jftLVªh la- Mh- ,y- (,u) 04@0007@2003µ05
REGD. NO. D. L. (N) 04/0007/2003—05
izkf/dkj ls izdkf'kr
PUBLISHED BY AUTHORITY
lkIrkfgd
WEEKLY
la- 38º
ubZ fnYyh, flrEcj 15—flrEcj 21] 2013] 'kfuokj@Hkkæ 24—Hkkæ 30] 1935
No. 38]
NEW DELHI, SEPTEMBER 15—SEPTEMBER 21, 2013, SATURDAY/BHADRA 24—BHADRA 30, 1935
Hkkx esa fHkUu i`"B la[;k nh tkrh gS ftlls fd ;g i`Fkd ladyu ds :i esa j[kk tk lds
Separate Paging is given to this Part in order that it may be filed as a separate compilation
Hkkx II—[k.M 3—mi&[k.M (ii)
PART II—Section 3—Sub-section (ii)
Hkkjr ljdkj ds ea=kky;ksa (j{kk ea=kky; dks NksM+dj) }kjk tkjh fd, x, lkafof/d vkns'k vkSj vf/lwpuk,a
Statutory Orders and Notifications Issued by the Ministries of the Government of India
(Other than the Ministry of Defence)
miHkksDrk ekeys] [kk| vkSj lkoZtfud forj.k ea=kky;
(miHkksDrk ekeys foHkkx)
(Hkkjrh; ekud C;wjks)
ubZ fnYyh] 11 flrEcj] 2013
dk- vk- 1984-—Hkkjrh; ekud C;wjks (izek.ku) fofu;e] 1988 ds fofu;e 6 ds mi&fofu;e (3) ds vuqlj.k esa Hkkjrh;
ekud C;wjks ,rn~}kjk uhps vuqlwph esa fn, x, mRiknksa dh eqgjkadu 'kqYd vf/lwfpr djrk gS %
vuqlwph
Hkkjrh;
Hkkx vuq
o"kZ
mRikn
bdkbZ
U;wure eqgjkadu 'kqYd
bdkbZ nj
LySc esa
'ks"k izpkyu frfFk
ekud
cM+s iSekus
NksVs iSekus
LySCk
bdkbZ;ka
la[;k
ij
ij
#-
15939
&
&
2011
dhVuk'kd&ckbZiQsUFkjhu
,d
jQ- 45000
jQ- 38000
jQ- 0-90
lHkh
&
11&09&2013
vkæZdj.kh; ikmQMj&fof'k"V
fdyksxzke
4375
&
&
1975
lwrh fuVsM LiksVZl~ 'kVZ
100
jQ- 41000
jQ- 35000
jQ- 2-75
lHkh
&
11&09&2013
uEcj
¹la- lh,eMh&2@th&18º
ih- ds- xEHkhj] oSKkfud ^th* ,oa iz/ku (izek.ku)
3872 GI/2013
(5201)
5202
THE GAZETTE OF INDIA : SEPTEMBER 21, 2013/BHADRA 30, 1935
[PART II—SEC. 3(ii)]
MINISTRY OF CONSUMER AFFAIRS FOOD AND PUBLIC DISTRIBUTION
(Department of Consumer Affairs)
(BUREAU OF INDIAN STANDARDS)
New Delhi, the 11th September, 2013
S.O. 1984.— In pursuance of sub-regulation (3) of regulation 6 of the Bureau of Indian Standards (Certification)
Regulations, 1988, the Bureau of Indian Standards, hereby notifies the Marking fee for the products given in the
Schedule :
SCHEDULE
IS No.
Part Sec. Year
Product
Units
Minimum Marking
Unit
Units
Remain- Effective
Fee
Rate
in
ing
Date
Large
Small
Slab 1
Slab-1
Scale
Scale
Rs.
15939
-
-
2011
Pesticide-Bifenthrin
1 Kg.
Rs. 45000 Rs. 38000
Rs.0.90 All
-
11-09-2013
Wettable Powder (WP)
4375
-
-
1975
Cotton Knitted Sports
100
Shirts
(numbers) Rs. 41000 Rs. 35000
Rs.2.75 All
-
11-09-2013
[No. CMD-II/G-18]
P. K. GAMBHIR, Scientist ‘G’ and Chief (Certification)
lapkj ,oa lwpuk izkSn~;ksfxdh ea=kky;
(Mkd foHkkx)
ubZ fnYyh] 11 flrEcj] 2013
dk- vk- 1985-—jktHkk"kk fu;e (la?k ds 'kkldh; iz;kstuksa ds fy, iz;ksx)] 1976 ds fu;e 10 ds mi&fu;e (4) ds vuqlj.k
esa dsUæ ljdkj] Mkd foHkkx ds v/huLFk dk;kZy; O;olk; fodkl ,oa foi.ku funs'kky;] ubZ fnYyh ftlds 80 izfr'kr ls vf/d
vf/dkfj;ksa ,oa deZpkfj;ksa us fgUnh dk dk;Zlk/d Kku izkIr dj fy;k gS] dks vf/lwfpr djrh gS A
¹la- 11017&1@2011&jk-Hkk-º
ujs'k dqekj] funs'kd (jktHkk"kk)
MINISTRY OF COMMUNICATION AND INFORMATION TECHNOLOGY
(Department of Posts)
New Delhi, the 11th September, 2013
S.O. 1985.—In pursuance of Rule 10(4) of the Official Language (Use for Official Purposes of the Union) Rules,
1976, the Central Government hereby notifies Business Development and Marketing Directorate, New Delhi-110001.
Subordinate Office of the Department of Posts where 80% Officers/Officials has acquired the working knowledge of
Hindi .
[No. 11017-1/2011-O. L.]
NARESH KUMAR, Director (O.L.)
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 21] 2013@Hkkæ 30] 1935
5203
Je ,oa jkstxkj ea=kky;
ubZ fnYyh] 21 vxLr] 2013
dk-vk- 1986-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh /kjk 17 ds vuqlj.k esa] dsUnzh; ljdkj dsujk cSad ds
izca/ra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp] vuqca/ esa
fu£n"V vkS|ksfxd fookn esa dsUæh; ljdkj vkS|ksfxd vf/dj.k@ Je
U;k;ky;] caxyksj ds iapkV (lanHkZ la[;k 65@2007) dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 27&7&2013 dks izkIr gqvk Fkk A
¹la- ,y&12011@138@2006&vkbZ vkj (ch&II))º
lqefr ldykuh] vuqHkkx vf/dkjh
MINISTRY OF LABOUR AND EMPLOYMENT
New Delhi, the 21st August, 2013
S.O. 1986. —In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 65/
2007)) of the Central Government Industrial Tribunal/
Labour Court, Bangalore, now as shown in the Annexure
in the Industrial Dispute between the employers in
relation to the management of Canara Bank and their
workman, which was received by the Central Government
on 27-7-2013.
[No. L-12011/138/2006-IR (B-II)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
YESWANTHPUR, BANGALORE
Dated : 26th June, 2013
PRESENT :
Shri S. N. Navalgund, Presiding Officer
C.R. No. 65/2007
I Party
II Party
Sh. R. Sadashiva,
The General Manager (P),
S/o Shri Ramappa,
Canara Bank, Head Office,
C/o Kariyanna,
Personnel Wing,
‘Amar Nilaya’,
I.R. Section,
Chikkabidarkallu Main
112, J. C. Road,
Road, Nagasandra Post,
BANGALORE-560 002.
Bangalore-560 073.
APPEARANCES :
I Party
:
Shri MuraIidhara Advocate
II Party
:
Shri T R K Prasad Advocate
ORDERS ON MAINTAINABILITY AND FAIRNESS
OF THE DOMESTIC ENQUIRY TAKEN UP AS
PRELIMINARY ISSUES
1. In this reference made by the Central Government
for adjudication as to:
“Whether the action of the management of Canara
Bank in imposition of punishment of stoppage of
five increments for a period of five years with
cumulative effect on Shri R. Sadashiva, Sub-staff,
Canara Bank, Shahbad Branch, Gulbarga district vide
order dated 09.03.2005 is legal and ‘justified ? If not,
to what relief the workman is entitled and from which
date?”
2. In view of the assertion made by the I Party in his
claim statement that he was not furnished with copies of
the documents and statement of witnesses along with the
charge sheet and that charge sheet was vague without
consisting essential details and that he was denied of a
proper opportunity to submit his written statement and
that he was not given opportunity to verify the Originals
of the documents and the statement of the witnesses
relied upon in support of the charge sheet etc. and its
denial by the II Party the following issue was raised as a
Preliminary Issue :
“Whether the Domestic Enquiry held against the
I party by the II Party is fair and proper?”
3. To substantiate the above issue the II party while
examining Enquiry Officer as MW 1 got exhibited
Ex M-1 to Ex M-15 the detailed description of which are
narrated in the Annexure. The learned advocate for I Party
who cross-examined MW 1 since submitted that he has
no evidence on the Preliminary Issue the matter was
posted for arguments on the said issue. Later, when the
learned advocate appearing for the II Party insisted that
in view of a specific contention taken in the counter
statement that the reference is not maintainable being
not sponsored by any union one more issue be raised
touching that aspect and the learned advocate appearing
for the I Party since submitted in view of the specific
contention of the II Party regarding maintainability on
the ground of being not sponsored by any union one more
issue may be raised which may need no further evidence
one more issue was raised as under :
"Whether the reference is maintainable being not
sponsored by any Union?"
4. With the above pleadings and evidence the
arguments addressed by the learned advocates appearing
for both sides were heard, on these two Preliminary
Issues.
5204
THE GAZETTE OF INDIA : SEPTEMBER 21, 2013/BHADRA 30, 1935
[PART II—SEC. 3(ii)]
5. The learned advocate appearing for the II Party
while referring to the decision of Division Bench of the
High Court of Karnataka in the case of M/s. Forbes Gokak
Limited vs. J. H. Jadhav reported in ILR 2004 KAR Page
2841 urged that imposition of stoppage of punishment
of five increments with cumulative effect on the I party
admittedly being not espoused by any Union or group of
workmen and it is raised by individual workman it is not
governed under Industrial Dipsutes Act and is liable to
be rejected in limine. Inter alia, the learned advocate
appearing for the I Party while citing the decision of
Hon'ble Supreme Court of India in the case of National
Council for Building and Cement Materials and State of
Haryana and other reported in 1996 II LLJ SC 125 and
two unreported decisions of High Court of Karnataka
decided in W A No. 2907/2005 dated 25.07.2005 and
W P No. 13682/2005 dated 06.06.2005 urged that though
the proposition that dispute raised individually by
workman in relation to the reduction of five stages cannot
be industrial dispute urged that on that count only the
reference cannot be rejected and this tribunal has to give
finding on all the issues and as complainants have not
been examined in the Domestic Enquiry depriving the
I Party to cross-examine them the Domestic Enquiry be
held as not fair and proper.
6. In respect of the punishment, imposed against
the I Party of stoppage of five increments for a period of
five years with cumulative effect when it is fairly admitted
by his learned counsel it cannot become an industrial
dispute his argument relying on the decisions referred
above the tribunal has to give finding on all the issues is
not acceptable, for the simple reason that when it is
admitted dispute raised individually in relation to
reduction of five stages cannot be industrial dispute as
defined under the Section 2(k) of the ID Act, 1947 this
tribunal looses jurisdiction to give its finding on other
issues on merits and even the issue touching the fairness
or otherwise of Domestic Enquiry. On facts in the case
of National Council for Cement and Building Materials
vs. State of Haryana and others reported in 1996 II LLJ
SC Page 125 the Hon'ble Supreme Court held discretion
exercised by the Industrial Tribunal agreeing to decide
Preliminary Issue but subsequently deciding to hear
Preliminary Issue along with other issues on merits by
Industrial Tribunal cannot be interfered by High Court in
Writ Proceedings as such Discretion exercised by High
Court declining to interfere with the discretion exercised
by Industrial Tribunal does not call for interference and
it is not laid down in this decision of the Apex Court that
necessarily finding on all issues required to be decided
in a reference are to be answered even where it is prima
facie evident that the dispute covered in the reference
do not amount to industrial dispute. Therefore on facts
in the instant case when it is fairly admitted that dispute
raised individually by workman in relation to reduction
of five stages cannot constitute an industrial dispute this
tribunal looses jurisdiction to decide the other issues
touching the merits and even the fairness or otherwise of
the Domestic Enquiry. In the result, the second Preliminary
Issue is answered in the Affirmative i.e. the reference is
not maintainable being not sponsored by any Union or
group of workmen and that the first Preliminary issue and
other issues touching the merits do not survive for
consideration and the reference is liable to be rejected as
the schedule of reference do not constitute an industrial
dispute as defined under Section 2 (k) of the ID Act, 1947.
In the result, I pass the following :—
ORDER
The Second Preliminary Issue is answered in the
Affirmative i.e., the Reference is not Maintainable
being not sponsored by any Union or group of
workmen and that the other Preliminary Issue as
well as other issues touching the merits do not
survive for consideration and the Reference is
Rejected. This order shall be treated as Award and
sent for notification to the Ministry.
(Dictated to U.D.C. transcribed by him, corrected
and signed by me on 26th June 2013.
S. N. NAVALGUND, Presiding Officer.
ANNEXURE - I
Witnesses examined on behalf of Management :
MW 1 - Sh. V R Iyengar
Witnesses examined on behalf of Workman :
Nil
Documents exhibited on behalf of the Management :
Ex. M-1
: Office copy of charge sheet dated 04.03.2004
alongwith list of documents and duly
acknowledged by the first party for having
received by him.
Ex. M-2
: Office copy of orders/proceedings dated
06.04.2004 appointing the Enquiry Officer.
Ex. M-3
: Office copy of orders proceedings dated
06.04.2004 appointing the Presenting Officer.
Ex M-4
: Office copy of Notice of Enquiry dated
19.04.2004 issued to the first party by the
Enquiry Officer.
Ex M-5
: Enquiry Proceedings dated 27.04.2004,
06.05.2004 and 11.06.2004, alongwith
Management Exhibits MEX-1 to MEX 13 and
Defence Exhibit DEX 1.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 21] 2013@Hkkæ 30] 1935
5205
Ex M-6
: Written Brief dated 17.06.2004, submitted by
the Presenting Officer.
Ex M-7
: Written Brief dated 26.06.2004 submitted by
the Defence Representative.
Ex M-8
: Finding dated 06.07.2004 of the Enquiry
Officer.
Ex M-9
: Letter dated 07.07.2004 of the Disciplinary
Authority addressed to the first party
enclosing findings of Enquiry Officer, for his
submissions if any, acknowledged by the first
party for having received the copy.
Ex M-10 : Submission of the Defence Representative
on the findings of the Enquiry Officer dated
16.07.2004.
Ex M-11 : Notice of personal hearing dated 05.08.2004,
duly acknowledged by the first party.
Ex M-12 : Office copy of proceedings dated
23.08.2004 enclosing orders of the Disciplinary
Authority dated 23.08.2004 imposing the
punishment of compulsory retirement.
Ex M-13
Appeal dated 22.09.2004 preferred by the first
party against the punishment imposed by the
Disciplinary Authority.
Ex M-14
: Proceedings dated 17.03.2005 enclosing the
detailed orders dated 09.03.2005 of the
Appellate Authority, modifying the
punishment.
Ex M-15 : Letter dated 29.03.2005 of the Second Party
recording the fact of reinstatement of first
party into service w.e.f. 23.03.2005 (boh).
Docouments exhibited on behalf of the I party.
ubZ fnYyh] 22 vxLr] 2013
dk-vk-1987 -—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh /kjk 17 ds vuqlj.k esa] dsUnzh; ljdkj lsUVªy cSad
vkWiQ bafM;k ds izca/ra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds
chp] vuqca/ esa fu£n"V vkS|ksfxd fookn esa dsUæh; ljdkj vkS|ksfxd
vf/dj.k@ Je U;k;ky;] dkuiqj ds iapkV (lanHkZ la[;k 103@2011)
dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 26&3&2013 dks izkIr
gqvk FkkA
¹la- ,y&39025@1@2010&vkbZ vkj (ch&II)º
lqefr ldykuh] vuqHkkx vf/dkjh
New Delhi, the 22nd August, 2013
S.O. 1987. —In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 103/
2011) of the Central Government Industrial Tribunal/Labour
Court, Kanpur now as shown in the Annexure in the
Industrial Dispute between the employers in relation to
the management of Central Bank of India and their workman,
which was received by the Central Government on 26-03-
2013.
[No. L-39025/1/2010-IR (B-II)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE SHRI RAM PARKASH, HJS, PRESIDING
OFFICER, CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT KANPUR.
Industrial Dispute No. 103/2011
Kaushal Kumar Singh,
Son of Sri Ashok Kumar Singh, Resident of
38/24, Prayag Narain Shivala', Behind Gupta Own
Wala,
Kanpur.
AND
The Zonal Manager,
Central Bank of India,
23, Vidhan Sabha Marg,
Lucknow and others.
A WAR D
1. Brief facts are—
2. A claim petition has been filed by the claimant
under sub-section (1) of Section 2-A of the Industrial
disputes Act, 1947, claiming that his removal from service
by the opposite party from 29.06.93 be declared as illegal
and unjustified and he should be reinstated in the service
of the bank with consequential benefits.
3. The claim of the workman has been challenged
by filing a written reply as well as by moving a separate
application paper no. 9/1 along with affidavit alleging that
the claim of the workman is not maintainable legally or
factually.
4. It is contended by the opposite party that the
claimant has raised the dispute several times before the
ALC(C) but his prayer was not accepted. Vide paper No.
8/6 dated 19.01.95, his case was not found suitable by
Government of India for sending a reference, and
thereafter the workman has also filed a writ petition
raising the same aversions. This writ petition was decided
against the workman vide order dated 25.01.05. The copy
of the said order is paper no. 9/27. The workman again
raised the dispute before the Conciliation Officer, the
workman remained absent on several dates before the
Conciliation Officer thereby the Conciliation Officer closed
5206
THE GAZETTE OF INDIA : SEPTEMBER 21, 2013/BHADRA 30, 1935
[PART II—SEC. 3(ii)]
the dispute vide order dated 17.10.11, vide paper No.9/23.
5. Thereafter the claimant filed this claim statement
on 14.12.11.
6. It is contended by the AR of the opposite party
that under sub-section (3) of Section 2-A, of the Act the
present dispute is not maintainable as the same has not
been filed within 3 years from the date of his removal.
7. I would like to reproduce the provisions of sub-
section (3) of Section 2-A of the Act as amended.
8. The Application referred to in sub-section (2)
shall be made to the Labour Court or Tribunal before
expiry of three year from the date of discharge, dismissal,
and retrenchment or otherwise, termination of service as
specified in sub-section (1).
9. The provisions are very clear. Termination is dated
29-06-1993. Therefore, filing of claim statement challenging
the termination of the services of the Applicant cannot be
maintainable.
10. Ruling filed by the workman 1999 (82) FLR 137
Supreme Court in between Ajayab Singh and Sirhand
Cooperative Marketing-cum-Processing Service Society
Limited is not applicable considering the facts of the
present case.
11. Here in the present case the statute has laid
down limitation which is manadatory.
12. Therefore, considering all the facts that the
Government did not find the case suitable for the
reference. Secondly, he raised the dispute before the
Hon’ble High Court and considering the facts the Hon’ble
High Court decided the case vide order dated 25-01-05,
thirdly he did not take interest before the conciliation
officer due to his absence and lastly under sub-section
(3) of Section 2-A, of the Act, the present claim of the
Applicant is not maintainable.
13. Therefore, the claimant is not entitled to any
relief as claimed by him in his claim petition.
14. Let two Photocopy of this order be sent to the
Government of India, for its publication.
Dated : 13-03-2013
RAM PARKASH, Presiding Officer
ubZ fnYyh] 23 vxLr] 2013
dk-vk- 1988-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh /kjk 17 ds vuqlj.k esa dsUnzh; ljdkj eSllZ
bZ lh ,y ds izca/ra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds
chp] vuqca/ esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/dj.k@Je U;k;ky;]vklulksy ds iapkV (lanHkZ la[;k 18@2006)
dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 23&8&2013 dks izkIr
gqvk Fkk A
¹la- ,y&22012@104@2005&vkbZ vkj (lh,e-II)]
ch- ,e- iVuk;d] MsLd vf/dkjh
New Delhi, the 23rd August, 2013
S.O.1988.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 18/
2006) of the Central Government Industrial Tribunal-cum-
Labour Court, Asansol as shown in the Annexure, in the
Industrial Dispute between the management of M/s.
Eastern Coalfields Limited, and their workmen, received
by the Central Government on 23-8-2013.
[No. L-22012/104/2005-IR (CM-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL -CUM-LABOUR
COURT, ASANSOL
Present : Sri Jayanta Kumar Sen, Presiding Officer
REFERENCE No. 18 of 2006
Parties : The management of Chora Haripur Group of
Mines, M/s. ECL, Burdwan(WB)
Vs.
The Gen. Secy. , KMC, Asansol(W.B.)
REPRESENTATIVES :
For the management
:
Sri P.K. Das, Ld. Advocate
For the union (Workman) :
Sri Rakesh Kumar, Ld.
Representative
INDUSTRY: COAL
STATE: West Bengal
Dated- 19-03-13
AWARD
In exercise of powers conferred by clause (d) of
Sub-section (1) and Sub-section 2(A) of Section 10 of
the Industrial Disputes Act, 1947 (14 of 1947), Govt. of
India through the Ministry of Labour vide its Order No.
L-22012/104/2005-I.R. (CM-II) dated 03-07-2006 has
been pleased to refer the following dispute for
adjudication by this Tribunal.
SCHEDULE
“Whether the action of the management of M/s.
Eastern Coalfields Limited in discharging Sh.Rajendra
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 21] 2013@Hkkæ 30] 1935
5207
Chamar, Ex-U.G. Loader from servcie w.e.f. 20-07-
2004 is legal and justified? If not, to what relief the
workman is entitled to?”
Having received the Order of Letter No. L-22012/
104/2005-I.R. (CM-II) dated 03-07-2006 of the above said
reference from the Govt. of India, Ministry of Labour, New
Delhi for adjudication of the dispute, a referenc case No.
18 of 2006 was registered on 09-08-06 and accordingly an
order to that effect was passed to issue notices through
the registered post to the parties concerned directing them
to appear in the court on the date fixed and to file their
written statements along with the relevant documents and
a list of witnesses in support of their claims. In pursuance
of the said order notices by the registered post were sent
to the parties concerned.
On perusal of the case record, it has been found
that the case has already awarded ‘‘No Dispute” on the
basis of the prayer of the workman in Ref. Case No. 15/2006.
Since Ref. 15/2006 and Ref. 18/2006 are same, this case is
closed and accordingly an order of ‘‘No Dispute Award” is
hereby passed.
ORDER
Let an ‘‘Award” be and the same is passed as ‘‘No
Dispute” existing . Send the copies of the order to the
Govt. of India, Ministry of Labour, New Delhi for
information and needful. The reference is accordingly
disposed of .
JAYANTA KUMAR SEN, Presiding Officer
ubZ fnYyh] 26 vxLr] 2013
dk-vk-1989-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh /kjk 17 ds vuqlj.k esa dsUnzh; ljdkj eSllZ bZ lh ,y
ds izca/ra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqca/ esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/dj.k@Je U;k;ky;] vklulksy ds iapkV (lanHkZ la[;k 02@2012) dks
izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 23&8&2013 dks izkkIr gqvk Fkk A
¹la- ,y&22012@183@2011&vkbZ vkj (lh,e-II )]
ch- ,e- iVuk;d] MsLd vf/dkjh
New Delhi, the 26th August, 2013
S.O.1989.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 02/
2012) of the Central Government Industrial Tribunal-cum-
Labour Court, Asansol as shown in the Annexure, in the
Industrial Dispute between the management of Poniati
Workshop M/s. ECL, and their workmen, received by
the Central Government on 23-8-2013.
[No. L-22012/183/2011-IR (CM-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL -CUM-LABOUR COURT,
ASANSOL
Present : Sri Jayanta Kumar Sen, Presiding Officer
REFERENCE No. 02 of 2012
Parties : The management of Poniati Workshop, M/s.
ECL, Burdwan(WB)
Vs.
The Secy., CMSI (CITU), Jamuriahat, Burdwan
(W.B.)
REPRESENTATIVES :
For the management
:
None
For the union (Workman) :
Sri G. D. Mandal, Ld.
Representative
INDUSTRY: COAL
STATE: West Bengal
Dated- 14-03-13
AWARD
In exercise of powers conferred by clause (d) of Sub-
section (1) and Sub-section 2(A) of Section 10 of the
Industrial Disputes Act, 1947 (14 of 1947), Govt. of India
through the Ministry of Labour vide its Order No. L-22012/
183/2011-I.R. (CM-II) dated 08-02-2012 has been pleased
to refer the following dispute for adjudication by this
Tribunal.
SCHEDULE
“Whether the action of the management of Poniati
Workshop of M/s. ECL in not correcting the date of
appointment of Trainee as Date of Appointment for
employment in respect of S/Shri Netai Gopal Guin,
Shoke Kr. Mukherjee, Gangadhar Mondal, Ananta
Kr. Banerjee, Subhash Banerjee and Joudeb
Karmakar is fair and justified? To what relief the
workman concerned are entitled to?”
Having received the Order of Letter No. L-22012/
183/2011-I.R. (CM-II) dated 08-02-2012 of the above said
reference from the Govt. of India, Ministry of Labour, New
Delhi for adjudication of the dispute, a reference case No.
02 of 2012 was registered on 02-03-2012 and accordingly
an order to that effect was passed to issue notices through
the registered post to the parties concerned directing them
to appear in the court on the date fixed and to file their
written statements along with the relevant documents and
a list of witnesses in support of their claims. In pursuance
of the said order notices by the registered post were sent
to the parties concerned.
On perusal of the case record, it has been found
that Sri G.D. Mandal, President of the Union appears and
5208
THE GAZETTE OF INDIA : SEPTEMBER 21, 2013/BHADRA 30, 1935
[PART II—SEC. 3(ii)]
files a petition praying therein that the workmen are not
interested to proceed with the case any further. Since the
workmen are not interested to proceed with the case, the
case is closed and accordingly an order of ‘‘No Dispute
Award” is hereby passed.
ORDER
Let an ‘‘Award” be and the same is passed as ‘‘No
Dispute” existing. Send the copies of the order to the
Govt. of India, Ministry of Labour, New Delhi for
information and needful. The reference is accordingly
disposed of.
JAYANTA KUMAR SEN, Presiding Officer
ubZ fnYyh] 27 vxLr] 2013
dk-vk-1990-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh /kjk 17 ds vuqlj.k esa dsUnzh; ljdkj cSad vkWiQ
bafM;k ds izca/ra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqca/ esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/dj.k@Je U;k;ky;] ukxqij ds iapkV (lanHkZ la[;k 32@1999)
dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 01&8&2013 dks izkIr
gqvk Fkk A
¹la- ,y&12012@881@92&vkbZ vkj (ch-II)]
lqefr ldykuh] vuqHkkx vf/dkjh
New Delhi, the 27th August, 2013
S.O.1990.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. CGIT/
NGP/ 32/1999) of the Central Government Industrial
Tribunal/Labour Court, Nagpur now as shown in the
Annexure, in the Industrial Dispute between the
employers in relation to the management Bank of India,
and their workman, which was received by the Central
Government on 01-8-2013.
[No. L-12012/881/92-IR (B-II)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE SHRI J. P. CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No. CGIT/NGP/32/1999 date: 20-06-2013
Party No. 1
:
The Regional Manager,
Bank of India, Mul Road,
P.B. No. 15, Chandrapur-442401
Party No. 2
:
The Regional Secretary,
Bank of India,Workers’ Organization,
Gond Raja House Samadhi Ward,
Chandrapur
AWARD
(Dated: 25th June, 2013)
In exercise of the powers conferred by clause (d) of
sub-section (1) and sub-section 2(A) of section 10 of
Industrial Disptues Act, 1947 (14 of 1947) (‘‘the Act” in
short), the Central Government has referred the industrial
dispute between the employers, in relation to the
management of Bank of India and their 5 workmen, Rajjak
Kayam Qureshi, Shri Dharamdas Baburde, Shri
Purushottam, Shri Dinkar Indurkar, Barsagade and Shri
Narayan Punjaram Parehake to the Central Government
Industrial Tribunal —cum Labour Court, Jabalpur, for
adjudication, as per letter No. L-12012/881/88-D-2(A)
dated 10-08-1989, with the following schedule:—
“Whether Sh. Rajjak Kayam Qureshi, Sh.
Dharamdas Baburde, Sh. Purushottam, Sh.Dinkar
Indurkar, Barsagade and Sh. Narayan Punjaram
Parcheke, Budlee Sepoys of various branches of
Bank of India, are entitled to get the employment
by the Regional Manager, Bank of India, Chandraur?
If not, to what relief the workmen concerned are
entitled?”
Subsequently, the reference was transferred to this
Tribunal for adjudication in accordance with law.
2. On receipt of the reference, the parties were
noticed to file their respective statement of claim and
written statement and accordingly, the union, “Bank of
India Workers’ Organization”, (“the union” in short) filed
the statement of claim on behalf of the five workmen,
Rajjak Kayam Qureshi, Shri Dharamdas Baburde, Shri
Purushottam, Shri Dinkar Indurkar, Barsagade and Shri
Narayan punjaram Parehake , (‘the workmen” in short),
and the management of Bank of India, (“Party No.1” in
short) filed their written statement.
The case of the five workmen as presented by
the union in the statement of claim is that the party no.l
is a nationalized banking industry and it (union) is a trade
union duly registered under the Trade unions Act and the
service conditions of the employees of party no.l are
governed by the provisions of Sastry award, Desai award
and bipartite settlements signed under the Act and as
modified from time to time and being aggrieved by the
action of party no.l, an industrial dispute was raised by it,
on behalf of the five workmen before the Assistant
Labour Commissioner (Central), Chandrapur for their
regularisation and during the conciliation proceedings,
the party no.l agreed to consider the candidature of the
workmen for employment in the Bank and necessary
minutes duly signed by the parties were recorded by the
competent authority on 21.06.1989, but party no.l
breached the understanding, hence, the dispute was
referred to the Tribunal for adjudication. The further case
of the union is that the workman, Abdul Rajjak Qureshi
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 21] 2013@Hkkæ 30] 1935
5209
came to be appointed as a sub-staff at Warora branch of
party no.l, w.e.f. 05-08-1986 and his services were utilized
till June, 1989 and the salary paid to him was ranging from
Rs. 20/- to Rs. 30 per day, but surprisingly, the said salary
was paid to him through vouchers purported to have been
a reimbursement to the Branch Manager and he had put in
more than 240 days in 12 months period preceding the
date of termination and therefore, provisions of section
25-F of the Act are attracted and inspite of the
understanding reached before the ALC on 21.06.1989, he
was not absorbed in the employment of the bank on regular
basis and workman Shri Dharamdas Bamburde came
to be appointed on 06.04.1987 at Bhadrawati branch of
party no.l as a sub-staff and the wages paid to him were
Rs. 40/- per day and he had put in more than 1500 days in
the services of the bank, but his services, however have
not been regularized and the workman Shri Narayan
Punjaram Purchake was appointed at Warora branch w.e.f.
13-04-1987 as a sub-staff and the payment of salary was
made to him through vouchers and the said workman was
one of the employees,whose name was included in the
understanding reached before the ALC, Chandra pur on
21-06-1989, but in breach of the said understanding, the
employee has not been regularized or absorbed in the
employment of the Bank. It is also pleaded by the union
that the workman, Shri Diwakar Namdeo Barsagade came
to be appointed at Bangaram Talhodi branch of the party
no.1 as a sub-staff w.e.f. 23-03-1988 and he had put in
more than 1800 days of service in the bank and for
performing the duties of sub-staff, he had been paid wages
@ Rs. 45.35 per day and the payment was being credited
in the account of the workman maintained in the branch
and the services of the said workman have neither been
regularized nor he has been appointed in the services of
the bank and the workman, Shri Indurkar came to be
appointed as a sub-staff at NERI branch in the year 1984
and he had put in more than 240 days of service in the
bank and his name was included in the memorandum of
understanding dated 21-06-1989 reached before the ALC,
Chandrapur, but he has not been regularized much less
employed by the bank and as per the Shastry award, the
employees in the banking industry have been classified
into three categories, namely, permanent employee,
probationer and temporary employee and no other
category of employee has either been suggested or
permitted by Sastry award and from the manner, in
which the workmen were appointed and the nature
of the duties performed by them, it can be found that
the workmen were appointed against permanent
vacancies and they cannot be treated as temporary
employee, because temporary employee cannot be
appointed for more than 3 months and para 20.8 of
the bipartite settlement gives right of inclusion of
temporary period put in by any such employee as part
of the probationary period, in case the said employee is
subsequently selected for permanent absorption in the
services of the bank and the action of the party no.1 in
treating the five workmen as badli employees is against
the provisions of Sastry award and by virtue of having
put in more than one year of continuous service, in terms
of the Act, the five workmen automatically achieved the
status of permanent employee and they are entitled for
the status of permanent employee as per Sastry Award
and for regular employment in the services of the Bank
and as the five workmen had put in more than 240 days of
work, it was necessary for the party no.1 to follow the
procedure prescribed under section 25 of the Act, before
termination of their services and party no.1 neither paid
any retrenchment compensation nor conducted any
departmental enquiry against the five workmen, before
their termination and no notice was also served on the
workmen, before their termination and as such, the five
workmen are entitled for their absorption as permanent
sub-staff in the services of the bank with immediate
effect and all consequential benefits.
3. The party no.1 in the written statement has
pleaded inter-alia that the understanding dated
21-06-1989 was only a proposal which ultimately did
not materialize and the workman, Shri A.R. Qureshi was
engaged purely on casual basis,during the leave vacancy
of the permanent sepoy and he worked for 60 days, one
day, 118 days and 62 days in the leave vacancy in the years
1986, 1987, 1988 and 1989 respectively and as the
engagement of the said workman was on casual basis, his
pay was drawn out of the funds of the branch manager,
who was to reimburse the expenses and Shri Qureshi was
required to do the duties of the sub-staff, in whose
absence he had been engaged and Shri Qureshi had not
put in more than 240 days of work in 12 months preceding
the termination and as such, the provisions of section
25-F of the Act are not applicable to his case and his
appointment on each occasion was for a fixed period in
casual vacancy and as such, the non-renewal of the said
contract is clearly beyond the purview of the definition
of retrenchment as per section 2 (oo) of the Act and
therefore, the question of compliance of provisions of
section 25-F doesn’t arrive. It is further pleaded by the
party no.1 that the services of the workman, Shri
Dharamdas Bamburde were utilized in the leave/
suspension vacancy of one Shri V.M. Katkar and his
services were utilized according to his ability at
Bhardrawati Branch and he worked for 94 days, 42 days
and 39 days in 1987, 1988 and 1989 respectively and
the claim made by him of having putting more than 1500
days of services is quite wrong and is denied and the
workman being a casual workman is not entitled to
permanency/regularisation as claimed by him. The further
case of party no.1 is workman, Shri Narayan punjaram
Purchate was engaged at Warora branch on casual basis
5210
THE GAZETTE OF INDIA : SEPTEMBER 21, 2013/BHADRA 30, 1935
[PART II—SEC. 3(ii)]
in the leave vacancy of permanent sepoy and he worked
for 37 days, 65 days and 25 days in 7, 1988 and 1989
respectively and the workman is not entitled for
regularisation/absorption in permanent employment of the
bank and the workman, Shri D.N. Barsagade was appointed
Bhangaram Talodhi branch on casual basis and he had
not put in 1800 days of service as alleged and he worked
on casual basis/leave vacancies for 64 days and 4 days in
1988 and 1989 respectively and he is not entitled for
regularisation or absorption in the permanent service of
the bank and the workman Shri Indurkar was engaged on
casual basis in the leave vacancy permanent sepoy/
sweeper and he did not put in more than 240 days of
service and he worked on casual basis for 34 days, 19
days, Nil day, Nil day and four days in the years 1985,
1986, 1987, 1988 and 1989 respectively. The further case
of the party no.1 is that the engagement of five all the
workmen was on casual basis for a specific period in
various leave vacancies and their such engagement
automatically came to an end, after the expiry of the
stipulated period and as the disengagement of the five
workmen doesn’t amount to termination of their service:
provisions of section 25-F of the Act are not applicable
and the reference is not maintainable and the five
workmen are not entitled to any relief.
4. In support of the claim, the union has examined
six witnesses including two workmen, besides placing
reliance on the documentary evidence. The witnesses
examined by the union are (1). Shri Rajjak Qureshi
(workman), (2). Shri P.G.lndurkar(workman), (3). Shri
Vinayak Joshi Shri Shirish A. Damle, (5). Shri Arvind M.
Tamhaney and (6). Shri Rajendra M. Dahikar.
No oral evidence has been adduced by the Party
No.1.
5. At the outset, I think it necessary to mention
that it is settled beyond doubt by principles enunciated
by the Hon’ble Apex Court in a string of decisions that
the Tribunal can not travel outside the terms of reference
and the jurisdiction of the Tribunal in industrial dispute
is limited to the points specifically referred for its
adjudication and to matters incidental there to.
6. During the course of argument, it was submitted
by the union representative that the workmen were
appointed by the respective Branch Managers with the
consent and approval the Zonal Manager and they were
sponsored by the Employment Exchange and they
performed the duties of full time peons, although they
were paid on daily wage basis and they worked
continuously between 1984 to 1989 and despite the
existence of permanent vacancies, Party No.1 did not
regularize the workmen and there was violation of the
mandatory provisions of Sections 25-F, 25-G and 25-H
of the Act and the Party No.1 adopted unfair labour
practice. It was further submitted by the union
representative that Party No.1 has virtually admitted the
allegations made in the statement of claim, in their
written statement and the oral evidence adduced by
the workmen, which has not been challenged seriously
in the cross-examination, the documentary evidence
produced by the workmen and absence of any rebuttal
evidence from the side of Party No.1 have fully proved
the claim of the workmen and as such, the workmen are
entitled for reinstatement in service with continuity, full
back wages and all consequential benefits. It was also
submitted by the union representative that during the
conciliation proceedings before.the ALC, Chandrapur,
Minutes of understanding were signed by the union and
party no.1 and party no.1 assured to absorb the workmen,
Shri Qureshi and Shri Bamburde and also gave assurance
for absorption of the three other workmen, but party no.l
did not implead the said settlement, which is quite illegal
and the workmen are entitled for their absorption against
permanent vacancies.
It was further submitted by the union representative
that though the Tribunal passed orders directing the Party
No.1 to produce the relevant documents, the Party No.1
failed to produce the documents and as such, adverse
inference is to be drawn against Party No.1 and the
reference is to be answered in favour of the workman.
7. Per contra, it was submitted by the representative
for the Party No.1 that the workmen were engaged on
purely casual basis temporally for different spells, in the
respective branches and their engagement was as and
when required basis, due to taking of leave by the
permanent Sub-staff or temporary increase of work load in
the branch and none of the workmen completed 240 days
of work in the preceding 12 calendar months of the alleged
date of termination and the workmen have admitted such
facts and the evidence on affidavits of the witnesses
examined by the workmen are general affidavits and no
reliance can be placed on the same, as no document has
been produced by the workmen to demonstrate that they
had worked for 240 days in the preceding 12 months of the
alleged date of termination and the workmen have failed
to discharge the burden of proving that in fact they had
worked for 240 days in the preceding 12 months of the
date of termination, so the provisions of the Act are not
applicable and adverse inference is not to be drawn for
non production of the documents and Party No.1 did not
adopt any unfair labour practice and the workmen are not
entitled to any relief.
In support of the submissions, reliance was placed
by Party No.1 on the decisions reported in AIR 2004 SC -
4791 (M.P. Electricity Board Vs Hariram), (2006) 1 SCC -
106 (R.M. Yellatti Vs. Asstt. Executive Engineer), (2006)
9 SCC - 697 (Krishna Bhagya Jal Nigam Ltd. Vs. Mohd.
Raffi), (2006) 9 SCC - 132 (Surendra Nagar District
Paanchayat Vs. Gangaben), Writ Petition No. 1072/2002
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 21] 2013@Hkkæ 30] 1935
5211
of Hon’ble Bombay High Court, Nagpur Bench, (2006) 6
SCC - 221 (Reserve Bank of India Vs Gopinath Sharma)
and AIR 2006 S.C. - 839 (Regional Manager, SBI Vs Rakesh
Kumar).
8. First of all, I will take of the submission made by
the union representative regarding drawing of adverse
inference against the party no.1, for non production of the
documents. Admittedly, order was passed by the Tribunal
directing the party no.1 to produce documents as
demanded by the union. However, the party no.1 failed to
produce the documents. The terms of reference in this
case is as to whether the five workmen are entitled to get
the employment. On perusal of the materials on record
including the pleadings of the parties, it is found that the
claim of the workman about their engagement on
different branches on casual basis on daily wages has been
admitted by the party no.1 in the written statement. Except
the workman, Shri Abdul Rajjak Qureshi, the other four
workmen have not claimed that they had infact worked
for 240 days in the preceding 12 calendar months of the
date of termination. Moreover,the union during the
course of hearing of the case has produced almost all
the documents, which it had demanded for production by
party no.1. In view of such admitted facts and applying
the principles enunciated by the Hon’ble Apex Court in
the decisions reported in AIR 2004 S.C-4791 (supra) and
(2006) 1 5CC-106 (supra) in regard to drawing of adverse
inference for non production of documents by a party, to
the case in hand, it is found that there is no need to draw
adverse inference against the party no.1 for the non
production of the documents.
9. Though the reference has been made by the
Central Government for adjudication of the dispute as to
whether the workmen are entitled to get employment,
the union, in the guise of raising the dispute on behalf
the workmen has tried to challenge the policy adopted
by the party no.1 of engaging persons on temporary basis,
inspite of having number of permanent vacancies in the
cadre of sub-staff at different branches of the Bank. In
view of the settled principles that the Tribunal cannot
travel beyond the terms of reference as already
mentioned above and in view of the fact that such specific
terms of reference has not been made by the Government,
such claim cannot be adjudicated.
Moreover, from the materials on record including
the pleadings of the parties, it is found that the
engagement of the workmen in this case by party no.1
was not against any permanent vacancy in the branch, but
their engagement was on temporary basis as daily wages,
as and when required basis, against leave vacancy of the
permanent sub-staff or due to temporary increase of
workload in the branch.
10. At this juncture, I think it necessary to mention
the principles enunciated by the Hon’ble Apex Court in
the decision reported in (2006) 6 SCC-221 (supra). The
Hon’ble Apex Court has held that:-
“Labour Law-Daily wager-Disengagement of-
Validity-Workman not appointed to any regular post
but engaged on the basis of need of work on day to
day basis, held had no right to post.”
10. At this juncture, I also think it necessary to
mention about the principles enunciated by the Hon’ble
Apex Court in a catena of decisions including the decision
reported in AIR 2006 SC-1806 (Secretary, State of
Karnatak Vs. Umadevi & others)(Constitutional Bench).
It is settled beyond doubt by the Hon’ble Apex Court
that:-
“Rules. of recruitment cannot be relaxed and the
court/Tribunal cannot direct regularisation of temporary
appointees de hors of rules-State owned/operated
corporations-Appointment-Modes of appointment - Held
regularization cannot be a mode of appointment- Public
Sector- Appointment- Mode of appointment-Held,
regularization cannot be a mode of appointment- Labour
Law- Appointment- Mode of appointment-Held,
regularization cannot be a mode of appointment-
Regularization-Held, not a permissible mode of
appointment.”
It is also settled by the Hon’ble Apex Court that:
“The term ‘temporary employee’ is a general
category which has under it several sub-categories e.g.
casual employee, daily-rated employee, ad hoc employee,
etc. A daily-rated or casual worker is only a temporary
employee, and it is well settled that a temporary
employee has no right to the post, or to be continued in
service, to get absorption, far less of being regularized
and getting regular pay. No doubt, there can be occasions
when the state or its instrumentalities employee persons
on temporary or daily wage basis in a contingency as
additional hands without following the required
procedure, but this does not confer any right on such
persons to continue in service or get regular pay. Unless
the appointments are made by following the rules, such
appointees do not have any right to claim permanent
absorption in the establishment. The Court cannot direct
continuation in service of a non-regular appointee. Even
if an ad hoc or casual appointment is made in some
contingency the same should not be continued for long,
as was done in the present case. A casual or temporary
employment is not an appointment to a post in the real
sense of the term. The argument that since one has been
working for some time in the post, it will not be just to
discontinue him, even though he was aware of the nature
of the employment when he first took it up, is one that
would enable the jettisoning of the procedure establish
by law for public employment.”
5212
THE GAZETTE OF INDIA : SEPTEMBER 21, 2013/BHADRA 30, 1935
[PART II—SEC. 3(ii)]
It is also settled by the Hon’ble Apex Court that:-
“Employment on daily wage - Confers no right of
permanent employment- Daily wager appointed on less
than minimum wages - Not forced labour - Continued on
post for long period - Daily wagers from a class by
themselves - They cannot claim parity vis-a-vis those
regularly recruited on basis of relevant rules and cannot
be made permanent in employment.
Employees were engaged on daily wages in the
concerned department on a wage that was made known to
them. There is no case that the wage agreed upon was no
being paid. Those who were working on daily wages
formed a class by themselves, they cannot claim that they
are discriminated as against those who have been regularly
recruited on the basis of the relevant rules. No right can
be founded on an employment on daily wages to claim
that such employee should be treated on a par with a
regulary recruited candidate and made permanent in
employment even assuming that the principle could be
invoked for claiming the equal wages for equal work. There
is no fundamental right in those who have been employed
in daily wages or temporally or on contractual basis, to
claim that they have a right to be absorbed in service.
They canno be said to be holders of a post, since, a regular
appointment to be made only by making appointments
consistent with the requirements of articles 14 and 16 of
the Constitution The right to be treated equal with the
other employees employed on daily wages, cannot be
extended to a claim for equally treatment with those who
were regularly employed That would be treating unequal
as equals. It cannot also be relied on to claim a right to be
absorbed in service even though they have never been
selected in terms of relevant recruitment rules.”
Keeping in view the settled principles as mentioned
above, now, the present case in hand is to be considered.
11. So far the oral evidence adduced by the union in
regard to the appointment and working days of the five
workmen is concerned, it is found that the workman, Shri
Purosottam Giridihar Indarkar in his examination-in-chief,
which is on affidavit has stated that he had completed 24
days of work before his termination. However, such
statement cannot be taken into consideration, in absence
of such pleadings in the statement of claim. In the statement
of claim it has been only mentioned that Shri Indurkar was
appointed as sub-staff at NERI branch in 1984 and he put
in 240 days service in the bank and though his name was
included in the memorandum of understanding dated 21-
06-1989, he was not regularized. Nothing has beer
mentioned as to the date on which the said workman was
appointed or the date on which, he was terminated from
services. Moreover, in his cross-examination, Shri Indurkar
has admitted that he has not filed any document to show
that his selection was made by the bank for any post and
that he worked for 953 days in total at NERI branch and
that he had worked for more than 240 days before his
termination and that he had completed 249 days of work
from 17-6-1988 to 16-06-1989.
Workman, Shri Qureshi in his examination-in-
chief, which is on affidavit, has stated that all the workmen
including himself had completed 240 days of work
before their termination. However, it is to be mentioned
here that in absence of any pleadings in respect of the
other four workmen about their working for 240 days
before their termination and about the date of their
respective termination in the statement of claim, the
evidence of Shri Qureshi in regard to the other four
workmen in that respect cannot be looked into and cannot
be considered. In his cross-examination, Shri Qureshi
has admitted that in his affidavit dated 16-11-1995, he
had claimed that he had worked for 350 days in total,
where as in his affidavit dated 16-10-2012, he has claimed
to have worked for 797 days in total till 16-06-1989
and he was engaged by the Branch Manager on daily
wages as and when required in the Branch and no
appointment order was issued by the bank and he has not
filed any document to show that he had worked for
240(days in the preceding 12 months of the date of his
termination. Though Shri Qureshi has claimed that he
worked for 240 days in the 12 calendar months of his
date of termination, there is no legal evidence on record
in that regard. Shri Qureshi has failed to prove the said
fact be producing any document in that respect.
It is to be mentioned here that the workmen, Shri
Dharamdas Bamburde, Shri Narayan punjaram Parchake
and Shri Diwakar Namdeo Barsagade did not appear as
witnesses in this case.
So far the evidence of Shri Vinayak Joshi, Shri Shirish
Anandrao Damle, Shri Arvind M Tamhaney and Shri
Rajendra M. Dahikar is concerned, the same is very general
in nature and most part of their evidence is regarding the
availability of vacancies in the Sub-Staff Cadre in different
branches of the Bank of Party No.1 and in respect of the
policy adopted by Party No.1 regarding engagement of
badlee sepoy/peon instead of filling up the posts by
making regular recruitment, which is not the subject matter
of adjudication in this reference, as alread mentioned
above.
Shri Joshi in his examination-in-chief without
mentioning the name of the workman has generally
mentioned that every workman covered by the reference
has completed 240 days in consecutive 12 months period.
Shri Joshi has not stated that each of the workmen in fact
had worked for 240 days in the preceding 12 months of the
date of termination. Nothing has also been mentioned by
Shri Joshi about the period during which every workman
involved in the reference completed 240 days in a
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 21] 2013@Hkkæ 30] 1935
5213
consecutive 12 months period. In his cross-examination,
Shri Joshi has stated that the method of recruitment of
sub-staff is to call for the names from the Employment
Exchange and after interview, to select suitable candidates
for permanent temporary, full time and part time employees
and in small branches having only one sub-staff temporary
arrangements have to be made by the Branch Manager
with consultation with administrative office, which the
said sub-staff proceeds on leave or sick and as per the
document Ext. W-10, Bank is allowing to appoint sub-staff/
sepoy on casual basis in small branches.
Shri Damle, in his cross-examination has stated that
the Bank has authorized the manager to engage casual
employees.
The evidence of Shri Arvind M. Tamhaney in his
examination-in-chief itself contradictory to the stand taken
by the union and the workman in the statement of claim.
According to the union the workmen worked continuously
from 1984 to 1989, without any break, where as, in paragraph
24 of his affidavit, Shri Tamhaney has mentioned that, In
the instant case, the concerned employee was given illegal
break in service by management on many occasions
without any reason and with malafide intention.”
Moreover, in his cross-examination, Shri Tamhaney
has admitted that his affidavit is , general affidavit and the
same does not have any specific reference to the concerned
workmen and the workmen were working with the Bank
intermittently for several years and he has not mentioned
as to the period of engagement of the workmen or the
number of days they worked for the Bank.
12. On perusal of the materials on record and taking
into consideration the submissions made during the course
of argument by both the parties, it is found that the
workmen were engaged as Badlee Sepoys in different
branches on daily wages basis and they worked in the
respective branches intermittently in the leave vacancy of
permanent Sub-staff or when there was temporary increase
of work in the branch. The appointment of the workmen
was not against any permanent post. It is to be mentioned
here that the submission made by the union representative
that the workmen were appointed by the Branch Manager
with the approval of the Zonal Manager and their names
were sponsored by the Employment Exchange cannot be,
entertained, in absence of such pleadings in the statement
of claim and evidence on record in that regard. It is clear
from the record that the appointment of the workmen was
not in accordance of the Rules of recruitment of Party
No.1 It is also clear from the own pleadings of the workmen,
except Shri Qureshi that they did not work for 240 days in
the preceding 12 calendar months of the alleged date of
termination. Shri Qureshi has also failed to prove that in
fact he had worked for 240 days in the preceding 12 months
of the date of his termination, already mentioned above.
To avail the benefits of Section 25-F of the Act, it is
necessary to show that infact the workmen had worked
for 240 days in the preceding 12 months of the date of
termination. As admittedly, the workmen did not work for
240 days in the preceding 12 months of the date of
termination, there was no need for Party No.1 to comply
the provisions of Section 25-F of the Act.
13. On perusal of the record, it is found that there
was no understanding reached between the parties before
the Assistant Labour Commissioner on 21-06-1989, as
claimed by the union in the statement of claim. However,
there is a copy of the minutes of the conciliation meeting
held on 24-01-1990 in respect of the strike notice served
by the union against the party no.1 on 21-06-1989. On
perusal of the said document, it is found that the party
no.1 had agreed to consider the appointment of Shri
Qureshi and Shri Bamburde in the vacancies that may arise
in future after fulfilling all the requirements as per rules
and that the union had withdrawn the cases in respect of
the other workmen. There is no evidence on record to
show that the workmen, Shri Qureshi and Shri Bamburde
fulfilled all the requirements as per rules and inspite of the
same, the party no.1 did not appoint them. So, the aforesaid
two workmen are not entitled for appointment on the
basis of the minutes of the conciliation meeting held
on 24-01-1990.
14. At this juncture, I think it proper to mention
about the principles envisaged by the Hon’ble Apex
Court in the decisions reported in (2006) 6 SCC 221 (Supra)
and.AIR 2006 SC - 839 (Supra).
In the decisions reported in (2006) 6 SCC 221 (Supra)
the Hon’ble Apex Court have held that:
“Labour law - Daily wager - Disengagement of -
Validity - Workman not appointed to any regular post but
engaged on the basis of need of work on day to day basis,
held, had no right to the post - Hence, his disengagement
on acquiring a qualification exceeding the maximum
prescribed, held, could not be treated as arbitrary or
amounting to wrongful dismissal within the meaning of
item 3 of schedule II to Industrial Disputes Act, 1947 -
High Court erred in holding otherwise - Industrial Disputes
Act, 1947, schedule II item 3 - Wrongful dismissal - What
is not - Post - Right to - Daily wager, held, devoid of such
a right.
Labour law - Industrial Disputes Act, 1947 - Ss. 25G
and 25F-Applicability of Section 25G - Where High Court
had not found the workman to have been retrenched within
the meaning of S. 25F, held, it erred in holding S. 25G to be
applicable.
5214
THE GAZETTE OF INDIA : SEPTEMBER 21, 2013/BHADRA 30, 1935
[PART II—SEC. 3(ii)]
In the decision reported in AIR 2006 SC - 839 (Supra)
the Hon’ble Apex Court have held that:
“Retrenchment - Respondent employed as
messenger on daily wage basis by bank - No
appointment letter issued to him - Termination of his
service -Reference was not made regarding validity
of retrenchment under S. 25G - But for not considering
respondent for reemployment under S. 25H - Order
of reference did not refer to S. 25G but only to S. 25H
- Thus finding by Tribunal that order terminating
services of respondent was in violation of S. 25G -
illegal-Further respondent in his application under
S. 33-C(2) never raised plea that his services were
illegally terminated - In circumstances High Court’s
view that termination of services of respondent was
invalid under S. 25H - Not sustainable as S. 25H
proceedes on assumption that retrenchment has
been validly made. Industrial Disputes Act (14 of
1947), schedule 3 item 1 - Shastry Award, para 497 -
Benefit under - Respondent employed by bank on
ad hoc basis - no appointment order was issued -
Dispensation of his services - Not in violation of
para 497.
Para 497 deals with the right of apprentices and
has no application to temporary employees like the
respondent. Assuming that there was a violation of
the Shastry Award by the appellant bank in both
cases either in not issuing appointment letters or
not maintaining a seniority list, service book in
respect of temporary employees etc., this would
not mean that therefore the respondent had been
properly appointed and their services wrongly
terminated. Admitted no procedure whether in law
or under any award or settlement was followed
either of the respondents in both appeals. No
conditions of services were agreed to and no letter
of appointment was given. The nature of the
respondents employment was entirely ad hoc. They
had been appointed without considering any rule.
It would be ironical if the person who have benefited
by the flouting of the rules of appointment can rely
upon those rules when their services are dispensed
with.”
Judging the case in hand with the touch stone of
the principles enunciated by the Hon’ble Apex Court as
mentioned above, it is found that there is no merit in the
case of the workmen and they are not entitled to any relief.
Hence, it is ordered:-
ORDER
The reference is answered in negative and against
the workmen. The five workmen are not entitled to any
relief.
J. P. CHAND, Presiding Officer
ubZ fnYyh] 27 vxLr 2013
dk-vk-1991-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh /kjk 17 ds vuqlj.k esa] dsUnzh; ljdkj cSad vkWiQ
bafM;k eqEcbZ ds izca/ra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa
ds chp] vuqca/ esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj
vkS|ksfxd vf/dj.k@Je U;k;ky;] ukxiqj ds iapkV (lanHkZ la[;k
28@1999) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 01&08&2013
dks izkIr gqvk Fkk A
¹la- ,y&12012@91@94&vkbZ vkj (ch&II)º
lqefr ldykuh] vuqHkkx vf/dkjh
New Delhi, the 27th August, 2013
S.O.1991.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 28/1999)
of the Central Government Industrial Tribunal-cum-Labour
Court, Nagpur as shown in the Annexure, in the Industrial
Dispute between the Bank of India and their workman,
which was received by the Central Government on 01-08-
2013.
[No. L-12012/91/94-IR (B-II)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE SHRI J.P. CHAND, PREIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No.CGIT/NGP/28/1999 Date: 24-06-2013.
Party No.1
The Regional Manager,
Bank of India, Regional Office,
13, Mul Road, Chandrapur-442401.
Party No.2 Shri S.R. Tripurwar, Regional Secretary,
Bank of India workers organization,
"Om Niwas" Laxmi nagar, Wadgaon Rd.,
Chandrapur-44240 1.
AWARD
(Dated: 24th June, 2013)
In exercise of the powers conferred by clause (d) of
sub-section (1) and sub-section 2(A) of Section 10 of
Industrial Disputes Act, 1947 (14 of 1947) ("the Act" in
short), the Central Government had referred the industrial
dispute between the employers, in relation to the
management of Bank Of India and their workman, Shri
Vijaya Vishwanath Kapkar, for adjudication, as per letter
No.L-12012/91/94-IR (B-II) dated 26-09-1994, with the
following schedule:—
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 21] 2013@Hkkæ 30] 1935
5215
"Whether the demand of the Bank of India workers'
Organisation, Chandrapur on the management of Bank of
India, Chandrapur for regularisation of the services of Shri
Vijaya Vishwanath Kapkar as Sepoy is justified? If so, what
relief is the said workman entitled to?"
2. On receipt of the reference, the parties were noticed
to file their respective, statement of claim and written
statement
and
accordingly,
the
workman,
Shri VijayaVishwanath Kapkar, ('the workman" in short),
filed the statement of claim through the union, "Bank of
India Workers' Organisation", ("the union" in short) and
the management of Bank of India, ("Party No. 1" in short)
filed their written statement.
The case of the workman as presented by the union
in the statement of claim is that party no. 1 is a nationalized
bank and it (union) is a registered trade union and the
service conditions of the employees of the bank are inter-
alia governed by the provisions of Sastry Award, Desai
Award and bipartite settlements signed under the Act and
the workman was appointed as a Sepoy after due interview
at Armori Branch on 02.01.1989 and since then, he worked
as such with artificial breaks given by party no. 1 and he
worked for 124 days, 226 days, 294 days, 296 days and 127
days in 1989, 1990, 1991, 1992 and up to July, 1993
respectively and the above days were actual working days
of the workman excluding the Sundays and holidays, for
which, payment was not made by party no. 1 and the
services of the workman were utilized by party no.1 for the
work, which was essentially of permanent nature and regular
work of sub-staff was extracted from the workman and
persons, who were juniors to the workman in service were
regularized by party no. 1. It is further pleaded by the union-
on behalf of the workman that Sastry Award has classified
the employees working in the Bank into three categories,
viz, permanent, temporary and probationary and as per the
definition, employees, who are appointed for the work of
permanent nature are termed as permanent employees and
clause 20.8 of the Bipartite settlement provides that
management should fill in the temporary vacancy within
three months and if a temporary employee is eventually
selected for permanent absorption, his temporary period
of service should be treated as part of the probation period
and even though, party no. 1 utilized the services of the
workman for the job of permanent nature for a period of
more than 1067 days, he was not given the status of
permanent employee and his services were not regularized
by party no. 1 and such action of party no. 1 was in gross
violation of the provisions of Sastry Award and bipartite
settlement and tantamounts to unfair labour practice and
the breaks given to the workman were artificial breaks, to
avoid obligation of law, but however, the workman had put
in more than 240 days of work in a calendar year preceding
the date of termination and as such, provisions of Section
25-F of the Act were required to be complied with before
the termination of the workman and the termination of the
workman without compliance of the provisions of section-
25-F amounts to retrenchment and in this view of the matter,
the workman is entitled to be deemed as a permanent
employee and party no. 1 can keep an employee on
temporary basis for a period of not more than three months
and therefore, the workman was entitled for the status and
benefits of permanent/regular employee, the moment he
had complete six months of continuous service.
The union has prayed for a direction to the party no.
1 to regularize the services of the workman in sub-staff
cadre on permanent basis, with all consequential benefits
and to pay appropriate wages as per bipartite settlement
with retrospective effect.
3. The party no.1 in the written statement has
pleaded inter-alia that the workman was not appointed as
a Sepoy after due interview, but he was engaged on casual
basis, as and when, the regular sepoy of Armore branch
used to remain on leave or in the event of increase of
workload, to maintain the minimum customer service and
the services of the workman was utilized in the said branch
on various leave vacancies, arose due to the regular staff
either being on leave or being absent for other reasons
and he was paid on daily wages basis and clause 20.7 of
the first bipartite settlement dated 19-10-1966 permits the
bank to engage the services of temporary/casual sepoys
in the leave vacancy of regular subordinate staff and as
such, irrespective of the number of days for which the
workman had worked, he is not entitled for regularisation/
permanency and the nature of work performed by the
workman was that of the permanent employee, in whose
leave vacancy he was engaged to work and as the
engagement to the workman was on casual basis, there
was no question of regularisation of junior persons and
the workman is not entitled for claiming the status of a
permanent employee or regularisation on the basis of his
such engagement and its action in not regularizing the
workman was never in violation of any term of Sastry
Award or bipartite settlement and as the engagement of
the workman was on casual basis, there is question of his
claiming seniority. It is further pleaded by party no. 1 that
provisions of section 25-F of the Act apply only in the
case of retrenchment as defined u/ s. 2(oo) of the Act and
as the engagement of the workman was for specific periods
in various leave vacancies, his such engagement
automatically coming to an end after expiry of such period,
as per the stipulation of the contract of employment and
the same falls in clause (bb) of section 2 (oo) of the Act
and as the present reference does not pertain to any
termination of service, the provisions of Section 25-F of
the Act are not applicable and such claim is wholly
misplaced and casual/temporary workman on completion
of six months of continuous service is not entitled to the
status and benefits of a permanent/regular employee and
5216
THE GAZETTE OF INDIA : SEPTEMBER 21, 2013/BHADRA 30, 1935
[PART II—SEC. 3(ii)]
there is absolutely no basis for making such a claim on
behalf of the workman and the workman is not entitled to
any relief.
4. In support of the claim, the union has examined
six witnesses including the workman. The witnesses
examined by the union are, (1) Shri Vijay Vishwanath
Kapekar (workman), (2) Shri Vinayak Joshi, (3) Shri
Shirish A. Damle, (4) Shri Arvind M. Tamhaney, (5) Shri
Rajendra M. Dahikar and Shri Somnath Narayan Zarkar
No oral evidence has been adduced by the party no.l.
5. At the outset, I think it necessary to mention that
it is settled beyond doubt by the principles enunciated by
the Hon'ble Apex Court in a string of decisions that the
Tribunal cannot travel outside the terms of reference and
the jurisdiction of the Tribunal in industrial disputes is
limited to the points specifically referred for its
adjudication and to matters incidental thereto.
6. During the course of argument, it was submitted
by the union representative that the workman was engaged
as a peon on 02.01.1989 at Armori Branch of party no. 1
and the appointment of the workman was made by the
branch manager with the consent and approval of the zonal
manager and he was sponsored by the employment
exchange and the workman was required to perform the
duties of a full time peon, although he was paid on daily
wages basis and between 2nd January, 1989 to 16th August,
1996, he put in 2082 days of employment and despite the
existence of a permanent vacancy, Party No.1 did not
regularize the workman and there was violation of the
mandatory provisions of Sections 25-F, 25-G and 25-H
of the Act and the Party No.1 adopted unfair labour
practice. It was further submitted by the union
representative that Party No.1 has virtually admitted the
allegations made in the statement of claim, in their written
statement and from the oral evidence adduced by the
workman, which has not been challenged seriously in the
cross-examination and the documentary evidence
produced by the workman it can be held that the claim of
the workman has been fully proved and as such, the
workman is entitled for reinstatement in service with
continuity, full back wages and all consequential benefits.
7. Per contra, it was submitted by the
representative for the party no. 1 that the workman came to
be appointed as sepoy at Armori branch on casual basis
and against the leave vacancy due to the absence of
permanent staff posted in the branch and the workman
during his cross-examination has categorically admitted
that he was orally directed to join duty and no appointment
order was issued and he was engaged on daily wages
basis and the workman did not complete 240 days of work
in the preceding 12 calendar months of the alleged date of
termination and the workman has admitted such facts and
the evidence on affidavits of the witnesses examined by
the workman are general affidavits and no reliance can be
placed on the same, as no document has been produced
by the workman to demonstrate that he had worked for 240
days in the preceding 12 months of the alleged date of
termination and the workman has failed to discharge the
burden of proving that in fact he had worked for 240 days
in the preceding 12 months of the date of termination, so
the provisions of the Act are not applicable and adverse
inference is not to be drawn for non production of the
documents and Party No.1 did not adopt any unfair labour
practice and the workman is not entitled to any relief.
In support of the submissions, reliance was placed
by Party No.1 on the decisions reported in AIR 2004 SE -
4791 (M.P. Electricity Board Vs Hariram), (2006) 1 SCC - 106
(R.M. Yellatti Vs Asstt. Executive Engineer), (2006) 9 SCC -
697 (Krishna Bhagya Jal Nigam Ltd. Vs Mohd. Raffi), (2006)
9 SCC-132 (Surendra Nagar District Paanchayat Vs
Tiangaben), Writ Petition No. 1072/2002 of Hon'ble Bombay
High Court, Nagpur Bench, (2006) 6 SCC - 221 (Reserve
Bank of India Vs Gopinath Sharma) and AIR 2006 S.C. - 839
(Regional Manager, SBI Vs. Rakesh Kumar).
8. First of all, I will take of the submission made by
the union representative regarding drawing of adverse
inference against the party no. 1 for non production of the
documents. Admittedly, order was passed by the Tribunal,
directing the party no. 1 to produce documents as
demanded by the union. However, the party no. 1 failed to
produce the documents. The terms of reference in this case
is regarding the legality or otherwise of the demand of the
union for the regularisation of the workman in the services
of the Bank. On perusal of the materials on record including
the pleadings of the parties, it is found that the claim of the
workman about his engagement on 02.01.1989 as a sepoy
at Armori branch and that he worked there after has been
admitted by the party no. 1 in the written statement.
Moreover, copies of most of the documents demanded by
the union were produced by the union itself during the
course of hearing of the case. In view of such admitted
facts and the principles enunciated by the Hon'ble Apex
Court in the decisions reported in AIR 2004 S.C-4791 (supra)
and (2006) 1 SCC-106 (supra) in regard to drawing of adverse
inference for non production of documents by a party, to
the case in hand, it is found that there is no need to draw
adverse inference against the party no. 1 for the non
production of the documents.
9. Though the reference has been made by the Central
Government for adjudication of the legality or otherwise of
the demand of the union for the regularisation of the
workman in the services of the Bank, the union, in the
guise of raising the dispute on behalf the workman has
tried to challenge the policy adopted by the party no. 1
of engaging persons on temporary basis, inspite of
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 21] 2013@Hkkæ 30] 1935
5217
having number of permanent vacancies in the cadre of
sub-staff at different branches of the Bank. In view of the
settled principles that the Tribunal cannot travel beyond
the terms of reference as already mentioned above and in
view of the fact that such specific terms of reference has
not been made by the Government, such claim cannot be
adjudicated.
10. At this juncture, I think it necessary to mention
the principles enunciated by the Hon'ble Apex Court in the
decision reported in (2006) 6 SCC-221 (supra). The Hon'ble
Apex Court have held that :—
“Labour Law-Daily wager-Disengagement of-Validity-
Workman not appointed to any regular post but engaged
on the basis of need of work on day to day basis, held had
no right to post.”
11. At this juncture, I also think it necessary to
mention about the principles enunciated by the Hon'ble
Apex Court in a catena of decisions including the decision
reported in AIR 2006 SC-1806 (Secretary, State of
Karnataka Vs. Umadevi & others)(Constitutional Bench).
It is settled beyond doubt by the Hon'ble Apex Court
that:—
“Rules of recruitment cannot be relaxed and the
court/Tribunal cannot direct regularisation of temporary
appointees dehors of rules-State owned/operated
corporations-Appointment-Modes of appointment -Held
regularization cannot be a mode of appointment- Public
Sector-Appointment- Mode of appointment-Held,
regularization cannot be a mode of appointment- Labour
Law-Appointment- Mode of appointment-Held,
regularization cannot be a mode of appointment.
Regularization- Held, not a permissible mode of
appointment.”
It is also settled by the Hon 'ble Apex Court that:
“The term 'temporary employee' is a general category
which has under it several sub-categories e.g. casual
employee, daily-rated employee, ad hoc employee, etc.
A daily-rated or casual worker is only a temporary
employee, and it is well settled that a temporary
employee has no right to the post, or to be continued
in service, to get absorption, far less of being
regularized and getting regular pay. No doubt, there
can be occasions when the state or its
instrumentalities employee persons on temporary or
daily wage basis in a contingency as additional hands
without following the required procedure, but this
does not confer any right on such persons to continue
in service or get regular pay. Unless the appointments
are made by following the rules, such appointees do
not have any right to claim permanent absorption in
the establishment. The Court cannot direct
continuation in service of a non-regular appointee.
Even if an ad hoc or casual appointment is made in
some contingency the same should not be continued
for long, as was done in the present case. A casual or
temporary employment is not an appointment to a post
in the real sense of the term. The argument that since
one has been working for some time in the post, it will
not be just to discontinue him, even though he was
aware of the nature of the employment when he first
took it up, is one that would enable the jettisoning of
the procedure establish by law for public employment.”
It is also settled by the Hon'ble Apex Court that:—
“Employment on daily wage - Confers no right of
permanent employment- Daily wager appointed on less
than minimum wages - Not forced labour - Continued on
post for long period - Daily wagers from a class by
themselves - They cannot claim parity vis-a-vis those
regularly recruited on basis of relevant rules and cannot be
made permanent in employment.
Employees were engaged on daily wages in the
concerned department on a wage that was made known to
them. There is no case that the wage agreed upon was not
being paid. Those who were working on daily wages formed
a class by themselves, they cannot claim that they are
discriminated as against those who have been regularly
recruited on the basis of the relevant rules. No right can be
founded on an employment on daily wages to claim that
such employee should be treated on a par with a regularly
recruited candidate and made permanent in employment
even assuming that the principle could be invoked for
claiming the equal wages for equal work. There is no
fundamental right in those who have been employed in
daily wages or temporally or on contractual basis, to claim
that they have a right to be absorbed in service. They
cannot be said to be holders of a post, since, a regular
appointment to be made only by making appointments
consistent with the requirements of articles 14 and 16 of
the Constitution. The right to be treated equal with the
other employees employed on daily wages, cannot be
extended to a claim for equally treatment with those who
were regularly employed. That would be treating unequals
as equals. It cannot also be relied on to claim a right to be
absorbed in service even though they have never been
selected in terms of relevant recruitment rules.”
Keeping in view the settled principles as mentioned
above, now, the present case in hand is to be considered.
12. At this juncture, I think it necessary to mention
that the terms of reference in this case for adjudication is
as to whether the demand of the union for regularisation
of the workman is justified or not. There is no reference in
respect of the termination of the workman from services.
In the statement of claim also, it is not claimed either by
the union or the workman that the workman was
terminated from services. The date of the termination of
5218
THE GAZETTE OF INDIA : SEPTEMBER 21, 2013/BHADRA 30, 1935
[PART II—SEC. 3(ii)]
the workman if any has also not been mentioned in the
statement of claim.
It is also necessary to mention here that in the
statement of claim (filed on 21.03.1995 before the
Tribunal), the total number of working days of the workman
has been mentioned till July, 1993. There is no mention
in the statement of claim that the workman was still
working with party no. 1. However, in his evidence on
affidavit, the workman has claimed that he worked till
1996. However, the workman has not mentioned as to the
date on which, his services were terminated.
13. So for the oral evidence adduced by the union
is concerned, the workman, who has been examined as a
witness, in his examination-in-chief has stated that he
joined in the service of the bank at Armori branch on
02.01.1989, after his selection in the interview and he worked
for 2082 days from 1989 to 1996 and he had completed more
than 240 days in a year on many occasions and he was
performing the duties of permanent class-IV employee in
the bank. In his cross-examination, the workman has
admitted that he has not filed any document to show that
his name was sent by Gadchiroli employment exchange to
the bank for interview and though he received a call letter
from the bank to appear in the interview, he has not filed
any document in regard to the same and no written
appointment order was given to him by the bank regarding
his appointment and he was directed orally by the bank
authorities to join duty and his engagement in the bank
was on daily wages basis.
So far the evidence of Shri Vinayak Joshi,
Shri Shirish Anandrao Damle, Shri Arvind M. Tamhaney
and Shri Rajendra M. Dahikar is concerned, the same is
very general in nature and most part of their evidence is
regarding the availability of vacancies in the Sub-Staff
Cadre in different branches of the Bank of Party No.1
and in respect of the policy adopted by Party No.1
regarding engagement of badlee sepoy/peon instead of
filling up the posts by making regular recruitment, which
is not the subject matter of adjudication in this reference,
as already mentioned above.
In his cross-examination, Shri Joshi had stated that
the does not know when the services of the workman was
terminated by the bank and he also does not know when
the workman joined the service of the bank and he has not
submitted any document to show that the workman worked
for more than 240 days in any calendar year and he has no
proof about the attendance of the workman.
So, the evidence of Shri Joshi is of no avail to the
workman.
Shri Damle, in his cross-examination has stated that
the Bank has authorized the manager to engage casual
employees.
In his cross-examination, Shri Tamhaney has admitted
that his affidavit is a general affidavit and the same does
not have any specific reference to the concerned workman
and the workman was working with the Bank intermittently
for several years and he has not mentioned as to the period
of engagement of the workman or the number of days he
worked for the Bank.
So far the evidence of Somnath Narayan Zarkar is
concerned, it is to be mentioned here that in his examination-
in-chief, he has stated that the workman was given clerical
work routinely by the branch manager. Such statement is
quite contradictory from the stand taken in the statement
of claim and so also the evidence of the workman himself.
Neither the union nor the workman has claimed that the
workman was given clerical work. Moreover, in his cross-
examination, this witness has admitted that the branch
manager engages the daily wagers, as and when required
by him and no document has been filed in support of the
claim made by him in the affidavit about the appointment
of the workman after interview and about the days he
worked with the Bank.
14. On perusal of the record, it is found that neither
the union nor the workman has filed a single document
regarding the appointment of the workman after his due
selection in the interview or his appointment against any
permanent post.
Taking into consideration the materials on record
including the pleadings of the parties and the submissions
made by the parties, it is found that the engagement of the
workman was not against any permanent vacancy in the
branch, but his engagement was on temporary basis as
daily wager, as and when basis, against leave vacancy of
the permanent sub-staff in the branch. It is also found that
the union has failed to prove or show that the workman is
entitled for regularisation.
15. It is necessary to mention here that this is not a
reference to adjudicate the validity or otherwise of the
termination of the services of the workman. So, there is no
scope for adjudication about the termination of the workman
from services if any.
At this juncture, I think it proper to mention about
the principles envisaged by the Hon'ble Apex Court in the
decisions reported in (2006) 6 SCC 221 (Supra) and AIR
2006 SC - 839 (Supra).
In the decisions reported in (2006) 6 SCC 221 (Supra)
the Hon 'ble Apex Court have held that:
Labour law - Industrial Disputes Act, 1947 - Ss. 25G
and 25F- Applicability of Section 25G - Where High Court
had not found the workman to have been retrenched within
the meaning of S. 25F, held, it erred in holding S. 25G to be
applicable.
In the decision reported in AIR 2006 SC - 839 (Supra)
the Hon 'ble Apex Court have held that:
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 21] 2013@Hkkæ 30] 1935
5219
"Retrenchment - Respondent employed as
messenger on daily wage basis by bank - No appointment
letter issued to him - Termination of his service - Reference
was not made regarding validity of retrenchment under S.
25G - But for not considering respondent for reemployment
under S. 25H - Order of reference did not refer to S. 25G but
only to S. 25H - Thus finding by Tribunal that order
terminating services of respondent was in violation of S.
25G - Illegal - Further respondent in his application under
S. 33-C(2) never raised plea that his services were illegally
terminated - In circumstances High Court's view that
termination of services of respondent was invalid under S.
25H - Not sustainable as S. 25H proceeds on assumption
that retrenchment has been validly made.
Industrial Disputes Act (14 of 1947), schedule 3 item
1- Sastry award, para 497 - Benefit under - Respondent
employed by bank on ad hoc basis - no appointment order
was issued - Dispensation of his services - Not in violation
of para 497.
Para 497 deals with the right of apprentices and has
no application to temporary employees like the
respondent. Assuming that there was a violation of the
Sastry award by the appellant bank in both cases either in
not issuing appointment letters or not maintaining a
seniority list, service book in respect of temporary
employees etc., this would not mean that therefore the
respondents had been properly appointed and their services
wrongly terminated. Admittedly no procedure whether in
law or under any award or settlement was followed either
of the respondents in both appeals. No conditions of
services were agreed to and no letter of appointment was
given. The nature of the respondents' employment was
entirely ad hoc. They had been appointed without
considering any rule. It would be ironical if the person
who have benefited by the flouting of the rules of
appointment can rely upon those rules when their services
are dispensed with.”
Judging the case in hand with the touch stone of the
principles enunciated by the Hon'bIe Apex Court as
mentioned above, it is found that there is no merit in the
case of the workman and he is not entitled to any relief.
Hence, it is ordered:-
ORDER
The reference is answered in negative and against
the union and the workman. The workman is not entitled
to any relief.
J.P. CHAND, Presiding Officer
ubZ fnYyh] 27 vxLr 2013
dk-vk-1992-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh /kjk 17 ds vuqlj.k esa] dsUnzh; ljdkj cSad vkWiQ
bafM;k ds izca/ra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqca/ esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/dj.k@Je U;k;ky;] ukxiqj ds iapkV (lanHkZ la[;k 30@1999)
dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 01&08&2013 dks
izkIr gqvk Fkk A
¹la- ,y&12011@39@92&vkbZ vkj (ch&II)º
lqefr ldykuh] vuqHkkx vf/dkjh
New Delhi, the 27th August, 2013
S.O.1992.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. CGIT/
NGP/30/1999) of the Central Government Industrial Tribunal/
Labour Court, Nagpur now as shown in the Annexure, in
the Industrial Dispute between the employers in relation to
the management Bank of India and their workman, which
was received by the Central Government on 01-08-2013.
[No. L-12011/39/92-IR (B-II)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE SHRI J.P. CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No. CGIT /NGP /30/1999 Date: 26-06-2013.
Party No. 1
Regional Manager,
Bank of India, Regional Office,
13- Mul Road, Chandrapur.
Party No. 2
Regional Secretary,
Bank of India Workers' Organisation,
Shriram Ward, Ram Mandir, Chandrapur.
AWARD
(Dated: 26th June, 2013)
In exercise of the powers conferred by clause (d) of
sub-section (1) and sub-section 2(A) of section 10 of
Industrial Disputes Act, 1947 (14 of 1947) ("the Act" in
short), the Central Government had referred the industrial
dispute between the employers, in relation to the
management of Bank of India and their workmen,
Shri R.R. Neware, Shri T.J. Pardhi, Shri R.M. Dongarkar,
Shri S.M. Tupase and Shri P.J. Khobragade, for adjudication,
as per letter No.L-12011/39/92-IR (B-II) dated 03.12.92, with
the following schedule:-
“Whether the action of the management of Bank of
India, Chandrapur is justified in not regularizing the services
of S/Sh. R.R. Neware, Shri T.J. Pardhi, Shri R.M. Dongarkar,
5220
THE GAZETTE OF INDIA : SEPTEMBER 21, 2013/BHADRA 30, 1935
[PART II—SEC. 3(ii)]
Shri S.M. Tupase and Shri P.J. Khobragade? If not, what
relief the workmen are entitled to?"
Subsequently, the case was transferred to this
Tribunal for adjudication in accordance with law.
2. On receipt of the reference, the parties were noticed
to file their respective statement of claim and written
statement and accordingly, the' five workmen ('the
workmen" in short), filed the statement of claim through
their union, "Bank of India workers' Organisation", ("the
union" in short) and the management of Bank of India,
("Party No.1" in short) filed their written statement.
The case of the five workmen as presented by the
union in the statement of claim is that party no. 1 is a
nationalized bank and it (union) is a registered trade union
and the service conditions of the employees of the bank
are inter-alia governed by the provisions of Sastry Award,
Desai Award and bipartite settlements signed under the
Act and by the instant reference, the action of the party
no. 1 in not regularizing/terminating the services of the
five workmen is being challenged.
The further case of the union is that instead of
regularizing the services of the five workmen, party no. 1
terminated their services and as a common reference for
the action impugned has been made in respect of the five
workmen, for the sake of convenience and clarity, facts
in respect of each of the five workmen are separately given
as follows:—
In respect of Shri R.R. Neware
1.The name of the workman was sponsored by the
employment exchange at the instance of the party no. 1
and after interview, he was selected and was engaged for
doing the job of sub-staff at Nagbhid branch in Chandrapur
District on 12-12-1988 and his engagement was in clear
vacancy of Sub-staff/Sepoy created due to transfer of the
permanent sepoy from Nagbhid branch to Mindala branch
and all the jobs required to be performed by the permanent
sub-staff were extracted from the workman till the
conciliation was raised before the competent authority
and the workman had put in more than 240 days of service
in every year right from 1988 and therefore he achieved
the status of confirmed employee, but the benefits as per
the bipartite settlement were not given to him and as per
the provisions of Sastry Award, he is entitled to get the
status and benefits of a regular employee and he is entitled
to be regularized in the services of the bank as confirmed
employee.
In respect of Shri T.J. Parodhi:—
II. The name of the workman was sponsored by the
employment exchange at the instance of the party no.1
and after interview, he was selected and was engaged for
doing the job of sub-staff at Armori branch on
18-01-1983 and the services of the workman were utilized
for 240 days, 283 days, 297 days, 294 days, 266 days and
249 days in 1989, 1990 1991, 1992,1993 and 1994 respectively
and the workman therefore achieved the status of confirmed
employee as per the provisions of Sastry Award and is
entitled to such a declaration.
In respect of Shri R.M. Dongarkar
III. The workman was appointed as sepoy w.e.f.
19.07.1988 at Purada Branch in Chandrapur District and the
duties extracted from him were that of Sub-Staff and on
many days duties of clerk were extracted from him and he
was selected after due process of interview and his name
was sponsored by the employment exchange and he is still
continuing in the same branch, but he was paid wages of
Rs. 100 per month and by virtue of having put in more than
240 days in every calendar year and also, in view of the
nature of the duties performed by him, he is entitled for
regularisation in the services of the bank with consequential
benefits, including wages, bonus, leaves and seniority in
terms of the Bipartite settlement.
In respect of Shri S.M. Tupase
IV. The name of the workman was sponsored by the
employment exchange at the instance of the party no.1 and
after interview, he was selected and was engaged for doing
the job of sub-staff on 15.03.1990 at Wadholi branch and
he is working till today and he had put in more than 1500
days of service till the date of filing of the statement of
claim, but he has not been given the status and benefits
ought to be given to any confirmed sub-staff of the bank
and by virtue of the number of days of service put in by
the workman and the nature of duties extracted from him,
he is entitled for the status and benefits of confirmed sub-
staff, as per the provisions of bipartite settlement.
In respect of Shri P.J. Khobragade
V. The name of the workman was sponsored by the
employment exchange at the instance of the party no.1 and
after interview, he was selected and was engaged for doing
the job of sub-staff on 05.07.1989 at Durgapur Branch
initially and subsequently, his services were utilized at
different branches like Jathpure gate branch, Chandrapur
Main Branch, Regional office, Chandrapur, T.P.S.
Durgapur Branch, Padmapur branch and Urjanagar branch
on various dates as per the convenience of the bank and
he had put in more than 240 days of service in every
calendar year and even clerical work was extracted from
him on few days, but he was not awarded the benefit of
regular employee of sub-staff cadre and by virtue of the
service put in by him and the nature of duty performed by
him, he is entitled to get the status of confirmed sub-
staff by regularizing his services and to receive every
benefits like wages, leave, increments in terms of the
provisions of Bipartite settlements.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 21] 2013@Hkkæ 30] 1935
5221
It is further pleaded by the union that it is clear from
the provisions of the Sastry Award and the facts that the
party no.1 was utilizing the services of the five workmen
for performing the duties of permanent nature for years
together, without payment of a regular confirmed
employee to them, that the party no.1 intended to fill in
the permanent vacancy by engaging the workmen, but not
to give them benefits of permanency and with malafide
intention continued them on daily wages and such action
of party no.1 amounts to unfair labour practice.
The union has prayed for a direction to the party
no.1 to regularize the services of the five workmen and
to grant them the benefits of increments, wages, leave
etc. in terms of the bipartite settlement from the first
date of appointment.
3. The party no.1 in the written statement has
pleaded inter-alia that the five workmen were not
terminated as alleged and each of them worked for a fixed
tenure basis and their services came to an end at the expiry
of each specified period and the workman Shri R.R.
Neware was engaged on casual basis as sepoy in the leave
vacancy caused by the unauthorized absence of the
permanent staffs, Shri S.M. Kamdi, Shri Nahe and Shri
Meshram posted in the said branch and merely because
Shri Neware had worked for more than 240 days in a
calendar year does not give him any right to confer with
the status of a confirmed employee and to be regularized
in services and the workman, Shri T.J. Pardhi was engaged
on part time casual basis as a sub-staff at Armori Branch
and he was not selected after interview and his appointment
was not against the clear vacancy of Shri Baban Sorle as
alleged and he had been fully paid for the work performed
by him and he is not entitled for the status of a confirmed
employee and workman, Shri R.M. Dongarkar was working
as a sweeper on casual basis at Purada branch and he was
fully paid for the same and the duties of sub-staff were
never performed by the said workman and duties of clerk
were also never taken from him and he was not selected
by it, after the process of interview as alleged and by virtue
of working for more than 240 days in a calendar year, he
is entitled for confirmation or regularisation.
It is further pleaded by party no.1 that workman,
Shri S.M. Upashe was engaged from time to time as a
casual sweeper and he did not join the services after
undergoing the process of interview and he is not entitled
to be confirmed in service or for regularisation and
workman, Shri P.J. Khobragade was engaged on casual basis
as part time sweeper at Urjanagar extension counter of
TPS Durgapur branch for some time and then at Padmapur
branch from 1991 and clerical work was not extracted
from the said workman and the workman is not entitled
for permanency /regularisation for having put in 240 days
of service in a calendar year.
The further case of party no.1 is that the five
workmen were not engaged for filing up permanent
vacancies and there is no difference in the job of a
permanent employee and a casual employee, since the
casual employee works in the leave absence of permanent
employees and the same does not entitle a casual
employee to claim the status of a permanent employee
and the claim made on behalf of the workmen is totally
misconceived and without any basis and regular procedure
is prescribed for making recruitment of permanent
employees and in the case of the workmen except Shri
Khobragade such procedure was not followed and its
action does not amount to unfair labour practice and the
workmen are not entitled to any relief.
4. In support of its claim, union has examined nine
witnesses in total including four workmen, besides placing
reliance on documentary evidence. The other witnesses
examined by the union besides the workmen are Shri
Vinayak Joshi, Shri Surish Damle, Shri Arvind M.
Tamhaney, Shri Rajendra M. Duhikar and Shri Sudhakar
Narayan Zarkar. It is to be mentioned here that workman,
Shri P.J. Khobragade has not been examined as a witness.
No oral evidence has been adduced by the
management.
5. At the outset, I think it necessary to mention that
it is settled beyond doubt by the principles enunciated by
the Hon'ble Apex Court in a string of decisions that the
Tribunal cannot travel outside the terms of reference and
the jurisdiction of the Tribunal in industrial disputes is
limited to the points specifically referred for its
adjudication and to matters incidental there to.
6. At the time of argument, it was submitted by the
union representative that the five workmen were engaged
as peons on different dates in between the period
from1988 to 1990 at various branches of Chandra pur
District and such appointment was made by the branch
manager with the consent and approval of the Zonal
Manager, Nagpur and their names were sponsored by the
employment exchange and the workmen were required to
perform the duties of a full time peon, although they were
paid on daily wage basis from 1988 onwards and inspite
of all the workmen having putting in thousands of days of
employment and continuing for years together and
existence of permanent vacancies, they have not been
regularized and juniors to them have been appointed and
regularized by the party no.1 and there was violation of
the provisions of section 25-F, 25-G and 25-H of the Act
and the party no.1 in their written statement has virtually
admitted the claims made by the union and it has not been
denied by party no.1 about the engagement of the workmen
and the number of their working days in the respective
branches and regularisation of juniors to the workmen in
service and from the oral evidence and documentary
evidence produced by the union in support of its claim
and in absence of any rebuttal evidence, it can be held that
the union has been able to prove that all the workmen are
entitled for their regularization in the services of the bank.
5222
THE GAZETTE OF INDIA : SEPTEMBER 21, 2013/BHADRA 30, 1935
[PART II—SEC. 3(ii)]
It was also submitted by the union representative
that inspite of the direction of the Tribunal, party no. 1
failed to produce the documents as demanded by the union
and for the non-production of the documents by the party
no. 1, adverse inference has to be drawn against the party
no. 1.
It was also submitted by the union representative
that after the cross-examination of the workman, Shri
Dongarkar was terminated orally by the bank showing scant
regards towards the law and therefore, the five workmen
are entitled for regularisation and the reference is to be
answered in favour of the union.
7. In reply, it was submitted by the representative
for the party no.l that the materials on record clearly show
that the engagement of the workmen was on casual basis
on daily wages and as a stop gap arrangement, as and when
required and payment of wages was being made by the
respective branch manager to them and the wages paid
were reimbursed to them and such facts have been admitted
by the workmen in their cross-examination and they were
never appointed against any permanent vacancy by
following due procedure of law and no appointment order
was issued to them and no evidence has been adduced by
the union to show that the workmen are entitled for
regularisation and clause 20.7 of the Bipartite settlement
of 1966 gives clear right to the bank to engage persons
on casual basis in leave vacancy of sub-staff and the burden
to prove 240 days of continuous services lies on the
workmen and no evidence has been adduced on behalf of
the workmen in that respect and the workmen are not
entitled to any relief.
In support of the submissions, reliance was placed
by Party No . 1 on the decisions reported in AIR 2004 SC
- 4791 (M.P. Electricity Board Vs Hariram), (2006) 1
SCC - 106 (R.M. Yellatti Vs Asstt. Executive Engineer),
(2006) 9 SCC - 697 (Krishna Bhagya Jal Nigam Ltd. Vs
Mohd. Raffi), (2006) 9 SCC - 132 (Surendra Nagar
District Panchayat Vs Gangaben), Writ Petition No. 1072/
2002 of Hon'ble Bombay High Court, Nagpur Bench, (2006)
6 SCC - 221 (Reserve Bank of India Vs. Gopinath Sharma)
and AIR 2006 S.C. - 839 (Regional Manager, SBI Vs. Rakesh
Kumar).
8. First of all, I will take of the submission made by
the union representative regarding drawing of adverse
inference against the party no. 1 for non production of
the documents. Admittedly, order was passed by the
Tribunal, directing the party no. 1 to produce documents
as demanded by the union. However, the party no. 1 failed
to produce the documents. The terms of reference in this
case is regarding the legality or otherwise of the demand
of the union for the regularisation of the workman in the
services of the Bank. On perusal of the materials on record
including the pleadings of the parties, it is found that the
claim of the workmen about their engagement in different
branches and that they worked in different branches has
been admitted by the party no. 1 in the written statement.
Moreover, copies of most of the documents demanded
by the union were produced by the union itself during the
course of hearing of the case. In view of such admitted
facts and the principles enunciated by the Hon'ble Apex
Court in the decisions reported in AIR 2004 S.C-4791
(supra) and (2006) 1 SCC-I06 (supra) in regard to drawing
of adverse inference for non production of documents by
a party, to the case in hand, it is found that there is no
need to draw adverse inference against the party no. 1 for
the non production of the documents.
9. Though the reference has been made by the central
Government for adjudication of the legality or otherwise of
the demand of the union for the regularisation of the
workman in the services of the Bank, the union, in the
guise of raising the dispute on behalf the workmen has
tried to challenge the policy adopted by the party
no. 1 of engaging persons on temporary basis, inspite of
having number of permanent vacancies in the cadre of
sub-staff at different branches of the Bank. In view of the
settled principles that the Tribunal cannot travel beyond
the terms of reference as already mentioned above and in
view of the fact that such specific terms of reference has
not been made by the Government, such claim cannot be
adjudicated.
10. At this juncture, I think it necessary to mention
the principles enunciated by the Hon'ble Apex Court in
the decision reported in (2006) 6 SCC-221 (supra). The
Hon'ble Apex Court have held that:-
"Labour Law-Daily wager-Disengagement of-
Validity-Workman not appointed to any regular post but
engaged on the basis of need of work on day to day basis,
held had no right to post."
11. At this juncture, I also think it necessary to
mention about the principles enunciated by the Hon'ble
Apex Court in a catena of decisions including the decision
reported in AIR 2006 SC-1806 (Secretary, State of
Karnataka Vs. Umadevi & Others)(Constitutional Bench).
It is settled beyond doubt by the Hon'ble Apex Court
that:-
"Rules of recruitment cannot be relaxed and the
court/Tribunal cannot direct regularisation of temporary
appointees de hors of rules- State owned/ operated
corporations-Appointment-Modes of appointment - Held
regularization cannot be a mode of appointment- Public
Sector- Appointment- Mode of appointment-Held,
regularization cannot be a mode of appointment- Labour
Law- Appointment- Mode of appointment-Held,
regularization cannot be a mode of appointment-
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 21] 2013@Hkkæ 30] 1935
5223
Regularization- Held, not a permissible mode of
appointment."
It is also settled by the Hon'ble Apex Court that :
"The term 'temporary employee' is a general category
which has under it several sub-categories e.g. casual
employee, daily-rated employee, ad hoc employee, etc. A
daily-rated or casual worker is only a temporary employee,
and it is well settled that a temporary employee has no
right to the post, or to be continued in service, to get
absorption, far less of being regularized and getting regular
pay. No doubt, there can be occasions when the state or its
instrumentalities employee persons on temporary or daily
wage basis in a contingency as additional hands without
following the required procedure, but this does not confer
any right on such persons to continue in service or get
regular pay. Unless the appointments are made by following
the rules, such appointees do not have any right to claim
permanent absorption in the establishment. The Court
cannot direct continuation in service of a non-regular
appointee. Even if an ad hoc or casual appointment is made
in some contingency the same should not be continued for
long, as was done in the present case. A casual or temporary
employment is not an appointment to a post in the real
sense of the term. The argument that since one has been
working for some time in the post, it will not be just to
discontinue him, even though he was aware of the nature
of the employment when he first took it up, is one that
would enable the jettisoning of the procedure establish
by law for public employment."
It is also settled by the Hon'ble Apex Court that:-—
"Employment on daily wage - Confers no right of
permanent employment- Daily wager appointed on less
than minimum wages - Not forced labour - Continued on
post for long period - Daily wagers from a class by
themselves - They cannot claim parity vis-a-vis those
regularly recruited on basis of relevant rules and cannot be
made permanent in employment.
Employees were engaged on daily wages in the
concerned department on a wage that was made known to
them. There is no case that the wage agreed upon was not
being paid. Those who were working on daily wages formed
a class by themselves, they cannot claim that they are
discriminated as against those who have been regularly
recruited on the basis of the relevant rules. No right can be
founded on an employment on daily wages to claim that
such employee should be treated on a par with a regularly
recruited candidate and made permanent in employment
even assuming that the principle could be invoked for
claiming the equal wages for equal work. There is no
fundamental right in those who have been employed in
daily wages or temporally or on contractual basis, to claim
that they have a right to be absorbed in service. They
cannot be said to be holders of a post, since, a regular
appointment to be made only by making appointments
consistent with the requirements of articles 14 and 16 of
the Constitution. The right to be treated equal with the
other employees employed on daily wages, cannot be
extended to a claim for equally treatment with those who
were regularly employed. That would be treating unequals
as equals. It cannot also be relied on to claim a right to be
absorbed in service even though they have never been
selected in terms of relevant recruitment rules."
Keeping in view the settled principles as mentioned
above, now, the present case in hand is to be considered.
12. At this juncture, I think it necessary to mention at
the cost of repetition that the terms of reference in this
case for adjudication is as to whether the demand of the
union for regularisation of the workman is justified or not.
There is no reference in respect of the termination of the
workmen from services. In the statement of claim also, it is
not claimed either by the union or the workmen that the
workmen were terminated from services. The dates of the
termination of the workmen if any have also not been
mentioned in the statement of claim.
13. Perused the evidence adduced by the union in
support of its claim. The evidence of the four workmen,
who have been examined as witnesses by the union is in
the line of the stands taken by the union in the statement
of claim.
Workman, Shri Ramesh Ramchandra Neware in his
examination-in-chief on affidavit at para-36 has stated that
he was terminated by the bank without giving any notice
of termination, but such plea was not taken in the statement
of claim. The industrial dispute regarding termination of
the services of Shri Neware was not raised before the ALC
for conciliation and in the terms of reference also nothing
has been mentioned about the termination of the workman.
Moreover, the workman in his evidence has not mentioned
anything about the date, month and year of such
termination. It is necessary to mention here about the
evidence of witness, Shri Somnath Narayan Zarkar. Shri
Zarkar in his evidence on affidavit dated 24.07.2012 has
mentioned that Mr. Neware worked with Bank of India,
Nagbhid branch till 2011 and now he (workman) is working
as business correspondent in the same branch and he has
worked for more than 6500 days from his date of joining.
The statement of Shri Zarkar clearly shows that Shri Neware
is still working with the bank. The evidence of shri Zarkar
also shows that workmen, Shri Pardhi and Mr. Dongarwar
are still working at Armori branch and Purada (now khurada)
branch respectively. Workman, Shri Neware in his cross-
examination has admitted that he was engaged as a casual
labour from 12-12-1988.
Workman, Shri Pardhi in his cross-examination has
admitted that the does have any evidence to show that he
5224
THE GAZETTE OF INDIA : SEPTEMBER 21, 2013/BHADRA 30, 1935
[PART II—SEC. 3(ii)]
was interviewed on 18-01-1989 and he does not have any
written appointment order.
Workman, Shri Upase in his cross-examination has
admitted that he has not filed any document to show that
his name was sponsored by the employment exchange and
he received any call letter from the bank to appear in the
interview and he was sent by the bank for his medical
examination and he was medically examined. He has further
admitted that no written order of appointment was issued
by the bank and he was engaged by the bank on casual
basis on daily wages.
Workman, Shri Dongarwar in his cross-examination
has admitted that he has not filed any document to show
that his name was sponsored by the employment exchange
or that he received any call letter from the bank to appear in
the interview and he was interviewed by the bank or that
he was sent by the bank for his medical examination and he
was medically examined. He has further admitted that he
was engaged by the bank on casual basis on daily wages
and in the vouchers filed by him neither his name nor his
signature is there.
14. So far the evidence of Shri Vinayak Joshi, Shri
Shirish Anandrao Damle, Shri Arvind M. Tamhaney and
Shri Rajendra M. Dahikar is concerned, the same is very
general in nature and most part of their evidence is regarding
the availability of vacancies in the Sub-Staff Cadre in
different branches of the Bank of Party No.1 and in respect
of the policy adopted by Party No. 1 regarding engagement
of badlee sepoy/peon instead of filling up the posts by
making regular recruitment, which is not the subject matter
of adjudication in this reference, as already mentioned
above.
In his cross-examination, Shri Joshi has stated that
he cannot say if any appointment letter was given by the
bank to shri R.R. Neware or not and the workman himself
can say as to whether any termination order was issued by
the competent authority to the said workman.
The witness, Shri Damle in his cross-examination has
stated that bank has not given any order to the badlee
employees and he has not produced any document to show
that the employees were interviewed before their
appointment. Shri Damle has further stated that the bank
has authorized the Manager to engage casual employees.
The witness, Shri Tamhaney in his cross-examination
has stated that his affidavit is a general affidavit and the
same does not have any specific reference to the concerned
workmen and the workmen were working with the bank
intermittently for several years and in his affidavit, he has
not mentioned about the periods of engagement of the
workmen or the number of days he worked for the bank.
Witness, Shri Zarkar in his cross-examination has
stated that for engagement of persons on daily wages in
the branch offices of the bank, the procedure is to call for
the names of candidates from the local employment
exchange and after making interview of those candidates,
to engage the selected candidates in the bank on daily
wages and the branch manager the daily wagers as and
when required by him.
It is to be mentioned here that in his examination-in-
chief at para-9, Shri Binayak Joshi, the General Secretary of
the union has stated that Badli employees/daily wages/
temporary/casual employees panel was essetially meant to
meet emergent situations like unforeseen absenteeism from
duty of the regular staff and temporary increase in workload.
Such statement of Shri Joshi clearly supports the claim of
the party no.l.
15. On perusal of the record, it is found that neither
the union nor the workmen have filed a single document
regarding the appointment of the workmen after their due
selection in the interview or their appointment against
any permanent post.
16. Taking into consideration the materials on record
including the pleadings of the parties and the submissions
made by the parties, it is found that the engagement of the
workmen was not against any permanent vacancy in the
respective branches, but their engagement was on
temporary basis as daily wagers, as and when basis, against
leave vacancy of the permanent sub-staff in the branches.
It is also found that the union has failed to prove or show
that the five workmen are entitled for regularisation.
17. It is necessary to mention here that this is not a
reference to adjudicate the validity or otherwise of the
termination of the services of the workmen. So, there is
no scope for adjudication about the termination of the
workman from services if any.
At this juncture, I think it proper to mention about
the principles envisaged by the Hon'ble Apex Court in the
decisions reported in (2006) 6 SCC 221 (supra) and AIR
2006 SC - 839 (Supra).
In the decisions reported in (2006) 6 SCC 221
(Supra) the Hon'ble Apex Court have held that:
Labour law - Industrial Disputes Act, 1947 - Ss. 25G
and 25F- Applicability of Section 25G - Where High Court
had not found the workman to have been retrenched within
the meaning of S. 25F, held, it erred in holding S. 25G to
be applicable.
In the decision reported in AIR 2006 SC - 839
(Supra) the Hon'ble Apex Court have held that:
“Retrenchment-Respondent employed as messenger
on daily wage bases by bank - No appointment letter issued
to him - Termination of his service - Reference was not
made regarding validity of retrenchment under S. 25G - But
for not considering respondent for reemployment
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % flrEcj 21] 2013@Hkkæ 30] 1935
5225
under S. 25H - Order of reference did not refer to S. 25G but
only to S. 25H - Thus finding by Tribunal that order
terminating services of respondent was in violation of S.
25G - Illegal - Further respondent in his application under
S. 33-C(2) never raised plea that his services were illegally
terminated - In circumstances High Court's view that
termination of services of respondent was invalid under S.
25H - Not sustainable as S. 25H proceeds on assumption
that retrenchment has been validly made.
Industrial Disputes Act (14 of 1947), schedule 3 item
1- Sastry award, para 497 - Benefit under - Respondent
employed by bank on ad hoc basis - no appointment order
was issued - Dispensation of his services - Not in violation
of para 497.
Para 497 deals with the right of apprentices and has
no application to temporary employees like the respondent.
Assuming that there was a violation of the Sastry award
by the appellant bank in both cases either in not issuing
appointment letters or not maintaining a seniority list,
service book in respect of temporary employees etc., this
would not mean that therefore the respondents had been
properly appointed and their services wrongly terminated.
Admittedly no procedure whether in law or under any award
or settlement was followed either of the respondents in
both appeals. No conditions of services were agreed to
and no letter of appointment was given. The nature of the
respondents' employment was entirely ad hoc. They had
been appointed without considering any rule. It would be
ironical if the person who have benefited by the flouting of
the rules of appointment can rely upon those rules when
their services are dispensed with."
Judging the case in hand with the touch stone of the
principles enunciated by the Hon'ble Apex Court as
mentioned above, it is found that there is no merit in the
case of the workmen and they are not entitled to any relief.
Hence, it is ordered -
ORDER
The reference is answered in negative and against
the union and the workmen. The workmen are not entitled
to any relief.
J.P. CHAND, Presiding Officer
Printed by the Manager, Government of India Press, Ring Road, Mayapuri, New Delhi-110064
and Published by the Controller of Publications, Delhi-110054.