coalfields Limited

(Revenue Department), Coal Estate, Civil Lines, Nagpur—

440 001 (Maharashtra) or at the office of the Chief General

Manager (Exploration Division), Central Mine Planning and

Design Institute, Gondwana Palace, Kenke Raod Ranchi-

834 001 or at the office of the Coal Controller, 1, Council

House Street, Kolkata-700001 or at the office of the District

Collector, District Yavatmal (Maharashtra).

Now, therefore, in exercise of the powers conferred by

sub-section (1) of section 4 of the Coal Bearing Areas

(Acquisition and Development) Act, 1957 (20 of 1957),

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

Government hereby gives notice of its intention to prospect

for coal in the land described in the aforesaid schedule.

Any person interested in the land decribed in the above

mentioned Schedule may—

(i) claim compensation under section 6 of the said Act

for any damage caused or likely to be caused by

any action taken under sub-section (3) of section 4

thereof; or

(ii) claim compensation under sub-section (1) of

section 13 of the said Act in respect of prospecting

license ceasing to have effect or under sub-section (4)

of section 13 of the Act for mining lease ceasing to

have effect and deliver all maps, charts and other

documents relating to the aforesaid land to show

the expenditure incurred in respect of items specified

in clauses (i) to (iv) of sub-section (1) of section 13

of the said Act.

to the office of the Area General Manager, Western

Coalfields Limited, Wani North Area, Post Wani, Tahsil

Wani, District—Yavatmal (Maharashtra) or General

Manager, Western Coalfields Limited, Land and Revenue

Department, Coal Estate, Civil Lines, Nagpur—440 001

(Maharashtra) within a period of ninety days from the date

of publication of this notification.

SCHEDULE

SHIVANI OPENCAST BLOCK

WANI NORTH AREA

DISTRICT—YAVATMAL (MAHARASHTRA)

[Plan bearing number C—1(E)III/JJNR/886-0912/, dated the 14th September, 2012]

Sl.

Name of

Patwari

Tahsil

District

Area

Remarks

No.

village

circle

(in

number

hectares)

acres)

(1)

(2)

(3)

(4)

(5)

(6)

(7)

(8)

Shivani

Moregaon

Yavatmal

372.61

920.72

Part

Zagada

Moregaon

Yavatmal

156.92

387.74

Full

Mukata

Moregaon

Yavatmal

139.31

344.24

Part

Kanada

Moregaon

Yavatmal

80.92

199.95

Part

Total area:

749.76 hectare (Approximately)

or 1852.65 acres (Approximately)

3034

THE GAZETTE OF INDIA : JUNE 22, 2013/ASADHA 1, 1935

[PART II—SEC. 3 (ii)]

Boundary description:

A-B-C:

Line starts from Point 'A' in village Shivani and

passes along the Southern Bank of Wardha

River, then crosses the common boundary of

villages Shivani and Zagada at Point 'B', then

proceeds along the Southern Bank of Wardha

River and meets at Point 'C' on common

boundary of villages Zagada and Mukata.

C-D-E-F: Line crosses the boundary of villages Zagada

and Mukata at Point 'C' and proceeds along the

Southern Bank of Wardha River upto Point 'D',

then passes through village Mukata upto Point

'E', then proceeds along the common boudary

of villages Mukata and Kanada and meets at

Point 'F'.

F-G-H-I:

Line crosses the common the boundary of

villages Mukata and Kanada and passes through

village Kanada, then crosses the Road and

proceeds through village Kanada from Point 'G'

to Point 'H', then crosses the common boundary

of villages Kanada and Shivani and meets at

Point 'I'.

I-A:

Line passes along the common boundary of

village Shivani and Pardi and meets at starting

Point 'A' on the Southern Bank of Wardha River.

[F. No. 43015/30/2012-PRIW-I]

V. S. RANA, Under Secy.

ubZ fnYyh] 20 twu] 2013

dkdk

dkdk-vk

vkvk

vkvk- 1162

1162

1162.—dsUæh; ljdkj ljdkjh LFkku ¼vizkf/kd`r

vfHk;ksfx;ksa dh csn[kyh½ vf/kfu;e] 1971 ¼1971 dk 40½ dh

/kkjk 3 }kjk iznRr 'kfDr;ksa dk iz;ksx djrs gq, vkSj Hkkjr ljdkj ds

dks;yk ea=ky; dh vf/klwpuk la[;k dk-vk- 1939] rkjh[k

30 tqykbZ] 1997] tks Hkkjr ds jkti= ds Hkkx II, [kaM 3] mi[kaM (ii)

rkjh[k 9 vxLr] 1997 esa izdkf'kr dh xbZ Fkh] dks vf/kØkUr djrs

gq, uhps lkj.kh ds LraHk ¼1½ esa mfYyf[kr vf/kdkjh dks] tks ljdkj

ds jktif=r vf/kdkjh dh iafDr ds lerqY; vf/kdkjh gS] mDr

vf/kfu;e ds iz;kstuksa ds fy, lEink vf/kdkjh fu;qDr djrh gS tks

mDr lkj.kh ds LraHk ¼2½ esa fofufnZ"V ljdkjh LFkkuksa dh ckcr~

viuh&viuh vf/kdkfjrk dh lhekvksa ds Hkhrj mDr vf/kfu;e }kjk

;k mlds v/khu lEink vf/kdkfj;ksa dks iznRr 'kfDr;ksa dk iz;ksx vkSj

vf/kjksfir drZO;ksa dk ikyu djsxk] vFkkZr~%—

lkj.kh

vf/kdkjh dk inuke

ljdkjh LFkkuk ds izoxZ vkSj vf/kdkfjrk

dh LFkkuh; lhek,aA

¼1½

¼2½

ofj"B izca/kd ¼[kuu½]

vle vkSj es?kky; jkT;ksa esa ukFkZ bZLVuZ

ukFkZ bZLVuZ dksyQhYM~l]

dksyQhYM~l] dksy bafM;k fyfeVsM ds

dksy bafM;k fyfeVsM]

LokfeRok/khu vFkok mlds }kjk iV~Vs ij

Mkd?kj% ekj?ksfjVk]

yh xbZ Hkwfe] Hkou vkSj vU; LFkkoj

ftyk&frulqfd;k ¼vle½

lEifRrA

fiu&786181-

[Qk- la- 43022@01@2013&ihvkjvkbZMCY;w&1]

oh- ,l- jk.kk] voj lfpo

New Delhi, the 20th June, 2013

S.O. 1162.—In exercise of the powers conferred by

section 3 of the Public Premises (Eviction of Unauthorised

Occupants) Act, 1971 (40 of 1971) and in suppression of

the notification of the Government of India in the Ministry

of Coal, number S.O. 1939, dated the 30th July, 1997,

published in the Gazette of India, Part II, Section 3, Sub-

section (ii), dated the 9th August, 1997, the Central

Government hereby appoints the officer mentioned in

column (1) of the Table below, being officer equivalent to

the rank of Gazetted officer of the Government to the estate

officer for the purpose of the said Act, who shall exercise

the powers conferred and perform the duties imposed on

the estate officer, by or under the said Act, within the limits

of his jurisdiction in respect of public premises specified in

column (2) of the said Table, namely:—

TABLE

Designation of officer.

Categories of public premises and local

limits of jurisdiction.

(1)

(2)

Senior Manager (Mining),

Lands, buildings and other immovable

North Eastern Coalfields,

property of North Eastern Coalfields,

Coal India Limited,

Coal India Limited in the States of Assam

Post Office: Margherita

and Meghalaya.

District: Tinsukia (Assam)

Pin-786 181.

[F. No. 43022/01/2013-PRIW-I]

V. S. RANA, Under Secy.

ubZ fnYyh] 21 twu] 2013

dkdkdkdkdk-vkvkvkvkvk- 1163

1163

1163- —dsUnzh; ljdkj dks ;g izrhr gksrk gS fd] blls

mikc) vuqlwph esa mfYyf[kr Hkwfe esa dks;yk vfHkizkIr fd, tkus

dh laHkkouk gS(

mDr vuqlwph esa of.kZr Hkwfe ds vUrxZr vkus okys {ks= ds C;kSjs

js[kkad la[;k ,lbZlh,y@ch,lih@th,e¼ih,yth½@Hkwfe@436] rkjh[k

27 uoEcj] 2012 dk fujh{k.k dyDVj] 'kgMksy ¼e/;izns'k½ ds

dk;kZy; esa ;k dks;yk fu;a=d] 1] dkmafly gkÅl LVªhV]

dksydkrk&700001 ds dk;kZy; esa ;k lkÅFk bZLVuZ dksyQhYM~l

fyfeVsM ¼jktLo vuqHkkx½] lhir jksM] fcykliqj&495006

¼NÙkhlx<+½ ds dk;kZy; esa fd;k tk ldrk gSA

vr% vc] dsUnzh; ljdkj] dks;yk /kkjd {ks= ¼vtZu vkSj fodkl½

vf/kfu;e] 1957 ¼1957 dk 20½ ¼ftls blesa blds i'pkr~ mDr

vf/kfu;e dgk x;k gS½ dh /kkjk 4 dh mi/kkjk ¼1½ }kjk iznÙk

'kfDr;ksa dk iz;ksx djrs gq,] mDr vuqlwph esa of.kZr Hkwfe ls dks;ys

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

¼1½

¼2½

[Hkkx II—[k.M 3 (ii)]

Hkkjr dk jkti= % twu 22] 2013@vk"kk<+ 1] 1935

3035

mDr vuqlwph esa of.kZr Hkwfe esa fgrc) dksbZ O;fDr&

(i) vf/kfu;e dh /kkjk 6 ds v/khu fdlh {kfr ;k mDr

vf/kfu;e dh /kkjk 4 dh mi&/kkjk ¼3½ ds v/khu dh xbZ

fdlh dkjZokbZ ls gksus okys {kfr dh laHkkouk ds fy, izfrdj

dk nkok dj ldsxk( ;k

¼ii½ mDr vf/kfu;e dh /kkjk 13 dh mi&/kkjk ¼1½ ds v/khu

lekIr gks xbZ iwosZ{k.k vuqKfIr;ksa ds laca/k esa ;k

vf/kfu;e dh /kkjk 13 dh mi&/kkjk ¼4½ ds v/khu lekIr

gks x, [kuu iV~Vs ds fy, izfrdj dk nkok dj ldsxk vkSj

mDr vf/kfu;e dh /kkjk 13 dh mi/kkjk ¼1½ ds [kaM ¼i½

ls ¼iv½ esa fofufnZ"V enksa ds laca/k esa mixr O;; dks

minf'kZr djus ds fy, Hkwfe ls lacaf/kr lHkh ekufp=ksa]

pkVks± vkSj vU; nLrkostksa dks ifjnÙk djsxkA

bl vf/klwpuk ds jkti= esa izdk'ku dh rkjh[k ls uCcs fnu ds

Hkhrj] Hkkjlk/kd vf/kdkjh ;k foHkkxk/;{k ¼jktLo½] lkÅFk bZLVuZ

dksyQhYM~l fyfeVsM] lhir jksM+] fcykliqj&495006 ¼NÙkhlx<+½

dks HkstsxsaA

vuqlwph

cVqjk Cykd foLrkj&

cVqjk Cykd foLrkj&II] lksgkxiqj {ks=]

] lksgkxiqj {ks=]

ftyk&'kgMksy ¼e/;izns'k½

[js[kkad la[;kad&,lbZlh,y@ch,lih@th,e¼ih,yth½@Hkwfe@436] rkjh[k

27 uoEcj] 2012]

¼iwosZ{k.k ds fy, vf/klwpuk Hkwfe n'kkZrs gq,½

xzke dk uke

iVokjh

rglhy

ftyk

{ks=

fVIi.kh

lañ

gYdk

gsDVj

uEcj

esa

jkeiqj

107

lksgkxiqj

'kgMksy

200-000

Hkkx

dqy%&200-000 gsDVj ¼yxHkx½ ;k 494-20 ,dM+ ¼yxHkx½

lhek o.kZu%

d&[k js[kk xzke jkeiqj&cVqjk ds lfEefyr lhek esa fcUnq ^d* ls

vkjaHk gksrh gS vkSj xzke jkeiqj&cVqjk] jkeiqj&fcNh;k ds

Hkkxr% lfEefyr lhek ls xqtjrh gqbZ fcUnq ^[k* ij feyrh

gSA

[k&x js[kk xzke jkeiqj ds e/; Hkkx ls gksrh gqbZ fcUnq ^x* ij

feyrh gSA

x&?k js[kk xzke jkeiqj ds if'peh Hkkx ls gksrh gqbZ xzke jkeiqj&

dksnSyh ds lfEefyr lhek esa fcUnq ^?k* ij feyrh gSA

?k&d js[kk xzke jkeiqj&dksnSyh ds Hkkxr% lfEefyr lhek ls

gksrh gqbZ vkjafHkd fcUnq ^d* ij feyrh gSA

[Qk-la- 43015@37@2012&ihvkjvkbZMCY;w&I]

oh- ,l- jk.kk] voj lfpo

New Delhi, the 21st June, 2013

S.O. 1163.—Whereas it appears to the Central

Government that Coal is likely to be obtained from the land

described in the Schedule annexed hereto;

And whereas the plan bearing number SECL/BSP/

GM(PLG)/LAND/436 dated the 27th November, 2012

containing details of the area of land described in the said

schedule may be inspected at the office of the Collector,

District Shahdol (Madhya Pradesh) or at the office of the

Coal Controller, 1, Council House Street, Kolkata-700001 or

at the office of the South Eastern Coalfields Limited

(Revenue Section), Seepat Road Bilaspur-495006

(Chhattisgarh);

Now, therefore, in exercise of the powers conferred by

sub-section (1) of section 4 of the Coal Bearing Areas

(Acquisition and Development) Act, 1957 (20 of 1957),

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

Government hereby gives notice of its intention to

prospect for coal from the lands described in the aforesaid

schedule.

Now, therefore, in exercise of the powers conferred by

sub-section (1) of section 4 of the Coal Bearing Areas

(Acquisition and Development), Act, 1957 (20 of 1957),

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

Government hereby gives notice of its intention to

prospect for coal from lands described in the said

Schedule;

Any person interested in the land described in the above

mentioned Schedue may—

(i) claim compensation under section 6 of the said

Act for any damage caused or likely to be caused

by any action taken under sub-section (3) of

section 4 of the said Act; or

(ii) claim compensation under sub-section (1) of

section 13 of the said Act in respect of prospecting

license ceasing to have effect or under sub-section (4)

of section 13 of the said Act for mining lease

ceasing to have effect and deliver all maps, charts

and other documents relating to the aforesaid land

to show the expenditure incurred in respect of

items specified in clauses (i) to (iv) of sub-section (1)

of section 13 of the said Act,

to the Office-In-Charge or Head of the Department

(Revenue), South Eastern Coalfields Limited, Seepat Road,

Bilaspur-495006 (Chhattisgarh) within a period of ninety

days from the date of publication of this notification.

SCHEDULE

Batura Block Extension-II, Sohagpur Area,

District-Shahdol, Madhya Pradesh

[plan bearing number SECL/BSP/GM(PLG)/LAND/436

dated the 27th November, 2012]

(Showing the land notified for prospecting).

3036

THE GAZETTE OF INDIA : JUNE 22, 2013/ASADHA 1, 1935

[PART II—SEC. 3 (ii)]

Sl.

Name of

Patwari

Tahsil

District

Area in

Remarks

No. village

halka

hectares

number

Rampur

107

Sohagpur Shahdol

200-000 Part

Total: 200.000 hectares (Approximately)

or 494.20 acres (Approximately)

BOUNDARY DESCRIPTION:

A-B Line starts from point 'A' on the common boundary

of villages Rampur-Batura and passes along partly

common boundary of villages Rampur-Batura,

Rampur-Kodaily and meets at point 'B'.

B-C

Line passes through middle part of village Rampur

and meets at point 'C'.

C-D

Line passes through Western part of village Rampur

and meets at point 'D' on the common boundary of

villages Rampur-Kodaily.

D-A Line passes along partly common boundary of

villages Rampur-Kodaily and meets at starting point

'A'.

[F. No. 43015/37/2012-PRIW-I]

V. S. RANA, Under Secy.

isVªksfy;e vkSj izkd`frd xSl ea=ky;

ubZ fnYyh] 18 twu] 2013

dkdk

dkdk-vkvkvkvkvk- 1164-

1164-

—Hkkjr dsUnzh; ljdkj] isVªksfy;e vkSj [kfut

ikbiykbZu ¼Hkwfe esa mi;ksx ds vf/kdkj dk vtZu½ vf/kfu;e]

1962 ¼1962 dk 50½ dh /kkjk 2 ds [k.M ¼d½ ds vuqlj.k esa

mDr vf/kfu;e ds v/khu mÙkj izns'k] mÙkjk[kaM] gfj;k.kk vkSj jk"Vªh;

jkt/kkuh {ks= fnYyh ds Hkhrj xsy ¼bf.M;k½ fyfeVsM dh lHkh

ikbiykbZuksa ds fy;s l{ke vf/kdkjh ds dk;ks± dk fuoZgu djus ds

fy;s Jhñ v'kksd dqekj yky] fMIVh dysDVj] mÙkj izns'k ljdkj] dks

vkxkeh vkns'k rd izkf/kd`r djrh gSA

[Qk- la- ,y&14014@17@2013&th-ih-]

fudqat dqekj JhokLro] funs'kd

MINISTRY OF PETROLEUM AND NATURAL GAS

New Delhi, the 18th June, 2013

S.O. 1164.—In pursuance of clause (a) of section 2 of

the Petroleum and Minerals Pipelines (Acquisition of Right

of User in Land) Act, 1962 (50 of 1962), the Government of

India hereby authorized Shri Ashok Kumar Lal, Deputy

Collector, Government of Uttar Pradesh to perform the

functions of Competent Authority for all pipelines of GAIL

(India) Limited, under the said Act, within the territory of

Uttar Pradesh, Uttarakhand, Haryana & NCT of Delhi, till

further orders.

[F. No. L-14014/17/2013-G.P.]

NIKUNJ KUMAR SRIVASTAVA, Director

Je ,oa jkstxkj ea=ky;

ubZ fnYyh] 23 ebZ] 2013

dkdk

dkdk- vk

vk- 1165-

1165-

—vkS|ksfxd fookn vf/kfu;e 1947] ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj eSllZ Hkkjrh;

foekuiÙku izkf/kdj.k ubZ fnYyh ds izca/kr= ds laca) fu;kstdakas

vkSj muds deZdkjkas ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa

dsUnzh; ljdkj vkS|ksfxd vf/kdj.k@Je U;k;ky; uñ 1 fnYyh ds

iapkV ¼lanHkZ la[;k 140@2011½ dks izdkf'kr djrh gS tks dsUnzh;

ljdkj dks 23@5@2013 dks izkIr gqvk FkkA

[la- ,y&11011@2@2009&vkbZ vkj ¼,e½]

tksgu rksiuks] voj lfpo

MINISTRY OF LABOUR AND EMPLOYMENT

New Delhi, the 23rd May, 2013

S.O. 1165.—In pursuance of Section 17 of the Industrial

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

hereby publishes the award (Ref. No. 140 of 2011) of the

Central Government Industrial Tribunal/Labour Court No.

1, Delhi now as shown in the Annexure in the Industrial

Dispute between the employers in relation to the

management of Airport Authority of India, New Delhi and

their workman, which was received by the Central

Government on 23/05/2013.

[No. L-11011/2/2009-IR(M)]

JOHAN TOPNO, Under Secy.

ANNEXURE

BEFORE DR.R.K.YADAV, PRESIDING OFFICER,

CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL NO.1, KARKARDOOMA

COURTS COMPLEX, DELHI.

I. D. No. 140/2011

The All India President,

AAI Mazdoor Sangh,

Flat No.166, DDA-SFS Flats, Sector-1, Pocket-II, Dwarka,

New Delhi-110075.

. . . . Workman

Versus

The Chairman,

Airport Authority of India,

A-Block, Rajiv Gandhi Bhawan,

Safdarjung Airport,

New Delhi-110003

. . . .Management.

AWARD

Post of equipment mechanic with the Airport Authority

of India (in short the Authority) falls in blind alley cadre.

Next higher line of promotion is not available to an

incumbent holding a post of equipment mechanic. With a

view to obviate problems faced by employees of blind alley

cadre(s) and employees of other categories facing

stagnation, the Authority introduced Flexible

Complementing Scheme (in short the FCS), for officers and

[Hkkx II—[k.M 3 (ii)]

Hkkjr dk jkti= % twu 22] 2013@vk"kk<+ 1] 1935

3037

staff working in Group "C" cadres. As per the scheme, two

cadres of service are grouped at the entry level and next

higher level to provide upward growth opportunities. The

scheme ensures first promotion to the officials within a

reasonable period to keep up their morale. Officials with

8 year of service on a post in lower cadre would be promoted

to higher grade, subject to their being found suitable for

promotion by the Departmental Promotion Committee (in

short the DPC), keeping ratio of strength of two cadres

within the limits prescribed in the scheme. Promotion from

higher grade in a group to the next higher cadre is based on

availability of vacancy in that cadre. When promotion is

vacancy based, as referred above and no vacancy is

available for the promotion, in that situation a group "C"

official would be given next higher scale on completion of

8 years of service in the grade. Their pay in the higher scale

would be fixed at the stage equal to the pay in the lower

scale held by them and if there is no such stage in the

higher scale, then equal to the stage next above the pay in

the lower scale.

2. Vide order dated 18/12/1997, the Authority stipulated

that in blind alley cadres next higher available scale would

be given to employees on completion of stipulated period

of service and they would also get benefit of pay fixation in

higher scale, as applicable to those promoted under FCS.

Next step in this line was taken vide order dated 9/6/2001,

wherein para 3 (XVI) it was provided that 40% posts in all

other Group "C" blind alley cadres may be upgraded to the

next higher scale. Another ameliorative step was taken,

when provisions relating to availability of benefits under

FCS scheme in International Aviation Division (lAD) "only

once in his carrier" was withdrawn, thereby benefit under

FCS were made available as and when one is eligible.

However persons, promoted under FCS, were required

again to go through DPC for regular promotion, vide order

dated 7/12/1995. Till then, they were to feature at the bottom

of seniority list with remarks "FCS".

3. The Authority adopted unified pay scales and

designation for executives and non-executives working with

it, vide order dated 9/2/1998. In October 2001, the Authority

adopted unified designations for non-executive posts,

thereby upgrading non-executive posts upto level 10,

besides giving better nomenclatures to those levels too.

Such steps were taken by the Authority with a view to

ameliorate service conditions of employees, working with

it under its lAD and National Aviation Division (NAD).

4. On 2nd May 1984 Shri Harinder Tiwari joined as

equipment mechanic with the Authority at Rourkela. He

was granted higher scales of pay of Rs.3100-5280 with effect

from 1st May 1995 under FCS and Rs. 3300-5820 w.e.f.

1/4/96, when pay scales were unified by the Authority. On

completion of 2 years combined service in the scale of

Rs.3100-5280 /Rs.3300-5820 next higher scale of Rs.3450-

6100 was granted to Shri Harinder Tiwari w.e.f. 1/5/97,

besides other employees vide order 10/1/2002 issued by

the Executive Director, Eastern Region, Kolkata. Above

order was issued in consonance with order dated 27/12/

2001, issued by Executive Director (P&A) of the Authority.

Thereafter Shri Tiwari was transferred to Northern Region

of the Authority. The Additional General Manager (P) wrote

to the Regional Executive Director, Northern Region, Delhi,

on 15/12/2004 highlighting that Shri Tiwari was not eligible

for grant of next higher scale of Rs.3450-6100, since he was

granted combined scale of pay of Rs.3100-5280 / Rs.3300-

5820 under FCS. On consideration of facts, so placed by

the Additional General Manager (P), order dated 7/1/2005

was issued by the Regional Executive Director (NR), thereby

he withdrew the order of grant of scale of 3450-6100 to Shri

Harinder Tiwari. Aggrieved by the said act, Shri Tiwari

raised a demand of restoration of his pay, which demand

was not considered to by the Authority. He approached

Airport Authority of India Mazdoor Sangh (in short the

Sangh) for redressal of his grievances. The Sangh

espoused his cause and raised an industrial dispute before

the Conciliation Officer. Since the Authority contested the

claim, conciliation proceedings ended into a failure. On

consideration of failure report, submitted by the

Conciliation Officer, the appropriate Government referred

the dispute to the Central Govt. Industrial Tribunal No.2,

New Delhi, for adjudication, vide order No. L-11011/2/2009-

IR(M) New Delhi dated 01.10.2009, with following terms:

"Whether the demand of the Airport Authority of India

Mazdoor Sangh to restore pay scale of Rs.3450-6100 (PR)

(8000-16340 revised) granted to Shri H. Tiwari from

01.05.1997 and grant him and all other Equipment Mechanics

of Northern Region, the pay scale of E-2 from 01.05.2003 in

accordance with the instructions contained in CHQ order

No.A.60011/27/2004-IR dated 14th October, 2004 is

justified? What relief the concerned employees are entitled

to?"

5. Claim statement, filed by the Sangh, is found to be

filibusterous. However with efforts it was made out that

the Sangh pleads that Shri Harinder Tiwari and other

equipment mechanics, working in blind alley cadre, were

granted next available higher scale of pay of Rs.3450-6100

on completion of their two years combined service in scale

of pay of Rs.3100-5280 / Rs.3300-5820, in accordance with

the instructions contained in letter No.NPA/5/Misc/98

dated 9.2.98. Anomalies committee was constituted by the

Authority to consider cases of individual grievances arising

out of unified scales of pay and designations for non-

executive of lAD and NAD. The Authority issued order,

vide letter No. MPA/5/Misc./2001 dated 9.6.01, for

implementation of recommendations of anomalies

committee. It was mentioned in the said order that

irrespective of the cadres all non-executives in the scale of

Rs.3300- 5820, designated as Superintendant, shall be placed

in the non-functional scale of Rs.3450-6100 on completion

of two years service as Senior Superintendent. Vide order

dated 27.12.01, the Executive Director (P&A) clarified that

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THE GAZETTE OF INDIA : JUNE 22, 2013/ASADHA 1, 1935

[PART II—SEC. 3 (ii)]

in case of blind alley where there was no higher scale in the

line of promotion, the employee would continue to be

eligible for the scale of pay of Rs.3450-6100 after completion

of two years combined service in the scale of Rs.3100-5280

/ Rs.3300-5820. It was emphasized therein that higher scale

will be granted from 1.4.96 or on completion of two years

service which ever was later. The Sangh projects that Shri

Tiwari was rightly granted higher scale of pay in the scale

of Rs.3450-6100.

6. Out of claim statement, it could also be made out that

the Sangh projects that the Additional General Manager

(P) wrote to the Regional Executive Director highlighting

that Shri Tiwari was granted higher scale of pay, without

taking into consideration that he was granted scale of pay

of Rs.3100-5280 / Rs.3300-5820 under FCS. This letter was

contrary to the order dated 27.12.01 issued by the Executive

Director (P&A) of the Authority. It further emerge out that

the Sangh assails that order dated 7.1.05, withdrawing scale

of pay Rs.3450-6100 from Shri H.Tiwari is a result of

misinterpretation of instructions contained in letters dated

27.12.01 and 14.10.04 issued by the Authority. It has been

projected that on account of wrong decision of the

Authority, Shri Tiwari and many other employees of blind

alley cadre are adversely affected. The Sangh claims that

appropriate orders may passed to restore pay scale granted

to Shri Tiwari, fix his seniority without disturbing his wages,

grade, continuity, and other conditions of service. A claim

has also been made that a penalty may be imposed upon

the Authority, since it resorted to unfair labour practice

and violated statutory provisions of model standing orders.

7. Claim was demurred by the Authority, pleading that it

is not maintainable since the Sangh is represented by

Harinder Tiwari who has not filed any document to project

such an authority in his favour. Shri Tiwari was not regular

in the combined scale of Rs.3100-5280 / Rs.3300-5820 but

was holding those scales only under FCS, hence his

eligibility in the scale of pay of Rs.3450-6100 does not arise.

Shri Harinder Tiwari was wrongly granted higher scale of

Rs.3340-6100, vide order dated 10.01.2002, by the office of

Regional Executive Director, Eastern Region, of the

Authority. Benefits, which he got under wrong order, were

withdrawn. However, Shri Tiwari was advised to take up

the matter with the Regional Executive Director, Eastern

Region. Pay of Shri Tiwari was re-fixed in the scale of

Rs.3300-5820 (revised to Rs.7200-14460) under FCS and

periodical increments were granted in that scale. Shri Tiwari

cannot claim benefit out of mistake committed by the

Authority.

8. There was no arbitrariness in refusing to grant scale

of Rs.3450-6100 to Shri Tiwari. The seniority of equipment

mechanics is maintained on region-wise basis and if an

employee is transferred from one region to another, he

becomes the junior-most. Seniority is maintained only for

promotion purposes and not for grant of other benefits.

Promotion shall be granted to Shri Tiwari as and when

there is a vacancy, as per his seniority maintained in

Northern Region. There is no violation of policy or rules

and regulations. The action of the Authority is in

accordance with the policy and R&P Regulations of the

Authority, besides guidelines issued from time to time. The

present petition put forth by the Sangh is not maintainable,

hence may be dismissed, pleads the Authority.

9. The case was transferred to this Tribunal for

adjudications, vide order No.Z- 22019/6/2007-IR(C-II), New

Delhi dated 30.03.2010 by the appropriate Government.

10. Shri Harinder Tiwari examined himself in support of

the claim. Ms. Anil Singh and Shri Rajiv Kapoor were

examined by the Authority to dispel the claim. No other

witness was examined by either of the parties.

11. Arguments were heard at the bar. Shri K.K.Aggarwal,

authorized representative, advanced arguments on behalf

of the Sangh. Shri L.B.Rai, authorized represented,

presented facts on behalf of the Authority. Written

arguments were also filed by the Sangh. 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:—

12. Affidavit Ex.WW1/A, tendered by Shri Harinder

Tiwari as evidence, is also filibusterous. However on

reading of Ex.WW1/A it could be made out that Shri Tiwari

wants to asserts that grant of higher scale of pay under

FCS is not an impediment for grant of next higher scale of

pay, on competition of prescribed service. Shri Tiwari proves

various documents through his examination, out of which

letter dated 12.05.04 written by the General Manager (P) to

the Executive Director, order dated 9.2.98 for adoption of

unified pay scales and designations, order dated 27.12.01

which speaks for grant of next higher pay of scale of Rs.3450-

6100 on completion of two years service, order dated

18.12.97 which speak of grant of next higher available scale

on completion of stipulated service by employees of blind

alley cadres, order dated 9/6/01 reiterating those very

propositions as contained in order dated 18/12/97, order

dated 10/5/02 which takes ameliorative steps for equipment

machanics delegation of administrative powers to Regional

Executive Directors and order dated 14/10/04 are relevant.

He again entered the witness box with the permission of

the Tribunal and placed his affidavit Ex.WW1/B over the

record as evidence. In Ex.WW1/B he projects instances

when next higher scale was granted to the employees of

blind alley cadres, despite the fact that they were in relevant

pay scale under FCS.

13. Smt. Anil Singh tenders her affidavit Ex.MW1/A as

evidence, wherein her thrust has been that since Shri

Harinder Tiwari was not on regular promotion in the

combined scale of Rs.3100-5280/3300-5820, he was not

eligible for grant of pay of Rs.3450-6100. Shri Rajeev Kapoor

speaks of the same facts in his affidavit Ex.MW2/A,

tendered as evidence.

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3039

14. When facts unfolded by Shri Harinder Tiwari, Smt.

Anil Singh and Shri Rajeev Kapoor are appreciated along

with the documents proved over the record, it came to light

that Shri Harinder Tiwari was appointed on the post of

equipment mechanic with the Authority. Recruitments rules

Ex.MW1/10 make it clear that post of equipment mechanic

is to be filled by way of direct recruitment from amongst

the applicants who are between 18-25 years (relaxable for

Govt. servant), and have passed middle standard

examination, besides having working knowledge of English

and 2 years experience in maintenance of petrol and diesel

electric generating sets, motor generator, secondary

batteries fine extinguishers and radio masts, ropes and

pulleys, electric maintained wiring and earthing of the

method metallic sheathed cables, use of tools, usually met

within a radio workshop and capable of climbing wireless

masts of height up to 90 feet for carrying out minor repairs,

replacements of masts headlights etc. It is an admitted fact

that equipment mechanic falls in blind alley cadre. Thus it

is evident that Shri Harinder Tiwari was appointed on a

post which falls in such a service cadre which does not

offer any prospect of improvement or advancement. Blind

alley cadre is a situation in which no further progress can

be made. It is not a matter of dispute that no promotional

avenues were available to the employees, who were

recruited on the post of equipment mechanic. There are

others cadres too wherein no promotional avenues are

available to the employees. Those cadres of service are

commonly known as blind alley cadres in administrative

circles of the Authority.

15. Besides employees working in blind alley cadres,

there were other employees too who were facing stagnation

in their service career. To boost morale of such employees

the Authority took various steps to grant promotional

opportunities, FCS is one of them. To know FCS scheme, it

would be expedient to have a glance on the contents of

Ex.MW1/12. For sake of convenience contents of

Ex.MW1/12 are reproduced thus:

26th May 95.

"To

The Regional Executive Director

Delhi/Bombay/Calcutta/Madras

The Director

N.E. Region

Guwahati

Sub: Promotional Opportunities — Flexible Complementing

Scheme

Sir,

A proposal to evolve a system to give relief to the staff

who have been waiting for promotion for long years after

completing the eligibility period, for want of vacant posts

in the higher grade has been under consideration for

sometime. This situation, as such, has been causing

demoralization among the employees. A scheme of flexible

complementing by grouping two cadres at the entry level

and the next higher level has, as such, been evolved to

provide upward growth opportunity. The scheme will ensure

first promotion to the official on entry within a reasonable

period to keep up his morale. The scheme will be applicable

to officers and staff in Group 'C' cadres. The details of the

flexible complementing scheme are as below:

1. Two cadres at the entry level and the next higher level

would be grouped together. Example of such groupings

are:

( i) JOA and SOA

(ii) Steno Grade II and Steno Grade III

(iii) Fire Operator and Fire Foreman

(iv) Technical Assistant and Assistant Technical

Officer

(v) Aerodrome Officer and Senior Aerodrome Officer

Details of the groupings where flexible complementing

scheme would be applied in the first stage in Group 'C'

cadres are enclosed at Annexure-I.

2. (i) While the total sanctioned strength of a group

comprising of two cadres would as a whole be maintained,

there would be flexibility in the strength of each of the two

cadres in a group which would vary within the prescribed

limits of 60% (higher grade) to 40% (lower grade) at one

end and 30% (higher grade) to 70% (lower grade) at the

other end.

(ii) Officials with 8 years of service In Group 'C' post in

the lower cadre would be promoted to higher grade, subject

to their being found suitable for promotion by the DPC,

keeping the ratio of strength of two cadres within the limits

prescribed above.

As example, the combined of SOA (309) and JOA (409)

grouped to together under the scheme is 718. Under flexible

complementing the ratio of SOA and JOA could vary

between 431:287 and 215:503 at anytime depending upon

the number of official otherwise suitable for promotion

having completed 8 years of service in the lower grade of

JOA.

3. Promotion from higher grade in a group to the new

higher cadre would be, however, be based on availability

of vacancies in the cadre e.g. promotion of SOA, Foreman,

ATO etc. to the next higher grade will be based purely on

the availability of vacancies in the next higher grade.

4. The promotion in the flexible complementing scheme

mentioned in the introduction, are intended to get some

relief to the official who are waiting promotion for long

after completing the eligibility period by grouping the posts

keeping the strength in that group constant. The duties of

lower posts vacated by such officials on promotion under

the scheme after promotion will, however continue to be

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THE GAZETTE OF INDIA : JUNE 22, 2013/ASADHA 1, 1935

[PART II—SEC. 3 (ii)]

performed by the official in higher cadre of the group. This

would result in flexibility in deployment of Fire and Rescue

Operation and Fire Foreman and other such cadres grouped

together under the flexible complementing scheme.

5. In those cadres where flexible complementing scheme

is not applicable or is not resorted to at this stage due to

non availability of officials with more than 8 years service

in the grade (Group 'C'), promotion would be based on

availability of vacancy and follow the normal R&P Rules.

6. The cadres where regional seniority is followed (e.g.

JOA and SOA) the group total of the Region would be

taken to work out the limits in individual cadres under

flexible complementing scheme.

7. The cut-off date for the purpose of assesement of 8

years of completed service in the cadre would reckon (30th

June) of the year. As such, promotion of or grant of higher

scale is detailed above would be done once a year in the

months of 1st July taking those to have completed the

required years before 30th April of the current year.

Such of the Group 'C' officials on the higher cadres in

the group whose subsequent promotion is vacancies

based would be given the next higher scale on completion

of 8 years service in the grade in case they have not got

their next promotion. Their pay in the higher scale will be

fixed at the stage equal to the pay in the lower scale held by

them and if there is no such stage in the higher scale then

equal to the stage next above the pay in the lower scale.

Yours faithfully

Executive Director (P .A)"

16. As emerge out of Ex.MW1/12 promotional

opportunities under FCS to next higher grade is based on

availability of vacancies in that cadre. Employees are to be

promoted in the next higher grade on completion of 8 years

service in group C post in the lower cadre, subject to their

being found suitable for promotion by the DPC, keeping

the ratio of strength of the two cadres within the limits

prescribed in the scheme. However next promotion is to be

granted in the higher cadre on completion of 8 years service

in case they have not got their next promotion. Thus it is

evident that FCS scheme was not applicable to blind alley

cadres, where no further promotion avenues were available.

However the scheme was modified vide order No. AAI/

MPA/FCS/97 dated 18/12/97, proved as Ex.WW1/17 (which

was inadvertently proved as Ex.MW1/1 by Smt. Anil Singh).

It would be expedient to take note of the contents of

Ex.WW1/17, which are extracted thus:

"Flexible Complementing Scheme was introduced in

NAD and IAD vide orders No. A.60011/5/94-PP dated 26th

May, 1995 and orders No. PERS/MPP/1108/9/95 dated 31st

August, 1995, respectively. It has now been decided to

modify the scheme as under:

(i) Promotion under Flexible Complementing Scheme

would be given from the first of the month

subsequent to the month in which the individual

official completes 6/8 years of service.

(ii) Next higher scale would be given those who are

not covered under the maximum ceiling of 60% in

the higher grade in the grouping of two cadres. In

such cases, the benefit of pay fixation as on

promotion under FCS would be allowed.

(iii) Benefit of pay fixation as applicable on promotion

under FCS would also be allowed to those who are

given the benefit of higher scale as a special grade

where promotion under Flexible Complementing

Scheme is not applicable.

(iv) In "blind-alley" cadres, next higher available scale

would be given to them on completion of the

stipulated period of service and they would also

get the benefit of pay fixation in the higher scale, as

applicable to those promoted under Flexible

Complementing Scheme."

17. For the first time employees of blind alley cadres

were made elegible for next higher available scale on

completion of stipulated period of service and they could

get benefit of pay fixation in the higher scale as applicable

to those promoted under flexible complementing scheme.

For getting next higher available scale, an employee in blind

alley cadre had to render 8 years of service. Shri Harinder

Tiwari was granted benefit of Ex. WW1/17, when he

rendered 8 years service and order No. DC/CE/6(2) dated

30/4/98, proved as Ex.MW1/15, was issued by the Executive

Director, Eastern Region of the Authority. Ex. MW1/15

speaks that next higher scale under FCS was granted to

Shri Harinder Tiwari w.e.f. 1/5/95 and his pay was fixed in

the scale of pay of Rs. 3100-110-4200-120-5280. Unified

pay scales and designation were adopted by the Authority,

vide order MPA/5/MISC/98 dated 9/2/98, which has been

proved as Ex. WW1/13. Pay scale of Rs. 3100-110-4200-

120-5280 was placed in unified scale of Rs. 3300-120-4500-

130-5540-140-5820 on the strength of Ex. WW1/13. Thus

order Ex.MW1/15 projects further that pay of Shri Tiwari

was fixed under unified pay of scale of Rs. 3300-120-4500-

130-5540-140-5820 w.e.f. 1/4/96. Benefits, given to Shri Tiwari

on the strength of Ex. WW1/15, are corner stone of the

case.

18. On adoption of unified pay scale and designation

for non executive in the Authority, cases of individual

grievances occurred. Since anomalies arose out of adoption

of those pay scales and designation, anomaly committee

was appointed to consider cases of individual grievances

and representation made by the union. The anomaly

committee considered those cases and made

recommendations to the Authority in that regard. On

consideration of the recommendations, so made, the

Authority made orders on 9/6/01, provided as

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3041

Ex. WW1/20. Orders relevant to the present controversy

are detailed as follows:

"3(ii) with the marger of scale of Rs. 3100-5280 and

Rs.3300-5540 as Rs.3300-5820, any promotion in the higher

scale of Rs. 3300-5540 made prior to 1/4/96 shall be treated

as no promotion and the combined service in both the pre

revised scale shall count towards promotion to the next

higher scale.

(iii) Irrespective of the cadre, all non-executive in the

scale of Rs.3300-5820 designated as superintendent shall

be placed in the non-functional scale of Rs.3450-6100 on

completion of 2 years service as senior superintendent".

19. Further clarification, relating to anomalies arising

out of adoption of unified scale of pays and designation

for non-executive, was made by the Authority through order

No.A-60011/1/2001-IR dated 27/12/01, proved as Ex.WW1/

14. For sake of convenience contents of Ex.WW1/14 are

detailed as below:

"With reference to orders/clarification, issued vide order

No.MPA/5/MISC/2001 dated 09.06.2001,10.10.2001 and

18.12.2001, it is hereby clarified that:

1. Employees

(i) who were holding the scale of Rs.3100-5280 on

regular basis and were placed in the scale of pay

of Rs.3300-5820 before 01.04.96, and

(ii) the next higher grade for promotion were

equivalent to that of Assistant Manager.

would be eligible for next higher scale of Assistant Manager

under FCS on completion of 8 years combined service in

the grades of Rs.3100-5280 and Rs.3300-5820. The higher

scale of Assistant Manager will be granted on completion

of 8 years or from 01.04.96 whichever is later. This is also

further subject to the condition that they have to undertake

that they would not claim the scale of pay of Rs.3450-6100

after completion of two years combined service under

existing scheme.

2. In case of Blind Alley where there was no higher scale

in the line for promotion, the employee would continue to

be eligible for the scale of pay of Rs.3450-6100 after

completion of two years combined service in the scale of

Rs.3100-5280/ Rs.3300-5820. The higher scale will be granted

from 01.04.96 or on completion of 2 years of service

whichever is later.

3. All benefits accruing from the scheme would be

available for the period from 01.04.96 to 31.07.2001 i.e. till

the introduction of Career Progression Plan (w.e.f.

1.8.2001)".

20. As projected above, employees of blind alley cadre

were eligible for scale of pay of Rs. 3450-6100 after

completion of 2 year combined service in the scale of

Rs. 3100-5280/ Rs.3300-5820. Shri Harinder Tiwari bases

his claim on order Ex.WW1/14. The Authority interprets

contents of this document to the effect that for grant of

next higher scale of Rs.3450-6100 Shri Tiwari would have

been holding scale of Rs.3100-5820 on regular basis and

would have been placed in the scale of pay of , Rs.3300-

5820 before 1.4.96. Question for consideration would be as

to whether the Authority interpret contents of Ex WW1/14

in right perspective? As pointed out above, scale of Rs.3100-

5280 was granted to Shri Harinder Tiwari w.e.f 1/5/95 under

FCS. It is not a matter of dispute that post of equipment

mechanic falls in blind alley cadre, having no scope of

promotion or carrier progression.

21. Whether Shri Tiwari would reach the scale of pay

of Rs.3100-5280 on regular basis? When there is no scope

of promotion for an equipment mechanic, Shri Tiwari can

not hold the scale of Rs. 3100-5280 on regular basis.

Resultantly, it is apparent that in no circumstances an

equipment mechanic can hold scale of Rs. 3100-5280, in

case he is not granted next higher available scale on

completion of stipulated period of service, pursuant to

orders contained in Ex.WW1/17. Thus it is evident that

first limb of Ex.WW1/14 is not applicable to the employees

of blind alley cadres. They are governed by second limb of

Ex.WW1/14 and would be eligible for scale of pay of

Rs.3450-6100 after completion of 2 year combined service

in the unified scale of Rs.3100-5280/ Rs.3300-5820.

22. Whether benefit under FCS would be granted only

once in entire career of an employee? FCS scheme, proved

as Ex.MW1/12, speaks of grant of next higher scale, on

completion of 8 years service, subject to an employee being

found suitable for promotion by DPC, keeping the ratio of

strength of two cadres within the limits prescribed therein.

Promotion from higher grade in a group to the next higher

grade would be based on availability of vacancy in that

cadre. However group 'C' officials on the higher cadre would

be given next higher scale of pay on completion of eight

years of service in the grade in case they have not got their

next promotion. Thus it is evident that from a higher grade

in a group, an employee would be promoted to next higher

grade on completion of eight years of service. FCS does

not talk of any other promotion thereafter. This barrier was

lifted vide order dated 9.6.01, proved as Ex.MW1/18. Para 3

(xvi) of the said order makes it clear that bar of getting

benefit under FCS only once in his career by an employee

was withdrawn and benefits under FCS shall be available

as and when one is eligible. For ready reference those

provisions are detailed as below:

"3(xvi) 40% posts in all Group 'D' cadres in the scale of

pay of Rs.2400-3330 is upgraded to Rs.2550-3660".

Similarly 40% posts in all other group 'C' blind alley

cadres may be upgraded to the next higher scale. The

provisions in FCS scheme in lAD that an employee will get

benefit under these schemes "only once in his career" is

withdrawn thereby benefit under FCS shall be available as

and when one is eligible".

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[PART II—SEC. 3 (ii)]

23. Unified designation for non-executive posts were

circulated by the Authority vide letter dated 15.10.01, proved

as Ex.MW1/W7. An employee in the scale of Rs.3300-5820

was designated as Superintendent (Technical) and placed

at N.E.-8 level. Ex.WW1/22 further projects that irrespective

of cadres, all non-executives holding the post in the pre-

revised scale of Rs.3300-5820 (now N.E.-8) are to be placed

in the non functional pre-revised scale of Rs.3450-6100

(now N.E.-9) on completion of two years service before the

period w.e.f. 1.4.96 to 31.7.01, that is, till introduction of

career progress in plan envisaged w.e.f 1.8.01. Ex. WW1/23

presents that 40% posts of the equipment mechanic in the

scale of pay of Rs. 3030 -5270 (pre-revised) have been

upgraded in the scale of Rs.3300-5820 w.e.f 1/4/96 and

designated as Superintendent (Equipment). The order

further details that 21 equipment mechanics re designated

as Supervisor Equipment were regularized/ promoted as

Superintendent (Equipment) in the scale of Rs. 3300 -5820

w.e.f 1/4/96. This upgradation and subsequent promotion

were held to be personal to them. Therefore these

documents do crystalize that 40% posts of equipment

mechanics were designated as Superintendent (Equipment)

and some of the officers were regularized/ promoted as

such by the Authority. It is abundantly clear that on grant

of promotion under FCS an equipment mechanic has been

treated as regularly promoted on the post of Superintendent

(Equipment). Ex.WW1/28 reaffirns the same proposition.

24. Order dated 12/11/01, proved as Ex.MW1/W1,

confirms that all non-executives in the revised scale of

Rs.3300-5820 are to be placed in non-functional pre-revised

scale of Rs.3450-6100 on completion of 2 year service

between the period w.e.f 1/4/96 to 31/4/01, that is, till

introduction of career progression plan envisaged

w.e.f 1/8/01. In view of all these facts it is apparent that Shri

Harinder Tiwari was entitled to be placed in non functional

pre-revised scale of Rs.3450-6100 on completion of 2 year

service in unified scale of Rs. 3300-5820 between the period

1/4/96 to 31/4/01.

25. Whether Executive Director, Eastern Region, Kolkata,

was competent to grant non functional scale of pay, as

referred above, to Shri Harinder Tiwari? Ex. WW1/24 details

administrative powers, which were delegated to Regional

Director and below. Full powers for promotions,

confirmation, acceptance of resignation, transfer and cases

relating to efficiency bar of Grade "C" and "D" employees

were delegated to Regional Executive Director, subject to

rules and procedure issued by the Corporate Headquarter

from time to time. It is apparent that Executive Director,

Eastern Region, Kolkata, was having full power to grant

next higher non-functional scale of pay to Shri Tiwari. As

pointed out above, all non-executives in pre-revised scale

of Rs.3300-5820 were to be placed in non-functional pre-

revised scale of Rs.3450-6100 on completion of two years

service w.e.f. 1.4.96. Executive Director, Eastern Region,

Kolkata, issued order dated 1.10.02 granting next higher

scale of Rs. 3450-6100 Shri Tiwari and others, since they

have completed two years combined service in the scale of

Rs.3100-5280/Rs.3300-5820 on or after 1.4.96. The said order

was in accordance with procedure/rules issued in that

regard from time to time.

26. Order dated 7.1.05, proved as Ex.MW1/20, on the

strength of which the Authority withdrew order dated

10.1.02 granting non-functional scale of Rs,.3450- 6100 to

Shri Tiwari is not in accordance with instructions, issued

by the Authority from time to time. This order is not correct

and justified. It cannot be sustained. Consequently it is

ruled that the demand of the Sangh for restoration of pay

scale of Rs.3450-6100 (pre-revised) (Rs.8000-16340 revised)

granted to Shri Tiwari from 1.5.97 and for grant of pay scale

of E-2 to Shri Tiwari and all other equipment mechanic of

Northern Region, in accordance with Instructions contained

in Corporate Headquarter order No.A-60011/27/2004-IR

dated 14.10.04 is legal and justified. The Authority is

commanded to restore pay scale of Shri Tiwari in pursuance

of order dated 7.1.02, passed by the Executive Director,

Eastern Region, Kolkatta, and grant him and other

equipment mechanic pay scale of E-2 in accordance with

the instructions issued by the Corporate Headquarter on

14.10.04. An award is, accordingly, passed in favour of the

Sangh and against the Authority. It be sent to the

appropriate Government for publication.

Dated 04.04.2013

Dr. R. K YADAV, Presiding Officer

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New Delhi, the 27th May, 2013

S.O. 1166.—In pursuance of Section 17 of the Industrial

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

hereby publishes the Award (Ref. No. 265/2011) of the

Central Government Industrial Tribunal-cum-Labour Court

No. 1, New Delhi as shown in the Annexure, in the industrial

dispute between the management of M/s. Indian Airlines

Ltd. and their workmen, received by the Central Government

on 02/04/2013.

[No. L-11012/48/2001-IR (C-I)]

M.K. SINGH, Section Officer

[Hkkx II—[k.M 3 (ii)]

Hkkjr dk jkti= % twu 22] 2013@vk"kk<+ 1] 1935

3043

ANNEXURE

BEFORE DR.R.K.YADAV, PRESIDING OFFICER,

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL

NO.1, KARKARDOOMA COURTS COMPLEX, DELHI

I.D. No. 265/2011

Shri Joginder Singh S/o Sh.Sadhu Singh

R/o E-93, Nihal Vihar,

New Delhi -110041.

..... Workman

Versus

The General Manager (Personnel) Indian Airlines Ltd.,

113, Gurudwara Rakabganj Road,

New Delhi -110001.

...... Management

AWARD

Erstwhile Indian Airlines Ltd. (hereinafter referred to as

the Airlines) and Air India Ltd. amalgamated with

M/s. National Aviation Company of India Ltd. in August

2007. Prior to its amalgamation, the Airlines used to recruit

staff on regular basis against permanent vacancies.

Whenever vacancies arose due to absence on maternity

leave of regular female employees or with regular

employees proceeded on medical leave for a periods

exceeding one month as well as in case of exigencies to

cope with work load, the Airlines used to engage casual

employees on daily rate basis for specified period, from

time to time. Shri Joginder Singh was engaged by the Airlines

as office assistant on daily rate basis on 05.08.1997. His

services were extended from time to time, at intervals. After

08.02.2000, his contract of employment was not renewed.

Feeling aggrieved by the said act, he raised a demand for

reinstatement in service. Since his demand was not

conceded to, he raised an industrial dispute before the

Conciliation Officer. The Airlines contested his claim and

as such conciliation proceedings ended into a failure. On

consideration of the failure report, submitted by the

Conciliation Officer, the appropriate Government referred

the disputed to this Tribunal for adjudication, vide order

No.L-11012/48/2001-IR(C-I), New Delhi dated 10.08.2001,

with following terms:

"Whether action of the management of Indian

Airlines in terminating the services of Shri Joginder

Singh with effect from 08.02.2000 is just and legal? If

not, to what relief the said workman is entitled?"

2. Claim statement was filed by Shri Joginder Singh

pleading therein that he was employed by the Airlines on

the post of Office Assistant, vide appointment letter dated

05.08.1997. He was required to perform the job, which was

clerical in nature. Consolidated salary of Rs.6500.00

approximately per month was paid to him. He worked with

dedication. Fresh appointment letters were issued by the

Airlines every month, only with a view to circumvent legal

provisions and his claim for being made permanent in

service. He was never granted status of a permanent

employee. He requested the Airlines several times to

regularize his services. Instead of regularizing his service,

his services were terminated on 08.02.2000. He claims

reinstatement in service with continuity and full back

wages, besides a sum of Rs.1,56,000.00 towards wages with

interest @ 18% per annum. He also claims promotion and

other consequential benefits.

3. Claim was demurred by the Airlines pleading that it

has statutory rules of recruitment and promotion for its

employees. All appointments on regular posts are made

under the provisions of rules of recruitment and promotion.

Claim put forward by Shri Joginder Singh is not maintainable

since he seeks permanent appointment in violation of

recruitment and promotion rules. The Airlines does not

dispute that he was engaged from 05.08.1997 to 07.02.2000

as a casual employee for specified period, due to work load

arising out of leave vacancy as well as on account of

exigency of work. He was engaged to take care of work

load. Clerical work was performed by the claimant. His

engagement was intermittent for specified period from time

to time. Subsequently, a ward of a deceased employee was

appointed on compassionate grounds and necessity of

engaging the claimant ceased to exist. Claimant was well

aware that his engagement was purely casual and restricted

till regular incumbent returns for duty. It is claimed that no

right accrued to Shri Joginder Singh to seek reinstatement

in service. His claim is liable to be dismissed, being devoid

of merits.

4. In rejoinder, the claimant reiterates facts pleaded in

the claim statement.

5. The claimant has examined himself in support of his

claim. Shri S.D.Chhabra was examined by the Airlines to

dispel the claim. No other witness was examined by either

of the parties.

6. 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 re-

transferred to this Tribunal for adjudication, vide order

No.L-11012/48/2001-IR(C-I), New Delhi dated 30.03.2011.

7. Arguments were heard at the bar. None came forward

to advance arguments on behalf of the claimant.

M/s. Poonam Dass, authorized representative, presented

facts on behalf of the Airlines. Written submissions were

also filed by the Airlines. 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:

8. Shri Joginder Singh unfolds in his affidavit

Ex.WW1/A, tendered as evidence, that he was appointed

as Office Assistant by the Airlines on 05.08.1997. He worked

upto 03.10.1997. He worked with the Airlines from 06.10.1997

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THE GAZETTE OF INDIA : JUNE 22, 2013/ASADHA 1, 1935

[PART II—SEC. 3 (ii)]

to 04.12.1997, 11.12.1997 to 09.01.1998, 02.02.98 to 03.03.98,

06.03.98 to 03.04.98, 23.04.98 to 26.06.98, 09.07.98 to 04.08.98.

He was again appointed from 07.09.98 to 04.12.98, 29.12.98

to 27.01.99, 28.01.99 to 26.02.99, 01.03.99 to 30.03.99, 31.03.99

to 29.04.99, 03.05.99 to 01.07.99, 05.07.99 to 02.09.99. He

again worked with the Airlines from 06.09.99 to

05.10.99,02.11.99 to 01.12.99,02.12.99 to 30.12.99,10.01.2000

till 08.02.2000. Appointment letters, issued in his favour

from time to time, are Ex.WW1/1 to Ex.WW1/26. He asserts

that at least 10 persons were regularized in service by the

Airlines, who were placed on similar footing on which he

stands. Shri Jayanta Chatterjee, Office Assistant, was

regularized in the year 1997. Shri Sameer Khanna, Bill

Typist, was regularized in 1997 itself, Renu Panikar, Office

Assistant and Ms.Asha were also regularized in service

by the Airlines. During course of his cross examination, he

concedes that he was engaged on casual basis as and

when there were exigencies of work. He was paid for actual

days of work. Fresh appointment letters were issued in his

favour as and when earlier appointment period came to an

end. He was not employed on permanent basis. His services

were not terminated. He was not engaged as there was no

work.

9. Shri S.D.Chhabra unfolds in his affidavit Ex.MW1/A,

tendered as evidence, that the claimant was engaged for

fixed period on different occasions from 05.08.97 to

07.02.2000, to meet exigencies of work arising out of leave

vacancy, sporadic absenteeism of regular employees and

additional work load. His engagement was for fixed period

of 30 days and co-terminus on expiry of that period. Every

engagement was independent and claimant was well aware

of the terms of his engagement. His services were never

terminated by the Airlines, since his engagement being for

a fixed period, automatically came to an end. There is

complete ban on external recruitment in non-operational

categories. As such, no appointment is made in the cadre

of Office Assistant by the Airlines.

10. Out of facts unfolded by the claimant and Shri

Chhabra, it came to light that the claimant was engaged by

the Airlines for specific period on different occasions, to

meet exigency of work rising out of leave vacancy, sporadic

absenteeism of regular employees and additional work load.

His appointment letters, which are Ex.WW1/1 to Ex.WW1/

26, highlight that the Airlines specified. The period for which

the claimant was engaged. Ex.WW1/1 makes it clear that

he was engaged for a period of 30 days from 05.08.97 to

03.09.97 or till regular incumbent was to report for duty,

whichever was earlier. Similar factual position emerges out

of appointment letters issued in his favour, except Ex.WW1/

9 and Ex.WW1/17. Ex.WW1/9 highlights that his earlier

appointment was further extended for a period of 30 days

from 20.05.98. Ex.WW1/17 specifies that the claimant

appointed for a period of 30 days from 01.03.99 to 30.03.99

to work in Catering Section, would work in Establishment

Section with effect from 08.03.99. Terms and conditions

contained in Ex.WW1/16 remained unchanged. Therefore,

out of contents of the aforesaid appointment letters, it is

crystal clear that the claimant was appointed by the Airlines

to meet exigencies of work, arising out of leave vacancies

or sporadic absenteeism of regular employees.

11. As is evident out of facts unfolded by the claimant

and Shri Chhabra, claimant was never engaged after

08.02.2000, Ex.WW1/26 makes it clear that claimant was

appointed as Office Assistant on casual basis in

Establishment Section for 30 days from 10.01.2000 to

08.02.2000 or till such time regular incumbent was to report

for duty, whichever was earlier. These terms and conditions

of his appointment were not renewed any further. Claimant

may agitate that from 08.02.2000 till 9.02.1999, he worked

for 305 days in preceding twelve months from the date of

his alleged termination. He may argue that he rendered

continuous service of more than 240 days in preceding

12 months and it was incumbent upon the Airlines to follow

re-conditions, contained in section 25F of the Industrial

Disputes Act, 1947 (in short the Act). His contention may

be that since one month's notice or pay in lieu thereof was

not given nor retrenchment compensation was paid,

termination of his service is violative of section 25F of the

Act.

12. Next count of argument may be raised on behalf of

the claimant that the Airlines issued fresh appointment

letter from time to time with a view to show artificial breaks

in his service. He may argue that it was so done by the

Airlines just to project that here was no continuity in his

service. Motive behind this method of engagement was to

stop him in attaining continuous service or in order to

frustrate his rights under Chapter VA of the Act, despite

the fact that his services remained satisfactory. The Airlines

adopted this method only with a view to disable him from

rendering continuous service of 240 days and to acquire

protection of section 25F of the Act. Claimant may agitate

that such activities on the part of the Airlines amounts to

unfair labour practice.

13. Unfair labour practice is committed by an employer

when he does or omits to do something, which act or

omission is invasion of the legitimate rights or interests of

the workmen. Basic principle in the concept of "unfair

labour practice" is the involvement of relationship of

employer and employee. In other words, question of unfair

labour practice can arise only when something is done or

omitted in connection with the matter which has something

to do to with regulating the relationship of employer and

employee. It is not permissible to ascribe "unfair labour

practice" to something done or omitted in connection with

the matter which has nothing to do with relationship of

employer and employee. This is the basic or fundamental

principle underlying the concept of "unfair labour practice".

14. In Kapurthala Central Co-operative Bank Ltd. (1984

Lab. I.C. 974), the Division Bench of Punjab and Haryana

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3045

High Court had castigated the practice of retrenchment of

a workman close to his attaining a year's continuous service

in order to frustrate his attaining rights under Chapter VA

of the Act and ruled that termination of services of the

workmen on their completing 230 days of despite the fact

that their work was satisfactory, disabling them from

completing 240 days service with a view to deprive them of

the protection of section 25F of the Act amounts to unfair

labour practice, particularly when other persons were

employed in their place.

15. Unjust dismissal, unmerited promotion, particularly

towards one set of workers, regardless of merit, are

illustrations of unfair labour practice. In HD Singh [1986(1)

LLJ 127], Reserve Bank of India issued confidential circular

directing its officers that workmen like applicants should

not be engaged continuously but should as far as possible

be offered work on rotation basis. In view of the provisions

of item 10 of Fifth Schedule appended to the Act, the Apex

court held that it had no option but to hold that the bank

indulged in methods amounting to "unfair labour practice".

16. Appointment letters, which are Ex.WW1/1 to

Ex.WW1/26, highlight that claimant was engaged as Office

Assistant on casual basis for specific periods against leave

vacancies. In his appointment letters, the Airlines made it

clear that he is appointed for specific period or till such

time the regular incumbent would report for duty, whichever

was earlier. It is crystal clear that leave vacancies were

available with the Airlines for specific period on account of

regular employees happening to be on leave on medical

grounds or on account of their sporadic absenteeism.

Therefore it is apparent that no regular vacancy was

available with the Airlines to appoint the claimant against

it. His appointment was against leave vacancy.

Consequently, method of his engagement intermittently

for specific periods nowhere bring it over the record that

the Airlines tried to frustrate claim of Shri Joginder Singh

to acquire protection under section 25F of the Act. As and

when leave vacancy arose, he was appointed, with specific

stipulation that his engagement was for a period of 30 days

or till regular incumbent would report for duty.

Consequently, it is evident that in absence of regular

vacancy, the Airlines could engage the claimant in casual

manner. His casual engagement was not against a specific

leave vacancy for a long duration. Under these

circumstances, it cannot be said that method adopted by

the Airlines amounted to unfair labour practice.

17. In order to attain protection under section 25F of the

Act, it is incumbent upon the claimant to establish that

action of the Airlines in dispensing with his services

amounts to retrenchment. For an answer, definition of the

term is to be construed. Clause (oo) of section 2 of the Act

defines "retrenchment". For the same of convenience, the

said definition is extracted thus:

"(oo) "retrenchment" means the termination by the

employer of the services of a workman for any reason

whatsoever, otherwise than as a punishment inflicted

by way of disciplinary action, but does not include—

(a) voluntary retirement of the workman; or

(b) retirement of the workman on reaching the age of

superannuation if the contract of employment

between the employer and the workman

concerned contains a stipulation in that behalf;

(bb) termination of the services of the workman as a

result of the non-renewal of the contract of

employment between the employer and the

workman concerned on its expiry or of such

contract being terminated under a stipulation in

that behalf contained therein; or

ground of continued ill-health."

18. Definition of retrenchment is very wide and in two

parts. The first part is exhaustive, which lays down that

retrenchment means the termination of the service of a

workman by the employer "for any reason whatsoever"

otherwise then as a punishment inflicted by way of

disciplinary action. Thus main part of the definition itself

excludes the termination of service, as a measure of

punishment inflicted by way of disciplinary action from

the ambit of retrenchment. The second part further excludes

(i) voluntary retirement of the workman, or (ii) retirement of

workman on reaching the age of superannuation, or (iii)

termination of the service of a workman as a result of non-

renewal of contract of employment, or (iv) termination of

contract of employment in terms of a stipulation contained

in the contract of employment in that behalf, or (v)

termination of service on the ground of continued ill health

of the workman. Reference can be made to the precedents

in Avon Services (Production Agencies) (Pvt.) Ltd. (1979

(I) LLJ 1] and Mahabir [1979 (II) LLJ 363].

19. Sub Clause (bb) purports to exclude from the ambit

of the definition of retrenchment (i) termination of the

service of a workman as a result of non-renewal of the

contract of employment between the employer and the

workman concerned, on its expiry, or (ii) termination of the

contract of employment in terms of a stipulation contained

in the contract of employment in that behalf. The first part

relates to termination of service of a workman as a result of

non-renewal of the contract of employment between the

employer and the workman concerned on its expiry. Thus

"non-renewal of contract of employment" pre-supposes

an existing contract of employment, which is not renewed.

When services of an employee is terminated on account of

non renewal of contract of employment, between the

employer and the workman, it does not amount to

retrenchment. The second part refers to "such contract"

being terminated under a stipulation in that behalf contained

therein. The cases contemplated, under this part too, would

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THE GAZETTE OF INDIA : JUNE 22, 2013/ASADHA 1, 1935

[PART II—SEC. 3 (ii)]

not amount to retrenchment. However this sub-clause being

in the nature of an .exception to clause (oo) of section 2 of

the Act, is ruled to be construed strictly when contractual

agreement is used as modus operandi to frustrate claim of

the employee to become regular or permanent against a

job. The adjudicator has to address himself to the question

whether the period of employment was stipulated in the

contract of employment as a device to escape the

applicability of the definition of retrenchment. See

Shailendra Nath Shukla (1987 Lab. I.C. 1607), Dilip

Hanumantrao Shrike (1990 Lab. I.C. 100) and Balbir Singh

[1990 (1) LLJ. 443].

20. On review of law laid by the Apex Court and various

High Courts, a single Judge of the Madhya Pradesh High

Court, in Madhya Pradesh Bank Karamchari Sangh (1996

Lab. I.C. 1161) has laid following principles of interpretation

and application of sub-clause (bb) of clause (oo) of section

2 of the Act:

"(i) that the provisions of section 2(oo )(bb) are to be

construed benevolently in favour of the workman,

(ii) that if the workman is allowed to continue in

service by making periodic appointments from time

to time, then it can be said that the case would not

fall under section 2(oo)(bb),

(iii) that the provisions of section 2 (oo)(bb) are not

to be interpreted in the manner which may stifle

the main provision,

(iv) that if the workman continues in service, the non-

renewal of the contract can be deemed as

mala-fide and it may amount to be a fraud on

statute,

(v) that there would be wrong presumption of non-

applicability of section 2(oo)(bb) where the work

is of continuous nature and there is nothing on

record that the work for which a workman has

been appointed had come to an end."

21. Whether provisions of retrenchment, enacted in the

Act, provide for any security of tenure? Answer lies in

negative. Provisions of retrenchment provide for certain

benefits to a workman in case of termination of his service,

falling within the ambit of definition of retrenchment. On

compliance of the requirements of section 25F or 25N and

25G of the Act, it is open to the employer to retrench a

workman.

22. Termination of service of an employee during the

period of probation was held to be covered by the exception

contained in sub-clause (bb) of section 2(oo) of the Act, in

C.M. Venugopal [1994 (1) LLJ 597]. As per fact of the case,

Regulation 14 of the Life Insurance Corporation of India.

(Staff) Regulation 1962 empowered the Corporation to

terminate the service of an employee within the period of

probation. The employee was put on probation for a period

of one year, which was extended by another year. Since he

could not achieve the target to earn confirmation, his service

was terminated in terms of Regulation 14 as well as order of

appointment. The Apex Court ruled that the case was

covered by the exception contained in sub-clause (bb) hence

it was not retrenchment.

23. In Morinda Co-operative Sugar Mills Ltd. (1996 Lab.

I.C. 221) a sugar factory used to employ certain number of

workmen during crushing season and at the end to the

crushing season their employment used to cease. The

Supreme Court held that despite the fact that the workmen

worked for more than 240 days in a year, cessation of their

employment at the end of crushing season would not amount

to retrenchment in view of the provisions of sub-clause

(bb) of section 2(oo) of the Act. It was observed as follows:

"4. It would thus be clear that the respondents were

not working throughout the season. They worked

during crushing seasons only. The respondents were

taken into work for the season and consequent to

closure of the season, they ceased to work.

5. The question is whether such a cessation would

amount to retrenchment. Since it is only a seasonal

work, the respondents cannot be said to have been

retrenched in view of what is stated in sub-clause

(bb) of section 2(oo) of the Act. Under these

circumstances, we are of the opinion that the view

taken by the Labour Court and the High Court is

illegal. However, the appellant is directed to maintain

a register for all workmen engaged during the seasons

enumerated herein before and when the new season

starts the appellant should make a publication in

neighbouring places in which the respondents

normally live and if they would report for duty, the

appellant would engage them in accordance with

seniority and exigency of work."

24. Above legal position was reiterated by the Apex

Court in Anil Bapurao Kanase [1997 (10) S.C.C. 599] wherein

it was noted as follows:

"3. The learned counsel for the appellant contends

that the judgment of the High Court of Bombay relied

on in the impugned order dated 28.3.1995 in Writ

Petition No.488 of 1994 is perhaps not applicable.

Since the appellant has worked for more than 180

days, he is to be treated as retrenched employee and

if the procedure contemplated under Section 25-F of

the Industrial Disputes Act, 1947 is applied, his

retrenchment is illegal. We find no force in this

contention. In Morinda Coop. Sugar Mills Ltd. v.

Ram Kishan in para 3, this Court has dealt with

engagement of the seasonal workman in sugarcane

crushing, in para 4, it is stated that it was not a case

of retrenchment of the workman, but of closure of

the factory after the crushing season was over.

Accordingly, in para 5, it was held that it is not

'retrenchment' within the meaning of Section 2(oo)

of the Act. As a consequence the appellant is not

entitled to retrenchment as per sub-clause (bb) of

Section 2(oo) of the Act. Since the present work is

[Hkkx II—[k.M 3 (ii)]

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3047

seasonal business, the principles of the Act have no

application. However, this Court has directed that

the respondent management should maintain a

starts in the succeeding years in the order of seniority.

Until all the employees whose names appear in the

list are engaged in addition to the employees who

are already working, the management should not go

in for fresh engagement of new workmen. It would

be incumbent upon the respondent management to

adopt such procedure as is enumerated above".

25. In Harmohinder Singh [2001 (5) S.C.C. 540] an

employee was appointed as a salesman by kharga canteen

on 1.6.74 and subsequently as a cashier on 9.8.75. The

letter of appointment and Standing Orders, inter alia,

provided that his service could be terminated by one

month's notice by either party. He was served with a notice

to the effect that his service would be relinquished with

effect from 30.6.1989. Relying precedent in Uptron India

Ltd. [1998 (6) S.C.C. 538] the Apex Court ruled that contract

of service for a fixed term are excluded from the ambit of

retrenchment. Decision in Balbir Singh (supra) was held to

be erroneous. It was also ruled that principles of natural

justice are not applicable where termination takes place on

expiry of contract of service.

26. In Batala Coop. Sugar Mills Ltd. [2005 (8) S.C.C. 481]

an employee was engaged on casual basis on daily wages

for specific work and for a specific period. He was engaged

on 1.4.1986 and worked upto 12.2.94. The Labour Court

concluded that termination of his services was vocative of

provisions of section 25-F of the Act, hence ordered for his

reinstatement with 50% back wages. Relying precedents in

Morinda Coop. Sugar Mills (supra) and Anil Bapura Kanase

(supra) the Apex Court ruled that since his engagement

was for a specific period and specific work, relief granted

to him by the Labour Court cannot be maintained.

27. The Apex Court dealt with such a situation again in

Darbara Singh (2006 LLR 68) wherein an employee was

appointed by the Punjab State Electricity Board as peon

on daily wage basis from 8.1.88 to 29.2.88. His services

were extend from time to time and finally dispensed with in

June 1989. The Supreme Court ruled that engagement of

Darbara Singh was for a specific period and conditional.

His termination did not amount to retrenchment. His case

was found to be covered under exception contained in

sub-clause (bb) of section 2(oo0) of the Act. In Kishore

Chand Samal (2006 LLR 65), same view was maintained by

the Apex Court. It was ruled therein that the precedent in

S.M. Nilajkar [2003 (II) LLJ 359] has no application to the

controversy since it was ruled therein that mere mention

about the engagement being temporary without indication

of any period attracts section 25 F of the Act if it is proved

that the concerned workman had worked continuously for

more than 240 days. Case of Darbara Singh and Kishan

Chand and Samal were found to be relating to fixed term of

appointment.

28. In BSES Yamuna Power Ltd. (2006 LLR 1144) Rakesh

Kumar was appointed as Copyist on 29.9.89, initially for a

period of three months as a daily wager. His term of

appointment was extended up to 20.9.90. No further

extension was given and his services were dispensed with

on 20.9.90. On consideration of facts and law, High Court

of Delhi has observed thus:

". ..In the present case, the respondent was appointed

as a copyist for totaling the accounts of ledger for

the year 1986-87 and then for 1987-88. His initial

appointment was for the period of three months. It

was extended from time to time and no extension was

given after 20th September, 1990. He was appointed

without any regular process of appointment, purely

casual and on temporary basis for specific work of

totaling of ledger. When this work was over, no

extension was given. I consider that appointment as

that of the respondent is squarely covered under

section 2(oo)(bb) of the Act. Giving of non extension

did not amount to termination of service, it was not a

case of retrenchment".

29. Precedents, handed down by Allahabad High Court

in Shailendra Nath Shukla (supra), Bombay High Court in

Dilip Hanumantrao Shirke (supra), Punjab & Haryana High

Court in Balbir Singh (supra) and Madhya Pradesh High

Court in Madhya Pradesh Bank Karamchari Sangh (supra)

castrate sub-clause (bb) of section 2(oo) of the Act. Ratio

decidendi in these precedents abrogates statutory

provisions of sub-clause (bb) of section 2 (oo) of the Act

without even discussing the legality or constitutional

validity of the clause. On the other hand the Apex Court in

C.M.Venugopal (supra), " Morinda Co-operative Sugar

Mills Ltd. (supra), Anil Bapurao Kanase (supra),

Harmohinder Singh (supra), Batala Coop. Sugar Mills Ltd.

(supra), Darbara Singh (supra) and Kishore Chand Samal

(supra) and High Court of Delhi in BSES Yamuna Power

Ltd. (supra) spoke that case of an employee, appointed for

a specific period which was extended from time to time,

would be covered by the exception contained in sub-clause

(bb) of section 2(oo) of the Act, in case his services are

dispensed with as a result of non-renewal of the contract

of employment between him and his employer, on its expiry

or termination of the contract of employment in terms of a

stipulation contained in the contract of employment in that

behalf. The law, so laid, holds the water and would be

applied to the claimant.

30. Claimant may place reliance on the precedent in

Devender Singh [2011 (6) SSC 584] in which case appellant

was engaged as clerk for a period of 6 months on contract

basis. On expiry of 6 months, his services were extended

for another term of 6 months form 01.11.1995 to 20.04.1996.

This exercise was again repeated and his term of

employment was extended for another period upto

3048

THE GAZETTE OF INDIA : JUNE 22, 2013/ASADHA 1, 1935

[PART II—SEC. 3 (ii)]

01.05.1996. However, his engagement was discontinued

with effect from 30.9.1996 without giving any notice or pay

in lieu thereof and retrenchment compensation. In the light

of the facts referred above, Apex Court ruled that plea taken

by the management that its case was covered by Section

2(oo) (bb) of the Act was squarely misconceived. It was

further emphasized that no material was produced by the

management to show that engagement of the appellant

was discontinued relying upon the terms and conditions

of his employment. Above precedent is based on distinct

and different facts. Services of the appellant in the

precedent were done away with during currency of

extension period. However, that case was beyond the ambit

of section 2(oo)(bb) of the Act. Here in the case, services

of the claimant came to an end without any extension or

granting any service to the claimant after 08.02.1996. Under

these circumstances, the said precedent cannot espouse

the cause of the claimant.

31. As detailed above, the claimant was engaged by the

Airlines on 05.08.97, for a period of 30 days against leave

vacancy. He was engaged again from time to time against

leave vacancy, as is evident out of appointment letters

Ex.WW1/2 to Ex.WW1/26. His engagement remained for

different spells, as is apparent out of the records referred

above. His appointment as an Office Assistant was

extended from to time by the Airlines against leave vacancy.

Specific period was always mentioned in his appointment

letter, for which he was engaged or his engagement was

extended. Therefore, it is evident that his case squarely fell

within the ambit of exemption available under

section (bb) (oo) of section 2 of the Act. It cannot be said

that by non renewal of his contact of employment, the I

Airlines retrenched the claimant. Thus, it is evident that

action of the Airlines i does not amount to retrenchment

and provisions of section 25F of the Act does not come

into play.

32. Claimant agitates that Ms.Jayanta Chatterjee, Shri

Sameer Khanna, Ms.Renu Panika and Ms.Asha were

appointed by the Airlines against permanent posts. He

agitates that he has been discriminated. For an answer

legal frame work is to be noted. Equality before law and

equal protection of laws are fundamental rights of every

person, ordains Article 14 of the Constitution. The guiding

principles laid in Article 14 are that persons, who are similarly

situated, shall be treated alike both in privileges conferred

and liability imposed, which means that amongst equals

the law should be equal and should be equally, administered

and that like should be treated alike. Article 16 of the

Constitution , guarantees equality of opportunities for all

citizens in matters relating to employment or appointment

to any office under the State. What is guaranteed is the

equality of opportunity. Like all other employers,

government is also entitled to pick and choose from amongst

a large number of candidates offering themselves for

employment. But the selection process must not be

arbitrary. The guarantee given by clause (a) of Article 16 of

the Constitution will cover (a) initial appointments (b)

promotions (c) termination of employment and (d) matters

relating to salary, periodical increments, leaves, gratuity,

pension, age of superannuation etc. Matters relating to

employment or appointments include all makes in relations

to employment both prior and subsequent to the

employment which are incidental to the employment and

form part of the terms and conditions of such employment.

33. Fundamental rights guaranteed by Article 14 forbids

class legislation, but does not forbid classification or

differentiation which rests upon reasonable ground of

discretion. Classification is the recognition of the relations,

and in making it the Government must be allowed a wide

latitude of discretion and judgment. In a way, the

consequences of such classification would undoubtedly

be to differentiate persons belonging to that class from

others. The classification must be founded on an intelligible

differentia which distinguishes persons or things that are

grouped together from others left out of the group and the

differentia must have a rational relation to the object sought

to be achieved. Classification may be made according to

the nature of persons, nature of business, and may be

based with reference to time.

34. Concept of equality guaranteed by Article 16 of the

Constitution is something more than formal equality and

enables the underprivileged groups to have a fair share by

having more than equal chance and enables the State to

give favoured treatment to those groups by achieving real

equality with reference to social needs. 'Protection

discrimination' enabled the State to adopt new strategy to

bring underprivileged at par with the rest of the society, by

providing all possible opportunities and incentives to them.

Therefore a class may be allowed to have preferential

treatment in the matter relating to employment or

appointment. There cannot be rule of equality between

members of separate and independent group of persons.

Persons can be classified in different groups, based on in

terms of nature of persons, nature of business and with

reference to time.

35. No evidence worth name was projected by the

claimant that Sh.Jayanta Chatterjee, Shri Sameer Khanna,

Ms.Renu Panika and Ms.Asha were engaged by the

Airlines for specific period against leave vacancies. He

simply unfolds in his affidavit that Shri Jayanta Chatterjee,

was working in Personnel Department, whose services were

regularized in 1997, Shri Sameer Khanna was working as

Bill Typist in Planning Department, whose services were

also regularized in 1997. He details that Ms. Renu Panika

was working in Public Relations Department while Ms.Asha

was working in C.R.A. Department at Safdarjung Airport.

According to the claimant, their services were regularized

[Hkkx II—[k.M 3 (ii)]

Hkkjr dk jkti= % twu 22] 2013@vk"kk<+ 1] 1935

3049

subsequently. He failed to produce any evidence to this

effect that the aforesaid four persons were also engaged

against leave vacancies. When the Airlines engages

someone against vacant post and regularizes his services,

then that person stands on a different pedestal than an

employee who is engaged against a leave vacancy.

Engagement against leave vacancy projects that no

vacancy of permanent nature exists for continuation/

regularization of services of such an employee. He is to be

relieved as and when regular incumbent joins duties.

Consequently, it is crystal clear that the case of the claimant

stands on a different pedestal. He cannot claim equality

with unequals.

36. In view of reasons detailed above, it is evident that

non-renewal of terms of contract in case of the claimant

does not amount to retrenchment of his services. Since

claimant was engaged against leave vacancy for specific

period at different intervals, it cannot be said that the

Airlines adopted unfair labour practice. Claimant could not

project a case of discrimination also. Under these

circumstances, no substance is noticed in his claim

statement. His claim statement deserves dismissal.

Accordingly, his claim statement is discarded. An award is

passed in favour of the Airlines and against the claimant. It

be sent to the appropriate Government for publication.

Dated: 30.11.2012

Dr. R. K. YADAV, Presiding Officer

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New Delhi, the 27th May, 2013

NOTIFICATION

S.O. 1167.—In pursuance of Section 17 of the Industrial

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

hereby publishes the Award (Ref. No. 40/2011) of the

Central Government Industrial Tribunal-cum-Labour Court

No. 1, New Delhi as shown in the Annexure, in the industrial

dispute between the management of M/s. Indian Airlines

Ltd. and their workmen, received by the Central Government

on 02/04/2013.

[No. L-11012/68/1998-IR (C-I)]

M. K. SINGH, Section Officer

ANNEXURE

BEFORE DR. R. K. YADAV, PRESIDING OFFICER,

CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL NO. I, KARKARDOOMA

COURTS COMPLEX, DELHI

I.D. No. 40/2011

Shri Arvind Wadhwa,

D-38, Kalkaji, Alaknanda,

New Delhi-110019.

...Workman

Versus

The General Manager (Engineering)

Indian Airlines Ltd.,

Northern Zone, IGI Airport,

New Delhi.

...Management

AWARD

A Technician working with Indian Airlines Ltd., (now

known as National Aviation Company of India Ltd.,) (in

short the Aviation Company) suffered an electric shock

while on duty. He was treated by medical staff of the

Aviation Company, the employer. The injury sustained by

him resulted in pain in his back bone. The technician

absented from his duties in order to get treatment at JPN

Hospital, New Delhi. Since no intimation was given by him

to his employer about his absence, a charge-sheet dated

19.9.1994 was sent to his residential address by registered

post. The technician opted not to send his statement of

defence to the charge-sheet, so served upon him. An

enquiry was constituted. Enquiry Officer sent notices to

him, to which notices he did not respond. Constrained by

the circumstances the Enquiry Officer proceeded ex-parte.

The Disciplinary, Authority concurred with the findings of

the Enquiry Officer. A show cause notice, proposing

punishment of dismissal from service, was sent to him by

the Disciplinary Authority. The technician sent reply to

the show cause notice, which was found not to be

satisfactory. He was dismissed from service, vide order

dated 30.1.1996 sent to him by post on 9.2.1996, An

industrial dispute was referred before the Conciliation

Officer. Since the Aviation Company contested the claim,

the conciliation proceedings ended into 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-11012/68/98-IR (C-I), New Delhi dated 17.2.1999, with

following terms:—

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THE GAZETTE OF INDIA : JUNE 22, 2013/ASADHA 1, 1935

[PART II—SEC. 3 (ii)]

2. Claim statement was filed by the technician, namely,

Shri Arvind Wadhwa pleading that he joined service on

18.3.1985. His services were confirmed on 18.9.1996. While

on duty he suffered a serious electric shock, for which he

was treated by the medical staff of the Aviation Company.

Injury sustained by him resuIted in pain in his back bone

and as such he was treated at JPN Hospital, New Delhi. He

reported for his duty on 27.9.1994. However, he was not

allowed to join his duties. He sent a letter by post on

25.11.1994. He was dismissed from service vide order dated

31.1.1996/9.2.1996 for his alleged unauthorized absence for

246-1/2 days from January, 1993 to 19.8.1994.

3. He projects that contents of the charge-sheet were

factually incorrect. In fact no charge-sheet was served upon

him. Action of the Aviation Company in issuance of

dismissal order, which was followed by an approval

application under section 33(2) of the Industrial Disputes

Act, 1947 (in short the Act) before National Industrial

Tribunal, Mumbai, was pre-meditated, illegal and malafide

exercise of power. His services were dispensed with without

any proper enquiry and justification. Though he was on

duty from 1.3.1994 to 6.3.1994 and from 1.12.1993 to

29.12.1993, yet he was shown absent in the report recorded

by the Enquiry Officer. Medical certificates from 22.4.1994

to 30.5.1994 and 14.6.1994 to 27.6.1994 project that he was

on sick leave. However, he has been shown absent for that

period in the report recorded by the Enquiry Officer. Leave

card projects that leaves were sanctioned in his favour

from 22.11.1993 to 27.11.1993 and on 16.11.1993 but for that

period too he was shown absent. Thus it is evident that

the enquiry report was factually incorrect.

4. He went on to plead that charge-sheet dated 31.8.1994/

19.9.1994, indicates that it was a revised charge-sheet.

However, it was not explained as to under what

circumstances and whose orders charge-sheet was revised.

Charge-sheet dated 27.6.1994 was never served upon him.

The Aviation Company had not indicated mode of service

of the charge-sheets nor such evidence was produced

before the Enquiry Officer. The Enquiry Officer has

completely ignored this vital aspect. All of a sudden a show-

cause notice dated 26.12.1995, proposing punishment of

dismissal from service, was sent to him. Vide his reply

dated 13.1.1996, he requested the authorities for re-

consideration of his case and to accord him a personal

hearing. No personal hearing was given to him. Order of

dismissal from service was received by him through post.

5. The claimant asserts that the copy of the enquiry

report was not served upon him. It is mandatory to serve

copy of the enquiry report. He preferred an appeal against

the dismissal order, which appeal was rejected in an arbitrary

manner, without giving an opportunity of being heard in

person. The enquiry report was violative of the principles

of natural justice. The act of Aviation Company in dismissing

him from service was illegal and invalid, since an industrial

dispute was pending before National Industrial Tribunal,

Mumbai; and provisions of section 33(2) of the Act were

violated. He claimed that an award may be passed in his

favour re-instating him in service with continuity and full

back wages.

6. Claim was demurred by the Aviation Company pleading

that the claimant was served with a charge-sheet dated

27.6.1994, which was revised on 31.8.1994/19.9.1994.

Various opportunities were given to the claimant but he

opted not to appear before the Enquiry Officer. The Enquiry

Officer was constrained to proceed with the matter ex-parte.

He conducted enquiry in accordance with the principles of

natural justice and full opportunity was given to the

claimant to present his case but in vain. Charges, served

upon the claimant, were actually correct. The Enquiry

Officer considered the documents placed on record and

recorded findings in the matter. Disciplinary Authority

concurred with the findings of the Enquiry Officer and

served show-cause notice, calling upon the claimant to

explain as to why punishment of dismissal may not be

awarded to him. Reply sent by the claimant was found not

to be satisfactory. Punishment of dismissal was awarded

to him, vide order dated 31.1.1996/9.2.1996. Approval of

dismissal order was sought from National Industrial

Tribunal, Mumbai, under the provisions of section 33(2) of

the Act. Enquiry conducted against the claimant was in

consonance with the principles of natural justice and fair

play. Appeal preferred by him was considered by the

Appellate Authority who did not find any merits in the

same. Action taken by the Aviation Company was in

accordance with law. Claim preferred is liable to be

dismissed being devoid of merits, pleads the Aviation

Company.

7. Vide order No.Z-22019/6/2007-IF(C-II), New Delhi

dated 11.02.2008, the appropriate Government transferred

the case to Central Government Industrial Tribunal No.2,

New Delhi, for adjudication.

8. Appropriate Government re-transferred the matter to

this Tribunal for adjudication vide order No.Z-22019/6/2007/

IR(C-II), New Delhi dated 30.03.2011, for adjudication.

9. One of the questions referred for adjudication is as to

whether enquiry conducted against Shri Wadhwa was legal

and justified. Therefore, parties were called upon to lead

evidence on virus of enquiry. On consideration of evidence

tendered by the claimant as well as testimony of Shri Anil

Verma, issue relating to virus of enquiry was answered in

favour of Aviation Company, vide order dated 23.8.2011.

10. Arguments on proportionality of punishment were

heard at the bar. Shri L.D. Wadhwa, father of the claimant,

advanced arguments on his behalf. Ms. Poonam Das,

authorized representative, presented facts on behalf of the

Aviation Company. Written submissions were also filed by

the parties. I have given my careful considerations to

arguments advanced at the bar and cautiously perused the

record. My findings on remaining issues involved in the

controversy are as follows.

[Hkkx II—[k.M 3 (ii)]

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3051

11. Prior to introduction of section 11A of the Act,

adjudicatory powers of the Tribunal were articulated in

Buckingham & Carnatak Company [1951 (2) LLJ 314]. Four

standards were delineated by the Labour Appellate

Tribunal in the above case to render managerial right of

taking disciplinary action vulnerable, namely, (i) where there

is a want of bonafides or (ii) when It is a case of victimization

or unfair labour practice or violation of the principles of

natural justice, or (iii) when there is basic error of facts, or

(iv) when there has been a perverse finding on the materials.

This articulation was adopted by the Apex Court with slight

modification in Indian Iron and Steel Company Limited [1958

(1) LLJ 260], without any acknowledgement to the precedent

in Buckingham & Carnatic case (supra), wherein it was

ruled that the power of the management to direct its own

internal administration and discipline was not unlimited

and liable to be interfered with by industrial adjudication

when a dispute arises to see whether termination of services

of a workman is justified and to give appropriate relief.

However, it was announced that the jurisdiction of an

Industrial Tribunal to interfere with the managerial

prerogative of taking disciplinary action is not of appellate

nature as the legislature has not chosen to confer such

jurisdiction upon it. Hence Tribunal could not substitute

its own judgement for that of the management. The Court

laid down that in the following circumstances an industrial

adjudicator can interfere with the disciplinary action taken

by the employer: (1) when there is want of good faith,

(2) when there was victimization or unfair labour practice,

(3) when the management had been guilty of a basic error

or violation of the principles of natural justice, or (4) when

on the materials, , the finding was completely baseless or

perverse.

12. Enunciation (1) and (2), referred above, are addressed

to the bona fides of the employer in initiating the action

and inflicting the punishment, while postulates (3) and (4)

are addressed to domestic enquiry. Therefore, an employer

is required to act bona-fide in initiating disciplinary action

as well as in inflicting the punishment. In initiating the

action, the alleged act of misconduct should not be a ruse

for something else, such as the trade union activities of the

workman or employers dislike of him for some personal

reasons. The action should not be motivated by

vindictiveness or ulterior purpose, so as to smack for

victimization or unfair labour practice. Likewise in the matter

of inflicting punishment, the employer should act fairly. In

case punishment awarded is so shockingly

disproportionate to the act of the misconduct, as no

reasonable man would ever impose that itself may lead to

an inference of malafides, victimization or unfair labour

practice. In holding enquiry, the Enquiry Officer must

comply with the rules of natural justice. He must not be a

biased person and give reasonable opportunity to both

sides for being heard. His findings should not be baseless

or perverse.

13. In Ramswarth Sinha (1954 L.A.C. 697) the Labour

Appellate Tribunal recognized the right of the management

to ask for permission to adduce evidence before the Tribunal

to justify its action in a "no enquiry" case. Following that

proposition the Apex Court equated the cases of "defective

enquiry" with "no enquiry" cases and ruled that in either

cases, the Tribunal have jurisdiction to go into the merits

of the case on the basis of evidence adduced before it by

the parties. Reference can be made to the precedent in

Motipur Sugar Factory Pvt. Ltd. [1965 (2) LLJ 162]where

the employer had held no enquiry at all before the dismissal

and, therefore, adduced evidence to justify its action before

the Tribunal, which decision was upheld. The Apex Court

discarded the plea on behalf of the workman that since no

enquiry at all had been held by the employer, it had no right

to adduce evidence to justify its stand before the Tribunal.

In Ritz Theatre [1962 (II) LLJ 498] it was ruled by the Supreme

Court that the Tribunal would be justified to go to the

merits of the case and decide for itself on the basis of the

evidence adduced whether the charges have indeed been

made out. It announced that it would neither be fair to the

management nor fair to the workman himself in such a case

that the Tribunal should refuse to take the evidence and

thereby drive the management to pass through the whole

process of holding the enquiry all over again. Reference

can also be made to the precedent in Bharat Sugar Mills

Ltd. [1961 (11) LLJ 644].

14. In Delhi Cloth and General Mills Company [1972 (1)

LLJ 180], Apex Court considered the catena of decisions

over the subject and laid down the following principles:

"(1) If no domestic enquiry had been held by the

management, or if the management makes it clear that it

does not rely upon any domestic enquiry that may have

been held by it, it is entitled to straightaway adduce

evidence before the Tribunal justifying its action. The

Tribunal is bound to consider that evidence so adduced

before it, on merits, and give a decision thereon. In such

a case, it is not necessary for the Tribunal to consider

the validity of the domestic enquiry as the employer

himself does not rely on it.

(2) If a domestic enquiry had been held, it is open to the

management to rely upon the domestic enquiry held by

it, in the first instance, and alternatively and without

prejudice to its plea that the enquiry is proper and

binding, simultaneously adduce additional evidence

before the Tribunal justifying its action. In such a case

no inference can be drawn, without anything more, that

the management has given up the enquiry conducted

by it.

(3) When the management relies on the enquiry

conducted by it, and also simultaneously adduces

evidence before the Tribunal, without prejudice to its

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THE GAZETTE OF INDIA : JUNE 22, 2013/ASADHA 1, 1935

[PART II—SEC. 3 (ii)]

plea that the enquiry proceedings are proper, it is the

duty of the Tribunal, in the first instance, to consider

whether the enquiry proceedings conducted by the

management, are valid and proper. If the Tribunal is

satisfied that the enquiry proceedings have been held

properly and are valid, the question of considering the

evidence adduced before it on merits, no longer

survives. It is only when the holds that the enquiry

proceedings have not been properly held, that it derives

jurisdiction to deal with the merits of the dispute and in

such a case it has to consider the evidence adduced

before it by the management and decide the matter on

the basis of such evidence.

(4) When the domestic enquiry has been held by the

management and the management relies on the same, it

is open to the latter to request the Tribunal to try the

validity of the domestic enquiry as a preliminary issue

and also ask for an opportunity to adduce evidence

before the Tribunal, if the finding on the preliminary

issue is against the management, However, elaborate

and cumbersome the procedure may be, under such

circumstances, it is open to the Tribunal to deal, in the

first instance, as a preliminary issue the validity of the

domestic enquiry, If its finding on the preliminary issue

is in favour of the management, then no additional

evidence need be cited by the management, But, if the

finding on the preliminary issue is against the

management, the Tribunal will have to give the employer

an opportunity to cite additional evidence and also give

a similar opportunity to the employee to lead evidence

contra, as the request to adduce evidence had been

made by the management to the Tribunal during the

course of the proceedings and before the trial has come

to an end. When the preliminary issue is decided against

the management and the latter leads evidence before

the Tribunal, the position, under such circumstances,

will be, that the management is deprived of the benefit

of having the finding of the domestic tribunal being

accepted as prima facie proof of the alleged misconduct.

On the other hand, the management will have to prove,

by adducing proper evidence, that the workman is guilty

of misconduct and that the action taken by it is proper.

It will not be just and fair either to the management or to

the workman that the Tribunal should refuse to take

evidence and thereby ask the management to take a

further application, after holding a proper enquiry, and

deprive the workman of the benefit of the Tribunal itself

being satisfied, on evidence adduced before it, that he

was or was not guilty of the alleged misconduct.

(5) The management has got a right to attempt to sustain

its order by adducing independent evidence before the

Tribunal. But the management should avail itself of the

said opportunity by making a suitable request to the

Tribunal before the proceedings are closed. If no such

opportunity has been available of, or asked for by the

management, before the proceedings are closed, the

employer can make no grievance that the Tribunal did

not provide such an opportunity. The Tribunal will have

before it only the enquiry proceedings and it has to

decide whether the proceedings have been held properly

and the findings recorded therein are also proper.

(6) If the employer relies only on the domestic enquiry

and dose not simultaneously lead additional evidence

or ask for an opportunity during the pendency of the

proceedings to adduce such evidence, the duty of the

Tribunal is only to consider the validity of the domestic

enquiry as well as the finding recorded therein and decide

the matter. If the Tribunal decides that the domestic

enquiry has not been held properly, it is not its function

to invite suo moto the employer to adduce evidence

before it to justify the action taken by it.

(7) The above principles apply to the proceedings before

the Tribunal, which have come before it either on a

reference under Section 10 or by way of an application

under Section 33 of the Act.

15. Keeping in view the proposition laid by the Apex

Court in Delhi Cloth and General Mills Company (supra),

the Parliament inserted section 11-A in the Act, which came

into force w.e.f. 15th of December,1971. In the statement of

objects and reasons for inserting section 11-A, it was stated:

"In Indian Iron and Steel Company Limited and Another

Vs. Their Workmen (AIR 1958 S.C. 130 at p.138), the

Supreme Court, while considering the Tribunal's power

to interfere with the management's decision to dismiss,

discharge or terminate the services of a workman, has

observed that in case of dismissal on misconduct, the

Tribunal does not act as a court of appeal and substitute

its own judgment for that of the management and that

the Tribunal will interfere only when there is want of

good faith, victimization, unfair labour practice, etc., on

the part of the management.

2. The International Labour Organisation, in its

recommendation (No.119) concerning 'Termination of

employment at the initiative of the employer' adopted in

June 1963, has recommended that a worker aggrieved

by the termination of his employment should be entitled

to appeal against the termination among others, to a

neutral body such as an arbitrator, a court, an arbitration

committee or a similar body and that the neutral body

concerned should be empowered to examine the reasons

given in the termination of employment and the other

circumstances relating to the case and to render a

decision on the justification of the termination.. The

International Labour Organisation has further

recommended that the neutral body should be

empowered (if it finds that the termination of

employment was unjustified) to order that the worker

concerned, unless reinstated with unpaid wages, should

be paid adequate compensation or afforded some other

relief.

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3. In accordance with these recommendations, it is

considered that the Tribunal's power in an adjudication

proceeding relating to discharge or dismissal of a

workman should not be limited and that the Tribunal

should have the power, in cases wherever necessary to

set aside the order of discharge or dismissal and direct

reinstatement of the workman on such terms and

conditions, if any, as it thinks fit or give such other

reliefs to the workman including the award of any lesser

punishment in lieu of discharge or dismissal as the

circumstances of the case may require. For this purpose,

a new Section 11-A is proposed to be inserted in the

Industrial Disputes Act, 1947…………. ".

16. After insertion of section 11-A, the Apex Court

summed up the law in the case of Firestone Tyre and

Rubber Company [1973 (1) LLJ 278] in the following

propositions:

"(1) The right to take disciplinary action and to decide

upon the quantum of punishment are mainly managerial

functions, but if a dispute is referred to a Tribunal, the

latter has power to see if action of the employer is

justified.

(2) Before imposing the punishment, as employer is

expected to conduct a proper enquiry in accordance

with the provisions of the Standing Orders, if applicable,

and principles of natural justice. The enquiry should

not be an empty formality.

(3) When a proper enquiry has been held by an employer,

and the finding of misconduct is a plausible conclusion

flowing from the evidence, adduced at the said enquiry,

the Tribunal has no jurisdiction to sit in judgement over

the decision of the employer as an appellate body. The

interference with the decision of the employer will be

justified only when the findings arrived at in the enquiry

are perverse or the management is guilty of victimization,

unfair labour practice or mala fide.

(4) Even if no enquiry has been held by an employer or

if the enquiry held by him is found to be defective, the

Tribunal in order to satisfy itself about the legality and

validity of the order, had to give an opportunity to the

employer and employee to adduce evidence before it. It

is open to the employer to adduce evidence for the first

time justifying his action, and it is open to the employee

to adduce evidence contra.

(5) The effect of an employer not holding an enquiry is

that the Tribunal would not have to consider only

whether there was a prima facie case. On the other hand,

the issue about the merits of the impugned order of

dismissal or discharge is at large before the Tribunal

and the latter, on the evidence adduced before it, has to

decide for itself whether the misconduct alleged is

proved. In such cases, the point about the exercise of

managerial functions does not arise at all. A case of

defective enquiry stands on the same footing as no

enquiry.

(6) The Tribunal gets jurisdiction to consider the

evidence placed before it for the first time in justification

of the action taken only, if no enquiry has been held or

after the enquiry conducted by an employer is found to

be defective.

(7) It has never been recognized that the Tribunal should

straightaway, without anything more, direct

reinstatement of a dismissed or discharged employee,

once it is found that no domestic enquiry has been held

or the said enquiry is found to be defective.

(8) An employer, who wants to avail himself of the

opportunity of adducing evidence for the first time

before the Tribunal to justify his action, should ask for

it at the appropriate stage. If such an opportunity is

asked for, the Tribunal has no power to refuse. The

giving of an opportunity to an employer to adduce

evidence for the first time before the Tribunal is in the

interest of both the management and the employee and

to enable the Tribunal itself to be satisfied about the

alleged misconduct.

(9) Once the misconduct is proved either in the enquiry

conducted by an employer or by the evidence placed

before a Tribunal for the first time, punishment imposed

cannot, be interfered with by the Tribunal except in cases

where the punishment is so harsh as to suggest

victimization.

(10) In a particular case, after setting aside the order of

dismissal, whether a workman should be reinstated or

paid compensation is, as held by this Court in The

Management of Panitole Tea Estate Vs. The workmen,

within the judicial decision of a Labour Court or

Tribunal".

17. Jurisdiction to interfere with the punishment is also

not confined to the case where punishment is shockingly

disproportionate to the act of the mis-conduct. The Tribunal

has power of substituting its own measure of punishment

in place of managerial wisdom. Change in legal position,

post introduction of section 11A of the Act, has been

effectively summarized in the case of Ambassador Sky Chef

(1996 Lab. I.C. 299) wherein High Court of Bombay observed

that the section gives specifically two fold powers to an

industrial adjudicator: firstly, it is a virtual power of appeal

against the findings of fact made by the Enquiry Officer in

his report with regard to the adequacy of the evidence and

conclusion on facts, and secondly, and far more important,

it is the power of re-appraisal of quantum of punishment.

Now no restriction lies on an industrial adjudicator to

interfere with the enquiry only on four grounds, referred

above. However, wide discretionary powers with the

adjudicator are to be exercised in judicial and judicious

manner before it interferes with the order of mis-conduct or

punishment.

18. With this prelude, now I would turn to facts of the

present controversy. As emerged out of the order dated

23.8.2011, the Tribunal had considered the factum of service

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[PART II—SEC. 3 (ii)]

of charge-sheet on the claimant, calling upon him to submit

his statement of defence. It was also taken note of that the

charge-sheet was specific and un-ambiguous, Enquiry

Officer called upon the claimant to put forth his case but in

vain. Opportunities were accorded to the claimant to defend

himself in the enquiry. Therefore, it is evident that the issues

relating to bonafides of the Aviation Company and

according opportunity of being heard were addressed to

and found against the claimant. The claimant also raised

questions relating to the competence of Engineering

Member to serve charge-sheet and award punishment to

him, which were addressed to and answered in the order,

referred above. Issue relating to perversity of report of the

Enquiry Officer was also answered against him. Thus it is

evident that all issues, except issue relating to proportionality

of punishment, were adjudicated against the claimant.

19. As record projects, charge-sheet dated 31.8.1994/

1.9.1994 was served, wherein it is detailed that the claimant

remained absent for 246½ days during the year 1993-94, as

per details mentioned herein under:—

Year

Month

Date of Absence

No. of days

1993

Jan.

9, 12, 13, 14,19, 20, 21, 22,

25, 28 to 31

Feb.

1 to 6,10, (½ day) of 11,13,

½ day of 15, 16 to 20, 26

to 28

Mar.

1 to 10, 13, 17, 18, 20 to 26,

29 to 31

Apr.

3 to 8,12 to 17, 21 to 29

May

½ day of 20 & 31

01½

Aug.

½ day of 24 & 31

01½

Sept.

20 to 25

Nov.

22 to 27

Dec.

02 to 08,10,13 to 28

Total 113 days

1994

Feb.

7 & 8

Mar.

½ day of 3, 4, 5, 15, 19,

08½

20, 21, 22 & 25

Apr.

2 to 4, 6, 8, 9, 15 to 19,

22 to 30

May

01 to 28

June

06 to 30

July

01 to 31

Aug.

01 to 19

Total 133 ½ days

20. It was alleged that his absence for the period, referred

above constitutes an act of mis-conduct as per standing

orders. Since the claimant remained absent without leave

or over-stayed sanctioned leaves, the Enquiry Officer

recorded findings against the claimant, which are detailed

as follows:—

"Enquiry Officer examined the attendance ledger of

Shri Arvind Wadhwa in the year 1993-94 and found

that the details of absence given in the attendance

ledger tallied with those given in the charge-sheet

except for the month of December, 1993. Shri Wadhwa

was on casual leave on 16.12.1993 whereas he was

shown as absent in the charge-sheet. His leave cards

covering the period 30.4.1993 to 16.12.1993 (two

cards) were also examined. His leave card for the

year 1994 was, however, not available."

"His gate attendance card for the year 1993-94 were

also examined and it was found that the days of

absence shows in the charge-sheet tallied with the

dates of absence as per the gate cards except

16.12.1993 when he was on casual leave.

"From therefore-going it is evident that Shri Wadhwa

had not applied/sanctioned leave for the period of

absence shown in the charge-sheet and this absence

tallied with his gate cards for the relevant period."

"From the fore-going it has been established that

Shri Arvind Wadhwa worker Technician, staff

No. 217506 was guilty of charges leveled against him

vide charge-sheet No.IGIA-PS-DIS-628 dated

31.8.1994/1.9.1994."

21. During the course of arguments it was highlighted

that Shri Wadhwa remained absent in unauthorized manner

for 189 days during the period from 4.4.1990 to 20.10.1990.

An enquiry was conducted and charges of remaining

absent stood proved. Punishment of reduction of basic

pay by two stages in the time scale with cumulative effect

was awarded to him, vide order dated 31.5.1991. He again

absented himself in unauthorised manner for 183 days

during the period from 30.10.1990 to 31.5.1991. Those

charges are also proved in the domestic enquiry. On his

assurance that he would improve his attendance in future

punishment of reduction of pay by three stages in the time

scale with cumulative effect was awarded to him, vide order

dated 30.11.1993.

22. Aviation Company argues that punishment of

dismissal from service was proposed on the claimant and

show-cause notice dated 23.4.1993 was given. He assured

the Competent Authority vide letter dated 23.5.1993 that in

future he would improve his attendance and conduct.

However, Shri Wadhwa had not shown any improvement

and again absented himself for which act of mis-conduct

the charge-sheet under reference was served. The Aviation

Company claims that punishment awarded to the claimant

commensurate to his mis-conduct. In his submissions the

claimant could not dispel the facts, presented on behalf of

the Aviation Company.

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3055

23. 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 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 lessor 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 lessor 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.

24. 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 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

cannot be made to the precedent in Bhagirath Mal Rainwa

[1995 (1) LLJ 960].

25. An employee is under an obligation not to absent

himself from work without good cause. Absence without

leave is misconduct in industrial employment, warranting

disciplinary punishment. Habitual absence from duty

without leave has been made a misconduct under Model

Standing Orders, framed under Industrial Employment

Standing Orders Act, 1946. Likewise, industrial employers

also include "absence from duty", without leave in the list

of misconduct in their standing orders. Sanction of leave

can be a significant defence to misconduct of absence

without leave. No employee can claim leave of absence as

a matter of right and remaining absent without leave will

constitute violation of discipline. The fact that the claimant

was continuously absent from work without leave, on

account of his detention in jail for an offence, will not give

an immunity to the claimant and the employer will be

justified in discharging him from services, announces the

Apex Court in Burn & Company, [1959 (1) LLJ 450].

26. In Indian Iron and Steel Company Ltd. [1958 (1)

LLJ260] the Apex Court was confronted with a proposition

as to whether provisions in the standing orders authorizing

the employer to terminate services of its employee on

account of absence without leave was an inflexible rule. In

that matter seven workmen were absent without leave for

14 consecutive days, as they were in police custody. During

police custody they applied for leave which were refused

by the company and services of the workmen were

terminated under relevant standing order for remaining

absent without leave. The Industrial Tribunal took a view

that the relevant standing order was not an inflexible rule

and mere application for leave was sufficient to arrest the

operation of the standing order. In appeal, though the

Labour Appellate Tribunal did not maintain the award of

the Tribunal on that count, yet it held that in view of the

circumstances that the workmen were in custody, the

company was not justified in refusing leave. When the

matter reached the Apex Court, it set aside the order of the

Labour Appellate Tribunal, relying its precedent in Burn &

Company Ltd. (supra) and ruled thus:—

"It is true that the arrested men were not in a position

to come to their work, because they had been arrested

by the police. This may be unfortunate for them, but

it would be unjust to hold that in such circumstances

the company must always give leave when an

application for leave is made. If a large number of

workmen are arrested by the authorities in charge of

law and order by raising of their questionable

activities in connection with a labour dispute (as in

this case), the work of the company will be paralysed

if the company is forced to give leave to all of them

for more or less indefinite period. Such a principle

will not be just, nor will it restore harmony between

labour and capital or ensure normal flow of

production. It is immaterial whether the charges on

which the workmen are arrested by the police are

ultimately proved or not in a court of law. The

company must carry on its work and may find it

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[PART II—SEC. 3 (ii)]

impossible to do so if a large number of workmen are

absent. Whether in such circumstances leave should

be granted or not must be left to the discretion of the

employer. It may be rightly accepted that if the

workmen are arrested at the instance of the company

for the purpose of victimization and in order to get

rid of them on the ostensible pretext of continued

absence, the position will be different. It will then be

a colorable or malafide exercise of power under the

relevant standing order, that however, is not the case

here."

27. Defence open to an employee, against charge of

absence without leave, is that the absence was on account

of circumstances beyond his control. For instance, where

absence of a workman was on account of his sudden or

serious illness or serious illness of a relation that would be

an extenuating circumstance which the employer will have

to take into consideration. However, if a workman feigns

sickness in order to avoid duty by producing a false medical

certificate, this would itself be a serious act of misconduct.

In Tata Engineering and Locomotive Company Ltd., [1990

(1) LLJ 403] the Patna High Court was addressed to a

proposition where workman absented himself without leave

or permission for a considerable period. After about 20

days of his absence, a memo and charge sheet was issued,

notifying that a domestic enquiry would be held in the

matter. The workman failed to appear in a domestic enquiry

and the Enquiry Officer conducted the proceedings exparte.

On consideration of the report of the Enquiry Officer, the

Disciplinary Authority discharged him from service. Later

on workman informed the management that he was arrested

by the police in connection with a murder case and

requested to allow him to join duty. On refusal, an industrial

dispute was raised. A High Court placed reliance on the

precedent in Indian Iron & Steel Company (supra) and

Burn & Company (supra) and ruled that the discharge of

the workman was valid and justified for continuous absence

without permission or leave.

28. Absence without leave constitutes a misconduct

justifying disciplinary action against the delinquent

workman. Punishment can only be imposed either by

complying with the procedure prescribed by the standing

orders of the establishment, if any, or the rules of natural

justice. Normally punishment should be inflicted after the

workman has been found guilty of the misconduct, after

holding a domestic enquiry. Reference can be made to

Mufatlal Narain Dass Barot [1966 (1) LLJ 437] and Kalika

Prasad Srivastava (1987 Lab.I.C. 307). Quantum of

punishment in case of misconduct for absence from duty

without leave would depend upon the facts of each case.

In order to justify the extreme penalty of discharge or

dismissal, it is to be proved that the workman remained

absent without leave for an inordinate long period. In

Bokaro Steel Plant, Steel Authority of India Ltd (2007 L.L.R.

238) removal of workman from service who remained

unauthorisedly absent for a period of three months was

held to be justified. In Sushil Kumar (2007 L.L.R. 45) it was

ruled that absence, which is continuous for a long period,

amounts to serious misconduct to justify dismissal from

service. In Borman (2003 L.L.R. 364) 62 days absence of

workman was held to be justified for his dismissal from

service.

29. Here in the case the claimant absented from his duties

for a long period, without any intimation. It was not for the

first time. In past too, he absented himself for 183 days for

which he was punished after conducting a domestic

enquiry. He again absented for a period of 183 days. The

Aviation Company conducted an enquiry. When charges

stood established, show casue notice was served calling

upon him to explain as to why he should not be dismissed

form service. On his assurances that in future he will

improve his conduct, punishment of dismissal was not

awarded to him. However he did not mend his wags. He

again absented for a period of more than 240 days, without

any intimation. Thus it is clear that he is habitual in

absenting himself from his duties for inordinate long

periods. These facts justify action of the Aviation Company

in award of punishment of dismissal to the claimant.

Therefore, one cannot attribute illegality or unjustifiability

to the action of the Aviation Company.

30. In view of the foregoing discussion it is evident that

dismissal of the claimant from services on account of his

long unauthorised absence is found to be in consonance

with law and principles of natural justice. The claimant is

not entitled to any relief. His claim statement is liable to be

discarded, being devoid of merits. Consequently his claim

statement is discarded. An award is, accordingly, passed

in favour of the Aviation Company. It be sent to the

appropriate Government for publication.

Dr. R.K. YADAV, Presiding Officer

Dated: 16.11.2012

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New Delhi, the 27th May, 2013

S.O. 1168.—In pursuance of Section 17 of the Industrial

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

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3057

hereby publishes the Award (Ref. No. 77/2011) of the

Central Government Industrial Tribunal-cum-Labour Court

No. 1, New Delhi as shown in the Annexure, in the industrial

dispute between the management of M/s. Lufthansa German

Airlines and their workmen, received by the Central

Government on 02-04-2013.

[No. L-11012/72/1999-IR(C-I)]

M. K. SINGH, Section Officer

ANNEXURE

BEFORE DR.R.K.YADAV, PRESIDING OFFICER,

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL

NO.1, KARKARDOOMA COURTS COMPLEX, DELHI

I.D.No.77/2011

The President,

Lufthansa German Airlines

Employees Union (Regd.),

11/48, 1st Floor, Malcha Marg,

Chankaya Puri, New Delhi.

...Workmarn

Versus

The General Manager

(Finance & Personal),

South Asia, Lufthansa German Airlines,

56, Janpath, New Delhi-110001.

The Station Manager,

I.G.I. Airport,

Lufthansa German Airlines,

Terminal-II, International Airport,

New Delhi.

...Management

AWARD

Services of two employees, working as supervisors, with

Lufthansa German Airlines (in short the Airlines), were

dispensed with by the Airlines under Clause 8.2.4 of the

Rules of Employment (in short the Service Rules) on

17.05.1999. While dispensing with their services, the

Airlines had paid them one month's salary, in lieu of notice.

They questioned the very right of the Airlines to terminate

their services under clause 8.2.4 of the Service Rules,

claiming that being permanent employees their services

cannot be done away in an unceremonial way. They

demanded reinstatement in service also, which demand

was not conceded to by the Airlines. Feeling aggrieved by

that act of the Airlines, they raised an industrial dispute

before the Conciliation Officer. Since the Airlines contested

their claim, 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-11012/72/99-1R(C-I), New Delhi dated 24-11-1999 with

following terms :

“Whether termination of services of S/Shri Sudhin

Sarkar and Shri A.B. Baretto, supervisors, by

Lufthansa German Airlines under clause 8.2.4 of Rules

of Employment of the company without domestic

enquiry is legal and justified? If not, to what relief

the workmen are entitled to?”

2. Claim statement was filed by and on behalf of the

supervisors, namely, Shri Sudhin Sarkar and

Shri A.B. Baretto pleading therein that Shri Sudhin Sarkar

joined services of the Airlines as Passenger/Operations

(Airport) agent on 01.11.1988. He was confirmed in service

with effect from 01.05.1989. He was upgraded to the scale

of E1 Grade with effect from 01.01.1991. He was given title

of supervisor with effect from 01.01.1993. His basic salary

was also increased from scale E 1/4 Grade to the scale of E

2/3 Grade. His salary was again increased vide letter dated

17.11.1993 from scale E 2/3 Grade to Scale F2 Grade with

effect from 01.11.1993. It has been pleaded that Shri A.B.

Baretto joined the Airlines on 01.01.1979 as passenger

handling agent. His services were confirmed with effect

from 05.06.1979. He was upgraded to the scale of E 1/4

Grade with effect from 01.01.1981. He was again upgraded

to the scale of E 2/7 Grade with effect from 01.05.1985. He

was given a title of supervisor with effect from 01.11.1991.

Subsequently, his salary was increased to F9 Grade from E

2/12 Grade.

3. The claimants plead that they are governed by service

rules, wherein various conditions such as working time,

holidays, overtime payments, remuneration, compensation

for overtime/night work, leave, provident fund, gratuity

etc. are laid down. In respect of terms of employment, which

are not provided in service rules, they are governed by

customs and practice generally followed in the trade,

industrial laws, rules and regulations applicable to workmen

in the country. Any rule, in the service rules, if it is contrary

to statutory law applicable to workmen in the country would

give way to the statutory rule. They claim that they were

given title of supervisor, while they did not have any power

or authority to sanction leave to any employee, sign duty

roster for the employees, issue show cause notice or charge

sheet to any employee, call for any explanation, order

suspension, issue warning letters or order of termination

to any employee. They did not have any authority to

exercise powers as supervisors. They were workmen and

had no authority over any of the workmen or on their

functions.

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[PART II—SEC. 3 (ii)]

4. They plead that suddenly the Airlines issued letter

dated 17.05.1999 to them terminating their services in terms

of clause 8.2.4 of the service rules and section 30 of the

Delhi Shops and Establishment Act, by paying them one

month's salary in lieu of notice. No reason for termination

of their services was detailed therein. No explanation was

called nor any enquiry was held against them. They were

permanent employees and their services could not be

terminated simpliciter in the manner in which it was done

by the Airlines. Vide letter dated 21.05.1999, they questioned

that act and demanded reinstatement in service. They claim

that clause 8.2.4. of the service rules is opposed to public

policy and section 21 of the Contract Act, hence it is null

and void. It was so done by the Airlines since it wanted to

break the union or weaken it. The Airlines intended to

transfer or contract out whole or part of its business. The

claimants plead that the Airlines had tried to victimise them

since they were defending Shri P. V. Chandrashekhar, the

President of Lufthansa German Airlines Employees Union

against whom a domestic enquiry was constituted. A claim

has been made that the Airlines be directed to withdraw

letter of termination dated 17.07.1999 and reinstate them in

service with continuity and full back wages.

5. Claim was demurred by the Airlines pleading that the

claimants were employed as supervisors at the time of

termination of their services. Shri Sudhin Sarkar was

drawing emoluments of Rs. 25,301.00 per month, while

Shri A.B. Baretto was drawing a total sum of Rs. 28,123.00

per month, inclusive of fixed allowances. In their capacities

as supervisors, they have been supervising the flights,

updating duty roster, allocating duties to the staff at the

Airport for discharge of various operational functions and

supervising incoming and outgoing flights. They had to

ensure that check in, departure, arrival, ramp, load sheet,

catering etc. go as per schedule. They were also required

to ensure cleanliness of the aircraft and to supervise the

same. All employees, engaged in aforesaid operations, were

working directly under their supervision, direction and

control. By virtue of their job responsibilities, they were

resolving complaints of the passengers, taking decisions

with regard to waiver of excess baggage and upgrade tickets

from economy to business class. They were also

empowered and authorized to sanction overtime to the staff

working under them. There were about 13 employees

working directly under their supervision and control. As

such, the claimants were performing exclusively

supervisory duties.

6. The Airlines pleads that in absence of Deputy Station

Manager, the claimants have been acting and working as

Duty Manager with all requisite powers of the Manager.

They were imparted various training programmes meant

only for supervisors and above. Telephone facility was

provided at their residence which is available only in case

of supervisors and above categories of officers. Shri Sudhin

Sarkar was also responsible for station operation control

by conducting random checks of handling of flights. As

such, he was required to go to the aircraft and check all

sensitive operation areas and ensure that pallets and

containers were properly latched.

7. The Airlines further pleads that the claimants were

governed by the service rules wherein classification of

employees in various groups have been divided in Group

A to Group G. The claimants were in Group F and their job

description have been detailed in service rules as

follows:

"Group F Employees who as a result of their thorough

specialized knowledge in a wide filed of working:

and their special ability are entrusted with the

supervisory duties(functional responsibility and

disciplinary authority) towards employees upto

Group E 2 or

are entrusted with more difficult and complex task

from within the scope of work of employees of

Group E 2 combined with the functional

responsibility and/or functional authority towards

employees upto Group E 1, e.g. supervisory,

passenger/cargo sales, passenger/cargo service,

station operations with completed supervisory

course..."

8. There were a number of employees working under

them and their authority. They were the disciplinary

authority of the employees upto Group E 2 and as such

were not the workmen within the meaning of section 2(s) of

the Industrial Disputes Act, 1947 (in short the Act). The

Airlines urges that the dispute referred is incompetent and

this Tribunal has no jurisdiction to adjudicate the dispute.

The claimants were promoted as supervisors and on their

promotion they were placed in supervisory grade of pay.

The service rules are not contrary to any statutory law.

Services of the claimant were terminated in accordance

with clause 8.2.4 of the service rules read with section 30 of

the Delhi Shops and Establishment Act. The reasons, which

formed motive of termination of their service, were also

communicated to them. The Airlines that it rightly came to

a conclusion that confidence cannot longer be reposed in

the claimants. Even though they could have been dismissed

from service, but taking a lenient view, their services were

terminated in accordance with service rules. Clause 8.2.4 of

the service rules empowered the Airlines to terminate their

services. It is disputed that the claimants were victimised

since they were defending Shri P.V. Chandrashekhar in the

domestic enquiry. It has been denied that the Airlines

intended to transfer or contact out the whole or part of its

business to some other private company. The Airlines

pleads that the claim put forward is unfounded, hence it

may be dismissed.

9. In rejoinder, the claimants reiterate facts pleaded in

the claim statement.

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10. On pleadings of the parties, followings issues were

settled by my learned predecessor:

(i)

Whether the claimants are not workmen within

the meaning of section 2(s) of the Industrial

Disputes Act, 1947? If yes, its effects.

(ii)

As per terms of reference.

11. Vide order No. Z-22019/6/2007-IR (C-II), New Delhi

dated 11.02.2008, the case was transferred by the

appropriate Government to the Central Government

Industrial Tribunal No.II, New Delhi for adjudication. It

was retransferred to this Tribunal

for adjudication, vide

order No. Z-22019/6/2007-IR (C-II), New Delhi dated

30.03.2011, by the appropriate Government.

12. Claimants, namely, Shri B.B. Baretto and Shri Sudhin

Sarkar entered the witness box to testify facts to

substantiate their claim. Shri Parvez Khan and Shri G. Raj

Kumar were examined by the Airlines to project its defence.

No other witness was examined by either of the parties.

13. Arguments were heard at the bar. Shri Harish Sharma,

authorized representative, advanced arguments on behalf

of the claimants. Shri S.K. Bhasin, authorised representative,

raised submissions on behalf of the Airlines. Written

submissions were also filed by the parties. I have given my

careful considerations to the arguments advanced at the

bar and cautiously perused the records. My findings on

issues involved in the controversy are as follows:

Issue No. 1.

14. At the outset, Shri Bhasin urged that the claimants

were working as supervisors and drawing wages exceeding

Rs.1600.00 per mensum. He presents that since they were

employed in supervisory capacity and drawing wages

above the ceiling provided by the Act, they fall within the

exception enacted in third limb of section 2(s) of the Act.

According to Shri Bhasin, the claimants were not workmen

and the appropriate Government was incompetent to refer

the dispute to this Tribunal for adjudication. He argued

that this Tribunal lacks jurisdiction to adjudicate the dispute.

Contra to it, Shri Sharma presents that nomenclature of

supervisor was decorative and in fact the claimants were

exercising manual duties. He presents that a decorative

title would not rob the claimants of their status of workmen.

According to him, the reference was within the competence

of the appropriate Government and this Tribunal is

competent to adjudicate it.

15. The Tribunal is the creature of the Act, hence its

jurisdiction is circumscribed by the Act. Its adjudication

must, therefore be confined to the perimeter of the

provisions of the Act. As per the scheme of the Act, the

Tribunal has to determine the dispute referred to it. Section

10(4) of the Act permits the Tribunal to decide only disputes

or points referred to it and matters incidental thereto. Thus,

the Tribunal cannot go beyond the terms of reference. For

articulation of an industrial dispute, its adjudication is to

be confined only to :

(a)

the points specified in the reference, and

(b)

the matters incidental thereto.

16.

The words 'incidental thereto' occurring in section

10(4) of the Act do not have the same meaning as the

words "appearing to be connected with or relevant to"

used by the legislature in clauses (b), (c) and (d) of Section

10(1) of the Act. The matters covered by the latter expression

must be specifically referred for adjudication while the

matter covered by former expression need not be specifically

referred or they can be adjudicated upon as a part of the

main dispute. For instance, on an industrial dispute being

referred to it, the Tribunal has jurisdiction to determine

whether on the facts placed before it, an 'industrial dispute'

within the meaning of section 2(k) has really arisen, or the

concerned persons are 'workmen' as defined in section 2(s)

or a particular undertaking is an 'industry' within the meaning

of section 2(j) of the Act or such industry is a live industry

or a closed industry. Such questions can be validly

examined and adjudicated upon by the Tribunal as matters

incidental to the points of dispute, specified in the order of

reference. Therefore, the question raised by the Airlines is

an incidental question and can be adjudicated by the

Tribunal, while articulating the dispute.

17. In order to determine whether an employee comes

within the definition of a workman, it would be expedient to

construe the definition of the term. The term "workman"

has been defined by section 2(s) of the Act, which definition

is reproduced thus:

"(s) Workman means any person (including an

apprentice) employed in any industry to do any manual,

unskilled, skilled, technical, operational, clerical or

supervisory work for hire or reward, whether the terms of

employment be express or implied, and for the purposes

of any proceeding under this Act in relation to an industrial

dispute, includes any such person who has been

dismissed, discharged or retrenched in connection with,

or as a consequence of that dispute, or whose dismissal,

discharge or retrenchment has led to that dispute, but

does not include any such person —

(i)

who is subject to the Air Force Act, 1950 (45 of

1950), or the Army Act, 1950(46 of 1950) or the

Navy Act, 1957 (62 of 1957), or

(ii)

who is employed in the police service or as an

officer or other employee of a prison, or

(iii)

who is, employed mainly in a managerial or

administrative capacity, or

(iv)

who, being employed in a supervisory capacity,

draws wages exceeding one thousand six hundred

rupees per mensem or exercises, either by the

nature of the duties attached to the office or by

reason of the powers vested in him, functions

mainly of a managerial nature;

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[PART II—SEC. 3 (ii)]

18. The first part of the definition gives the statutory

meaning of the term workman. This part of the definition

determines a workman by reference to a person (including

an apprentice) employed in an "industry" to do any manual,

unskilled, skilled, technical, operational, clerical or

supervisory work for hire or reward. This part determines

what a "workman" means. The second part is designed to

include something more in what the term primarily denotes.

By this part of the definition, person (i) who have been

dismissed, discharged or retrenched in connection with an

industrial dispute, or. (ii) whose dismissal, discharge or

retrenchment has lead to an industrial dispute, for the

purposes of any proceedings under the Act in relation to

such industrial dispute, have been included in the definition

of "workman". This part gives extended connotation to

the expression "workman". The third part specifically

excludes the categories of persons specified in clauses (i)

to (iv) of this sub-section. The third part connotes that

even if a person satisfies the requirements of any of the

first two parts but if he falls in any of the four categories in

the third part, he shall be excluded from the definition of

'workman'. Not only the persons who are actually employed

in an industry but also those who have been discharged,

dismissed or retrenched in connection with or as a

consequence of an industrial dispute, and whose dismissal,

discharge or retrenchment has lead to that dispute, would

fall within the ambit of the definition. In other words, the

second category of persons included in the definition would

fall in the ambit of the definition, only for the purpose of

any proceedings under the Act in relation to an industrial

dispute and for no other purposes. Therefore, date of

reference is relevant and in case a person falls within the

definition of workman on that day, the Tribunal would be

vested with jurisdiction to entertain it and the jurisdiction

would not cease merely because subsequently the

workman ceases to be workman.

19. Merely performing some supervisory duties will not

take out an employee out of the ambit of definition of

workman. The word 'supervision' means to oversee or to

look after. Supervision which is relevant in this connection

is the supervision done by an employee in a higher position

over the employees in the lower position. Supervision may

be in relation to the work or in relation to the person. The

word 'supervisory' as used in section 2(s) of the Act does

not relate to supervision of an automatic plant. Many

machines run automatically on power. They do not have to

be run by human energy. Their running and functioning

has to be watched and repaired if anything goes wrong. A

person who attends to such machines may either do

technical or manual work within the meaning of section

2(s) of the Act. But he does not do supervisory work merely

because he looks after the machine. The essence of

supervisory nature of work under section 2(s) of the Act is

the supervision by one person over the work of another.

See Blue Star Ltd. [1975 (31) FLR 102].

20. A person can be said to be a supervisor if there are

persons working under him, over whose work he has to

keep a watch. In other words, he is that person who

examines and keeps a watch over the work of his

subordinates and if they err in any way, corrects them. It is

his duty to see that the work in any industrial unit is done

in accordance with the manual, if there is one, or in

accordance with the usual procedure. It is not his function

to bring about any innovation. It is not his function to take

any managerial decision but it is his duty to see that the

persons over whom he is supposed to supervise the work

assigned to them, they work according to rules and

regulations. The central concept of supervision is the fact

that there are certain persons working under him. The

essence of supervisory work is the supervision by one

person over the work of others. For exercising supervisory

powers, it may often be necessary that the supervisor

himself must have technical expertise, otherwise he may

not be in a position to exercise proper supervision of the

workmen handling sophisticated plants and machines. A

supervisor need not be a manager or an administrator. He

can be a workman so long as he does not exceed the wage

limit of Rs.1600.00 per month and irrespective of his salary,

is not a workman who is to discharge functions mainly of

managerial nature by reason of the duties attached to his

office or powers vested in him.

21. A person cannot be said to be working in a

supervisory capacity merely because he used to supervise

a person who helps him in doing the work, which he himself

is to perform. For instance, a clerk who has been given the

assistance of the peon cannot be said to be working in a

supervisory capacity. When one talks of a person working

as supervisor, one understands it to mean a person who is

watching the work being done by others to see that it is

being done properly. See Mathur Aviation [1977(II) LLJ

225]. Thus in determining the status of an employee, his

designation is not decisive. What determines the status is

the consideration of the nature of his duties and functions

assigned to him. A supervisor should occupy a position of

command or decision and should be authorised to act in

certain matters within the limits of his authority without

the sanction of the Manager or other supervisors. In the

absence of precise and positive evidence to prove the exact

nature of work which the employee was performing, it

cannot be held that he was doing administrative or

supervisory work.

22. In affidavit Ex. WW1/A, tendered as evidence,

Shri A.B. Baretto unfolds that service rules proved as Ex.

WW1/4 lay down various conditions such as working time

of employees, holidays, overtime payment, remuneration,

compensation for overtime/night work, leaves, gratuity etc.

These service rules govern all employees in the category

of workmen upto Grade G but do not govern officers cadre.

Though he was given title of supervisor, but without any

power or authority of supervisor. On the same lines

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Shri Sudhin Sarkar details facts in his affidavit Ex. WW2/

A, which was tendered by him as evidence. However, during

the course of their cross examination, they conced that

they used to supervise flights as supervisors. According

to them, it was part of their job to supervise flights. They

used to assign duties to subordinate employees to carry

out different operations in flight handling. Both of them

admit that they used to brief employees before arrival of

flight. According to them, they used to ensure that all

operation of flight handling should be completed within

scheduled time so that flight may take off in time. It has

been admitted by them that they used to exercise powers

to waive excess baggage and upgrade ticket from economic

class to business class. They used to write details of

overtime work performed by the employees on their

attendance sheet. They had verified overtime work

performed by the employees on Sheet Ex. WW1/M1 to Ex.

WW1/M2, Ex. WW2/M6, Ex. WW2/M7 respectively.

According to them they were competent to recommend

leaves for their employees. They used to conduct surprise

checks of flight handling operations. Shri Baretto admits

that letter Ex, WW1/7 was signed by him for the Station

Manager. He had signed Ex. WW1/M8 to Ex. WW1/M$ for

the Airlines. Both of them candidly admit that telephone

facilities were provided by the Airlines at their residence.

23. Shri Parvez Khan unfolds in his affidavit Ex. MW/A,

tendered as evidence, that Shri Sudhin Sarkar and

Shri A.B. Baretto were supervising flights as part of their

duties. They were exclusively discharging duties of

supervisory and administrative in nature. They were

required to supervise incoming and outgoing flights and

to ensure its arrival, check in, departure, arrival, ramp load

sheet and catering etc. so that it may go according to the

schedule. It was also part of their duties to ensure

cleanliness of the aircraft and to supervise the same. They

were authorised and empowered to take decision with regard

to waiving of excess baggage, upgrade tickets from

economy to business class, recommend leaves to the staff

working under them and sanction overtime payment for

them. There were 13 employees, who were directly working

under supervision and control of the claimants. During

course of cross examination, he concedes that in service

rules, classification of employees have been made from

Group A to Group G. Airlines used to settle service

conditions of employees from Group A to Group G through

settlement with the union. Settlement Ex. WW1/8 to Ex.

WW1/10 were entered into by the Airlines with the union.

24. In affidavit, Ex. MW2/A, tendered as evidence,

Shri G. Rajkumar details those very facts as unfolded by

Shri Khan. According to him claimants were supervisors

under whom 13 employees were working. However, during

course of his cross examination, he also concedes that

service conditions of the claimants were settled by the

Airlines through settlement entered into with the union.

Service conditions of the workmen are recorded in

Ex. WW2/4. He hastens to add that service conditions of

employees superior to the category of workmen were also

recorded in Ex. WW2/4.

25. When facts unfolded by the claimants, Shri Parvez

Khan and Shri G. Rajkumar are closely appreciated, it came

to light that the claimants were entrusted with supervisory

duties (functional responsibility and the disciplinary

authority) on employees upto Group E-2 and entrusted

with more complex task within the scope of work of

employees of Group E-2 combined with functional

responsibilities and /or functional authority for employees

upto Group E-2, besides supervisory duties towards

passenger/cargo sales, passenger/cargo service and station

operations. To perform these duties, claimants were

allocating duties to 13 employees working under them. They

used to supervise work of those employees. Claimants

supervise flights in their capacity of supervisors. They

used to assign duties in respect of flight handling operations

to the employees working under them. They used to brief

employees and ensure that flight handling operating were

carried out within the scheduled time. Besides these

supervisory duties, they used to recommend overtime to

their subordinates on their attendance sheets and

recommend leaves for them. Claimants were competent to

exercise authority to waive excess baggage, upgrade tickets

from economy to business class and settle complaints of

customers. Therefore, it becomes crystal clear from duties

performed by the claimants that they used to supervise

work of 13 employees who were working under them. They

used to keep watch on the work performed by their

subordinates, besides making them to work in scheduled

time. Surprise checks of flight operations were made by

them with a view to correct mistakes of their subordinates.

Thus, it is emerging over the record that duties performed

by the claimants were of supervisory in nature.

26. As pointed out above, mere performance of

supervisory duties would not take out an employee from

the definition of workmen. To push him within the

exceptions contained in third limb of section 2(s) of the

Act, it is to be established that such employee draws more

than Rs. 1600.00 per mensum as his wages. Here in the

case, Shri Sudhin Sarkar was drawing emolument of

Rs. 25,301.00 per mensum, while Shri A.B. Baretto, was

drawing total emoluments of Rs. 28,123.00 per mensum

inclusive of fixed allowances. Thus it is apparent that the

Airlines could bring it over the record that duties performed

by the claimants were of supervisory in nature and they

were drawing more than Rs.1600.00 per month as their

wages. Consequently, the Airlines had been able to project

that the claimants were supervisors.

27. There is other facet of the coin. The Airlines

represented to the claimants that their status was of

workman. As proved settlements Ex. WW1/8A, Ex. WW1/

9 and Ex. WW2/10 were entered into between the Airlines

and the union, on the strength of which increase in basic

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[PART II—SEC. 3 (ii)]

salary of the employees of category A to G were made from

time to time. It is also not disputed on behalf of the Airlines

that the union used to enter into settlement in respect of

wages and service conditions for the employees of

workmen category only. Job clarification detailed in

Appendix 1B, annexed with service rules Ex. WW1/4, makes

it apparent that this classification was for clerical staff.

When gloss is made on this classification, all employees

from Group A to Group G have been dealt with and duties

performed by them has been detailed therein. In appendix

1C, job classification for auxiliary staff has been provided.

These propositions make it apparent that service rules

specifically mention that rights such as overtime,

conveyance, medical and other conditions of service are

only available for workmen. Clause 8.3.3 of services rules

Ex. WW1/4 stipulates that Airlines may observe respective

regulations of the Industrial Employment (Standing Orders)

Act, 1946 concerning cases of misconduct. Therefore, it is

crystal clear that the Airlines represented to the claimants

that they were treated as workmen within the meaning of

section 2(s) of the Act. When this representation was made

to the claimant, by the Airlines in service rules proved as

Ex. WW1/4 and by their act and conduct of entering into

settlement relating to their wages with the union, now the

Airlines cannot be allowed to approbate and reprobate

facts. It is apparent that the Airlines never intended to treat

the claimants as supervisors with a view to exclude them

from the ambit of the definition of workman, as enacted in

section 2(s) of the Act. Consequently, the fact that the

claimants performed supervisory functions would not oust

them out of the arena of industrial laws. By its own

representation, the Airlines made them well, aware that they

are treated as workman. Status of workman, clothed on

them by the Airlines, cannot be taken away at this juncture

when they seek redressal of their grievances from this

Tribunal. In view of these complex proposition of facts, it

is announced that the claimants do fall within the ambit of

workman as enacted by section 2(s) of the Act. Objection

raised by the Airlines is brushed aside. Issue is, therefore,

answered in favour of the claimants.

Issue No.2

28. Ex. WW1/4 enlists conditions of service applicable

to the workmen of the category claimants, when they were

in the service of the Airlines. When Ex. WW1/8A, Ex. WW1/

9 and Ex. WW2/10 were signed by the unions and the

Airlines, it was agreed upon that remaining clauses and

contents of the service rules, other than those narrated in

above documents, shall remain unchanged. Thus, it is

crystal clear that Ex. WW1/4 governs service conditions

of the claimants. Clause 8 of Ex. WW1/4 deals with

termination of employment. It speaks of retirement age,

ordinary termination, and extraordinary dismissal from

service. For sake of convenience, circumstances under

which ordinary termination of an employee can take place

are extracted thus:

"8.TERMINATION OF EMPLOYMENT

8.1Retirement Age

8.1.1. The employment shall terminate, without the

necessity of any prior notice in respect thereof, at

the end of the month in which the employee

completes his/her 60th year of age.

8.1.2

Extension of employment shall only be

possible if agreed in writing between the Company

and the employee.

8.2

Ordinary Termination.

8.2.1 During the probationary period, the Contract of

Employment may be terminated by either party with

prior notice of seven calendar days, and during the

first month with prior notice of one day, without

assigning any reason for such termination.

8.2.2. During the probationary period, the salary will

be deemed to accrue from day to day and in the

event of a discharge within any particular month of

the probationary period, the employee will only be

entitled to the salary for the number of days actually

worked.

8.2.3

In all other cases, either party shall give the

other party prior notice, in writing, by giving reasons,

terminating the employment at the end of the

following month.

8.2.4 Without prejudice to the provisions mentioned

above, the Company may terminate the contract by

paying salary in lieu of notice and conversely it may

accept resignation of the employee by deducting

salary in lieu of notice from any dues payable to the

employee.

8.2.5 Notice of termination of employment shall be

given in writing. It shall become effective from the

date of delivery to the other party by registered post

or upon personal receipt. The period of notice will

commence on the working day following the date of

receipt of the notice."

29. Ex. WW1/4 are rules governing service conditions

of the claimants. Admittedly services of the claimants were

dispensed with by the Airlines vide letter dated 17.05.1999

on payment of one months' salary in lieu of notice. Question

would emerge as to whether termination of services of the

claimants amount to retrenchment. For an answer to this

proposition, definition of the term retrenchment, enacted

under section 2(oo) of the Act, is extracted thus:

"(oo) "retrenchment" means the termination by the

employer of the services of a workman for any reason

whatsoever, otherwise than as a punishment inflicted

by way of disciplinary action, but does not include—

(a)

voluntary retirement of the workman; or

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(b)

retirement of the workman on reaching the age of

superannuation if the contract of employment

between the employer and the workman

concerned contains a stipulation in that behalf;

(bb) termination of the services of the workman as a

result of the non-renewal of the contract of

employment between the employer and the

workman concerned on its expiry or of such

contract being terminated under a stipulation in

that behalf contained therein; or

(c)

termination of the services of a workman on the

ground of continued ill-health".

30. Definition of retrenchment is very wide and in two

parts. The first part is exhaustive, which lays down that

retrenchment means the termination of the service of a

workman by the employer "for any reason whatsoever"

otherwise then as a punishment inflicted by way of

disciplinary action. Thus main part of the definition itself

excludes the termination of service, as a measure of

punishment inflicted by way of disciplinary action from

the ambit of retrenchment. The second part further excludes

(i) voluntary retirement of the workman, or (ii) retirement of

workman on reaching the age of superannuation, or (iii)

termination of the service of a workman as a result of non-

renewal of contract of employment, or (iv) termination of

contract of employment in terms of a stipulation contained

in the contract of employment in that behalf, or (v)

termination of service on the ground of continued ill-health

of the workman. Reference can be made to the precedents

in Avon Services (Production Agencies) (Pvt.) Ltd. (1979

(I) LLJ 1) and Mahabir (1979 (II) LLJ 363).

31. Sub-Clause (bb) purports to exclude from the ambit

of the definition of retrenchment (i) termination of the

service of a workman as a result of non- renewal of the

contract of employment between the employer and the

workman concerned, on its expiry, or (ii) termination of the

contract of employment in terms of a stipulation contained

in the contract of employment in that behalf. The first part

relates to termination of service of a workman as a result of

non-renewal of the contract of employment between the

employer and the workman concerned on its expiry. Thus

"non-renewal of contract of employment" pre-supposes

an existing contract of employment, which is not renewed.

When services of an employee is terminated on account of

non- renewal of contract of employment, between the

employer and the workman, it does not amount to

retrenchment. The second part refers to "such contract"

being terminated under a stipulation in that behalf contained

therein. The cases contemplated, under this part too, would

not amount to retrenchment. However this sub-clause,

being in the nature of an exception to clause (oo) of section

2 of the Act, is ruled to be construed strictly when

contractual agreement is used as modus operandi to

frustrate claim of the employee to become regular or

permanent against a job. The adjudicator has to address

himself to the question whether the period of employment

was stipulated in the contract of employment as a device

to escape the applicability of the definition of retrenchment.

See Shailendra Nath Shukla (1987 Lab. I.C. 1607), Dilip

Hanumantrao Shrike (1990 Lab. I.C. 100) and Balbir Singh

(1990 (1) LLJ. 443). On review of law laid by the Apex Court

and various High Courts, a single Judge of the Madhya

Pradesh High Court, in Madhya Pradesh Bank Karamchari

Sangh (1996 Lab. I.C. 1161) has laid following principles of

interpretation and application of sub-clause (bb) of clause

(oo) of section 2 of the Act:

"(i)

that the provisions of section 2(oo)(bb) are to be

construed benevolently in favour of the workman,

(ii)

that if the workman is allowed to continue in

service by making periodic appointments from time

to time, then it can be said that the case would not

fall under section 2(oo)(bb),

(iii)

that the provisions of section 2 (oo)(bb) are not

to be interpreted in the manner which may stifle

the main provision,

(iv)

that if the workman continues in service, the non-

renewal of the contract can be deemed as

mala fide and it may amount to be a fraud on

statute;

(v)

that there would be wrong presumption of non-

applicability of section 2(oo)(bb) where the work

is of continuous nature and there is nothing on

record that the work for which a workman has

been appointed had come to an end".

32. Whether provisions of retrenchment, enacted in the

Act, provide for any security of tenure? Answer lies in

negative. Provisions of retrenchment provide for certain

benefits to a workman in case of termination of his service,

falling within the ambit of definition of retrenchment. On

compliance of the requirements of section 25F or 25N and

25G of the Act, it is open to the employer to retrench a

workman.

33. Termination of service of an employee during the

period of probation was held to be covered by the exception

contained in sub-clause (bb) of section 2(oo) of the Act, in

C.M.Venugopal (1994 (1) LLJ 597). As per facts of the case,

Regulation 14 of the Life Insurance Corporation of India

(Staff) Regulation 1962 empowered the Corporation to

terminate the service of an employee within the period of

probation. The employee was put on probation for a period

of one year, which was extended by another year. Since he

could not achieve the target to earn confirmation, his service

was terminated in terms of Regulation 14 as well as order of

appointment. The Apex Court ruled that the case was

covered by the exception contained in sub-clause (bb),

hence it was not retrenchment.

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34. In Morinda Co-operative Sugar Mills Ltd. (1996 Lab.

I.C. 221) a sugar factory used to employ certain number of

workmen during crushing season and at the end to the

crushing season their employment used to cease. The

Supreme Court held that despite the fact that the workmen

worked for more than 240 days in a year, cessation of their

employment at the end of crushing season would not amount

to retrenchment in view of the provisions of sub-clause

(bb) of section 2(oo) of the Act. It was observed as follows:

"4. It would thus be clear that the respondents were

not working throughout the season. They worked

during crushing seasons only. The respondents were

taken into work for the season and consequent to

closure of the season, they ceased to work.

5. The question is whether such a cessation would

amount to retrenchment. Since it is only a seasonal

work, the respondents cannot be said to have been

retrenched in view of what is stated in sub-clause

(bb) of section 2(oo) of the Act. Under these

circumstances, we are of the opinion that the view

taken by the Labour Court and the High Court is

illegal. However, the appellant is directed to maintain

a register for all workmen engaged during the seasons

enumerated herein before and when the new season

starts the appellant should make a publication in

neighbouring places in which the respondents

normally live and if they would report for duty, the

appellant would engage them in accordance with

seniority and exigency of work.

35. Above legal position was reiterated by the Apex

Court in Anil Bapurao Kanase (1997 (10) S.C.C. 599) wherein

it was noted as follows:

"3. The learned counsel for the appellant contends

that the judgment of the High Court of Bombay relied

on in the impugned order dated 28.3.1995 in Writ

Petition No.488 of 1994 is perhaps not applicable.

Since the appellant has worked for more than 180

days, he is to be treated as retrenched employee and

if the procedure contemplated under Section 25-F of

the Industrial Disputes Act, 1947 is applied, his

retrenchment is illegal. We find no force in this

contention. In Morinda Coop. Sugar Mills Ltd. V.

Ram Kishan in para 3, this Court has dealt with

engagement of the seasonal workman in sugarcane

crushing, in para 4, it is stated that it was not a case

of retrenchment of the workman, but of closure of

the factory after the crushing season was over.

Accordingly, in para 5, it was held that it is not

'retrenchment' within the meaning of Section 2(oo)

of the Act. As a consequence the appellant is not

entitled to retrenchment as per sub-clause (bb) of

Section 2(oo) of the Act. Since the present work is

seasonal business, the principles of the Act have no

application. However, this Court has directed that

the respondent management should maintain a

starts in the succeeding years in the order of seniority.

Until all the employees whose names appear in the

list are engaged in addition to the employees who

are already working, the management should not go

in for fresh engagement of new workmen. It would

be incumbent upon the respondent management to

adopt such procedure as is enumerated above".

36. In Harmohinder Singh [2001 (5) S.C.C. 540] an

employee was appointed as a salesman by Kharga

canteen on 1.6.74 and subsequently as a cashier on

9.8.75. The letter of appointment and Standing Orders,

inter alia, provided that his service could be

terminated by one month's notice by either party. He

was served with a notice to the effect that his service

would be relinquished with effect from 30.6.1989.

Relying precedent in Uptron India Ltd. [1998 (6) S.C.C.

538] the Apex Court ruled that contract of service for

a fixed term are excluded from the ambit of

retrenchment. Decision in Balbir Singh (supra) was

held to be erroneous. It was also ruled that principles

of natural justice are not applicable where termination

takes place on expiry of contract of service.

37. In Batala Coop. Sugar Mills Ltd. [2005 (8) S.C.C. 481]

an employee was engaged on casual basis on daily wages

for specific work and for a specific period. He was engaged

on 1.4.1986 and worked upto 12.2.94. The Labour Court

concluded that termination of his services was violative of

provisions of section 25-F of the Act, hence ordered for his

reinstatement with 50% back wages. Relying precedents in

Morinda Coop. Sugar Mills (supra) and Anil Bapurao

Kanase (supra) the Apex Court ruled that since his

engagement was for a specific period and specific work,

relief granted to him by the Labour Court can not be

maintained.

38. The Apex Court dealt with such a situation again in

Darbara Singh (2006 LLR 68) wherein an employee was

appointed by the Punjab State Electricity Board as peon

on daily wage basis from 8.1.88 to 29.2.88. His services

were extend from time to time and finally dispensed with in

June 1989. The Supreme Court ruled that engagement of

Darbara Singh was for a specific period and conditional.

His termination did not amount to retrenchment. His case

was found to be covered under exception contained in

sub-clause (bb) of section 2(oo) of the Act. In Kishore

Chand Samal (2006 LLR 65), same view was maintained by

the Apex Court. It was ruled therein that the precedent in

S.M. Nilajkar [2003 (II) LLJ 359] has no application to the

controversy since it was ruled therein that mere mention

about the engagement being temporary without indication

of any period attracts section 25-F of the Act if it is proved

that the concerned workman had worked continuously for

more than 240 days. Case of Darbara Singh and

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3065

Kishan Chand Samal were found to be relating to fixed term

of appointment.

39. In BSES Yamuna Power Ltd. (2006 LLR 1144) Rakesh

Kumar was appointed as Copyist on 29.9.89, initially for a

period of three months as a daily wager. His term of

appointment was extended up to 20.9.90. No further

extension was given and his services were dispensed with

on 20.9.90. On consideration of facts and law High Court of

Delhi has observed thus:

"...In the present case, the respondent was appointed

as a copyist for totalling the accounts of ledger for

the year 1986-87 and then for 1987-88. His initial

appointment was for the period of three months. It

was extended from time to time and no extension was

given after 20th September, 1990. He was appointed

without any regular process of appointment, purely

casual and on temporary basis for specific work of

totalling of ledger. When this work was over, no

extension was given. I consider that appointment as

that of the respondent is squarely covered under

section 2(oo)(bb) of the Act. Giving of non extension

did not amount to termination of service, it was not a

case of retrenchment".

40. Precedents, handed down by Allahabad High Court

in Shailendra Nath Shukla (supra), Bombay High Court in

Dilip Hanumantrao Shirke (supra), Punjab & Haryana High

Court in Balbir Singh (supra) and Madhya Pradesh High

Court in Madhya Pradesh Bank Karamchari Sangh (supra)

castrate sub-clause (bb) of section 2(oo) of the Act. Ratio

decidendi in these precedents abrogates statutory

provisions of sub-clause (bb) of section 2 (oo) of the Act

without even discussing the legality or constitutional

validity of the clause. On the other hand the Apex Court in

C.M.Venugopal (supra), Morinda Co-operative Sugar Mills

Ltd. (supra), Anil Bapurao Kanase (supra), Harmohinder

Singh (supra), Batala Coop. Sugar Mills Ltd. (supra),

Darbara Singh (supra) and Kishore Chand Samal (supra)

and High Court of Delhi in BSES Yamuna Power Ltd. (supra)

spoke that case of an employee, appointed for a specific

period which was extended from time to time, would be

covered by the exception contained in sub-clause (bb) of

section 2(oo) of the Act, in case his services are dispensed

with as a result of non-renewal of the contract of

employment between him and his employer, on its expiry or

termination of the contract of employment in terms of a

stipulation contained in the contract of employment in that

behalf. The law, so laid, holds the water and would be

applied to the claimants.

41. The Airlines asserts that services of the claimants

were dispensed with in terms of stipulation contained in

clause 8.2.4 of the service rules, which act is covered within

sub-clause (bb) of section 2(oo) of the Act. Shri Bhasin

argued that the act of the Airlines does not amount to

retrenchment, which will denude the claimants from claiming

any right or privilege under the provisions of the Act.

Shri Sharma could not dispel the facts in that regard. Thus

application of clause 8.2.4 of the service rules would push

the claimants out of ambit of safeguards provided by the

Act.

42. There is other facet of the coin. It has been argued

on behalf of the claimants that clause 8.2.4 is arbitrarily

worded in favour of the Airlines. According to them, it

gives plenty of powers to the Airlines to dispense with

services or even termination of employees. They claim that

this Tribunal may use its powers, available to it for

adjudication of an industrial dispute and create new

obligations by modifying clause 8.2.4 of Ex. WW1/4. On

the other hand, Airlines dispels submissions made by

Shri Sharma. Provisions of the Act confers wide powers

and jurisdiction upon adjudicatory authorities to make

appropriate award in determining industrial disputes

brought before them. The ultimate job of an industrial

adjudicator is to help the parties to take steps for growth

and progress of national economy and it is with that ultimate

object in view that industrial disputes are settled by

industrial adjudicators on principles of fair play and justice.

The Apex Court in Bharat Bank Ltd. [1950(1) LLJ 921] ruled

that the Tribunal is not merely to interpret or give effect to

contractual obligation between the parties, but can confer

right and privileges on either party which it considers

reasonable and proper, though may not be within the terms

of any existing agreement. Its jurisdiction is much wider

and can be reasonably exercised with the object of keeping

industrial peace and progress. The observations made by

the Court are extracted thus:

"In settling disputes between employees and the

workmen, functions of the Tribunal is not confined

to administration of justice in accordance with laws.

It can confer rights and privileges to either parties

which it considers reasonable and proper though

they may not be within the terms of any existing

agreement. It is not merely to interpret or give effect

to the contractual rules and obligations of the parties.

It can create new rules and obligations between them

if it considers essential for keeping industrial peace."

43. Industrial adjudication is always a matter of making

adjustment between two competing claimants. Approach

of an industrial adjudicator is to be necessarily pragmatic

and should not unduly be influenced by academic question

of law and should make an attempt to deal with merits of

each case according to facts and circumstances. While

adjudicating disputes, Tribunal cannot and should not

ignore claim of social justice. For consideration of aspects

of social justice, the Tribunal has to keep in mind that the

Act is a beneficiary legislation calculated to ensure social

justice to both employers and employees and advance

progress of industry by bringing harmony and cordial

relationship between the parties. The Act empowers

adjudicating authorities to abrogate conditions in contract

of employment, in the interest of social justice. Social and

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[PART II—SEC. 3 (ii)]

economic justice is ultimate ideal of industrial adjudication.

Social and economic justice has been given place of pride

in our Constitution and doctrine of absolute freedom of

contract has thus to yield to the higher claims for social

justice. See Raibahadur Deewan Badri Das [1962 (II) LLJ

366].

44. Social justice is not based on contractual relations

and is not to be enforced on principles of contract of

service. It is something outside these principles and

invoked to do justice without a contract to back out.

Reference can be made to precedent in Rashtriya Mill

Mazdoor Sangh [1960 (II) LLJ 263]. In J.K. Cotton Spinning

& Weaving Mills Company Ltd. [1963 (II) LLJ 435] the

Apex Court ruled that industrial disputes are to be

adjudicated laced with the concept of social justice. It would

be expedient to reproduce the observations made by the

Apex Court which are extracted thus:

"In our opinion the argument that the considerations

of social justice are irrelevant and untenable in

dealing with industrial disputes, has to be rejected

without any hesitation. The development of

industrial law during the last decade and several

decisions of this court in dealing with industrial

matters have emphasised the relevance, validity and

significance of doctrine of social justice..................

Indeed the concept of social justice has now become

such an integral part of industrial law that it would

be idle for any party to suggest that industrial

adjudication can or should ignore the claim of social

justice in dealing with industrial disputes. The

concept of social justice is not narrow or one sided,

or pedantic, and is not confined to industrial

adjudication alone. Its sweep is comprehensive. It is

founded on the basic idea of socio economic equality

and its aim is to assist the removal of socio economic

disparities and inequalities".

47. In Ahmedabad Manufacturing and Calico Printing

Company Ltd. [1972 (II) LLJ 165] the above principles were

reiterated by the Apex Court. Therefore, the law laid down

by Apex Court makes it clear that the industrial adjudication

cannot and should not ignore the claims of social justice.

Same views were expressed in Basti Sagar Mills Company

Ltd. [1978 (II) LLJ 412]. Therefore this Tribunal has to

consider the case on the touch stone of social justice also.

48. When contents of clause 8.2.4 of Ex. WW1/4 are

taken into account, it emerges that a right has been accorded

to the Airlines to dispense with the service of employees

by giving salary for one month in lieu of notice thereof.

Whether this Tribunal should shake off its hands by

interpreting provisions of the above clause and answer

the dispute by applying it to the facts of the case? If it is

done, then this Tribunal would be lacking in its powers of

doing social justice to the parties. In settling the disputes

between the employers and the workmen, the functions of

the Tribunal is not confined to administration of justice in

accordance with law. It can confer rights and privileges on

either party which it considers reasonable and proper,

though they may not be within the terms of any existing

agreement. The doctrine of absolute freedom of contract

has thus to yield to the higher claims for social justice. The

terms and conditions of a contract between the employer

and the employee can, however, be interfered with by a

Tribunal only when it is found necessary in the interest of

social justice or exigencies of a situation.

49. Clause 8.3.4. of the service rules, or its plain reading

enables the Airlines to resort to the policy of 'hire and fire'

since it gives unguided powers to it to terminate

employment of even a permanent employee under the

stipulation contained therein. The clause empowers the

Airlines to terminate the employment of any employee

irrespective of the circumstances in which it was entered

into or the nature or extent of work for which he was

employed. It is apparent that the contract in the form of

clause 8.2.4 of Ex. WW1/4 was stipulated as a devise to

escape applicability of the definition of retrenchment.

Industrial adjudication does not recognise the employer's

right to employ labour on terms contrary to the provisions

of the Act. Therefore, the concept of social justice would

require of this Tribunal to limit the operation of clause 8.2.4

of Ex. WW1/4 to the cases only where managerial discretion

of the employer to regularise the services of an employee

is yet to be exercised. In a case where such discretion has

been exercised and the employee renders continuous

service of one year or more as contemplated by the

provisions of section 25-B of the Act, by use of the

provisions of clause 8.2.4 of Ex. WW1/4 the Airlines cannot

be allowed to breach the provisions of section 25F or 25N

of the Act, as the case may be, besides provisions of section

25G and 25H of the Act.

50. Services of the claimant were dispensed with on

17.05.1995. At that time they had rendered service of more

than 20 years each to the Airlines. Admittedly they had

unblemished service, which was appreciated by the Airlines

by giving them upgradation from time to time. Their

unblemished service was dispensed with in an

unceremonious manner. As pointed out above, provisions

of clause 8.2.4 are limited to the cases where managerial

discretion of the Airlines is to be exercised to regularise

services of the employees, therefore, these provisions were

not to be exercised by the Airlines against the claimant,

without following provisions of section 25-F or 25 N of the

Act, as the case may be. Since action of the Airlines is

wrong, it is to be brushed aside. From 1995 till date much

water has flown, hence I do not find any justification to

order reinstatement in service. Considering the factors that

the claimants ought to have received retrenchment

compensation amounting to Rs. 2.50 lakh each in 1995,

they would have earned interest in case they would have

invested the same in the bank, decrease in purchasing power

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3067

of money and the fact that they had to contest the litigation

for such a long period, I am of the view that a sum of

Rs.10 lakh each would be adequate amount of compensation

to the claimants, in lieu of their claim of reinstatement in

service. An award is, accordingly, passed. It be sent to the

appropriate Government for publication.

Dated: 31-12-2012

Dr. R. K. YADAV, Presiding Officer

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New Delhi, the 27th May, 2013

S.O. 1169.—In pursuance of Section 17 of the Industrial

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

hereby publishes the Award (Ref. No. 269/2011) of the

Central Government Industrial Tribunal-cum-Labour Court

No. 1, New Dehi as shown in the Annexure, in the industrial

dispute between the management of M/s. Singapore

Airlines Ltd. and their workmen, received by the Central

Government on 02-04-2013.

[No. L-11012/13/2011-IR(CM-I)]

M. K. SINGH, Section Officer

ANNEXURE

BEFORE DR. R.K.YADAV, PRESIDING OFFICER,

CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL NO.1, KARKARDOOMA COURTS

COMPLEX, DELHI

I.D.No.296/2011

The President,

Singapore Airlines Employees Association Delhi,

31/15, Punjabi Bagh Extn., New Delhi - 110026.

...Workman

Versus

The Station Manager,

M/s Singapore Airlines Ltd.,

New Visitors Lounge,

Departure Level, IGI Airport,

Terminal-II, New Delhi-110037

....Management

AWARD

A Customer Service Agent(J) was appointed by

Singapore Airlines Limited, New Delhi (in short the Airlines),

vide appointment letter dated 07.10.2008. The employee

joined his duties on 01.11.2008 at New Delhi. As per terms

contained in letter of appointment, he was to remain on

probation for a period of nine months, subject to extension

by the Airlines at its sole discretion. His period of probation

was extended upto 31/12/1999, vide letter dated 09.11.1999.

On 24.12.2009 he was advised that his services stands

terminated with effect from 31.12.2009. It led the employee

to raise an industrial dispute before the Conciliation Officer.

Since conciliation, proceedings ended into a failure, the

appropriate Government referred the dispute to this

Tribunal for adjudication, vide order No.L-11012/13/2011-

IR(CM-1) New Delhi, dated 29.08.2011, with following terms:

"Whether the action of the management of

M/s. Singapore Airlines, New Delhi in terminating

the services of Shri Sanjay Chouhan S/o

Sh.R.P.Chouhan, Ex-Customer Service Agent(J) with

effect from 31.12.2009 is justified? To what relief the

workman concerned is entitled to?"

2. Claim statement filed by the Customer Service

Agent(J), namely, Shri Sanjay Chouhan pleading that he

was appointed by the Airlines vide letter dated 07.10.2008.

He joined at New Delhi on 01.11.2008. As per terms

contained in the appointment letter, he was to be confirmed

after putting in 9 months service. He performed his duties

most effectively, honestly and sincerely. His flawless,

unblemished and remarkable service earned him

appreciation many a times. On 09.11.2009, he was abruptly

served a notice intimating him that his probation has been

extended upto 31.12.2009, citing 'unsatisfactory work

performance'. Thereafter, he was served a left dated

24.12.2009 terminating his service with effect for 31.12.2009.

He further pleads that termination of his service was patently

illegal since extension of period of probation was contrary

to the provisions of 'Memorandum of Settlement' signed

on 29.05.2008, which was given retrospective effect from

01.04.2006. Clause 5.1 of the above settlement limits period

of probation of an employee up to a maxima of nine months

which provisions are extracted thus:

"5.1 The period of probation will be six months

subject to extension by the Company at its sole

discretion for a period of three months. The total

period of probation shall not exceed nine months."

3. Since his services were not dispensed with at the end

of nine months service, he claims reinstatement in service

with continuity, full back wages and all consequential

benefits.

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[PART II—SEC. 3 (ii)]

4. Claim was demurred by the Airlines pleading that the

reference was made by the appropriate Government without

applying its mind, hence it is bad in law. It has not acquired

status of an industrial dispute, as defined under section

2(k) of the Industrial Disputes Act, 1947 (in short the Act).

It was also pleaded that the claimant is not a workman, as

defined in section 2 (s) of the Act.

5. The Airlines presents that the claimant was appointed

in its service on the strength of letter dated 07.10.2008.

Initially his period of probation was fixed for 9 months.

However it was clarified in the appointment letter that the

Airlines reserves its right to extend probation period for

any further term. The claimant joined the Airlines on

01.11.2008. Since his work was totally unsatisfactory, period

of probation was extended upto 31.12.2009.

6. During period of probation, the claimant was given

full support and cooperation, so as to enable him to improve

his performance. However, the claimant failed to prove

himself despite counseling, training and support. Hence,

the Airlines was constrained to terminate his services. His

termination was in consonance with the offer of employment

letter dated 07.10.2008. There was no illegality in termination

of his service. He is not entitled to any relief. His claim is

liable to be dismissed, pleads the Airlines.

7. On pleadings of the parties, following issues were

settled:—

(i)

Whether action of the management in terminating

the services of the claimant amounts to

retrenchment?

(ii)

As in terms of reference.

(iii)

Relief.

8. Claimant has examined himself in support of his claim.

Shri Bibhash Ghosh entered the witness box to testify facts

on behalf of the Airlines. No other witness was examined

by either of the parties.

9. Arguments were heard at the bar. Shri Mahesh Ranjan,

authorised representative, advanced arguments on behalf

of the claimant. Shri Jitender Kumar, authorized

representative, made his submissions on behalf of the

Airlines. 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.1

10. In his affidavit Ex.WW1/A, tendered as evidence,

claimant details that he was appointed by the Airlines as

Customer Service Agent with effect from 01.11.2008, vide

appointment letter Ex.WW1/1. His last drawn salary was

Rs.22,519.00 per month. He performed his duties honestly

and sincerely and as such

earned appreciation on many

occasions. Those appreciations are Ex.WW1/2 to Ex.WW1/

16. Abruptly, on 09.11.2009, he was served notice on the

strength of which his probation was extended till 31.12.2009.

His services were illegally terminated on 31.12.2009. Letter

extending his probation is Ex.WW1/17. His services were

terminated vide letter Ex.WW1/18. He harps on proposition

that termination of his service was patently illegal since

extension of period of probation was in contravention of

"Memorandum of Settlement", which is Ex.WW1/19.

11. Shri Bhibash Ghosh declares in his affidavit

Ex.MW1/A, tendered as evidence, that the claimant was

appointed as Customer Service Agent on probation for a

period of nine months, which terms of service are contained

in his appointment letter dated 07.10.2008. Work of the

claimant was totally unsatisfactory, hence his period of

probation was further extended till 31.12.2009 vide letter

dated 09.11.2009. Claimant failed to improve his performance

even during extended period of probation. His services

were terminated at the end of probation period on

31.12.2009, in terms of employment offer given to him.

12. When facts unfolded by the claimant and Shri Ghosh

are scanned, it came to light that the claimant was appointed

as Customer Service Agent by the Airlines, vide

appointment letter Ex.WW1/1. He was put on probation

for a period of nine months, subject to extension by the

Airlines at its sole discretion. During period of probation,

his services could be dispensed with in first three months

of employment without service of any notice and thereafter

on service of notice for a period of 14 days or pay in lieu

thereof. After his confirmation, his services could be

dispensed with on service of one months notice in writing

or pay in lieu thereof. Services of the claimant was found

not to be satisfactory as emerged out of appraisal report,

proved as Ex.WW1/M2. His period of probation was

extended till 31.12.2009, vide letter Ex.WW1/17. His services

were dispensed with on 31.12.2009, vide letter Ex.WW1/18.

13. "Memorandum of Settlement" proved as Ex.WW1/

19 was entered into between the Airlines and Singapore

Airlines Employees Association on 29.05.2000. This

memorandum of settlement came into effect on 01.04.2006

and remained in force till 31.03.2010. Clause 5.1 of the

"Memorandum of Settlement" projects that period of

probation will be six months subject to extension by the

Airlines at its sole discretion for a further period for 3

months. Total period of probation shall not exceed 9

months. Therefore, out of "Memorandum of Settlement"

Ex.WW1/19, it came over the record that the Airlines may

put an employee on probation for a period of six months

subject to its extension for a further period of three months.

Total period of probation shall not exceed nine months. As

emerge out of appointment letter Ex.WW1/1, claimant was

to remain on probation of nine months, which was subject

to extension at the sole discretion of the Airlines. His period

of probation was extended for till 31.12.2009. The claimant

agitates that after expiry of period of nine months, he was

deemed to have been confirmed in service of the Airlines.

Contra to his submissions, the Airlines projects that since

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3069

he accepted terms of service contained in Ex.WW1/1, he is

estopped from contending to the contrary. His services

were regulated by stipulations contained in his appointment

letter and he could not claim benefit of Ex.WW1/19. The

Airlines asserts that Ex.WW1/19 makes no provision for

automatic confirmation in service. Since the claimant never

raised eyebrows when his period of probation was extended

on the strength of Ex.MW1/17, it does not lie in his mouth

to assert that he was deemed to have been confirmed on

expiry of initial period of nine months in service.

14. To appreciate rival submissions, it is expedient to

have a glance on law on the topic. A probationer does not

automatically attain permanent status on expiry of his

probation. If he is neither discharged nor confirmed, he

continues to serve as a probationer until otherwise dealt

with. Therefore, in the absence of anything contained in

the contract to the contrary nothing would prevent the

employer from extending period of probation for a further

reasonable period. The purpose of placing a person on

probation is to try him during period of probation to assess

his suitability for the job. If an employee who is on

probation is removed from his service during his period of

probation by order of termination simplesiter, it cannot be

said that the order was stigmatic. The principle of law

relating to discharge under contract and discharge

simplesiter were extended to the discharge of probationer

by the Supreme Court in Express Newspaper Ltd. [1964 (I)

LLJ 9]. The facts of the case were that a journalist was

appointed on probation for a period of 6 months and was

to be confirmed on being found suitable for the job. Before

expiry of period of probation the employer terminated his

services on the ground that his work was not satisfactory.

The journalist challenged his discharge on the ground that

it was mala fide and unfair labour practice on the part of

the employer. The employer pleaded that the journalist was

appointed on probation, hence termination of his service

on account of unsatisfactory work was well within rights.

The Apex Court recognized the right of the employer to

terminate service of a probationer at the end of the period

of probation. The observations made by the Apex Courts

are extracted thus:

"there can, in our opinion be no doubt about the

position in law that an employee appointed on

probation for 6 months continues as probationer

even after the period of 6 months if at the end of the

period his services had either not been terminated or

he is confirmed. It appears clear to us that without

anything more an appointment on probation for 6

months give the employer no right to terminate the

service of an employee before 6 months had expired

except on the ground of misconduct or other

sufficient reasons in which case even the service of

a permanent employee could be terminated. At the

end of the 6 months period the employer can either

confirm him or terminate his services because his

performance is found unsatisfactory. If no action is

taken by the employer either by way of confirmation

or by way of termination the employee continues to

be in service as a probationer".

15. The distinction was maintained by the Apex Court

between cases of termination of employment of a

probationer before period of probation had expired and the

cases where the employer exercised his inherent right either

to confirm or to terminate the employment of the probationer

at the end of the period of probation. When an employee

appointed on probation for a specific period is allowed to

continue in the post after expiry of that period without any

specific order of confirmation, he continues in his post as

a probationer only and acquires no substantive right to

the post in the absence of any stipulation to the contrary

in the original order of appointment or service rules. When

an employee is allowed to continue after end of period of

probation, necessary implication would follow that his

period of probation has been extended and it cannot be

concluded that he should be deemed to have been

confirmed. Law to this effect was laid by the Apex Court in

Dharam Singh (AIR 1968 SC 1210). Consequently it is clear

that an express order of confirmation is necessary to give

an employee substantive right to the post and from the

mere fact that he is allowed to continue in the post after the

end of period of probation, it is not possible to hold that he

should be deemed to have been confirmed. In Unit Trust of

India [1993 (I) LLJ 240] the Apex Court announced that the

vary purpose of putting a person on probation is to watch

his performance.

16. Law on deemed confirmation of a probationer was

noticed by the Apex Court in Karnataka State Road

Transport Corporation (AIR 2000 SC 2070), wherein

following observations were made:

"10. This Court had an occasion to review, analyse

critically and clarify the principles on an exhaustive

consideration of the entire case law in two recent

decisions reported in Dayaram Dayals case (supra)

and Wasim Begs case (supra). One line of cases has

held that if in the Rule or Order of appointment, a

period of probation is specified and a power to extend

probation is also conferred and the officer is allowed

to continue beyond the prescribed period of

probation, he cannot be deemed to be confirmed and

there is no bar on the power of termination of the

officer after the expiry of the initial or extended period

of probation. This is because, at the end of probation

he becomes merely qualified or eligible for substantive

permanent appointment. The other line of cases are

those where even though there is a provision in the

rules for initial probation and extension thereof, a

maximum period for such extension is also provided

beyond which it is not permissible to extend

probation. The Constitution Bench which dealt with

the case reported in State of Punjab vs Dharam Singh

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[PART II—SEC. 3 (ii)]

[1968 (3) SCR1], while distinguishing the other line

of cases held that the presumption about

continuation, beyond the period of probation, as a

probationer stood negatived by the fixation of a

maximum time limit for the extension of probation.

Consequently, in such cases the termination after

expiry of the maximum period upto which probation

could be extended was held to be invalid, inasmuch

as the officer concerned must be deemed to have

been confirmed.

11. The principles laid down in Dharam Singhs case

(supra) though were accepted in another Constitutional

Bench of a larger composition in the case reported in

Samsher Singh, etc. vs State of Punjab & Anr. [1974 (II) LLJ

465], the special provisions contained in the relevant rules

taken up for consideration therein were held to indicate an

intention not to treat the officer as deemed to have been

confirmed, in the light of the specific stipulation that the

period of probation shall be deemed to be extended if the

officer concerned was not confirmed on the expiry of his

period of probation. Despite the indication of a maximum

period of probation, the implied extension was held to render

the maximum period of probation a directory one and not

mandatory. Hence, it was held that a probationer in such

class of cases is not to be considered confirmed, till an

order of confirmation is actually made. The further question

for consideration in such category of Cases where the

maximum period of probation has been fixed would be, as

to whether there are anything else in the rules which had

the effect of whittling down the right to deemed

confirmation on account of the prescription of a maximum

period of probation beyond which there is an embargo

upon further extension being made, and such stipulation

was found wanting in Dayaram Dayal case (supra).

12. The decision in Wasim Begs case (supra) also

purported to classify these type of cases into three

categories, on a review of the entire gamut of law. It was

observed therein as follows:

"15. Whether an employee at the end of the

probationary period automatically gets confirmation

in the post or whether an order of confirmation or

any specific act on the part of the employer

confirming the end of the maximum probationary

period unless there is anything to the contrary in the

Rules."

17. Same view was taken by the Apex Court in High

Court of Madhya Pradesh through Registrar and others vs.

Satyanarain Jhevar [2001 (7) SCC 161]. For sake of

convenience, law laid therein is reproduced thus:

"11. The question of deemed confirmation in service

jurisprudence, which is dependent upon the

language of the relevant service rules, has been the

subject-matter of consideration before this Court,

times without number in various decisions and there

are three lines of cases on this point. One line of

cases is where in the service rules or in the letter of

appointment a period of probation is specified and

power to extend the same is also conferred upon the

authority without prescribing any maximum period

of probation and if the officer is continued beyond

the such case there is no bar against termination at

any point of time after expriy of the period of

probation. The other line of cases is that where while

there is a provision in the rules for initial probation

and extension thereof, a maximum period for such

extension is also provided beyond which it is not

permissible to extend probation. The inference in

such cases is that the officer concerned is deemed to

have been confirmed upon expriy of the maximum

period of probation in case before its expriy the order

of termination has not been passed. The last line of

cases is where, though under the rules maximum

period of probation is prescribed, but the same

requires a specific act on the part of the employer by

issuing an order of confirmation and of passing a

test for the purpose of confirmation. In such cases,

even if the maximum period of probation has expired

and neither any order of confirmation has been

passed nor has the person concerned passed the

requisite test, he cannot be deemed to have been

confirmed merely because the said period has

expired."

18. In Commissioner of Police vs. R.S. More, [2003 (2)

SCC 408] law laid in the above case was followed. High

Court of Delhi in Archana Dayal [120(2005) DLT 100] and

Dr. Ajit Singh Nayyar [125(205) DLT 650] followed ratio of

law laid down by the Apex Court in precedents referred

above. Therefore, it becomes crystal clear that where under

rules maximum period of probation is prescribed but specific

act on the part of the employer by way of issuance of

confirmation order is needed, in that situation expiry of

maximum period of probation would not result into automatic

confirmation of employee. He would be not deemed to have

been confirmed merely because period of probation stood

expired.

19. Facts of the controversy are to be gauged through

legal dictum detailed above. As emerged out of appointment

letter Ex.WW1/1 and Memorandum of Settlement Ex.WW1/

19, period of probation is prescribed. Appointment letter

details that the claimant shall serve on probation for a period

of nine months subject to extension by the Airlines at its

sole discretion, while Memorandum of Settlement projects

that period of probation will be six months subject to

extension by the Airlines at its sole discretion for a period

of three months and total period of probation shall not

exceed nine months. In appointment letter, no terms are

stipulated which constrains the Airlines not to extend period

of probation beyond the stipulated time. "Memorandum of

Settlement" limits period of probation to nine months only.

[Hkkx II—[k.M 3 (ii)]

Hkkjr dk jkti= % twu 22] 2013@vk"kk<+ 1] 1935

3071

In Memorandum of Settlement proved as Ex.WW1/19, it

has not been stipulated that on expiry of period of nine

months, employee would automatically be deemed to have

been confirmed in service. Therefore, it is crystal clear that

Memorandum of Settlement Ex.WW1/19 stipulates that

period of probation shall not exceed a period of nine

months, but deemed confirmation has been ruled out

therein.

20. When an employee is deemed to have been

confirmed in service, the only meaning possible is that he

is not in reality confirmed in service but the "terms of

service" requires him to be treated as if he was confirmed.

The expressio "deemed" is used a great deal in many

modern statutes and for many purposes. It is at times used

to give a special glossary or paraphrase to an expressio or

an artifical construction to a word or a phrase. It is at times

used to interoduce artificial conceptions which are intended

to go beyond settled legal principles. It is at times used to

remove uncertainly or leave no scope of doubt and debates

which may involve refined and ingenious points. At times

it is used to give extended and restricted operation to a rule

which cannot be given to it be read as enacted. See

Mst.Khatizabai Mohd. Ibrahim (A.I.R. 1960 Bom.61). Also

see Pandurang Vinayak (A.I.R. 1953 S.C. 244).

21. To conclude that the claimant is deemed to have

been confirmed in service "Memorandum of Settlement"

Ex.WW1/19 ought to have been provided that on expiry of

probation period of nine months an employee would be

deemed to have been confirmed in service. In case it could

not be specifically so declared therein, it would have

conferred certain privilege of a permanent employee on

expiry of probation period of nine months. Unfortunatily

nothing of such sort has been provided in Ex.WW1/19.

Ex.WW1/9 maintains a clear distinction between a

parmanent employee and a probationer. A specific act on

the part of the employes was required to declare an

employee confirmed in service. In a service industry like air

transport service, efficiency of an employee cannot be

compromised. Right of an employer to assess his suitability

cannot be sacrificed at the altar of "maximum period of

probation" when circumstances suggest that a specific

action on the part of the employer was required to be done.

Thus, it is dent that the employer retained right of option

to issue confirmation order in favour of an employee and in

a situation where no such option has been exercised, period

of probation of an employee would be treated to have been

extended. In the case under reference, period of probation

was extended till 31.12.2009 and services of the claimant

were dispensed with when an opinion was formed by the

Airlines that he had failed to improve his work and conduct

and was not worthy of retention in service.

22. Question for consideration would be as to whether

act of the Airlines in terminating services of the claimant

with effect from 31.12.2009 amounts to retrenchment? For

an answer, definition of the word 'retrenchment' given under

clause (oo) of section 2 of the Act needs consideration.

For the sake of convenience, the said definition is extracted

thus:

"(oo) "retrenchment" means the termination by the

employer of the services of a workman for any reason

whatsoever, otherwise than as a punishment inflicted

by way of disciplinary action, but does not include—

(a)

voluntary retirement of the workman; or

(b)

retirement of the workman on reaching the age of

superannuation if the contract of employment

between the employer and the workman

concerned contains a stipulation in that behalf;

(bb) termination of the services of the workman as a

result of the non-renewal of the contract of

employment between the employer and the

workman concerned on its expiry or of such

contract being terminated under a stipulation in

that behalf contained therein; or

(c)

termination of the services of a workman on the

ground of continued ill-health".

23. Definition of retrenchment is very wide and in two

parts. The first part is exhaustive, which lays down that

retrenchment means the termination of the service of a

workman by the employer "for any reason whatsoever"

otherwise then as a punishment inflicted by way of

disciplinary action. Thus main part of the definition itself

excludes the termination of service, as a measure of

punishment inflicted by way of disciplinary action from

the ambit of retrenchment. The second part further excludes

(i) voluntary retirement of the workman, or (ii) retirement of

workman on reaching the age of superannuation, or (iii)

termination of the service of a workman as a result of non-

renewal of contract of employment, or (iv) termination of

contract of employment in terms of a stipulation contained

in the contract of employment in that behalf, or (v)

termination of service on the ground of continued ill health

of the workman. Reference can be made to the precedents

in Avon Services (Production Agencies) (Pvt.) Ltd. [1979

(I) LLJ 1] and Mahabir [1979 (II) LLJ 363].

24. Sub Clause (bb) purports to exclude from the ambit

of the definition of retrenchment (i) termination of the

service of a workman as a result of non-renewal of the

contract of employment between the employer and the

workman concerned, on its expiry, or (ii) termination of the

contract of employment in terms of a stipulation contained

in the contract of employment in that behalf. The first part

relates to termination of service of a workman as a result of

non-renewal of the contract of employment between the

employer and the workman concerned on its expiry. Thus

"non-renewal of contract of employment" pre-supposes

an existing contract of employment, which is not renewed.

When services of an employee is terminated on account of

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THE GAZETTE OF INDIA : JUNE 22, 2013/ASADHA 1, 1935

[PART II—SEC. 3 (ii)]

non-renewal of contract of employment, between the

employer and the workman, it does not amount to

retrenchment. The second part refers to "such contract"

being terminated under a stipulation in that behalf contained

therein. The cases contemplated, under this part too, would

not amount to retrenchment. However this sub-clause,

being in the nature of an exception to clause (oo) of section

2 of the Act, is ruled to be construed strictly when

contractual agreement is used as modus operandi to

frustrate claim of the employee to become regular or

permanent against a job. The adjudicator has to address

himself to the question whether the period of employment

was stipulated in the contract of employment as a device

to escape the applicability of the definition of retrenchment.

See Shailendra Nath Shukla (1987 Lab. I.C. 1607), Dilip

Hanumantrao Shrike (1990 Lab. I.C. 100) and Balbir Singh

[1990 (1) LLJ. 443]. On review of law laid by the Apex Court

and various High Courts, a single Judge of the Madhya

Pradesh High Court, in Madhya Pradesh Bank Karamchari

Sangh (1996 Lab. I.C. 1161) has laid following principles of

interpretation and application of sub-clause (bb) of clause

(oo) of section 2 of the Act:

"(i)

that the provisions of section 2(oo)(bb) are to be

construed benevolently in favour of the workman,

(ii)

that if the workman is allowed to continue in

service by making periodic appointments from time

to time, then it can be said that the case would not

fall under section 2(oo)(bb),

(iii)

that the provisions of section 2 (oo)(bb) are not

to be interpreted in the manner which may stifle

the main provision,

(iv)

that if the workman continues in service, the non-

renewal of the contract can be deemed as mala

fide and it may amount to be a fraud on statute;

(v)

that there would be wrong presumption of non-

applicability of section 2(oo)(bb) where the work

is of continuous nature and there is nothing on

record that the work for which a workman has

been appointed had come to an end".

25. Termination of service of an employee during the

period of probation was held to be covered by the exception

contained in sub-clause (bb) of section 2(oo) of the Act, in

C.M.Venugopal [1994 (1) LLJ 597]. As per facts of the case,

Regulation 14 of the Life Insurance Corporation of India

(Staff) Regulation, 1962 empowered the Corporation to

terminate the service of an employee within the period of

probation. The employee was put on probation for a period

of one year, which was extended by another year. Since he

could not achieve the target to earn confirmation, his service

was terminated in terms of Regulation 14 as well as order of

appointment. The Apex Court ruled that the case was

covered by the exception contained in sub-clause (bb),

hence it was not retrenchment.

26. As detailed above, services of the claimant were

dispensed with on 31.12.2009, date when his period of

probation came to an end. Evidently, services of the

claimant were dispensed with at the end of the probation

period and his case is covered within the exception

contained in clause (bb) clause (oo) of section (2) of the

Act. Termination of his services does not amount to

retrenchment. The issue is, therefore, answered in favour

of the Airlines and against the claimant.

Issue No.2

27. Claimant projects that he earned various

commendations during tenure of his service. He harps on

the proposition that when his services were appreciated

by the customers, it does not lie in the mouth of the Airlines

to claim that his services were not satisfactory. To project

his point of view, he places reliance on letters Ex.WW1/2

to Ex.WW1/16. Contra to the above proposition, the Airlines

asserts that performance of the claimant was not up to the

mark, since he was found to be careless and losing

company's assets. He used not to attend staff meetings

regularly, was rude and arrogant towards GHS Staff and

failed to show any remorse for contributing towards delay

of flight SQ 407 on 08.10.2009. He failed to carry out manual

check-in exercise in time and could not inform CLC zero

fuel weight figures. During briefing session, he displayed

lackadaisical attitude towards the whole issue. Thus,

Airlines projects that it does not lie in the mouth of the

claimant to praise his work and award certificate of

competence to himself.

28. Whether assessment made by the employer about

suitability of an employee can be weighed by an Industrial

Adjudicator ? It is a settled proposition that assessment to

the effect that service of a probationer is satisfactory or

not rests with the satisfaction of the employer. Such

satisfaction could be objectively assessed and employer

is not bound to give any reason when he does not confirm

a probationer on expiry of the period of probation. However

the industrial adjudication may call upon the employer to

put reasons for not confirming an employee when he finds

the order laced with mala fide. In Upkar Machinery Ltd.,

[1996 (1) LLJ 398] the Apex Court ruled that when validity

of termination of services, during period of probation

without notice and without assigning any reason, is under

challenge in that situation Industrial Adjudicator would be

competent to find out whether the order of termination was

bona fide exercise of power conferred by the contract. In

Brook Bond India (Pvt.) Ltd., [1993 (II) LLJ 454] workman

was appointed in the first instance for a period of six

months, extendable for a further period of three months or

more in absolute discretion of the employer. The terms of

appointment further provided that the employer had a right

to terminate the services of a probationer, "during the period

of probation or extended period of probation or before

confirmation in writing, without notice and without

assigning reasons whatsoever." Service was terminated

[Hkkx II—[k.M 3 (ii)]

Hkkjr dk jkti= % twu 22] 2013@vk"kk<+ 1] 1935

3073

within the period of probation. During the course of

adjudication the employer adduced no evidence to show

that the work of probationer was unsatisfactory. The Apex

Court ruled that the order of terminating the service of a

probationer was capricious and unreasonable. The

termination was held to be not justified. The above

precedents make it is clear that an Industrial Adjudicator

has a right to see whether the order of termination is mala

fide or it amounts to victimization or unfair labor practice.

29. Efforts would be made to ascertain whether the

claimant has been able to show that termination of his

services was mala fide act or it amounted to unfair labour

practice on the part of the Airlines. To appreciate facts and

documents relied by the claimant, it is to be noted that

Ex.WW1/2, Ex.WW1/11 to Ex.WW1/16 relate prior to

November, 2008. These documents have no bearing on

work and performance of the claimant during the period of

his probation. Consequently, it is evident that documents

are irrelevant. The same are discarded from consideration.

30. Ex.WW1/3 to Ex.WW1/6 and Ex.WW1/10 are e-mails

purported to have been sent by Shri Karandeep, Geoffery

D Askew, Dr. Nidhu Jasm, Shri Rahul Mathur, Himanshu

Chaturvedi, Geralyn Lee and Tim Peng. All these documents

relate to April and May, 2009. Thus, it is emerging over the

record that for the months of April and May, 2009, services

rendered by the claimant were appreciated by a few

customers of the Airlines. As per case projected,

performance of the claimant was assessed by the Airlines

and several verbal warnings were given to him for non-

punctuality. On 26.12.2008, an e-mail was sent to him for

his non-punctuality. He developed a habit of reporting late

for work projects the Airlines. On 23.01.2009 Assistant

Station Master had counseled him when he was found not

working with the team and used to keep himself isolated

from his colleagues. He had shown poor attitude towards

his work and failed to comprehend flight handling

operations. He was found to be derogatory while dealing

with his peers and specially towards third party staff. He

was found to be tactless and arrogant towards staff of the

contractor. On 09.06.2009, he was counseled by the

Assistant Station Master when he lose mobile phone

provided to him by the Airlines. On 08.10.2009, he

contributed towards delay of flight SQ 407. These facts

were brought to his notice on 09.11.2009. Thus, it emerges

over the record that the claimant showed poor performance

and found below standards relating to quality and quantity

of work, ability to learn new techniques, dependability, his

interest and satisfaction towards the job, co-operation with

his colleagues and superiors and lacked tact and ability to

express effectively. Consequently, it is evident that the

claimant's performance was poor, below expectation and

lacking meticulousness. He displayed low credibility

amongst colleagues and superiors relating to quality of his

work. Consequently, the Airlines noted that the claimant

lacked normal work culture and was found to be a below

average employee. These circumstances led the Airlines to

dispense with his services. When facts are gauged through

standards of work culture, which the claimant was

supposed to maintain, it emerged over the record that he

lacked efficiency and quality of work. No reasons emerged

over the record, which may persuade this Tribunal to find

fact in favour of the claimant to conclude that the act of

termination of his services by the Airlines amounted to

mala fide, victimization or unfair labour practice. Above

reasons led me to announce that the act of terminating his

services by the Airlines with effect from 31.12.2009 is found

to be legal and justified. The issue is, therefore, answered

in favour of the Airlines and against the claimant.

Relief

31. Since the act of dispensing with the services of the

claimant by the Airlines does not amount to retrenchment,

nor act of mala fide, victimization or unfair labour practice,

claimant is not entitled to any relief. His claim statement is

liable to be brushed aside. Accordingly, his claim is

discarded. An award is passed in favour of the Airlines and

against the claimant. It be sent to the appropriate

Government for publication.

Dated : 26-2-2013

Dr. R .K. YADAV, Presiding Officer

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New Delhi, the 27th May, 2013

S.O. 1170.—In pursuance of Section 17 of the Industrial

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

hereby publishes the Award (Ref. No. 62/2009) of the

Central Government Industrial Tribunal-cum-Labour Court

No. 1, Dhanbad as shown in the Annexure, in the industrial

dispute between the management of M/s. B.C.C.L. and their

workmen, received by the Central Government on

5-4-2013.

[No. L-20012/72/2009-IR(C-I)]

M. K. SINGH, Section Officer

3074

THE GAZETTE OF INDIA : JUNE 22, 2013/ASADHA 1, 1935

[PART II—SEC. 3 (ii)]

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. 62 of 2009

Employers in relation to the management of Jogidih

Colliery of M/s. B. C.C.L.

AND

Their workmen.

Present:—Sri Ranjan Kumar Saran,

Presiding officer

Appearances:

For the Employers. : Sri U.N. Lall, Advocate

For the Workmen. : Sri S.Paul, Advocate

State : Jharkhand.

Industry : Coal.

Dated. 15-03-2013

AWARD

By Order No. L-20012/72/2009 -IR -(C-I), dt. 09/11/2009,

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 Disputes Act, 1947, referred the following

disputes for adjudication to this Tribunal:

SCHEDULE

"Whether the action of the management of Jogidih

colliery of M/S. BCCL in Superannuating Sri Kali Singh,

Attendance Clerk w.e.f. 30.06.2006 when there is discrepancy

in his date of various records is legal and justified? To

what relief is the workman concerned entitled?"

2. The case is received from the Ministry of Labour on

27.11.2009. After notice both parties appeared, the

Sponsoring Union/workman files their written statement

on 05.01.2010. In this case, it is alleged that the workman

has been superannuating before attaining his age of

retirement on the basis of wrong assessment of the age of

the workman, which has been strongly objected by the

workman for which the present reference has been referred.

3. In this case, workman has been examined. He has

exhibited five document, on the other hand. From the side

of the management two witnesses have been examined

and six documents are marked from Ext. M-1, medical report

of the management, it is seen the age of concerned workman

is forty years as on 27.6.1986. But below that, the date of

Birth of the workman is written 46 years of age and that has

been scored through, which creates suspicion.

4. In Ext. M-2, the age of the workman has been written,

the Date of Birth of the workman 27.06.1986 and below

that, it is written 14.02.1954 as per the workman's identity

card. In the form "B" register the Date of Birth of the

workman has been written 40 years as on 27.06.1986. In the

said document identity card Number of the workman has

been noted from the photocopy of Identity Card of the

workman the age of the workman has been written as

14.02.1954 and the said I.D Card issued in the year 1974 i.e.

much prior to form "B" register.

5. Moreover the I.D Card No. 211102 has been mentioned

in form "B" register Ext. M-6 which postulates that the

Form "B" register came into existence after the issuance of

I.D Card.

6. Moreover the witnesses examined by the management

though said that the age determined by the workman by

the medical board has not stated that which mode the

medical team applied for determination of age. When that

is not clear, this Tribunal accepts the Date of Birth on the

oldest document i.e. I.D Card.

7. Moreover other documents filed by the management

has been observed not beyond suspicion as per the

findings given supra. Therefore superannuating the

workman before is illegal. The date of Birth of the workman

is accepted to 14.02.1954.

8. Considering the facts and circumstance, I hold that

the action of the management of Jogidih colliery of M/S.

BCCL in superannuating Sri Kali Singh, Attendance Clerk

w.e.f. 30.06.2006 is not legal and justified, Hence the

workman be reinstated with continuation of service within

10 days after the award is notified in the gazette.

This is my award.

R.K. SARAN, Presiding Officer

ubZ fnYyh] 28 ebZ] 2013

dk-vk- 1171-—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj eSllZ bafM;u

eSllZ bafM;u

vkW;y dkWjiksjs'ku fnYyh

vkW;y dkWjiksjs'ku fnYyh ds izca/kra= ds lac) fu;kstdksa vkSj muds

deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh;

dsUnzh;

ljdkj vkS|ksfxd vf/kdj.k ua

ljdkj vkS|ksfxd vf/kdj.k ua. 1] fnYyh

1] fnYyh

1] fnYyh ds iapkV ¼lanHkZ

¼lanHkZ

la[;k 84@2013½

la[;k 84@2013½ izdkf'kr djrh gS tks dsUnzh; ljdkj dks 27&5&2013

dks izkIr gqvk FkkA

[la- ,y&15025@01@2013&vkbZ vkj ¼,e½]

tksgu rksiuks] voj lfpo

New Delhi, the 28th May, 2013

S.O. 1171.—In pursuance of Section 17 of the Industrial

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

hereby publishes the award (Ref. No. 84/2013) of the Central

Government Industrial Tribunal/Labour Court No. 1, Delhi

now as shown in the Annexure in the Industrial Dispute

[Hkkx II—[k.M 3 (ii)]

Hkkjr dk jkti= % twu 22] 2013@vk"kk<+ 1] 1935

3075

between the employers in relation to the management of

Indian Oil Corporation, Delhi and their workman, which

was received by the Central Government on 27/05/2013.

[No. L-15025/01/2013-IR(M)]

JOHAN TOPNO, Under Secy.

ANNEXURE

BEFORE DR. R.K. YADAV, PRESIDING OFFICER,

CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL No.1, KARKARDOOMA

COURTS COMPLEX, DELHI.

I.D. No. 84/2013

IOC Mazdoor Sangh,

...Workmen

House No.347, Mangolpur KaIan

Delhi

Versus

Indian Oil Corporation Ltd.

...Management

Through its Chairman,

Care 2, Scope Complex,

Lodhi Road,

New Delhi

AWARD

1. Workmen, namely, Shri Kamal Kanwar, Shri Dinesh

Kumar, Shri Vijay Prakash, Shri Umed Singh, Shri Kishan

Kumar, Shri Moti Pal, Shri N. Prakash, Shri Jagdish, Shri

Prakash Chand, Shri Gopal, Shri Madan Lal, Shri Pradeep

Kumar, Shri Raju Sharma, Shri Azad Singh, Shri Ramesh

Kumar, Shri Naresh Kumar and Shri Kuldeep Singh joined

Indian Oil Corporation Ltd. (in short the Corporation)

through M/s. Twiga Fag Bells, B.N. Contractor and M/s.

R.L. Engineering at their Bottling Plant, Tikri Kalan, New

Delhi. The management stopped making payment of wages

these workmen during the years 1999-2004 and 2008. A writ

petition was filed before the Hon'tble High Court of Delhi

by the workmen bearing number W.P.(C) No.770/98, in which

petition directions were issued by the High Court not to

replace the workmen with other contract workers, during

the pendancy of the petition. Services of Shri Pradeep

Kumar and Raju Sharma were dispensed with in January,

1999, services of Sh.Kamal Kanwar, Shri Dinesh Kumar,

Shri Vijay Prakash, Shri Umed Singh were terminated on

07.03.2004, while services of Shri Azad Singh, Shri Ramesh

Kumar, Shri Naresh Kumar and Shri Kuldeep Singh were

dispensed with in April 2004 and Shri Kishan Kumar, Shri

Moti Pal, Shri N. Prakash, Shri Jagdish, Shri Prakash Chand,

Shri Gopal were bade farewell on 03.08.2008. A notice of

demand was served on the Corporation on 29.10.2011. On

13.05.2013, an industrial dispute was raised by the claimants

before this Tribunal, using right available to them under

the provisions of sub-section (2) of section 2-A of the

Industrial Disputes Act, 1947 (in short the Act), without

being referred for adjudication by the appropriate

Government, under sub-section (1) of section 10 of the

Act.

2. Arguments on maintainability of the dispute were

heard at the bar. Shri Sunil Kumar, authorized representative,

advanced arguments on behalf of the claimants. None was

there to advance arguments on behalf of the management.

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:—

3. As record projects, dispute under reference was raised

by the claimants, namely, Shri Kamal Kanwar, Shri Dinesh

Kumar, Shri Vijay Prakash, Shri Umed Singh, Shri Kishan

Kumar, Shri Moti Pal, Shri N. Prakash, Shri Jagdish, Shri

Prakash Chand, Shri Gopal, Shri Madan Lal, Shri Pradeep

Kumar, Shri Raju Sharma, Shri Azad Singh, Shri Ramesh

Kumar, Shri Naresh Kumar and Shri Kuldeep Singh under

sub section (2) of section 2A of the Act. Provisions of

section 2A of the Act contemplates that any dispute or

difference between the workman and his employer

connected with or arising out of discharge, dismissal,

retrenchment or termination shall be deemed to be an

industrial dispute, not withstanding that no other workman

nor any union of workmen is party to the dispute.

Language, used in section 2A of the Act, very clearly states

that in order to make a dispute an industrial dispute, it must

be sponsored by a union or a considerable number of

workmen in the establishment of the management. However,

any dispute between a workman and his employer, which

is connected with or arising out of his discharge, dismissal

retrenchment or termination shall be deemed to be an

industrial dispute. Language, used in section 2A of the

Act, very clearly states that in order to make a dispute an

industrial dispute, it must be sponsored by a union or a

considerable number of workmen in the establishment of

the management. However, any dispute between a workman

and his employer, which is connected with or arising out of

his discharge, dismissal retrenchment or termination shall

be deemed to be an industrial dispute.

4. The term "industrial dispute" has been defined by

sub-section (k) of section 2 of the Act to mean "any dispute

or difference between employers and employers, or between

employers and workmen, or between workmen and

workmen, which is connected with the employment or non-

employment or the terms of employment or with the

conditions of labour, of any person". The definition of

"Industrial dispute" referred above, can be divided into

four parts, viz. (i) factum of dispute, (2) parties to the dispute,

3076

THE GAZETTE OF INDIA : JUNE 22, 2013/ASADHA 1, 1935

[PART II—SEC. 3 (ii)]

viz.(a) employers and employers, (b) employer and

workmen, or (c) workmen and workmen, (3) subject matter

of the dispute, which should be connected with —(i)

employment or non employment, or (ii) terms of employment,

or (iii) condition of labour of any person, and (4) it should

relate to an "industry".

5. The definition of "industrial dispute" is worded in

very wide terms and unless they are narrowed by the

meaning given to word "workman" it would seem to include

all "employers", all "employments" and all "workmen",

whatever the nature or scope of the employment may be.

Therefore, except in the case where there can be a dispute

between the employers and employers and workmen and

workmen, one of the parties to an industrial dispute must

be an employee or a class of employees. The first point,

therefore, to be noted, perhaps self evident, is that the

phrase "employer and workmen", "the plural may include

singular on either side or any permutation of singular or

plural, the masculine including the feminine. In order,

therefore, to determine as to whether a controversy or

difference or a dispute is an "an industrial dispute" or not,

it must first be determined whether the workman concerned

or workmen sponsoring his cause satisfy the conditions of

clause (s) of section 2 of the Act. Here in the case, the

claimants project that they are workman within the meaning

of clause(s) of Section 2 of the Act.

6. A long line of decisions, handed down by the Apex

Court, had established that an individual dispute could

not per se be an industrial dispute, but could become one

if it was taken up by a trade union or a considerable number

of workmen of the establishment. This position of law

created hardship for individual workmen, who were

discharged, dismissed, retrenched or whose services were

otherwise terminated when they could not find support by

a union or any appreciable number of workman to espouse

their cause. Section 2A was engrafted in the Act by the

Amendment Act of 1965 and it has to be read as an

extension of the definition of industrial dispute contained

in clause (k) of section 2 of the Act. Thus by way of

extension of definition of industrial dispute, by insertion

of section 2A of the Act, the dispute of an individual

workman connected with or arising out of his discharge,

dismissal, retrenchment or otherwise termination of his

service by his employer has been brought within the ambit

of the Act.

7. Industrial workman has got a very restricted right to

move an industrial court when his service conditions have

been changed to his prejudice during pendancy of an

industrial dispute or he has been dismissed or discharged

during such pendancy, under section 33-A of the Act. He

has a right to recover certain dues from his employer under

section 33(C)(2) of the Act. An individual workman who

had been thrown out of employment had to rely for redress

only through aegis of the union or his co-workers where

there was no union. Sometimes he found it hard to proceed

further or get the union to take up his cause. Besides, there

are industries where so far no union have been formed.

Workers are still, in certain industries, unorganized.

Enactment of section 2A of the Act was taken up by the

Parliament solely with a view to modify the law to raise

industrial disputes relating to discharge, dismissal,

retrenchment or otherwise termination of services of the

workmen.

8. Classification between workmen unaided by union or

considerable number workmen and workman whose cause

is espoused by a union or considerable number of workmen

has been made by the legislature, when provisions of

section 2A were brought on the Statute Book. Thus, it is

evident that by way of extension of definition of industrial

dispute relating to discharge, dismissal, retrenchment or

termination of service of the workmen, Legislature provided

remedy to the workmen who is unaided by a union or

Considerable number of workmen. Section 2A of the Act

does not destroy the concept of industrial dispute and

collective dispute and such concept still remains as a major

class and in all other provisions of the Act. Consequently,

it is evident that excepting the dispute relating to dispute

of dismissal, discharge, retrenchment or otherwise

termination of services of a workman, a dispute is to be

espoused by the union or considerable number of workmen

to reach the status of an industrial dispute.

9. Even in cases of dispute between a workman and his

employer connected with or arising out of his discharge,

dismissal, retrenchment or termination of his service, it has

to pass through the procedure provided in the Act. For

raising a dispute, an employee has to raise a demand on

the employer and thereafter he has to raise the dispute

before the Conciliation Officer, who had to enter in to the

conciliation proceedings. In case conciliation proceedings

fails, the Conciliation Officer submits his report to the

appropriate Government. On consideration of the report,

so submitted by the Conciliation Officer, the appropriate

Government has to form an opinion that an industrial

disputes exists or is apprehended and refer that dispute to

an industrial adjudicator under sub-clause (c) or (d), as the

case may be, of sub-section (1) of section 10 of the Act.

Procedure, referred above, would take considerable time

and an employee had to wait for the decision of the

appropriate Government, making reference to an industrial

adjudicator for adjudication of the dispute. With a view to

do away with this hardship, Legislature, vide Amendment

Act No.24 of 2010, inserted sub section (2) and (3) in section

2A and re-numbered original section as sub section (1) in

order to enable the workman to approach an industrial

adjudicator for adjudication of his dispute, without it being

referred by the appropriate Government. For sake of

convenience, provisions of sub-section (2) and (3) of

section 2A of the Act are reproduced thus:

"(2) Notwithstanding anything contained in section

10, any such workman as is specified in sub-section

[Hkkx II—[k.M 3 (ii)]

Hkkjr dk jkti= % twu 22] 2013@vk"kk<+ 1] 1935

3077

(1) may make an application direct to Labour Court

or industrial Tribunal for adjudication of the dispute

referred to therein after expiry of forty five days from

the date he has made the application to the

Conciliation Officer of the appropriate Government

for conciliation of the dispute and in receipt of such

application, the Labour Court or Tribunal shall have

powers and jurisdiction to adjudicate upon the

dispute, as if it were a dispute referred to it by the

appropriate Government in accordance with the

provisions of this Act and all the provisions of this

Act shall apply in relation to such adjudication as

they apply in relation to an industrial dispute referred

to it by the appropriate Government.

(3) The application referred to in sub-section (2) shall

be made to the Labour Court or Tribunal before the

expiry of three years from the date of discharge,

dismissal, retrenchment or otherwise termination of

service as specified in sub-section (1)."

10. Bare perusal of sub section (3) of section 2A of the

Act makes it clear that an application for adjudication of an

industrial dispute, relating to discharge, dismissal,

retrenchment or termination of his service can be moved

by an employee before expiry of three years from the date

of his discharge, dismissal, retrenchment or otherwise

termination of service, as the case may be.

11. Provisions of sub section (2) of section 2A of the

Act empowers a workman to move an application before

an industrial adjudicator for adjudication of his dispute,

after expiry of 45 days from the date he made such

application before the Conciliation Officer. On receipt of

such application, the industrial adjudicator shall have

powers and jurisdiction to adjudicate the dispute as if it

were a dispute referred to it by the appropriate Government,

in accordance with provisions of the Act. Thus, it is evident

that before moving an application before an Industrial

Adjudicator, the workman has to approach the Conciliation

Officer for conciliation of his dispute. In case no settlement

is arrived at or conciliation proceedings goes beyond a

period of 45 days from the date the workman had moved

the application to the Conciliation officer, he may approach

the Industrial Adjudicator for adjudication of his dispute,

without being referred by the appropriate Government

under the provisions of the Act. Consequently, it is evident

that before approaching an Industrial Adjudicator, workman

whose services have been discharged, dismissed,

retrenched or terminated by his employer, shall have to

approach the Conciliation Officer and wait for expiry of a

period of 45 days, in case no settlement arrived between

them. Obligation to approach the Conciliation Officer and

allow him to enter into conciliation proceedings are

mandatory. It is also obligatory on the workman to wait for

a period of 45 days and only thereafter he can seek

indulgence of an industrial adjudicator for adjudication of

his dispute. In case he opts not to approach the Conciliation

Officer or fails to wait for a period of 45 days from the date

of moving his application, the Industrial Adjudicator will

acquire no jurisdiction to entertain the dispute.

12. Out of facts presented by the claimants, it emerged

over the record that their services were disengaged by the

Corporation in January 1999/April 2004/07.03.2004 and

03.08.2008 respectively. Notice of demand was served on

the Corporation on 29.10.2011, wherein facts relating to

termination of their services on above dates have been

detailed. Consequently, they project a case of termination

of their services by the Corporation in January 1999/April

2004/07.03.2004 and 03.08.2008. For approaching this

Tribunal, under provisions of sub-section (2) of section

2A of the Act, limitation of three years from the date of

discharge, dismissal, retrenchment or otherwise termination

of service of an employee has been imposed by the

legislature. Thus, it is apparent that the claiments could

have approached this Tribunal under sub-section (2) of

section 2A of the Act, till January 2002/April 2007/

06.03.2007/02.08.2011 only. As is evident, claim is preferred

on 13.5.2013, that is much beyond the period of limitation.

Under these circumstances, this Tribunal cannot invoke

its jurisdiction for adjudication of the dispute.

13. Since the dispute has been raised beyond the period

of limitation, the Tribunal cannot invoke its jurisdiction to

entertain it. Under these circumstances, the Tribunal is

constrained •to brush aside the claim statement, presented

by the claimants. Accordingly, their claim is dismissed,

being barred by time. An award is, accordingly, passed. It

be sent to the appropriate Government for publication.

Dated : 20-05-2013

Dr. R. K. YADAV, Presiding Officer

ubZ fnYyh] 28 ebZ] 2013

dk-vk- 1172-—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947

dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj eSllZ uqekyhx<+

eSllZ uqekyhx<+

fjQkbZujh fyfeVsM vle

fjQkbZujh fyfeVsM vle ds izca/kra= ds lac) fu;kstdksa vkSj muds

deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh;

ljdkj vkS|ksfxd vf/kdj.k@Je U;k;ky; xkSgkVh ds iapkV ¼lanHkZ

¼lanHkZ

la[;k 17@2013½

la[;k 17@2013½ izdkf'kr djrh gS tks dsUnzh; ljdkj dks 27&5&2013

dks izkIr gqvk FkkA

[la- ,y&30011@61@2012&vkbZ vkj¼,e½]

tksgu rksiuks] voj lfpo

New Delhi, the 28th May, 2013

S.O. 1172.—In pursuance of Section 17 of the Industrial

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

hereby publishes the award (Ref. No. 17/2013) of the Central

Government Industrial Tribunal/Labour Court Guwahati

3078

THE GAZETTE OF INDIA : JUNE 22, 2013/ASADHA 1, 1935

[PART II—SEC. 3 (ii)]

now as shown in the Annexure in the Industrial Dispute

between the employers in relation to the management of

Numligarh Refinery Ltd. Assam and their workman, which

was received by the Central Government on 27/05/2013.

[No. L-30011/61/2012-IR(M)]

JOHAN TOPNO, Under Secy.

ANNEXURE

IN THE CENTRAL GOVT. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT,

GUWAHATI, ASSAM.

Present : Sri L.C.Dey, M.A.,LL.B.,

Presiding Officer,

CGIT-cum-Labour Court, Guwahati.

Ref. Case No. 17 of 2013.

In the matter of an Industrial Dispute between:

The President/The General Secretary, Numaligarh

Refinery Driver's Union, Numaligarh, Golghat,

Assam.

Versus

The Management of Numaligarh Refinery Ltd.,

Numaligarh Complex, Golghat, Assam.

APPEARANCES

For the Workman.

Mr. Jiban Chandra

Gogoi,

President of the Union.

Mr. Ramlagan Kumar,

General

Secretary of

the Union.

For the Management:

Mr. Kajal Saikia,

Chief Manager ( HR),

Numaligarh Refinery Ltd.

Date of Award: 22.03.13.

AWARD

1. This Reference is arising out of an Industrial Dispute

raised by M/S Numaligarh Refinery Driver's Union,

Numaligarh, Golghat in respect of revised rates of wages

and other benefits.

2. On receipt of the order No.L-30011/61/2012-IR(M)

dated 04.02.2013 from the Ministry of Labour &

Employment, Government of India, New Delhi, this

reference has been registered and notices were issued upon

both the parties. The schedule of this Reference is as

under:

SCHEDULE

"Whether the action of the management of

Numaligarh Refinery Ltd., in discontinuing the

revised rates of wages and other benefits under the

Memorandum of Settlement dated 26.09.2011, is legal

and justified? What relief the workmen are entitled

to?"

2. Accordingly the General Manager (Operation)

M/S Numaligarh Refinery Ltd. Numaligarh appeared

through his authorized representative Mr. Bishajit Bora,

Manager (IR/PR) and the President and General Secretary,

MIS Numaligarh Refinery Driver's Union appeared

personally. Both the parties submitted petition No.255 dated

22.3.2013 jointly stating that the dispute involved in this

Reference Case has already been settled on 15.9.2012 in an

informal discussion between the Management and the

Union and the demand of the Union has already been

fulfilled in the light of the Memorandum of Settlement dated

26.9.2011 and as such, prayed for disposal of the Reference.

3. The representative of the Union Mr. Ramlagan Kumar,

the General Secretary of M/s Numaligarh Refinery Driver's

Union and Mr. B.Bora, the representative of the

Management i.e. Numaligarh Refinery Ltd. have been

examined as W.W.I and M.W.1 respectively.

4. I have also heard both the sides.

On perusal of the statements of both the W.W. 1 and

the Management Witness No.1, it appears that they have

deposed supporting the statements made in their joint

petition. The workman Witness No.1 in his statement said

that on 6.8.2012 a dispute arose between the Driver's Union,

Numaligarh Refinery Ltd. and the Management of the

Numaligarh Refinery Ltd. and the matter was referred to

the A.L.C. ( C), Dibrugarh who hold a discussion in presence

of both the parties for arriving at settlement but it failed

and thereafter the matter was referred to the Ministry of

Labour & Employment and accordingly this Reference case

was initiated. But during pendency of this Reference both

the parties discussed the matter informally on 15.9.2012

relating to the grievance of the Union and accordingly a

settlement arrived at between the parties as per the terms

and conditions of the said settlement. The grievance of the

Union relating to the revised wages has been satisfied and

they are reaping the benefit of the said settlement. As such,

the Union is not interested to proceed with this Reference

and they have also no objection if the Reference is disposed

and the necessary order passed by this Tribunal as deem

fit.

5. Mr. Bishajit Bora, the Management witness No.1 made

his statement supporting the contention of workman

witness No.l. categorically mentioned that he has been

authorized by the General Manager ( HR) to appear before

[Hkkx II—[k.M 3 (ii)]

Hkkjr dk jkti= % twu 22] 2013@vk"kk<+ 1] 1935

3079

this Tribunal representing the Numaligarh Refinery Ltd.

He also mentioned that this Industrial Dispute arose

between the Management NRL and M/s Numaligarh

Refinery Driver's Union as regards payment of wages and

during pendency of this proceeding the dispute has been

settled up amicably in an informal discussion took place

between both the parties on 15.9.2012. He also stated that

since the matter has been settled up amicably with

satisfaction of the Union as well as the Management, the

Management has no objection to dispose of the case

accordingly.

6. From the deposition of both the sides as mentioned

above and the Schedule of the Reference, it appears that

the dispute between the Union and the Management arose

regarding the revised rate of wages and other benefits

under the Memorandum of settlement dated 26.9.2011.

During the pendency of this proceeding both the parties

have settled the dispute amicably holding an informal

discussion on 15.9.2012; and as per the terms of settlement

the demands of the Union have been fulfilled and the

workers are also enjoying the benefits of the aforesaid

settlement arrived at on 15.9.2012 since the dispute has

been settled up amicably and both the parties are

maintaining good relationship, in my opinion the Court

should not stand as a hurdle between the parties.

7. In the result, this Reference is disposed of on

compromise awarding no relief. No cost is also awarded.

Send the no relief award to the Government as per

procedure.

Given under my hand and seal of this Court on this

22nd day of March,2013, at Guwahati.

L.C. DEY, Presiding Officer

ubZ fnYyh] 28 ebZ] 2013

dk-vk- 1173-—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk 14½

dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj Hkkjrh; LVsV cSad ds

izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k esa

fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k fnYyh

ds iapkV ¼lanHkZ la[;k 148@2011½ dks izdkf'kr djrh gS] tks dsUnzh;

ljdkj dks izkIr gqvk FkkA

[la- ,y&12012@293@1997&vkbZ vkj ¼ch&I½]

lqefr ldykuh] vuqHkkx vf/kdkjh

New Delhi, the 28th May, 2013

S.O. 1173.—In pursuance of Section 17 of the Industrial

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

hereby publishes the Award (Ref. 148/2011) of the Central

Government Industrial Tribunal-cum-Labour Court

No. 1, Delhi 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 22-05-2013.

[No. L-12012/293/1997-IR(B-I)]

SUMATI SAKLANI, Section Officer

ANNEXURE

BEFORE DR. R.K.YADAV, PRESIDING OFFICER,

CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL NO.1, KARKARDOOMA

COURTS COMPLEX, DELHI.

I.D. No.148/2011

Sh.L.S. Parmar

S/o Late Sh.S.S. Parmar,

R/o VPO Nanoan,

Tehsil Palampur,

District Kangra,

Himachal Pradesh.

.....Workman

Versus

The Dy. General Manager,

State Bank of India,

Delhi Zonal Office, 11,

Sansad Marg, New Delhi.

.....Management

AWARD

On 21.09.1995, Dr. L.C. Sharma approached Delhi Cantt.

Branch of State Bank of India (in short the Bank) to deposit

provident fund amount in respect of Sanjay Hospital &

Maternity Centre. He tendered vouchers to Shri L.S. Parmar,

Clerk, working in the said branch of the Bank. Shri Parmar

pointed out some deficiencies in those vouchers.

Dr. Sharma removed some of discrepancies but could not

make those vouchers in order. Shri Parmar refused to accept

those vouchers, claiming that the vouchers were undated,

unsigned and incomplete in particulars. Dr. Sharma

approached the Branch Manager, who sent officiating

jamadar alongwith Dr. Sharma to the seat of Shri Parmar.

Shri Parmar still insisted on not to accept those vouchers.

Written instruction on a slip was sent by the Branch

Manager, but to no avail. Ultimately, he personally reached

the seat of Shri Parmar but despite directions of the Branch

Manager, Shri Parmar refused to accept those vouchers.

2. Memo dated 28.09.1995 was served upon Shri Parmar,

calling upon him to show cause as to why action should

not be initiated against him. His reply was found not to be

satisfactory. Charge sheet dated 17.10.1995 was served on

Shri Parmar. Reply to the charge sheet was not found to be

satisfactory, hence a domestic enquiry was constituted to

look into truth of the charges. Shri P.K. Khanna was

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[PART II—SEC. 3 (ii)]

appointed as Enquiry Officer. Shri Parmar participated in

the enquiry and on conclusion of the proceedings, the

Enquiry Officer submitted his report to the Disciplinary

Authority. The Disciplinary Authority concurred with the

findings of the Enquiry Officer and awarded punishment

of stoppage of annual increments for July 1996 and 1997 ,

which had the effect of postponing his future increments.

3. Appeal preferred by Shri Parmar came to be dismissed.

Shri Pamar aproached the State Bank of India Staff

Association (in short the Association) redressal of his

grievance. The Association took up his cause and raised a

demand on the Bank for release of increments in favour of

Shri Parmar, which demand was not conceded to. Ultimately,

the Association approached the Conciliation Officer. Since

the Bank contested the claim preferred by the Association,

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. L12012/293/

97-IR(B-I), New Delhi dated 22.07.1998 with following terms:

"Whether the action of the management of State Bank

of India in inflicting punishment of stoppage of

increment for two years to Shri L.S. Parmar, Assistant

Accountant, State Bank of India, Subroto Park branch

is just, fair and legal? If not, what relief the concerned

workman is entitled to?"

4. Claim statement was filed by the claimant, namely,

Shri L.S. Parmar, stating that he was served with a memo

dated 28.09.1995 alleging his misbehaviour with Dr. L.C.

Sharma, who had come to the branch to deposit provident

fund of Sanjay Hospital & Maternity Centre. In the memo it

was also stated that since the Branch Manager was

discussing some official matter with Manager (Personnel)

and had observed Dr. Sharma going from one counter to

another, officiating jamadar was asked to accompany him

to the counter manned by the claimant. On his refusal,

written instructions were also sent in spite of which the

claimant had not accepted the vouchers.

5. Charge sheet dated 17.10.1995 was served on him,

alleging that the instruction conveyed by the Branch

Manager through officiating jamadar were not obeyed. The

Branch Manager, mentioned in the charge sheet, was in

fact the Assistant General Manager himself, who was the

Disciplinary Authority as well. The Association wrote to

the Chief General Manager, stating that Shri Grover, the

Disciplinary Authority/Branch Manager/Assistant General

Manager, was the complainant himself, hence being an

interested party he was not competent to become a judge

in his own case. The enquiry was a sham. The findings

recorded by the Enquiry Officer were perverse, based on

his assumptions and surmises. It was not appreciated by

the Enquiry Officer that checking of vouchers was a

supervisory function, which function the claimant was not

supposed to discharge, being a clerk. The punishment was

awarded to Shri Parmar on the last day of his service, by

the Disciplinary Authority without either providing a copy

of findings of the Enquiry Officer or affording an

opportunity of personal hearing. Therefore, punishment

inflicted is void, unjust, unfair and illegal, hence deserves

to be quashed, pleads the claimant.

6. Claim was demurred by the Bank stating that

Shri Parmar mis-conducted himself by refusing to attend to

a customer. Dr. L.C. Sharma, a customer, approached the

claimant to deposit certain amount of provident fund of

Sanjay Hospital & Maternity Centre. The claimant, despite

repeated requests by the customer as well as personal

requests by the Branch Manager, refused to accept the

vouchers and misbehaved with him. Good customer service

is the back bone of working of the Bank. The whole edifice

of banking institution is built on cordial principle of excellent

customer service. Shri Parmar was punished after holding

a fair and proper enquiry. The Enquiry Officer granted full

opportunity to the claimant to defend himself. The claimant

was granted personal hearing to explain as to why proposed

punishment of stoppage of annual increments for two years

should not be inflicted. However, instead of attending

personal hearing, the claimant preferred to submit written

pleadings. On consideration of facts in entirety, the

Disciplinary Authority found no reason to change the

proposed punishment. The Appellate Authority also found

no reason to interfere with the decision of the Disciplinary

Authority. Contention of the claimant that Shri Grover, the

Disciplinary Authority, was a complaint and biased person

is unfounded, since he was not the Enquiry Officer. The

Enquiry Officer was an independent, unbiased and

uninterested person, who found the charges proved against

the claimant. Further, Shri Grover did not appear as a

witness in the enquiry nor he influenced the enquiry in any

manner. The punishment awarded to the claimant is just,

fair, legal and commensurate to his misconduct. Hence, the

reference may be answered in favour of the management,

pleads the Bank.

7. On pleadings of the parties, following issues were

settled by my Id. predecessor:

(1) Whether the enquiry is fair and proper?

(2) Relief.

8. Vide order No.Z-22019/6/2007/IR(C-II), New Delhi

dated 11.02.2008, the case was transferred to Central

Government Industrial Tribunal No.2, New Delhi, for

adjudication by the appropriate Government. It was

retransferred to this Tribunal for adjudication, vide order

No.Z-22019/6/2007-IR(C-II), New Delhi dated 30.03.2011,

by the appropriate Government.

9. On consideration of facts testified by the claimant

and those detailed by Shri S.K. Ramachandran, issue No.1

[Hkkx II—[k.M 3 (ii)]

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3081

was answered in favour of the claimant and against the

Bank, vide order dated 06.09.2011.

10. Since 29.8.2011 till 13.03.2013 more than reasonable

opportunities were given to the Bank to lead evidence to

prove misconduct of the claimant. No witnesses were

examined by the Bank to prove misconduct of the claimant.

Claimant had examined himself in support of his claim.

11. Arguments were advanced at the bar by the claimant.

Shri Sunil Sehra, Assistant Manager, presented facts on

behalf of the Bank. 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:—

12. As pointed out above, the enquiry conducted by

the Bank against the claimant was found to be unjust, unfair

and illegal. To prove misconduct, the Bank had not lead

any evidence. On the other hand Shri Parmar tendered his

affidavit Ex.WW1/B as evidence. In Ex.WW1/B the

claimant presents that the charge sheet was served upon

him by the Bank. He submitted his reply to the charge

sheet, which was not considered. Enquiry Officer was

appointed and he participated in the enquiry. He examined

witness in his defence and the Enquiry Officer recorded

his report, which was perverse. He went on the detail that

he was not supposed to accept incomple vouchers,

presented by Dr.L.C.Sharma. According to him, findings

recorded by the Enquiry Officer were based on imagination

and presumption. Facts unfolded by the claimant were not

assailed by and on behalf of the Bank.

13. When no evidence was adduced by the Bank, to

prove misconduct of the claimant, question for

consideration would be as to what material the Tribunal

shall consider for adjudication of the dispute, referred by

the appropriate Government. Such a question came up for

consideration before the Apex Court in Workmen of Fire

Stone Tyre & Rubber Company of India (Pvt.) Ltd. [1973

(1) LLJ 278] wherein the Court ruled that the expression

"materials on record" used in section 11-A of the Industrial

Disputes Act, 1947 (in short the Act) is not confined to the

"materials which were available at the domestic enquiry".

The Court announced that the said expression referrers to

"material on record before the Tribunal" which will take in:

(i)

the evidence taken by the management at the

enquiry and the proceedings of the enquiry, or

(ii)

the above evidence and in addition any further

evidence led before the Tribunal, or

(iii)

evidence placed before the Tribunal for the first

time in support of the action taken by an employer

as well as the evidence adduced by the workmen

contra.

14. The record of the Tribunal begins with the order of

reference made by the appropriate Government to it for

adjudication of an industrial dispute. The charge-sheet,

explanation of the workman, the proceedings of the

domestic enquiry viz, pleadings, the oral and documentary

evidence of witnesses before the enquiry officer, the record

of the enquiry proceedings, the report of the enquiry officer,

the show-cause notice, if any, given by the employer to the

workmen before imposing the punishment and the reply of

the workman thereto and the final order of punishment,

came "on the record" before the Tribunal only by way of

evidence adduced in the course of adjudication

proceedings. Item No.1 comprehends these materials. Item

No.2 would, in addition to the material comprehended in

item No.1, comprehends the order of refrence, the pleadings

of the parties and any further evidence led before the

Tribunal in connection with the validity of the enquiry and

the bona fides of the employer in initiating the action and

inflicting the punishment and the record of the proceedings

before the Tribunal. Item No.3 refers to "invalid enquiry"

and "no enquiry" cases where the evidence is adduced

before the Tribunal, for the first time, in support of the

validity and justifiability of action taken by the management

and evidence adduced by the workman contra. This item

comprises of order of reference, pleading of parties and the

evidence adduced by the parties along with the record of

the proceedings before the Tribunal. By and large, these

items should be considered to be the "materials on record"

while considering the justification or otherwise of the

punishment awarded by the employer to his employee.

15. In the light of above legal proposition, this Tribunal

is obliged to consider whether misconduct has been proved

by the Bank, besides the question as to whether proved

misconduct justifies the punishment awarded to the

workman. At the cost of repetition it is said that the enquiry

conducted by the Bank was found to be unjust, unfair and

illegal. In workmen of Tanganagaon Tea Estate [1987 (II)

LLJ 491] it has been ruled that in a case where the enquiry

has been found to be invalid it would not be permissible to

refer to and reply on the evidence recorded in the domestic

enquiry proceedings. When an enquiry is held to be unjust,

unfair and illegal, the employer has right to satisfy the

Tribunal with respect to validity and justifiability of

punishment awarded to the workmen. Though opportunity

was given to the Bank but no evidence was adduced to

prove misconduct of the claimant. Evidence recorded

during domestic enquiry can not be relied on, at this

juncture.

16. Since no evidence is there to prove misconduct of

the claimant, it cannot be concluded that the Bank has

been ask to establish lapses on the part of the former. Facts

testified by the claimant go to establish that vouchers

submitted by Dr. L.C. Sharma were unsigned, undated and

incomplete. In such a situation the claimant was justified in

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[PART II—SEC. 3 (ii)]

not accepting those vouchers. One cannot say that the

claimant was obliged to follow pre-checking procedure in

respect of incomplete, undated and unsigned vouchers.

Lack of evidence from the side of the Bank makes me to

comment that the Bank has not been able to prove that the

claimant had committed a misconduct when he refused to

obliged Dr. Sharma to accept those vouchers. It is not the

case of the Bank that the claimant was instructed to get

those voucher signed and complete in all respect from

Dr. L.C. Sharma and thereafter check those vouchers and

to transmit the same to the cashier for acceptance of cash.

Resultantly it is announced that charges could not be

proved against the claimant.

17. When charges remained unproved, punishment of

stoppage of annual increments falling due in July 1996 and

1997, with effect of postponing future increments of the

claimant cannot be held to be justified. When punishment

awarded to the claimant is found to be unjustified and

improper, it is ordered that the punishment awarded to the

claimant shall have no effect at all. The claimant shall enjoy

benefit of his service in the manner as if no punishment

was imposed upon him.

18. An award is, accordingly, passed in favour of the

claimant and against the Bank. It be sent to the appropriate

Government for publication.

Dated: 01-04-2013

Dr. R. K. YADAV, Presiding Officer

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New Delhi, the 29th May, 2013

S.O. 1174.—In pursuance of Section 17 of the Industrial

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

hereby publishes the Award (Ref. 8/2010) of the Cent. Govt.

Indus. Tribunal-cum-Labour Court, GUWAHATI as shown

in the Annexure, in the industrial dispute between the

management of N.F. Railway, Maligaon, and their workmen,

received by the Central Government on 24/05/2013.

[N. L-41011/71/2010-IR (B-I)]

SUMATI SAKLANI, Section Officer

ANNEXURE

IN THE CENTRAL GOVT. INDUSTRIAL TRIBUNAL-

CUM-LABOUR COURT, GUWAHATI, ASSAM

Present:

Shri L. C. Dey, M.A., LL.B.,

Presiding Officer,

CGIT-cum-Labour Court, Guwahati.

In the matter of an Industrial Dispute

between:

The Management N.F. Railway,

Maligaon, Guwahati.

Versus

Their Workman Sri Dipak Ghose.

REF. CASE NO. 08 OF 2010.

Appearances

For the Management :

Mr. S.N. Choudhury, Advocate.

For the Workman : Mrs. M. Bora, Advocate.

Mr. I.C. Gogoi, Advocate.

Date of Award : 30-04-2013

1. This Reference Case was initiated on an Industrial

Dispute raised between the Management of N.F. Railway

and their workman which was referred by the Ministry of

Labour & Employment. Government of India, vide their

Order No. L-41011/71/2010-IR(B-I); Dated: 02-06-2010. The

Schedule of the Reference is as under :

SCHEDULE

“Whether the action of the management of General

Manager (P), N.F. Railway, Guwahati in terminating

the services of Shri Deepak Ghose vide letter No. E/

WW 7/III/10B(Elec.)/Pt.III, dated 20/02/2008 is legal

and justified? If not, what relief the workman is

entitled to?”

2. After registration of this Reference, the notices were

served upon both the parties and the workman appeared

through his Union and learned Advocate, while the

Management is also appeared through their learned

Advocate. Both the parties submitted their claim statement/

Written statement in support of their respective cases.

3. The case of the workman, in short, is that the workman

was appointed as Substitute Emergency Peon in the Pay

Scale of Rs. 2550-3200/- per month vide letter No. E/227/III/

108/(Elec.)2 dated 24.11.2005 issued by the General

Manager (P), Maligaon. Accordingly the workman joined

his duties on 24.11.2005 as Substitute Emergency Peon

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3083

attached to Mr. Ranjit Mitra, Chief Electrical Engineer, N.F.

Railway, Maligaon. As per the prevailing nature of

engagement of Substitute Emergency Peon the initial

appointment was made for three months only but extended

for further period depending on the satisfaction of the

officer concerned who is to certify the satisfactory service

of the Substitute Emergency Peon serving under whom at

the end of 90 days of service. On completion of continuous

service of 120 days to the satisfaction of the Chief Electrical

Engineer, N.F.Railway, Maligaon the workman was given

the status of temporary Railway Employee with effect from

25.3.06 vide letter No.E/227/III/108(Elec) Dated 03.05.2006.

All on a sudden the Management of N.F. Railway

discharged the workman from service with effect from

12.2.2008 by an order dated 20.2.2008 vide letter No.E/227/

III/108/(Elec) PT.III issued by Senior Personnel Officer/

Traffic & Electrical, N.F. Railway without following the due

procedure as established by law and the relevant Railway

Rules framed there under. The said discharge of the

workman was by way of termination from service with one

month's pay in lieu of one month's notice and it was also

mentioned in the said termination letter that the workman

was entitled to retrenchment compensation @ 15 days

wages for each completed year of service as due u/s 25

F(b) of the Industrial Dispute Act. It is mentioned by the

workman that the note of dissatisfaction of the concerned

officer was dated 12.2.08 when the workman has already

attained temporary status on 25.3.06 and his service was

continued for more than 10 months; and the termination

order was not acted upon by notice pay and the

retrenchment compensation due to the workman at the

material time. Such an act of the Management is direct

violation of rules and standard norms and practice required

to be followed by the Railway Management. The workman

represented to the Authorities his grievance through an

Appeal on 20.3.08 prying for reinstatement challenging the

validity of the discharge. Thereafter the workman submitted

two appeals to the Additional General Manager,

N.F.Railway. But the Management in their letter No.E/227/

III/108/(Elec)/Pt III dated 11.06.2008 hold that the workman

was terminated from service observing the rules under the

Rule 301(1) of Indian Railway Establishment Code, Volume-

1, 1985 Edition and the workman was not terminated due to

reduction in establishment and therefore provision of

Section 25G of I.D. Act, 1947 would not apply to the case

as the workman was terminated on the ground of

unsatisfactory work as reported by the officer with whom

he was attached.

The workman alleged that he was never served with

any notice expressing dissatisfaction over his service nor

given any opportunity to offer his defence against the

allegation of unsatisfactory service since he was eligible

to be entitled to all the benefits as admissible to temporary

staff including the protection of being heard before

termination of his service after attaining temporary status.

Thus the management applied two exclusive Provisions of

law/Rule in order to deprive the workman from his right to

retain his job and the said Provisions are Industrial Dispute

Act and the Rule 301 of Indian Railway Establishment Code

Volume-1 1985 Edition. It is also mentioned by the workman

that according to Railway Establishment Rules, the

substitute who has been in 4 months continuous service

shall be entitled to all the rights and privileges admissible

to temporary Railway servants vide R.B. No. E(NG) 11/77/

SB 37 of 24.10.1976 and the substitute who have already

acquired temporary status should be immediately screened

for empanelment and their services should not be artificially

broken merely to deprive him from the benefit of attaining

temporary status by dint of his labour. The workman further

submitted that the cause of termination was penal, therefore

it attracts the provisions of Article 311 of the Constitution

of India and as per provision temporary servants are also

entitled to the protection of Article 311(2) of the Constitution

in the same manner as permanent Government servant if

the Government takes action against them by meeting them

out of one of the three punishments i.e. dismissal, removal

or reduction in rank. It is also pointed out by the workman

that before discharging him the Authority should have

examined about the question of his suitability of his service

to be continued, and at least to give him a chance to explain.

But without following the procedure the management

utilizing the power conferred on the authority without

considering the Rules and Natural Justice punished the

workman arbitrarily and acted with ego without second

thought about the stigma the workman was not to carry for

his alleged unsatisfactory service. The workman also did

not know about the allegation of unsatisfactory service

against him as no notice was served upon him which is

violative to the Principle of Natural Justice and

unreasonable. Therefore, the action of the management is

of total miscarriage of justice.

The Union also by filing an Addl. Written Statement

denied the contention of the management amongst others,

regarding giving of opportunity to the workman to be

absorbed in Railway Group-D post and stated that the said

averment of the management is not relevant as the

workman's category of Substitute Emergency Peon is

related to the permanent cadre of Peon only and not to the

Group-D post as Substitute Emergency Peon holds his

post as a substitute till it is filled by regular appointment

and hence, there is no question of deputing him to field

units subject to vacancies. The Union also denied the

contention of the management that the service of the

workman was governed by the various provisions of

Industrial Dispute Act,1947 as the management has made

this statement overshadowing the Railway Rules since the

management has not produced the Railway's own internal

rules under which it paid the retrenchment compensation.

Further contention of the Union is that the workman was

debarred from working with effect from 12.2.08 and the

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THE GAZETTE OF INDIA : JUNE 22, 2013/ASADHA 1, 1935

[PART II—SEC. 3 (ii)]

termination order was issued on 20.02.08 and hence by

disallowing the workman to perform his duties without

termination order is illegal. Hence, the workman prayed for

granting him reinstatement with effect from 12.2.08 and

absorption in the open line organization including Electrical

Department from his Emergency Peon Unit under Chief

Electrical Engineer, N.F. Railway from the date of completing

3 years of service taking the lost time since his illegal

termination eligible to be counted as continuous service

required to be for screening consequential benefits of

normal promotion, if any, under the policy of cadre

restructuring maintaining the seniority.

4. The Management submitted their written statement,

stating inter-alia, that Sri Dipak Ghose was engaged as

Substitute Emergency Peon with effect from 24.11.05 and

his service was terminated with effect from 12.2.08 in terms

of Rule 301(1) of IREC Vol 1, 1985 edition and as per the

existing practice Emergency Peon have to work for

continuous period of 3 years before being opt for Group-D

post in the field Unit and is deputed to that Unit as per the

vacancy available after due screening by the Screening

Committee; and as the workman did not complete 3 years

of continuous service and the officer concerned under

whom his service was placed had expressed his

dissatisfaction and accordingly he was terminated from

his service in terms of the aforesaid Rules. It is also stated

that the seniority of a Substitute Emergency Peon is fixed

from the date of the approval of the recommendation of the

Screening Committee after completion of 3 years of

continuous service and hence, the question of assigning

the workman any seniority does not arise. The Management

added that the termination of service of the workman was

due to his unsatisfactory work and not under Section 25 (f)

of the I.D. Act, 1947 and hence, termination order can not

be treated as the order of retrenchment warranting

compliance of Section 25 (f) of the Act since the workman

was not retrenched as a surplus worker. However, the

workman was paid compensation following termination of

his service although there was no such legal obligation

and the payment was made in terms of the Railways own

internal Rule. It is also mentioned by the management that

the workman refused to accept the termination letter

intentionally and he was terminated on the basis of

displeasure note of Chief Electrical Engineer, Maligaon vide

No. EL/E/59/8 dated 12.2.08 issued on 12.2.08 although

termination was issued on 20.2.08. Hence, there is no

violation of rules. It is averred that the workman engaged

as Substitute Emergency Peon attains the Status of

Temporary Railway Servants after successful screening

on completion of 3 years continuous service, and that the

temporary status awarded to the Substitute Emergency

Peon on completion of 120 days does not mean that he is a

temporary Railway servant but only the status is granted

for grant of some facilities as admissible to a temporary

Railway Servants.

5. The Union examined 2 witnesses including the

workman while the Management examined Shri Binode

Chandra Kumar, Chief Office Superintendent, N. F. Railway

Headquarter, Maligaon. Both the parties have produced

their documents in support of their respective cases.

6. I have heard argument from both the sides at length.

7. The workman Sri Dipak Ghose in his evidence

categorically mentioned that the officer with whom he was

entrusted as Substitute Emergency Peon has to certify the

satisfactory service of the Substitute Emergency Peon

serving under him at the end of 90 days of service of the

Emergency Peon and thereafter his service is extended

further; and in adherence to the system the workman's

service was extended after the officer concerned certified

his service as satisfactory. He also mentioned that after his

discharge from service he was not paid one month's pay in

lieu of one month's notice and the retrenchment

compensation as mentioned in Exhibit-3. The workman

again mentioned that after granting him temporary status

on 25.3.06 his service was continued for more than

10 months till his termination; and thereafter he appealed

before the management on 20.3.08 vide Exhibit-4 for

reinstatement challenging the validity of the discharge

order. Finding no response the workman applied to

Additional General Manager, N.F.Railwy in a staff grievance

on 7.4.2008 vide Exhibit-5. Further contention of the

workman is that the management has applied two types of

mutually exclusive provisions i.e. the Provision of Rule

301(1) of Indian Railway Establishment Code, Vol-1, 1985

Edition and Section 25(g) of I.D.Act, 1947 in order to deprive

the workman his right to retain his job. During his cross-

examination the workman said that at the time of his

appointment he did not know nor did anybody inform him

about the nature of job and after his joining in the office of

the Chief Electrical Engineer, Maligaon he was taken to the

official residence of the Chief Electrical Engineer, Mr. Ranjit

Mitra and he was entrusted to work as Cook, Sweeper and

Cleaner and also to wash the cloth etc. of the wife of Mr.

Ranjit Mitra and in this way he had been discharging his

duties with all satisfaction of Mr. Ranjit Mitra, Chief

Electrical Engineer for about 2 years 2 months 27 days

continuously. He pointed out that there was no provision

for LPG service in the residence of the said Chief Electrical

Engineer and he used to cook all items by using electrical

heater. At that time one day while he was cooking fish due

to frequent power disruption he could not prepare the meal

in time, and in the mean time Mr. Ranjit Mitra came from his

duty for lunch and finding the meal not ready Mr. Mitra

along with his wife started abusing him with loud voice

using some filthy words like Dog, Bitch and also threatened

the workman to turn him out of the job forthwith. Then Mr.

Mitra called the staff of the office over phone and reported

them that the workman could not prepare meal and he did

not obey him and also did not perform his duty sincerely

and punctually. Thereafter the staff of the office of Chief

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3085

Electrical Engineer directed the workman to return to his

house then he awaited in front of the door of Mr. Ranjit

Mitra thinking that after some time Sri Mitra might me cool

down but all his efforts were in vain. Again on the same

day the workman came to the residence of Mr. Mitra about

5 P.M. and on return of Mr. R. Mitra, the workman begged

apology repeatedly but Mr. Mitra did not response to it

and entered into the house closing the door. On the next

day the workman also went to the residence of Mr. R. Mitra

about 7 A.M. along with his mother and rang the calling

bell while Mr. Mitra opened the door and the workman

begged apology folding his hands repeatedly but Mr. Mitra

seeing the workman with his mother, hearing his appeal did

not response rather he closed the door. Thereafter he went

to the office of the Chief Electrical Engineer and tried to

beg apology to Mr. Ranjit Mitra but the workman was not

allowed to enter into the chamber of Mr. Mitra. Thereafter

the workman used to attend the official residence of Mr. R.

Mitra regularly but he was not allowed to work. In this way

after lapse of some days on 20.2.08 the workman was served

with the letter terminating his service with effect from 12.2.08

with one month's pay in lieu of one month's notice.

Mr. Mridul Kumar Das, General Secretary, Rail Mazdoor

Union, N.F. Railway, Pandu adduced his evidence-on-

Affidavit in favour of the workman as W.W.-2. In his

evidence, Mr. M.K.Das mentioned that the workman was

appointed as Substitute Emergency Peon on 24.11.05 on

regular pay in the scale of Rs.2550-3200/- per month and

the substitutes are defined and their service conditions are

provided in Rule 1512 to 1516 of the Indian Railway

Establishment Manual, 1989 Edition, and in the Master

Circular on the appointment of Substitutes on the Railways

No.20, vide Exhibits-9,10 and 11 respectively. He also

mentioned that the order of discharge terminating the

service of the workman has hidden story and the

Management vide their letter No. E/227/III/108(Elect)/Pt.III

dated 04.02.09 ( marked as Exhibit-7) issued by the Assistant

Personnel Officer (Traffic) for General Manager (P),

N.F.Railway stating that the workman was terminated for

his unsatisfactory work. He added that the service of the

workman was governed by various provisions of Industrial

Dispute Act,1947 overriding Railway Rules, and every

termination from service is retrenchment but no

retrenchment compensation paid to the workman nor did

the management produce their own internal Rule and

acknowledgement receipt of retrenchment compensation

alleged to have been paid to the workman. Hence, the

management vitiated the process of termination of the

workman. He further deposed that the displeasure note of

the Chief Electrical Engineer was issued on 12.2.08 i.e.

beyond 120 days of the service of the workman who was

also barred from working with effect from 13.2.08 to 20.2.08

on which date the termination order was issued. As such,

the termination order was illegal and since the basis of

termination order being the displeasure expressed by the

Chief Electrical Engineer, N.F.Rilway, in case of temporary

status holding Railway service is untenable without taking

recourse of protection of Article 311 of the Constitution. It

is further contended by the W.W.2 that the management

has not adhered to the provision of their own Circular No.

E/205/0/RP-EMERGENCY PEON/PC/CON, Dated 15.02.1999

(Exhibit-11). In this connection he referred the decision of

Central Administrative Tribunal, Guwahati regarding

termination of Substitute Emergency Peon vide the order

of the CAT dated 30.9.2010 passed in O.A. No.85/2010

quashing the termination order in respect of Pradip Rajbhar.

8. According to the Management witness No.1 Mr.

Binode Chandra Kumar, the Chief Office Superintendent of

N.F.Railway Headquarter, Maligaon, who is acquainted with

the fact as well as the relevant documents in connection

with the instant proceeding, the workman Dipak Ghose

was appointed as Substitute Emergency Peon on 24.11.05

and on completion of 120 days the workman was granted

temporary status which was given for a continuous period.

After 2 years 2 months and 13/14 days of his service upon

displeasure note submitted by the officer concerned at

whose disposal the service of the workman was placed,

the workman was terminated from his service and at the

time of his termination the workman was paid one month's

notice pay and compensation @ 14 days wage. In his cross-

examination Mr. Binode Chandra Kumar mentioned that

the termination of the workman was not done on the basis

of the Circular dated 10.5.98 curtailing the percentage of

the strength of employers from 8% to 6%; and before his

termination on 12.2.08 the Management have not received

any adverse remark against the workman. He also added

that the workman was terminated without issuing any prior

notice for rectification or improvement of his error, if any,

and the workman had prospect of being selected in the

screening for Group-D if he would complete 3 years of his

service. He also said that he could not say if the payment

of one month's notice pay was made on 26.3.08, and that

the workman has been treated as retrenched person since

he has been paid retrenchment compensation. He also

could not recollect within how many days of removal of

workman the notice pay is required to be paid under Rule

301, Clause-I (Indian Railway Establishment Code).

9. From the evidence of both the sides as discussed

above, it appears that it is an admitted fact that the workman

Dipak Ghose was appointed as Substitute Emergency Peon

with effect from 24.11.05 and he was attached to Chief

Electrical Engineer ( in short GEE), N.F.Railway, vide Exhibit-1

and on completion of 120 days of continuous satisfactory

service he was granted temporary status with effect from

12.3.06 vide Exhibit-2. Subsequently the workman was

terminated from the service with effect from 12.2.08 vide

Memo No. E/227/III/108(Elec.) Pt.III, dt.20.2.08 (vide Exhibit-

3) on the ground of unsatisfactory service in terms of Rule

301(1) of Indian Railway Establishment Code, Volume-1,1985

edition, with one month's pay in lieu of one month notice

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[PART II—SEC. 3 (ii)]

and retrenchment compensation @ 15 days wages for each

completed year of service u/s 25(F) (b) of I.D. Act . Now the

pertinent question before this Tribunal is whether the

termination from service of the workman by the

Management is illegal. On perusal of the Rule 301 (I) of

Indian Railway Establishment Code, Volume (I) 1985 Edition,

it appears that the said Rule is applicable in case of

Temporary Railway Servant when a person without a lien

on a permanent post under Government is appointed to

hold a temporary post or to officiate in a permanent post,

he is not entitled to notice of the termination of his service

if such termination is due to the expiry of sanction to the

post which he holds or expiry of the officiating vacancy or

due to his compulsory retirement on account of mental or

physical incapacity or to his removal or dismissal as a

disciplinary measure after compliance with the provision

of Clause-2 of Article 311 of the Constitution of India; and

if the termination of his service is due to some other cause

he shall be entitled to one month's notice provided he was

engaged on a contract for a definite period and contract

does not provide for any other period of notice; and to a

notice of 14 days and if he was not engaged on a contract

Clause-6 of Rule 301 provides that notwithstanding

anything contained in Clauses-1, 2 and 4 of this Rule, if the

Railway servant or Apprentice is one to whom the

provisions of the Industrial Disputes Act 1947, apply, he

shall be entitled to notice or wage in lieu thereof in

accordance with the provisions of that Act. While the

service of Substitute Emergency Peon in N.F. Railway is

guided by the Rules and Regulation framed from time to

time for the purpose of N.F. Railway Administration. The

workman was not retrenched due to reduction of

establishment and the provisions of Section 25 (g) of I.D.

Act 1947 is not applicable in his case as it revealed from

statement of M.W.1 and in their letter issued by the Railway

Authority to the Regional Labour Commissioner( Central),

Government of India, Guwahati vide their No.E/227/III/

108(Elect)/Pt.III dated 04.02.09 proved as Exhibit-7. It is

also mentioned in the said letter as well as the evidence of

M.W.1 that the workman Sri Dipak Ghose was terminated

due to his unsatisfactory service as reported by the Officer

concerned with whom he was attached. However, the

workman Dipak Ghose was granted temporary status on

completion of 120 days of his continuous and satisfactory

service. The Rule 1512 of Indian Railway Establishment

Manual Volume-I (1989) (Exhibit-9) has defined substitutes

as " 'Substitutes' are persons engaged in Indian Railway

Establishments on regular scales of pay and allowances

applicable to posts against which they are employed. These

posts fall vacant on account of a railway servant being on

leave or due to non-availability of permanent or temporary

railway servants and which cannot be kept vacant". The

Rule 1515 of the said manual provided that Substitutes

should be afforded all the rights and privileges as may be

admissible to temporary railway servants, from time to time

on completion of four months continuous service. The

Master Circular on Appointment of substitutes on the

Railways No. E ( NG)II/90/SB/Master Circular dated 29.1.91

regarding substitutes (vide Exhibit-10) also provided that

the substitutes should be allowed all rights and privileges

as are admissible to the Temporary Railway employees on

completion of four months continuous service (Para-4.2);

and the substitutes who have acquired temporary status

should be screened by a Screening Committee and not by

Selection Board, constituted for this purpose before being

absorbed in regular Group-C (class-III) and Group-D

(class-IV) Posts (Para-5.1). Further the Railway Board's

letter No.E/205/0/RP-EMERGENCY PEON/PC/CON dated

15.2.99 vide (Exhibit-11) regarding Emergency Peon-Revised

Policy for engagement/retrenchment etc. shows that the

Railway Officer upto JAG under whom the Emergency Peon

exists are entitled to have emergency peon, and the officers

on joining duties with eligibility to operate the emergency

Peon attached to their posts will normally require to

continue the Emergency Peons who were working with

their predecessors. However, if the change of the incumbent

of Emergency Peon is felt necessary by the Officer newly

joining, the post, the same can be made only with the

approval of the General Manager to be communicated by

the Office of the Chief Personnel Officer; and the

appointment of Emergency Peon at the first instance will

be for a period of three months and will be extended further

on receipt of a certificate from the Controlling Officer that

the service of Emergency Peon are satisfactory and that

can be continued further. This Circular (Exhibit-11) also

provided that the engagement of fresh face as Emergency

Peon will require prior personal approval of the General

Manager (Part-A of the letter); Part-E, Clause-4 of the

aforesaid Railway Circular regarding procedure for notice

runs as follows:

"4. Procedure for paving Notice in lieu of Notice:

Payment of Notice Pay is a very important aspect and

the proper course of action is to be ensured to prepare the

bill beforehand and get it passed it from the Accounts.

When the bill reaches Cash Office, then only the termination

order is to be handed over to the concerned Emergency

Peon, whose services are sought to be terminated. In the

termination order, it should be indicated that the Emergency

Peon concerned should take his Notice Pay from the

concerned Cash Office. It is very important because unless

Notice Pay is given in lieu of Notice within 48 hours of

termination of service and the person concerned goes to

the CAT or Regional Labour Commissioner, the entire

process of termination of service may be declared null and

void. This is a very vital issue. It may be mentioned that

Court cases in regard to termination of services of

Emergency Peons largely originate from this aspect."

10. From the record as well as the evidence of both the

parties it appears that the workman Dipak Ghose was

disengaged from his service with effect from 12.2.08 while

the order was issued on 2.2.08 and there is nothing to

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3087

show that the notice pay and the retrenchment

compensation as mentioned in the termination letter marked

as Exhibit-3 has been received by the workman. The

Management witness also failed to mention the date of

alleged payment of notice pay and acknowledgement

receipt of payment by the workman. Further termination

order marked as Exhibit-3 appears to have been issued on

20.2.08 with retrospective effect from 12.2.08 retaining the

workman without allowing to perform his duty in violation

of the Railway Circular marked as Exhibits-9,10 and 11. As

such, action of the Management appears to be arbitrary

which is against the principle of Natural Justice and the

Provisions of the Constitution of India. Evidence of the

workman shows that the workman was not given any prior

notice before his termination nor he was served with any

caution letter for rectification or correction of his alleged

error or the cause of dissatisfaction for which he was

terminated from the service as alleged by the Management.

11. The workman categorically mentioned in his

evidence that one day while he was cooking food for lunch

using electric heater he was late in preparing the food due

to frequent power disruption, and on his arrival Sri R. Mitra,

Chief Electrical Engineer, N.F.Railway, Maligaon for lunch,

finding his meal not ready he along with his wife ( Mrs.

Mitra) started abusing the workman using filthy languages

and with threatening to put him out of job and immediately

called his office staff. After arrival of his staff the workman

was turned out of his service and thereafter the workman

attempted to beg apology on repeated occasions but the

officer concerned did not pay heed to it and in spite of his

reporting for duty at the residence of Mr. R. Mitra the

workman was not allowed to work till the date of receipt of

the termination letter on 20.2.08 further the representations

submitted by the workman before the appropriate forum of

the Railway authority were also not considered as alleged

by the workman.This testimony of the workman is un-

rebutted and unchallenged and hence, this story of the

workman behind his termination cannot be thrown away

and such an action of the Chief Electrical Engineer Mr. R.

Mitra appears to be arbitrary, unconstitutional and without

any jurisdiction.

12. It is pertinent to mention here that since the workman

has attained the status of temporary Railway Servant he

should be given an opportunity to rectify his alleged

activities which rendered unsatisfactory service and before

his termination. For the ends of natural justice he should

have been served with Show Cause as per Provisions of

Article 311(2) of the Constitution of India, although there

is no specific Provision in the Railway Boards Circular/

Mannual/Establishment Code for issuing notice to the

Temporary Railway employees before termination. In this

connection, I am inclined to rely upon the case of Sri Sita

Ram Sugar Co. Ltd. -Vrs. Union of India, reported in AIR

1990 SC 1227 wherein it was held as " Any act of repository

of power, whether legislative or administrative or quasi

judicial is open to challenge, if it is in conflict with the

Constitution or the governing Act or the general Principles

of the law of the land or if it is so arbitrary or unreasonable

that no fair minded authority could ever have made it". It is

also clear that the management has failed to pay the notice

pay within 48 hours of issuing of termination order which

was a post dated letter giving retrospective effect with

effect from 12.2.08 which is violative of the Railway Rules

(Para-E (3), Exhibit-11). The evidence of management along

with the Written Statement shows that there is no

explanation relating to dissatisfactory service of the

workman. It is also found that the workman was granted

temporary status on completion of 120 days of his service

which is sufficient enough to show that the temporary

status was granted finding the satisfactory service report

of the officer concerned with whom he was attached to.

Further the dissatisfaction report of the said officer issued

after the lapse of 8 days i.e. with effect from 12.2.08 to

20.2.08 casts sufficient doubt as to the genuineness and

propriety of issuing the said termination letter marked as

Exhibit-3. In this connection I would like to refer the case of

Krishnadevaraya Education Trust and another—vs—

L.A.Balakrishna, reported in AIR 2001 SC 253 that " if the

order on the face of it states that his services are being

terminated because his performance is not satisfactory,

the employer runs the risk of the allegation being made

that the order itself casts a stigma." Thus it is clear that

there is sufficient scope to arrive at a conclusion that the

action of the officer concerned in issuing the

dissatisfactions report is the result of after thought and

the termination of service of the workman is arbitrary as

well as violative of the direction of the Railway Board and

the principle of natural justice.

13. It is also revealed from the evidence of workman

witnesses as well as the management witness No.1 that the

Management has neither issued the notice and

retrenchment compensation nor paid notice pay to the

workman within the statutory period and as such, the said

action of the management is against the Rules, Order and

Manual of the Railway Board, marked as Exhibits-8,9,10

and 11, so far as the post of Substitute Emergency Peon is

concerned as well as the Provision of Section 25(F) of the

I.D. Act. In this regard Hon'ble Supreme Court decided in a

case reported in AIR 2010 SC 683 that the termination of

services of workman who worked for 240 days continuously

without break, without causing service of notice and making

payment of retrenchment compensation is illegal.

14. In view of the above discussion and having regard

to the decisions of the Hon'ble Supreme Court and the

Rules/Order/Manual of the Railway Board vide Exhibits-

8,9,10 & 11 and taking into account Provision of Section 25

(F) of the I.D. Act, the principle of Natural Justice as well as

the Provision of Article 311(2) of the Constitution of India,

it can safely be held that the Management of General

Manager (P), N.F.Railway, Maligaon, Guwahati has

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THE GAZETTE OF INDIA : JUNE 22, 2013/ASADHA 1, 1935

[PART II—SEC. 3 (ii)]

committed grave illegality and injustice in terminating the

services of the workman Sri Dipak Ghose vide letter

No.E/227/III/108(Elec.) Pt.III dated 20.2.08. Accordingly this

Reference case is decided in negative against the

Management.

15. Considering the facts and circumstances of the

case as well as the findings arrived at as above, it is

crystal clear that the workman Sri Dipak Ghose is entitled

to relief since there is nothing on record to show that

during the period of his disengagement the workman

had been engaged in other employment. In the result,

the workman is entitled to be reinstated as Substitute

Emergency Peon along with back wage @ 30% along

with consequential relief as per provision of Railway

Boards Order/Circulars.

Send the Award along with a soft copy of the same to

the Ministry as per procedure.

Given under my hand and seal of this Court on this

30th day of April, 2013 at Guwahati.

L. C. DEY, Presiding Officer

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New Delhi, the 29th May, 2013

S.O. 1175.—In pursuance of Section 17 of the Industrial

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

hereby publishes the Award (Ref. No. 52/11) of the Cent.

Govt. Indus. Tribunal-cum-Labour Court, No. 1, New Delhi

as shown in the Annexure, in the Industrial Dispute between

the management of State Bank of India and their workman,

received by the Central Government on 24-05-2013.

[No. L-13025/08/2001-IR(B-I)]

SUMATI SAKLANI, Section Officer

ANNEXURE

BEFORE DR. R. K. YADAV, PRESIDING OFFICER,

CENTRAL GOVT. INDUSTRIAL TRIBUNAL No. 1,

KARKARDOOMA COURTS COMPLEX: DELHI

I. D. No. 52/11

Shri Rajendra Singh

S/o Late Shri Ratan Singh,

C-5/57B, Keshav Puram,

New Delhi-110035.

.....Workman

Versus

The Regional Manager (Operations),

State Bank of India,

Delhi Zonal Office, Region 3,

11, Sansad Marg,

New Delhi-110001.

....Management

AWARD

A Messenger joined State Bank of India (in short the

bank) on 12.05.1980. In the year 2005, he was promoted as

Senior Assistant. He was placed under suspension on

08.12.2006. Chargesheet dated 12.11.2007 was served upon

him. Another chargesheet dated 12.11.2007 was also served

upon him. Replies submitted by the Senior Assistant were

found not to be satisfactory. A domestic enquiry was

constituted. He participated in the enquiry. Enquiry Officer

recorded findings against him. Disciplinary Authority

served notice calling upon him to showcause as to why

penalty of "dismissal without notice" should not be imposed

upon him. On consideration of his comments and record of

the enquiry, the Disciplinary Authority awarded

punishment of removal from service with superannuation

benefits to the Senior Assistant. Appeal preferred by him

came to be dismissed. He raised a demand vide notice dated

04.07.2011 calling upon the bank to reinstate him in service

with consequential benefits, which demand was not

conceded to.

2. The Senior Assistant preferred to raise an industrial

dispute before the Central Government Industrial Tribunal

No.II, New Delhi on 27.07.2011 under sub-section (2) of

section 2A of the Industrial Disputes Act, 1947 (in short

the Act). The dispute was registered and the bank was

called upon to file its written statement. The bank demurred

his claim pleading that the claimant committed misconduct

of financial irregularities and chargesheets dated 12.11.2007

and 04.06.2008 were served upon him. A domestic enquiry

was constituted and the Enquiry Officer gave all

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3089

opportunities to the claimant to defend himself. Principles

of natural justice were followed by the Enquiry Officer and

on conclusion of the enquiry, he submitted his report to

the Disciplinary Authority. The Disciplinary Authority

concurred with the findings of the Enquiry Officer and

called upon him to show cause as to why penalty of

dismissal from service without notice should not be awarded

to him. On consideration of the facts presented by the

claimant, besides record of the enquiry, the Disciplinary

Authority awarded penalty of removal from service with

superannuation benefits to the claiment vide order

07.05.2011. The bank projects that the punishment awarded

to the claimant commensurate with the gravity of charges

proved against him. There is no case for indulgence in

favour of the claimant.

3. Vide notification No.A-11016/3/2009-CLS-II, New Delhi

dated 03.04.2013, additional charge of the post of the

Presiding Officer, Central Government Industrial Tribunal

No.II, New Delhi, was assigned to the undersigned by the

appropriate Government and thus the case reached this

Tribunal for adjudication.

4. Arguments were heard at the bar. Ms. Kittu Bajaj,

authorized representative, advanced arguments on behalf

of the bank. None came forward on behalf of the claimant

to raise his submissions over the matter. My findings on

issues involved in the controversy are as follows:

5. As record projects, dispute under reference was raised

by the claimant under sub-section 2 of section 2A of the

Act. Provisions of section 2A of the Act contemplates that

any dispute or difference between the workman and his

employer connected with or arising out of discharge,

dismissal, retrenchment or termination shall be deemed to

be an industrial dispute, notwithstanding that no other

workman nor any union of workman is party to the dispute.

Language, used in section 2A of the Act, very clearly states

that in order to make a dispute an industrial dispute, it must

be sponsored by a union or a considerable number of

workmen in the establishment of the management. However,

any dispute between a workman and his employer, which

is connected with or arising out of his discharge, dismissal

retrenchment or termination shall be deemed to be an

industrial dispute.

6. A long line of decisions, handed down by the Apex

Court, had established that an individual dispute could

not per se be an industrial dispute, but could become one

if it was taken up by a trade union or a considerable number

of workmen of the establishment. This position of law

created hardship for individual workmen, who were

discharged, dismissed, retrenched or whose services were

otherwise terminated when they could not find support by

a union or any appreciable number of workman to espouse

their cause. Section 2A was engrafted in the Act by the

Amendment Act of 1965 and it has to be read as an

extension of the definition of industrial dispute contained

in clause (k) of section 2 of the Act. Thus by way of

extension of definition of industrial dispute, by insertion

of section 2A of the Act, the dispute of an individual

workman connected with or arising out of his discharge,

dismissal, retrenchment or otherwise termination of his

service by his employer has been brought within the ambit

of the Act.

7. Industrial workman has got a very restricted right to

move an industrial court when his service conditions have

been changed to his prejudice during pendancy of an

industrial dispute or he has been dismissed or discharged

during such pendancy, under section 33-A of the Act. He

has a right to recover certain dues from his employer under

section 33(C)(2) of the Act. An individual workman who

had been thrown out of employment had to rely for redress

only through aegis of the union or his co-workers where

there was no union. Sometimes he found it hard to proceed

further or get the union to take up his cause. Besides, there

are industries where so far no union have been formed.

Workers are still, in certain industries, unorganised.

Enactment of section 2A of the Act was taken up by the

Parliament solely with a view to modify the law to raise

industrial disputes relating to discharge, dismissal,

retrenchment or otherwise termination of services of the

workmen.

8. Classification between workmen unaided by union or

considerable number workmen and workman whose cause

is espoused by a union or considerable number of workmen

has been made by the legislature, when provisions of

section 2A were brought on the Statute Book. Thus, it is

evident that by way of extension of definition of industrial

dispute relating to discharge, dismissal, retrenchment or

termination of service of the workmen, Legislature provided

remedy to the workmen who is unaided by a union or

considerable number of workmen. Section 2A of the Act

does not destroy the concept of industrial dispute and

collective dispute and such concept still remains as a major

class and in all other provisions of the Act. Consequently,

it is evident that excepting the dispute relating to dispute

of dismissal, discharge, retrenchment or otherwise

termination of services of a workman, a dispute is to be

espoused by the union or considerable number of workmen

to reach the status of an industrial dispute.

9. Even in cases of dispute between a workman and his

employer connected with or arising out of his discharge,

dismissal, retrenchment or termination of his service, it has

to pass through the procedure provided in the Act. For

raising a dispute, an employee has to raise a demand on

the employer and thereafter he has to raise the dispute

before the Conciliation Officer, who had to enter into the

conciliation proceedings. In case conciliation proceedings

fails, the Conciliation Officer submits his report to the

appropriate Government. On consideration of the report,

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[PART II—SEC. 3 (ii)]

so submitted by the Conciliation Officer, the appropriate

Government has to form an opinion that an industrial

disputes exists or is apprehended and refer that dispute to

an industrial adjudicator under sub-clause (c) or (d), as the

case may be, of sub-section (1) of section 10 of the Act.

Procedure, referred above, would take considerable time

and an employee had to wait for the decision of the

appropriate Government, making reference to an industrial

adjudicator for adjudication of the dispute. With a view to

do away with this hardship, Legislature, vide Amendment

Act No. 24 of 2010, inserted sub-section (2) and (3) in section

2A and re-numbered original section as sub-section (1) in

order to enable the workman to approach an industrial

adjudicator for adjudication of his dispute, without it being

referred by the appropriate Government. For sake of

convenience, provisions of sub-section (2) and (3) of

section 2A of the Act are reproduced thus:

"(2) Notwithstanding anything contained in section

10, any such workman as is specified in sub-section

(1) may make an application direct to Labour Court

or Industrial Tribunal for adjudication of the dispute

referred to therein after expiry of forty-five days from

the date he has made the application to the

Conciliation Officer of the appropriate Government

for conciliation of the dispute and in receipt of such

application, the Labour Court or Tribunal shall have

powers and jurisdiction to adjudicate upon the

dispute, as if it were a dispute referred to it by the

appropriate Government in accordance with the

provisions of this Act and all the provisions of this

Act shall apply in relation to such adjudication as

they apply in relation to an industrial dispute referred

to it by the appropriate Government. (3) The

application referred to in sub-section (2) shall be

made to the Labour Court or Tribunal before the

expiry of three years from the date of discharge,

dismissal, retrenchment or otherwise termination of

service as specified in sub-section (1)."

10. Bare perusal of sub-section (3) of section 2A makes

it clear that an application for adjudication of an industrial

dispute, relating to discharge, dismissal, retrenchment or

termination of his service can be moved by an employee

before expiry of three years from the date of his discharge,

dismissal, retrenchment or otherwise termination of service,

as the case may be.

11. Provisions of sub-section (2) of section 2A of the

Act empowers a workman to move an application before

an industrial adjudicator for adjudication of his dispute,

after expiry of 45 days from the date he made such

application before the Conciliation Officer. On receipt of

such application, the industrial adjudicator shall have

powers and jurisdiction to adjudicate the dispute as if it

were a dispute referred to it by the appropriate Government,

in accordance with provisions of the Act. Thus, it is evident

that before moving an application before an Industrial

Adjudicator, the workman has to approach the Conciliation

Officer for conciliation of his dispute. In case no settlement

is arrived at or conciliation proceedings goes beyond a

period of 45 days from the date the workman had moved

the application to the Conciliation Officer, he may approach

the Industrial Adjudicator for adjudicate of his dispute,

without being referred by the appropriate Government

under the provisions of the Act. Consequently, it is evident

that before approaching an Industrial Adjudicator, workman

whose services have been discharged, dismissed,

retrenched or terminated by his employer, shall have to

approach the Conciliation Officer and wait for expiry of a

period of 45 days, in case no settlement arrived between

them. Obligation to approach the Conciliation Officer and

allow him to enter into conciliation proceedings are

mandatory. It is also obligatory on the workman to wait for

a period of 45 days and only thereafter he can seek

indulgence of an industrial adjudicator for adjudication of

his dispute. In case he opts not to approach the Conciliation

Officer or fails to wait for a period of 45 days from the date

of moving his application, the Industrial Adjudicator will

acquire no jurisdiction to entertain the dispute.

12. As referred above, the claimant raised a demand on

the bank for reinstatement vide notice of demand dated

04.07.2011. Claim statement filed by Shri Rajender Singh is

silent on the point as to whether he approached the

Conciliation Officer, as mandated by sub-section (2) of

section 2A of the Act. Even otherwise, he filed the dispute

before Central Government Industrial Tribunal No.II, New

Delhi on 27.07.2011. This fact makes it clear that the claimant

opted not to approach the Conciliation Officer, not to talk

of expiry of period of 45 days from the date of moving an

application before that forum. Thus, it is evident that the

Tribunal has no jurisdiction to entertain the dispute.

Claimant ran in a hurry to file claim statement before the

Tribunal. Since the claimant did not comply with the

provisions of sub- section (2) of section 2A of the Act, the

Tribunal cannot invoke its jurisdiction to adjudicate the

dispute.

13. Since the dispute has been raised at a premature

stage, the Tribunal lacks jurisdiction to entertain it. Under

these circumstances, the Tribunal is constrained to brush

aside the claim statement made by Shri Rajender Singh.

Accordingly, his claimant statement is dismissed, being

premature. An award is, accordingly, passed. It be sent to

the appropriate Government for publication.

Dated : 23-04-2013

Dr. R. K.YADAV, Presiding Officer

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New Delhi, the 29th May, 2013

S.O. 1176.—In pursuance of Section 17 of the Industrial

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

hereby publishes the Award Ref. No. 80/2005 of the Central

Government Industrial Tribunal-cum-Labour Court,

Chennai as shown in the Annexure, in the Industrial

Dispute between the Management of Neyveli Lignite

Corporation Limited, and their workmen, received by the

Central Government on 29-05-2013.

[No. L-22012/362/2004-IR(CM-II]

B. M. PATNAIK, Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT

CHENNAI

Friday, the 26th April, 2013

Present : A. N. JANARDANAN, Presiding Officer

INDUSTRIAL DISPUTE NO. 80/2005

(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 Neyveli Lignite Corporation Ltd. and

their workmen)

Between

Sri K. Devaraj

1st Party/Petitioner

And

The Chairman cum

2nd Party/Respondent

Managing Director

Neyveli Lignite Corporation Ltd.

Neyveli.

Appearance:

For the 1st Party/Petitioner

Sri A.R. Suresh,

Advocate

For the 2nd Party/Management

M/s. NAK Sarma,

Advocates

AWARD

The Central Government, Ministry of Labour vide Order

No. L-22012/362/2004- IR(CM-II) dated 17.08.2005 has

referred the dispute to this Tribunal for adjudication. The

Schedule mentioned dispute is as follows:

"Whether the action of the management of Neyveli

Lignite Corporation Ltd., Neyveli in terminating the

services of Shri K. Devaraj, Operator, Grade IV CPF

No.22960 is legal and justified? If not, to what relief

the workman is entitled?

2. After the receipt of Industrial Dispute, the reference,

it was taken on file as I.D. No. 80/2005 and notices were

issued to both the parties and they have entered appearance

through their advocates and filed their Claim Statement

and Counter Statement respectively.

3. The allegations of the Petitioner in the Claim Statement

are briefly as follows:

The Petitioner joined the services of the Respondent/

Management on 1.4.1967 as casual labour and regularised

from 1.8.1970 as unskilled. The Petitioner was dismissed

from service by the Respondent/Corporation on the ground

that he has produced a bogus educational qualification

certificate at the time of joining duty in the Respondent/

Management. But the charges are false and frivolous. In

the enquiry, the Petitioner has produced all the

documentary evidence and based on which the Enquiry

Officer after satisfying himself has exonerated the Petitioner

from the charge and acquitted him from service. But,

subsequently, the Respondent/Management has ordered

for de novo enquiry against the Petitioner. The Respondent

has also not stated any reason for de novo enquiry. The

Enquiry Officer in the de novo enquiry without taking into

consideration of the statement of the Headmaster, who has

issued the certificate, has found the Petitioner as guilty.

Based on the biased and unilateral findings of the Enquiry

Officer, the Disciplinary Authority issued dismissal order

dismissing the Petitioner from the services of Respondent/

Management. The de novo enquiry ordered by the

Respondent is illegal . The reason and necessity for the, de

nova enquiry was not communicated to the Petitioner. The

fate of the earlier enquiry report was not communicated. The

Headmaster of the school who has given the certificate

and other students who have studied along with the

Petitioner had been examined in the enquiry, but the Enquiry

Officer has not considered their evidence. The Petitioner

studied in elementary school of his village but the

representatives of the Respondent went and enquired in

the High School of the same village in which the Petitioner

has not studied. Further, representatives of the management

verified the admission register, but they have not verified

the transfer certificate which the Petitioner produced in the

Respondent corporation. The action of the Respondent is

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THE GAZETTE OF INDIA : JUNE 22, 2013/ASADHA 1, 1935

[PART II—SEC. 3 (ii)]

time barred since the Petitioner has joined the Respondent/

Management during 1967 and they have verified the

certificate only in the year 2000 after a long lapse of 35

years. Usually, the bona fide of the individual has to be

verified within a period of six months of their joining.

Therefore, the action of the Respondent/Management is

illegal, arbitrary, biased and unilateral and no natural justice

was followed . Hence, for all these reasons, the Petitioner

prays that an award may be passed with back wages from

the date of termination to his actual retirement, wage

revision and time bound promotion and enhanced terminal

benefits and other consequential relief.

4. As against this, the Respondent in its Counter

Statement contended that the Respondent is a public sector

undertaking having its own set of rules and regulations . It

has certified standing orders for workmen under the

Respondent Corporation. The rules and orders applicable

to Central Govt. employees do not automatically apply to

the corporation employees. The Petitioner has joined the

Respondent as a casual labour on 1.4.67 and his services

came to be regularised w.e.f. 01.08.1971 and he was re-

designated as industrial worker w.e.f. 01.02.1977 and it came

to be known in the year 1996 that the school certificate

produced by the Petitioner at the time of his joining the

Respondent was bogus. Therefore, a charge memo dated

27.3.97 was issued to the Petitioner. The date of birth of the

Petitioner was entered in service book as 7.6.43 among

other things. Since the Petitioner denied the charge,

domestic enquiry was ordered and Dr. M.

Shanmugasundaram was appointed as Enquiry Officer . In

the enquiry, the Respondent mainly relied on letter dated

4.6.96 issued by Headmaster of Govt. Higher Secondary

School, Perperiyankuppam who had stated that the

educational certificate produced by the Petitioner with

admission No.447 related to one Sri R.Palanivelu, S/o.

Ramasamy and the school records did not contain the name

of Mr. K. Devaraj , S/o. Kuppusamy against admission No.

447. But, however, the Headmaster failed to turn up, in

spite of several communications issued to him. Based on

this and also based on the evidence of two outside

witnesses produced by the Petitioner, the Enquiry Officer

came to the conclusion that the allegations against the

Petitioner are not proved beyond doubt. Subsequently, it

came to know that the above said Headmaster was

threatened by the Petitioner not to attend enquiry as a

witness and therefore, with a view to find out the truth as

impersonation was also suspected in the case, decided to

hold a de novo enquiry into the charges against the

Petitioner. Therefore, Sri S. Gurusamynathan, Senior

Personnel Manager PR department was appointed as

Enquiry Officer for de novo enquiry. The Petitioner has

fully participated in the enquiry along with his defence

assistant and put forth his defence. Both sides marked

documents and on conclusion, the Enquiry Officer in his

report held that the Petitioner was guilty of charge. Based

on the enquiry report and after following the due procedure,

the Disciplinary Authority passed an order awarding

penalty of removal of the Petitioner from service of the

Corporation . Even the appeal preferred by the Petitioner

against the penalty awarded to him was also rejected by

the Appellate Authority . Therefore, the action taken

against the Petitioner by the Respondent/Management is

fair and justified. Therefore, it is legal, valid and binding on

the Petitioner. There is nothing illegal or arbitrary or biased

or mala fide attached to the whole proceedings as alleged

by the Petitioner and there is no violation of any of the

rules much less rules of natural justice as alleged by the

Petitioner. Therefore, the Respondent prays that the claim

may be dismissed with costs.

5. As against this, the Petitioner again filed rejoinder in

which he alleged that in the de novo enquiry, the Enquiry

Officer was unilaterally appointed by the Respondent

without any notice to the Petitioner. No doubt, the

Respondent/Management relied on the letter dated 4.6.96

issued by Headmaster, Govt. Higher Secondary School,

Perperiyankuppam, but the Petitioner has studied only in

the higher elementary school, therefore, no reliance can be

placed on the letter issued by Headmaster, Govt. Higher

Secondary School, Perperiyankuppam. The statements of

witnesses of the Petitioner were not taken into

consideration in de novo enquiry and also no mention

about the same. The Petitioner was not permitted to cross

examine , the witnesses presented by the management and

the principles of natural justice is grossly violated by the

Respondent/Management by denying opportunity to cross

examine the Headmaster, Higher Secondary School, who

had given a false statement to the vigilance police constable.

Any dispute regarding genuineness of certificate can be

decided only by District Educational Officer or the Deputy

Inspector of Schools and not by NLC vigilance branch,

who had managed to get a certificate in their favour from

the school where the Petitioner had not studied at all. The

entire enquiry was held in a biased manner without giving

any reasonable opportunity to the Petitioner and so the

Disciplinary Authority should not place any reliance on

the enquiry report. The action taken by the Respondent/

Management is highly illegal, arbitrary and unreasonable

being violative of principles of natural justice and hence,

for all these reasons, he prays for an award in his favour.

6. The ID was once disposed by my learned predecessor

as per award dated 11.12.2006 holding that the punishment

of termination from service on the petitioner is legal and

justified. The same when challenged by way of Writ Petition

No. 22947 of 2007 the Hon'ble High Court of Madras by its

order dated 06.01.2012 set aside the award and remitted the

matter to this Tribunal for fresh disposal in accordance

with law leaving it open to the first Respondent NLC to

lead evidence in support of their action initiated against

the petitioner with a right to the petitioner also to lead

[Hkkx II—[k.M 3 (ii)]

Hkkjr dk jkti= % twu 22] 2013@vk"kk<+ 1] 1935

3093

rebuttal evidence.

7. Points for consideration are :

(i)

Whether the action of the Respondent/

Management in terminating the services of the

Petitioner is legal and justified?

(ii)

To what relief the Petitioner is entitled?"

8. Evidence consists of the testimony of MW1 and

MW2 and Ex.M1 to Ex.M18 on the Respondent's side with

no evidence adduced on the petitioner's side.

Points (i) & (ii)

9. Heard both sides. Perused the records, documents

and evidence. On behalf of the petitioner it was argued by

his learned counsel that no educational qualification having

been fixed for the employment of the petitioner, there was

no need to produce any certificate, whether valid or bogus.

His date of superannuation was 30.06.2003. Charge Memo

was issued in 1996 after 30 years alleging bogus certificate

to have been produced in 1967. Enquiry Officer found the

charges not to have been proved for want of proof of the

delinquency beyond doubt. In the second enquiry held as

de novo enquiry despite the petitioner's objection the same

was held holding the petitioner to be guilty. In view of

Hon'ble High Court of Madras having held the enquiry

second in the ordinal numeral to have been illegal and

vitiated the finding of the Enquiry Officer in terms of the

first enquiry is to be based. The petitioner has not studied

in the Higher Secondary School but studied only in the

Higher Elementary School. The certificate produced by the

petitioner is only genuine. There is no dispute regarding

his Date of Birth. According to witness for the

Management, only District Education Officer (DEO) has

the authority to certify genuineness of the certificate

leaving no relevancy for his evidence. After 30 years of

unblemished service he is being thrown out of employment

to his gross prejudice which is too draconian and unjust.

The DEO was not examined. The petitioner should be

allowed to superannuate. Even if any bogus certificate

happened to be produced and acted upon petitioner is

only to be allowed to continue and superannuate when he

attains superannuation stage. His termination from service

is to be set aside.

10. Contra arguments on behalf of the Respondent are

that the contention on behalf of the petitioner regarding

inordinate delay in issuing the Charge Sheet pales into

insignificance in view of the large magnitude of the strength

of the employees employed under NLC. Ex.M6 letter of the

Head Master, Higher Secondary School, Perperiyankuppam

would reveal that petitioner is not the person covered by

the certificate with reference to the record sheet. Again

Ex.M2-Record Sheet dated 05.06.1964 could not have been

issued because in 1962 itself the school got upgraded as

Higher Secondary School in the place of higher elementary

school which the record sheet purports to show. The

evidence of the Management does not stand rebutted by

the petitioner. There is some legal evidence to tilt the

probability in favour of the Respondent.

11. Reliance was placed by both sides to the various

decisions of the Supreme Court and High Courts.

Petitioner's learned counsel relied on the decision N.

SEKAR VS. DIRECTOR OF MEDICAL EDUCATION,

CHENNAI AND THREE OTHERS (2009-4-CTC-158)

wherein it is held "Service Law—Tamil Nadu State

Subordinate Service (Discipline and Appeal) Rules, Rule

17(b) — Nature of charge — Proportionality of punishment

— Relevancy of — Petitioner possessed eligible

qualification — But, produced bogus certificate of higher

educational qualification — Charge under rule 17(b) was

framed — Service in post of Barber was terminated since

the charge was proved — Challenging termination order

on ground that petitioner possessed prescribed eligible

qualification for post of Barber — Alleged bogus

certificate of 8th Standard has no bearing." In P. V.

MAHADEVAN, APPELLANT VS. M.D. TAMILNADU

HOUSING BOARD, RESPONDENT (2005-4-CTC-403),

Hon'ble Supreme Court held that "Service Law —

Disciplinary proceedings — Inordinate delay in initiating

disciplinary proceedings — Consequences — Delay of

ten years in initiation of disciplinary proceedings —

Charge memo quashed — Charge memo issued in the

year 2000 in respect of act alleged to have been committed

in 1990 — Lapses came to light in the audit report in

1994-95 — Sections 118 and 119 of Tamil Nadu Housing

Board Act, 1961 mandates submission of abstract of

accounts and of Audit every year — Reasons for delay

was found unacceptable — Permitting disciplinary

proceedings was held to be prejudicial to public interest

and the interest of employee — Employee reached

superannuation — Mental agony and suffering of

employee due to protracted disciplinary proceedings was

more than punishment — Charge memo quashed and

employee permitted to draw retiral benefits."

12. MW1, witness for the management would depose

that he is not aware of any qualification having been

prescribed for casual labour. While petitioner joined service

as casual labour his educational qualification certificates

were not verified. At the time of regularization also

certificates were not verified. The certificates are verified

only in 1996 in random checking after lapse of 29 years

when Headmaster, Government Higher Secondary School

reported to the Management that petitioner produced

bogus certificate of 8th Standard Pass. As per the Standing

Order within 6 months time certificates should be examined.

According to MW2, Ex.M6 letter dated 04.06.1996 was

issued by the then Headmaster wherein Admission

No. 447 is in the name of R. Palanivelu. Ex.M2 with

Admission No. 447 could not have been issued to the

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THE GAZETTE OF INDIA : JUNE 22, 2013/ASADHA 1, 1935

[PART II—SEC. 3 (ii)]

petitioner because the school had already been upgraded

as High School 1962 itself.

13. This is a case in which the two enquiries, the second

being a de novo enquiry previously held stand set aside

being vitiated for stated reasons necessitating fresh

disposal of the matter after adducing evidence on either

side, of course with the commencement of the enquiry by

the Respondent. The petitioner, a workman under the

Respondent stands removed from service after 29 years of

service, claimed as unblemished, of course with no dispute.

The charge being that the petitioner produced bogus

certificate, it remains as a mere allegation without being

substantiated. It is not shown that there is any educational

qualification prescribed for his being engaged as a Casual

Labour. The evidence of the Management's witness is that

the certificate was not verified at the time of his initial

engagement or at the time of his regularization. It is the

further version of the witness that verification of certificates

should be done within 6 months. It is not known why the

certificate of the petitioner was not verified in due times

and why after a lapse of 29 years on a random checking

casting suspicion as to the genuineness of the certificates,

an enquiry was made to be conducted whereby finding the

petitioner to be implicated, he was proceeded against by

way of enquiry, charge sheeted, found guilty and punished,

removing him from service, which enquiries were proved

to be illegal or vitiated resulting in the remand of the ID for

fresh disposal in accordance with law after affording

reasonable opportunities to both side, of course with first

opportunity being granted to the Respondent to commence

the enquiry and to initially prove the delinquency charged

against the petitioner. In the enquiry accordingly held,

before this forum, the Management has not been able to

prove the charge against the petitioner with some legal

evidence to justifiably come to the conclusion that the

petitioner has been guilty of the charges levelled against

him. Should the petitioner be found guilty it should have

been proved that for his the commencement of the

engagement for the first time, he was to have produced his

certificate for the qualifying examinations, upon satisfaction

of which alone he is to be admitted to duty. The same is the

case with regularization also. As deposed to by MW1,

when verification of certificates should have been done

within 6 months that course is also not seen followed up

by the Management. What all these pinpoint to is to the

fact that there has not had been any prescribed educational

qualification for his initial engagement as a casual labour

or for his regularization as such continuing upto 29 years

or more where after only at some so-called random checking

on some suspicion he is sought to be indicted and thereby

he could not be made to stand as a delinquent in the eye of

disciplinary laws. There is no rebuttal of the claim of the

petitioner that he has rendered unblemished service for

more than 29 years. When there was no qualification

prescribed for an engagement and therefore no insistence

was there for production of any certificate of educational

qualification and yet when, once an invitee for employment

happens to have produced some certificate, not himself

knowing it to be as for being produced for any evidentiary

value of his claim and which may have been received

recklessly by the employer and happened to be kept in the

file for no valid purpose, subsequent noticing of it to be

not matching with such producer of the claim, it cannot

legally or legitimately be held to conclude that such person

has produced the same with the knowledge or intention

that the same is bogus and that the same should be

produced to satisfy his claim which would not have

otherwise been derived unless it is produced. In other

words, any testimonial produced by him in excess of what

was required can only be a surplusage not to be counted

for the accomplishment of his purpose. Should the

petitioner be found guilty of delinquency charge it should

be proved that he has had the guilty intention known as

"mensrea" in the jurisprudence to fasten liability on him

for that reason. The evidence adduced on behalf of the

management is seldom apt to conclude that the petitioner

has been guilty of having produced a bogus certificate in

order to secure his engagement under the Management.

The nature of evidence adduced on behalf of the

Management is not of the quality of some legal evidence,

not to say adequate evidence. In order to warrant guilt

finding against him the quality of that some legal evidence

should be there which is not present in the evidence

adduced on behalf of the Respondent. So to say only when

some legal evidence of the above said degree is adduced

on behalf of the Respondent, question of rebuttal arises

art the instance of the petitioner. Therefore the contention

that the evidence of the Respondent does not stand rebutted

by the petitioner pales into insignificance and does not

bear any effect. The rulings mentioned supra stamp

approval to the conclusion that even if there is some bogus

certificate produced by the petitioner, so long as it does

not affect the situation which would be when no bogus

certificate is produced, the things are to be allowed to remain

intact as though no bogus certificate is produced. In the

absence of any evidence of any legal colour, as mentioned

by me above already to hold that petitioner is guilty of

having produced bogus certificate to procure his

engagement as casual labour or for his regularization for

want of verification at proper and pre-destined occasions

and which when having not been done, for 29 years or

more, arraign him raising the bogus nature of a certificate

which may have been produced by him but which has not

been reckoned for his engagement, regularization,

continuance in service upto culmination of service or to its

proximity thereof, cannot but be with some mala fide. Even

if the conduct of the petitioner has been blameworthy at

this distance of time after having rendered unblemished

service for quite long years, he is only allowed to

superannuate entitling him to his retiral benefits.

14. In the result it is ordered that the petitioner who has

[Hkkx II—[k.M 3 (ii)]

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3095

by now reached his superannuation age already quite some

years back, be given a paper reinstatement into service

with continuity of service and all attendance benefits

including 50% back wages and he be allowed to retire from

service with all his superannuation benefits. Ordered

accordingly.

15. 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 26th April, 2013)

A. N. JANARDANAN, Presiding Officer

Witnesses Examined :

For the lst Party/Petitioner : WW1, Sri K. Devaraju

WW2 Sri D. Kuppuswamy

For the 2nd Party/Respondent : MW1, P.K. Thangamani

MW2, Sri G. Arumugam

Documents Marked

For the 1st Party/Petitioner :

Ex. No.

Date

Description

Ex.W1

—

Record Sheet

Ex.W2

23.07.1996

Charge Memo

Ex.W3

29.07.1996

Appointment of Enquiry Officer

Ex.W4

08.09.1998

Appointment of 2nd Enquiry

Officer

Ex.W5

28.09.1998

-do-

Ex.W6

09.10.1998

Enquiry Notice

Ex.W7

26.10.1998

Objection for Denovo Enquiry

Ex.W8

06.11.1998

Request for documents

Ex.W9

17.11.1998

Rejection Order

Ex.W10

20.04.2000

Enquiry Report

Ex.W11

29.04.2000

Finding of the Enquiry Officer

Ex.W12

15.09.2000

Show Cause Notice

Ex.W13

29.09.2000

Explanation

Ex.W14

27.10.2000

Final Order

Ex.W15

21.01.2001

Appeal to Final Order

Ex.W16

16.09.1957

Xerox copy of the posting order

by the President, District Board,

South Arcot, Cuddalore N.T.

For the 2nd Party/Management:

Ex. No.

Date

Description

Ex. Ml

06.01.2012

Order Passed in WP No. 22947 of

2007

Ex. M2

05.06.1964

Record Sheet submitted by 1st

Party while joining 2nd Party/

Corporation

Ex. M3

16.04.1996

Statement of K. Devaraju

(1st Party)

Ex. M4

06.06.1996

Statement of K. Devaraju

(1st Party)

Ex. M5

23.07.1996

Charge Memo issued to 1st Party

Ex. M6

04.06.1996

Letter

Head

Master,

Government Higher Secondary

School Addressed to 2nd Party

Ex. M7

10.03.1998

1st Enquiry Report

Ex. M8

Driving License of K. Devaraju (1st

Party)

Ex. M9

16.04.1996

Record Sheet of 1st Party

Ex. M10 05.06.1996

Letter of Head Master, Elementary

School,

Panchayat

Union

Thoppiakuppam addressed to 2nd

Party

Ex. M11 23.03.1996

Letter of Head Master, Panchayat

Union Elementary School,

Perperiankuppam addressed to

2nd Party

Ex. M12 —

Service Record of 1st Party

evidencing recording of date of

birth

Ex. M13 29.04.2000

Report of 2nd Enquirty

Ex. M 14 15.09.2000

Provisional Show Cause Notice

issued to 1st Party

Ex. M15 27.10.2000

Final Order

Ex. M16 08.06.2001

Order in Appeal

Ex. M17 18.03.2013

Authorization letter from Head,

Govt. Boys Hr. Secondary School,

Perperiakuppam-607805 to the

Presiding Officer, CGIT-cum-LC,

Shastri Bhawan, Chennai

Ex. M18 18.03.2013

Attested xerox certificate of

admission record sheet of the

School in the year 1964

Printed by the Manager, Government of India Press, Ring Road, Mayapuri, New Delhi-110064

and Published by the Controller of Publications, Delhi-110054.