4710 GI/2013

(6263)

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- 47]

ubZ fnYyh, uoEcj 17—uoEcj 23] 2013] 'kfuokj@dk£rd 26—vxzgk;.k 2] 1935

No. 47]

NEW DELHI, NOVEMBER 17—NOVEMBER 23, 2013, SATURDAY/KARTIKA 26—AGRAHAYANA 2, 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)

foÙk ea=kky;

(foÙkh; lsok,a foHkkx)

ubZ fnYyh] 14 uoEcj] 2013

dk-vk- 2374-—thou chek fuxe vf/fu;e] 1956 (1956

dk 31) dh /kjk 4 }kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq,] dsanzh;

ljdkj] ,rn~}kjk] Jh lat; dYykiqj dks vf/lwpuk dh frfFk ls

rhu o"kZ dh vof/ ds fy, ;k vxys vkns'kksa rd] tks Hkh igys gks]

Hkkjrh; thou chek fuxe ds funs'kd eaMy esa va'kdkfyd

xSj&ljdkjh funs'kd ds :i esa fu;qDr djrh gS A

¹iQk- la- ,&15011@06@2012&chek&Iº

fiz;k dqekj] funs'kd (chek)

MINISTRY OF FINANCE

(Department of Financial Services)

New Delhi, the 14th November, 2013

S.O. 2374.—In exercise of the powers conferred by

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

1956), the Central Government hereby appoints Sh. Sanjay

Kallapur as part-time non-official Director on the Board of

the Life Insurance Corporation of India for a period of three

years from the date of Notification or until further orders,

whichever is earlier.

[F. No. A-15011/06/2012-Ins. I]

PRIYA KUMAR, Director (Insurance)

6264

THE GAZETTE OF INDIA : NOVEMBER 23, 2013/AGRAHAYANA 2, 1935

[PART II—SEC. 3(ii)]

ubZ fnYyh] 18 uoEcj] 2013

dk-vk- 2375-—ljdkjh LFkku (vizkf/d`r vf/Hkksfx;ksa dh csn[kyh) vf/fu;e] 1971 (1971 dk 40) dh /kjk 3 }kjk iznÙk

'kfDr;ksa dk iz;ksx djrs gq,] dsanzh; ljdkj] ,rn~}kjk mDr vf/fu;e ds mís'; ds fy, uhps nh xbZ rkfydk ds dkWye 2 esa mfYyf[kr

vf/dkfj;ksa dks laink vf/dkjh fu;qDr djrh gS vkSj vkxs ;g funs'k nsrh gS fd mDr vf/dkjh uhps nh xbZ rkfydk ds dkWye 3 esa ;Fkk

fufnZ"V {ks=kksa ds varxZr vkus okys ljdkjh ifjljksa ds laca/ esa vius vf/dkj {ks=k dh LFkkuh; lhekvksa ds Hkhrj mDr vf/fu;e }kjk ;k blds

rgr laink vf/dkjh dks iznÙk 'kfDr;ksa dk iz;ksx djsaxs rFkk lkSais x, drZO;ksa dk ikyu djsaxs A

Ø- la-

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1

2

3

1-

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(Mhih,lih)]jk"Vªh; d`f"k ,oa xzkeh.k fodkl

LokfeRo okys ifjlj ;k ukckMZ }kjk ;k ukckMZ

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dh vksj ls iV~Vs ij fy, x, ifjlj

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eqEcbZ&400051] egkjk"Vª

2-

mi egk izca/d] ukckMZ] ukckMZ dkWEIysDl]

vaMeku vkSj fudksckj la?k jkT; {ks=k esa ukckMZ

dkejkt ekxZ (ohvkbZih ekxZ)] taxyh?kkV

ds LokfeRo okys ifjlj ;k ukckMZ }kjk ;k ukckMZ

(ih-vks-)] iksVZ Cys;j&744103&vaMeku

dh vksj ls iV~Vs ij fy, x, ifjlj

,oa fudksckj

3-

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,Dl jksM] eq'khjkckn] gSnjkckn &500020]

;k ukckMZ }kjk ;k ukckMZ dh vksj ls iV~Vs ij fy,

vka/z izns'k

x, ifjlj

4-

mi egk izca/d] (Mhih,lih)] ukckMZ] cSad frukyh

v:.kkpy izns'k jkT; esa ukckMZ ds LokfeRo okys ifjlj

ohvkbZih jksM] iksLV ckWDl ua- 133] bZVkuxj&

;k ukckMZ }kjk ;k ukckMZ dh vksj ls iV~Vs ij fy, x,

791111] v:.kkpy izns'k

ifjlj

5-

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vle jkT; esa ukckMZ ds LokfeRo okys ifjlj ;k ukckMZ

ua- 1] vle lfpoky; ds lkeus] th,l jksM]

}kjk ;k ukckMZ dh vksj ls iV~Vs ij fy, x, ifjlj

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6-

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ds lkeus] ds ds jksM] jk;iqj&492009] NÙkhlx<+

8-

mi egk izca/d] (Mhih,lih)] ukckMZ] futkjh

xksok jkT; esa ukckMZ ds LokfeRo okys ifjlj ;k ukckMZ

Hkou] esustl czsxsatk jksM] i.kth&403001] xksok

}kjk ;k ukckMZ dh vksj ls iV~Vs ij fy, x, ifjlj

9-

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xqtjkr jkT; esa ukckMZ ds LokfeRo okys ifjlj ;k ukckMZ

uxjikfydk xkMZu ds lkeus] iksLV ckWDl ua- 8]

}kjk ;k ukckMZ dh vksj ls iV~Vs ij fy, x, ifjlj

mLekuiqjk] vgenkckn&380013] xqtjkr

10-

egk izca/d] (Mhih,lih)] ukckMZ] IykWV la- 3]

gfj;k.k jkT; esa ukckMZ ds LokfeRo okys ifjlj ;k ukckMZ

lsDVj 34&,] iksLV ckWDl ua- 7] paMhx<+ &160022]

}kjk ;k ukckMZ dh vksj ls iV~Vs ij fy, x, ifjlj

gfj;k.kk

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % uoEcj 23] 2013@vxzgk;.k 2] 1935

6265

11-

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fgekpy izns'k jkT; esa ukckMZ ds LokfeRo okys ifjlj ;k

ua- 32] ,lMh, okf.kfT;d ifjlj] nso uxj]

ukckMZ }kjk ;k ukckMZ dh vksj ls iV~Vs ij fy, x,

dlqeifr] f'keyk&171009] fgekpy izns'k

ifjlj

12-

egk izca/d] (Mhih,lih)] ukckMZ] ch&11]

tEew ,oa d'ehj jkT; esa ukckMZ ds LokfeRo okys ifjlj ;k

pkSFkk ry] lkmFk CykWd] cgq Iyktk] iksLV ckWDl

ukckMZ }kjk ;k ukckMZ dh vksj ls iV~Vs ij fy, x, ifjlj

ua- 2] tEew&180012] tEew ,oa d'ehj

13-

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>kj[kaM jkT; esa ukckMZ ds LokfeRo okys ifjlj ;k ukckMZ

egkfo|ky; Nk=kkokl ds lkeus] djerksyh jksM

}kjk ;k ukckMZ dh vksj ls iV~Vs ij fy, x, ifjlj

jkaph&834001] >kj[kaM

14-

egk izca/d] (Mhih,lih)] ukckMZ] ukckMZ

dukZVd jkT; esa ukckMZ ds LokfeRo okys ifjlj ;k ukckMZ

Vkoj 46] dSEis xksMk jksM] caxykSj&560009]

}kjk ;k ukckMZ dh vksj ls iV~Vs ij fy, x, ifjlj

dukZVd

15-

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dsjy jkT; esa ukckMZ ds LokfeRo okys ifjlj ;k ukckMZ

ua- 5613] iq.ksu jksM] LVsP;w fr:ouariqje&695039]

}kjk ;k ukckMZ dh vksj ls iV~Vs ij fy, x, ifjlj

dsjy

16-

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dkWyksuh] fcV~Vu ekdsZV Mkd ?kj] jfo'kadj uxj]

}kjk ;k ukckMZ dh vksj ls iV~Vs ij fy, x, ifjlj

iksLV ckWDl ua- 513] Hkksiky&462016] eè; izns'k

17-

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eqacbZ vkSj Fkkus ds vykok egkjk"Vª jkT; esa ukckMZ ds

jksM] f'kokth uxj] iksLV ckWDl ua- 5] iq.ks&411005]

LokfeRo okys ifjlj ;k ukckMZ }kjk ;k ukckMZ dh vksj ls

egkjk"Vª

iV~Vs ij fy, x, ifjlj

18-

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ef.kiqj jkT; esa ukckMZ ds LokfeRo okys ifjlj ;k ukckMZ

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bEiQky&795004]ef.kiqj

19-

mi egk izca/d] (Mhih,lih)] ukckMZ] ;w iQh,V

es?kky; jkT; esa ukckMZ ds LokfeRo okys ifjlj ;k ukckMZ

[kehZgisu Hkou] f}rh; ,oa r`rh; ry] IykWV ua-

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28 (2)] /ku[ksrh] ykW dkWyst ds ikl] f'kyk¡x&

793003] es?kky;

20-

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fetksje jkT; esa ukckMZ ds LokfeRo okys ifjlj ;k ukckMZ

jksM (mÙkj) ckaxdkWu] vkbtksy&796012] fetksje

}kjk ;k ukckMZ dh vksj ls iV~Vs ij fy, x, ifjlj

21-

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ukxkySaM jkT; esa ukckMZ ds LokfeRo okys ifjlj ;k ukckMZ

if'peh ¯ox] iz'kklfud ,u,llhch fc¯YMx] [ksj

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egy] ldqZyj jksM] nhekiqj&797112] ukxkySaM

22-

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fnYyh jkT; esa ukckMZ ds LokfeRo okys ifjlj ;k ukckMZ

Iysl] ubZ fnYyh&110008] ubZ fnYyh

}kjk ;k ukckMZ dh vksj ls iV~Vs ij fy, x, ifjlj

23-

egk izca/d] (Mhih,lih)] ukckMZ] vadqj 2@1]

vksfM'kk jkT; esa ukckMZ ds LokfeRo okys ifjlj ;k ukckMZ

u;kiYyh flfod lsaVj] iksLV ckWDl ua- 179]

}kjk ;k ukckMZ dh vksj ls iV~Vs ij fy, x, ifjlj

Hkqous'oj&751015] vksfM'kk

24-

egk izca/d] (Mhih,lih)] ukckMZ] IykWV ua- 3]

iatkc jkT; esa ukckMZ ds LokfeRo okys ifjlj ;k ukckMZ

lsDVj 34&,] iksLV ckWDl ua- 7] paMhx<+&160022] iatkc

}kjk ;k ukckMZ dh vksj ls iV~Vs ij fy, x, ifjlj

1

2

3

6266

THE GAZETTE OF INDIA : NOVEMBER 23, 2013/AGRAHAYANA 2, 1935

[PART II—SEC. 3(ii)]

25-

egk izca/d] (Mhih,lih)] ukckMZ] 3] usg: Iysl]

jktLFkku jkT; esa ukckMZ ds LokfeRo okys ifjlj ;k ukckMZ

Vksad jksM] iksLV ckWDl ua- 104] t;iqj&302015]

}kjk ;k ukckMZ dh vksj ls iV~Vs ij fy, x, ifjlj

jktLFkku

26-

mi egk izca/d] (Mhih,lih)] ukckMZ] vkse fuokl

flfDde jkT; esa ukckMZ ds LokfeRo okys ifjlj ;k ukckMZ

ppZ jksM] iksLV ckWDl ua- 46] xaxVksd&737101] flfDde

}kjk ;k ukckMZ dh vksj ls iV~Vs ij fy, x, ifjlj

27-

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rfeyukMq jkT; esa ukckMZ ds LokfeRo okys ifjlj ;k ukckMZ

xka/h jksM] iksLV ckWDl ua- 6074] uquxEcDde psUubZ&

}kjk ;k ukckMZ dh vksj ls iV~Vs ij fy, x, ifjlj

600034] rfeyukMq

28-

mi egk izca/d] (Mhih,lih)] ukckMZ] iSysl dEikmaM

f=kiqjk jkT; esa ukckMZ ds LokfeRo okys ifjlj ;k ukckMZ

(iwoZ)] mthjckjh jksM] iksLV ckWDl ua- 9] vxjryk&

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799001] f=kiqjk

29-

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xkserh uxj] y[kumQ&226010] mÙkj izns'k

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30-

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31-

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ry] 6] jkW;M LVªhV] iksLV ckWDl ua- 9083]

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dksydkrk&700016] if'pe caxky

¹iQk- la- 4@1@2013&chvks,º

,e- ,e- nkSyk] voj lfpo

New Delhi, the 18th November, 2013

S.O. 2375.—In exercise of the powers conferred by Section 3 of Public Premises (Eviction of Unauthorized

Occupants) Act, 1971 (40 of 1971), the Central Government hereby appoints the Officer mentioned in column No. 2 of the

table below to be Estate Officer for the purpose of the said Act and further direct that the said officer shall exercise the

powers conferred and the duties imposed on a Estate Officer by or under the said Act within the local limits of his

jurisdiction in respect of the public premises falling under area as specified in column No. 3 of the table below:

Sl. No.

Designation of the Officer

Categories of Public Premises and Local

Limits of Jurisdiction

1

2

3

1.

The General Manager, Department of Premises, Security

Premises belonging to or taken on lease

& Procurement (DPSP)

by or on behalf of NABARD in Mumbai,

National Bank for Agriculture and Rural Development,

Thane district in the State of Maharashtra

Head Office Ground Floor, ‘A’ Wingh C-24, ‘G’ Block

Bandra Kurla Complex Bandra (East) Mumbai- 400 051,

Maharashtra

2.

The Deputy General Manager, (DPSP), NABARD

Premises belonging to or taken on lease

NABARD Complex, Kamaraj Road (VIP Road),

by or on behalf of NABARD in UT of

Junglighat (P.O.), Port Blair- 744 103- Andaman

Andaman and Nicobar

and Nicobar

1

2

3

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % uoEcj 23] 2013@vxzgk;.k 2] 1935

6267

3.

The General Manager, (DPSP)

Premises belonging to or taken on leases

NABARD, R.T.C. X Road Musheerabad

by or on behalf of NABARD in State of

Hyderabad-500 020, Andhra Pradesh

Andhra Pradesh

4.

The Deputy General Manager, (DPSP) NABARD,

Premises belonging to or taken on lease

Bank Tinali VIP Road Post Box No. 133,

by or on behalf of NABARD in State

Itanagar -791 111, Arunachal Pradesh

of Arunachal Pradesh

5.

The General Manager, (DPSP) NABARD,

Premises belonging to or taken on lease

P. O.Box No. 1 Opposite Assam Secretariat

by or on behalf of NABARD in the State

G S Road, Dispur Guwahati- 781 001, Assam

of Assam

6.

The General Manager, (DPSP) NABARD, Maurya Lok

Premises belonging to or taken on lease

Complex Block B 4 and 5 Floors Dak Bunglow- Road

by or on behalf of NABARD in State

Post Box No. 178 Patna-800001, Bihar

of Bihar

7.

The General Manager, (DPSP)

Premises belonging to or taken on lease

NABARD, 1st Floors, Pithalia Complex, Fafadih Chowk,

by or on behalf of NABARD in State

Opp. Trunk Exchange K K Road Raipur- 492009, Chhattisgarh

of Chhattisgarh

8.

The Deputy General Manager, (DPSP),

Premises belonging to or taken on lease

NABARD, Nizari Bhavan Menezes Braganza

by or on behalf of NABARD in State

Road Panaji - 403 001, Goa

of Goa

9.

The General Manager, (DPSP)

Premises belonging to or taken on lease

NABARD, Tower, Opp. Municipal Garden Post Box No.8

by or on behalf of NABARD in State

Usmanpura, Ahmedabad - 380 013, Gujarat

of Gujarat

10.

The General Manager, (DPSP)

Premises belonging to or taken on lease

NABARD, Plot No. 3, Sector 34-A Post Box No.7

by or on behalf of NABARD in State

Chandigarh -160 022, Haryana

of Haryana

11.

The General Manager, (DPSP)

Premises belonging to or taken on lease

NABARD, Block No. 32 S D A Commercial Complex

by or on behalf of NABARD in State

Dev Nagar, Kasumpati Shimla -171 009, Himachal Pradesh

of Himachal Pradesh

12.

The General Manager, (DPSP)

Premises belonging to or taken on lease

NABARD, BII, 4th Floor, South Block Bahu Plaza Post

by or on behalf of NABARD in State

Box No. 2 Jammu - 180012, Jammu & Kashmir

of Jammu & Kashmir

13.

The General Manager, (DPSP)

Premises belonging to or taken on lease

NABARD, Opposite Adivasi College Hostel Karamtoli

by or on behalf of NABARD in State

Road, Ranchi - 834001, Jharkhand

of Jharkhand

14.

The General Manager, (DPSP) NABARD,

Premises belonging to or taken on lease

NABARD Towers 46, Kempe Gowda Road

by or on behalf of NABARD in State

Bangalore - 560009, Karnataka

of Karnataka

15.

The General Manager, (DPSP)

Premises belonging to or taken on lease

NABARD, Post Box No. 5613 Punnen Road, Statue

by or on behalf of NABARD in State

Thiruvananthapuram -695 039, Kerala

of Karala

16.

The General Manager, (DPSP)

Premises belonging to or taken on lease

NABARD, E-5 Arera Colony, Bittan Market Post Office

by or on behalf of NABARD in State

Ravishankar Nagar Post Box No. 513 Bhopal - 462016,

of Madhya Pradesh

Madhya Pradesh

17.

The General Manager, (DPSP)

Premises belonging to or taken on lease

NABARD, 54, Wellesley Road Shivaji Nagar Post Box

by or on behalf of NABARD in State

No. 5 Pune - 411 005, Maharashtra

of Maharashtra except Mumbai and Thane.

1 2

3

6268

THE GAZETTE OF INDIA : NOVEMBER 23, 2013/AGRAHAYANA 2, 1935

[PART II—SEC. 3(ii)]

18.

The Deputy General Manager, (DPSP)

Premises belonging to or taken on leases

NABARD, Leiren Mansion 2nd Floor, Opp Lamphel

by or on behalf of NABARD in State

Super Market Lamphelpat, Imphal -795004- Manipur

of Manipur

19.

The Deputy General Manager, (DPSP)

Premises belonging to or taken on leases

NABARD, U Pheit Kharmihpen Building 2nd and 3rd

by or on behalf of NABARD in State

Floor, Plt. No. 28(2), Dhankheti, Near Law College Shillong-

of Meghalaya

793003 - Meghalaya

20.

The Deputy General Manager, (DPSP)

Premises belonging to or taken on leases

NABARD, Ramhlun Road (North)

by or on behalf of NABARD in State

Bawngkawn Aizawl - 796 012, Mizoram

of Mizoram

21.

The Deputy General Manager, (DPSP)

Premises belonging to or taken on leases

NABARD, 4th Floor, West Wing Administrative

by or on behalf of NABARD in State

NSCB Building Kher Mahal, Circular Road Dimapur-

of Nagaland

797 112, Nagaland

22.

The General Manager, (DPSP)

Premises belonging to or taken on leases

NABARD, 24, Rajendar Place New Delhi -110 008,

by or on behalf of NABARD in State

New Delhi

of New Delhi

23.

The General Manager, (DPSP)

Premises belonging to or taken on leases

NABARD, Ankur 2/1, Nayapalli Civic Centre Post Box

by or on behalf of NABARD in State

179 Bhubaneswar-751 015 - Odisha

of Odisha

24.

The General Manager, (DPSP)

Premises belonging to or taken on leases

NABARD, Plot. No. 3 Sector 34-A Post Box No. 7

by or on behalf of NABARD in State

Chandigarh - 160 022- Punjab

of Punjab

25.

The General Manager, (DPSP)

Premises belonging to or taken on leases

NABARD, 3, Nehru Place, Tonk Road Post Box

by or on behalf of NABARD in State

No. 104 Jaipur - 302 015- Rajasthan

of Rajasthan

26.

The Deputy General Manager, (DPSP)

Premises belonging to or taken on leases

NABARD, Om Niwas Church Road Post Box No. 46

by or on behalf of NABARD in State

Gangtok - 737 101 Sikkim

of Sikkim

27.

The General Manager, (DPSP)

Premises belonging to or taken on leases

NABARD, 48, Mahatma Gandhi Road Post Box No. 6074

by or on behalf of NABARD in State

Nungambakkam, Chennai - 600 034 Tamil Nadu

of Tamil Nadu

28.

The Deputy General Manager, (DPSP)

Premises belonging to or taken on leases

NABARD, Palace Compound (East) Uzirbari Road Post

by or on behalf of NABARD in State

Box No. 9 Agartala - 799001- Tripura

of Tripura

29.

The General Manager, (DPSP)

Premises belonging to or taken on leases

NABARD, 11, Vipin Khand Gomti Nagar,

by or on behalf of NABARD in State

Lucknow - 226 010 Uttar Pradesh

of Uttar Pradesh

30.

The General Manager, (DPSP)

Premises belonging to or taken on leases

NABARD, Hotel Sunrise Building 113/2, Rajpur Road

by or on behalf of NABARD in State

Dehradun - 248 001 Uttarakhand

of Uttarakhand

31.

The General Manager, (DPSP)

Premises belonging to or taken on leases

NABARD, Abhilasha, 2nd Floor, 6, Royd Street Post

by or on behalf of NABARD in State

Box No. 9083 Kolkata -700 016 West Bengal

of West Bengal

[F. No. 4/1/2013-BOA]

M. M. DAWLA, Under Secy.

1

2

3

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % uoEcj 23] 2013@vxzgk;.k 2] 1935

6269

isVªksfy;e vkSj izkÑfrd xSl ea=kky;

ubZ fnYyh] 14 uoEcj] 2013

dk-vk- 2376-—dsUæh; ljdkj] isVªksfy;e vkSj [kfut

ikbiykbu (Hkwfe esa mi;ksx ds vf/dkj dk vtZu) vfèkfu;e]

1962 (1962 dk 50) dh /kjk 2 ds [k.M (d) ds vuqlj.k esa

mDRk vf/fu;e ds v/hu dukZVd jkT; ds Hkhrj xsy (bf.M;k)

fyfeVsM dh lHkh ikbiykbZuksa ds fy;s l{ke vf/dkjh ds dk;ksaZa

dk fuoZgu djus ds fy;s Jherh ,e- ds- ns'kikaMs] rglhynkj]

dukZVd ljdkj] dks fnukad 23&9&2013 ls izkf/Ñr djrh gS A

¹iQk- la- ,y&14014@29@13&th-ih-º

,l- ih- vxzoky] voj lfpo

MINISTRY OF PETROLEUM AND NATURAL GAS

New Delhi, the 14th November, 2013

S.O. 2376.—In pursuance of clause (a) of Section 2

of the Petroleum and Minerals Pipelines (Acquisition of

Right of User in Land) Act, 1962 (50 of 1962), Central

Government hereby authorizes Smt. M. K. Deshpande,

Tehsildar, Government of Karnataka to perform the

functions of Competent Authority for all pipelines of GAlL

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

Karnataka w.e.f. 23-09-2013.

[F. No. L-14014/ 29/13-G. P.]

S. P. AGARWAL, Under Secy.

ubZ fnYyh] 14 uoEcj] 2013

dk-vk- 2377-—dsUæh; ljdkj] isVªksfy;e vkSj [kfut

ikbiykbu (Hkwfe esa mi;ksx ds vf/dkj dk vtZu) vfèkfu;e]

1962 (1962 dk 50) dh /kjk 2 ds [k.M (d) ds vuqlj.k esa

mDRk vf/fu;e ds v/hu jktLFkku jkT; ds Hkhrj xsy (bf.M;k)

fyfeVsM dh lHkh ikbiykbZuksa ds fy;s l{ke vf/dkjh ds dk;ks±a

dk fuoZgu djus ds fy;s Jherh izfrHkk ikjhd] Hkwfe vokfIr

vfèkdkjh] jktLFkku ljdkj] dks fnukad 12&9&2013 ls izkf/Ñr

djrh gS A igys izkf/d`r l{ke izkf/dkjh Jh tud flag dks

fujLr fd;k tkrk gS A

¹iQk- la- ,y&14014@31@13&th-ih-º

,l- ih- vxzoky] voj lfpo

New Delhi, the 14th November, 2013

S.O. 2377.—In pursuance of clause (a) of Section

2 of the Petroleum and Minerals Pipelines (Acquisition of

Right of User in Land) Act, 1962 (50 of 1962), Central

Government hereby authorizes Smt. Pratibha Pareek, Land

Acquisition Officer, Government of Rajasthan to perform

the functions of Competent Authority for all pipelines of

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

of Rajasthan w.e.f 12-09-2013. Earlier notified Competent

Authority Shri Janak Singh stands de-notified.

[F. No. L-14014/31/13-G. P.]

S. P. AGARWAL, Under Secy.

dks;yk ea=kky;

vkns'k

ubZ fnYyh] 14 uoEcj] 2013

dk-vk- 2378-—dks;yk /kjd {ks=k (vtZu vkSj fodkl)

vf/fu;e] 1957 (1957 dk 20) (ftls blesa blds i'pkr~ mDr

vfèkfu;e dgk x;k gS) dh /kjk 9 dh mi/kjk (1) ds v/hu

tkjh Hkkjr ljdkj ds dks;yk ea=kky; dh vf/lwpuk la[;kad dk-

vk- 378 rkjh[k 11 iQjojh] 2013 tks Hkkjr ds jkti=k ds Hkkx&II]

[k.M&3] mi&[k.M (ii) rkjh[k 16 iQjojh] 2013 esa izdkf'kr

gksus ij] mDr vfèklwpuk ls layXu vuqlwph esa of.kZr Hkwfe vkSj Hkwfe

esa ;k ml ij ds lHkh vf/dkj (ftls blesa blds i'pkr~ mDr Hkwfe

dgk x;k gS)mDr vf/fu;e dh /kjk 10 dh mi/kjk (1) ds v/hu]

lHkh foYyaxeksa ls eqDr gksdj] vkr;afrd :i ls dsUnzh; ljdkj esa

fufgr gks x, Fks_

vkSj] dsUnzh; ljdkj dk ;g lek/ku gks x;k gS fd lkmFk

bZLVuZ dksyiQhYM~l fyfeVsM] lhir jksM] Mkd?kj la[;k 60] ftyk&

fcykliqj µ495006 (NRrhlx<+) (ftls blesa blds i'pkr~ mDr

^ljdkjh daiuh* dgk x;k gS) ,sls fuca/uksa vkSj 'krks± dks ftUgsa

dsUnzh; ljdkj bl fufeÙk vf/jksfir djuk mfpr le>s] vuqikyu

djus ds fy, rS;kj gS_

vr%] vc] dsUnzh; ljdkj] mDr vf/fu;e dh /kjk 11

dh mi&/kjk (1) }kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq,] ;g

funs'k nsrh gS fd bl izdkj fufgr Hkwfe vkSj ml ij ds vf/dkj

rkjh[k 16 iQjojh] 2013 ls dsUnzh; ljdkj esa bl izdkj fufgr cus

jgus dh ctk,] fuEufyf[kr fuca/uksa vkSj 'krks± ds v/hu jgrs gq,]

mDr ljdkjh daiuh esa fufgr gks tk,axs] vFkkZr~ %µ

1- ljdkjh daiuh] mDr vf/fu;e ds mica/kas ds v/hu

;Fkk vo/kfjr izfrdj] C;kt] uqdlkuh vkSj oSlh gh enksa dh ckcr

fd, x, lHkh lank;ksa dh dsUnzh; ljdkj dks izfriwfrZ djsxh _

2- 'krZ (1) ds v/hu] ljdkjh daiuh }kjk dsUnzh; ljdkj

dks lans; jdeksa dk vo/kj.k djus ds iz;kstuksa ds fy, mDr vfèkfu;e

dh /kjk 14 ds v/hu ,d vf/dj.k dk xBu fd;k tk,xk vkSj

,sls mDr vf/dj.k dh lgk;rk ds fy, fu;qDr O;fDr;ksa ds

laca/ esa mixr lHkh O;;] ljdkjh daiuh }kjk ogu fd, tk,axs

vkSj bl izdkj fufgr mDr Hkwfe esa ;k ml ij ds vf/dkjksa ds fy,

;k muds laca/ esa tksfd vihy vkfn lHkh fof/d dk;Zokfg;ksa dh

ckcr mixr] lHkh O;; Hkh] ljdkjh daiuh }kjk ogu fd, tk,axs_

3- ljdkjh daiuh] dsUnzh; ljdkj ;k mlds in/kfj;ksa dh]

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

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

6270

THE GAZETTE OF INDIA : NOVEMBER 23, 2013/AGRAHAYANA 2, 1935

[PART II—SEC. 3(ii)]

ljdkj ;k mlds in/kfj;ksa }kjk ;k muds fo#¼ fdUgha dk;Zokfg;ksa

ds laca/ esa vko';d gks_

4- ljdkjh daiuh dks] dsUnzh; ljdkj ds iwoZ vuqeksnu ds

fcuk] mDr Hkwfe dks ;k mlesa fufgr vf/dkjksa dks vkSj fdlh vU;

O;fDr ds vf/dkjksa dks varfjr djus dh 'kfDr ugha gksxh _ vkSj

5- ljdkjh daiuh] ,sls funs'kksa ;k 'krks± dk ikyu djsxh] tks

dsUnzh; ljdkj }kjk] tc dHkh vko';d gks] mDr Hkwfe ds fof'k"V

{ks=kksa ds fy, fn, tk,a ;k vf/jksfir dh tk,a A

¹iQk- la- 43015@21@2010&ihvkjvkbZMCY;w&Iº

oh- ,l- jk.kk] voj lfpo

MINISTRY OF COAL

ORDER

New Delhi, the 14th November, 2013

S.O. 2378.—Whereas on the publication of the

notification of the Government of India in the Ministry of

Coal, number S.O. 378 dated the 11th February, 2013, in the

Gazette of India, Part II, Section 3, sub-section (ii), dated

the 16th February, 2013, issued under sub-section (1) of

Section 9 of the Coal Bearing Areas (Acquisition and

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

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

land described in the schedule appended to the said

notification (hereinafter referred to as the said land) vested

absolutely in the Central Government free from all

encumbrances under sub-section (1) of Section 10 of the

said Act.

And, whereas the Central Government is satisfied

that the South Eastern Coalfields Limited, Seepat Road,

Post Box No. 60, District-Bilaspur-495006 (Chhattisgarh)

(hereinafter referred to as the Government Company) is

willing to comply with such terms and conditions as the

Central Government thinks fit to impose in this behalf.

Now, therefore, in exercise of the powers conferred

by sub-section (1) of Section 11 of the said Act, the Central

Government hereby directs that the said land and the rights

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

dated the 16th February, 2013 instead of continuing to so

vest in the Central Government, vest in the Government

company, subject to the following terms and conditions,

namely :-

(1) the Government company shall reimburse to the

Central Government all payments made in respect of

compensation, interest, damages and the like, as determined

under the provisions of the said Act ;

(2) a Tribunal shall be constituted under Section 14

of the said Act for the purpose of determining the amounts

payable to the Central Government by the Government

company under condition (1), and all expenditure incurred

in connection with any such Tribunal and persons

appointed to assist the said Tribunal shall be borne by the

Government company and similarly, all expenditure incurred

in respect of all legal proceedings like appeals, etc., for or

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

vested shall also be borne by the Government company;

(3) the Government company shall indemnify the

Central Government or its officials against any other

expenditure that may be necessary in connection with any

proceedings by or against the Central Government or its

officials, regarding the rights in or over the said land so

vested;

(4) the Government company shall have no power to

transfer the said and the rights in or over the said land so

vested, to any other person without the prior approval of

the Central Government; and

(5) the Government company shall abide by such

directions and conditions as may be given or imposed by

the Central Government for particular areas of the said land,

as and when necessary.

[F. No. 43015/21/2010 - PRIW-I]

V. S. RANA, Under Secy.

Je vkSj jkstxkj ea=kky;

ubZ fnYyh] 24 vDrwcj] 2013

dk-vk- 2379-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa dsUnzh; ljdkj LVsV cSad vkWiQ

eSlwj 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;] cSaxyksj ds iapkV (lanHkZ la[;k 07@2009)

dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 24&10&2013 dks

izkIr gqvk Fkk A

¹la- ,y&12012@68@2007&vkbZ vkj (ch&I)º

lqefr ldykuh] vuqHkkx vf/dkjh

MINISTRY OF LABOUR AND EMPLOYMENT

New Delhi, the 24th October, 2013

S.O. 2379.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 07/2009)

of the Central Government Industrial Tribunal-cum-Labour

Court, Bangalore as shown in the Annexure, in the

Industrial Dispute between the management of The

State Bank of Mysore, and their workman, which was

received by the Central Government on 24-10-2013.

[No. L-12012/68/2007-IR (B-I)]

SUMATI SAKLANI, Section Officer

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % uoEcj 23] 2013@vxzgk;.k 2] 1935

6271

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

BANGALORE

Dated : 17th October 2013

PRESENT : Shri S. N. NAVALGUND, Presiding Officer

C R No. 07/2009

I Party

Sh. B Giridhar.

No.45/24-K-15-11,

Ameena.Abbas Nagar, Near

Venkata Ramana Colony,

KURNOOL.

II Party

The Deputy General

Manager, Zonal Office.

Hubli Zone, Sri Siddappa

Kambli Rd., Old Lamington

Rd., HUBLI - 580 021.

Appearances :

I Party

:

Muralidhara

Advocate

II Party :

Shri Ramesh Upadhayay

Advocate

AWARD

1. The Central Government vide order No. L-12012/

68/2007-IR(B-I) dated 10.02.2009 in exercise of the power

conferred by clause (d) of sub-section (1) and sub-section

(2A) of Section 10 of the Industrial Disputes Act, 1947

(14 of 1947) made this reference for adjudication with the

following schedule:

‘‘Whether the action of the management of State

Bank of Mysore, Hubli in imposing punishment of

removal from service to Shri B. Giridhar S/o B.

Krishnamurthy vide order dated 21-01-2006, is legal

and justified? If not, to what relief the concerned

workman is entitled?’’

2. On receipt of the reference while registering it in

C R 07/2009 when notices were issued to both the sides

they entered their appearance through their respective

advocates and I party filed his claim statement on 26.05.2010

and II party its counter statement on 30. 7.2010. On completion

of the pleadings having regard to certain as sertions made

in the claim statement touching the fairness of the Domestic

Enquiry while raising a Preliminary Issue as to

‘‘Whether the Domestic Enquiry held against the I

party by the II Party is fair and proper?’’

after receiving the evidence of both the sides by order

dated 25. 10.2011 the said issue was answered in the

affirmative holding that Domestic Enquiry held against the

I Party by the II party is fair and proper. After order on the

Preliminary Issue the I Party was called upon to adduce

evidence on victimization and being not gainfully

employed. Learned advocate appearing for the I party while

filing the affidavit of I Party on 13.02.2012 while examining

him on oath as WW 1 (V) got exhibited the certified copy

of the Order passed by the Hon'ble High Court of Karnataka

in Criminal Appeal No. 26 27/2010 dated 23.01.2012 wherein

he has been acquitted of the charges levelled against him

setting aside the judgement passed in Spl . Case No. 86/

2005 on the file of Special Judge, Bellary as Ex W-1 but the

learned counsel for the II Party rest contended by cross -

examining him without leading any rebuttal evidence.

3. Since the Domestic Enquiry conducted by the

II Party against the I party is held as fair and proper, having

regard to the arguments put forward on merits by the

learned advocates appearing on both the sides, I have to

decide whether the finding of the Enquiry Officer charge

being proved is perverse and, if not the punishment

imposed is isproportionate to the misconduct proved and

whether in view of the judgement of the Hon'ble High

Court of Karnataka in C A No. 2627/2010 acquitting the

I Party setting aside the judgement of the Special Judge

Bellary in C C No. 86/2005 the order of removal from serice

is required to be set aside, the points that arises for my

consideration are:

Point No. 1: Whether the finding of the Enquiry

Officer is perverse?

Point No. 2: If not, whether the punishment of

removal imposed is disproportionate to the proved

misconduct against the I party?

Point No. 3: whether in view of his acquittal from all

the alleged offences by the Special Judge and

Hon'ble High Court in respect of which the Domestic

Enquiry was conducted the order of removal is liable

to be set aside or needs any modification?

Point No. 4: What Order?

4. On appreciation of the pleadings, the evidence

adduced in the Domestic Enquiry, on victimization, finding

of the Enquiry Officer with the arguments put forward by

the learned advocates my finding on the above points are

as under:

Point No. 1: Partly Affirmative and partly Negative

Point No. 2: Affirmative

Point No. 3: Negative

Point No. 4: As per final order

6272

THE GAZETTE OF INDIA : NOVEMBER 23, 2013/AGRAHAYANA 2, 1935

[PART II—SEC. 3(ii)]

REASONS

5. Point No. 1 and 3 : It is borne out from the records

that on a complaint given by Assistant Manager, State

Bank of Mysore, ADB Sandur Branch district Bellary to

the Assistant General manager, Region IV, Region Bellary

the copy of which is marked in the Domestic Enquiry as

BEX 2(b) alleging that on 16.11.2004 as a Joint Custodian

and Offlciating Branch Manager himself and B Giridhar/

I Party who was incharqe Head Cashier went to the strong

room for closure of case and as Mr. B Giridhar had initialled

denomination wise in, the vault register had not initialled

the cash balance and when he asked to initial the cash

balance he refused saying in Hindi "Hum nahi Karte hai.

Peechevala kya Kiya Nahi mujhe maloom nahi, My Nahi

Karta, Tum Jaise Jatilog bahutse Deke hai, Tumko Kya

Karna Hai Kario" and when he told him "Ye Tumhara ghar

nahi. It is office. Behave properly" he fisted on his face

due to which bleeding started and his lower tooth injured

and in the meanwhile his colleague Chandrashekar

intervened and stopped further assault and there after

Sh. Aravind Kumar another colleague came to the branch

to whom he explained the matter, the Assistant General

Manager and Disciplinary Authority, State Bank of Mysore

Region-IV, Bellary issued a charge sheet to the I party

calling upon him to give his reply within seven days which

reads as under:

‘‘On 16-11-04, when you were officiating as Head

Cashier, you are alleged to have committed the

following misconduct.

On 16-11-04 at about 6.30 P.M. while closing cash,

you were advised by the joint custodian & the

Branch Manager (Offg) to initial the Cash Balance in

the vault register, as erivisaged in Chapter-9 of

Bank's Book of instructions. You instead of

complying with his instructions not only defied him

but also told him. to do whatever he wanted. When

the joint custodian & the Branch Manager (Offg)

advised you to behave yourself, you hit him with

your fist on his face, causing the joint custodian

serious injury.

Your above act amounts to Gross Misconduct in

terms of Para 5 c, e & j of Memorandum of Settlement

dated 10-04-2002 on Disciplinary Authority

procedure for workmen vide Staff Circular 56/02-03

dated 22.08.2002.

You are required to submit your reply, if any, within

7 days of receipt of this Charge Sheet, Failing which

further action in terms of the extant provisions will

be initiated without any Further reference to you."

6. To the above charge sheet when the I Party gave

his reply dated 19.02.2005 stating that on 16.11.2004 at 06.30

p.m. while closing Branch Cash he put his initials in the

vault register recording the Cash Balance as also envisaged

in the Bank Books of Instructions and that he never told

Sh. S K Kadam to do whatever he wants and that the only

defended at that moment and requested to drop the further

proceedings. The Assistant General Manager and

Disciplinary Authority, SBM, Region-IV being not satisfied

of the reply ordered for holding Disciplinary Enquiry

appointing Sh. Ramachandran, Zonal Manager as Enquiry

Officer and Sh. Bhaskarcharvarty, Deputy Manager, JVSL

Branch as Presenting Officer. Then the Enquiry Officer

scheduled the enquiry on 07.04.2005 and as requested by

the I Party/CSE adjourned to 15.04.2005 and even on

15.04.2005 since CSE did not appear he postponed it to

20.04.2005 and later CSE telephoned and requested the

Enquiry Officer to postpone the enquiry on the ground

that he has some religious function from 19.04.2005 to

21.04.2005, it was adjourned to 27.04.2005 and again on his

request he adjourned from 27.04.2005 to 09.05.2005, from

09.05.2005 to 27.06.2005 and even on that day CSE did not

appear but had sent a telegram seeking time stating that

"NOT FEELING WELL POSTPONE ENQUIRY DATE".

On that date i.e., 27.06.2005 on serious opposition by the

Presenting Officer to postpone the enquiry the Enquiry

Officer taking into account the previous history/conduct

on the part of the CSE observing that he has been purposely

protracting the enquiry placing him exparte proceeded to

receive the evidence of M G Pillay, Branch Manager,

Subhash Krishna Kadam, Assistant Manager,

Chandrashekar Shetti, Assistant Manager (Advances) as

BW 1 to BW 3 kept present by the Presenting Officer and

in the evidence of BW 1 exhibited the Key Register;

Attendance register to show that on the date of alleged

incident i.e. 16.11.2004 the CSE was on duty and vault

register of ADB Sandur Branch as BR 1, BR 2 and BR 3 and

in the evidence of BW 2 the letter addressed by him to the

Assistant General Manager, Region IV, Bellary on 17.11.2004

regarding the alleged incident occurred on 16.11.2004; the

letter handing over charge to him by the Branch Manager,

Sh. Pillai on 16.11.2004; two medical certificates issued by

Medical Superintendent, Sandur Govt. Hospital and Dr.

(Gayathri, Sandur Govt. Hospital pertaining to him dated

16.11.2004 and 17.11.2004; the letter of apology given by

CSE to him (BW 2) dated 16.11.2004; sanction order

regarding reimbursement of Medical Bill pertaining to him

as Exhibits BEx 2(a), BEx 2(b), BEx 3(a), BEx 3(b), BEx 4 and

BEx 5 respectively after giving three days time to the PO to

file his written brief he submitted the Enquiry Finding on

02.07.2005 Charge Being Proved. Then the Disciplinary

Authority while giving a show cause notice along with the

copy of the Enquiry Report after receiving his reply and

affording him an opportunity of personal hearing by his

order dated 21.01.2006 inflicted the punishment of Removal

from the Service with Superannuation benefits i.e Pension

and/or Provident Fund and Gratuity as would be due

otherwise under the Rules and without disqualification from

future employment by invoking provisions of Clause 6(b)

of Memorandum of Settlement dated 10.04.2002. Being

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % uoEcj 23] 2013@vxzgk;.k 2] 1935

6273

aggrieved by the said punishment Order when the CSE/I

Party preferred an appeal to the Deputy General Manager

and Appellate Authority he after affording an opportunity

of hearing by his order dated 26.06.2006 confirmed the order

passed by the Disciplinary Authority. Being aggrieved by

the said punishment when I Party approached the Assistant

Labour. Commissioner (C), Bellary for conciliation and he

submitted FOC on 30.04.2007 it resulted in this reference.

Since as adverted to by me in detail which is also discussed

in detail while considering the Preliminary Issue touching

the fairness of the enquiry, the Enquiry Officer after

affording several opportunities to the CSE/I Party and

being satisfied that he was unnecessarily protracting the

enquiry placing him exparte on the same day receiving the

evidence tendered for the management closed the enquiry

and submitted his enquiry finding and as there was no

challenge to the evidence adduced for the management

the Enquiry Officer observing that the oral evidence and

documentary evidence placed before him corroborative with

one another arrived at conclusion of holding that Charge

as proved beyond doubt. It is on record that in respect of

this very incident alleged to have occurred on 16.11.2004

persuant to the complaint filed by BW 2 Subhas Kadam on

the same day the Deputy Superintendent of Police, Hospet

had charge sheeted the CSE for offences punishable under

Sections 504, 323 of IPC and Section 3(1)(X) of Scheduled

Castes and Scheduled Tribes (Prevention of Atrocities)

Act, 1959 in the court of Special Judge, Bellary and the

same registered in Special Case No. 86/2005 after trial by

Judgement dated 22.03.2010 the CSE/Accused therein was

acquitted of alleged offence punishable under Section

3(1)(X) of Scheduled Caste and Schedule Tribes (Prevention

of atrocities) Act 1959 and having found guilty U/S 504

and 323 of IPC convicted him to pay a fine of Rs. 4000.00 in

all. Aggrieved by the said judgement when the CSE

preferred an appeal to the Hon'ble High Court of Karnataka

in C A No. 2627/2010 the Hon'ble High Court of Karnataka

through judgement dated 23.01.2012 observing that the

alleged incident was a stray incident of some exchange of

words between the complainant and the accused which

resulted in slight harm to the complainant which could not

be complained by him and there was a delay of one day in

filing the complaint which appears to be an afterthought to

malign the accused and the age of injury was not mentioned

in the wound certificate so as to ascertain when the injury

was suffered by the complainant ordered for acquittal of

the CSE from the offences punishable U/S 504 and 323 of

the IPC setting aside the judgement of Special Judge,

Bellary. The learned advocate appearing for the I Party

while citing the decision of Hon'ble Supreme Court of India

in the case of Tank G M vs. State of Gujarat and others

reported in 2006 III LLJ Page 1075 urged that in view of

acquittal of the accused from all the alleged offences on

the complaint filed by this very complainant the enquiry

finding and consequent punishment imposed are liable to

be set aside. Since in the said reported decision relating to

amassing wealth by a public servant the Supreme Court

came to the conclusion that was a case of no evidence and

arrived at conclusion on subsequent order of acquittal of

the accused the order of dismissal was liable set aside, but

in the present case i.e. not the situation. Though the charge

in the criminal case as well as in the Domestic Enquiry were

one and the same the acquittal in the present case is not a

acquittal for no evidence as already adverted to by me

above. Moreover, the standard of proof of a criminal charge

and the charge in the Domestic Enquiry cannot be equated

because in the criminal case the charge is required to be

proved beyond reasonable doubt whereas in the Domestic

Enquiry it is the probability that weighs in coming to certain

conclusion. In the instant case since the CSE/I Party by

his own conduct allowed the Enquiry Officer to proceed in

his absence placing him exparte there was no challenge to

the evidence of the management placed before the Enquiry

Officer, but inspite of it, it was the duty of the Enquiry

Officer to analyse the evidence and apply his mind to the

charge and the evidence placed before him whether the

entire allegations in the charge were proved because

happening of some event was not denied. According to

the allegations of the officiating manager of ADB Sandur

Branch of the 11 party who was examined as BW 2 in the

enquiry, on 16-11-2004 at 06.30 p.m. when himself and the

CSE who was incharge Head Cashier of the Branch went

to the Strong Room for closure of Cash and as CSE who

had initialled the denomination wise entries in the Vault

Register and had not initialled the cash balance refused to

initial the cash balance when he asked him to initial and

uttered to him "Hum nahi Karte hai. Peechevala kya Kiya

Nahi mujhe maloom nahi, My Nahi Karta, Tum Jaise Jatilog

bahutse Deke hai. Tumko Kya Karna Hai Karlo" and in

turn when he told "Ye Tumhara ghar nahi. It is office.

Behave properly" he hit him with fist on the face due to

which bleeding started and his lower teeth got injured and

to this effect he gave evidence before the Enquiry Officer

without much variation. But it is pertinent to note that

according to him on the very date of incident he had went

to the Medical Officer, Community Health Centre, Sandur

and the said Medical Officer after examining him gave a

certificate copy of which is produced at BEx 3(a) wherein

the injuries noticed by him are described as (1) contusion -

4 cm x 3 cm Rt. Thigh anteriorily near the knee joint (2)

Abrasion - 5 cm x 3 ern, outer part of Right Leg before knee

joint which suggest that he had contusion and abrasion

on the right thigh anteriorly on the right thigh and outer

part of the right leg below knee joint which is possible due

to blow by hard and blunt object like Stick. Whereas in the

another certificate produced by him at BEx (3)(b) purported

to have been issued by another Medical Officer of the

same Hospital wherein he describes the injury as "Mobile

1+1" and soft tissue laceration on lower lip and gingival

ulceration in relation to1+1. According to the allegations

in the complaint the alleged assault by the CSE was on his

face whereas in the Medical Certificate issued on the very

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[PART II—SEC. 3(ii)]

date of alleged incident no injury on the face finds place

and on the other hand according to that certificate the

injuries noticed were on the Right thigh and leg near the

knee joint. Therefore, the second medical certificate marked

as exhibit BEx 3(b) appears to have been issued by another

medical officer of the same Government Hospital to suit

the allegations in the complaint obliging the complainant.

Having regard to these discrepancies in the two medical

certificates produced by the complainant/BW 2 the

allegation of CSE fisting him on the face after altercation of

words in relation to signing of the Cash Balance Register

was an improvement to make the incident serious. From

this evidence on record the Enquiry Officer ought not to

have accepted the portion of the charge he having hit

complainant with his fist on his face, therefore, I am of the

considered view the Enquiry Officer holding the entire

charge being proved beyond doubt is perverse and that

he ought to have held the charge being proved in part

relating to altercation of words between the two. In the

result, I have arrived at conclusion part of the enquiry

finding even holding the charge of assaulting by the CSE

to the complainant as proved is perverse but I have no

reason to say that the altercation ensued as alleged in the

charge had not occurred and accordingly, I have arrived at

conclusion of answering this point partly in the Affirmative

relating to the portion of the charge alleging assault by the

CSE to the complainant and Negative in respect of the

portion of the charge regarding altercation ensued between

the CSE and the complainant due to failure of the CSE to

put initial at the cash balance in the Vault Register.

7. Point No. 2: The learned advocate appearing for

the I Party while submitting that only there was some

exchange of words between the I Party and Officiating

Branch Manager in the Strong Room for failure of the CSE

to initiate the Cash Balance and the same was being made

much adding to the said incident that he was insulted by

taking his caste and also assaulted on the face the

Disciplinary Authority taking into account the evidence

on record could have accepted the Enquiry Finding in part

and for the trivial incident of exchange of words between

them could have warned the CSE or punished by

withholding one or two increments as such the punishment

imposed of Removal from Service is highly dis-

proportionate. Interalia, the learned advocate appearing

for the II party urged that the I party having compelled the

Enquiry Officer to place him exparte and to receive the

evidence of the management and to give his finding charge

being proved the same being accepted by the Disciplinary

Authority the punishment imposed for such attitude on

the part of the CSE against his superior in the Bank is just

and proper and in support of his arguments cited the

decision of Supreme Court in Employers, Management,

Colliery, M/s. Bharat Coking Coal Ltd. Etc., Appellants v.

Bihar Colliery Kamgar Union through Workmen,

Respondent reported in AIR 2005 SC 2006. Having regard

to the facts of that reported case that workmen formed

themselves into unlawful assembly armed with deadly

weapons assaulted managing staff held the order of

Dismissal was proportionate. But in the instant case as

adverted to by me in the above Paras and as held by the

Hon'ble High Court of Karnataka in the appeal against the

judgement of the trial court that a trivial incident of

exchange of words was made much falsely making an

allegation that complainant was also insulted taking his

caste and assaulted on the face from the evidence on record

even the Disciplinary Authority could have appreciated

and accepted the enquiry finding in part only in respect of

exchange of words disbelieving the charge and finding on

assault and inflicted a lesser punishment like warning or

withholding one or two increments. Having regard to the

fact that CSE had omitted to put his initial at Cash Balance

in the Vault Register when asked to do so having retorted

in a fashion that he can do whatever he can, the punishment

of removal for such a trivial incident is too harsh and at the

most he could have been admonished or imposed with

punishment of withholding of one increment. At this stage

even imposing a punishment of withholding of one or two

increment would be harsh because till he was acquitted by

the Hon'ble High Court of Karnataka even from the

offences under Section 504 and 323 of IPC by its judgement

dated 23-01-2012 by virtue of the judgement of the Special

Judge he was found guilty of these offences and the ordial

he has suffered since 2006 the year in which he suffered

the punishment of Removal from Service and the

circumstances do not entitle him for backwages this is

sufficient punishment for him and there is no necessity to

impose him any actual punishment. Accordingly, I have

arrived at conclusion of answering this issue in the

Affirmative and of the opinion that it is not a fit case to

impose any punishment other than refusing the backwages.

8. Point No. 4: In view of my finding on Point No. 1

to 3 though the Enquiry Finding in part relating to the

exchange of words between I Party and the complainant

who was the officiating Branch manager in connection with

he/CSE not putting his initial at the Cash Balance in the

Vault Register he had deserved a minor punishment like

Warning or withholding of one increment, but having regard

to the ordial he has suffered since 2006 the year in which

he is removed from Service it is sufficient punishment for

him and that he is entitle for reinstatement in service with

continuity of Service and other consequential benefits

without backwages. Accordingly, this issue is answered

and I pass the following.

ORDER

The Reference is partly allowed holding that the action of

the management of State Bank of Mysore, Hubli in imposing

punishment of removal from service to Shri B. Giridhar S/o

B. Krishnamurthy vide order dated 21-01-2006 is not legal

and justified and that he is entitle for Reinstatement into

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % uoEcj 23] 2013@vxzgk;.k 2] 1935

6275

Service with continuity of Service and other consequential

benefits without backwages. The II party shall issue

reinstatement order within 30 days from the date of

publication of the Award failing which after one month of

the publication it is liable to pay him the wages for which

he would be entitle to.

(Dictated to U D C transcribed by him, corrected and

signed by me on 17th October, 2013)

S. N. NAVALGUND, Presiding Officer

ubZ fnYyh] 30 vDrwcj] 2013

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dk 14) dh /kjk 17 ds vuqlj.k esa dsUnzh; ljdkj eSllZ ,iQ lh

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vf/dj.k@Je U;k;ky;] ukxiqj ds iapkV (lanHkZ la[;k 315@2003)

dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 30&10&2013 dks

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¹la- ,y&22012@297@2003&vkbZ vkj (lh,e&II)º

ch- ,e- iVuk;d] MsLd vf/dkjh

New Delhi, the 30th October, 2013

S.O. 2380.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 315/

2003) of the Central Government Industrial Tribunal-cum-

Labour Court, Nagpur as shown in the Annexure, in the

Industrial Dispute between the management of Food

Corporation of India, and their workmen, received by the

Central Government on 30-10-2013.

[No. L-22012/297/2003-IR (CM-II)]

B. M. PATNAIK, Desk Officer

ANNEXURE

BEFORE SHRI J.P. CHAND, PRESIDING OFFICER,

CGIT-CUM-LABOUR COURT, NAGPUR

Case No. CGIT/NGP/315/2003 Date: 03-10-2013

Party No.1(a) :

The District Manager,

Food Corporation of India,

Ajani, Nagpur,

Nagpur - 440015.

Party No.1(b)

The Senior Regional Manager,

Food Corporation of India,

Mistry Bhawan, Dinshaw Wacha

Road, Churchgate,

Mumbai - 400020.

Versus

Party No. 2 :

The Secretary,

Rashtriya Mazdoor Sena, Hind Nagar,

Ward No. 2, Near Boudha Vihar,

Post: Wardha, Distt. Wardha (M.S.)

AWARD

(Dated: 3rd October, 2013)

In exercise of the powers conferred by clause (d) of

sub-section (1) and sub-section 2 (A) of section 10 of

Industrial Disputes Act, 1947 (14 of 1947) ("the Act" in

short), the Central Government has referred the industrial

dispute between the employers, in relation to the

management of Food Corporation of India and their

workman, Shri Premlal Narayan Dhurve, for adjudication,

as per letter No. L-22012/297/2003-IR (CM-II) dated

08.12.2003, with the following schedule:-

‘‘Whether the action of the management of Food

Corporation of India, Nagpur (M.S.) in terminating

the services of Shri Premlal Narayan Dhurve, Security

Guard w.e.f. 14.03.1999 is legal and justified? If not,

to what relief the concerned workman is entitled?’’

2. On receipt of the reference, the parties were noticed

to file their respective statement of claim and written

statement and accordingly, the workman, Shri Premlal

Narayan Dhurve (‘‘the workman’’ in short), filed the

statement of claim and the management of Food Corporation

of India ("Party No. 1" in short) filed their written statement.

The case of the workman as presented in the

statement of claim is that he was in the employment of

Party No. 1 from 01.06.1992 and he was initially engaged

through a contractor at Gondia Depot of Party No. 1, as a

Security Guard and he was in continuous service without

any interruption till 14th March, 1999, when his services

were terminated orally by Party No. 1, without following

the due procedure of law and he had completed more than

240 days of work in each year and the termination of his

services on 14.03.1999 was not in good faith, but in

colourable exercise of the rights and powers by the Party

No. 1 and while terminating his services, neither one

month's notice nor one month's wages in lieu of notice nor

retrenchment compensation was given to him as required

under section 25-F of the Act and after his illegal

termination, fresh hands from the department of home guard

and police were engaged by Party No. 1 to extract the

duties of Security guards, in violation of the provision of

section 25-H of the Act and the work which he was

performing is constantly in existence and the same is of a

perennial nature and as his termination is illegal and

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THE GAZETTE OF INDIA : NOVEMBER 23, 2013/AGRAHAYANA 2, 1935

[PART II—SEC. 3(ii)]

unlawful, he is entitled for reinstatement in service with

continuity and full back wages.

The further case of the workman is that in 1992, he

was engaged by the Party No. 1 through the contractor for

a period of two years, but the contract was made only on

papers and after every two years, the Party No. 1 changed

the contractor on papers only and the engagement of the

so-called contractor did not replace the Security Guards

and he was also not disturbed from his services and he

was merely shown to be engaged by the contractors, but

actually, he was working under the direct control and

supervision of the Party No. 1 and the contractor had no

role to play in the same and the work performed by him was

being assigned to him by Party No. 1 and he was a regular

employee of Party No. 1 and Party No. 1 was his real

employer and not the contractor as alleged and the

engagement and change of contractors by Party No. 1

from time to time was sham and only a camouflage to deny

his legitimate claim and the contract between Party No. 1

and the contractor was bogus and not genuine and

therefore, his oral termination from services was against

the mandatory provisions of the Act and the Central

Government decided to abolish the appointment of contract

labour as contemplated under section 10 of the Contract

Labour (Regulation and Abolition) Act, 1970 and issued

notification on 01.11.1990 with directions to abolish the

contract labour system in the establishment of the Party

No. 1 and to give employment to contract labours engaged

by the management and therefore, it was the mandatory

duty of the Party No. 1 to abolish the contract labour system

in all places and management of FCI implemented the

notification only at Nagpur and Manmad and absorbed

the Security Guards working at Nagpur and Manmad, but

at Akola, Amravati, Wardha and Gondia districts, the

contract labour system was continued by the management,

with an intention to deprive him from the benefits under

the labour laws.

It is further pleaded by the workman that his salary

was paid by the Party No. 1 and not by the contractor and

his daily attendance was also marked by the Asstt.

Manager of FCI, Wardha Depot and the Party No. 1 was

supervising his work through their officers and he had no

relation with the so called contractors engaged by the Party

No. 1 and Party No. 1 also supplied the articles, such as,

torch, lathi, whistle and uniform etc. to him and in view of

the long spell of work being carried out by him, he is entitled

to be reinstated in service with continuity and full back

wages.

3. The Party No. 1 in their written statement have

pleaded inter alia that the workman was never in their

employment and the workman has not impleaded the

contractor, who appointed him, as a Party and the workman

was engaged by the contractor as a Security Guard at FCI

Depot and the said contractor is a necessary party and in

absence of the contractor, the proceeding cannot proceed

and the workman was not in their service uninterruptedly

till 14th March, 1999 and since the contract of the contractor

came to an end, the services of the workman were terminated

by the contractor and the original period of contract given

to the contractor for providing Security services was up to

1998 and the same was extended as per the terms and

conditions till March, 1999 and as the workman was not

employed by them, there was no question of following the

procedure of termination by them and they were not the

employer of the workman and the services of the workman

were never utilized by them as employer from 01.06.1992 to

14.03.1999, without any break in service and the workman

did not complete 240 days of work in a year as alleged and

as the workman was engaged by the Security Contractor,

there was no relationship of master and servant between

them and the workman at any point of time and under

section 10 of the Contract Labour (Regularisation and

Abolition) Act, they were exempted by the Central

Government, so the allegations made by the workman

against them are not true and there was no question of

violation of the provisions of 25 (H) of the Act and the

work does not constantly exist and the work of providing

security guards was given to other Government Agencies

like Police Personnel and Home guards and therefore, the

workman has no right to claim any relief from them and the

work of security is not perennial in nature and as and when

their go-downs are filled with food grains, then only,

services of the security guards are required and in

pursuance of the notification issued by the Central

Government abolishing contract labour system, they

appointed Home guards and Police personnel as security

guards.

The further case of party no. 1 is that for the relief as

claimed, by the workman had filed a writ petition before the

Hon'ble High Court, Nagpur Bench bearing W.P. No. 1389/

99 and the Hon'ble High Court rejected the said WP and

denied the relief prayed for and therefore, this Tribunal has

no jurisdiction to decide the reference and the decision of

the Hon 'ble Court operates as res-judicata and they floated

tenders for the contract and lowest bidder was awarded

the contract and the change of contractor in every two

years was not on papers only and they had no say in the

appointment of security guards by the security contractor

and they had no control over the appointment and service

conditions of the workman, who was an employee of the

security agency and he was never their employee and the

security contractor was the employer of the workman.

The further case of party no. 1 is that the appropriate

government decided to abolish the employment of the

contract labour as contemplated under section 10 of the

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % uoEcj 23] 2013@vxzgk;.k 2] 1935

6277

Contract Labour (Regularisation and Abolition) Act, 1970

and the interpretation of the notification issued on

01.11.1990 put by the workman is not correct and they

were exempted from the operation of the Act of 1970 in the

year 1989 and the said exemption was withdrawn in the

year 1999 and therefore, the security contact given to the

contractor was terminated and hence, the services of the

workman were terminated by the security contractor and

they did not pay the salary to the workman and it was the

contractor, who was paying the same to the workman and

when the contractor failed to pay the salary to the workman,

they paid the amount as per the directions given by the

ALC from time to time and the said amount was recovered

from the contract's bill and they only used to check the

attendance of the security guards to find out as to whether

the contractor had made arrangement of the requisite

number of security guards, as per their requirement and

they did not have the power to terminate any employee

appointed by the contractor and they did not provide any

article, such as torch, Lathi, whistle and uniform etc to the

workman and as such, the workman is not entitled to any

relief.

4. Both parties have led oral evidence in support of

their respective claims, besides placing reliance on

documentary evidence.

The workman in support of his claim has examined

himself as a witness. In his evidence, which is on affidavit,

the workman has reiterated the facts mentioned in the

statement of claim.

5. In his cross-examination, the workman has

admitted that he cannot say the contents of the statement

of claim as the same is in English language and in his

statement of claim and so also in his affidavit, he has

mentioned that his initial engagement in FCI on 01.06.1992

was through a contractor and after every two years the FCI

was changing the contractor. The workman has further

admitted that he himself and other Security Guards had

filed a W.P. No. 1389/1999 before the Hon'ble High Court,

Nagpur Bench and in that Writ Petition, they had taken the

plea that he himself and other Security Guards were engaged

in FCI through contractors and though time and again,

different contractors were appointed, but the Security

Guards remained the same. The workman has further

admitted that letter issued by ‘‘Industrial Security and Fire

Services, Bombay’’ to Asstt. Manager, FCI, Gondia dated

17.12.1996 bears his signature, which was given by him

showing his willingness to work as a Contract Security

Guard at FCI, Gondia Branch and Exhibit M-I is the copy of

the said letter. The workman has also admitted in his cross-

examination that as the contractor did not pay him wages

from May, 1993 to 04.08.1993, he had made a complaint

before the ALC, Nagpur and the intervention of the ALC,

FCl paid him a sum of Rs. 1,834 towards his wages and he

signed the receipt, Exhibit M-II and he has not filed any

appointment order issued by the FCI or any document to

show that wages were paid to him directly by the FCI and

he also cannot say if he has not filed any document to

show that he had completed 240 days of work in the

preceding 12 calendar months of the date of his alleged

termination and as per the direction of the contractor, he

himself and other Security Guards started working in FCI

at Gondia and he cannot say the name of the said

contractor.

6. One Shri Mohan Govindrao Temburne has been

examined as a witness on behalf of the Party No. 1. This

witness has also reiterated the facts mentioned in the written

statement, in his examination-in-chief, which is on affidavit.

It is necessary to mention here that as none appeared

on behalf of the workman on 01.08.2013, to which date the

case was fixed for cross-examination of the witness for the

management, to cross-examine the witness, the evidence

of the witness for the management remained unchallenged

and on 01.08.2013, order was passed to proceed exparte

against the workman.

7. At the time of argument, it was submitted by the

learned advocate for the Party No. 1 that the workman was

never appointed by Party No. 1 and he has engaged by the

contractor as a security guard and as such, the concerned

contractor is a necessary party and in spite of raising such

objection in the written statement, the workman did not

implead the contractor as a party and for that the reference

is not maintainable. It was further submitted by the learned

advocate for the Party No.1 that the workman was engaged

by the contractor and as the contract of the contractor

came to an end in March, 1999, the services of the workman

were terminated by the contractor and as such, there was

no question of Party No.1 complying with the due procedure

of termination and there was no relationship of master and

servant between the Party No.1 and the workman and the

Party No.I was exempted by the Central Government from

the ban imposed for engagement of contract labourers, so

contract was given to the security contractor, as per rules,

for supply of security guards and due to the notification of

the Government for abolition of contract labour system,

Home guards and Police personnel were appointed as

security guards and Party No.1 has no control over the

workman and the security contractor was submitting bills

for payment for supply of security guards and the security

contractor was paying the wages to the workman. It was

further submitted by the learned advocate for the Party

No.1 that the workman and some others had approached

the Hon'ble High Court, Nagpur Bench in W.P. 1389 of 1999

for the reliefs sought in this reference and the Hon'ble

High Court while depositing of the said petition have held

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[PART II—SEC. 3(ii)]

that the termination of the workman by the contractor was

a valid one and the action of FCI was legal and as such, the

workman cannot agitate the question again and the decision

of the Hon 'ble High Court operates as res- judicata between

the parties and the workman is not entitled to any relief.

In the alternative, it was submitted by the learned

advocate for the Party No.1 that the Party No.1 is a "State"

as per the provisions of Article 12 of the Constitution of

India and it has a set Rules for appointment of its employees

and it is clear that the workman was never engaged by

Party No.1 as per the Rules of appointment and no evidence

has been adduced by the workman to prove that he had

worked for 240 days with Party No.1 in the preceding 12

calendar months of the date of the alleged termination and

as such, there was no question of compliance of Section

25-F or 25-H of the Act and the workman is not entitled to

any relief.

In support of such contentions, the learned

advocates for the Party No. 1 placed reliance on the

decisions of the Hon'ble Apex Court reported in Appeal

(Civil) 7038/2002 (M/s. Essen Deinki Vs. Rajiv Kumar),

Appeal (Civil) 6303-6316 of 2003 (Manager, RBI, Bangalore

Vs. S. Mani), Appeal (Civil)-6511 of 2005 (Surendranagar

District Panchayat Vs. Dayachai Amar Singh), Appeal

(Civil) 3639/2006 (Krishna Bhagaya Jala Nigam Vs. Md.

Raffi) and Appeal (Civil) 2969/2004 (Rajasthan State

Gangasagar Mills Ltd. Vs. State of Rajasthan).

8. First of all, I will take up the submission made by

the learned advocate for the Party No. 1 that the present

reference is hit by the principles of res-judicata, due to the

decision of the Hon'ble High Court, Nagpur Bench in W.P.

1389/99.

It is not disputed that the workman alongwith 78

others through the union, "Rashtriya Mazdoor Sena

Saptahit Jaibhim" had filed Writ Petition no. 1389/99 before

the Hon'ble High Court of Judicature at Bombay, Nagpur

Bench, Nagpur, for their regularisation and the Hon'ble

High Court did not grant such relief. On perusal of the

order passed by the Hon'ble High Court on 29.07.2002 in

the said writ petition, it is found that the workman and

others claimed regularisation on the ground that they were

employed by the contractor for doing regular work of the

Food Corporation of India and in view of the same, they

have become workmen of Food Corporation of India, since

the work on which they were employed is of perennial

nature. However, it is found from the judgment that the

Hon'ble High Court did not consider the main relief and

passed the following order:

‘‘In view of the judgment of the Constitution Bench

in Steel Authority of India Ltd. and others Vs.

National Union Water Front Workers and others

(reported in 2001 (7) SCC1), the relief sought by the

petitioners cannot be granted since the petition

involves disputed question of facts as also other

facts which are required to be adjudicated by

appropriate authority. Accordingly, the main prayer

to absorb them cannot be granted.

xx

xx

xx

xx

In view of the rejection of the main prayer; the

question of granting other prayer does not arise. In

case, the petitioners approach the appropriate

authority, the appropriate authority shall take

decision in the matter within a period of one year.

The applicants are free to approach the appropriate

authority for redressal of their grievances."

So, it is clear from the orders passed by the Hon'ble

High Court as mentioned above that the Hon'ble High

Court did not consider the claim made by the workman and

others on merit and granted them the liberty to approach

the appropriate authority for redress. Hence, the reference

cannot be said to be hit by the principles of res-judicata.

So, there is no force in the contention raised by the learned

advocate for the Party No. 1.

9. In this reference, it is never the case of the workman

that he was directly appointed or engaged by the party

no. 1 as a security guard. In the very beginning of the

statement of claim, it has been mentioned by the workman

that he was initially engaged at Food Corporation of India

Depot, Gondia as a security guard, through a contractor.

In paragraph 4 of the statement of claim, the workman has

mentioned that, "In the year 1992, he was engaged by the

Food Corporation of India through contractor, for a period

of 2 years, but the contract was made on paper." The case

of the workman is that after every two years, the Party No.1

on papers showed the change of contractors, but he was

not disturbed from services and he worked continuously

without any break till 14.03.1999 and as he worked as a

security guard of perennial nature, he is entitled for

reinstatement in service. The workman has also claimed

that as the Central Government issued notification on

01.11.1990 to abolish the contract labour system in FCI and

directed to give employment to contract labours engaged

by the management and Party No. 1 implemented such

direction at Nagpur and Manmad only and gave

employment and regularized and absorbed the services of

the Security Guards working at Nagpur and Manmad and

did not implement the same at Wardha and other places to

deprive him from the benefits under the Labour Laws.

In his evidence on affidavit also, the workman has

mentioned that he was initially engaged in Food

Corporation of India as a security guard through a

contractor.

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From the evidence on record and the own admission

of the workman in the cross-examination including the

specific admission that he was engaged by the contractor

and that as per the direction of the contractor he himself

and other Security Guards started working in FCI, it is clear

that the workman was engaged by the contractor. The

workman has not produced any evidence to show that he

was directly engaged by the Party No. 1.

10. At this juncture, I think it apropos to mention

about the principles enunciated by the Hon'ble Apex Court

regarding contract labours, in the decisions reported in

1994 II CLR-402 (R.K. Panda Vs. Steel Authority), 1985-II

LLJ-4 (S.C.) (The workman of the Food Corporation of

India Vs M/s. Food Corporation of India) and 2001 LAB IC

3656 (S.C.) (Steel Authority of India Ltd. and others Vs.

National Union Water Front Workers and others).

In the decision reported in 1994-II CLR-402 (supra)

the Hon’ble Apex Court have held that:

2. With the industrial growth, the relation between

the employer and the employees also has taken a

new turn. At one time the establishment being the

employer all persons working therein were the

employees of such employer. But slowly the employer

including Central and State Governments started

entrusting many of the jobs to contractors.

Contractors in their turn employed a worker, who

has no direct relationship with the establishment in

which they were employed. Many contractors

exploited the labourers engaged by them in various

manners including the payment of low wages. Hence,

the Contract Labour (Regulation and Abolition) Act,

1970 was enacted to regulate the employment of

contract labour in certain establishment and to

provide for its abolition in certain circumstances and

for matters connected therewith.

3. The "Contract Labour" has been defined in Section

2 (1) (b) to mean a workman, who has been employed

as contract labour in or in connection with the work

of an establishment when he is hired in or in

connection with such work by or through a

contractor, with or without the knowledge of the

principal employer. Section 2 (1) (c) defines

"Contractor" to mean a person who undertakes to

produce a given result for the establishment, other

than a mere supply of goods or articles of manufacture

to such establishment, through contract labour or

who supplies contract labour for any work of the

establishment and includes a sub-contractor.

"Principal employer" has been defined to mean (i) in

relation to any office or department of the

Government or a local authority, the head of that

office or department or such other officer as the

government or the local authority, as the case may

be, may specify in this behalf and (ii) in a factory, the

owner or occupier of the factory. In view of section

10, of the appropriate Government may after

consultation with the Central Board or, as the case

may be, a State Board, prohibit, by notification in the

Official Gazette, employment of contract labour "in

any process, operation or other work in any

establishment," Sub-section (2) of Section 10 requires

that before issuing any such notification, in relation

to an establishments, the appropriate Government

shall have regard to the conditions of work and

benefits provided for the contract labour in that

establishment and other relevant factors. One of the

relevant factors, which is to be taken into

consideration is whether the work performed by the

contract labourers is of perennial nature. Section 12

enjoins that no contractor to whom this Act is

applicable shall undertake or execute any work

through contract labour except under and in

accordance with a license issued in that behalf by

the licensing authority. The license so issued may

contain conditions in respect of hours of work,

fixation of wages and other essential amenities in

respect of contract labour as the appropriate

Government may deem fit to impose in accordance

with rules. Section 20 provides that if any amenity

required to be provided under section 16, section

17, section 18, or section 19 for the benefit of the

contract labour employed in an establishment, is not

provided by the contractor within the time prescribed

by the contractor within the time prescribed therefore,

such amenity shall be provided by the principal

employer within such time as may be prescribed and

all expensed incurred by the principal employer in

providing the amenity may be recovered by the

principal employer from the contractor "either by

deduction from any amount payable to the contractor

under any contract or as a debt payable by the

contractor". Section 21 says that a contractor shall

be responsible for the payment of wages to each

worker employed by him as contract labour but at

the same time in order to protect the interest of such

contract labour, it requires every principal employer

to nominate a representative duly authorized by him

to be present at the time of disbursement of wages

by the contractor. It shall be the duty of the contractor

to ensure the disbursement of wages in the presence

of the authorized representative of the principal

employer. Because of sub-section (4) of Section 21,

if the contractor fails to make payment of wages

within the prescribed period, then the principal

employer shall be liable to make payment of wages in

full to the contact labour employed by the contractor

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[PART II—SEC. 3(ii)]

and recover the amount so paid from the contractor.

Any contravention of the provisions aforesaid has

been made penal for which punishment can be imposed.

4. From the provisions referred to above, it is

apparent that the framers of the Act have allowed

and recognized contract labour and they have never

purported to abolish it in its entirety. The primary

object appears to be that there should not be any

exploitation of the contract labourers by the

contractor or the establishment. For achieving that

object, statutory restrictions and responsibilities have

been imposed on the contractor as well as on the

principal employer. Of course if any expenses are

incurred for providing any amenity to the contract

labourers or towards the payment of wages by the

principle employer he is entitled to deduct the same

from the bill of the contractor. The Act also conceives

that all appropriate government may after

consultation with the Central Board or the State Board,

as the case may be, prohibit by notification in Official

Gazette, employment of contract labour in any

process, operation or other work in any

establishment, taking all facts and circumstances of

employment of contract labour in such process,

operation or the work into consideration.

5. Of late a trained amongst the contract labourers is

discernible that after having work for some years,

they make a claim that they should be absorbed by

the principal employer and be treated as employees

of the principal employer especially when the

principal employer is the central government or the

State Government or an authority which can be held

to be state within the' meaning of Article 12 of the

Constitution, although no right flows from the

provisions of the act for the contract labourers to be

absorbed or to become the employees of the

principal employer. This court in the case of Gammon

India Limited V. Union of India (1974) I SCC 596,

pointed out the object and scope of the act as

follows:-

"The Act was passed to prevail the exploitation of

contract labour and also to introduce better condition

of work. The Act provides for regulation and abolition

of contract labour. The underline policy of the Act is

to abolish contract labour, wherever possible and

practicable and where it cannot be abolished to

altogether, the policy of the Act is that the working

conditions of the contract labour should be so

regulated as to ensure payment of wages and

provisions of essential amenities. This is why the

Act provides for regulated conditions of work and

contemplates progressive abolition to the extent

contemplated by Section 10 of the Act."

In the case of B.H.E.L. Workers' Association Vs.

Union of India, 1985 I CLR SC 165 = (1985) 1 SCC 630

it was pointed out that Parliament has not abolished

the contract labour as such but has provided for its

abolition by the Central Government in appropriate

cases under section 10 of the Act. It is not for the

court to enquire into the question and to decide

whether the employment of contract labour in any

process, operation or other work in any establishment

should be abolished or not. That has to be decided

by the government after considering the relevant

aspects as required by Section 10 of the Act. Again

in the case of Mathura Refinery Mazdoor Sangh Vs.

Indian Oil Corporation Ltd., 1991 I CLR 684, this

court refused to direct the Indian Oil Corporation

Ltd., to absorb the contract labourers in its

employment saying that, the contract labourers have

not been found to have direct connection with the

refinery. In other words, there was no relationship of

employer and employee between the Indian Oil

Corporation Ltd. and the contract labourers

concerned. Again in Dena Nath Vs. National

Fertilizers Ltd., 1992 I CLR 1, this court pointed out

that the aforesaid Act has two purposes to serve (i)

to regulate the conditions of service of the worker

employed by the contractor who is engaged by a

principal employer and (ii) to provide for the abolition

of contract labour altogether, in certain notified

processes, operation or other works in any

establishment by the appropriate government,

undersection 10 of the Act. It was further stated that

neither the Act nor the Rules framed by the Central

Government or by any appropriate government

provide that upon abolition of contract labour, the

labourers would be directly absorbed by the principal

employer.

6. It is true that with passage of time and purely with

a view to safeguard the interests of workers, many

principal employers while renewing the contracts

have been insisting that the contractor or the new

contractor retains the old employees. In fact such a

condition is incorporated in the contract itself.

However, such a clause in the contract which is

benevolently inserted in the contract to protect the

continuance of the source of livelihood of the

contract labour cannot by itself give rise to a right to

regularization in the employment of the principal

employer: Whether the contract labourers have

become the employees of the principal employer in

course of time and on whether the engagement and

employment of labourers through a contractor is a

mere camouflage and a smoke screen, as has been

urged in this case, is a question of fact is to be

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6281

established by the contract labourers on the basis of

the requisite material. It is not possible for High Court

or this court, while exercising writ jurisdiction or

jurisdiction under Article 136 to decide such

questions only on the basis of the affidavits. It need

not to be pointed out that in all such cases, the

labourers are initially employed and engaged by the

contractors. As such at what point of time a direct

link is established between the contract labourers

and the principal employer, eliminating the contractor

from the scene, is a matter which has to be established

on material produced before the court. Normally, the

Labour Court and the Industrial Tribunal, under the

Industrial Disputes Act are the Competent Fora to

adjudicate such disputes on the basis of the oral and

documentary evidence produced before them."

1l. In the decision reported in 1985-II LLOJ-4 (supra)

the Hon 'ble Apex Court have held that :-

‘‘Briefly stated, when corporation engaged a

contractor for handling foodgrain at Siliguri Depot,

the corporation had nothing to do with the manner

of handling work done by the contractor, the labour

force employed by him, payments made by him etc.

In such a fact situation, there was no privity of

contract of employer· and workmen between the

corporation and the workmen. "Workmen" has been

defined (omitting the words not necessary) in the

Industrial Disputes Act to mean (any person

including an apprentice) employed in any industry

to do.......... ’’. 'The expression' employed has at least

two known connotations, but as used in the

definition, the context would indicate that it is used

in the sense of a relationship brought about by

express or implied contract of service in which the

employee renders service for which he is engaged

by the employer and the latter agrees to pay him in

cash or kind as agreed between them or statutorily

prescribed. It discloses a relationship of command

and obedience. The essential condition of a person

being a ' workman within the terms of the definition

is that he should be employed to do the work in that

industry and that there should be, in other words, an

employment of his by the employer and that there

should be a relationship between the employer and

employee or master and servant unless a person is

thus employed there can be no question of his being

a "workman" within the definition of the term as

contained in the Act.

Dharangadhara Chemical Works Ltd. Vs. State of

Saurashtra (1957 - I - LLJ - 477) . Now where a

contractor employs a workman to do the work which

he contracted with a third person to accomplish on

the definition as it stands, the workman of the

contractor would not without, something more

become the workman of that third person. Therefore,

when the workmen employed by the contractor were

certainly not the workmen of the corporation and no

claim to that effect has been made by the union,"

12.In the decision reported in 2001 LAB IC - 3656

(supra) the Hon'ble Apex Court have held that :-

"The principle that a beneficial legislation needs to

be constructed liberally in favour of the class for

whose benefit it is intended, does not extend to

reading in the provisions of the Act what the

legislature has not provided whether expressly or by

necessary implication, or substituting remedy or

benefits for that provided by the legislature, The

intendment of the CLRA Act is to regulate the

conditions of service of the contract labour and to

authorize in Section 10(1) prohibition of contract

labour system by the appropriate Government on

consideration of factors enumerated in sub-section

(2) of Section 10 of the Act among other relevant

factors. But, the presence of some or all those factors,

provide no ground for absorption of contract labour

on issuing notification under Section 10(1) by the

appropriate Government, is not alluded to either in

Section 10 or at any other place in the Act and the

consequence of violation of Sections 7 and 12 of the

CLRA Act is explicitly provided in Sections 23 and

25 of the CLRA Act, it is not for the High Courts or

the Supreme Court to read in some unspecified

remedy in Section 10 or substitute for penal

consequences specified in Sections 23 and 25 a

different sequel be it absorption of contract labour

in the establishment of principal employer or a lesser

or a harsher punishment, Such an interpretation of

the provisions of the statute will be far beyond the

principle of ironing out the creases and the scope of

interpretative legislation and as such clearly

impermissible.

Thus on issuance of prohibition notification under

S, 10(1) of the CLRA Act prohibiting employment of

contract labour or otherwise, in an industrial dispute

brought before it by any contract in regard to

conditions of service, the industrial adjudicator will

have to consider the question whether the contractor

has been interposed either on the ground of having

undertaken to produce any given result for the

establishment or for supply of contract labour for

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[PART II—SEC. 3(ii)]

work of the establishment under a genuine contract

or is a mere ruse/camouflage to evade compliance of

various beneficial legislations so as to deprive the

workers of the benefit there under. If the contract is

found to be not genuine but a mere camouflage, the

so called contract labour will have to be treated as

employees of the principal employer who shall be

directed to regularize the services of the contract

labour in the concerned establishment. If the contract

is found to be genuine and the principal employer

intends to employ regular workmen he shall give

preference to the erstwhile contract labour. It

otherwise found suitable, and, if necessary, by

relaxing the condition as to maximum age

appropriately taking into consideration the age of

the workers at the time of their initial employment by

the contractor and also relaxing the condition as to

academic qualifications other than technical

qualifications,

Air India's case 1997 AIR SCW430 Overruled

prospectively, M.A.T. Nos. 1704 and 1705 of 1999,

D/ - 12-8-1999 (Cal): C.O. No. 6545(W) if 1996, D/ -9-

5-1997(Cal): W.A. Nos. 345-354 of 1997m D/ - 17-4-

1998 (Kant): W.P. No. 4050 of 1999, D/ - 2-8-2000

[Bom] and W.P. No. 2616 of 1999, D/ - 23-12-1999

(Bom), 1998 Lab IC 2571 (Cal), Reversed.

It cannot be said that by virtue of engagement of

contract labour by the contractor in any work of or

in connection with the work of an establishment, the

relationship of master and servant is created between

the principal employer and the contract labour. Even

a combined reading of the definition of the terms

"Contract labour", "Establishment" and

"Workman"does not show that the legal relationship

between the person employed in any industry and

the owner of the industry is created irrespective of

the fact as to who has brought about such

relationship. The word "Workman" is defined in wide

terms. It is a generic term of which contract labour is

a species. It is true that combined reading of the

terms "Establishment" and "Workman" shows that

a workman engaged in any establishment would have

direct relationship with the principal employer as a

servant of master. But what is true of a workman

could not be correct of contract labour. When the

provisions of the Act neither contemplate creation

of direct relationship of master and servant between

the principal employer and the contract labour nor

can such relationship be implied from the provisions

of the action issuing notification under Section 10(1)

of the CLRA Act. A fortiori much less can such a

relationship be found to exist from the rules and the

forms made there under."

So, keeping in view the principles enunciated by the

Hon'ble Apex Court in the decisions mentioned

above, the present case in hand is to be considered.

13. In this case, the letter No. U- 23013/l1/89/LW dated

28.05.92, Govt. of India, Ministry of Labour shows that the

prohibition of employment of contract labour in sweeping,

cleaning, dusting and watching of buildings owned or

occupied by the establishments of Food Corporation of

India and some other departments was lifted by the Central

Government. So, the engagement of contract labour by the

Party No. 1 cannot be said to be illegal. It is also found from

the materials on record that the appointment of labour

contractor by Party No. 1 for supply of Security Guards

was genuine and the same was not only on papers as claimed

by the workman. The workman has failed to prove such

claim by adducing cogent or reliable evidence. The

engagement of labor contractor by Party No. 1 was not a

mere ruse or camouflage to evade compliance of the various

beneficial legislations, so as to deprive the workman of the

benefits there under. The workman has not been able to

produce any document to show that at any point of time,

Party No. 1 paid his wages as their employee. It is clear

from the evidence that Party No. 1 paid wages of the last

three months to the workman in presence of the Labour

Commissioner, as the contractor did not pay the same. As

it is clear from the evidence on record that the workman

was engaged as a contract labour with Party No. 1, by the

contractor and as such, it can be held that there was no

relationship of master and servant between the Party No. 1

and the workman. Hence, there was no question of

termination of the services by the Party No. 1 or compliance

of the provisions of Sections 25-F or 25-H of the Act.

14. It is the own case of the workman that he was

engaged by the contractor. So the contractor, who had

engaged the workman is a necessary party in the reference.

The said contractor has not been added as a party in this

reference. Due to non- joinder of necessary party, the

reference is bad in law.

In view of the materials on record and the discussions

made above and applying the principles enunciated by the

Hon'ble Apex Court in the three decisions mentioned above,

the reference cannot be answered in favour of the workman.

Hence, it is ordered:

ORDER

The reference is answered in the negative. The

workman is not entitled to any relief.

J. P. CHAND, Presiding Officer

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6283

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New Delhi, the 30th October, 2013

S.O. 2381.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 310/

2003) of the Central Government Industrial Tribunal-cum-

Labour Court, Nagpur as shown in the Annexure, in the

Industrial Dispute between the management of Food

Corporation of India, and their workmen, received by the

Central Government on 30-10-2013.

[No. L-22012/292/2003-IR (CM-II)]

B. M. PATNAIK, Desk Officer

ANNEXURE

BEFORE SHRI J. P. CHAND, PRESIDING

OFFICER, CGIT-CUM-LABOUR COURT,

NAGPUR

Case No. CGIT/NGP/310/2003

Date: 03-10-2013

Party No. 1(a) :

The District Manager,

Food Corporation of India,

Ajani, Nagpur,

Nagpur - 440015.

Party No. 1(b) :

The Senior Regional Manager,

Food Corporation of India,

Mistry Bhawan, Dinshaw Wacha

Road, Churchgate,

Mumbai - 400020.

Versus

Party No. 2

:

The Secretary,

Rashtriya Mazdoor Sena, Hind Nagar,

Ward No. 2, Near Boudha Vihar,

Post: Wardha, Distt. Wardha (M.S.)

AWARD

(Dated: 03rd October, 2013)

In exercise of the powers conferred by clause (d) of

sub-section (1) and sub-section 2(A) of section 10 of

Industrial Disputes Act, 1947 (14 of 1947) (“the Act” in

short), the Central Government has referred the industrial

dispute between the employers, in relation to the

management of Food Corporation of India and their

workman, Shri Bhaiyya Ganpat Dhanvij for adjudication,

as per letter No. L-22012/292/2003-IR (CM-II) dated

08-12-2003, with the following schedule:—

“Whether the action of the management of

Food Corporation of India, Nagpur (M.S.) in

terminating the services of Shri Bhaiyya Ganpat

Dhanvij, Security Guard w.e.f. 14-03-1999 is legal

and justified? If not, to what relief the concerned

workman is entitled?”

2. On receipt of the reference, the parties were noticed

to file their respective statement of claim and written

statement and accordingly, the workman, Shri Bhaiyya

Ganpat Dhanvij (“the workman” in short), filed the

statement of claim and the management of Food Corporation

of India (“Party No. 1” in short) filed their written statement.

The case of the workman as presented in the

statement of claim is that he was in the employment of

Party No. 1 from 27-01-1989 and he was initially engaged

through a contractor at Gondia Depot of Party No. 1, as a

Security Guard and he was in continuous service without

any interruption till 14th March, 1999, when his services

were terminated orally by Party No. 1, without following

the due procedure of law and he had completed more than

240 days of work in each year and the termination of his

services on 14-03-1999 was not in good faith, but in

colourable exercise of the rights and powers by the Party

No. 1 and while terminating his services, neither one

month's notice nor one month's wages in lieu of notice nor

retrenchment compensation was given to him as required

under section 25-F of the Act and after his illegal

termination, fresh hands from the department of home guard

and police were engaged by Party No. 1 to extract the

duties of Security guards, in violation of the provision of

section 25-H of the Act and the work which he was

performing is constantly in existence and the same is of a

perennial nature and as his termination is illegal and

unlawful, he is entitled for reinstatement in service with

continuity and full back wages.

The further case of the workman is that in 1989, he

was engaged by the Party No. 1 through the contractor for

a period of two years, but the contract was made only on

papers and after every two years, the Party No. 1 changed

the contractor on papers only and the engagement of the

so-called contractor did not replace the Security Guards

and he was also not disturbed from his services and he

was merely shown to be engaged by the contractors, but

actually, he was working under the direct control and

supervision of the Party No. 1 and the contractor had no

role to play in the same and the work performed by him was

being assigned to him by Party No. 1 and he was a regular

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[PART II—SEC. 3(ii)]

employee of Party No. 1 and Party No. 1 was his real

employer and not the contractor as alleged and the

engagement and change of contractors by Party No. 1 from

time to time was sham and only a camouflage to deny his

legitimate claim and the contract between Party No. 1 and

the contractor was bogus and not genuine and therefore,

his oral termination from services was against the

mandatory provisions of the Act and the Central

Government decided to abolish the appointment of contract

labour as contemplated under section 10 of the Contract

Labour (Regulation and Abolition) Act, 1970 and issued

notification on 01-11-1990 with directions to abolish the

contract labour system in the establishment of the Party

No. 1 and to give employment to contract labours engaged

by the management and therefore, it was the mandatory

duty of the Party No. 1 to abolish the contract labour system

in all places and management of FCI implemented the

notification only at Nagpur and Manmad and absorbed

the Security Guards working at Nagpur and Manmad, but

at Akola, Amravati, Wardha and Gondia districts, the

contract labour system was continued by the management,

with an intention to deprive him from the benefits under

the labour laws.

It is further pleaded by the workman that his salary

was paid by the Party No. 1 and not by the contractor and

his daily attendance was also marked by the Asstt.

Manager of FCI, Wardha Depot and the Party No. 1 was

supervising his work through their officers and he had

no relation with the so called contractors engaged by the

Party No. 1 and Party No. 1 also supplied the articles, such

as, torch, lathi, whistle and uniform etc. to him and in view

of the long spell of work being carried out by him, he is

entitled to be reinstated in service with continuity and full

back wages.

3. The Party No. 1 in their written statement have

pleaded inter alia that the workman was never in their

employment and the workman has not impleaded the

contractor, who appointed him, as a Party and the workman

was engaged by the contractor as a Security Guard at FCI

Depot and the said contractor is a necessary party and in

absence of the contractor, the proceeding cannot proceed

and the workman was not in their service uninterruptedly

till 14th March, 1999 and since the contract of the contractor

came to an end, the services of the workman were terminated

by the contractor and the original period of contract given

to the contractor for providing Security services was up to

1998 and the same was extended as per the terms and

conditions till March, 1999 and as the workman was not

employed by them, there was no question of following the

procedure of termination by them and they were not the

employer of the workman and the services of the workman

were never utilized by them as employer from 27-01-1989 to

14-03-1999 , without any break in service and the workman

did not complete 240 days of work in a year as alleged and

as the workman was engaged by the Security Contractor,

there was no relationship of master and servant between

them and the workman at any point of time and under

section 10 of the Contract Labour (Regularisation and

Abolition) Act, they were exempted by the Central

Government, so the allegations made by the workman

against them are not true and there was no question of

violation of the provisions of 25 (H) of the Act and the

work does not constantly exist and the work of providing

security guards was given to other Government Agencies

like Police Personnel and Home guards and therefore, the

workman has no right to claim any relief from them and the

work of security is not perennial in nature and as and when

their go-downs are filled with food grains, then only,

services of the security guards are required and in

pursuance of the notification issued by the Central

Government abolishing contract labour system, they

appointed Home guards and Police personnel as security

guards.

The further case of party no.1 is that for the relief as

claimed, by the workman had filed a writ petition before

the Hon’ble High Court, Nagpur Bench bearing W.P. No.

1389/99 and the Hon'ble High Court rejected the said

WP and denied the relief prayed for and therefore, this

Tribunal has no jurisdiction to decide the reference and

the decision of the Hon'ble Court operates as res-judicata

and they floated tenders for the contract and lowest

bidder was awarded the contract and the change of

contractor in every two years was not on papers only and

they had no say in the appointment of security guards by

the security contractor and they had no control over the

appointment and service conditions of the workman, who

was an employee of the security agency and he was never

their employee and the security contractor was the employer

of the workman.

The further case of party no. 1 is that the appropriate

Government decided to abolish the employment of the

contract labour as contemplated under section 10 of the

Contract Labour (Regularisation and Abolition) Act, 1970

and the interpretation of the notification issued on

01-11-1990 put by the workman is not correct and they

were exempted from the operation of the Act of 1970 in the

year 1989 and the said exemption was withdrawn in the

year 1999 and therefore, the security contact given to the

contractor was terminated and hence, the services of the

workman were terminated by the security contractor and

they did not pay the salary to the workman and it was the

contractor, who was paying the same to the workman and

when the contractor failed to pay the salary to the workman,

they paid the amount as per the directions given by the

ALC from time to time and the said amount was recovered

from the contract's bill and they only used to check the

attendance of the security guards to find out as to whether

the contractor had made arrangement of the requisite

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number of security guards, as per their requirement and

they did not have the power to terminate any employee

appointed by the contractor and they did not provide any

article, such as torch, Lathi, whistle and uniform etc. to the

workman and as such, the workman is not entitled to any

relief.

4. Both parties have led oral evidence in support of

their respective claims, besides placing reliance on

documentary evidence.

The workman in support of his claim has examined

himself as a witness. In his evidence, which is on affidavit,

the workman has reiterated the facts mentioned in the

statement of claim.

5. In his cross-examination, the workman has

admitted that he cannot say the contents of the statement

of claim as the same is in English language and in his

statement of claim and so also in his affidavit, he has

mentioned that his initial engagement in FCI on 27.01.1989

was through a contractor and after every two years the FCl

was changing the contractor. The workman has further

admitted that he himself and other Security Guards had

filed a W.P. No. 1389/1999 before the Hon’ble High Court,

Nagpur Bench and in that Writ Petition, they had taken

the plea that he himself and other Security Guards were

engaged in FCI through contractors and though time and

again, different contractors were appointed, but the

Security Guards remained the same. The workman has

further admitted that letter issued by "Industrial Security

and Fire Services, Bombay" to Asstt. Manager, FCI,

Gondia dated 17-12-1996 bears his signature, which was

given by him showing his willingness to work as a

Contract Security Guard at FCI, Gondia Branch and Exhibit

M-I is the copy of the said letter. The workman has also

admitted in his cross-examination that as the contractor

did not pay him wages from May, 1993 to 04-08-1993, he

had made a complaint before the ALC, Nagpur and the

intervention of the ALC, FCI paid him a sum of Rs. 1,901

towards his wages and he signed the receipt, Exhibit M-II

and he has not filed any appointment order issued by the

FCI or any document to show that wages were paid to him

directly by the FCI and he also cannot say if he has not

filed any document to show that he had completed 240

days of work in the preceding 12 calendar months of the

date of his alleged termination and as per the direction of

the contractor, he himself and other Security Guards

started working in FCI at Gondia and he cannot say the

name of the said contractor.

6. One Shri Mohan Govindrao Temburne has been

examined as a witness on behalf of the party no. 1. This

witness has also reiterated the facts mentioned in the

written statement, in his examination-in-chief, which is on

affidavit.

It is necessary to mention here that as none

appeared on behalf of the workman on 01-08-2013, to which

date the case was fixed for cross-examination of the witness

for the management, to cross-examine the witness, the

evidence of the witness for the management remained

unchallenged and on 01-08-2013, order was passed to

proceed exparte against the workman.

7. At the time of argument, it was submitted by the

learned advocate for the party no. 1 that the workman was

never appointed by party no. 1 and he has engaged by the

contractor as a security guard and as such, the concerned

contractor is a necessary party and in spite of raising such

objection in the written statement, the workman did not

implead the contractor as a party and for that the reference

is not maintainable. It was further submitted by the

learned advocate for the party no. 1 that the workman was

engaged by the contractor and as the contract of the

contractor came to an end in March, 1999, the services of

the workman were terminated by the contractor and as

such, there was no question of party no. 1 complying with

the due procedure of termination and there was no

relationship of master and servant between the party

no.1 and the workman and the party no. 1 was exempted

by the Central Government from the ban imposed for

engagement of contract labourers, so contract was given

to the security contractor, as per rules, for supply of

security guards and due to the notification of the

Government for abolition of contract labour system, Home

guards and Police personnel were appointed as security

guards and party no.1 has no control over the workman

and the security contractor was submitting bills for

payment for supply of security guards and the security

contractor was paying the wages to the workman. It was

further submitted by the learned advocate for the party

no.1 that the workman and some others had approached

the Hon’ble High Court, Nagpur Bench in W.P. 1389 of

1999 for the reliefs sought in this reference and the Hon'ble

High Court while depositing of the said petition have held

that the termination of the workman by the contractor was

a valid one and the action of FCI was legal and as such,

the workman cannot agitate the question again and the

decision of the Hon'ble High Court operates as res- judicata

between the parties and the workman is not entitled to any

relief.

In the alternative, it was submitted by the learned

advocate for the party no.1 that the party no. 1 is a "State"

as per the provisions of Article 12 of the Constitution of

India and it has a set Rules for appointment of its employees

and it is clear that the workman was never engaged by

party no. 1 as per the Rules of appointment and no

evidence has been adduced by the workman to prove that

he had worked for 240 days with party no.1 in the preceding

12 calendar months of the date of the alleged termination

and as such, there was no question of compliance of

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section 25-F or 25-H of the Act and the workman is not

entitled to any relief.

In support of such contentions, the learned

advocates for the party no.1 placed reliance on the

decisions of the Hon'ble Apex Court reported in Appeal

(Civil) 7038/2002 (M/s. Essen Deinki Vs. Rajiv Kumar),

Appeal (Civil) 6303-6316 of 2003 (Manager, RBI, Bangalore

Vs. S. Mani), Appeal (Civil)-6511 of 2005 (Surendranagar

District Panchayat Vs. Dayachai Amar Singh), Appeal

(Civil) 3639/2006 (Krishna Bhagaya Jala Nigam Vs. Md.

Raffi) and Appeal (Civil) 2969/2004 (Rajasthan State

Gangasagar Mills Ltd. Vs. State of Rajasthan).

8. First of all, I will take up the submission made by

the learned advocate for the party no.1 that the present

reference is hit by the principles of res-judicata, due to the

decision of the Hon'ble High Court, Nagpur Bench in W.P.

1389/99.

It is not disputed that the workman alongwith 78

others through the union, "Rashtriya Mazdoor Sena

Saptahit Jaibhim" had filed Writ Petition no. 1389/99 before

the Hon'ble High Court of Judicature at Bombay, Nagpur

Bench, Nagpur, for their regularisation and the Hon'ble

High Court did not grant such relief. On perusal of the

order passed by the Hon'ble High Court on 29-07-2002 in

the said writ petition, it is found that the workman and

others claimed regularisation on the ground that they were

employed by the contractor for doing regular work of the

Food Corporation of India and in view of the same, they

have become workmen of Food Corporation of India, since

the work on which they were employed is of perennial

nature. However, it is found from the judgment that the

Hon'ble High Court did not consider the main relief and

passed the following order:

“In view of the judgment of the Constitution Bench

in Steel Authority of India Ltd. and others Vs.

National Union water front workers and others

[reported in 2001 (7) SCC1], the relief sought by the

petitioners cannot be granted since the petition

involves disputed question of facts as also other

facts which are required to be adjudicated by

appropriate authority. Accordingly, the main prayer

to absorb them cannot be granted.

XX XX XX XX

In view of the rejection of the main prayer, the

question of granting other prayer does not arise. In

case, the petitioners approach the appropriate

authority, the appropriate authority shall take

decision in the matter within a period of one year.

The applicants are free to approach the appropriate

authority for redressal of their grievances.”

So, it is clear from the orders passed by the Hon'ble

High Court as mentioned above that the Hon'ble High

Court did not consider the claim made by the workman and

others on merit and granted them the liberty to approach

the appropriate authority for redress. Hence, the reference

cannot be said to be hit by the principles of res-judicata.

So, there is no force in the contention raised by the

learned advocate for the party no. 1.

9. In this reference, it is never the case of the workman

that he was directly appointed or engaged by the party

no. 1 as a security guard. In the very beginning of the

statement of claim, it has been mentioned by the workman

that he was initially engaged at Food Corporation of India

Depot, Gondia as a security guard, through a contractor. In

paragraph 4 of the statement of claim, the workman has

mentioned that, “In the year 1989, he was engaged by the

Food Corporation of India through contractor, for a period

of 2 years, but the contract was made on paper.” The case

of the workman is that after every two years, the party no.

1 on papers showed the change of contractors, but he was

not disturbed from services and he worked continuously

without any break till 14-03-1999 and as he worked as a

security guard of perennial nature, he is entitled for

reinstatement in service. The workman has also claimed

that as the Central Government issued notification on

01-11-1990 to abolish the contract labour system in FCl

and directed to give employment to contract labours

engaged by the management and party no. 1 implemented

such direction at Nagpur and Manmad only and gave

employment and regularized and absorbed the services of

the Security Guards working at Nagpur and Manmad and

did not implement the same at Wardha and other places to

deprive him from the benefits under the Labour Laws.

In his evidence on affidavit also, the workman has

mentioned that he was initially engaged in Food

Corporation of India as a security guard through a

contractor.

From the evidence on record and the own admission

of the workman in the cross-examination including the

specific admission that he was engaged by the contractor

and that as per the direction of the contractor he himself

and other Security Guards started working in FCI, it is

clear that the workman was engaged by the contractor.

The workman has not produced any evidence to show that

he was directly engaged by the Party No. 1.

10. At this juncture, I think it apropos to mention

about the principles enunciated by the Hon'ble Apex Court

regarding contract labours, in the decisions reported in

1994 II CLR-402 (R.K. Panda Vs. Steel Authority), 1985-II

LJJ-4 (S.C.) (The workman of the Food Corporation of

India Vs. M/s. Food Corporation of India) and 2001 LAB IC

3656 (S.C.) (Steel Authority of India Ltd. and others Vs.

National Union Water Front Workers and others).

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In the decision reported in 1994-II CLR-402 (supra)

the Hon'ble Apex Court have held that:-

2. With the industrial growth, the relation between

the employer and the employees also has taken a

new turn. At one time the establishment being the

employer all persons working therein were the

employees of such employer. But slowly the

employer including Central and State Governments

started entrusting many of the jobs to contractors.

Contractors in their turn employed a worker, who

has no direct relationship with the establishment in

which they were employed. Many contractors

exploited the labourers engaged by them in various

manners including the payment of low wages. Hence,

the Contract Labour (Regulation and Abolition)

Act, 1970 was enacted to regulate the employment

of contract labour in certain establishment and to

provide for its abolition in certain circumstances and

for matters connected therewith.

3. The "Contract Labour" has been defined in Section

2 (1) (b) to mean a workman, who has been employed

as contract labour in or in connection with the work

of an establishment when he is hired in or in

connection with such work by or through a

contractor, with or without the knowledge of the

principal employer. Section 2 (1) (c) defines

"Contractor" to mean a person who undertakes to

produce a given result for the establishment, other

than a mere supply of goods or articles of manufacture

to such establishment, through contract labour or

who supplies contract labour for any work of the

establishment and includes a sub-contractor.

"Principal employer" has been defined to mean (i) in

relation to any office or department of the

Government or a local authority, the head of that

office or department or such other officer as the

Government or the local authority, as the case may

be, may specify in this behalf and (ii) in a factory, the

owner or occupier of the factory. In view of section

10, of the appropriate Government may after

consultation with the Central Board or, as the case

may be, a state Board, prohibit, by notification in

the Official Gazette, employment of contract labour

"in any process, operation or other work in any

establishment," Sub-section (2) of Section 10

requires that before issuing any such notification, in

relation to an establishments, the appropriate

Government shall have regard to the conditions of

work and benefits provided for the contract labour

in that establishment and other relevant factors.

One of the relevant factors, which is to be taken into

consideration is whether the work performed by the

contract labourers is of perennial nature. Section 12

enjoins that no contractor to whom this Act is

applicable shall undertake or execute any work

through contract labour except under and in

accordance with a license issued in that behalf by

the licensing authority. The license so issued may

contain conditions in respect of hours of work,

fixation of wages and other essential amenities in

respect of contract labour as the appropriate

Government may deem fit to impose in accordance

with rules. Section 20 provides that if any amenity

required to be provided under section 16, section

17, section 18, or section 19 for the benefit of the

contract labour employed in an establishment, is

not provided by the contractor within the time

prescribed by the contractor within the time

prescribed therefore, such amenity shall be

provided by the principal employer within such time

as may be prescribed and all expensed incurred by

the principal employer in providing the amenity may

be recovered by the principal employer from the

contractor either by deduction from any amount

payable to the contractor under any contract or as a

debt payable by the contractor. Section 21 says that

a contractor shall be responsible for the

payment of wages to each worker employed by him

as contract labour but at the same time in order to

protect the interest of such contract labour, it

requires every principal employer to nominate a

representative duly authorized by him to be present

at the time of disbursement of wages by the

contractor. It shall be the duty of the contractor to

ensure the disbursement of wages in the presence of

the authorized representative of the principal

employer. Because of sub-section (4) of section 21,

if the contractor fails to make payment of wages

within the prescribed period, then the principal

employer shall be liable to make payment of wages

in full to the contact labour employed by the

contractor and recover the amount so paid from the

contractor. Any contravention of the provisions

aforesaid has been made penal for which punishment

can be imposed.

4. From the provisions referred to above, it is apparent

that the framers of the Act have allowed and

recognized contract labour and they have never

purported to abolish it in its entirety. The primary

object appears to be that there should not be any

exploitation of the contract labourers by the

contractor or the establishment. For achieving that

object, statutory restrictions and responsibilities

have been imposed on the contractor as well as on

the principal employer. Of course if any expenses are

incurred for providing any amenity to the contract

labourers or towards the payment of wages by the

principle employer he is entitled to deduct the same

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from the bill of the contractor. The Act also

conceives that all appropriate Government may after

consultation with the central board or the state board,

as the case may be, prohibit by notification in official

gazette, employment of contract labour in any

process, operation or other work in any

establishment, taking all facts and circumstances of

employment of contract labour in such process,

operation or the work into consideration.

5. Of late a trained amongst the contract labourers

is discernible that after having work for some years,

they make a claim that they should be absorbed by

the principal employer and be treated as employees

of the principal employer especially when the

principal employer is the Central Government or the

State Government or an authority which can be held

to be state within the meaning of Article 12 of the

constitution, although no right flows from the

provisions of the act for the contract labourers to

be absorbed or to become the employees of the

principal employer. This court in the case of Gammon

India limited V. Union of India (1974) I SCC 596,

pointed out the object and scope of the act as

follows :—

"The Act was passed to prevail the exploitation of

contract labour and also to introduce better

condition of work. The Act provides for regulation

and abolition of contract labour. The underline policy

of the Act is to abolish contract labour, wherever

possible and practicable and where it cannot be

abolished to altogether, the policy of the Act is that

the working conditions of the contract labour should

be so regulated as to ensure payment of wages and

provisions of essential amenities. This is why the

Act provides for regulated conditions of work and

contemplates progressive abolition to the extent

contemplated by Section 10 of the Act."

In the case of B.H.E.L. Workers' Association V. Union

of India, 1985 I CLR SC 165 = (1985) 1 SCC 630 it was

pointed out that Parliament has not abolished the

contract labour as such but has provided for its

abolition by the Central Government in appropriate

cases under Section 10 of the Act. It is not for the

court to enquire into the question and to decide

whether the employment of contract labour in any

process, operation or other work in any establishment

should be abolished or not. That has to be decided

by the government after considering the relevant

aspects as required by Section 10 of the Act. Again

in the case of Mathura Refinery Mazdoor Sangh V.

Indian Oil Corporation Ltd., 1991 I CLR 684, this

court refused to direct the Indian Oil Corporation

Ltd., to absorb the contract labourers in its

employment saying that, the contract labourers have

not been found to have direct connection with the

refinery. In other words, there was no relationship of

employer and employee between the Indian Oil

Corporation Ltd. and the contract labourers

concerned. Again in Dena Nath V. National

Fertilizers Ltd., 1992 I CLR 1, this court pointed out

that the aforesaid Act has two purposes to serve

(i) to regulate the conditions of service of the worker

employed by the contractor who is engaged by a

principal employer and (ii) to provide for the

abolition of contract labour altogether, in certain

notified processes, operation or other works in any

establishment by the appropriate government, under

Section 10 of the Act. It was further stated that

neither the Act nor the Rules framed by the Central

Government or by any appropriate government

provide that upon abolition of contract labour, the

labourers would be directly absorbed by the principal

employer.

6. It is true that with passage of time and purely with

a view to safeguard the interests of workers, many

principal employers while renewing the contracts

have been insisting that the contractor or the new

contractor retains the old employees. Infact such a

condition is incorporated in the contract itself.

However, such a clause in the contract which is

benevolently inserted in the contract to protect the

continuance of the source of livelihood of the

contract labour cannot by itself give rise to a right to

regularization in the employment of the principal

employer. Whether the contract labourers have

become the employees of the principal employer in

course of time and on whether the engagement and

employment of labourers through a contractor is a

mere camouflage and a smoke screen, as has been

urged in this case, is a question of fact is to be

established by the contract labourers on the basis

of the requisite material. It is not possible for High

Court or this court, while exercising writ jurisdiction

or jurisdiction under Article 136 to decide such

questions only on the basis of the affidavits. It need

not to be pointed out that in all such cases, the

labourers are initially employed and engaged by

the contractors. As such at what point of time a

direct link is established between the contract

labourers and the principal employer, eliminating the

contractor from the scene, is a matter which has to

be established on material produced before the

court. Normally, the Labour Court and the Industrial

Tribunal, under the Industrial Disputes Act are the

Competent Fora to adjudicate such disputes on the

basis of the oral and documentary evidence

produced before them."

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11. In the decision reported in 1985-11 LLOJ-4

(supra) the Hon 'ble Apex Court have held that:-

"Briefly stated, when corporation engaged a

contractor for handling foodgrain at Siliguri Depot,

the corporation had nothing to do with the manner

of handling work done by the contractor the labour

force employed by him, payments made by him etc.

In such a fact situation, there was no privity of

contract of employer and workmen between the

corporation and the workmen. "Workmen" has been

defined (omitting the words not necessary) in the

Industrial Disputes Act to mean (any person

including an apprentice) employed in any industry

to do............’’ 'The expression' employed has at least

two known connotations, but as used in the

definition, the context would indicate that it is used

in the sense of a relationship brought about by

express or implied contract of service in which the

employee renders service for which he is engaged

by the employer and the latter agrees to pay him in

cash or kind as agreed between them or statutorily

prescribed. It discloses a relationship of command

and obedience. The essential condition of a person

being a workman within the terms of the definition is

that he should be employed to do the work in that

industry and that there should be, in other words, an

employment of his by the employer and that there

should be a relationship between the employer and

employee or master and servant unless a person is

thus employed there can be no question of his being

a "workman" within the definition of the term as

contained in the Act.

Dharangadhara Chemical Works Ltd. Vs. State of

Saurashtra (1957 - I - LW - 477). Now where a

contractor employs a workman to do the work which

he contracted with a third person to accomplish on

the definition as it stands, the workman of the

contractor would not without something more

become the workman of that third person. Therefore,

when the workmen employed by the contractor were

certainly not the workmen of the corporation and no

claim to that effect has been made by the union.’’

12. In the decision reported in 2001 LAB IC - 3656

(supra) the Hon'ble Apex Court have held that :—

"The principle that a beneficial legislation needs to

be constructed liberally in favour of the class for

whose benefit it is intended, does not extend to

reading in the provisions of the Act what the

legislature has not provided whether expressly or by

necessary implication, or substituting remedy or

benefits for that provided by the legislature. The

intendment of the CLRA Act is to regulate the

conditions of service of the contract labour and to

authorize in Section 10(1) prohibition of contract

labour system by the appropriate Government on

consideration of factors enumerated in sub-section

(2) of Section 10 of the Act among other relevant

factors. But, the presence of some or all those

factors, provide no ground for absorption of

contract labour on issuing notification under

Section l0( 1) by the appropriate Government, is not

alluded to either in Section 10 or at any other place

in the Act and the consequence of violation of

Sections 7 and 12 of the CLRA Act is explicitly

provided in Sections 23 and 25 of the CLRA Act,

it is not for the High Courts or the Supreme Court to

read in some unspecified remedy in Section 10 or

substitute for penal consequences specified in

Sections 23 and 25 a different sequel be it absorption

of contract labour in the establishment of principal

employer or a lesser or a harsher punishment. Such

an interpretation of the provisions of the statute will

be far beyond the principle of ironing out the creases

and the scope of interpretative legislation and as

such clearly impermissible.

Thus on issuance of prohibition notification under

S. 10(1) of the CLRA Act prohibiting employment

of contract labour or otherwise, in an industrial

dispute brought before it by any contract in regard

to conditions of service, the industrial adjudicator

will have to consider the question whether the

contractor has been interposed either on the ground

of having undertaken to produce any given result

for the establishment or for supply of contract

labour for work of the establishment under a genuine

contract or is a mere ruse/camouflage to evade

compliance of various beneficial legislations so as

to deprive the workers of the benefit there under. If

the contract is found to be not genuine but a mere

camouflage, the so called contract labour will have

to be treated as employees of the principal employer

who shall be directed to regularize the services of

the contract labour in the concerned establishment.

If the contract is found to be genuine and the

principal employer intends to employ regular

workmen he shall give preference to the erstwhile

contract labour. It otherwise found suitable, and, if

necessary, by relaxing the condition as to maximum

age appropriately taking into consideration the age

of the workers at the time of their initial employment

by the contractor and also relaxing the condition as

to academic qualifications other than technical

qualifications.

Air India's case 1997 AIR SCW430 Overruled

prospectively. M.A.T. Nos. 1704 and 1705 of 1999,

D/ - 12-8-1999 (Cal) : C.O. No. 6545(W) if 1996, D/ -

9-5-1997(Cal) : W.A. Nos. 345-354 of 1997m D/ -

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17-4-1998 (Kant) : W.P. No. 4050 of 1999, D/- 2-8-2000

(Born) and W.P. No. 2616 of 1999, D/- 23-12-1999

(Born), 1998 Lab IC 2571 (Cal), Reversed.

It cannot be said that by virtue of engagement of

contract labour by the contractor in any work of or

in connection with the work of an establishment, the

relationship of master and servant is created between

the principal employer and the contract labour.

Even a combined reading of the definition of the

terms "Contract labour", "Establishment" and

"Workman" does not show that the legal

relationship between the person employed in any

industry and the owner of the industry is created

irrespective of the fact as to who has brought about

such relationship. The word "Workman" is defined

in wide terms. It is a generic term of which contract

labour is a species. It is true that combined reading

of the terms "Establishment" and "Workman" shows

that a workman engaged in any establishment would

have direct relationship with the principal employer

as a servant of master. But what is true of a workman

could not be correct of contract labour. When the

provisions of the Act neither contemplate creation

of direct relationship of master and servant between

the principal employer and the contract labour nor

can such relationship be implied from the provisions

of the action issuing notification under Section 10(1)

of the CLRA Act. A fortiori much less can such a

relationship be found to exist from the rules and the

forms made there under.’’

So, keeping in view the principles enunciated by

the Hon'ble Apex Court in the decisions mentioned above,

the present case in hand is to be considered.

13. In this case, the letter No. U-230l3/11/89/LW, dated

28-05-92, Government of India, Ministry of Labour shows

that the prohibition of employment of contract labour in

sweeping, cleaning, dusting and watching of buildings

owned or occupied by the establishments of Food

Corporation of India and some other departments was

lifted by the Central Government. So, the engagement of

contract labour by the Party No. 1 cannot be said to be

illegal. It is also found from the materials on record that the

appointment of labour contractor by Party No. 1 for supply

of Security Guards was genuine and the same was not only

on papers as claimed by the workman. The workman has

failed to prove such claim by adducing cogent or reliable

evidence. The engagement of labour contractor by Party

No. 1 was not a mere ruse or camouflage to evade

compliance of the various beneficial legislations, so as to

deprive the workman of the benefits thereunder. The

workman has' not been able to produce any document to

show that at any point of time, Party No. 1 paid his wages

as their employee. It is clear from the evidence that Party

No. 1 paid wages of the last three months to the workman

in presence of the Labour Commissioner, as the contractor

did not pay the same. As it is clear from the evidence on

record that the workman was engaged as a contract labour

with Party No. 1, by the contractor and as such, it can be

held that there was no relationship of master and servant

between the Party No. 1 and the workman. Hence, there

was no question of termination of the services by the Party

No. 1 or compliance of the provisions of Sections 2S-F or

2S-H of the Act.

14. It is the own case of the workman that he was

engaged by the contractor. So the contractor, who had

engaged the workman is a necessary party in the

reference. The said contractor has not been added as a

party in this reference. Due to non- joinder of necessary

party, the reference is bad in law.

In view of the materials on record and the

discussions made above and applying the principles

enunciated by the Hon'ble Apex Court in the three

decisions mentioned above, the reference cannot be

answered in favour of the workman.

Hence, it is ordered :—

ORDER

The reference is answered in the negative. The

workman is not entitled to any relief.

J. P. CHAND, Presiding Officer

ubZ fnYyh] 30 vDrwcj] 2013

dk-vk- 2382-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa dsUæh; ljdkj eSllZ ,l lh

lh ,y ds çca/ra=k ds laca¼ fu;kstdksa vkSj muds deZdkjksa ds

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vf/dj.k@Je U;k;ky;] gSnjkckn ds iapkV (lanHkZ la[;k 69@2005)

dks çdkf'kr djrh gS tks dsUæh; ljdkj dks 30&10&2013 dks

çkIr gqvk Fkk A

¹la- ,y&22012@15@2005&vkbZ vkj (lh,e&II)º

ch- ,e- iVuk;d] MsLd vf/dkjh

New Delhi, the 30th October , 2013

S.O. 2382.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. 69/2005)

of the Central Government Indus. Tribunal-cum-Labour

Court, Hyderabad as shown in the Annexure in the

Industrial Dispute between the management of M/s.

Singareni Collieries Company Limited, and their workmen,

received by the Central Government on 30-10-2013.

[No. L- 22012/15/2005-IR (CM-II)]

B.M. PATNAIK, Desk Officer

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % uoEcj 23] 2013@vxzgk;.k 2] 1935

6291

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT

AT HYDERABAD

Present : Smt. M. VIJAYA LAKSHMI Presiding Officer

Dated the 13th day of August, 2013

INDUSTRIAL DISPUTE No. 69/2005

Between:

The Vice- resident

(Sri S. Satyanarayana)

Singareni Collieries Employees Union (CITU)

H.No. NIG-1, APHB Colony,

Bellampalli - 505251. ....Petitioner/Union

AND

The General Manager,

M/s. Singareni Collieries Company Ltd.

Sreerampur Division,

Sreerampur-504303 ....Respondent

Appearances :

For the Petitioner :

M/s. A.K. Jayaprakash Rao,

K. Srinivas Rao, P. Sudha,

T. Bal Reddy, M. Govind,

K. Ajay Kumar & Venkatesh

Dixit, Advocates

For the Respondent:

M/s. P.A.V.V.S. Sarma & Vijaya

Laxmi Panguluri, Advocates

AWARD

This is a dispute referred by the Government of

India, Ministry of Labour and Employment, under

reference L-22012/15/2005-IR (CM-II) dated 8-l1-2005 for

adjudicating upon the dispute under Sec. 10( 1)( d) of the

Industrial Disputes Act, 1947 between the Management of

M/s. Singareni Collieries Company Ltd., and the workman

Sri B. Sarangapani represented by Singareni Collieries

Employees Union. The terms of reference are as under:

SCHEDULE

"Whether the action of the General Manager,

M/s. Singareni Collieries Company Ltd., Sreerampur

Division in reducing 4 increments with cumulative

effect and transfer of Sh. B. Sarangapani, Clerk-I,

RK- New Tech/Sreerampur Divn. is legal and

justified? If not, to what relief the workman is entitled

to?"

On receipt of the reference this Tribunal has

registered and numbered the reference as I.D. No. 69/2005

and Notices have been issued to both the workman and

the management and they both appeared before the court

and engaged their respective counsels with the consent of

the other party and with the leave of the court.

2. For Petitioner filed his claim statement with the

averments in brief as follows :

Petitioner union has espoused the cause of its

member who is also the Branch Secretary of the Petitioner

union and the Government of India was pleased to refer

the dispute for adjudication. The workman concerned

joined the service as clerk on 23-8-1989 and put in clean

record of service. He was promoted as Special Gr. Clerk

from 1-1-2004. While so a charge sheet dated 16/18-4-2001

was issued to the workman alleging misconduct for which

he submitted his explanation denying the allegations

levelled against him. Not being satisfied with the same a

departmental enquiry was ordered appointing Mr. V. R.

Gopala Rao as Presenting Officer, the Presenting Officer

himself gave evidence as witness on behalf of the

respondent. Which is contrary to law. Enquiry officer

permitted the Presenting Officer to give such evidence. On

behalf of the Management 6 witnesses were examined and

on behalf of the workman two witnesses were examined

and the workman has also given his statement. There is no

legal evidence on record to substantiate the charges

levelled against the workman. Presenting Officer also

admitted in his evidence that the concerned workmam was

issued with the charge sheet as he has carried out his

action in the name of CITU union. It is only an act of

victimization-and unfair labour practice. Management

could not elicit anything to substantiate the charges

levelled against the workman concerned from the two

witnesses who were examined for the workman. But the

enquiry officer submitted a report holding the workman

guilty of the charges. The findings of the enquiry officer

are perverse, one sided and based on mere assumptions

and presumptions. He gave his findings that the charges

levelled against the workman under Standing Orders 25.11

was not proved whereas the charge under Standing

Orders 25.16 was proved. But no charge under Standing

Orders 25.l6 was levelled against the workman. Thus, the

enquiry officer exceeded his jurisdiction in holding the

workman guilty under Standing Orders 25.l6. He brushed

aside the legal evidence on record and erroneously held

that the workman has been guilty of the charge under the

said Standing Order. Thus, his finding is perverse and

material irregularity apart from victimizing the workman.

Respondent accepted the said findings mechanically and

passed the impugned order reducing four increments with

cumulative effect. The same is illegal, unjust and contrary

to law and also a measure of victimization and unfair labour

practice. The workman never instigated any employee to

go strike. The strike is on going strike and the recognized

union and the representative union gave the strike call and

6292

THE GAZETTE OF INDIA : NOVEMBER 23, 2013/AGRAHAYANA 2, 1935

[PART II—SEC. 3(ii)]

moreover, the government did not declare the said strike

as illegal. Only to curb the Petitioner's union the action has

been taken against the workman illegally. The procedure

adopted by the Management is illegal, unjust, contrary to

law and in violation of principles of natural justice. The

punishment

inflicted

is

uncalled

for

unjustified and disproportionate and discriminating. No

action has been taken against the recognized union and

representative union who gave the strike call. But the

workman has been victimized for this trade union activity

since he belongs to CITU which is unjust and illegal.

Therefore, the impugned order dated 17-4-2003 is to be set

aside granting all consequential reliefs in the interest of

justice and fair play.

3. Respondent has filed his counter with the averments in

brief as follows :

Petitioner union never attained the recognized status

in company level and representative status In area level in

the trade union elections held in the respondent company.

There are grievance committees constituted at the various

levels to redress the grievances of the workmen working in

the respondent company. If there is any dispute the said

grievance committee is to resolve the same, failing which

the procedure contemplated under the Industrial Disputes

Act, 1947 should follows. The workman has been

transferred from SRP II Incline to RKNT with effect from

15-10-2002 and subsequently to Bhupalpalli area with effect

from 27.6.2003. While working at SRP 2 incline he was

issued with charge sheet dated 16.4 .2001 under company's

Standing Orders 25.11. and 25.21. which reads that :

"25.11 :

Going on illegal strike either singly or

with other workmen without giving 14

days previous notice.

25.24 :

Sabotage or causing willful damage to

work in progress or to property of the

company. "

The said charges were leveled for instigating

Badlies and Coal Fillers of SRP 2A incline causing illegal

strike on 16-4-2001 in 1st shift and loss of production of

153 tonnes per shift. The workman has submitted his

explanation as it was not satisfactory enquiry was ordered

appointing the enquiry officer and Presenting Officer. The

enquiry was conducted and both the Presenting Officer

and the workman and two witnesses on his behalf have

adduced their respective evidence. The contention of the

Petitioner that Presenting Officer himself has given

evidence as witness on behalf of the respondent which is

contrary to law and that enquiry officer has permitted the

same is denied. The Petitioner is put to strict proof of the

same. In the enquiry, Presenting Officer presenting the

case is not contrary to law and there is no wrong on the

part of the enquiry officer to permit the same. The workman

has fully participated in the enquiry and he was given full

opportunity to defend himself. As there is sufficient

evidence on record to substantiate the charges, the

enquiry officer has given findings, finding the workman as

guilty of the charges. There is no act of victimization and

unfair labour practice on the part of the Management in

issuing charge sheet. .The workman has instigated the

Badlies and Coal Fillers of Srirampur 2A Incline to resort

to an illegal strike from 16-4-2001 in first shift causing

a loss of production of 153 tonnes per shift which is a

serious misconduct. The Disciplinary Authority has given

due opportunity to the workman to make his representation

regarding the enquiry findings and the workman has

availed the same. Since there was no ground made out

warranting re-enquiry the request made by the workman

for a fresh enquiry has been declined. The contention that

findings of the enquiry officer are perverse, one sided and

based on mere presumptions and as sumptions is incorrect.

The Disciplinary Authority examined the entire file and

the past history of the workman and passed the order of

penalty of reversion to a lower stage by reducing four

increments with cumulative effect from 1-4-2003. The same

is not contrary to law and it is not an act of victimization.

The punishment is in accordance with the law and it is not

at all disproportionate nor discriminatory. The action of

the Management is on the basis of the proved charges

which are on the basis of evidence on record. The

averments of the workman that a recognized union and

representative union instigated strike, no action was taken

on the part of the Management against them but victimized

the workman as workman belongs to CITU and therefore

the action of the Management is illegal, unjust, contrary to

law, victimization and unfair labour practice are all

incorrect. The claim is to be dismissed.

4. This Tribunal heard either party regarding the

validity of domestic enquiry and by virtue of the order

dated 30-8-2010 held that the domestic enquiry conducted

in this case is valid.

5. Heard the arguments of either party under Sec.l1

A of the Industrial Disputes Act, 1947.

6. The points that arise for determination are :

1. Whether the action of the General Manager, of

M/s. Singareni Collieries Company Limited, Sreerampur

Division in reducing 4 increments with cumulative effect

and transfer of Sh. B. Sarangapani, Clerk-I, RK-New Tech/

Sreerampur Divn. is legal and justified?

2. To what relief the workman is entitled to?

7. Point No.(1) :

The workman has faced the following charges during

the departmental enquiry:

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % uoEcj 23] 2013@vxzgk;.k 2] 1935

6293

"25.11 :

Going on illegal strike either singly or

with other workmen without giving 14

days previous notice.

25.24 :

Sabotage or causing willful damage to

work in progress or to property of the

company. "

After conducting the departmental enquiry the enquiry

officer has submitted his report whereunder he has drawn

the conclusion that, "under the circumstances, it is

concluded that Sri B. Sarangapani, Clerk, SRP. 2 incline,

SRP(P) Area incited/instigated the workmen on 16-4-2001

at SRP. 2A incline and on other days at SRP. l incline and

SRP. 2 Incline to go on strike in sympathy with the Badli-

fillers and his action resulted in strike, which amounts to

misconduct under company's Standing Order No. 25.16

and 25.24 are proved beyond doubt.

8. Thus, it is very much clear that the enquiry officer

traveled beyond the scope of the charges 1eve1ed against

the workman. This can be said so since, no charge under

Standing Orders 25.16 has been levelled against the

workman. Further, the enquiry officer failed to answer the

first charge levelled against the workman i.e., the charge

under 25.l1. Further, it can safely be held that there is

violation of principles of natural justice in this case, since

there was no opportunity for the workman to understand,

explain, and defend himself regarding the allegations and

findings on the charge under Standing Orders 25.l6. For

these reasons alone the enquiry findings are ought to have

been disregarded by the Disciplinary Authority.

9. As can be seen from the material on record, the

strike was going on since 9-4-2001 in the given area. It

was not for the first time the strike was commenced on

16-4-2001. Further the evidence on record shows that

several unions participated and supported the strike.

Petitioner workman has been an office bearer of the

Petitioner union. Thus, if any activity has been done by

him in furtherance of the strike, the same ought to have

been attributed to the union but not to him individually.

From the evidence on record one can reasonably gather

that several representatives of the Petitioner union have

had discussions with the workers of the Respondent in

connection with the strike and the witnesses have spoken

to the effect that the workman herein has been one such

persons. Therefore, the action regarding the charges in

this case ought to have been taken against the Petitioner

union but not the workman individually.

10. There is no clear finding regarding the aspect

been declared as illegal or otherwise. Petitioner has

categorically contended in his claim statement that

government never declared the strike as illegal. For this

there is no answer, on the part of the respondent.

11. The evidence on record discloses that there has

been on going strike in several other areas of the

M/s. Singareni Collieries Company Limited for a general

cause of the badli fillers who refused to carry extra explosive

cannisters to underground and against the directions

given to them by the Management to carry on such work,

the said strike has been held. In such case, holding the

workman as responsible for such strike, describing him as

instigator of the said strike can not be accepted as a correct

version.

12. Leaving alone all these aspects, even if it is

taken that the evidence on record discloses that Petitioner

together with some others has spoken to the workman to

sympathize with badli fillers who are on strike since some

time prior to 16-4-2001 imposing the punishment of

reversion to lower post, stoppage of four increments with

cumulative effect and also transferring him to some other

place is certainly a most disproportionate punishment

imposed, against the workman.

13. When all the above aspects of the case above

discussed are considered, one can read between the lines

and note that this is clear act of victimization of the

Petitioner to curb the activities of the workers unions with

iron hand and Impose the will of the Management on the

workers. It is certainly an unfair labour practice which shall

never be permitted.

14. To conclude, considering the fact that the enquiry

officer traveled beyond the scope of the charges while

giving his findings and report and further the Disciplinary

Authority has wrongly accepted such report and further

awarded punishment which is grossly disproportionate to

the misconduct alleged that too not properly established,

for the reasons discussed above, the impugned orders of

the General Manager, M/s. Singareni Collieries Company

Limited, Sreerampur Division educing 4 increments with

cumulative effect and transferring Sri B. Sarangapani,

Clerk-I, RK-New Tech, the workman are to be declared as

illegal and unjust and they are to be set aside.

This point is answered accordingly.

15. Point No. 2 : In view of the finding given in

Point No.l, the impugned orders of, the General Manager

M/s. Singareni Collieries Company Limited, Srirampur

division transferring Sri B. Sarangapani, Clerk-I, RK-

New Tech, dated 17-4-2003, reverting him to lower scale of

pay by reducing 4 increments with cumulative effect, are to

be set aside. Consequently, the workman shall be restored

to his original place of work and scale of pay as on the date

of said proceeding and further monetary benefits to which

he is entitled to, in the absence of the impugned order. He

is entitled for all arrears of the pay accrued to him

consequent to this order.

6294

THE GAZETTE OF INDIA : NOVEMBER 23, 2013/AGRAHAYANA 2, 1935

[PART II—SEC. 3(ii)]

This point is answered accordingly.

Result :

16. In the result, the impugned proceedings on

reference No. CRP/PER/IR/91/798 dt.17-4-2003 of General

Manager of M/s. Singareni Collieries Company Limited

Sreerampur Division, reverting the workman Sri B.

Sarangapani, Clerk-I, RK-NT incline, Sreerampur Division

to a lower stage in the present scale of pay by reducing 4

increments with cumulative effect is declared as illegal,

and unjust and is hereby set aside. Consequently, the pay

of Sri B. Sarangapani, Clerk-I, is restored to its original

position as it was on the day of the said order and he is

entitled. for continual increase in pay as per rules to which

he will be entitled in the absence of impugned order and all

other attendant benefits. The arrears of pay to which he is

entitled to consequential to this order shall be calculated

and be paid to the said workman forth with by the

respondent. Further, he shall be retransferred to his original

place of work as on the date of impugned order.

The reference is answered accordingly.

Award passed accordingly. Transmit.

Typed to my dictation by Smt. P. Phani Gowri,

Personal Assistant corrected by me on this the 13th day of

August, 2013.

M. VIJAYA LAKSHMI, Presiding Officer

Appendix of evidence

Witnesses examined for the Petitioner

NIL

Witnesses examined for the Respondent

NIL

Documents marked for the Petitioner

NIL

Documents marked for the Respondent

NIL

ubZ fnYyh] 30 vDrwcj] 2013

dk-vk- 2383-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa] dsUnzh; ljdkj eSllZ osLV~u

dksyiQhYM fyfeVsM 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 114@2003) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks

30&10&2013 dks izkIr gqvk Fkk A

¹la- ,y&22012@162@2002&vkbZ vkj (lh,e&II)]

ch- ,e- iVuk;d] MsLd vf/dkjh

New Delhi, the 30th October, 2013

S.O. 2383.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 114/

2003) of the Central Government Industrial Tribunal-cum-

Labour Court, Nagpur as shown in the Annexure, in the

Industrial Dispute between the management of Dhoptala

Sub Area of WCL, and their workman, received by the

Central Government on 30-10-2013.

[No. L-22012/162/2002-IR (CM-II)]

B. M. PATNAIK, Desk Officer

ANNEXURE

BEFORE SHRI J. P. CHAND, PRESIDING

OFFICER, CGIT-CUM-LABOUR COURT,

NAGPUR

Case No. CGIT/NGP/114/2003

Date: 23-09-2013

Party No. l

:

The Sub Area Manager,

Dhoptala Sub Area of WCL,

Post-Sasti, Tah- Rajura, Chandrapur

Versus

Party No. 2

:

Shri Lomesh Kharad,

General Secretary, Rashtriya Colliery

Mazdoor Congress,

Dr. Ambedkar Nagar,

Ballarpur, Post & Tah. Ballarpur,

Distt. Chandrapur.

AWARD

(Dated: 23rd September, 2013)

This is a reference made by the Central Government

for adjudication of the industrial dispute between the

employers in relation to the management of Dhoptala Sub

Area of WCL. and their workman, Shri Bhupeli Rajam

through his union, as per letter No.L-22012/162/2002-

IR(CM-II) dated 08-05-2003, with the following schedule:-

"Whether the action of the management in relation

to Sasti Colliery of Western Coalfields Ltd. in

dismissing the services of Shri Bhupeli Rajam,

Loader vide office order No.WCL/SC/45B/121 dated

17-01-1999 is legal and justified? If not, to what relief

is the workman entitled?".

2. On receipt of the reference, the parties were

noticed to file their respective statement of claim and written

statement and accordingly, the union, "Rashtriya Colliery

Mazdoor Congress" filed the statement of claim on behalf

of the workman, Shri Bhupeli Rajam ("the workman" in

short) and the management of the WCL (here-in-after

referred to as the Party No.l) filed its written statement.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % uoEcj 23] 2013@vxzgk;.k 2] 1935

6295

The case of the union as projected in the statement

of claim is that the workman was appointed as a Trammer-

cum-Loader w.e.f.23-3-1971 and he was quite illiterate and

the job of loader in underground mines is very hard and

hazardous and the work of Trammer is also equally

hazardous and doing such hazardous work, the workman

suffered from different ailments and old age weakness

including mental disorder and neurotic depression, so his

family members got him treated by the local doctor,

Vijay N. Bongirwar at his clinic at Ballarpur and the

workman was under the treatment of the said doctor from

2-12-1995 to 2-12-1996 and the Party No. l submitted a

charge sheet dated 8/11-3-1995 against the workman, for

remaining absent from duty from 5-12-1994, to which his

wife, Smt. Narsubai submitted a reply and without examining

the reply properly and knowing fully well that the workman

was a mental patient, the Party No. l decided to proceed

with the inquiry against the workman and the wife of the

workman intimated the Supdt. of Mines, Sasti Colliery

vide her letter dated 10-2-1997 about the workman

suffering from mental illness since the last two years and

not in a position to go to duty or to attend the enquiry and

to send him for treatment for mental disorder and the

wife of the workman, in response to the letter of the Inquiry

Officer, dated 2/8-2-1999, vide her letter dated 10-2-1999,

intimated the Inquiry Officer about her husband suffering

from mental disease since last two years and not to be in a

position to attend duty or the enquiry and requested to

send her husband to Mental Hospital, Nagpur for

treatment and the said letter was received by the

management and the Manager/Supdt. of Mines being

satisfied, referred the workman to the Medical Authorities

for treatment of his mental disease and the Medical

Authority examined the workman and referred him to

Dy. Chief Medical Officer, Ballarpur Area and the Dy. Chief

Medical Officer examined the workman and being satisfied

about the workman suffering from mental disease, referred

his case to headquarters of WCL, Nagpur, for sending him

for treatment at Government Medical College, Nagpur and

after due approval of the Competent Authorities, the

workman was sent by the Dy. Chief Medical Officer, WCL,

Ballarpur Area for treatment vide letter dated 6-3-1997 to

the unit incharge, Deptt. of Phychiatry, Govt. Medical

College Hospital and the workman was treated at the Govt.

Hospital from 22-3-1997 to 10-6-1997 and a certificate was

issued by the doctor of the Govt. Hospital with the report

that "the workman is fit to join his duties under supervision"

and the workman accordingly reported for duty to the

Suptd.of Mines as per his application dated 16-6-1997, but

he was not allowed to join his duty and was advised to

take further treatment as per letter of Party No. 1 dated

01/10-7-1997 and the Dy. Chief Medical Officer sought

clarification vide his letter dated 5-8-1997 from Medical

Suptd., Regional Mental Hospital, Nagpur as to whether

the workman was fully fit to resume duty or was unfit and

the wife of the workman vide letter dated 17-8-1997, in

response to the letter of the Inquiry Officer dated 7/

12-8-1997 intimated the Inquiry Officer, enclosing

documents about the details of the mental disorder of her

husband and about the workman not to be in a position to

attend the enquiry and to stop the enquiry and she also

again submitted letter dated 1-9-1997 addressed to the

Inquiry officer, with two documents, explaining the health

condition of her husband and also endorsed a copy of the

same to the Manager, Sasti Colliery, but Party No. 1

arbitrarily and illegally dismissed the workman vide office

order No. 121 dated 16/17-1-1999 with immediate effect and

the charge sheet, enquiry proceedings and enquiry report

suffer from several serious infirmities and the workman

was victimized and there was gross violation of principles

of natural justice and the Inquiry Officer acted as a mere

evidence recording machine at the hands of the

management and in view of mental illness of the workman,

the enquiry should have been stopped and as the workman

was unfit according to the Supdt. of Mines/Manager, the

dependant of the workman should have been given

employment in terms of Para 9.4.0 of Chapter IX of N.C.W.A.

V and VI and the workman was not allowed to join duty

and was kept under illegal and forced idleness without

wages and dismissing him from service cannot be said to

be justified.

3. In the written statement, the Party No. 1 has

pleaded that the workman was appointed on 23-3-71 as

Badali Trammer-cum-Loader and subsequently he was

regularized as a loader and the service conditions of

employees working in the coal industry are governed by

the settlements generally known as NCWA and apart from

the provisions of NCWA , the provisions of standing orders

are also applicable to the workers and in the standing,

orders, there is laid down procedure for availing different

types of leave, such as sick leave, earned leave and

medical leave etc. and the employees are provided with

several facilities including medical aid and management

has established colliery level dispensary, central hospital

etc. for providing medical facilities to their employees and

in case of an employee falling sick, he is required to report

to the Medical Officer of the company for issue of sick

certificate and basing on such certificate, the employee is

granted sick leave till he is declared fit for duty by the

Medical Officer and serious cases requiring for special

treatment are being referred to specialized hospital situated

at metropolitan cities and entire expenditure is being borne

by the company and the workman was a habitual absentee

and he was not interested in his services and though

management had given him number of chances to improve

his attendance by submission of letter of caution and

charge sheets, the workman did not improve his attendance

6296

THE GAZETTE OF INDIA : NOVEMBER 23, 2013/AGRAHAYANA 2, 1935

[PART II—SEC. 3(ii)]

and as he remained absent from 5-12-94, charge sheet

dt.8/11-3-95 was issued against him and as the workman

did not submit any reply to the charge sheet, it was decided

to conduct the departmental enquiry against him and

Shri Y.Krishna Sepuri was appointed as the Inquiry Officer

and as in spite of notices, the workman did not attend the

enquiry, the Inquiry Officer decided to proceed with the

enquiry ex-parte on 23-6-98 and accordingly conducted

the enquiry ex-parte and five witnesses were examined on

behalf of the management and three documents were also

exhibited and the Inquiry Officer submitted his report,

holding the workman guilty of the charges and the entire

enquiry papers were placed before the competent

authority, who being satisfied about the fairness of the

departmental enquiry and taking into consideration the

materials on record and the past record of the workman

terminated the service of the workman vide order

dt.16 /17-1-1999 and the enquiry was conducted by

following the principles of natural justice.

4. As this is a case of dismissal of the workman from

services, after holding a departmental enquiry, the validity

of the departmental enquiry was taken as a preliminary

issue for consideration and by order dated 28-04-2011, the

departmental enquiry conducted against the workman was

held to be illegal, unjustified and not in accordance with

the principles of natural justice.

It is necessary to mention here that in view of the

prayer made by the party no. 1 in the written statement to

allow it to lead evidence to prove the charges levelled

against the workman, before this Tribunal in case of

deciding the preliminary issue in favour of the workman,

party no.I was allowed to prove the charges against the

workman by adducing evidence before this Tribunal.

5. In order to prove the charges against the workman,

party no.1 has examined three witnesses, besides placing

reliance on documentary evidence. The three witnesses

examined on behalf of party no. 1 are Shri Prakash K. Ram,

Shri Madhukar N. Janwe and Shri Kishan Motiram

Jiotode.

It is to be mentioned here that evidence of the

workman and one Shri Shrinivas R. Bhupeli on affidavit

had been filed in rebuttal, on behalf of the workman. As

the party no.1 admitted the documents filed by the

workman and the documents were admitted into evidence

and marked as exhibits on behalf of the workman without

formal proof, the workman declined to adduce oral evidence.

6. Before delving into the merit of the matter, I think

it necessary to mention the charges under clause 26.30 of

the Standing Order has been levelled against the workman.

The charge under clause 26.30 reads as follows:-

26.30 - Absence from duty without sanctioned leave

or sufficient cause or overstaying beyond ten days

after sanctioned leave.

In the charge sheet, it was alleged that the workman

remained absent from duty from 05-12-1994 till 8/11-03-1995

(the date of submission of the charge sheet), without

sanctioned leave or without permission of any competent

authority or without any intimation to the office of the

Suptd. Of Mines/ Manager, Sasti colliery.

7. The workman has admitted about his remaining

absent from duty w.e.f. 05-12-1994 till 11-03-1995 (the date

of submission of the charge sheet). However, it is the case

of the workman that his absence from duty was due to his

suffering from mental illness and as such, his absence

cannot be said to be without sufficient cause and as he

was prevented by sufficient cause to attend his duty, it

cannot be said that he committed any misconduct.

8. Keeping in view the stands taken by the parties,

now, it is to be considered as to whether party no. 1 has

been able to prove the charges against the workman.

The first witness for party no. 1, P. K. Ram has stated

that the workman is a habitual absentee and he was not

interested in his services and management gave him various

chances to improve his attendance by cautioning him with

various letters and charge sheet dated 10/12-02-1994 was

issued against him for remaining absent from 01-01-1994,

charge sheet dated 21/22-08-1994 was issued for remaining

absent from 04-08-1994 and charge sheet dated 7/10-071994

was issued against him for the total attendance and

absence in the year 1992 and 1993 and as the workman

remained absent from 05-12-1994, he was issued with the

charge sheet dated 08/11-03-1995 and the workman did not

report sick to the colliery hospital and he also did not give

any information to the management about his alleged

sickness during the period of his remaining unauthorized

absence from duty.

In the cross-examination, this witness has stated

that in 1994 and 1995, he was working as the welfare officer

at Sasti Colliery and he did not receive any summons or

notice from the court to give evidence and under Rule 73

of the Mines Rules, a welfare officer is not authorized to

give evidence in any court or Tribunal, unless he is

summoned or noticed to give evidence and the original

medical certificates issued by the medical officers of the

hospitals of WCL are being deposited with the

management. This witness has further stated in the cross-

examination that in the charge sheet submitted against the

workman, Ext. M-I, nothing has been mentioned about

submission of the earlier charge sheets against the

workman, as mentioned in paragraph seven of his affidavit.

¹Hkkx II—[k.M 3(ii)º

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6297

9. The evidence of witness number two for party

no. 1, Madhukar Narayan Janwe is exactly the same as that

of R. K. Ram.

In his cross-examination, this witness has stated that

there is no specific bar in any Rule of the company for

taking treatment by a workman from any private medical

practitioner and in Ext. M-I the charge sheet, nothing has

been mentioned about submission of earlier charge sheets.

10. The witness, K. M. Jiotode has also stated that

the workman remained unauthorized absent from duty

w.e.f. 05-12-1994 and he was not granted any leave and he

did not give any information about his absence. In his

cross-examination, this witness has stated that he cannot

say if the workman was ill on 05-12-1994 and onwards.

11. It is clear from the evidence on record and the

stand taken by the workman that the workman remained

absent from duties w.e.f. 05-12-1994 and for that charge

sheet dated 08/11-03-1995 was submitted against him. In

view of the stand taken by the workman, now, it is necessary

to consider as to whether the workman, is able to show

that due to mental illness he was not able to attend his

duties.

12. During the course of argument, it was submitted

by the learned advocate for the workman that it is clear

from the documents filed by the workman and admitted by

the party no. 1, Exts. W-I to W-IX and so also the evidence

adduced by the management that due to illness, the

workman could not able to attend his duties w.e.f.

05-12-1994 and there was sufficient cause for his absence

and he did not commit any misconduct.

It was also submitted by the learned advocate for

the workman that the punishment of dismissal from services

against the workman was passed by the appellate authority,

the General Manager and therefore, the workman has lost

the chance of appeal and there was violation of principles

of natural justice and therefore, the order of punishment is

liable to be set aside and the workman is entitled for

reinstatement in service with continuity and full back

wages.

In support of the contentions, the learned advocate

for the workman placed reliance on the decisions reported

in 2007 (115) FLR-427 (SC) (Mohan Matho Vs. M/s. Central

Coalfields Ltd.) 1995 (70) FLR-817 (Sujit Ghosh Vs.

Chairman & M. D. UCO Bank), 2009 LAB IC (NOC) 829

(J. Prasad Vs. Board of Directors) and AIR 1984 SC-1983

(Naval Kishor Vs. M/ s Darbshaw B. Cursetnee's sons and

others)

13. Perused the evidence on record. The workman

has not filed a single document to show that he was

mentally ill on 05-12-1994. The document Ext. W- VIII, which

was issued by a private doctor shows that the workman

was under the treatment of Dr. Vijay Ku. Bangirwar from

21-02-1995 to 02-12-1996 for neurotic depression. The rest

documents exhibited on behalf of the workman do not

relate to the period of absence of the workman. There is

nothing on Ext. W - VIII, as to when the same was issued.

It is to be mentioned that in the statement of claim, it is

claimed by the workman that he was under the treatment of

Dr. Vijay K. Bongirwar from 02-12-1995 to 02-12-1996. So,

the certificate, Ext. W-VIII does not seem to be a genuine

document. Moreover, Ext. W-VIII does not show that the

workman was mentally ill from 05-12-1994. From the

materials on record, it is found that the workman has not

been able to show that due to mental illness, he could not

able to attend duties w.e.f. 05.12.1994. It is clear from the

evidence on record that party no. 1 has been able to prove

the charge that the workman remained absent from duty

without sanctioned leave or sufficient cause.

14. Now, the question remains for consideration is

the quantum of punishment imposed against the workman.

Serious misconduct of unauthorized absence has been

proved against the workman. So, the punishment of

dismissal imposed against the workman cannot be said to

be shockingly disproportionate. Hence, there is no scope

to interfere with the punishment imposed against the

workman. The punishment of dismissal of the workman

from services is upheld.

15. So, far the submission made by the learned

advocate for the workman regarding the appellate authority

passing the order of punishment is concerned, on perusal

of the materials on record, it is found that the order of

punishment was passed by the Suptd. of Mines/Manager

Sasti colliery and the same was approved by the General

Manager as per the prevailing practice and the order of

punishment was not passed by the appellate authority.

As the facts and circumstances of the case in hand

are quite different from the facts and circumstances of the

cases referred in the decisions cited by the learned

advocate for the workman, with respect, I am of the view

that the said decisions have no direct application to this

case.

In view of the materials on record and the discussion

made above, it is ordered :-

ORDER

The reference is answered against the workman. The

workman is not entitled to any relief.

J. P. CHAND, Presiding Officer

6298

THE GAZETTE OF INDIA : NOVEMBER 23, 2013/AGRAHAYANA 2, 1935

[PART II—SEC. 3(ii)]

ubZ fnYyh] 30 vDrwcj] 2013

dk-vk- 2384-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa] dsUnzh; ljdkj eSllZ osLVuZ

dksyiQhYM fyfeVsM 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 22@2009) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks

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¹la- ,y&22012@9@2009&vkbZ vkj (lh,e&II)]

ch- ,e- iVuk;d] MsLd vf/dkjh

New Delhi, the 30th October, 2013

S.O. 2384.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 22/ 2009)

of the Central Government Industrial Tribunal-cum-Labour

Court, Nagpur as shown in the Annexure, in the Industrial

Dispute between the management of Ghugus Sub Area of

Western Coalfields Limited, and their workmen, received

by the Central Government on 30-10-2013.

[No. L-22012/9/2009-IR (CM-II)]

B. M. PATNAIK, Desk Officer

ANNEXURE

BEFORE SHRI J. P. CHAND, PRESIDING OFFICER,

CGIT-CUM-LABOUR COURT, NAGPUR

Case No. CGIT/NGP/22/2009 Date: 20-09-2013

Party No. 1

:

The Sub Area Manager,

Ghugus Sub Area of WCL,

Post Ghugus Colliery,

Chandrapur (M.S.)-442505

Party No. 2

:

The President,

Sanyukta Khadan Mazdoor Sangh,

(AITUC), Ghugus Br. Qtr. No. 223,

WCL, Colony, Ram Nagar,

PO: Ghugus, Chandrapur (MS).

AWARD

(Dated: 20th September, 2013)

In exercise of the powers conferred by clause (d) of

sub-section (1) and sub-section 2(A) of Section 10 of

Industrial Disputes Act, 1947 (14 of 1947) (“the Act” in

short), the Central Government has referred the industrial

dispute between the employers, in relation to the

management of WCL and their workman, Shri Sommaya

Pappaya, for adjudication, as per letter No.L-22012/9/2009-

IR (CM-II) dated 01-07-2009. with the following schedule:—

“Whether the action of the management of M/s. WCL

in converting Shri Sommaya Pappaya from Cat. V to

Cat. I and recovering his already paid dues later

on from his salary is legal and justified? To what

relief is the workman represented through SKMS

Union entitled?”

2. On receipt of the reference, the parties were noticed

to file their respective statement of claim and written

statement and accordingly, the workman, Shri Sommaya

Pappaya, (‘‘the workman” in short), filed the statement of

claim and the management of WCL, (‘‘Party No. 1” in short)

filed their written statement.

The case of the workman as projected in the

statement of claim is that he was appointed as a Tub loader

w.e.f. 11-11-1974 and worked in the underground as a loader

in Nakoda Incline of Ghugus Colliery and during the

periodical Medical examination as required under the Mines

Act and Rules made there under, he was directed to appear

before the Medical Board on 17-06-1996 for his medical

examination and after his medical examination, the Medical

Board recommended his name for alternate light work on

surface, finding him unfit to do his original work of Tub

loader in the underground and though he was entitled for

protection of his wages, the party no. 1 after deputing him

for light work, reduced his basic wages in violation of the

provisions of law and placed him in the lowest time

rated category of NCWA. It is further pleaded by the

workman that at the initial stage of his performing light

job, he was paid the basic wages of his original job, so he

was confident that his wages would be protected, but at

the time of implementation of NCWA-VII in the year 2006,

the party no. 1 deducted a sum of Rs. 1,88,946 from the

arrears of pay, on the ground of payment of excess basic

pay, consequent upon his conversion from piece rated to

time rated and due to non-protection of his basic wages,

he sustained recurring loss of Rs. 8000 to Rs. 10,000 per

month and his conversion from piece rated to time rated

was as per administrative order issued by party No.1 and

he had never opted for his co nversion from piece rated to

time rated worker and due to administrative exigencies as

mentioned above, he was transferred by party no. 1 from

Nakoda incline to Ghugus OC Mine as per office order

dated 27-08-1998 and there was a bipartite settlement

between the party no. 1 and the recognized union before

the Regional Labour Commissioner, Nagpur on 02-11-1992,

for protection of the basic wages of loaders, on their

conversion from piece rated to time rated and inspite of

such settlement, the party no. 1 did not protect his basic

wages and though such pay protection was given to

number of loaders on their conversion from piece rated to

time rated, he was given discriminating treatment by

party no. 1 and deduction of his wages is illegal and

arbitrary and he is entitled for protection of his wages,

consequent upon his conversion from piece rated to time

rated and so get refund of the amount of Rs. 1,88,946

which was illegally deducted from his arrears with interest

there on.

3. The party no. 1 in the written statement after

denying the pleadings made in the statement of claim has

pleaded inter-alia that the case filed by the workman is

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % uoEcj 23] 2013@vxzgk;.k 2] 1935

6299

false, fabricated, frivolous and not maintainable in the eye

of law and the workman has suppressed the material facts

and has not approached the Tribunal with clean hands

and as such, the reference is liable to be rejected. It is

further pleaded by the party no. 1 that the workman was

working as a piece rated worker in Nakoda incline and for

some technical reason, the mine was closed by the

Director General of Mines for safety purpose and as the

workman was suffering from some disease and as the Mine

was closed, he was transferred to Ghugus open cast mine

on 09-09-1998 and which joining at Ghugus, the workman

was ready to work as a general mazdoor Cat.I and gave an

undertaking being signed by him in presence of the witness

and he was converted as a general mazdoor Cat. I as per

letter no. 306 dated 9/10-02-1999 and thereafter, his wages

was fixed at midpoint basis, as per the guide line provided

in the settlement dated 31-10-1995, and the said settlement

is binding on the workman and since then, the workman

performed the duties of General Mazdoor Cat.I and he is

not entitled to any relief.

4. In his rejonder, the workman has pleaded that

party no. 1 has suppressed the material fact and has not

come up with clean hands. The workman has further

reiterated the facts mentioned in the statement of claim.

5. In support of his claim, the workman has examined

himself as a witness besides examining one Shri Ramesh

Khadasi as the other witness. The workman has also relied

on documents. The two witnesses i.e. the workman and

Shri Khadasi in their examination -in-chief on affidavit have

reiterated the facts mentioned in the statement of claim.

The workman in his cross-examination has stated

that at present, he is working as a general mazdoor at

Ghugus open cast colliery and he was working in Nakoda

colliery as a loader and Nakoda colliery has already been

closed for safety reason and as he was injured, while

working underground, he was given work on surface. The

workman has denied the suggestion that he had consented

to work as a general mazdoor. The workman volunteered

that his signature was taken on the document without

explaining the contents of the same.

Witness, Shri Khadasi in his cross-examination has

stated that on document has been filed to show that the

workman was doing light job in the underground from

1996 to 1998 and he knows about the settlement dated

31-10-1995 and according to the said settlement, a workman

is not entitled for pay protection, in case of his giving

consent for conversion from piece rated workman to time

rated workman.

On the other hand, the party no. 1 has relied on the

documents filed by it and has not adduced any oral

evidence. It is also necessary to mention that the case was

fixed to 21-08-2013 for argument, but more appeared on

behalf of the management, so order was passed to proceed

exparte against the party no. 1 and argument was heard

from the side of the workman and the case was posted for

award. However, it is to be mentioned that the learned

advocate for the party no. 1 had filed the written notes of

argument on 13-12-2010.

6. At the time of argument, the learned advocate for

the workman reiterated the facts mentioned in the statement

of claim and submitted that the workman is entitled for the

reliefs as claimed.

In the written notes of argument, it was mentioned

by the learned advocate for the party no. 1 that as the

workman was suffering from some disease and Nakoda

Mine was closed, the workman was transferred to Ghugus

open cast colliery on 09-09-1998 and while joining at

Ghugus, the workman was ready to work as general mazdoor

Cat. I and he also gave an undertaking voluntarily and his

pay was fixed at midpoint as per the terms of the settlement

dated 31-10-1995, which is binding on the workman and as

such, the workman is not entitled to any relief.

7. Perused the record including the pleadings of the

parties, the oral evidence of the workman and the

documents produced by the parties. From the documents

produced by the workman it is clear that he was examined

by the medical Board of party no. 1 on 17-06-1996 and the

Medical Board found him unfit to work in the underground

and therefore, recommended to give him alternate light

job on surface and accordingly, on medical ground, the

workman was given alternate job on surface.

8. On perusal of the documents produced by the

party no. 1 and so also by the workman on record, it is

found that the workman was transferred to Ghugus Open

Cast colliery from Nakoda Incline due to closure of Nakoda

Incline and he was converted to daily rated workman from

piece rated workman alongwith 229 other workman, as

per order dated 02-07-1999. It is also found that the

workman submitted a joining letter on 10-09-1998 at Ghugus

open cast colliery and he also signed a consent letter to

workvoluntarily as a general mazdoor catergory-I at Ghugus

open cast colliery.

9. The party no. 1 has claimed that on view of the

settlement between it and the recognised union dated

31-10-1995, the workman was not entitled for protection

of his wages and according to the provisions of the said

settlement, his wages was re-fixed on the midpoint of the

commensurate categroy.

10. In view of the admitted facts as already mentioned

above, now, it is only to be considered as to whether the

workman was not entitled for protection of his basic pay

of piece rated loader in view of the settlement dated

31-10-1995.

On perusal of the so called settlement dated

31-10-1995, it is found that the same is not a settlement at

all, but the same is the record note of discussion held

between the management of WCL and RKKMS union on

6300

THE GAZETTE OF INDIA : NOVEMBER 23, 2013/AGRAHAYANA 2, 1935

[PART II—SEC. 3(ii)]

31-10-1995 at Nagpur. As the so called settlement dated

31-10-1995 in fact is not a settlement in the true sense, it is

held that the same is not binding on the workman.

Moreover, there is also provision in clause 5 of the

said settlement reads as follows:—

‘‘Such piece rated workman who may be put in time

rated/monthly rated in future by managerial decisions i.e.

without, seeking option for time rated/monthly rated or

without going through the selection process against

internal notification for time rated/monthly rated, will

continue to get protection of piece rated wages. Such

piece rated workman who come to TR as per option given

by them will not get this benefits.”

On examination of the case of the workman with the

provisions of the aforesaid clause 5, it is found that the

transfer and conversion of the workman as time rated

workman from piece rated workder was the due to closure

of Nakoda Incline. The consent letter taken from the

workman to work as General Mazdoor category-I was

taken after such conversion. Hence, the putting of the

workman in time rated is held to be by way of managerial

decision. Therefore, the workman is entitled for protection

of his basic pay of piece rated loader. As is is held that the

workman is entitled for protection of his wages, the

recovery of Rs. 1,88,946 from his arrears of pay revision is

not legal and the action of party no. 1 in that respect cannot

be sustained. Hence, it is ordered:—

ORDER

The action of the management is relation to their

Ghugus open cast mines in in recovering the sum of

Rs. 1,88,946 from the arrears of pay of the workman,

Shri Sommaya Pappaya is illegal ad unjustified. The

workman is entitled for protection of his wages of piece

rated worker from the date of his conversion to time rated

worker and all consequential benefits. The workman is

also entitled for refund of Rs. 1,88,946. The party no. 1 is

directed to comply with the directions within 30 days of

the notification in the official gazette.

J. P. CHAND, Presiding Officer

ubZ fnYyh] 30 vDrwcj] 2013

dk-vk- 2385-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa] dsUnzh; ljdkj eSllZ ,u ch vkWiQ

ih th vkj 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 87@2005)

dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 30&10&2013 dks

izkIr gqvk Fkk A

¹la- ,y&42012@245@2004&vkbZ vkj (lh,e&II)]

ch- ,e- iVuk;d] MsLd vf/dkjh

New Delhi, the 30th October, 2013

S.O. 2385.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 87/ 2005)

of the Central Government Industrial Tribunal-cum-Labour

Court, Nagpur as shown in the Annexure, in the Industrial

Dispute between the management of National Bureau of

Plant Genetic Resources, and their workmen, received by

the Central Government on 30-10-2013.

[No. L-42012/245/2004-IR (CM-II)]

B. M. PATNAIK, Desk Officer

ANNEXURE

BEFORE SHRI J. P. CHAND, PRESIDING OFFICER,

CGIT-CUM-LABOUR COURT, NAGPUR

Case No.CGIT/NGP/87/2005 Date: 26-09-2013

Party No. l

:

The Director,

National Bureau of Plant Genetic

Resources, Indian Council of

Agriculture Research Pusa Camp,

New Delhi .

Party No.2

:

The Officer-in-Charge,

National Bureau of Plant Genetic

Resources, Regional Station, Behind

5 Godown, Shastri Road, Dr. PDKV

Campus, Akola. (MS).

AWARD

(Dated: 26th September, 2013)

In exercise of the powers conferred by clause (d) of

sub-section (1) and sub-section 2(A) of Section 10 of

Industrial Disputes Act, 1947 (14 of 1947) ("the Act" in

short), the Central Government has referred the.industrial

dispute between the employers, in relation to the

management of NBPGR and their workman, Smt. Deokabai,

W/o. Mahadeorao Thakare, for adjudication, as per letter

No. L-42012/245/2004-IR (CM-I1) dated 17-11-2005, with

the following schedule:—

"Whether the action of the management of National

Bureau of Plant Genetic Resources, New Delhi and

Office-in-Charge, Akola of terminating the services

of Smt. Deokabai W/o. Late Mahadeorao Thakare,

r/o. Somthana, PO: Old City, Akola, Teh & Dist. Akola

(MS) is legal and justified? If not, to what relief the

disputant workman is entitled?"

2. On receipt of the reference, the parties were noticed

to file their respective statement of claim and written

statement and accordingly, the workman, Smt. Deokabai,

('the workman" in short), filed the statement of claim and

the management of National Bureau of Plant Genetic

Resources, Akola, ("Party No. 1" in short) filed their written

statement.

¹Hkkx II—[k.M 3(ii)º

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6301

The case of the workman as projected in the

statement of claim is that in the year 1982, she was appointed

as an agricultural labourer by the party no.1 and she was

being paid Rs.1800 per month and initially, though she was

engagement as a labourer, subsequently, she was engaged

in multipurpose works at Gin Bank, Poli house and Rest

house etc. and so also in agriculture work of cleaning and

sowing and payment of wages was being made to her by

taking her LTI on revenue stamp of one rupee affixed on a

register maintained by the party no.1 and her entire service

record was unblemished and during her service tenure,

there was no memo or any complaint against her and she

was in continuous employment of party no.1 from 1982 to

June, 2003 and she had completed more than 240 days in a

year and therefore, as per the provisions of law, her status

had become that of a permanent workman/employee.

The further case of the workman is that party no.1 is

an industry and in 1978, party no.1 established its office at

Akola and started the work of research and commercial

activities by acquiring 52 acres of land from Dr. Punjabrao

Krishi Vidyapeth, Akola and started Gin Bank, Poli house

and Machhi Talab on various plots developed on the

agricultural lands taken from the Vidyapeth and party no.1

also constructed meeting hall, rest house and technical

office and for the purpose of carrying out its commercial

activities, it employed various persons on permanent basis

and at present, eleven permanent employees consisting of

peons, technical Assistants, driver, sweeper and labourers

are working with party no.1 and party no.1 earns huge

income from agriculture operations on the agricultural lands

and selling agricultural products in the market and for the

purpose of doing agricultural operation, the party no.1 took

his services alongwith other employees and the activities

of party no.1 are totally commercial and party no.1 uses to

earn profit from all these activities and therefore, the party

no.1 is an industry and she was a workman.

The further case of the workman is that the party

no.1 without following the provisions of law terminated

her services in the month of June, 2003 and neither any

notice was issued nor any enquiry was made before

termination of her services and she was drawing Rs. 2010

per month at that time and as her status was that of a

permanent employee, her termination from services by

party no.1 is totally illegal and bad in law and therefore is

liable to be quashed and set aside and in reference no.

CGIT / NGP /196/2000, which is quite similar to her case, it

has already been held by this Tribunal that party no.1 is an

industry and the termination of its employees was illegal

and the same was without following the due procedure of

law and her case is more or less similar in nature like that of

the employees involved in reference case no. 196/2000.

The workman has prayed to declare her oral

termination made by party no.1 in June, 2003 as illegal and

to direct party no.1 to reinstate her in service with

continuity, full back wages and all the consequential

benefits.

3. In the written statement, denying the pleadings

made in the statement of claim, party no.1 has pleaded inter

alia that it was established by the Indian Council of

Agricultural Research (ICAR) , Ministry of Agriculture,

Government of India, New Delhi in the year in 1976 and

being a nodal organization in India, it has national mandate

to plan, conduct, promote and coordinate all activities

concerning plant exploration, collection, safe conservation

and distribution of both indigenous and introduced genetic

variability in crop plants and their wild relatives and it not

only provides genetic resources to ongoing crop

improvement programmes to sustain continued advances

in agricultural productivity and stabilize production, but

also conserves them safely to meet needs of future

generations and it has no profit making motive, as none of

the plants or plant produce are subjected for any sale and

it has no trading activity and it is solely and primarily a

research institute and for doing the agricultural work in the

fields, casual labourers were engaged through contractors

and it is an institution engaged in carrying out fundamental

research in agriculture and therefore, not an industry as

defined u/s. 2 (j) of the Act and for that the claim of the

workman is liable to be dismissed.

The further case of party no. 1 is that for number of

years, the casual labourers recruited by the departments of

the Central Government were deprived of the benefits of

regularisation in service and the casual labourers were

agitating and were demanding wages at par with class-IV

employees of the Government, so the policy relating to

engagement of casual labourers in Central Government

offices was reviewed in the light of the Hon'ble Supreme

Court's judgment dated 17.01.1986 in the case of Surinder

Singh and Others Vs. Union of India and based on the

directions of the Hon 'ble Apex Court, different departments

of Government of India framed suitable scheme to absorb

the daily paid casual labourers and to implement those

schemes and Ministry of Personnel, Public Grievances and

Pensions, Department of Personnel and Training, New Delhi

issued guidelines to their Directorates and other officials

throughout India, vide office memorandum no. 49.14/2/86-

Estt . (C) dated 07-06-1988 for review of policy on recruitment

of casual workers and persons on daily wages and on the

basis of the above guidelines, the Government of India,

Department of Personnel and Training (DOPT), issued

office memorandum no. 57016/2/90-Estt. (C) dated

10-09-1993 and further review the policy and decided that

the existing guidelines contained in office memorandum

dated 07.06.1988 be continued to be followed and also

framed a scheme called "Casual Labourers (Grant of

Temporary Status and Regularisation) Scheme of

Government of India, 1993" and the same was brought into

force w.e.f. 01-09-1993 and in terms of the guidelines of

office memorandum dated 07-06-1988, casual labourers

could be legally engaged for work which is of casual/

seasonal nature and it has been following the above

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[PART II—SEC. 3(ii)]

mentioned scheme and based on those guidelines issued

directives to their institutes throughout India, for

regularisation of the daily paid casual labourers engaged

by them and in view of its aforesaid policy, it had directed

the departments/units to engage casual labour on contract

basis vide order dated 10/14-12-1999 and issued guidelines

for allotment of work of various operations to the

contractors and accordingly, the contract was allotted by

it to one Shri R.S. Ghodpage, Nagpur and a written

agreement was signed between it and the contractor on

13-01-2000, which was effective from 16-01-2000 to 15-01-2001

and in terms of the agreement, the contractor was deputing

his casual labourers for doing the agricultural work,

depending upon its availability and the contractor used to

raise a consolidated bill, depending upon the number of

casual labourers she had deputed and the said bill was

being paid to him by an account payee cheque by it and as

per the policy of the Government and the directions of the

controlling authority, the contract was extended for a further

period of one year from 01-04-2001 to 31-03-2002 and the

same was again extended for a further period.

It is specifically denied by party no. 1 that the

workman was appointed m 1982 and she was being paid

Rs. 1800 per month and she was engaged in multipurpose

works and she was in continuous service from 1982 till

June, 2003 and she had completed more than 240 days in a

year and had become a permanent workman as alleged. It is

pleaded by the party no. 1 that the workman was a daily

rated labourer and she was paid wages weekly and the

workman is not entitled to any relief and in view of the

judgment of the Hon'ble Apex Court as reported in (2006) 4

SCC at page 1 (Secretary, State of Karnataka and Others

Vs. Umadevi), the claim is not maintainable.

4. In support of his claim, the workman has examined

only herself as a witness. The evidence of the workman is

on affidavit. In her examination-in-chief, the workman has

reiterated the facts mentioned in the statement of claim.

However, in her cross-examination, the workman has stated

that wages was being paid to her on putting her LTI on the

acquaintance roll and wages were being paid to her for the

days she was engaged by party no. 1.

5. The party no. 1 has examined Mr. Abdul Nizar, the

Officer-In-Charge of its Regional Station, Akola as a witness,

besides placing reliance on documentary evidence, Exts.

M-II to M-LXVIII, the payment sheet-cum-attendance of

the workman.

In his examination-in-chief, this witness has also

reiterated the facts mentioned in the written statement. The

witness has stated that in 1982, the workman worked for 28

days and she worked for 119, 84, 175, 149, 156,160, 179, 157,

156, 156, 154, 154.5, 120, 143.5, 50, 130, 125 and 13 days in

the years 1983, 1984, 1985, 1986, 1987, 1988, 1989, 1990,

1991, 1992, 1993, 1994, 1995, 1996, 1997, 1998, 1999 and 2000

respectively and she was engaged as daily paid casual

labourer for doing agricultural work in the farm in the year

1982 and she had never worked for 240 days in any year

and she worked up to 15-01-2000 and she was paid wages

on weekly bills and she used to sign on revenue stamp and

he has filed wage bills from 01-07-1982 to 15-01-2000,

showing the wages paid to the workman and others. This

witness has proved the wage sheet as Exts. M-II to M-LXVIII.

This witness has also stated that the workman was paid

wages for the number of days she worked.

In his cross-examination, this witness has stated that

she has no personal knowledge about the engagement

and disengagement of the workman and the contents of

his affidavit are based on the documents available in the

office. This witness has also specifically stated that there

is no other document in the office regarding the

engagement and disengagement of the workman except

Exts. M-II to M-LXVIII. This witness has also stated in his

cross-examination that casual labourers were engaged as

per the requirements.

6. At the time of argument, it was submitted by the

learned advocate for the workman that the workman was

appointed as a agricultural labourer by party no. 1 in the

year 1982 and the workman though initially worked as an

agricultural labourer, subsequently, she was engaged by

party no. 1 to do multipurpose works including agricultural

operations and the workman worked continuously from

1982 to June 2003 and the workman had completed more

than 240 days of work every year and thus had acquired

the status of a permanent workman, but party no. 1 without

compliance of the mandatory provisions of law and without

giving any prior notice, illegally terminated her service in

June, 2003 and as such, the termination of the workman

from services is illegal and the party no. 1 did not produce

the entire documents relating the engagement of the

workman, which is clear from the cross-examination of the

witness examined on behalf of the party no. 1 and as such,

adverse inference is to be drawn against the party no. 1.

It was submitted by the learned advocate for the

workman that the party no. 1 is an industry, as it earns

huge income by raising different crops on the lands acquired

by it and by selling the crops in the market and the workman

is entitled for reinstatement in service with continuity and

full back wages.

7. Per contra, it was submitted by the learned advocate

for the party no. 1 that party no. 1 is not an industry as

defined under section 2(j) of the Act, as it is an institute

engaged in carrying out fundamental research in agriculture

and there is no profit making motive of the institute and

none of the plaints plant produce are subjected to sale.

It was further submitted by the learned advocate for

the party no. 1 that the workman was engaged as daily paid

casual labourer in the farm of party no. 1 in 1982 and the

workman worked up to 15-01-2000 and she was paid her

wages on weekly bills after putting LTI on revenue stamp

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6303

and she did not work for 240 days in any year and the

workman has not produced a single document or any other

evidence except her own evidence on affidavit to prove

that she had worked continuously from 1982 to June, 2003

and that she had completed 240 days of work every year,

though the initial burden was upon her to prove the same

and it is clear from the evidence of the witness examined by

party no. 1 and the documents, Exts. M-II to M-LXVIII that

the workman worked till 15.01.2000 and her engagement

was on daily wages basis, as and when required and she

did not complete 240 days work in any year and the

engagement of the workman was by the contractor as per

his requirement and services of the workman were not

terminated by party no. 1 and the workman is not entitled

to any relief.

In support of the submission, the learned advocate

for the party no. 1 placed reliance on the decisions reported

in (1997) 4 SCC-391 (Himanshu Kumar Vs. State of Bihar)

and AIR 1997 SC-1855 (Physical Research Laboratory Vs.

K.G. Sharma).

8. At the outset, I think it necessary to mention that

the terms of reference made by the Central Government is

quite vague, as the date from which, the services of the

workman were terminated by the management of party no.

1, which is quite essential for adjudication of the dispute,

has not been mentioned.

The workman though has mentioned in the statement

of claim that she was appointed as an agricultural labourer

in 1982 by party no. 1 and continued to work till June, 2003,

she has neither mentioned the date and month of her

appointment nor the date of her termination. She has not

mentioned anything as to whether her appointment was an

oral appointment or by issuance of any appointment order.

The workman has also not mentioned anything as to how

she was appointed, that is to say as to whether such

appointment was made after her appearance in any test or

interview conducted by party no. 1.

It is to be mentioned here that the workman has not

produced a single document in support of her claim that

she was appointed as an agricultural labourer in 1982 and

that she was engaged by party no. 1 in multipurpose works

including cultivation and that she worked continuously

with party no. 1 from 1982 to June, 2003 and she had

completed 240 days of work every year. The workman except

her own evidence on affidavit, has not adduced any other

evidence in support of her claim.

9. On the other hand, party no. 1 has claimed that the

workman was engaged as a daily wages casual labourer to

do the agricultural work in 1982 through contractor and her

engagement was as and when required by the contractor

and when work was available and the workman worked till

15.01.2000 and she had not completed 240 days of work in

any year. The evidence of the witness for the party no.1 in

this regard has not at all been challenged in the cross-

examination. The witness for the party no.1 has given the

number of days worked by the workman in each year

chronologically in his evidence on affidavit. Such statement

of the witness is corroborated by the documents Exts. M-II

to M-LXVIII. In the cross-examination of the witness of

party no.1, it has been brought out that except the

documents Exts. M-II to M-LXVIII, there is no other

document in the office of the party no.1 regarding the

engagement and disengagement of the workman. So, there

is no question of drawing of adverse inference against

party no.1 for non-production of documents as submitted

by the learned advocate for the workman.

On perusal of the evidence on record, it is found that

party no.1 has not been able to show that the engagement

of the workman was through the contractor. However, it is

clear from the evidence, both oral and documentary that

the engagement of the workman by party no.1 was on daily

wages casual basis for doing agricultural work as and when

required during the period from 1982 till 15.01.2000 and

there was no regular appointment of the workman as an

agricultural labourer in 1982 and she did not work

continuously from 1982 till June, 2003.

10. In view of the stands taken by the parties, the

first question requires to be considered is as to whether,

the party no.1 is an industry as defined under section 2 (j)

of the Act.

In this regard, I think it apropos to mention about the

judgment of the Hon'ble Seven Judges Bench of the

Hon'ble Apex Court reported in AIR 1978 SC 548 (Bangalore

Water Supply Vs. Sewerage Board). In the above judgment,

the Hon'ble Apex Court have held that:-

" S. 2(j)- "Industry"- Meaning and scope of what the

term includes and excludes - Tests and guidelines for such

inclusion and exclusion indicated- Charitable Institutions,

Clubs, Educational Institutions, Municipalities, Research

Institutes, Co-operative Societies, Establishment of Liberal

profession, if industry- Agencies and departments of

Governments engaged in any non-sovereign functions

when deemed to be industry indicated- Complex of services-

Some qualifying for exemptions and some not-Tests.

"Industry" as defined in the sub-section has wide

import.

Where there is (i) Systematic activity, (ii) Organized

by cooperation between employer and employee (the direct

and substantial element is chimerical) and (iii) for the

production and/or distribution of goods and services

calculated to satisfy human wants and wishes (not spiritual

or religious but inclusive of material things or services

geared to celestial bliss), prima facie, there is an industry in

the enterprise.

Absence of profit motive or gainful objective is

irrelevant, be the venture in the public, joint, private or

other sector.

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THE GAZETTE OF INDIA : NOVEMBER 23, 2013/AGRAHAYANA 2, 1935

[PART II—SEC. 3(ii)]

The true focus is functional and the decisive test is

the nature of the activity with special emphasis on the

employer employee relations."

Taking into consideration the pleadings of the parties

regarding the activities and functions performed by party

no. 1 and applying the principles enunciated by the Hon'ble

Apex Court in the judgment as mentioned above, it is found

that party no. 1 is an "industry" as defined under Section

2(j) of the Act.

11. In this case, the workman has taken the stand

that she worked continuously from the year 1982 till June,

2003 and she had completed 240 days of work in every

year. However, the party no. 1 has denied such claim and

has stated that the workman was engaged on daily wages

casual basis as and when required from 1982 till 15-02-2000

and she had never completed 240 days of work in any year.

In view of the stands taken by the parties, I think it apt to

mention about the principles enunciated by the Hon 'ble

Apex Court in this regard.

The Hon'ble Apex Court, in the decision reported in

AIR 1966 SC-75 (Employees, Digawadih Colliery Vs. Their

workmen) have held that:-

"Though Section 25- F speaks of continuous service

for not less than one year under the employer, if the

workman has actually worked for 240 days during a period

of 12 calendar months both the conditions are fulfilled.

The definition of "Continuous Service" need not be read

into Section 25-B. The fiction converts service of 240 days

in a period of twelve calendar months into continuous

service for one complete year. The amended Section 25-B

only consolidates the provisions of Section 25(B) and 2(eee)

in one place, adding some other matters. The purport of

the new provisions, however, is not different. In fact, the

amendment of Section 25-F of the principal Act by

substituting in clause (b) the words "for every completed

year of continuous service" has removed a discordance

between the unamended Section 25 B and the unamended

Cl. (b) of Section 25-F. No uninterrupted service is

necessary, if the total service is 240 days in a period of

twelve calendar months either before the several changes

or after these. The only change in the Act is that this service

must be during a period of twelve calendar months

preceding the date with reference to which calculation has

to be made. The last amendment has now removed a

vagueness which existed in the unamended Section 25-B".

In the decision reported in AIR 1981 SC-1253

(Mehanlal Vs. M/s. Bharat Electronics Ltd.), the Hon'ble

Apex Court have held that,

"Industrial Disputes Act (14 of 1947). Section 25-B

(1) and (2)- Continuous service-Scope of sub-sections (1)

and (2) is different, (words and phrases-Continuous

Service) Before a workman can complain of retrenchment

being not in consonance with Section 25-F, she has to

show that she has been in continuous service for not less

than one year under that employer, who has retrenched

him from service. Section 25-B as the dictionary clause for

the expression "continuous". Both in principle and are

precedent it must be held that Section 25-B (2) comprehends

a situation where a workman to not in employment for a

period of 12 calendar months, but has rendered for a period

of 240 days within the period of 12 calendar months

commencing and counting backwards from the relevant

date, i.e. the date of retrenchment. If she has, she would be

deemed to be in continuous service for a period of one

year for the purpose of section 25-B and chapter V-A".

The Hon'ble Apex Court in the decision reported in

AIR 2003 SC-38 (M/s. Essen Deinay Vs. Rajeev Kumar)

have held that:

"Industrial Disputes Act (14 of 1947)—S.25-F, 10-

Retrenchment 'compensation-Termination of services

without payment of -Dispute referred to Tribunal-Case of

workman/ claimant that she had worked for 240 days in a

year preceding his termination. Claim denied by

management-Onus lies upon claimant to show that she

had in fact worked for 240 days in a year. In absence of

proof of receipt of salary, the affidavit of the workman is

not sufficient evidence to prove that she had worked for

240 days in a year preceding his termination."

The Hon'ble Apex Court in the decision reported in

(2005) 5 SCC-l00 (Reserve Bank of India Vs. S.Mani) have

held that:-

"Industrial Disputes Act, 1947-Ss.25-F, 25-N,25-B and

II-240 days' continuous Service. Onus and burden of proof

with respect to—Evidence sufficient to discharge-Failure

of Employer to prove a defence (of abandonment of service)

if sufficient or amounted to an admission,discharging the

said burden of proof on the workman discharged, merely

because employer fails to prove a defence or an alternative

plea of abandonment of service. Filing of affidavit of

workman' to the effect that she had worked for 240 days

continuously or that the workman had repeated

representations or raised demands for reinstatement, is not

sufficient evidence that can discharge the said burden.

Other substantive evidence needs to be adduced to prove

240 days' continuous service. Instances of such evidence

given.

The initial burden of proof was on the workmen to

show that they had completed 240 days of service. The

Tribunal did not consider the question from that angle. It

held that the burden of proof was upon the appellant on

the premise that they have failed to prove their plea of

abandonment of service.

Filing of an affidavit is only his own statement in his

favour and that cannot be regarded as sufficient evidence

for any Court of Tribunal to come to the conclusion that a

workman had in fact, worked for 240 days in a year. Such

evidence might include proof of receipt of salary or wages

¹Hkkx II—[k.M 3(ii)º

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6305

for 240 days or order or record of appointment or

engagement for this period or the terms and conditions of

his offer of appointment, or by examination of any other

witness in support of his case.

So, it is clear from the principles enunciated by the

Hon 'ble Apex Court in the decisions mentioned above that

for applicability of Section 25-F of the Act, it is necessary

for the workman to prove that she worked for 240 days in

the preceding 12 calendar months commencing and

counting backwards from the relevant date and the burden

of such proof is upon the workman.

12. The present case in hand in now to be considered

with the touch stone the principles enunciated by the

Hon'ble Apex Court and it is to be found out if the workman

has been able to prove that she had in fact worked at least

for 240 days in a year preceding his termination.

As already mentioned above, the workman except

her own evidence on affidavit has not adduced any other

evidence. It is clear from the evidence on record, both oral

and documentary as already stated above that the

engagement of the workman by party no.1 was on daily

wages casual basis for doing agricultural work as and when

required during the period from 1982 to 15-01-2000 and

there was no regular appointment of the workman as an

agricultural labourer and she did not work continuously

from 1982 till June 2003. It is also found that the workman

has miserably failed to prove that she had completed 240

days of work in the preceding 12 months of the alleged

date of his termination or in any year. Hence, the provisions

of Section 25-F r/w Section 25-B of the Act are not applicable

to the case of the workman. So, the workman is not entitled

to any relief. Hence, it is ordered:-

ORDER

The action of the management of National Bureau of

Plant Genetic Resources, New Delhi and Office-in-Charge,

Akola of terminating the services of Smt. Deokabai, W/o.

Late Mahadeorao Thakare, r/o Somthana, Po: Old City,

Akola, Teh & Dist. Akola (MS) is legal and justified. The

workman is not entitled to any relief.

J.P. CHAND, Presiding Officer

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New Delhi, the 30th October, 2013

S.O. 2386.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 151/

2003) of the Central Government Industrial Tribunal-cum-

Labour Court, Nagpur as shown in the Annexure, in the

Industrial Dispute between the management of Dhoptala

Sub Area of WCL, and their workmen, received by the

Central Government on 30-10-2013.

[No. L-22012/228/2002-IR (CM-II)]

B. M. PATNAIK, Desk Officer

ANNEXURE

BEFORE SHRI J. P. CHAND, PRESIDING OFFICER,

CGIT-CUM-LABOUR COURT, NAGPUR

Case No. CGIT/NGP/151/2003 Date: 27-09-2013

Party No. 1

:

The Sub Area Manager,

Dhoptala Sub Area of WCL,

Post Sasti, Tah. Rajura, Distt.

Chandrapur (M.S.)

Party No. 2

:

Shri Sudarshan Dohe, General Secretary,

Koyla Shramik Sabha (HMS), B-139

Dhoptala Township Po: Sasti, Tah. Rajura

Distt. Chandrapur

AWARD

(Dated: 27th September, 2013)

In exercise of the powers conferred by clause (d) of

sub-section (1) and sub-section 2(A) of Section 10 of

Industrial Disputes Act, 1947 (14 of 1947) (“the Act” in

short), the Central Government has referred the industrial

dispute between the employers, in relation to the

management of WCL and their workman, Smt. Vijay Sampat

Mudmalla, for adjudication, as per letter No.L-22012/228/

2002-IR (CM-II) dated 11-07-2003, with the following

schedule:—

“Whether the action of the management of Sasti

U/G Mine Western Coalfields Ltd., for giving

employment to Smt. Vijay Sampat Mudmalla, Widow

of Late Sampat Mudmalla Rajam as a dependent of

Sampat Mudmalla Rajam, Badli Loader, Sasti U/G

Mine is legal and justified? If so, to what relief is the

concerned dependent entitled?”

2. On receipt of the reference, the parties were noticed

to file their respective statement of claim and written

statement and accordingly, the Union, Koyla Shramik Sabha

(HMS), (‘‘the union” in short), filed the statement of claim

on behalf of the petitioner, Smt. Vijay Sampat Mudmalla,

(‘‘petitioner” in short), and the management of WCL,(‘‘Party

No.1” in short) filed their written statement.

The case of the petitioner as presented by the union

in the statement of claim is that it (union) is a registered

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THE GAZETTE OF INDIA : NOVEMBER 23, 2013/AGRAHAYANA 2, 1935

[PART II—SEC. 3(ii)]

Trade union under the Trade Unions Act, 1926 and party

no. 1 is a government company and is a state within Article

12 of the Constitution of India and under the approval of

Ministry of Coal, Central Government constituted a Joint

Bipartite Committee for the Coal Industry (‘‘JBCCI” in

short) consisting of all employers of Coal Industry and the

five Central Trade unions and the JBCCI jointly deliberated

over the wage structure including dearness allowance,

fitment in revised scale of pay, Pension, fringe benefits,

service conditions and other allied matters including

welfares/safety measures and such deliberations is known

as ‘‘National Coad Wage Agreements” (‘‘the NCWAs” in

short) and the JBCCI has several committees and sub-

committees for proper and uniform implementation of the

provisions of NCWA in the entire Coal Industry and for

maintaining uniformity and proper implementation, the

Secretary, JBCCI issues implementation instructions from

time to time and no unilateral decision can be taken by any

subsidiary in contravention of the provisions contained

in the NCWAs and the provisions are mandatory and

binding on all coal companies including WCL and so far

seven NCWAs have been deliberated by JBCCI, known as

NCWAs-I, II, III, IV, V, VI, and VII dated 11-12-1974 , 11-08-

1979 , 27-07-1989, 19-01-1996, 23-12-2000 and 15-07-2005

with period of operation of the said NCWAs from

01-01-1975 to 31-12-1978, 01-01-1979 to 31-12-1982,

01-01-1983 to 31-12-1986, 01-01-1987 to 30-06-1991,

01-07-1991 to 30-06-1996, 01-07-1996 to 30-06-2001 and

01-02-2001 to 30-06-2006 respectively.

It is further pleaded by the union that the management

of Ballarpur Area were in urgent need of Regular Tub

Loader for a ugmentation of coal production for their

underground mines including mines under Dhoptala Sub-

Area and therefore, a requirment was sent to Employment

Exchange, Chandrapur for sponsoring the names of

candidates and the employment exchange sponsored the

names of eligible candidates including Late Sampat Rajam

Mudmalla, the deceased husband of the petitioner and the

party no. 1 issued letter of interview dated 15-03-1990

calling him to appear before the interview/selection

committee on 28-03-1990 at 10. A.M. and Late Sampat was

selection for the post of underground Tub Loader in group

VA of NCWA-IV and was issued with appointment letter

no. 232 dated 15-04-1990 and he was posted at Sasti

underground mine and he was designated as ‘‘Badli Tub

Loader”and he joined duty on 17-05-1990 as underground

piece rated loader in Sasti underground mine and he put

unblemished and loyal service and he worked continuously

from 17-05-1990 till 11-07-1997, the date of his death and

he also put in the requisite attendance as per coal mines

provident fund scheme and qualified for membership

and party no. 1 submitted the required form ‘A’ to the

office of the CMPF Commissioner, Nagpur and CMPF

alloted account no. NGP/32/1534 to late Sampat and the

petitioner is the dependent widow of Late Sampat and

after the death of Sampat, his family members informed

party no. 1 about his death and submitted the death

certificate dated 26-07-1997 and accordingly, the name of

Late Sampat Rajam Mudmalla was struck off from the

rolls of Sasti Colliery w.e.f. 11-07-1997 vide office order no.

2420 dated 3/5-09-1997 and a copy of the said order was

endorsed to the petitioner and the petitioner then

approached the party no. 1 to provide her employment as

a dependent, in terms of the provisions of NCWA by

submitting all the relevant and required documents and

after scrutiny, the case of the petitoner was submitted by

the management of Dhoptala sub area to Ballarpur area

and Ballarpur area sent the same to the headquarters vide

letter dated 11/12-11-1999 for approval of the employment

to the petitioner, but the competent authority rejected the

case of the petitioner and the same was informed by the

Personnel Manager (IR), Headquarters, Nagpur vide letter

dated 29/30-12-1999 to Area Personnel Manager, Ballarpur

Area who in his turn endorsed the same to the petitioner

and the said decision is arbitrary, illegal and beyond the

jurisdiction of the competent authority and therefore, the

petitioner approached personally to the party no. 1 time

and again, but the same could not bring any result and she

also made appeal to the Director (Personnel) WCL

explaining her case and pointing out that as her husband

had put in 190 days attendance in the year 1994 and 234

days in 1996, her husband should have been regularized

by the management and as there was no response to her

appeal, she approached the union.

It is further pleaded by the union that as per

implementation Instruction no. 18 dated 25-10-1979 of

JBCCI, management of WCL is required to provide job to

the dependents concerned within two months of receipt

of the applications from the claimants and in the event of

any difficulty, matter is required to be decided by the

implementation committee and as per the definition of

workman given in the certified standing order, a Badli/

Substitute employee is also a workman and the petitioner

was neither given employment nor she was provided with

any monetary compensation, as provided in the NCWA,

though she is entitled for the same.

The union has prayed to give employment to the

petitioner and to give monetary compensation as per

NCWA till employment is given to her.

3. The party no. 1 in the written statement has

pleaded inter-alia that Late Sampat Rajam was appointed

as a Badli worker and he had never completed 190 days or

240 days as envisaged under law to attain the status of a

regular workman and as such, the benefit sought by the

petitioner is not applicable and as the deceased workman

did not attain permanent status, the application of the

Standing Order or the provisions of NCWA-VI do not

apply to the deceased workman and as such, the reference

is liable to be dismissed. The party no. 1 in the written

statement has admitted that the deceased workman

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6307

expired on 11-07-1997 and the request of the legal heirs

was rejected on 30-12-1999.

The further case of the party no. 1 is that the reference

was made in 2003 and though it has been held by the

Hon’ble Apex Court and Hon’ble High Courts that law of

limitation is not applicable to the Act, however, inordinate

delay, is a proper ground for refusing the reference under

Section 10 of the Act and in view of the petitioner raising

the dispute after a very long period of time, she is not

entitled for the reliefs as prayed for and the reference is

liable to be dismissed.

6. At the time of argument, it was submitted by the

learned advocate for the petitioner that the union is a

registered union and the union is entitled to raise the

dispute on behalf of the petitioner, the dependent of Late

workman Sampat Rajam and the appointment of late Sampat

Rajam was made as a Badli Loader and he was eligible for

regularization after completion of 190 days of work in 12

calendar months and the deceased workman was kept

under forced idleness and the petitioner has claimed

employment on the basis of the provisions of the NCWA

and not on compassionate ground and there is no bar in

the NCWA or in the Certified Standing Order of WCL for

providing employment to the dependents of a Badli worker

and as such, the action of the party no. 1 in not providing

the petitioner employment on the ground that her husband

was a Badli worker is not sustainable and as such, the

petitioner is entitled for employment.

In support of such contentions, reliance has been

placed by the learned advocate for the petitioner on the

decisions reported in AIR 1968 SC-1416 (Gopal Krishna

Vs. Md. Hazi Latif), AIR 1986 SC-136 (H.D. Singh Vs.

Reserve Bank of India), AIR 1994-SC-853 (S.P. Chengar W.

Naidu Vs. Jagannath), 1990 (60) FLR-215 (Workmen Vs.

Presiding Officer and Others, (2000) I-LLJ-197 (MCPL, Emp.

Union Vs. Secy. Labour), 1993 (I) BLJ-52 (M/s. BCCL Vs.

Their Workmen), AIR 1986 SC-458 (Workmen of American

Express International Banking Corporation Vs.

Management of American Express International Banking

Corporation), 2004 I-CLR-872 (Panyanm Cement Employees

Union Vs. Commissioner of Labour Hyderabad), and 2007

(115) FLR-427 (Mohan Mahato Vs. M/s. Central Coalfields

Ltd.)

7. Per contra, it was submitted by the learned

advocate for party no.1 that the union has no locus standi to

raise the present dispute and deceased Sampat Rajam, the

husband of the present petitioner was employed as a

General Badli Loader at Sasti U/G mine and he expired on

11-07-1997 and the services of the late Sampat Rajam was

not regularized, as he did not complete 190 days of

attendance in any year and he remained as Badli worker

till his death and he was not given status of permanent

employee as per Standing Order of the Company and as

temporary, casual and Badli workers are not regular

employees of the coal mines, they are not entitled to get

the benefits of compassionate appointment as provided

under the NCWA, hence, the application filed by the

petitioner was rejected and the petitioner is not entitled to

any relief.

8. Keeping in mind the principles enunciated by the

Hon’ble Courts in the decisions cited by the parties, the

present case at hand is to be considered.

9. So far the first contention regarding the union

having no authority to raise the dispute on behalf of the

petitioner is concerned, it is found from the pleadings of

the parties that the union had raised the dispute before

the ALC on behalf of the petitioner and the Central

Government has referred the matter for adjudication. In

view of the provision of Section 36 (3) of the Act, it is held

that the union is competent to raise the dispute.

10. It is clear from the pleadings of the parties,

evidence on record and the submissions made by the

learned advocate for the parties that the claim of the

petitioner to give her employment was rejected by the

party no. 1 only on the ground that she being the

dependent of a Badli worker is not entitled for employment.

So, the only point for consideration is whether the

dependent of a Badli worker is entitled for employment as

per the provisions of NCWA.

12. The appointment of deceased Sampat Rajam

Mudmalla on 17-05-1990 as a Badli loader and that he

worked till 11-07-1997, the date of his death has not been

disputed by the parties. NCWA-V was in force when the

petitioner submitted her application for giving her

employment. It is also not disputed that there was

provisions in NCWA-IV, V & VI for giving employment to

one of the dependents of a worker, who dies while in service.

As on the date of death of Shankar, NCWA-V was in force,

it is necessary to consider as to whether the petitioner is

entitled for employment as provided in NCWA-V.

At this juncture, I think it necessary to mention the

relevant portions of clause 9.5 of NCWA V, which is in

respect of giving employment/Monetary compensation to

female dependent of workmen, who dies while in service

and who are declared medically unfit as per clause 9.4.0

above would be regulated as under :

(i) In case of death due to mine accident, the female

dependent would have the option to either accept the

monetary compensation of Rs. 3000 per month or

employment irrespective of her age.

(ii) In case of death/total permanent disablement

due to causes other than mine accident and medical

unfitness under clause 9.4.0 if the female dependent is

below the age of 45 years, she will have the option either

to accept the monetary compensation of Rs. 3000 per

month or employment.

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THE GAZETTE OF INDIA : NOVEMBER 23, 2013/AGRAHAYANA 2, 1935

[PART II—SEC. 3(ii)]

In case the female dependent is above 45 years of

age, she will be entitled only to monetary compensation

and not to employment.

It is clear from the above clause that a female

dependent of a workman is entitled to employment or

monetary compensation if the workman dies while in

service. The specific word mentioned in the said clause is

‘‘workman” and nothing else. It does not specify the

category of workman. It also does not say that dependants

of Badli workman are not entitled for the benefit of the

same. It also does not provide that dependents of Badli

worker, who had not done 190/240 days of work in any

calendar year, are not entitled to get the benefit of the

provisions.

Now, it is to be considered as to whether a Badli

worker is a workman or not NCWA V does not have any

such definition. It is clear from the appointment letter issued

by party no. 1 regarding the appointment of Late Sampat

Rajam Mudmulla that the privisions of certified standing

order of the WCL were applicable to deceased Sampat

Rajam. The certified standing order provide the definition

of ‘‘Workman”. In section 1 of the said standing order

(Commencement and Application), it is mentioned that it

shall apply to all workman employed in all units of M/s.

Western Coalfields Limited situated in different place in

the countary which come within the definition of Industrial

Employment (Standing Orders) Act, 1946 and include all

workman governed by the National Coal Wage Agreement,

Section 3.1 of the said Standing Order provides the

classification of workman for the purpose of the Standing

Order. The same reads as follows:

(a)

Apprentice

(b)

Badli or Substitute

(c)

Casual

(d)

Permanent

(e)

Probationer

(f)

Temporary

The above classification shows that Badli or

Substitute employee is also a workman.

The party no. 1 has not been able to show that the

provisions of the Standing Order or NCWAs are not

applicable to Badli worker.

Whent there is no bar either in the NCWA or in the

Certified Standing Order to give the benefit of clause 9.5.0

of the NCWA VI to dependents of Badli workman(whether

he had done 194/240 days of work in any calendar year or

not), the decision of the party no. 1 that the petitioner is

not entitled for employment is not justified. Hence, it is

order :

ORDER

The action of the management of Sasti U/G Mine

Western Coalfields Ltd. for giving employment to

Smt. Vijay Sampat Mudmalla, Widow of Late Sampat

Mudmalla Rajam as a dependent of Sampat Mudmalla

Rajam, Badli Loader, Sasti U/G Mine is illegal and unjustified.

The petitioner Vijay Madmulla is entitled for employment

in accordance with the privisions of the NCWAs in force at

present. The party no. 1 Sub Area Manager, Dhoptala Sub

Area Opencast of WCL is directed to give employment to

the petitioner in accordance with the provisions of NCWAs

and other rules as applicable within a month of the

publication of the award. The petitioner is not entitled to

get any monetary benefit from two months after

submission of her application for employment till the actual

date of her employment, as claimed in the statement of

claim.

J. P. CHAND, Presiding Officer

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New Delhi, the 30th October, 2013

S.O. 2387.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 33/ 2004)

of the Central Government Industrial Tribunal-cum-Labour

Court, Nagpur as shown in the Annexure, in the Industrial

Dispute between the management of New Majri Open

Cast-II(A), Sub Area of W.C.L. and their workmen, received

by the Central Government on 30-10-2013.

[No. L-22012/115/2003-IR (CM-II)]

B. M. PATNAIK, Desk Officer

ANNEXURE

BEFORE SHRI J. P. CHAND, PRESIDING OFFICER,

CGIT-CUM-LABOUR COURT, NAGPUR

Case No. CGIT/NGP/33/2004 Date: 23-09-2013

Party No. 1

:

The Sub Area Manager,

New Majri Open Caste-II(A) Sub area of

WCL, PO: Shivajinagar,

Distt. Chandrapur

Versus

Party No. 2

:

Shri D.M.Dongarwar, Secretarty,

Bhartiya Koyla Khadan Mazdoor Sangh

(BMS), Subhash ward, Ganeshnagar,

Near Sai Mandir, Warora, PO & Tah.

Warora, Distt. Chandrapur (MS).

¹Hkkx II—[k.M 3(ii)º

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6309

AWARD

(Dated: 23rd September, 2013)

In exercise of the powers conferred by clause (d) of

sub-section (1) and sub-section 2(A) of Section 10 of

Industrial Disputes Act, 1947 (14 of 1947) (“the Act” in

short), the Central Government has referred the industrial

dispute between the employers, in relation to the

management of WCL and their workman, Shri Uday Kumar

Chourasiya for adjudication, as per letter No. L-22012/115/

2003-IR (CM-II) dated 23-02-2004, with the following

schedule;—

“Whether the action of the management in relation

to New Majri Open Cast, Sub Area of Western

Coalfield Ltd., in denying promotion to Shri Uday

Kumar Chaurasiya, Excavation Foreman-Gr. B as

Foreman Incharge Gr. ‘A’ and Shri T.K. Bannerji, EP

Electrician as Excavation Foreman Gr. ‘B’ on the

ground that the workman concerned did not

possess Technical Supervisory Certificate is legal

and justified? If not, to what relief they are entitled?”

2. On receipt of the reference, the parties were noticed

to file their respective statement of claim and written

statement and accordingly, the Union, ‘‘Bhartiya Koyala

Khadan Mazdoor Sangh (BMS),” (‘‘the union” in short)

filed the statement of claim on behalf of the workmen,

Shri Uday Kumar Chaurasiya and Shri T.K. Banerji, (‘‘the

workmen” in short) and the management of WCL, (‘‘Party

No.1” in short) filed their written statement.

The case of the two workmen, namely, Shri Uday

Kumar Chaurasiya and Shri T.K. Banerji as presented by

the union in the statement of claim is that it (union) is a

registered Trade union under the Trade Unions Act, 1926

and party no. 1 is a government company and is a state

within the provisions of Article 12 of the Constitution of

India and under the approval of Ministry of Coal, Central

Government constituted Joint Bipartite Committee for the

Coal Industry (‘‘JBCCI” in short) consisting of all employers

of Coal Industry and the five central Trade unions and the

JBCCI jointly deliberated over the wage structure including

dearness allowance, fitment in revised scale of pay, Pension,

fringe benefits, service conditions and other allied matters

including welfares/safety measures and such deliberations

is known as ‘‘National Coal Wage Agreements” (‘‘the

NCWA” in short) and the JBCCI has several committees

and sub-committees for proper and uniform implemention

of the provisions of NCWA in the entire Coal Industry and

for maintaining uniformity and proper implementation, the

Secretary, JBCCI issues implementation instructions from

time to time and no unilateral decision can be taken by any

subsidiary in contradication of the provisions contained

in the NCWAs.

The further case as projected by the union in the

statement of claim is that workman, Uday Kumar Chourasiya

had obtained ITI Certificate in wireman trade in the year

1971 from Industrial Training Institute, Katihar, Bihar and

he was appointed as ‘‘Auto Electrician” in Cat ‘D’ vide

letter dated 7/8-03-1976 of the General Manager, Wardha

Valley, Chandrapur and was posted at New Majri Open

Cast Project and he joined on 23-03-1976 and since then,

he has been putting continuous, sincere, honest and loyal

service to the company and vide letter no. 63 dated 08-06-

1983 of the Suptd. /Manager Open Cast Mine, Majri, he

was promoted as ‘‘E.P. Electrician in grade-II/Group ‘C’

from Auto Electrician” and his designation was changed

by managment as ‘‘E.P. Electrician” from ‘‘Auto Electrician”,

but in really, he was working as Auto Electrician on dozers,

dumpers, drills, crans etc. under 24 Volts and two other

similarly situated electricians were promoted as‘‘E.P.

Electrician” grade-B, although they were working as Auto

Electrician on heavy machines and as per office order no.

4599 dated 29-09-1987 of the Sub-Area Manager, New Majri

Area, he was re-designated as Auto Electrician alongwith

Grurudayal Singh and Md. Jalil and vide letter no. 1167

dated 25-02-1988/05-03-1988 of the said sub-area Manager,

his designation as Auto Electrician was confirmed and as

there was acute shortage and requirement of Mechanical

Foreman in Majri Area, the Personnel Manager vide letter

no. 347 dated 23-01-1994, directed him, Gurudayal Singh

and Md. Jalil to appear before DPC on 25-01-1994 for the

post of Foreman and after scrutiny of certificates, interview

and trade test, he was promoted as Foreman (Excavation)

in T & S grade-B vide office order no. 4045 dated 14/25-08-

1994 and he joined in the post on 27-08-1994 and he was

directed by the Superintending Engineer to work in dumper

maintenance section in rotation shift i.e. purely mechanical

work and vide order dated 9-03-1996 of the Manager, New

Majri open cast mine, he was appointed as Foreman Dumper

and he was entrusted with the job of supervision of

dumpers.

The further case of the union is that the workman

vide his letter dated 17-10-2000, he made representation to

the Chief General Manager, Majri for his promotion as a

Foreman In-charge in Technical and Supervisory Grade-A,

pointing out the case of Md. Jalil, his coworker and similarly

situated case, who was transferred to Wani North Area

and was promoted as Foreman-In-Charge in T&S grade-A

vide order no. 2 dated 31-08-1998/01-09-1998 of Dy. Chief

Manager, Wani North Area, without asking for any further

technical certificate while giving him promotion and Md.

Jalil did not possess electrical supervisoryship certificate

and such certificate was not necessary for his promotion

to the post of Foreman T&S grade-A, in view of his earlier

promotion by the management in the post of Foreman T&S

grade-B and the nature of the work performed by him and

in reply to his representation dated 17-10-2000, the

personnel manager, new Majri open cast mine intimated

him vide letter no. 2200 dated 21/22-10-2000 that for

promotion to the post of Electrical Foreman-in-charge,

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THE GAZETTE OF INDIA : NOVEMBER 23, 2013/AGRAHAYANA 2, 1935

[PART II—SEC. 3(ii)]

Electrical Supervisory certificate valid for mines is required,

without considering his actual deployment in dumper

section from time to time, the case of Md. Jalil and without

taking the approval of the competent authority and when

the workman clarified the matter that due to his working in

dumper, maintenance section, the electrical supervisory

certificate is not required for promotion to grade-A, party

no. 1 remained silent and though repeatedly the workman

made representations, party no. 1 did not pay any head to

the same and there has been practice, precedent and

system to give promotion to T&S grade-A from Foreman

(Excavation) T&S Grade-B, without having electrical

supervisory certificate and Shri Mohendra Singh, Shri

Madhukar Karaskar and Shri Gurucharan Singh have been

given such promotion and by virtue of the nature of work

performed by him in dumper maintenance section and his

promotion to T&S grade-B, his having no electrical

supervisor ship certificate cannot be a bar for his promotion

to T&S grade-A and he is entitled to get promotion to T&S

grade-A in accordance with the cadre scheme as circulated

vide implementation instructions no. 50, after his completing

of four years experience as Foreman (Mechanical) i.e. on

and from 27-08-1998.

It is further pleaded by the union that workman, Shri

T. K. Banarjee has already been promoted to Technical and

Supervisory grade-B w.e.f. 01-09-2006, so the case of

workman Shri T.K. Banarjee be treated as closed.

The union has prayed for a declaration that the

workman, Shri Uday Kumar Chaurasia is entitled for

promotion to T&S grade-A w.e.f. 27-04-1998 with

consequential benefits.

3. The party no.1 in the written statement has pleaded

inter-alia that the reference is vague as in the same, it has

not been mentioned as to from which date the promotion

was claimed and therefore, the reference is not maintainable

and the dispute is highly belated and on that ground also,

the reference is not maintainable.

It is further pleaded by party no. 1 that as per cadre

scheme formulated under the NCWA, Promotional channels

have been prescribed for all cadres including the cadre

scheme for excavation personnel and promotion to the

employees is given following the procedure laid down

under the cadre scheme and the designation, scale of pay,

minimum qualification (educational/techanical), eligibility

of promotion and mode of promotion/ selection etc are

given in the cadre scheme and promotion is given based

on the recommendation of the departmental promotion

committee ("DPC" in short), availability of sanctioned post

and administrative requirement and for promotion to the

post of Foreman In-charge Electrician, the employee must

possess the electrical supervisory certificate as per

implementation instruction no. 32 dated 15-07-1992 and

implementation instruction nos. 39 dated 10-08-1982 and

67 dated 03-09-1986 are also relevant in this regard and the

issue of carrier growth of senior mechanic excavation

category-A and senior EP Electrician Excv. Cat.-A to the

post of Foreman (Excv./Mech.) in T&S grade-B and

Foreman (Excv./Elect.) in T&S Gr.B respectively was raised

in the company level IR meeting and subsequently, the

matter was placed before the competent authority and it

was decided that the promotion to the post of Foreman

(Excv./Mech.) in T&S Grade-B and Foreman (Excv./Elect.)

in T&S grade-B would be regulated as per earlier scheme

as one time decision for carrier growth of all such senior

mechanics Excv. Cat.-A and Sr. EP Electrician Excv. Cat.-A

against the sanctioned vacant posts in Manpower Budget

for 2005-2006 and was applicable to such employees who

were eligible for promotion as per afore referred scheme

and the said one time carrier growth opportunity to

excavation personnel was circulated vide circular no. 1436

dated 21-07-2005 and the workman Uday Kumar Chaurasia

was holding wire man certificate from ITI and he was

appointed as Electrician category-D in 1978 and was

promoted to the post of EP Electrician vide order dated

08-06-1983 and he accepted the said promotion and resumed

his duties without any objection and he was again

promoted to the post of Foreman (Excv.) in T&S grade-B in

the year 1994 and promotion to the post of Foreman in

T&S Grade-A was given to those persons, who were

possessing the statutory certificate i.e. Electrical

Supervisory Certificate issue by DGMS and without there

being the said certificate, promotion to the post of Foreman

Incharge (electrical) cannot be given and as the workman,

Shri Chaurasia did not possess the said certificate, he was

not entitled to the aforesaid post and the workman is

claiming promotion to the post of Foreman (T&S) grade-A,

only on the ground that other few employees had been

promoted and the workman cannot compare his case with

others and it is to be seen as to whether the workman is

entitled to get the promotion as per cadre scheme applicable

to him and if the workman is not eligible to claim promotion

to the said post, the same cannot be granted to him only on

the ground that same others had been given promotion

and the workman, Shri Chaurasia is not entitled for

consideration for promotion to the post of Foreman Incharge

(T&S) grade-A and as the workman, Shri T.K. Banerjee has

already been promoted to the post of (Excv./Elect.) (T&S)

Grade- B, his claim has no merit.

It is further pleaded by party no.1 that the workman,

Shri Chaurasia is to see that whether he is eligible for

promotion to the post he has claimed, in accordance with

law and if someone has availed illegal benefits, the

management cannot be forced to commit such mistake

repeatedly by granting such illegal benefits to other

employees and the employees namely, Gurudayal Singh

and Md. Jalil were not similarly situated and therefore, the

workman cannot compare his case with those two

employees and the workman is not entitled to ask for

advantage out of any bonafide mistake committed by it

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6311

and Shri Mahendra Singh, Shri Madhukar Karaskar and

Shri Gurucharan Singh were given promotion strictly to

the cadre scheme and the workman is not entitled to any

relief.

4. Both the parties did not lead any oral evidence

and relied on documentary evidence only.

5. At the time of argument, the learned advocate for

the workman reiterated the grounds mentioned in the

statement of claim and submitted that the workman is

entitled for promotion to Grade-A in terms of NCWA w.e.f.

27-07-1998 with consequential benefits.

6. Per contra, it was submitted by the learned advocate

for the party no.1 that promotion is a management function

and as such, there is no scope for the Tribunal to consider

the merits of various employees and to decide whom to

promote and whom not to promote and there was delay in

raising the dispute and as such, the reference is not

maintainable. It was further submitted by the learned

advocate for the party no.1 that for promotion to the post

of Foreman Incharge (T&S) grade-A, electrical supervisory

certificate valid for mines is required and the workman

doesn't possess such a certificate and therefore, he cannot

be consider, for promotion to Grade-A and the workman

cannot be promoted by taking into consideration of the

promotion given to some other employees by party no.1

and the workman is not entitled to any relief.

In support of the contention the learned advocate

for the party no.1 placed reliance on the decisions reported

in AIR 1966 SC-668 (Management of Brooke Bond India

Ltd, Vs. Their workmen) and (2001) 1SCC-240 (A.J.

Fernandis Vs. Divisional Manager, South Central Railways).

7. The appointment of the workman and his promotion

upto Foreman in (T&S) grade-B has not been disputed by

the party no.1. Party no.1 has also not disputed about the

workman submitting representation for his promotion as

Foreman Incharge in (T&S) grade-A and refusal of party

no.1 for such promotion, on the ground of the workman

having no electrical supervisorship certificate valid for

mines. The main claim of the workman is that some other

employees, namely, Shri Md. Jalil, Shri Mahendra Singh,

Shri Madhukar Karaskar and Shri Gurucharan Singh were

promoted to (T&S) Grade-A from Grade-B without having

any electrical supervisory certificate and since he was

promoted to Grade-B and worked in the dumper maintenance

section, there was no requirement of the said certificate.

8. On perusal of implementation instruction no.32, it

is found that for promotion to Foreman Incharge Grade-A,

the required qualification is matric and electrical

supervisorship certificate valid for mines. Admittedly, the

workman doesn't have the electrical supervisory certificate.

The workman has claimed that four employees named

above were promoted without having such certificate from

grade-B to grade-A. The order of promotion of the said

four employees has been placed on record. However, no

document has been produced by the workman to show

that they did not have the required supervisory certificate

or that those four employees were promoted by giving

them exemption of holding the supervisory certificate.

It is well settled that a workman cannot base his

claim and cannot ask for relief basing on an illegal order,

does not create any right in favour of others. As the

workman doesn't have the required qualification (technical)

for promotion to (T&S) grade-A, he is not entitled for the

reliefs claimed by him.

As prayer has been made to close the case of the

workman, Shri T.K. Banerjee, due to the promotion already

given to him, a "no dispute" award is to be passed against

him. Hence, it is ordered:

ORDER

The reference is answered in negative and against

the workman Shri Uday Kumar Chaurasia. The workman

Shri Uday Kumar Chaurasia is not entitled to any relief. A

"No dispute" award is passed in respect of the workman

Shri T.K. Banerjee.

J.P. CHAND, Presiding Officer

ubZ fnYyh] 30 vDrwcj] 2013

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New Delhi, the 30th October, 2013

S.O. 2388.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 88/ 2005)

of the Central Government Industrial Tribunal-cum-Labour

Court, Nagpur as shown in the Annexure, in the Industrial

Dispute between the management of National Bureau of

Plant Genetic Resources, and their workmen, received by

the Central Government on 30-10-2013.

[No. L-42012/247/2004-IR (CM-II)]

B. M. PATNAIK, Desk Officer

ANNEXURE

BEFORE SHRI J. P. CHAND, PRESIDING OFFICER,

CGIT-CUM-LABOUR COURT, NAGPUR

Case No. CGIT/NGP/88/2005 Date: 26-09-2013

Party No. 1

:

The Director,

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THE GAZETTE OF INDIA : NOVEMBER 23, 2013/AGRAHAYANA 2, 1935

[PART II—SEC. 3(ii)]

National Bureau of Plant Genetic

Resources, Indian Council of

Agriculture Research Pusa Camp,

New Delhi.

:

The Officer-in-Charge,

National Bureau of Plant Genetic

Resources, Regional Station, Behind

5 Godown, Shastri Road, Dr. PDKV

Campus, Akola. (MS).

Party No. 2

:

Shri Vasanta S/o Sukhadeo Nimkale,

R/o Somthana, PO: Old City Akola,

Akola. (MS).

AWARD

(Dated: 26th September, 2013)

In exercise of the powers conferred by clause (d) of

sub-section (1) and sub-section 2(A) of section 10 of

Industrial Disputes Act, 1947 (14 of 1947) (“the Act” in

short), the Central Government has referred the industrial

dispute between the employers, in relation to the

management of NBPGR and their workman, Shri Vasanta,

for adjudication, as per letter No.L-42012/247/2004-IR (CM-

II) dated 17-11-2005, with the following schedule:—

“Whether the action of the management of National

Bureau of Plant Genetic Resources, New Delhi and Office-

in-Charge, Akola of terminating the services of Shri Vasanta

S/o, Sukhadeo Nimkale, R/o. Somthana, PO: Old City Akola,

Teh & Dist. Akola (MS) is legal and justified? If not, to

what relief 'the disputant workman is entitled?”

2. On receipt of the reference, the parties were noticed

to file their respective statement of claim and written

statement and accordingly, the workman, Shri Vasanta, (“the

workman” in short), filed the statement of claim and the

management of National Bureau of Plant Genetic Resources,

Akola, ("Party No. 1" in short) filed their written statement.

The case of the workman as projected in the

statement of claim is that in the year 1982, he was appointed

as a chowkidar-cum-peon-Labourer by party no.1 and he

was being paid Rs. 1800 per month and his name was

sponsored by the employment exchange and initially,

though he was engaged as a labourer, subsequently, he

was engaged in multipurpose works, such as chowkidari at

Gin Bank, Poli house and Rest house etc and so also in

agriculture work of cleaning and sowing and payment of

wages was being made to him by taking his signature on

revenue stamp of one rupee affixed on a register maintained

by party no.1 and his entire service record was unblemished

and there was no memo or any complaint against him and

he was in continuous employment of party no.1 from 1984

to June, 2003 and he had completed more than 240 days in

a year and therefore, as per the provisions of law, his status

had become that of a permanent workman/employee.

The further case of the workman is that party no.1 is

an industry and in 1978, party no.1 established its office at

Akola and started the work of research and commercial

activities by acquiring 52 acres of land from Dr. Punjabrao

krishi Vidyapeth, Akola and started Gin Bank, Pali house

and Machhi Talab on various plots developed on the

agricultural lands taken from the Vidyapeth and party no. 1

also constructed meeting hall, rest house and technical

office and for the purpose of carrying out its commercial

activities, it employed various persons on permanent basis

and at present, eleven permanent employees consisting of

peons, technical Assistants, driver, sweeper and labourers

are working with party no.1 and party no. 1 earns huge

income from agriculture operations on the agricultural lands

and selling agricultural products in the market and for the

purpose of doing agricultural operation, the party no.1 took

his services alongwith other employees and the activities

of party no. 1 are totally commercial and party no. 1 uses to

earn profit from all these activities and therefore, the party

no.1 is an industry and he was a workman.

The further case of the workman is that the party

no.1 without following the provisions of law terminated

his services in the month of June, 2003 and neither any

notice was issued nor any enquiry was made before

termination of his services and he was drawing Rs. 2010

per month at that time and as his status was that of a

permanent employee, his termination from services by party

no.1 is totally illegal and bad in law and therefore is liable

to be quashed and set aside and in reference no. CGIT /

NGP /196/2000, which is quite similar to his case, it has

already been held by this Tribunal that party no.1 is an

industry and the termination of its employees was illegal

and the same was without following the due procedure of

law and his case is more or less similar in nature like that of

the employees involved in reference case no. 196/2000.

The workman has prayed to declare his oral

termination made by party no.1 in June, 2003 as illegal and

to direct party no.1 to reinstate him in service with

continuity, full back wages and all the consequential

benefits.

3. In the written statement, denying the pleadings

made in the statement of claim, party no.1 has pleaded

inter-alia that it was established by the Indian Council of

Agricultural Research (I CAR), Ministry of Agriculture,

Government of India, New Delhi in the year in 1976 and

being a nodal organization in India, it has national mandate

to plan, conduct, promote and coordinate all activities

concerning plant exploration, collection, safe conservation

and distribution of both indigenous and introduced genetic

variability in crop plants and their wild relatives and it not

only provides genetic resources to ongoing crop

improvement programmes to sustain continued advances

in agricultural productivity and stabilize production, but

also conserves them safely to meet needs of future

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % uoEcj 23] 2013@vxzgk;.k 2] 1935

6313

generations and it has no profit making motive, as none of

the plants or plant produce are subjected for any sale and

it has no trading activity and it is solely and primarily a

research institute and for doing the agricultural work in the

fields, casual labourers were engaged through contractors

and it is an institution engaged in carrying out fundamental

research in agriculture and therefore, not an industry as

defined u/s. 2 (j) of the Act and for that the claim of the

workman is liable to be dismissed.

The further case of party no.1 is that for number of

years, the casual labourers recruited by the departments of

the Central Government were deprived of the benefits of

regularisation in service and the casual labourers were

agitating arid were demanding wages at par with class-IV

employees of the Government, so the policy relating to

engagement of casual labourers in Central Government

offices was reviewed in the light of the Hon'ble Supreme

Court’s judgment dated 17-01-1986 in the case of Surinder

Singh and others Vs. Union of India and based, on the

directions of the Hon ’ble Apex Court, different departments

of Government of India framed suitable scheme to absorb

the daily paid casual labourers and to implement those

schemes and Ministry of Personnel, Public Grievances and

Pensions, Department of Personnel and Training, New Delhi

issued guidelines to their Directorates and other officials

throughout India, vide office memorandum no. 49. 14/2/86-

Estt (C) dated 07-06-1988 for review of policy on recruitment

of casual workers and persons on daily wages and on the

basis of the above guidelines, the Government of India,

Department of Personnel and Training (DOPT), issued office

memorandum no. 57016/2/90-Estt.(C) dated 10-09-1993 and

further review the policy and decided that the existing

guidelines contained in office memorandum dated 07-06-

1988 be continued to be followed and also framed a scheme

called “casual Labourers (Grant of Temporary Status and

Regularisation) Scheme of Government of India, 1993” and

the same was brought into force w.e.f. 01-09-1993 and in

terms of the guidelines of office memorandum dated 07-06-

1988, casual labourers could be legally engaged for work

which is of casual/ seasonal nature and it has been following

the above mentioned scheme and based on those

guidelines issued directives to their institutes throughout

India, for regularisation of the daily paid casual labourers

engaged by them and in view of its aforesaid policy, it had

directed the departments/units to engage casual labour on

contract basis vide order dated 10/ 14-12-1999 and issued

guidelines for allotment of work of various operations to

the contractors and accordingly, the contract was allotted

by it to one Shri R.S. Ghodpage, Nagpur and a written

agreement was signed between it and the contractor on

13-01-2000, which was effective from 16-01-2000 to 15-01-2001

and in terms of the agreement, the contractor was deputing

his casual labourers for doing the agricultural work,

depending upon its availability and the contractor used to

raise a consolidated bill, depending upon the number of

casual labourers he had deputed and the said bill was being

paid to him by an account payee cheque by it and as per

the policy of the Government and the directions of the

controlling authority, the contract was extended for a further

period of one year from 01-04-2001 to 31-03-2002 and the

same was again extended for a further period.

It is specifically denied by party no.1 that the

workman was appointed in 1982 and he was being paid

Rs . 1800/- per month and he was engaged in multipurpose

works and he was in continuous service from 1982 till June,

2003 and he had completed more than 240 days in a year

and had become a permanent workman as alleged. It is

pleaded by the party no.1 that the workman was engaged

as a daily paid casual labourer for doing agricultural work

in the year 1982 in the farm and he did not work for 240

days in any year and he was paid wages weekly and the

workman is not entitled to any relief and in view of the

judgment of the Hon'ble Apex Court as reported in (2006) 4

SCC at page 1 (Secretary, State of Karnataka and Others

Vs. Umadevi), the claim is not maintainable.

4. In support of his claim, the workman has examined

only himself as a witness. The evidence of the workman is

on affidavit. In his examination-in-chief, the workman has

reiterated the facts mentioned in the statement of claim.

However, in his cross-examination, the workman has stated

that wages was being paid to him on signing the

acquaintance roll and wages were being paid to him for the

days he was engaged by party no. 1.

5. The party no.1 has examined Mr. Abdul Nizar, the

officer-In-Charge of its Regional Station, Akola as a witness,

besides placing reliance on documentary evidence, Exts.

M-II to M-LVIII, the payment sheet-cum-attendance of the

workman.

In his examination-in-chief, this 'witness has also

reiterated the facts mentioned in the written statement. He

has further stated that the workman was engaged as daily

paid casual labour for doing agricultural work in the year

1982 and he worked up to 15-1-2000 and he was paid wages

on weekly bills and he used to sign on revenue stamp and

he has filed wage bills from 1-7-1984 to 15-1-2000, showing

the wages paid to the workman and others. This witness

has proved the wage sheet as Exts. M-II to M-LVIII. This

witness has also stated that the workman was paid wages

for the number of days he worked and wages was paid to

him for 78, 132, 86, 12, 66, 78, 139.5, 157, 154, 130, 65 and 13

days in the year 1982, 1983, 1984, 1986, 1992, 1994, 1995,

1996, 1997, 1998, 1999 and 2000 respectively and the

workman has not worked for 240 days in any year and he

worked only for the number of days as mentioned above,

when work was available in the season.

In his cross-examination, this witness has stated that

he has no personal knowledge about the engagement and

disengagement of the workman and the contents of his

affidavit are based on the documents available in the office.

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THE GAZETTE OF INDIA : NOVEMBER 23, 2013/AGRAHAYANA 2, 1935

[PART II—SEC. 3(ii)]

This witness has also specifically stated that there is no

other document in the office regarding the engagement

and disengagement of the workman except Exts. M-II to

M-LVIII. This witness has also stated in his cross-

examination that casual labourers were engaged as per the

requirements.

6. At the time of argument, it was submitted by the

learned advocate for the workman that the workman was

appointed as a chowkidar-cum-peon-Labourer by party

no. 1 in the year 1982 and his name was sponsored by the

employment exchange and the workman though initially

worked as a Labourer, subsequently, he was engaged by

party no.1 to do multipurpose works including agricultural

operations and the workman worked continuously from

1982 to June 2003 and the workman had completed more

than 240 days of work every year and thus had acquired

the status of a permanent workman, but party no. 1 without

compliance of the mandatory provisions of law and without

giving any prior notice, illegally terminated his service in

June, 2003 and as such, the termination of the workman

from services is illegal and the party no. 1 did not produce

the entire documents relating the engagement of the

workman, which is clear from the cross-examination of the

witness examined on behalf of the party no. 1 and as such,

adverse inference is to be drawn against the party no. 1.

It was submitted by the learned advocate for the

workman that the party no. 1 is an industry, as it earns

huge income by raising different crops on the lands acquired

by it and by selling the crops in the market and the workman

is entitled for reinstatement in service with continuity and

full back wages.

7. Per contra, it was submitted by the learned advocate

for the party no.l that party no.1 is not an industry as

defined under section 2(j) of the Act, as it is an institute

engaged in carrying out fundamental research in agriculture

and there is no profit making motive of the institute and

non of the plaints plant produce are subjected to sale.

It was further submitted by the learned advocate for

the party no.1 that the workman was engaged as daily paid

casual labourer in the farm of party no.1 in 1982 and the

workman worked up to 15-01-2000 and he was paid his

wages on weekly bills after signing on revenue stamp and

he did not work for 240 days in any year and the workman

has not produced a single document or any other evidence

except his own evidence on affidavit to prove that he had

worked continuously from 1982 to June, 2003 and that he

had completed 240 days of work every year, though the

initial burden was upon him to prove the same and it is

clear from the evidence of the witness examined by party

no.1 and the documents, Exts. M-II to M-LVIII that the

workman worked till 15-01-2000 and his engagement was

on daily wages basis, as and when required and he did not

complete 240 days work in any year and the engagement of

the workman was by the contractor as per his requirement

and services of the workman were not terminated by party

no. 1 and the workman is not entitled to any relief.

In support of the submission, the learned advocate

for the party no. 1 placed reliance on the decisions reported

in (1997) 4 SCC-391 (Himanshu Kumar Vs. State of Bihar)

and AIR 1997 SC-1855 (Physical Research Laboratory Vs.

K.G. Sharma).

8. At the outset, I think it necessary to mention that

the terms of reference made by the Central Government is

quite vague, as the date from which, the services of the

workman were terminated by the management of party no.

1 , which is quite essential for adjudication of the dispute,

has not been mentioned.

The workman though has mentioned in the statement

of claim that he was appointed as a chowkidar-cum-peon-

cum-Labourer in 1982 by party no.l and continued to work

till June, 2003, he has neither mentioned the date and month

of his appointment nor the date of his termination. The

workman though has mentioned in the statement of claim

that his name was sponsored by the employment exchange,

he has not mentioned anything as to whether his

appointment was an oral appointment or by issuance of

any appointment order. The workman has also not

mentioned anything as to how he was appointed, that is to

say as to whether such appointment was made after his

appearance in any test or interview conducted by party

no. 1.

It is to be mentioned here that the workman has not

produced a single document in support of his claim that he

was appointed as a chowkidar-cum-peon- Labourer in 1982

and that his name was sponsored by the employment

exchange and that he was engaged by party no. 1 in

multipurpose works including cultivation and that he

worked continuously with party no. 1 from 1982 to June,

2003 and he had completed 240 days of work every year.

The workman except his own evidence on affidavit, has

not adduced any other evidence in support of his claim.

9. On the other hand, party no. 1 has claimed that the

workman was engaged as a daily wages casual labourer to

do the agricultural work in 1982 through contractor and his

engagement was as and when required by the contractor

and when work was available and the workman worked till

15-01-2000 and he had not completed 240 days of work in

any year. The evidence of the witness for the party no. 1 in

this regard has not at all been challenged in the cross-

examination. The witness for the party no. 1 has given the

number of days worked by the workman in each year

chronologically in his evidence on affidavit. Such statement

¹Hkkx II—[k.M 3(ii)º

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6315

of the witness is corroborated by the documents Exts.

M-II to M-LVIII. In the cross-examination of the witness of

party no. 1, it has been brought out that except the

documents Exts. M-II to M-LVIII, there is no other document

in the office of the party no.l regarding the engagement

and disengagement of the workman. So, there is no question

of drawing of adverse inference against party no.1 for non-

production of documents as submitted by the learned

advocate for the workman.

On perusal of the evidence on record, it is found that

party no.1 has not been able to show that the engagement

of the workman was through the contractor. However, it is

clear from the evidence, both oral and documentary that

the engagement of the workman by party no. 1 was on

daily wages casual basis for doing agricultural work as

and when required during the period from 1982 till

15-01-2000 and there was no regular appointment of the

workman as a peon in 1982 and he did not work

continuously from 1982 till June, 2003.

10. In view of the stands taken by the parties, the

first question requires to be considered is as to whether,

the party no. 1 is an industry as defined under section 2 (j)

of the Act.

In this regard, I think it apropos to mention about the

judgment of the Hon'ble Apex Court reported in AIR 1978

SC 548 (Bangalore Water Supply Vs. Sewerage Board). In

the above judgment, the Hon'ble Apex Court have held

that:-

“ S. 2(j)- "Industry"- Meaning and scope of what the

term includes and excludes - Tests and guidelines for such

inclusion and exclusion· indicated- Charitable Institutions,

Clubs, Educational Institutions, Municipalities, Research

Institutes, Co-operative Societies, Establishment of Liberal

profession, if industry- Agencies and departments of

Governments engaged in any non-sovereign functions

when deemed to be industry indicated- Complex of services-

Some qualifying for exemptions and some not-Tests

"Industry" as defined in the sub-section has wide

import.

Where there is (i) Systematic activity (ii) Organised

by cooperation between employer and employee (the direct

and substantial element is chimerical) and (iii) for the

production and / or distribution of goods and services

calculated to satisfy human wants and wishes (not spiritual

or religious but inclusive of material things or services

geared to celestial bliss), prima facie, there is an industry in

the enterprise.

Absence of profit motive or gainful objective is

irrelevant, be the venture in the public, joint, private or

other sector.

The true focus is functional and the decisive test is

the nature of the activity with special emphasis on the

employer employee relations."

Taking into consideration the pleadings of the parties

regarding the activities and functions performed by party

no. 1 and applying the principles enunciated by the Hon'ble

Apex Court in the judgment as mentioned above, it is found

that party no. 1 is an "industry" as defined under section 2

(j) of the Act.

11. In this case, the workman has taken the stand

that he worked continuously from the year 1982 till June

2003 and he had completed 240 days of work in every

year. However, the party no. 1 has denied such claim and

has stated that the workman was engaged on daily wages

casual basis as and when required from 1982 till

15-02-2000 and he had never completed 240 days of work

in any year. In view of the stands taken by the parties, I

think it apt to mention about the principles enunciated by

the Hon 'ble Apex Court in this regard.

The Hon’ble Apex Court, in the decision reported in

AIR 1966 SC-75 (Employees, Digawadih Colliery Vs. Their

workmen) have held that:-

“Though Section 25-F speaks of continuous service

for not less than one year under the employer, if the

workman has actually worked for 240 days during a period

of 12 calendar months both the conditions are fulfilled.

The definition of "Continuous Service" need not be read

into Section 25-B. The fiction converts service of

240 days in a period of twelve calendar months into

continuous service for one complete year. The amended

Section 25-B only consolidates the provisions of Section

25(B) and 2(eee) in one place, adding some other matters.

The purport of the new provisions, however, is not different.

In fact, the amendment of Section 25-F of the principal Act

by substituting in clause (b) the words "for every completed

year of continuous service" has removed a discordance

between the unamended Section 25 B and the unamended

Cl. (b) of Section 25-F. No uninterrupted service is

necessary, if the total service is 240 days in a period of

twelve calendar months either before the several changes

or after these. The only change in the Act is that this service

must be during a period of twelve calendar months

preceding the date with reference to which calculation has

to be made. The last amendment has now removed a

vagueness which existed in the unamended section 25-B".

In the decision reported in AIR 1981 SC-1253

(Mehanlal Vs. M/ s. Bharat Electronics Ltd.), the Hon'ble

Apex Court have held that,

“Industrial Disputes Act (14 of 1947). Section 25-B

(1) and (2)- Continuous service-Scope of sub-sections (1)

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THE GAZETTE OF INDIA : NOVEMBER 23, 2013/AGRAHAYANA 2, 1935

[PART II—SEC. 3(ii)]

and (2) is different, (words and phrases-Continuous

Service)

Before a workman can complain of retrenchment

being not in consonance with Section 25-F, he has to show

that he has been in continuous service for not less than

one year under that employer, who has retrenched him

from service. Section 25-B as the dictionary clause for the

expression "continuous". Both in principle and are

precedent it must be held that Section 25-B (2) comprehends

a situation where a workman to not in employment for a

period of 12 calendar months, but has rendered for a period

of 240 days within the period of 12 calendar months

commencing and counting backwards from the relevant

date, i.e. the date of retrenchment. If he has, he would be

deemed to be in continuous service for a period of one

year for the purpose of section 25-B and chapter V-A".

The Hon'ble Apex Court in the decision reported in

AIR 2003 SC-38 (M/ s. Essen Deinay Vs. Rajeev Kumar)

have held that:

“Industrial Disputes Act (14 of 1947- S.25-F, 10-

Retrenchment compensation-Termination of services

without payment of -Dispute referred to Tribunal-Case of

workman/ claimant that he had worked for 240 days in a

year preceding his termination—Claim denied by

management-Onus lies upon claimant to show that he had

in fact worked for 240 days in a year-In absence of proof of

receipt of salary, the affidavit of the workman is not sufficient

evidence to prove that he had worked for 240 days in a

year preceding his termination."

The Hon'ble Apex Court in the decision reported in

(2005) 5 SCC-100 (Reserve Bank of India Vs. S.Mani) have

held that:—

“Industrial Disputes Act, 1947-Ss.25-F, 25-N, 25-B

and II-240 days” continuous Service-Onus and burden of

proof with respect to-Evidence sufficient to discharge-

Failure of Employer to prove a defence (of abandonment of

service) if sufficient or amounted to an admission,

discharging the said burden of proof on the workman

discharged, merely because employer fails to prove a

defence or an alternative plea of abandonment of service -

Filing of affidavit of workman to the effect that he had

worked for 240 days continuously or that the workman had

repeated representations or raised demands for

reinstatement, is not sufficient evidence that can discharge

the said burden-Other substantive evidence needs to be

adduced to prove 240 days' continuous service-Instances

of such evidence given.

The initial burden of proof was on the workmen to

show that they had completed 240 days of service. The

Tribunal did not consider the question from that angle. It

held that the burden of proof was upon the appellant on

the premise that they have failed to prove their plea of

abandonment of service.

Filing of an affidavit is only his own statement in his

favour and that cannot be regarded as sufficient evidence

for any Court of Tribunal to come to the conclusion that a

workman had in fact, worked for 240 days in a year. Such

evidence might include proof of receipt of salary or wages

for 240 days or order or record of appointment or

engagement for this period or the terms and conditions of

his offer of appointment, or by examination of any other

witness in support of his case.

So, it is clear from the principles enunciated by the

Hon 'ble Apex Court in the decisions mentioned above that

for applicability of Section 25-F of the Act, it is necessary

for the workman to prove that he worked for 240 days in

the preceding l2 calendar months commencing and

counting backwards from the relevant date and the burden

of such proof is upon the workman.

12. The present case in hand in now to be considered

with the touch stone the principles enunciated by the

Hon'ble Apex Court and it is to be found out if the workman

has been able to prove that he had infact worked at least

for 240 days in a year preceding his termination.

As already mentioned above, the workman except

his own evidence on affidavit has not adduced any

other evidence. It is clear from the evidence on record,

both .oral and documentary as already stated above

that the engagement of the workman by party no. 1

was on daily wages casual basis for doing agricultural

work as and when required during the period from 1982

to 15-01-2000 and there was no regular appointment of

the workman as a peon and he did not work

continuously from 1982 till June 2003. It is also found

that the workman has miserably failed to prove that he

had completed 240 days of work in the preceding 12

months of the alleged date of his termination or in any

year. Hence, the provisions of Section 2S-F r/w. Section

25-B of the Act are not applicable to the case of the

workman. So, the workman is not entitled to any relief.

Hence, it is ordered:-

ORDER

The action of the management of National Bureau of

Plant Genetic Resources, New Delhi and Office-in-Charge,

Akola of terminating the services of Shri Vasanta S/o,

Sukhadeo Nimkale, R/o. Somthana, Po: Old City Akola, Teh

& Dist. Akola (MS) is legal and justified. The workman is

not enfitled to any relief.

J. P. CHAND, Presiding Officer

¹Hkkx II—[k.M 3(ii)º

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6317

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New Delhi, the 30th October, 2013

S.O. 2389.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 90/ 2005)

of the Central Government Industrial Tribunal-cum-Labour

Court, Nagpur as shown in the Annexure, in the Industrial

Dispute between the management of National Bureau of

Plant Genetic Resources, and their workmen, received by

the Central Government on 30-10-2013.

[No. L-42012/246/2004-IR (CM-II)]

B. M. PATNAIK, Desk Officer

ANNEXURE

BEFORE SHRI J. P. CHAND, PRESIDING

OFFICER, CGIT-CUM-LABOUR COURT,

NAGPUR

Case No. CGIT/NGP/90/2005

Date: 26.09.2013

Party No. 1

The Director,

National Bureau of Plant Genetic

Resources, Indian Council of

Agriculture Research Pusa Camp,

New Delhi.

The Officer-in-Charge,

National Bureau of Plant Genetic

Resources, Regional Station, Behind

5 Godown, Shastri Road, Dr. PDKV

Campus, Akola. (MS).

Party No. 2

Shri Pandurang Namdeo Mangulkar,

R/o Somthana, Po: Old City Akola,

Akola (MS).

AWARD

(Dated: 26th September, 2013)

In exercise of the powers conferred by clause (d) of

sub-section (1) and sub-section 2(A) of Section 10 of

Industrial Disputes Act, 1947 (14 of 1947) (“the Act” in

short), the Central Government has referred the industrial

dispute between the employers, in relation to the

management of NBPGR and their workman, Shri Pandurang

Namdeo Mangulkar, for adjudication, as per letter No.

L- 42012/246/2004-IR (CM-I1) dated 17-11-2005, with the

following schedule:—

“Whether the action of the management of National

Bureau of Plant Genetic Resources, New Delhi and

Office-in-Charge, Akola of terminating the services

of Shri Pandurang Namdeo Mangulkar, R/o Somthana,

Po : Old City Akola, Akola, Teh. & Dist. Akola (MS)

is legal and justified? If not, to what relief the

disputant workman is entitled?"

2. On receipt of the reference, the parties were noticed

to file their respective statement of claim and written

statement and accordingly, the workman, Shri Pandurang

Namdeo Mangulkar, (“the workman” in short), filed the

statement of claim and the management of National Bureau

of Plant Genetic Resources, Akola, (“Party No. 1” in short)

filed their written statement.

The case of the workman as projected in the

statement of claim is that in the year 1979, he was appointed

as a Labour-cum-Chowkidar by party no. 1 and he was

being paid Rs. 1800 per month and his name was sponsored

by the employment exchange and initially, though he was

engaged as a Labour, subsequently, he was engaged in

multipurpose works, such as chowkidari at Gin Bank, Poli

house and Rest house etc. and so also in agriculture work

of cleaning and sowing and payment of wages was being

made to him by taking his signature on revenue stamp of

one rupee affixed on a register maintained by the party

no.1 and his entire service record was unblemished and

during his service tenure, there was no memo or any

complaint against him and he was in continuous

employment of party no. 1 from 1979 to June, 2003 and he

had completed more than 240 days in a year and therefore,

as per the provisions of law, his status had become that of

a permanent workman/ employee.

The further case of the workman is that party no.1 is

an industry and in 1978, party no.1 established its office at

Akola and started the work of research and commercial

activities by acquiring 52 acres of land from Dr. Punjabrao

Krishi Vidyapeth, Akola and started Gin Bank, Poli house

and Machhi Talab on various plots developed on the

agricultural lands taken from the Vidyapeth and party no.1

also constructed meeting hall, rest house and technical

office and for the purpose of carrying out its commercial

activities, it employed various persons on permanent basis

and at present, eleven permanent employees consisting of

Labour-cum-Chowkidars, Technical Assistants, driver,

sweeper and labourers are working with party no. 1 and

party no.1 earns huge income from agriculture operations

on the agricultural lands and selling agricultural products

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[PART II—SEC. 3(ii)]

in the market and for the purpose of doing agricultural

operation, the party no.1 took his services alongwith other

employees and the activities of party no.1 are totally

commercial and party no.1 uses to earn profit from all these

activities and therefore, the party no.1 is an industry and

he was a workman.

The further case of the workman is that the party

no.1 without following the provisions of law terminated

his services in the month of June, 2003 and neither any

notice was issued nor any enquiry was made before

termination of his services and he was drawing Rs. 2010

per month at the time and as his status was that of a

permanent employee, his termination from services by party

no.l is totally illegal and bad in law and therefore is liable to

be quashed and set aside and in reference no. CGIT/NGP/

196/2000, which is quite similar to his case, it has already

been held by this Tribunal that party no.1 is an industry

and the termination of its employees was illegal and the

same was without following the due procedure of law and

his case is more or less similar in nature like that of the

employees involved in reference case no. 196/2000.

The workman has prayed to declare his oral

termination made by party no.1 in June, 2003 as illegal and

to direct party no.1 to reinstate him in service with

continuity, full back wages and all the consequential

benefits .

3.In the written statement, denying the pleadings

made in the statement of claim, party no.1 has pleaded inter

alia that it was established by the Indian Council of

Agricultural Research (ICAR), Ministry of Agriculture,

Government of India, New Delhi in the year in 1976 and

being a nodal organization in India, it has national mandate

to plan, conduct, promote and coordinate all activities

concerning plant exploration, collection, safe conservation

and distribution of both indigenous and introduced genetic

variability in crop plants and their wild relatives and it not

only provides genetic resources to ongoing crop

improvement programmes to sustain continued advances

in agricultural productivity and stabilize production, but

also conserves them safely to meet needs of future

generations and it has no profit making motive, as none of

the plants or plant produce are subjected for any sale and

it has no trading activity and it is solely and primarily a

research institute and for doing the agricultural work in the

fields, casual labourers were engaged through contractors

and it is an institution engaged in carrying out fundamental

research in agriculture and therefore, not an industry as

defined U/s. 2 (j) of the Act and for that the claim of the

workman is liable to be dismissed.

The further case of party no.1 is that for number of

years, the casual labourers recruited by the departments of

the Central Government were deprived of the benefits of

regularisation in service and the casual labourers were

agitating and were demanding wages at par with class-IV

employees of the Government, so the policy relating to

engagement of casual labourers in Central Government

offices was reviewed in the light of the Hon'ble Supreme

Court's judgment dated 17-1-1986 in the case of Surinder

Singh and Others Vs. Union of India and based on the

directions of the Hon'ble Apex Court, different departments

of Government of India framed suitable scheme to absorb

the daily paid casual labourers and to implement those

schemes and Ministry of Personnel, Public Grievances and

Pensions, Department of Personnel and Training, New Delhi

issued guidelines to their Directorates and other officials

throughout India, vide office memorandum no. 49.14/2/86-

Estt (C) dated 07-06-1988 for review of policy on recruitment

of casual workers and persons on daily wages and on the

basis of the above guidelines, the Government of India,

Department of Personnel and Training (DOPT), issued

office memorandum no. 57016/2/90-Estt.(C) dated 10-09-1993

and further review the policy and decided that the existing

guidelines contained in office memorandum dated

07-06-1988 be continued to be followed and also framed a

scheme called "Casual Labourers (Grant of Temporary

Status and Regularisation) Scheme of Government of India,

1993” and the same was brought into force·w.e.f. 01-09-1993

and in terms of the guidelines of office memorandum dated

07-06-1988, casual labourers could be legally engaged for

work which is of casual/seasonal nature and it has been

following the above mentioned scheme and based on those

guidelines issued directives to their institutes throughout

India, for regularisation of the daily paid casual labourers

engaged by them and in view of its aforesaid policy, it had

directed the departments/units to engage casual labour on

contract basis vide order dated 10/14-12-1999 and issued

guidelines for allotment of work of various operations to

the contractors and accordingly, the contract was allotted

by it to one Shri R.S. Ghodpage, Nagpur and a written

agreement was signed between it and the contractor on

13-01-2000, which was effective from 16-01-2000 to 15-01-2001

and in terms of the agreement, the contractor was deputing

his casual labourers for doing the agricultural work,

depending upon its availability and the contractor used to

raise a consolidated bill, depending upon the number of

casual labourers he had deputed and the said bill was being

paid to him by an account payee cheque by it and as per

the policy of the Government and the directions of the

controlling authority, the contract was extended for a further

period of one year from 01-04-2001 to 31-03-2002 and the

same was again extended for a further period.

It is specifically denied by party no. 1 that the

workman was appointed in 1979 and he was being paid

Rs. 1800 per month and he was engaged in multipurpose

works and he was in continuous service from 1979 till June,

2003 and he had completed more than 240 days in a year

and had become a permanent workman as alleged. It is

pleaded by the party no. 1 that the workman was for the

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6319

first time engaged as daily paid casual labourer in the farm

for doing agricultural work in the year 1980 and he did not

work at all in the years 1991 to 1993 and he was paid wages

weekly and the workman is not entitled to any relief and in

view of the judgment of the Hon'ble Apex Court as reported

in (2006) 4 SCC at page 1 (Secretary, State of Karnatak and

others Vs. Umadevi), the claim is not maintainable.

4. In support of his claim, the workman has examined

only himself as a witness. The evidence of the workman is

on affidavit. In his examination-in-chief, the workman has

reiterated the facts mentioned in the statement of claim.

However, in his cross-examination, the workman has stated

that wages was being paid to him on signing the

acquaintance roll and wages were being paid to him for the

days he was engaged by party no. 1.

5. The party no. 1 has examined Mr. Abdul Nizar, the

Officer-In-Charge of its Regional Station, Akola as a witness,

besides placing reliance on documentary evidence, Exts.

M-II to M-LV, the payment sheet-cum-attendance of the

workman.

In his examination-in-chief, this witness has also

reiterated the facts mentioned in the written statement. He

has further stated that the workman was not engaged in

the year 1979 and he did not work at all from 1991 to 1993

and for the first time, the workman was engaged as daily

paid casual labour for doing agricultural work in the year

1980 and he worked up to 15-01-2000 and he was paid

wages on weekly bills and he used to sign on revenue

stamp and he has filed wage bills from 01-07-1984 to

15-01-2000, showing the wages paid to the workman and

others. This witness had proved the wage sheets as Exts.

M-II to M-LV. This witness has also stated that the workman

was paid wages for the number of days he worked and

wages was paid to him for 108, 174, 191, 188, 121,70, 151,

156, 66, 179, 152, 79, 156, 154, 157, 145, 141and 15 days in

the year 1980, 1981, 1982, 1983, 1984, 1985, 1986, 1987, 1988,

1989, 1990, 1994, 1995, 1996, 1997, 1998, 1999 and 2000

respectively and the workman has not worked for 240 days

in any year and he worked only for the number of days as

mentioned above, when work was available in the season.

In his cross-examination, this witness has stated that

he has no-personal knowledge about the engagement and

disengagement of the workman and the contents of his

affidavit are based on the documents available in the office.

This witness has also specifically stated that there is no

other document in the office regarding the engagement

and disengagement of the workman except Exts. M-II to

M-LV. This witness has also stated in his cross-examination

that casual labourers were engaged as per the requirements.

6. At the time of argument, it was submitted by the

learned advocate for the workman that the workman was

appointed as a Labour-cum-Chowkidar by party no.1 in

the year 1979 and his name was sponsored by the

employment exchange and the workman though initially

worked as a Labour-cum-Chowkidar, subsequently, he was

engaged by party no. 1 to do multipurpose works including

agricultural operations and the workman worked

continuously from 1979 to June 2003 and the workman had

completed more than 240 days of work every year and thus

had acquired the status of a permanent workman, but party

no. 1 without compliance of the mandatory provisions of

law and without giving any prior notice, illegally terminated

his service in June, 2003 and as such, the termination of the

workman from services is illegal and the party no. 1 did not

produce the entire documents relating the engagement of

the workman, which is clear from the cross- examination of

the witness examined on behalf of the party no. 1 and as

such, adverse inference is to be drawn against the party

no. 1.

It was submitted by the learned advocate for the

workman that the party no. 1 is an industry, as it earns

huge income by raising different crops on the lands acquired

by it and by selling the crops in the market and the workman

is entitled for reinstatement in service with continuity and

full back wages.

7. Per contra, it was submitted by the learned advocate

for the party no. 1 that party no. 1 is not an industry as

defined under section 2 (j) of the Act, as it is an institute

engaged in carrying out fundamental research in agriculture

and there is no profit making motive of the institute and

non of the plaints plant produce are subjected to sale.

It was further submitted by the learned advocate for

the party no. 1 that the workman was engaged as daily paid

casual labourer in the farm of party no. 1 in. 1980 for the

first time and he did not work with the party no. 1 in 1979

and so also from 1991 to 1993 and he worked up to

15-01-2000 and he was paid his wages on weekly bills after

signing on revenue stamp and he did not work for 240 days

in any year and the workman has not produced a single

document or any other evidence except his own evidence

on affidavit to prove that he had worked continuously

from 1979 to June, 2003 and that he had completed 240

days of work every year, though the initial burden was

upon him to prove the same and it is clear from the evidence

of the witness examined by party no. 1 and the documents,

Exts. M-II to M-LV that the workman worked till 15-01-2000

and his engagement was on daily wages basis, as and

when required and he did not complete 240 days work in

any year and the engagement of the workman was by the

contractor as per his requirement and services of the

workman were not terminated by party no. 1 and the

workman is not entitled to any relief.

In support of the submission, the learned advocate

for the party no. 1 placed reliance on the decisions reported

in (1997) 4 SCC-391 (Himanshu Kumar Vs. State of Bihar)

and AIR 1997 SC-1855 (Physical Research Laboratory Vs.

K.G. Sharma).

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[PART II—SEC. 3(ii)]

8. At the outset, I think it necessary to mention that

the terms of reference made by the Central Government is

quite vague, as the date from which, the services of the

workman were terminated by the management of party no.

1, which is quite essential for adjudication of the dispute,

has not been mentioned.

The workman though has mentioned in the statement

of claim that he was appointed as a Labour-cum-Chowkidar

in 1979 by party no. 1 and continued to work till June, 2003,

he has neither mentioned the date and month of his

appointment nor the date of his termination. The workman

though has mentioned in the statement of claim that his

name was sponsored by the employment exchange, he has

not mentioned anything as to whether his appointment

was an oral appointment or by issuance of any appointment

order. The workman has also not mentioned anything as to

how he was appointed, that is to say as to whether such

appointment was made after his appearance in any test or

interview conducted by party no. 1.

It is to be mentioned here that the workman has not

produced a single document in support of his claim that he

was appointed as a Labour-cum- Chowkidar in 1979 and

that his name was sponsored by the employment exchange

and that he was engaged by party no. 1 in multipurpose

works including cultivation and that he worked

continuously with party no. 1 from 1979 to June, 2003 and

he had completed 240 days of work every year. The

workman except his own evidence on affidavit has not

adduced any other evidence in support of his claim.

9. On the other hand, party no.l has claimed that the

workman was engaged as a daily wages casual labourer to

do the agricultural work in 1980 through contractor and his

engagement was as and when required by the contractor

and when work was available and he did not work at all in

the years 1991 to 1993 and the workman worked till

15-01-2000 and he had not completed 240 days of work in

any year. The evidence of the witness for the party no.1 in

this regard has not at all been challenged in the cross-

examination. The witness for the party no.1 has given the

number of days worked by the workman in each year

chronologically in his evidence on affidavit. Such statement

of the witness is corroborated by the documents Exts.

M-II to M-LV. In the cross-examination of the witness of

party no.1, it has been brought out that except the

documents Exts. M-II to M-LV, there is no other document

in the office of the party no.1 regarding the engagement

and disengagement of the workman. So, there is no question

of drawing of adverse inference against party no.1 for non-

production of documents as submitted by the learned

advocate for the workman.

On perusal of the evidence on record, it is found that

party no.1 has not been able to show that the engagement

of the workman was through the contractor. However, it is

clear from the evidence, both oral and documentary that

the engagement of the workman by party no. 1 was on

daily wages casual basis for doing agricultural work as and

when required during the period from 1980 till 15-01-2000

and there was no regular appointment of the workman as a

Labour-Cum-Chowkidar in 1979 and he did not work

continuously from 1979 till June, 2003.

10. In view of the stands taken by the parties, the

first question requires to be considered is as to whether,

the party no.1 is an industry as defined under section 2 (j)

of the Act.

In this regard, I think it apropos to mention about the

judgment of the Hon ’ble Seven Judges Bench of the Hon'ble

Apex Court reported in AIR 1978 SC 548 (Bangalore Water

Supply Vs. Sewerage Board). In the above judgment, the

Hon'ble Apex Court have held that:—

“ S.2(j)- “Industry”- Meaning and scope of what the

term includes and excludes - Tests and guidelines for such

inclusion and exclusion indicated- Charitable Institutions,

Clubs, Educational Institutions, Municipalities, Research

Institutes, Co-operative Societies, Establishment of Liberal

profession, if industry- Agencies and departments of

Governments engaged in any non-sovereign functions

when deemed to be industry indicated- Complex of services-

Some qualifying for exemptions and some not-Tests

“Industry” as defined in the sub-section has wide

import.

Where there is (i) Systematic activity (ii) Organised

by cooperation between employer and employee (the direct

and substantial element is chimerical) and (iii) for the

production and/or distribution of goods and services

calculated to- satisfy human wants and wishes (not spiritual

or religious but inclusive of material things or services

geared to celestial bliss), prima facie, there is an industry in

the enterprise.

Absence of profit motive or gainful objective is

irrelevant, be the venture in the public, joint, private or

other sector.

The true focus is functional and the decisive test is

the nature of the activity with special emphasis on the

employer employee relations.”

Taking into consideration the pleadings of the parties

regarding the activities and functions performed by party

no.1 and applying the principles enunciated by the Hon’ble

Apex Court in the judgment as mentioned above, it is found

that party no.1 is an “industry” as defined under section

2(j) of the Act.

11. In this case, the workman has taken the stand

that he worked continuously from the year 1979 till June

2003 and he had completed 240 days of work in every year.

However, the party no.1 has denied such claim and has

stated that the workman was engaged on daily wages casual

basis as and when required from 1980 till 15-02-2000 and

he had never completed 240 days of work in any year. In

view of the stands taken by the parties, I think it apt to

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6321

mention about the principles enunciated by the Hon'ble

Apex Court in this regard.

The Hon’ble Apex court, in the decision reported in

AIR 1966 SC-75 (Employees, Digawadih Colliery Vs. Their

workmen) have held that:- "Though section 25-F speaks of

continuous service for not less than one year under the

employer, if the workman has actually worked for 240 days

during a period of 12 calendar months both the conditions

are fulfilled. The definition of “Continuous Service” need

not be read into section 25-B. The fiction converts service

of 240 days in a period of twelve calendar months into

continuous service for one complete year. The amended

section 25-B only consolidates the provisions of section

25(B) and 2(eee) in one place, adding some other matters.

The purport of the new provisions, however, is not different.

In fact, the amendment of section 25-F of the principal Act

by substituting in clause (b) the words “for every completed

year of continuous service” has removed a discordance

between the unamended section 25 B and the unamended

Cl. (b) of section 25-F. No uninterrupted service is

necessary, if the total service is 240 days in a period of

twelve calendar months either before the several changes

or after these. The only change in the Act is that this service

must be during a period of twelve calendar months

preceding the date with reference to which calculation has

to be made. The last amendment has now removed a

vagueness which existed in the unamended section 25-B”.

In the decision reported in AIR 1981 SC-1253

(Mehanlal Vs. M/s. Bharat Electronics Ltd.), the Hon'ble

Apex Court have held that,

“Industrial Disputes Act (14 of 1947). Section 25-B

(1) and (2)- Continuous service-Scope of sub-sections (1)

and (2) is different, (words and phrases-Continuous

Service)

Before a workman can complain of retrenchment

being not in consonance with Section 25-F, he has to show

that he has been in continuous service for not less than

one year under that employer, who has retrenched him

from service. Section 25-B as the dictionary clause for the

expression “continuous”. Both in principle and are

precedent it must be held that section 25-B (2) comprehends

a situation where a workman to not in employment for a

period of 12 calendar months, but has rendered for a period

of 240 days within the period of 12 calendar months

commencing and counting backwards from the relevant

date, i.e. the date of retrenchment. If he has, he would be

deemed to be in continuous service for a period of one

year for the purpose of section 25-B and chapter V-A”.

The Hon’ble Apex Court in the decision reported in

AIR 2003 SC-38 (M/s. Essen Deinay Vs. Rajeev Kumar)

have held that:

“Industrial Disputes Act (14 of 1947- S.25-F, 10-

Retrenchment compensation-Termination of services

without payment of -Dispute referred to Tribunal-Case of

workman/ claimant that he had worked for 240 days in a

year preceding his termination—Claim denied by

management-Onus lies upon claimant to show that he had

in fact worked for 240 days in a year—In absence of proof

of receipt of salary, the affidavit of the workman is not

sufficient evidence to prove that he had worked for 240

days in a year preceding his termination.”

The Hon'ble Apex Court in the decision reported in

(2005) 5 SCC-l00 (Reserve Bank of India Vs. S.Mani) have

held that:—

“Industrial Disputes Act, 1947-Ss.25-F, 25-N,25-B and

II-240 days' continuous Service-Onus and burden of proof

with respect to-Evidence sufficient to discharge-Failure of

Employer to prove a defence (of abandonment of service)

If sufficient or amounted to an admission, discharging the

said burden of proof on the workman discharged, merely

because employer fails to prove a defence or an alternative

plea of abandonment of service - Filing of affidavit of

workman to the effect that he had worked for 240 days

continuously or that the workman had repeated

representations or raised demands for reinstatement, is not

sufficient evidence that can discharge the said burden-

Other substantive evidence needs to be adduced to prove

240 days' continuous service-Instances of such evidence

given.

The initial burden of proof was on the workmen to

show that they had completed 240 days of service. The

Tribunal did not consider the question from that angle. It

held that the burden of proof was upon the appellant on

the premise that they have failed to prove their- plea of

abandonment of service. Filing of an arfidavit is only his

own statement in his favour and that cannot be regarded

as sufficient evidence for any Court of Tribunal to come to

the conclusion that a workman had in fact, worked for 240

days in a year. Such evidence might include proof of receipt

of salary or wages for 240 days or order or record of

appointment or engagement for this period or the terms

and conditions of his offer of appointment, or by

examination of any other witness in support of his case.

So, it is clear from the principles enunciated by the

Hon'ble Apex Court in the decisions mentioned above that

for applicability of section 25-F of the Act, it is necessary

for the workman to prove that he worked for 240 days in

the preceding 12 calendar months commencing and

counting backwards from the relevant date and the burden

of such proof is upon the workman.

12. The present case in hand in now to be considered

with the touch stone the principles enunciated by the

Hon'ble Apex Court and it is to be found out if the workman

has been able to prove that he had infact worked at least

for 240 days in a year preceding termination.

As already mentioned above, the workman except

his own evidence on affidavit has not adduced any other

evidence. It is clear from the evidence on record, both oral

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[PART II—SEC. 3(ii)]

and documentary as already stated above that the

engagement of the workman by party no. 1 was on daily

wages casual basis for doing agricultural work as and when

required during the period from 1980 to 15-01-2000 and

there was no regular appointment of the workman as a

Labour-cum-Chowkidar and he did not work continuously

from 1980 till June 2003. It is also found that the workman

has miserably failed to prove that he had completed 240

days of work in the preceding 12 months of the alleged

date of his termination or in any year. Hence, the provisions

of section 25-F r/w section 25-B of the Act are not applicable

to the case of the workman. So, the workman is not entitled

to any relief. Hence, it is ordered:—

ORDER

The action of the management of National Bureau of

Plant Genetic Resources, New Delhi and Office-in-Charge,

Akola of terminating the services of Shri Pandurang

Namdeo Mangulkar, r/o. Somthana, Po: Old City Akola,

Teh & Dist. Akola (MS) is legal and justified. The workman

is not entitled to any relief.

J. P. CHAND, Presiding Officer

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New Delhi, the 30th October, 2013

S.O. 2390.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 251/

2000) of the Central Government Industrial Tribunal-cum-

Labour Court, Nagpur as shown in the Annexure, in the

Industrial Dispute between the management of WCL and

their workman, received by the Central Government on

30-10-2013.

[No. L-22012/594/1999-IR (CM-II)]

B. M. PATNAIK, Desk Officer

ANNEXURE

BEFORE SHRI J. P. CHAND, PRESIDING

OFFICER, CGIT-CUM-LABOUR COURT,

NAGPUR

Case No. CGIT/NGP/251/2000 Date: 4-10-2013

Party No. 1 :

The Sub Area Manager,

Western Coalfields Ltd., PO : Pipla,

Distt. Nagpur.

Party No. 2 :

The Secretary,

Lalzanda Coal Mines Mazdoor Union,

Qtr. No.7, Block-7, Chankapur Colony,

PO : Silewara, Tah. Saoner, Distt. Nagpur.

AWARD

(Dated: 4th October, 2013)

In exercise of the powers conferred by clause (d) of

sub-section (1) and sub-section 2(A) of section 10 of

Industrial Disputes Act, 1947 (14 of 1947) ("the Act" in

short), the Central Government has referred the industrial

dispute between the employers, in relation to the

management of WCL and their workman, Shri Namdeo

Ramaji, for adjudication, as per letter No.L-22012/594/99-IR

(CM-II) dated 27-07-2000, with the following schedule:—

“Whether the action of the management of Western

Coalfields Ltd., through Sub-Area Manager, Pipla Sub

Area,PO: Pipla, Tah. Saoner, -Distt. Nagpur in not correcting

the date of Birth i.e. 12-04-1947 of Shri Namdeo Ramaji,

Pipla Mines, Pipla Sub-Area Tah: Saoner, Distt. Nagpur is

justified? If not, to what relief the said workman is entitled?

What other directions are necessary in the matter?”

2. On receipt of the reference, the parties were noticed

to file their respective statement of claim and written

statement and accordingly, the union, “Lalzanda Coal Mines

Mazdoor Union,” (“the union” in short) filed the statement

of claim on behalf of the workman, Shri Namdeo Ramaji,

(“the workman” in short), and the management of WCL,

(“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 the workman was initially

appointed as a general mazdoor Cat.I in the year 1982- at

Damua Colliery, Kanhan Area and at the time of his

appointment at Damua Colliery, the workman had submitted

his date of birth as 12-04-1947 and in support of the same,

he had submitted the copy of his school leaving certificate

and in the year 1986, the workman was transferred to

Nandan Washery of Kanhan Area from Damua Colliery

and in the year 1992, vide order no. 174 dated 24-01-1992,

he was again transferred to Patansaongi Colliery and he

continued to work at Patansawangi Colliery till 1998 and

while working as such, he was informed by the Manager,

Patansawangi Colliery vide letter no.WCL/PSA/CM/PTN/

Supper Annuation/98/ 59 dated 01-01-1998 that he was

going to be superannuated on attaining the age of 60 years

w.e.f. 01-07-1998 and in the said letter, his date of birth as

recorded in the records of the management of Patansaongi

Colliery was not mentioned and the workman was surprised

and mentally upset on receipt of the said letter and the

workman was sure that he would be superannuated in April,

2007, as per his date of birth recorded at Damua Colliery as

¹Hkkx II—[k.M 3(ii)º

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6323

12-04-1947, on the basis of the school leaving certificate

and so also at Nandan Washery, to where he was transferred

from Damua Colliery and being aggrieved by the action of

the management of Patansawangi Colliery, the workman

raised the dispute before the ALC (Central), Nagpur through

it (the union) and as the conciliation failed, the ALC

submitted the failure report to the Central Government vide

letter dated 01-12-1999.

It is further pleaded by the union that Forrn-B register

is a statutory record and it is to be maintained at each

Colliery under the provisions of the Mines Rules, 1955 and

entries in the Forrn-B register are to be made at the time of

initial appointment and then to carry forward the same to

other Colliery/unit where the workman uses to be

transferred and as the workman was initially appointed at

Damua Colliery and subsequently he was transferred to

Nandan Washery and then to Patansawangi Colliery, as

per law, the entries made in Form-B register at Damua

Colliery should have been carried forward to Nandan

Washery and then to Patansawangi Colliery, but the same

was not done by party no. 1 with malafide intention and

the management representative, Shri R.K. Sharma, Deputy

Personnel Manager was unable to produce the Form-B

registers maintained at Damua Colliery and Nandan

washery before the Conciliation Officer and letter dated

09-02-1997 was addressed by the Head clerk, Nandan

washery to Dy. Personnel Manager, Damua Colliery and

letter dated 16-02-1997 was given by senior P.O., Damua

Colliery to Dy. Personnel Manager, Nandan Washery

mentioning therein that there was no entry of date of birth

of the workman in the Form-B Register of Damua Colliery,

even though at that relevant time, the workman was working

at Patansawangi Colliery and such correspondence must

had been made between Nandan washery and Damua

Colliery for the reason that in 1997, the management of

Patansawangi Colliery might have asked the Nandan

Washery and Damua Colliery about the date of birth of the

workman and as the management of Patansawangi did not

get the reply of their choice/liking, on their own accord,

they entered the date of birth of the workman as 01-07-38

arbitrarily and it is clear from the letter no. 22/97/11/8 dated

5/6-02-1997 of the Labour Officer, Patansawangi Colliery

written to the senior Personnel Officer, Damua Colliery /

Nandan Washery asking them about the correct age of the

workman that till February, 1997, the management of

Patansawangi Colliery had not entered any date of birth of

the workman in the Form-B register and date of birth of the

workman recorded as 01-07-1938 by the management of

Patansawangi Colliery was only as a result of unfair labour

practice and malafide intention and the management had

deliberately not abided in complying the provisions of

Implementation Instruction no. 76, issued.

The union had prayed for the reinstatement of the

workman in service with continuity from the date of

wrongful superannuation, i.e. 01-07-1998, full back wages

and consequential benefits.

At this juncture, it is necessary to mention that during

the pendency of the reference, the workman expired, so his

legal heirs, namely, Smt. Panchfulla (the widow), Rajendra,

Anil and Sunil (the three sons) were added as parties in the

case as per order dated 02-08-2008 and the legal heirs by

way of amendment made prayer to grant them monetary

benefits from the date of premature retirement of the

deceased workman till his death i.e. up to 08-09-2007.

3. The party no. 1 in the written statement has

admitted the appointment of the workman at Damua Colliery

in 1982 and his transfer to Nandan washery and then to

Patansawangi Colliery in the year 1986 and 1992 respectively

and that the Manager, Patansawangi Colliery by letter dated

01-01-1998, informed the workman that he would be

superannuated w.e.f. 01-07-1998. However, party no. 1 has

denied that at the time of appointment at Damua Colliery in

1982, the workman had submitted his date of birth as

12-04-1947 and he had also submitted his school leaving

certificate. It is further pleaded by the party no. 1 that it is

its established policy that six months notice of

superannuation is served on the concerned workman and

in the Form-B register of Patansawangi Colliery, the date of

birth of the workman was recorded as 01-07 -1938 and the

workman accepted the same and the workman was due to

complete his 60 years of age on 01-07-1998, so notice of

superannuation was given to the workman in the month of

January, 1998 and there was no question of the workman

becoming shocked, surprised or mentally upset on receipt

of the aforesaid letter and the workman was fully aware

that his date of birth was registered with it as 01-07-1938

and the date of birth of the workman was not recorded as

12-04-1947 at Damua Colliery or Nandan Washery and the

date of birth of the workman was recorded correctly

and the same was forwarded to each Colliery

as and when the workman was transferred and the letters

written by the Head clerk Nandan washery dated 09-02-

1997 and the senior P. O. Damua Colliery dated 16-02-1997

were inter departmental correspondence between Nandan

Washery and Damua Colliery and Patansawangi Colliery

had nothing to do with the same and neither the said letters

were addressed to the workman nor copy of the same was

sent to him, so custody of the said letters is extremely

surprising and doubtful and therefore, the workman is

bound to disclose the source of getting those documents

and as the workman has not approached the court with

clean hands, the reference is liable to be answered in

negative. Party no. 1 has denied the pleadings made in the

statement of claim that as no reply was received by the

management of Patansawangi Colliery from Damua and

Nandan Washery of choice/liking of the Patansawangi,

the management of Patansawangi mine or their own recorded

the date of birth of the workman as 01-07-1938 arbitrarily

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THE GAZETTE OF INDIA : NOVEMBER 23, 2013/AGRAHAYANA 2, 1935

[PART II—SEC. 3(ii)]

and that his date of birth was not recorded in the Form-B

register of Patansawangi Mine till the end of February,

1997.

The specific plea of party no. 1 is that in the year

1987, all its employees were given an opportunity to verify

their date of birth recorded with it and accordingly, the

workman also verified his date of birth in 1987 and he did

not raise any objection and as such, he is estopped to raise

the dispute in regard to his date of birth and the dispute is

hit by delay and latches and the workman raised the alleged

dispute at the fag end of his service and it is established

principle of law that any dispute in relation to change of

date of birth at the fag end of service cannot be entertained

and as the reference is devoid of any merit, the same is

liable to be answered in the negative.

4. Both the parties have led oral evidence in support

of their respective claims, besides placing reliance on

documentary evidence. On behalf of the legal heirs of the

deceased workman, Anil Namdeo, one of the sons of the

deceased workman has been examined as a witness. One

Narendra Krishna Joshi, Manager, Patansawangi Mine has

been examined as a witness by party no. 1.

The examination-in-chief of the witness, Anil is

on affidavit. In his examination-in-chief, this witness has

stated that his father, Namdeo was appointed as a general

mazdoor cat.I on 01-07 -1979 at Damua Colliery and at the

time of his appointment, his father had submitted the copy

of his school leaving certificate in the office of the

management of party no. 1, where in, his date of birth was

mentioned as 12-04-1947. This witness has further stated

that on the basis of the wrong recording of the date of birth

of his father in the service records at Patansawangi Mines

as 01-07 -1938, instead of the correct date of birth as 12-04-

1947, his father was superannuated on 30-06-1998,

prematurely nine years earlier instead of the actual date of

retirement i.e. 12-04-2007. The rest of the examination-in-

chief of this witness is reiteration of the facts mentioned in

the statement of claim.

In his cross-examination, this witness has again

stated that his father was appointed at Damua Colliery on

01-07-1979 and he has no idea about the documents filed

by his father.

5. The evidence of the witness, Narendra Krishna

Joshi for the party no. 1 is also on affidavit. The

examination-in-chief of this witness is in the same line of

the stands taken by the party no. 1 in the written statement.

In his cross-examination, this witness has stated that

he has no personal knowledge about the case and the

contents of his affidavit are based on the documents

available with the WCL. He has further stated that as there

is no document in the office of WCL regarding submission

of the date of birth of the deceased workman as 12-04-1947,

he has mentioned in his affidavit that the workman had not

submitted his date of birth as 12-04-1947 and as per records,

the workman had not submitted any school leaving

certificate at the time of his appointment and he cannot say

if according to the school leaving certificate" the date of

birth of the deaceased workman was 12-04-1947. This

witness has admitted that in the Form-B register of the

workman received at Patansawangi Colliery, his date of

birth was not mentioned and the Form-B register of an

employee must contains his date of birth and there is a

specific column for the same and he cannot say in which

Colliery, the date of birth of the workman was mentioned

for the first time in the Form-B register. The witness for the

party no.1 has further admitted that prior to 1970, a

combined register of Form-B of the employees was being

maintained containing single line entry, in respect of each

employee and the copy of the Form-B register filed by the

management shows that the date of birth and the date of

appointment of the workman have been written in a different

ink than the other entries made therein. This witness has

also stated that as per implementation Instruction no. 76,

Ext. W-II, no correction of the date of birth of the workman

was done and he cannot say as to why, the correction of

the date of birth of the workman was not done as per the

Implementation Instruction no. 76. This witness has denied

the suggestions given in his cross-examination that

management wrongly recorded the date of birth of the

deceased workman as 01-07-1938 and that the workman

was superannuated nine year prior to his real date of

superannuation.

6. During the course of argument, it was submitted

by the learned advocate for the petitioner that the workman

had submitted his school leaving certificate, wherein his

date of birth was recorded as 12-04-1947, at the time of his

initial joining at Damua Colliery and in 1986, the workman

was transferred from Damua to Nandan washery and in

1992, he was again transferred from Nandan Washery to

Patansawangi Colliery and while serving at Patansawangi

Colliery, the workman was served with the notice of his

superannuation w.e.f. 01-07-1998 on his attaining the age

of 60 years and under the provisions of the Mines Rules,

1955, each Colliery is required to maintain the record of

every employee in Form-B register and entries in Forrn-B

register are to be entered at the time of the initial

appointment and the same is to be carried forward to other

collieries/units to where the concerned employee is being

transferred and in view of such provisions, it was obligatory

on the party of the party no.1 to carry forward the entries in

Form-B register of the workman from Damua Colliery to

Nandan Washery and from Nandan Washery to

Patansawangi Colliery and in Patansawangi Colliery, the

date of birth of the workman in Form-B register was wrongly

recorded as 01-07-1938 instead of 12-04-1947 and in the

said register, Ext. M-II, the date of birth and date of

appointment have been mentioned in a different ink than

the other entries made in the same and party no. 1 has also

¹Hkkx II—[k.M 3(ii)º

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6325

failed to produce the Form-B register of the workman

maintained in Damua Colliery and Nandan Washery and

the letter written by the Head clerk, Nandan Washery on

08-05-1997 informing that the date of birth of the workman

was not mentioned in the LPC, at the time of his transfer in

1986 and to supply the same, shows that the date of birth

of the workman was not mentioned in the Form-B register

and such fact also finds support from the letter dated 16-

02-1997 of the Senior Administrative Officer, Damua Colliery

to Dy. Personnel Manager, Nandan Washery and the

correspondence made between the, collieries clearly show

that the date of birth of the workman as mentioned in the

Form-B register at Patansawangi was quite imaginary and

a wrong date of birth of the workman was mentioned and

even though, the workman raised the dispute in regard to

his date of birth prior to the date of his superannuation, his

case was not sent to the age determination committee to

settle the dispute about his age and party no. 1 deliberately

did not implement the Implementation Instruction no. 76

issued under NCWA-III and though the workman had

demanded for production of ten documents by party no.l,

by filing an application on 30.10.2001, party no.1 failed to

produce those documents, so adverse inference is to be

drawn against the party no. 1.

It was further submitted that in this case, the evidence

of the workman has gone unchallenged as no cross-

examination was made and as such, it is necessary to direct

the party no. 1 to reinstate the workman notionally with

continuity and to pay the wages from the date of the

premature superannuation of the workman till his death, to

his legal heirs.

7. Per contra, it was submitted by the learned advocate

for the party no.1 that the workman did not submit any

school leaving certificate at the time of his initial joining in

service and the date of birth of the workman was correctly

recorded as 01-07-1938 as per the say of the workman and

the workman was fully aware that his date of birth was

recorded by party no.1 as 0 l- 07-1938 and the date of birth

of the workman was not recorded by the management of

Patansawangi Mine on their own and in the year 1987, all

the employees of party no. 1 were given opportunity to

verify their date of birth recorded with the management

and the workman also verified his date of birth and he did

not raise any objection and as such, he is estopped from

raising the dispute and the present dispute is hit by delay

and latches and the dispute was raised by the workman at

the fag end of his service and it is established principle of

law that any dispute in relation of change of date of birth at

the fag end of service cannot be entertained and during

the pendency of the proceeding, the workman expired and

his cross-examination could not be made and the reference

is devoid of any merit and is required to be answered in the

negative.

In support of the contentions, reliance. has been

placed by the learned advocate for the party no.1 on the

decisions reported in 1997 (5) SCC-181 (State of Orissa Vs.

Ramanath Patnaik) and the judgments of the Hon'ble High

Court, Nagpur Bench in W.P. No. 1619/2008 (Ekbal Ahmad

Vs. Chief General Manager), W.P. 891/2010 (Ship Prasad

Vs. WCL and another) and 1178/2010 (Sheshwanti Premdas

Vs. WCL).

So, keeping in view the principles enunciated by the

Hon'ble Courts in the judgments mentioned above, the

present case in hand is to be considered.

8. It is to be mentioned here that on 17-06-2002, as

none appeared on behalf of the party no.1 to cross examine

the workman, order to close the cross-examination of the

workman was passed. The party no.1 approached the

Hon 'ble High Court, Nagpur Bench, Nagpur by filing writ

petition no. 3255/2003 for redress against the order passed

by the Tribunal on 22-01-2003 rejecting their applications

for permission to cross-examine the workman and for filing

documents. The Hon'ble High Court, by order dated

01-10-2004 were pleased to quash and set aside the order

dated 27-01-2003 and to allow the party no.1 to produce

the documents and to cross-examine the workman. After

receipt of the order of the Hon’ble High Court, on 06-03-

2006, in presence of the learned advocates for both the

parties, order was passed by this Tribunal for the cross-

examination of the workman fixing the case to 30-03-2006.

On 30-03-2006, as the learned advocate for the party no.1

did not appear to cross-examine the workman, the case

was adjourned to 02-05-2006. Then the case suffered several

adjournments for different reasons and lastly, on 22-03-

2007, the cross-examination of the workman was declined,

as nobody appeared on behalf of the party no.1 to cross-

examine the workman. The order passed on 22-03-2007 was

before the death of the workman. It is not the case that due

to the death of the workman, he could not be cross-

examined. So, the submission made by the learned advocate

for the party no.1 that due to the death of the workman, he

could not be cross-examined, fails. It is found that the

evidence of the workman has remained unchallenged.

9. On perusal of the pleadings of the parties, the

evidence adduced, both oral and documentary and taking

into consideration of the submissions made by the learned

advocates for both the parties, it is found that the workman

had claimed his date of birth as 12-04-1947, basing on the

school leaving certificate issued by “Janpad Prathamik

Shala", Karaghat Kamptee. It was pleaded by the deceased

workman that in the Form-B registers maintained in Damua

Colliery and Nandan Washery, his date of birth was not

mentioned and at Patansawangi Colliery in the Form-B

register, his date of birth was mentioned as 01-07-1938

according to the sweet will of the management of

Patansawangi Colliery and such recording of his date of

birth as 01-07-1938 was without any basis and due to such

illegal recording of his date of birth, he was retired from

service prematurely on 01-07-1998, i.e. nine years prior of

the real date of his superannuation. It was also claimed by

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THE GAZETTE OF INDIA : NOVEMBER 23, 2013/AGRAHAYANA 2, 1935

[PART II—SEC. 3(ii)]

the workman that he was under the believe that he would

be retired in April, 2007 and for the first time, he came to

know about such wrong recording,when he received the

notice issued by the management dated 10-01-1998 that he

would be retired from service on superannuation w.e.f.

01-07-1998.

The plea of the party no. 1 is that the date of birth of

the workman was correctly recorded in the Form-B register

at Damua colliery as 01-07-1938, as per the say of the

workman and the workman did not submit any school

leaving certificate at the time of his initial appointment and

the date of birth of the workman as recorded in the Form-B

register at Damua colliery was forwarded to each colliery

as and when the workman was transferred from one place

to another and the workman was fully aware that his date

of birth was recorded as 01-07-1938 and he had

acknowledged the same by signing the Form-B register

and the date of birth of the workman was not recorded

arbitrarily as 01-07-1938 by the management of

Patansawangi colliery.

10. So far the oral evidence of the workman is

concerned, it is to be mentioned that he reiterated the facts

mentioned in the statement of claim in his evidence.

According to the statement of claim and the evidence

of the workman, the workman was initially appointed at

Damua colliery in the year 1982. However, Anil, the son of

the deceased workman in his examination-in-chief itself

has stated that the workman was appointed at Damua

colliery on 01.-07 -1979, which is contradictory than the

evidence of the workman and so also the stand taken in the

statement of claim. Further, witness Anil in the cross-

examination has stated that he does not have any idea

about the documents filed by his father. So, the evidence

of Anil is of no avail to the petitioners to decide the issue in

question.

Even though, the workman in the statement of claim

and in his evidence had stated about submission of the

school leaving certificate at the time of his initial joining of

duty at Damua colliery, he did not produce the original

school leaving certificate or an authentic copy of the same

in support of such claim. Such certificate was also not

proved by the workman in his evidence as per law. The

workman had filed a Xerox copy of a school leaving

certificate as "annexure-B" alongwith the statement of claim:

As the provisions of the Evidence Act are not strictly

applicable to industrial disputes and in the interest of natural

justice, I think it proper to take the Xerox copy of the

certificate produced (annexure-B) by the workman to take

into consideration. On perusal of the said Xerox copy of

the certificate annexure-B, it is found that it is not at all

possible to know from the same about the date of birth of

the deceased workman, the date of issue of the same or in

which class he was reading at the time of issuance of the

same. So, annexure- B is of no help to show that according

to the school leaving certificate, the date of birth of the

workman is 12-04-1947. No other document has been

produced either by the union or the deceased workman or

the present applicants (legal heirs of the deceased

workman) in support of the claim that the date of birth of

the workman is 12.04.1947.

11. The next question raised by the learned advocate

for the applicants is that party no. 1 did not comply with

Implementation Instruction no.76 in respect of the workman.

Party no. 1 has taken the stand that in 1987, opportunity

was given to the workman in relation to correction of date

of birth, if any and the workman did not arise any objection

regarding any mistake in recording of his date of birth.

Except the copy of the Implementation Instruction

no. 76 (Ext. W-II) neither of the parties has filed any other

document in respect of the workman in that regard.

On perusal of Ext. W-II, it is found that, paragraph

(B) sub-clause (i) (a) of annexure-I attached to Ext. W-II

provides the procedure for review/determination of date of

birth in respect of the existing employees and under the

said paragraph, it is provided that, "In the case of the

existing employees Matriculation certificate or Higher

Secondary Certificate issued by the recognized universities

or Board or Middle Pass certificate issued by the Board of

Education and admit cards issued by the aforesaid bodies

should be treated as correct provided they were issued by

the said universities (Board) Institutions prior to the date

of employment.”

It is to be mentioned here that in clause (5) of Ext.

W-II, it has been specifically mentioned that "undisputed

cases will not be reopened." Likewise para (B), Sub-clause

(ii) provides that, "Wherever there is no variation on

records, such cases will not be reopened unless there is a

very glaring and apparent wrong entry brought to the notice

of the Management. Management after being satisfied on

the merit of the case will take appropriate action for

correction through the age determination committee /

Medical Board."

In this case, it was never the case that there was any

variation on records of party no. 1 in regard to his date of

birth. There is also no material on record to show that after

issuance of Implementation Instruction no. 76, the workman

brought to the notice of party no. 1 of having a very glaring

and apparent wrong entry in regard to his date of birth, so

as to send him by party no. 1 to the age determination

committee/Medical Board for determination of his age. No

evidence has been produced by the union to show that

any objection was raised by the workman in respect of

wrong recording of his date of birth by party no. 1. Hence,

there was no question of sending the deceased workman

to the age determination committee by party no.l.

12. In this case, party no. 1 has not produced the

Form-B registers of Damua colliery and Nandan washery

in respect of the deceased workman. It is not disputed that

an application was filed by the learned advocate for the

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % uoEcj 23] 2013@vxzgk;.k 2] 1935

6327

union on 30-10-2001 for directing the party no. 1 to produce

certain documents as mentioned in the said application

including the Forrn-B registers of the workman of Damua

colliery, Nandan Washery and Patansawangi colliery.

However, on verification, it is found that no order was

passed by the Tribunal directoring the party no. 1 to

produce the documents. When no order was passed

directing the party no. 1 to produce the documents, no

adverse inference can be drawn against the party no. 1 for

non production of the documents.

13. In this case, the Forrn-B register maintained in

respect of the workman of Patansawangi colliery has been

produced and marked as Ext. M-II. In Ext. M-II, the date of

birth of the workman has been recorded as 01-07-1938,

both in figure and in words.

It was argued by the learned advocate for the

workman that the witness examiried on behalf of the party

no. 1 has admitted that the date of birth and date of joining

in service of the workman in Ext. M-II have been written in

a different ink than the other entries made in the same and

the above fact coupled with the correspondence made

between the collieries as mentioned in the statement of

claim, it is clear that the date of birth of the workman was

mentioned by the management of Patansawangi colliery

wrongly as 01-07-1938 according to their own accord and

without any basis, after February, 1997

In the statement of claim, there is no pleading as to

whether any Forrn-B register was maintained in respect of

the workman at Damua colliery and Nandan Washery or

not. There is no pleading in the statement of claim that

though such Forrn-B registers were maintained at Damua

colliery and Nandan washery and the signatures of the

workman were taken on the same, the date of birth of the

workman was not mentioned in the same. According to the

statement of claim and evidence of the workman, the

workman came to know about the wrong recording of date

of birth only after receipt of the notice of superannuation

dated 10-01-1998 and he was shocked to know the date of

superannuation to be 01-07-1998. However, the said

statement in the statement of claim seems not to be true, in

view of the evidence of the workman himself and his

representation dated 28-08-1997, about which, the workman

has referred in paragraph 4 of his affidavit. On perusal of

the copy of the representation dated 28-08-1997 filed by

the workman, it is found that before filing of the

representation dated 28-08-1997, he already knew that his

date of birth was recorded as 01-07-1938 in the Form-B

register.

It is not disputed that not only the date of birth of

the workman, but also, the date of joining of the workman

in service have been written in a different ink in Ext. W-II. It

is not the case of the workman that the date of joining has

also not been recorded correctly. As the date of birth and

the date of joining in service of the workman have been

written in a different ink, it cannot be said that the date of

birth of the workman was recorded after February, 1997 by

the management of Patansawangi colliery arbitrarily. The

workman had not only signed on Ext. M-II, but had also

put his LTI on the same. It is not pleaded on behalf of the

workman that the signature and LTI of the workman were

taken on Ext. M-II, without mentioning the date of birth

and date of joining. Hence, it cannot be said that the date

of birth of the workman as mentioned in Ext. M-II is not

correct or that a wrong date of birth has been mentioned.

In view of the discussions made above and also

applying the principles enunciated by the Hon’ble Courts

in the decisions cited by the learned advocate for the party

no. 1 to the case in hand, it is found that party no. 1 correctly

refused to correct the date of birth of the workman. Hence,

it is ordered:—

ORDER

The action of the management of Werstern Coalfields

Ltd., through Sub- Area Manager, Pipla Sub Area, PO: Pipla,

Tah. Saoner, Distt. Nagpur in not correcting the date of

Birth i.e. 12.04.1947 of Shri Namdeo Ramaji, Pipla Mines,

Pipla Sub-Area Tah: Saoner, Distt. Nagpur is justified.As

the deceased workman was not entitled to any relief, his

legal heirs are also not entitled to any relief.

J. P. CHAND, Presiding Officer

ubZ fnYyh] 30 vDrwcj] 2013

dk-vk- 2391-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa] dsUnzh; ljdkj eSllZ ,l lh 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;] gSnjkckn ds iapkV (lanHkZ la[;k 1@ 2011)

dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 30&10&2013 dks

izkIr gqvk Fkk A

¹la- ,y&22013@1@2013&vkbZ vkj (lh,e&II)]

ch- ,e- iVuk;d] MsLd vf/dkjh

New Delhi, the 30th October, 2013

S.O. 2391.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 1/ 2011)

of the Central Government Industrial Tribunal-cum-Labour

Court, Hyderabad as shown in the Annexure, in the

Industrial Dispute between the management of Singareni

Collieries Company Limited, and their workman, received

by the Central Government on 30-10-2013.

[No. L-22013/1/2013-IR (CM-II)]

B. M. PATNAIK, Desk Officer

6328

THE GAZETTE OF INDIA : NOVEMBER 23, 2013/AGRAHAYANA 2, 1935

[PART II—SEC. 3(ii)]

ANNEXURE

IN THE LOK ADALAT

(For settlement of cases relating to CGIT-cum-Labour

Court at Hyderabad Under Section 20 of the Legal

Services Authorities Act, 1987)

5th the day of July, 2013

Present:

1. Sri Y. Reddappa Reddy, Chair Person.

2. Sri B. G. Ravinder Reddy, Member

3. Sri Niranjan Rao, Member

(Constituted U/s 19 of the LSA Act, 1987 by the APSLSA

Order ROC No. 186/LSA/2006 dt. 22-8-2006)

In the matter of case No. LCID No. of 2007/ LCID 1/2011

PLAC No. 4/2013

(On the file of CGIT-cum-Labour Court at Hyderabad)

Between:

S. Rama Suray

S/o Sri Rajan ..... Petitioner

And

The Chairman and M. D.

SCCL. Hyderabad and other

.... Respondents

This case is coming up before the Lok Adalat on

...................... for settlement in the presence of the applicant

appearing in person/ represented by his counsel Sri G. Vidya

Sar and the Respondent too, being present in person/

represented by his counsel, Sri PV V S Sharma on a persual

of the case record, after considering and hearing the case

of both sides and with the consent of both side, the Lok

Adalat has arrived at the following settlement and delivered

the following:

AWARD UNDER SECTION 21 OF THE L.S.A. Act 1987

The petitioner had agreed to the following proposals

of the Management, as the petitioner had put in 100 musters

in the two years of the preceding 5 years of dismissal and

raised the dispute within three years from the date of

dismissal from service. The contents are read over and

explained to the petitioner in his language and agreed by

him by signing the same.

(a) The petitioner workman agreed to treat his

appointment as fresh appointment as Badli Coal Filler

without back wages and continuity of service subject to

medical fitness by Company Medical Board

(b) Irrespective of past designations, petitioner

workman agrees to the appointment as Badli Coal Filler

afresh on Coal filling wherever coal filling is available and

need not be the same place where the workmen was last

employed.

(c) The petitioner workman agrees for observation

of one year with minimum mandatory 20 musters every

month and review every three months on coal filling only

is absolutely essential. In the event of any short fall of

attendance during the 3 months period, his services will be

terminated without any further notice and enquiry.

(d) Respondent Management agreed that any forced

absenteeism on account of mine accidents/natural disease,

treatment taken at Company's Hospitals will be deemed as

attendance during the trial period.

(e) All other usual terms and conditions of

appointment will be applicable i.e., transfer, hours of work,

day of rest, holidays etc., for appointment afresh.

This LCID is disposed of accordingly. The respondent

management is directed to take him back to duty as Badli

Coal Filer afresh wherever coal filling is available.

In agreement of the above, the parties/counsel have

affixed their signatures/thumb impressions in the presence

of the members of this Lok Adalat Bench.

Sd./-

Signature of Applicant(s)

Sd./-

Signature of Respondent(s)

Sd./-

Signature of Counsel for Applicant(s)

Sd./-

Signature of Counsel for Respondent( s)

Signature of Presiding Officer & Members of the

Bench

1. Sd./-

2. Sd./-

3. Sd./-

Note: This award is final and binding on all the parties

and no appeal shall lie to any court as per Section 21(2) of

LS.A. Act, 1987.

ubZ fnYyh] 30 vDrwcj] 2013

dk-vk- 2392-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa] dsUnzh; ljdkj eSllZ ,l lh 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;] gSnjkckn ds iapkV (lanHkZ la[;k 107@

2007) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 30&10&2013

dks izkIr gqvk Fkk A

¹la- ,y&22013@1@2013&vkbZ vkj (lh,e&II)]

ch- ,e- iVuk;d] MsLd vf/dkjh

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % uoEcj 23] 2013@vxzgk;.k 2] 1935

6329

New Delhi, the 30th October , 2013

S.O. 2392.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 107/

2007) of the Central Government Industrial Tribunal-cum-

Labour Court, Hyderabad as shown in the Annexure, in

the Industrial Dispute between the management of M/s.

Singareni Collieries Company Limited, and their workman,

received by the Central Government on 30-10-2013.

[No. L-22013/1/2013-IR (CM-II)]

B. M. PATNAIK, Desk Officer

ANNEXURE

IN THE LOK ADALAT

(For settlement of industrial disputes relating to CGIT-

cum-Labour at Hyderabad Under Section 20 of the Legal

Services Authorities Act, 1987)

Friday the 5th day of July, Two Thousand and Thirteen

Present : 1. Sri Y. Reddapp Reddy, Chairman

2. Sri Niranjan Rao Member

3. B.G. Ravindra Reddy Member

In the matter of case No. LCID No. 107/07 PLAC No. 3/2013

On the file of CGIT-cum-Labour Court at Hyderabad

Between

Adupu Ramesh

S/o. A. Laxmaiah R/o. Godavari Kani,

Karimnagar District. ....Petitioner

AND

1. Singareni Collieries Ltd. rep. by Managing Director,

Kothagudee Khaee Dir.

2. Chief General Manager, Ramagudam Karim Nagar Distt.

3. Colliery Manager, Singareni Colliries Ltd. GDIC 3 INCLING

....Respondents

This case is being coming up before the Lok Adalat

on 05-07-2013 for settlement in the presence of the applicant

appearing in person/represented by his counsel V. Govind

for P. Venkat Rao Advocate and representatives the

Respondents too, being present in person/ represented by

his counslel, Sri PAWS Sarma, Advocate, on a perusal of

the case record, after considering and hearing the case of

both sides and with the consent of both side line Lok

Adalat has arrived at the following settlement and delivered

the following:

AWARD UNDER SECTION 21 OF THE L.S.A. ACT, 1987

(a)

The Respondents agreed to reappoint the Petitioner

as Badli Filler.

(b)

The petitioner workman agreed to treat his

appointment as fresh appointment as Badli Coal Filler

without back wages and continuity of service subject

to medical fitness by Colliery Medical Officer.

(c)

Irrespective of past designations, petitioner workman

agrees to the appointment as Badli Coal Filler afresh

on Coal filling where coal filling is available and

need not be the same place where the workmen was

last employed.

(d)

The petitioner workman agrees for observation of

one year with minimum mandatory 20 musters every

month and review every three months on coal filling

only is absolutely essential. In the event of any short

fall of attendance during the 3 months period, his

services will be terminated without any further notice

and enquiry.

(e)

Respondent Management agreed that any forced

absenteeism on account of mine accidents/natural

disease, treatment taken at Company's Hospitals will

be deemed as attendance during the trial period.

(f)

All other usual terms and conditions of appointment

will be applicable i.e., transfer, hours of work, day of

rest, holidays etc., for appointment afresh.

This LCID 107/07is disposed of accordingly. The

respondent management shall take the petitioner back to

duty as Badli Coal Filler forthwith.

In agreement of the above, the parties/counsel have

affixed their signatures/thumb impressions in the presence

of the members of this Lok Adalat Bench.

Sd/-

Signature of Applicant(s)

Sd/-

Signature of Respondent(s)

Sd/

Signature of Counsel for Applicant(s)

Sd/

Signature of Counsel for Respondent(s)

Signature of Chairman and Members of the Bench

1. Sd/-

2. Sd/-

3. Sd/-

Note: This award is final and binding on all the parties

and no appeal shall lie to any court as per Section 21(2) of

LSA Act, 1987.

ubZ fnYyh] 30 vDrwcj] 2013

dk-vk- 2393-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa] dsUnzh; ljdkj eSllZ ,l lh 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;] gSnjkckn ds iapkV (lanHkZ la[;k 132@

6330

THE GAZETTE OF INDIA : NOVEMBER 23, 2013/AGRAHAYANA 2, 1935

[PART II—SEC. 3(ii)]

2007) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 30&10&2013

dks izkIr gqvk Fkk A

¹la- ,y&22013@1@2013&vkbZ vkj (lh,e&II)]

ch- ,e- iVuk;d] MsLd vf/dkjh

New Delhi, the 30th October, 2013

S.O. 2393.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 132/

2007) of the Central Government Industrial Tribunal-cum-

Labour Court, Hyderabad as shown in the Annexure, in

the Industrial Dispute between the management of

M/s. Singareni Collieries Company Limited, and their

workmen, received by the Central Government on 30-10-2013.

[No. L-22013/1/2013-IR (CM-II)]

B. M. PATNAIK, Desk Officer

ANNEXURE

IN THE LOK ADALAT

(For settlement of industrial disputes relating to CGIT-

cum-Labour Court at Hyderabad Under Section 20 of the

Legal Services Authorities Act, 1987)

Friday the 7th day of June, Two Thousand and Thirteen

PRESENT : 1. Smt. M. Vijaya Lakshmi : Chairman/

Presiding Officer

2. Sri C.Niranjan Rao : Member

In the matter of case No. LCID No. 132/2007 PLAC 1/2013

(On the file of CGIT-cum-Labour Court at Hyderabad)

Between:

M. Sathaiah, EC 2815320, S/o Poshaiah,

C/o Smt. A. Sarojana, Advocate, Flat No. G-7,

Rajeshwari Gayatri Sadan,

Kachiguda, Hyderabad ....Petitioner

AND

1. The Singareni Collieries Company Ltd.,

Rep by its General Manager, Srirampur (P) Area

Adilabad District

2. The Superintendent of Mines,

Chennur-2 Incline, M/s. Singareni Collieries

Company Ltd.,

Srirampur, Adilabad District . . .. Respondents

This case being coming up before the Lok Adalat on

07-06-2013 for settlement in the presence of the applicant

appearing in person/represented by his counsel Sri K.

Vasudeva Reddy, Advocate and representatives of the

Respondents too, being present in person/represented by

his counsel, Sri P A VVS Sarma, Advocate, on a perusal of

the case record, after considering and hearing the case of

both sides and with the consent of both side, the Lok

Adalat has arrived at the following settlement and delivered

the following:

AWARD UNDER SECTION 21 OF THE L.S.A. ACT,

1987

(a) The Respondents agreed to reappoint the

Petitioner as Badli Filler.

(b) The petitioner workman agreed to treat his

appointment as fresh appointment as Badli Coal Filler

without back wages and continuity of service subject to

medical fitness by Colliery Medical Officer.

(c) Irrespective of past designations, petitioner

workman agrees to the appointment as Badli Coal Filler

afresh on Coal filling where coal filling is available and

need not be the same place where the workmen was last

employed.

(d) The petitioner workman agrees for observation

of one year with mnumum mandatory 20 musters every

month and review every three months on coal filling only

is absolutely essential. In the event of any short fall of

attendance during the 3 months period, his services will be

terminated without any further notice and enquiry.

(e) Respondent Management agreed that any forced

absenteeism on account of mine accidents/natural disease,

treatment taken at Company's Hospitals will be deemed as

attendance during the trial period.

(f) All other usual terms and conditions of

appointment will be applicable 1.e., transfer, hours of work,

day of rest, holidays etc., for appointment afresh.

This LCID is disposed of accordingly. The respondent

management shall take the petitioner back to duty as Badli

Coal Filler forthwith.

In agreement of the above, the parties/counsel have

affixed their signatures/thumb impressions in the presence

of the members of this Lok Adalat Bench.

Sd/-

Signature of Applicant(s)

Sd/-

Signature of Respondent(s)

Sd/-

Signature of Counsel for Applicant(s)

Sd/-

Signature of Counsel for Respondent(s)

Signature of Chairman and Members of the Bench

1. Sd/ 2. Sd/

Note: This award is final and binding on all the parties

and no appeal shall lie to any court as per Section 21(2) of

LSA Act, 1987.

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % uoEcj 23] 2013@vxzgk;.k 2] 1935

6331

ubZ fnYyh] 30 vDrwcj] 2013

dk-vk- 2394-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa] dsUæh; ljdkj eSllZ ,l lh

lh ,y ds çca/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;] gSnjkckn ds iapkV (lanHkZ la[;k 54@2010)

dks çdkf'kr djrh gS] tks dsUæh; ljdkj dks 30&10&2013 dks

çkIr gqvk Fkk A

¹la- ,y&22013@1@2013&vkbZvkj (lh,e&II)º

ch- ,e- iVuk;d] MsLd vf/dkjh

New Delhi, the 30th October, 2013

S.O. 2394.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 54/

2010) of the Central Government Indus. Tribunal-cum-

Labour Court, Hyderabad as shown in the Annexure, in

the Industrial Dispute between the management of M/s.

Singareni Collieries Company Limited, and their workmen,

received by the Central Government on 30-10-2013.

[No. L- 22013/1/2013-IR (CM-II)]

B. M. PATNAIK, Desk Officer

ANNEXURE

IN THE LOK ADALAT

(For settlement of cases relating to CGIT-cum-

Labour Court at Hyderabad under Section 20

of the Legal Services Authorities Act, 1987)

The 5th day of July, Two thousand and Thirteen

Present :

1. Sri Y. Reddappa Reddy

:

2. Sri B. G. Ravinder Reddy :

Member

3. Sri C. Niranjan Rao

:

Member

(Constitued U/s 19 of the ISA Act, 1987 by the

APSLSA Order ROC No. 186/LSA/2006

dt. 22-8-2006)

In the matter of case No. LCID No. 54 of 2010

PLAC No. 2/2013

(On the file of CGIT-cum-Labour Court at Hyderabad)

Between :

Abdul Qayum

S/o Sattar

E.No. 2072 207

R/o Adilabad Dist

...Petitioner

And

The Singareni Colleries Company Ltd.,

Rep. by its General Manager

Goleti No. 1 Incline.

Bellampalli ...Respondents

This case is coming up before the Lok Adalat

on for settlement in the presence of the applicant appearing

in person/represented by his counsel Sri M. Govind and

the Respondent too, being present in person/represented

by his counsel, Sri Pavrs Sharma on a perusal of the case

record, after considering and hearing the case of both sides

and with the consent of both side, the Lok Adalat has

arrived at the following settlement and delivered the

following:

AWARD UNDER SECTION 21 OF THE L.S.A.

ACT, 1987

The following contents of the proposals of the

Management are read over and explained to the petitioner

in his language and having understood the same, the

petitioner agreed for the said proposals and put his thumb

impression /signature on this Award voluntarily by signing

this Award .

(a) The petitioner workman agreed to treat his

appointment as fresh appointment as Badli Coal

Filler without back wages and continuity of service

subject to medical fitness.

(b) Petitioner workman agrees to the appointment as

Badli Coal Filler afresh.

(c) The petitioner workman agrees for observation

of one year with minimum mandatory 20 musters every

month, by reviewing once in every three months, In

the event of any shortfall of attendance during the

3 months, during the observation period, his services

will be terminated without any further notice and

enquiry.

(d) Respondent Management agreed that any forced

absenteeism on account of mine accidents/natural

disease/ill-health, treatment taken at Company's

Hospitals will be deemed as attendance during the

trial period.

(e) All other usual terms and conditions of

appointment will be applicable i.e., transfer, hours of

work, day of rest, holidays etc., for appointment

afresh.

This is disposed of accordingly. The respondent

management is directed to take him back to duty as Badli

Coal Filler afresh.

In agreement of the above, the parties/counsel have

affixed their signatures/thumb impressions in the presence

of the members of this Lok Adalat Bench.

6332

THE GAZETTE OF INDIA : NOVEMBER 23, 2013/AGRAHAYANA 2, 1935

[PART II—SEC. 3(ii)]

Sd/-

Signature of Applicant(s)

Sd/-

Signature of Respondent (s)

Sd/-

Signature of Counsel for Applicant (s)

Sd/-

Signature of Counsel for Respondent (s)

Signature of Presiding Officer & Members of the Bench

1. Sd/-

2. Sd/-

3. Sd/-

Note :

This award is final and binding on all the parties

and no appeal shall lie to any court as per

Section 21(2) of L.S.A. ACT 1987.

ubZ fnYyh] 8 uoEcj] 2013

dk-vk- 2395-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ch ch lh ,y

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;] ua- 1, /uckn ds iapkV (lanHkZ la[;k

19@1995) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 8&11&2013

dks izkIr gqvk FkkA

¹la- ,y&20012@250@1993&vkbZ vkj (lh&I)º

,e- ds- ¯lg] vuqHkkx vf/dkjh

New Delhi, the 8th November, 2013

S.O. 2395.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 19/1995)

of the Central Government Industrial Tribunal/

Labour Court No. 1, Dhanbad, as shown in the Annexure

in the Industrial Dispute between the management of

M/s. BCCL and their workman, received by the Central

Government on 8-11-2013.

[No. L-20012/250/1993-IR (C-I)]

M. K. SINGH, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL (No. 1) DHANBAD

IN THE MATIER OF A REFERENCE U/s 10(1) (D) (2A)

OF I.D. ACT, 1947.

Ref. No. 19 of 1995

Employers in relation to the management of C.M.P.

D.I.L, Ranchi

AND

Their workmen.

Present : Sri Ranjan Kumar Saran, Presiding Officer

Appearances:

For the Employers. :

None

For the workman.

:

None

State :-Jharkhand. Industry:-Coal.

Dated. 13-9-2013

AWARD

By Order No.L-20012/250/93 -IR -(C-I), dtd.02-02-1995,

the Central Government in the Ministry of Labour has, in

exercise of the powers conferred by clause (d) of sub-

section (1) and sub -section (2A) of Section 10 of the

Industrial Disputes Act, 1947, referred the following

disputes for adjudication to this Tribunal:

SCHEDULE

“Whether the action of the management of

M/s. Central Mine Planning &. Design Institute Ltd.

Ranch is justified is terminating the services of

S/Shri Bablu Khalkho, Kiran Chandra Dey,

Arunangshu Choudhary, Bijay Tigga, Sahdeo sao,

Jitendra Kumar Singh, Ratan Sarkar, Sunil Kumar,

Santosh Kumar Singh, Chandra Bhushan Prasad

Sahu and Bimal Kumar Singh w.e.f. 18-6-92 , 18-6-92,

20-6-92, 18-6-92, 18-6-92, 18-6-92, 18-6-92, 20-6-92,

18-6-92 18-6-92 & 18.6.92 respectively? If not, to

what relief these workmen are entitled to?”

2. After receipt of the reference, both parties are

noticed, they submitted their claim statement , rejoinder

and document. The parties appearing for certain dates and

thereafter none appears from either side. Therefore it felt

that there is not dispute between the parties. Hence "No

Dispute" award is passed, communicate.

R. K. SARAN, Presiding Officer

ubZ fnYyh] 8 uoEcj] 2013

dk-vk- 2396-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ch ch lh ,y

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;] ua- 2, /uckn ds iapkV (lanHkZ la[;k

95@2001) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 8&11&2013

dks izkIr gqvk FkkA

¹la- ,y&20012@595@2000&vkbZ vkj (lh&I)º

,e- ds- ¯lg] vuqHkkx vf/dkjh

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % uoEcj 23] 2013@vxzgk;.k 2] 1935

6333

New Delhi, the 8th November, 2013

S.O. 2396.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 95/2001)

of the Central Government Industrial Tribunal/

Labour Court No. 2, Dhanbad, as shown in the Annexure

in the Industrial Dispute between the management of

M/s. BCCL and their workman, received by the Central

Government on 8-11-2013.

[No. L-20012/595/2000-IR (C-I)]

M. K. SINGH, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL (No. 2) AT DHANBAD

PRESENT

Shri Kishori Ram, Presiding Officer.

In the matter of an Industrial Dispute under Section

10(1 )(d) of the I.D.Act., 1947

REFERENCE NO. 95 OF 2001.

PARTIES:

The Area Secretary,

Bihar Colliery Karmgar Union,E.J.Area,Bhowra,

Dhanbad Vs. Project Officer,

Bhowra (S) Colliery of BCCL,Bhowra,Dhanbad

APPEARANCES :

On behalf of the workman/Union : Mr. P.K.Ghoshal,

Ld.Advocate

On behalf of the Management : Mr. D.K.Verma,

Ld.Advocate

State : Jharkhand

Industry : Coal

Dated, Dhanbad, the 07th May, 2013

AWARD

The Government of India, Ministry of Labour, in

exercise of the powers conferred on them under Sec. 10

(1)(d) of the I.D. Act., 1947 has referred the following dispute

to this Tribunal for adjudication vide their Order No.

L-20012/595/2000-IR(C-I) dtd. 22/26-3-2001.

SCHEDULE

“Whether the action of the management of

M/s. BCCL in dismissing Sh.Yusuf Mia from

service w.e.f. 17-1-1998 is justified? If not, to what

relief is the workman entitled?”

2. The case of the workman Yusuf Mia as stated in

the written statement filed by Sri S.N.Goswami,the

Ld.Advocate,Authorised by the Area Secretary, Bihar

Colliery Kamgar Union,Bhowra,Dhanbad is that the

workman was a permanent employee of the Bhowra (S)

Colliery of E.J. Area of M/s. BCCL working as Miner. Loader

bearing Per. No. 02345478. He was initially appointed at

Bhagatdih Colliery, and transferred to Bhowra (S) Colliery

as per the Office Order No. Ref. P.S./B.H./(P)/97/22/797

dtd.6-6-1997. He though had to report and join his duty on

7-6-1997 at his new place of posting, but he could not do

due to sudden illness beyond control, and he returned his

residence and underwent treatment at his native place from

8-6-1997 to 12-10-1997 ; and meanwhile he was too grieved

over the death of his brother to inform the management .At

recovery from his ailment ,when the workman submitted

his Medical Certificate to the Personnel Manager,

Bhowra (S) Colliery on 12-10-1997 for resumption of his

duty, he was disallowed to join his duty. The management

conducted the departmental enquiry through Sri R. J.

Singh appointed as enquiry Officer, into the chargesheet.

The Enquiry Officer issued the Notice of Enquiry as per

the letter dtd.27-10-1997 to the workman for his participation

in the enquiry fixed on 28-10-1997. But the mode of the

domestic enquiry by the Enquiry Officer was unfair,

improper and against the principle of natural justice in lack

of opportunity to him for his defence .The Management as

per the Note Sheet under Ref.No.PS/BH/(S)/97/25/2064

dtd.28-11-1997 as opined by the Project Officer allowed the

chargesheeted workman to resume his duty after placing

him in Badli List; but the workman was dismissed from his

service as per the Dismissal Letter Ref. No. PS/BH(S)/98/

23/114 dtd.17-1-1998 of the Project Officer,the said

colliery who was neither the Appoint Authority nor the

Disciplinary Authority to dismiss him. So the dismissal

Order was vague, arbitrary and illegal as per the Certified

Standing Orders & Mines Act as well as the principal of

natural justice, as the copy of the enquiry proceeding was

not supplied of the workman prior to his dismissal. The

action of the management in dismissing the workman from

service for his alleged absentism is higher than the gravity

of the alleged misconduct, depriving him of his living from

employment, so it is unjustified, as it is shockingly

disproportionate.

3. Accordingly, in the rejoinder filed by the Learned

Advocate authorized by the Union concerned for the

workman categorically denying the allegations of the O.P./

Management, it has been alleged that consequent upon

his transfer from Bhagatdih Colliery (East) under Kustore

Area -VII of the M/s. BCCL where he was initially appointed

to Bhowra (S) Colliery under Area-XI more than 20 Kms.

away where to join his duty on 7-6-1997 without transport

facility, but due to his sickness and death of his brother,

could not join his duty. The enquiry is liable to be vitiated

as fictitious.

6334

THE GAZETTE OF INDIA : NOVEMBER 23, 2013/AGRAHAYANA 2, 1935

[PART II—SEC. 3(ii)]

4. Whereas the contra pleaded case of the O.P./

Management with specific denials is that workman Yusuf

Mia was though a permanent M/Loader of Bhowra (5)

Colliery. Yet his absence from duty from 7-6-1997 without

leave and sufficient cause was misconduct under the

Certified Standing Orders of the Company. So he was

issued the charge sheet dtd.13-10-1997, to which he

submitted his reply was not found satisfactory. Hence the

Enquiry Officer was appointed as per the Order

dtd. 22-10-199. Notice of enquiry was issued to the workman,

intimating him the date, time and place of the enquiry and

the workman received it.

The departmental enquiry was conducted as per the

notice wherein workman was present, fully participating

therein, and he was given adequate opportunity for his

defence as per the principle of natural justice. The Enquiry

Officer has submitted his enquiry report, holding the charge

fully proved against him undoubtedly.The Disciplinary

authority had served the copy of the enquiry report as per

the letter dtd. 09-01-1998. After going through and

considering the Enquiry proceeding, Enquiry Report, the

Disciplinary Authority agreed with the findings of the

Enquiry Officer, also took into account of the past

attendance of the workman for 65 and 60 days in the 1995

and 1996 respectively, and then it was decided to dismiss

him from his service; hence he was dismissed from service

w.e.f. 17-1-1998. It is also alleged the written statement

submitted on behalf of the workman was not verified by

the party to the dispute, so it is liable to be rejected.

Thus, the action of the management of M/s. BCCL as

mentioned in the Scheduled to the Reference is justified

and legal.

FINDING WITH REASONS

5. In course of hearing /evidence of the workman at

the preliminary point, the Learned Advocate S.N.Goswami

for the Union concerned by the petition dtd. 30-07-2012

under the signatures of the workman and the Learned

Counsel has accepted the domestic enquiry as fair, and

accordingly all the enquiry proceedings and relevant papers

were marked as Ext.M.1 to M.6 (on formal proof waived)

and the Tribunal as per the Order No. 31 dtd. 30-7-2012

held the domestic enquiry as fair and proper and in

accordance with the principle of natural justice.

Thereafter, the reference directly came up for

hearing a final argument on merits as to the point of dismissal

as punishment to the workman for his misconduct of

absentism under Sec.ll A of the Industrial Dispute Act.1947.

It is a submitted on behalf of the workman, Yusuf

Mia was a permanent M/Loader as initially appointed, but

he was dismissed for unauthorized absentism from

8-6-1997 to 12-10-1997, though his medical certificate was

also filed by him in the Enquiry. Thus it is requested for

resumption of his duty. Whereas Mr. D.K.Verma,

Ld.Counsel for the O.P./management has submitted that

the very statement of the workman reveals his admission

of his unauthorized absentism; moreover his past conduct

was not fair,so it is alleged his dismissal as justified.

On perusal and consideration of the materials

available on the case record, I find the facts as under:

(i) It is indisputable that the workman was a

permanent M/Loader of the Management.

(ii) He had accepted his absentism from his duty for

the relevant period.

(iii) But he was awarded dismissal punishment for

his aforesaid absentism,prior to which no second

Show Cause was issued to him by the O.P./

management. It is contrary of the principle of the

natural justice.

On consideration of the materials available on the

case record, I find and hold that dismissal punishment to

the workman for his absentism with immediate effect as the

letter dtd.17-1-1998(Ext.M.7) appears to be harsh and

disproportionate to the nature of his unprecedent

misconduct, so it is unjustified. The workman deserves a

relief under Sec. 11 A of the Industrial Act, 1947.

Therefore, it is, hereby, in the term of the Reference:

ORDERED

The Award be and the same is passed that the action

of the Management of M/s. BCCL in dismissing of

Shri Yusuf Mia from service w.e.f., 17-1-1998 is legally

unjustified. Hence, the workman is entitled to his re-

instatement in his service but without back wages.

Let the copies of one soft and one hard of the Award

be sent to the Ministry of Labour & Employment,

Government of India, New Delhi, for information and

publication in the Gazette of the India.

KISHORI RAM, Presiding Officer

ubZ fnYyh] 8 uoEcj] 2013

dk-vk- 2397-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ch ch lh ,y

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;] ua- 1, /uckn ds iapkV (lanHkZ la[;k

48@1999) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 8&11&2013

dks izkIr gqvk FkkA

¹la- ,y&20012@441@1998&vkbZ vkj (lh&I)º

,e- ds- ¯lg] vuqHkkx vf/dkjh

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % uoEcj 23] 2013@vxzgk;.k 2] 1935

6335

New Delhi, the 8th November, 2013

S.O. 2397.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 48/1999)

of the Central Government Industrial Tribunal/

Labour Court No. 1, Dhanbad, as shown in the Annexure

in the Industrial Dispute between the management of

M/s. BCCL and their workman, received by the Central

Government on 08-11-2013.

[No. L-20012/441/1998-IR (C-I)]

M. K. SINGH, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL No. 1, DHANBAD

IN THE MATTER OF A REFERENCE U/S 10(1) (D) (2A)

OF I.D. ACT, 1947.

Ref. No. 48 of 1999

Employers in relation to the management of Bhowra (S)

Colliery of M/S. B.C.C.L.

AND

Their workmen

Present : Sri Ranjan Kumar Saran, Presiding Officer

APPEARANCES :

For the Employers.

:

None

For the workman.

:

None

State : Jharkhand.

Industry: Coal

Dated. 30-9-2013

AWARD

By Order No.L-20012/441/98-IR(C-I), dated 17-04-99,

the Central Government in the Ministry of Labour has, in

exercise of the powers conferred by clause (d) of sub-

section (1) and sub-section (2A) of Section 10 of the

Industrial Disputes Act, 1947, referred the following

disputes for adjudication to this Tribunal:

SCHEDULE

"Whether the action of the management of Bhowra

(5) Colliery of M/s. BCCL, in not allowing Sri A.K.

Mukherjee, cap lamp cleaner after coming out of the

jail custody w.e.f. 14-05-90 to 06-12-95 in connection

with the suicide of his wife is justified? If not, to

what relief the workman is entitled?"

2. After receipt of the reference, both parties are

noticed. But appearing for certain dates, none appears

subsequently, case remain pending, It is felt that the

dispute between the parties have been resolved in the

meantime. Hence "No dispute" award is passed

communicate.

R. K. SARAN, Presiding Officer

ubZ fnYyh] 8 uoEcj] 2013

dk-vk- 2398-—vkS|ksfxd fookn vf/fu;e] 1947 (1947

dk 14) dh /kjk 17 ds vuqlj.k esa] dsUnzh; ljdkj lh lh ,y 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; ua- 2, /uckn ds iapkV (lanHkZ la[;k

13@2007] 14@2007 ,oa 15@2007) dks izdkf'kr djrh gS] tks

dsUnzh; ljdkj dks 8&11&2013 dks izkIr gqvk FkkA

¹la- ,y&20012@80@2006&vkbZ vkj (lh,e&I)]

la- ,y&20012@87@2006&vkbZ vkj (lh,e&I)]

la- ,y&20012@86@2006&vkbZ vkj (lh,e&I)º

,e- ds- ¯lg] vuqHkkx vf/dkjh

New Delhi, the 8th November, 2013

S.O. 2398.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 13/2007,

14/2007, 15/2007) of the Central Government Industrial

Tribunal/Labour Court No. 2, Dhanbad, as shown in the

Annexure in the Industrial Dispute between the

management of M/s. CCL and their workman, received by

the Central Government on 08-11-2013.

[No. L-20012/80/2006-IR (C-I),

No. L-20012/87/2006-IR (C-I),

No. L-20012/86/2006-IR (C-I)]

M. K. SINGH, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL (No. 2) AT DHANBAD

PRESENT

Shri Kishori Ram, Presiding Officer.

In the matter of Industrial Dispute under Section

10(1)(d) of the I.D.Act., 1947

REFERENCE No . 13 of 2007

6336

THE GAZETTE OF INDIA : NOVEMBER 23, 2013/AGRAHAYANA 2, 1935

[PART II—SEC. 3(ii)]

PARTIES:

Employers in relation to the management of

Ashok Project, Piparwar Area of M/s. CCL, Bachra,

Distt. Chatra, Jharkhand and for worker

Mahadev Mahato and 17 others.

[Ministry's order No. L-20012/80/06-IR(CM-I)

dated 07-03-2007]

WITH

REFERENCE No. 14 of 2007

PARTIES:

Employers in relation to the same management

for worker for Gopal Mahato and 17 others.

[Ministry's Order No.L-20012/87/06-IR(CM-I)

dated 15-03-2007]

WITH

REFERENCE No. 15 of 2007

PARTIES:

Employers in relation to the same management

for worker for Bigan Mahato and 1 6 others.

[Ministry’s Order No. L-20012/86/06-IR(CM-I)

dated 15-03-2007]

APPEARANCES :

On behalf of the workman :

Mr. K.Chakrabotry

Ld.Advocate

On behalf of the Management : Mr. D.K.Verma,

Ld.Advocate

State : Jharkhand

Industry : Coal

Dated, Dhanbad, the 15th March, 2013

AWARD

The Government of India, Ministry of Labour, in

exercise of the powers conferred on them under Section

10(1)(d) of the I.D. Act.,1947 has referred the following

disputes to this Tribunal for adjudication vide their Order

Nos. referred the foregoing para as per the following

schedules :

SCHEDULE OF REF. NO. 13 OF 2007

"Whether the demand of the Janta Mazdoor Sangh

from the management of Ashok Piparwar Area of

M/s. CCL for regularization of Shri Mahadeo Mahato

& 17 others (as per list) is justified and legal? If so, to

what reliefs are the concerned workmen entitled &

from what date ?"

SCHEDULE OF REF. NO. 14 OF 2007

"Whether the demand of the Janta Mazdoor Sangh

from the management of Ashok Piparwar Area of

M/s. CCL for regularization of Shri Gapal Mahato &

17 others (as per list) is justified and legal? If so, to

what reliefs are the concerned workmen entitled &

from what date ?."

SCHEDULE OF REF. NO. 15 OF 2007

"Whether the demand of the Janta Mazdoor Sangh

from the management of Ashok Piparwar Area of

M/s. CCL for regularization of Shri Bigan Mahato &

16 others (as per list) is justified and legal? If so,to

what reliefs are the concerned workmen entitled &

from what date ?"

2. Since the cause of industrial dispute being the

same for regularisation of all the workmen concerned

between them and the same Opp./Management so the

Ref. Cases No. 14/2007 and 15/2007 have been amalgamated

with the present Ref. case No.13/2007 as per order

dt.14-6-11 of the Tribunal in it for adjudication which

shall be binding upon both the parties in respect of the

claim of the petitioner- Sangh for regularisation of the

workmen concerned.

3. All the three cases of the same sponsoring union

for the workmen Mahadeo Mahato with 17 others, Gopal

Mahato with 17 others and Bigan Mahato with 16 others

respectively, are replica of each of their cases concerned.

All the concerned workmen as per their respective lists

(enclosed with their concerned cases) are alleged to have

been performing the job related to dumping of coal at

R.C.M.Siding and loading of coal on the wagons for

the last twelve years directly under the control and

supervision of the management.The entire coal of Ashoka

Project is transported through R.C.M.Siding to different

destinations for different customers after sorting the coal

out of its impurities such as stone, earth and 'Jhama'

etc.Their job also includes guidance the dumper operator

for proper dumping of coal at right place, levelling of coal

on the wagon and cleaning the railway lines. All the

implements for executing the job are being supplied by

the management. The aforesaid job of loading and

transporting is continuous and permanent in nature. The

management is paying them their wage @ Rs.48000

per day through intermediaries much below the rate -

prescribed in NCWA.When the management unconsidered

their several representations for their status as employees

of it, the union raised the industrial dispute before the

A.L.C.(C), Ranchi where the plea of no employer-employee

relationship existence was pleaded by the management.

But its failure in reconciliation resulted in the reference for

adjudication. The attendance register of the workmen

also bears the signature of the management's official,

though the management is camouflaging the real

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % uoEcj 23] 2013@vxzgk;.k 2] 1935

6337

relationship as employees of the management. Thus the

demand of the Union for the regularisation of all the

workmen of all their three cases is justified and legal.

4. The rejoinders of the Union for the workmen in

Ref. Cases Nos. 14 & 15 of the year 2007 are same and

similar, with specific denials that the employer-employee

relationship exists between both the management and

the workmen, i.e.,Gopal Mahato and 17 others.The

provisions of Articles 14 and 16 do not give right to the

management to exploit the poor workmen by camouflaging

the real issue.

5. Whereas the case of the Opp/Management is that

the presons concerned were never engaged nor paid any

wage by the management of CCL for any work at R.C.M.

Siding of Ashok Project. M/s. CCL being a Government

company registered under the companies Act is a sta te as

meant under Article 14 of the Indian Constitution. It is duty

bound of CCL to observe the mandatory provision of 14 &

16 of the Constitution of India.The Government company

has formulated the recruitment process for appointment of

workmen in accordance with the aforesaid provisions of

the Indian Constitution. No body can claim employment in

M/s. CCL in violation of the said constitutional provisions.

Factually the job as they have claimed is thoroughly done

by mechanised means, but not by mannual means. No

employer-employee relationship exists between the

management of Ashok Piperwar Area of M/s. CCL and

Gopal Mahato and 17 others or Bigan Mahato and 16

others. The Union enrolled the names of job seekers, and

raised an industrial dispute for introducing them in the

employment of public sector undertaking through litigation.

The management by categorical denials has pleaded

in its rejoinder that transporting, entire dispatching and

loading of coal is being done thoroughly by mechanised

means, but not by manual means. The persons concerned

never performed any kind of job under the central and

supervision of the management.

FINDING WITH REASONING.

6. In the main Reference case with the Ref. Cases

No. 14 & 15/2007,WWI Bigan Mahato for the Union and

MWI Shravan Kumar, the Manager (Mining) of Ashok

Project, for the management have been examined.

WWI Bigan Mahato, one of the workmen, for all the

workmen including himself of their reference cases has

stated to have been working at R.C.M. Siding of Ashok

Project for the last 15 years by performing the job of

picking out stones from the dumped coal, loading of coal

by the Pay Loader into the wagons, levelling the loaded

coal on the wagons, and cleaning of the Railway lines of it.

The work is regular and of perennial in nature.The

management provides them the tools, such as Belchas for

the job under the supervision of the management. Though

they are paid by the management their wages, yet not in

accordance with the NCWA.The photocopies of

Attendance Register of the workmen of RCM Siding

under signature of Mr. A.K. Jha,superintendent of Mines

of Ashok project, produced and proved as Extt.W.1 and

W.1/1 by him (WW1) . He claimed the workmen having

been appointed by aforesaid Shri A. K. Jha, but he could

not recall the year of their appointment.The witness has

clearly admitted that they were given neither any

appointment letter nor I.D.Card (Identity card) for the

job nor pay slip for wages nor any written order for

cleaning outside the project or for levelling the coal on

the wagons. Likewise the the witness remained silent over

whether any written order was given to them for picking up

the stones from the dumped coal. Filing of aforesaid

documents (Photocopies) after fabrication has been

denied by the witness.

So far as the photocopies of the alleged Attendance

Registers (Extt.W.1 and W.1/1) which the witness (WWI)

has got f'rom their leader, are concerned, none of them are

so, rather the photo copy of the former Register Form G

with written ‘Attendance Register' for 1eave Account

during the calender year which is for the period from 7th

Jan. to 28th April, 2001 related to monthwise but shiftwise

noted their working days such as 4/12 etc. Likewise is the

Attendance Register written on the "Pilot Guard Register"

for the period from 9th December, 2001 to 27th April, 2002,

simllarly maintained as the former one for the working

days of the alleged workmer, but not regularly always.

7. Whereas as per the statement of MWI Shravan

Kumar, the Manager (Mining) at Ashok project, sternly

refuting the engagement of any contractor for loading the

coal on the railway wagon or the engagement of any

worker through a contractor for the same, has asserted

the mechanically loading of the coal products with the

help of pay loader Machine at the RCM siding of the

Ashok Project, for which they have the pay loader

machine from contractor or owner of the machine ; since

the management has not directly engaged the labourers,

the demand of the Union for their regularisation is

unjustified. In fact the coal is transported by the contractors

and other contractors as well as transporting contractors

load the coal on the wagons at RCMS situated at about 10

Kms. away from the Project.This is the Open Cast Mine

where the product of coal is produced through blasting

and coal is cut by surface Miners, the Machines cutting

the coal on the surface. Shell Pickers pick up shell from the

coal. The witness knows Mr. A. K. Jha, the Superintendent

of Mines who has been transferred from the project.

8. Mr. D. Mukherjee,the Learned Advocate for the

Union as per his written argument has to submit that the

management in para 11 of its written statement in the first

sentence "that the person concerned have to be working

in RCM Siding."

6338

THE GAZETTE OF INDIA : NOVEMBER 23, 2013/AGRAHAYANA 2, 1935

[PART II—SEC. 3(ii)]

Firstly, by connoting the first sentence in para 11

of the management's written statement - "The persons

concerned have to be working in RCM Siding",

Mr. D. Mukherjee, the Ld. Counsel for the Union has meant

for the concerned workman have been working in RCM

Siding.But his such plea being shallow is unsustainable in

view of the adverse pleading specific denial of the

management in its written statement with rejoinder.

Secondly, the plea of Mr.Mukherjee, the Ld.Counsel

for the Union is that an adverse inference is drawable for

intentional witholding towards the management which

neither submitted nor explained about the documents

called for as per the petition dt. 20-4-11 of the workmen

(filed in the Ref No. 14/2007 only) whereas WWI Bigan

Mahato had proved the Extt.1 and 1/1 (the photo copies of

the Attendance Registers). At the point of time, the

workmen pleading is vague as for 12 years as in their

evidence (of WWl) for 15 years devoid of their specific

period of service. Likewise the Management in its pleading

as also in it evidence of MWI has aftirmed the

unengagement of the workmen by it at any time. An adverse

inference runs not on vague terms, but on specific facts ot

a case. So the atoresaid plea of the Ld. Counsel for the

workmen prima facie seems baseless no the ratio decidendi

of the authority: 2012 (132) FLRS 7 Jhar. H.C. (DB)

Employers, Management of Balihari Colliery, Putkee Area

of BCCL, Dhanbad Vs. the Br. Secretary, RCMS, Dbanbad,

applies to it.

Thirdly, the emphatic submission of Mr. Mukherjee,

the Advocate for the Union, is that the Management in

written statement admitted contractors are engaged for

transporting coal from Ashok Project to RCM Railway

Siding and the same loaded in Railway wagon

mechanically through contractor, but it did not corroborate

its pleading, so pleading is no substitute for proof. The

plea ot the Ld. Counsel for the Union is palpably untenable,

as the pleadings of the management in any or these three

References have not at all any whisper about the

engagement of contractors for transporting coal etc.

9. Last1y, Mr.Mukherjee submits that the workmen

as the employees of the management being beyond dispute

as per their Attendance Registers (Extt.W. 1 and

1/1) have been working who are entitled to regularisation

of their service under the management. He has cited the

following rulings by their photocopies with other

documents as under :

(I ) 2002 LLR 449( SC) M/s Indian Farmers Ferti1izer

Corp. Vs. Industria1 Tribuna1-1, Allahabad &

others,wherein workmen were engaged direct1y by

the Appellant; but 1ater on to evade the legality

arising under the law stated to show their

employment as mazdoor employed through a

contract and such entries are fake.

Held : On due appreciation of evidence the finding

of Tribunals that they are the employees of the

Appellant is inassailable.

(II) 2008 AIR SCW 3996 : GM, ONGC, Shilchar Vs.

ONGC contractual Union case: The appellant, the

ONGC was engaged in the exploration for oil and

natural gas.ln 1997, the ONGC started its drilling

operation in the districts of Coachar, and for that

purpose, engaged a large number of staff in various

fields, initially through contractors. These employees

of the Appellants through tneir Union raise an

industrial dispute for the regu1arisation of their

service.

Held : Award of Tribunal hoiding workers to be

employee of principal employer and granting relief

of regularisation is not outside to jurisdiction even if

wording of reference showing was as to regularisation

of contractual workers compared to pleadings related

to the core issue of status of worker as employee of

principal employer (Paras 16,18)

(III) 2011 LLR 1079 (SC) (DB), Bhilwara Dugdh

Utpadak Sahakari S. Ltd. vs. Vinor Kumar Sharma

Dead by LRs & Ors .

The award of the Labour Court holding the

concerned workmen were the employees of the

Appellant/employer but not of the contractort’s was

upheld by the High Cout and the Hon’ble Apex

Court as well. But photocopy of the Order

dt.18-11-2009 of Hon’ble Apex Court passed in Civil

Appeal No. 3962 of 2006 Bihar Colliery Kamgar

Union Vs. Employer, the management of Balihari

Colliery of BCCL & others -- filed incomplete and

illegible.

(IV) 2012 LLR 248 (Jharkhand H.C.)(SB) Usha

Martin Industries Ltd, Ranchi

Vs.

Presiding Officer, Labour Court, Ranchi and

Another.

In the case, the Hon’ble High Court Ranchi upheld

the award for reinstatement to a workman, as there

had been direct relationship of employer and the

terminated workman in lack of any proof of

Registration Certificate or any Licence u/s 7(2) and

12 of the Contract Labour (Regulation & Abolition)

Act 1970 concering Ushal Ishmal Division for

management.(Para 11-13) .

Photocopies of Award dt.18-08-93 by Sri T. P. Singh,

then Presiding Officer, CGIT-LC(No. 1) Dhanbad passed in

¹Hkkx II—[k.M 3(ii)º

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6339

Ref. Case No. 156/99, of the order dt.19-2-99 of Hon’ble

High Court, Patna in the Civil writ Jurisdiction Case No.

7/1998 (R), of the order dt.12-8-99 of Hon'ble High Court,

Patna at Ranchi Bench in LPA No.83/1999 (R), illegible.

Order dt. 9-3-2010 of Hon'ble Supreme Court of India

passed in Civil Appeal No. 8526/2002 with A.No. 8525 &

6651/2003 -related to reinstatement of workmen after being

satisfied about their proper identity.

10. Challenging the photocopies of the alleged

Attendance Registers (Extt.W.1 & 1/1) as fabricated,

so having no evidentiary value, Mr. D.K.Verma,the

Ld.Counsel for the Management has to contend that in

the face of the admission of the WWI Bigan Mahato one

of the alleged workmen for all, having got neither any

appointment letter nor identity card nor any authority

letter for their alleged work the fact of the management

that they were never engaged by it, and accordingly no

relationship of employer and employees between the

management and the persons concerned stands affirmed.

Further it is submitted no his behalf that the contractor

workers are not entitled for regularisation in the services

of principal employer reported in Lab.I.C.2001 at

page 3656.

The Hon'ble Supreme Court in the case of state of

Karnataka Vs. Uma Devi, 2006 SCC (L &S) 753 held that

absorption, regularisation or permanent continuance of

temporary, contractual, casual,dailywage or adhoc

employee appointed/ recruited dehors the constitutional

scheme of public employment on issuance of directions

by Court, therefore - Held issuance of such directions

amount to creating mode of public appointment which is

not permissible,and that the Hon’ble Apex Court again

upheld in the case of Official Liquidator Vs. Dayanand

and others, 2009 SCC (L&S) W.J. at page 943 that the

judgement of Supreme Court in Uma Devi Case has a

binding effect to all Court and Tribunals and regularisation

of temporary contractual, casual, daily wage and adhoc

employee are not entitled for regularisation. Besides,

Mr. Verma, the Ld. Advocate for the management

emphatically submits that the Hon’ble Supreme Court in

view of the law laid down in Uma Devi Case held that

recruitment could not be made contrary to statutory

requirement rules and in violation of Article 14 & 16, so the

claim for regularisation on the basis of engagement as

daily rated casual labourers is not maintainable as cited &

submitted by Mr. Verma, Ld.Counsel for the management.

11. On due appreciation of the pleading based

evidences of both the parties, I find the following facts :

(I) On lifting the veil of camouflage it is discernable

the relationship of employee and employee existent

between the workmen and the management but for a

short time temporarily.

(II) In course of the employment of the workmen

concerned it stands clear that they were casually

employed for their work at the Railway Siding of the

management for the period of 146 and 104 days in

the years of 2001 and 2002 respectively, though out

of the aforesaid working days sometime two days

or at times not all workmen worked on 26th January,

2002 just as on 16th Feb., 2002 and the likewise.

Under these circumstances, it is held that none of

the workmen concerned in their respective cases appears

to have worked for 240 days in any calender year noted

above which is the prerequisite to their regularisation

under Sec.25 B Sub.Sec. 2(a)(II) of the Industrial Dispute

Act,1947 in view of the nature of their aforesaid job. ln

result,the reference is responded as such :

The demand of Janta Mazdoor Sangh from the

management of Ashok Piparwar Area of M/s CCL for

regularisation of Shri Mahadeo Mahato & 17 others, of

Shri Gopal Mahato and 17 others and of Shri Bigan

Mahato & 16 others (as per their respective Lists) is totally

unjustified and illegal. Therefore the concerned workmen

are not entitled to any relief from any date.

KISHORI RAM, Presiding Officer

REF. NO. 13/2007

L-20012/80/2006-IR(C-I)

List of workmen

1. Sri Mahadeo Mahto

2. Sri Jaleshar Mahto

3. Sri Jogan Mahto

4. Sri Santosh Mahto

5. Sri Tulsi Mahto

6. Sri Budhram Mahto

7. Sri Dhrju Mahto

8. Sri Sahadeo Mahto

9.

Sri Dashrath Mahto

10. Sri Lalka Mahto

11. Sri Chaman Mahto

12. Sri Sohrai Mahto

13

Sri Thakur Mahto

14. Sri Dilu Mahto

I5.

Sri Ramprasad Mahto

16. Sri Budhuwa Mahto

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THE GAZETTE OF INDIA : NOVEMBER 23, 2013/AGRAHAYANA 2, 1935

[PART II—SEC. 3(ii)]

17. Sri Pachala Mahto

18. Sri Shibu Mahto

REF. NO. 14/2007

L-20012/87/2006-IR(C-I)

List of workmen

1. Sri Gopal Mahto

2.

Sri Madho Mahto

3.

Sri Hulash Mahto

4.

Sri Ram Chandar Mahto

5.

Sri Dhirju Mahto

6.

Sri Lalku Mahto

7.

Sri Mitku Mahto

8 .

Sri Bishnath Mahto

9.

Sri Hari Lal Mahto

10. Sri Fuleshar Mahto

11. Sri Baleshar Mahto, No. l

12. Sri Baleshar Mahto, No. 2

13. Sri Manoj Mahto

14. Sri Lalit Mahto

15. Sri Budhan Mahto

16. Sri Raman Mahto

17. Sri Komla Mahto

18. Sri Kartik Mahto

REF. NO. 15/2007

L-20012/86/2006-IR(C-I)

List of workmen

1. Sri Bigan Mahto

2.

Sri Thurka Mahto

3.

Sri Ghani Nath Mahto

4.

Sri Gorakh Mahto

5.

Sri Nandlal Mahto

6.

Sri Madho Mahto

7.

Sri Dhuska Mahto

8.

Sri Kunjal Mahto

9.

Sri Kaila Mahto

10. Sri Puran Mahto

11. Sri Kishun Mahto

12. Sri Aklu Mahto

13. Sri Lakho Singh

14. Sri Dhumesh Mahto

15. Sri Dhaneshar Mahto

16. Sri Sahadeo Mahto

17. Sri Kajru Mahto

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New Delhi, the 8th November, 2013

S.O. 2399.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 155/

2000) of the Central Government Industrial Tribunal-cum-

Labour Court No. 2, Dhanbad, as shown in the Annexure

in the Industrial Dispute between the management of

M/s. BCCL and their workman, received by the Central

Government on 08-11-2013.

[No. L-22012/208/2000-IR (C-I)]

M. K. SINGH, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL (No. 2) AT DHANBAD

PRESENT

SHRI KISHORI RAM, Presiding Officer.

In the matter of Industrial Dispute under Section

10(1 )(d) of the I.D. Act, 1947

¹Hkkx II—[k.M 3(ii)º

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6341

REFERENCE NO. 155 OF 2000

PARTIES:

The Area President,

Rastriya Colliery Mazdoor Sangh,

P. B. Area, Kusunda,

Dhanbad

Vs

General Manager,

P.B. Area of M/s. BCCL,

Dhanbad

APPEARANCES :

On behalf of the workman : Mr. N.G.. Arun,

Union Representative

On behalf of the Management : Mr. D. K.Verma,

Ld. Advocate

State : Jharkhand

Industry : Coal

Dated, Dhanbad, the 24th June, 2013

AWARD

The Government of India, Ministry of Labour, in

exercise of the powers conferred on then under Sec.l0(1)(d)

of the I.D. Act.,1947 has referred the following dispute to

this Tribunal for adjudication vide their Order No. L-20012/

208/2000(C-I) dt.18-10-2000.

SCHEDULE

"Whether the demand of the Union for regularization

of Sri Jagdish Prasad Mahato, Category-II Mazdoor

to the post of Cap Lamp Issue Clerk is proper and

justified? If not to what relief is the concerned

workman is entitled and from what date?"

2. The case of workman Jagdish Prasad Mahato as

sponsored by the Rastriya Colliery Mazdoor Sang is that

the workman a permanent employee of Bhagatdih Colliery

was earlier working as a Time Rated Mazdoor, in Cat.II.

But as per the office order No. LAB/684 dt. 5-6-92 of the

Dy. C.M.E./agent of the Colliery with the approval of the

General Manager, PB Area as communicated by the letter

No. F-ESI/Placement/92 of the Dy. C.M.E., the management

employed and allowed to work as Cap Lamp Issue Clerk in

Clerk Gr. III in exigency in 1992 ; since then he has been

continuously performing the said work from May,1992 by

putting in more than 240 days of attendance in a year ,yet

he is being paid the wages of Cat. II without payment of

differences of wages. The Certified Standing Order of the

Company defines a permanent employee as one where

performance of a job of permanent nature for a period of six

months or more. Even a Badli worker ceases to be Badli

worker when he performs a particular job for 240 days in a

year even if the original worker returns. As such the

workman deserves to be regularized as Cap Lamp Issue

Clerk in Grade II since his working so.

3. Shorn of unscrupulous facts stated on the

rejoinder, the Union in its rejoinder appears to has

categorically denied the allegations of the O.P./

Management, and stated that deployment or promotion of

clerk upto special grade is within the power of the General

Manager, who is much competent to deploy a workman on

any post in exigency, as he has the delegated power from

the Board. It is the norms of the Company that if the

workman completed 190 or 240 days in underground or on

the surface, in a particular job, he becomes entitled to

regularization in that job. As per the verdict of the Hon’ble

Apex Court, if workers have been deployed to do the certain

job for a long spell of time - two-three years, the employer

should evolve a scheme for their regularization in that

post, irrespective of any qualifications bar. The Art.12 of

the Constitution does not confer upon the state any power

to deprive any citizen of his legitimate right.

4. Whereas the contra pleaded case of the O,P./

Management is that due to non-appearance of the parties

on 29th April and 7th August,2002,the case was closed,

and a no dispute award was accordingly passed by the

Tribunal; thereafter no notice for any purpose was received

by the Management, hence it was not required for it for

any further steps in the matter. Suddenly on receipt of the

letter bearing Reference No. 155/2000/995 dt. 29-4-2005 from

the Tribunal about the passing of an award in the reference,

the management filed a petition before the Tribunal to

recall the Exparte Award, but it was rejected by the Tribunal.

Thereafter, the Writ petition No. 600/2006 preferred by the

Management was allowed by the Hon'ble Court, Jharkhand

, Ranch after hearing setting aside the Award

as per its order dt. 6-12-2010, and remanding the case to the

Tribunal for hearing. During the pendency of the Writ

application, the Management as per its Office Order

under Ref.No. PBA/PER/IR/2007/1479 dt.25/27-8-2007

regularized the workman as Cap Lamp Issue Clerk Gr. III

considering his primefacie qualification. The workman was

originally appointed as Time rated Mazdoor, and

subsequently by passage of time, was placed in Cat.II

Mazdoor at Bhagabandh Colliery.

5. Further is alleged by the O.P./Management that a

workman working as Time rated Mazdoor as the present

6342

THE GAZETTE OF INDIA : NOVEMBER 23, 2013/AGRAHAYANA 2, 1935

[PART II—SEC. 3(ii)]

workman cannot be allowed to be promoted in ex-cadre

post in the clerical post in the clerical cadre ; such change

of cadre is only permissible upon the orders passed by the

Competent Authority. the Director (Personnel). So workman

Jagdish Prasad,the Time rated Mazdoor, merely on his

account of his being allowed to work in an ex-cadre post,

as it amounts to change in cadre. Neither of the Certified

Standing Order, the N.C.W.A. and the cadre scheme

provides for regularization to a workman on the post he

was temporarily deployed for. The BCCL is a Government

Company registered under the Company Act, and is a state

within the meaning of Article 14 of the Constitution of

Indians, so it cannot regularize a workman in a particular

post in violation of the Art. 14 & 16 of the Constitution, as

the Joint Bipartite Committee for the Coal Ministry (JBCCI)

was constituted by the Government of India, Ministry of

Coal, consisted of the representatives' of the Management

and the Central Trade Union .None of the Management

and the Union can violate the Cadre Scheme and

implementation Instruction formulated and issued by and

issued by the JBCCI. So the demand of the union for

regularization of the workman in the post of Cap Lamp

Issue clerk with retrospective date is neither legal nor

justified.

FINDING WITH REASONS

6. In the instant reference, WWI Jagdish Prasad

Mahato, the workman himself for the Union and MWI

Rajesh Kumar Kar, the Personnel Executive of the said

Colliery for the O.P./Management have been examined

retrospectively.

The statement of WWI Jagdish Pd. Mahato, the

workman himself, discloses that he was,in fact, appointed

as the General Mazdoor under Land Loser Scheme at

Bhagabandh Colliery in the year 1990 but as per to office

orders (dt. 26-5-92 and 5-6-92 - Ext.Wl and 1/1

respectively),he was allowed to work as C.L. (Cap Lamp)

lssue Clerk, and accordingly, he was addressed as Cap

Lamp Issue Clerk as per his chargesheet dt. l0-6-94, the

Office Orders 17-6-94 and 25-2-95 and another chargesheet

dt.24-6-96 (Ext. W.2 to W. 5 respectively)as also evident

from the photocopies of his Attendance Register

concerned (Ext. W.7 series), he claimed for regularization

as Cap Lamp Issue Clerk as per his five representations

(Ext. W.6 series).But there is no dispute as admitted by the

workman that he was not interviewed before his purely

temporary posting as the Cap Lamp Issue Clerk as per

letter of the Management, for which he was not selected,

as it is the selection post, and that in the year 2007, he has

been regularized as the clerk

7. Likewise the statement of MWI Rajesh Kr. Kar,

the Perosnnel Executive of the said Colliery, vividly depicts

that the post of the clerk comes under the Cadre Scheme

starting from the post of clerk. Grade III for which the

qualified Mazdoors are selected but not the General

Mazdoor or Cat. II Time Rated Mazdoor . It also reveals the

workman was promoted to Cat.ll Mazdoor, and his

selection to the post of Clerk Grade III in the year 2006-07

against the vacancies as per the Man Power Budget of the

year he has been working accordingly since 27-8-2007, so

the demand of the workman for his regularization as the

Cap Lamp Issue Clerk from the year 1992 is not at all

justified, he had not requisite qualification of three years

experience of service in the year 1994 except his

Matriculation.

8. Mr N.G. Arun,the Ld.Advocate-cum-Union

Representative for the workman submits that since the

workman has been still working as Cap Lamp Issue Clerk

upto 2008 on the basis of the aforesaid authorization in

the same status as per the Attendance Register,he

deserves his regularization since his status has been

recognized. But such submission of Mr.Arun the Learned

Advocate for the workman appears to be baseless and

unpersuasive because of his clear admission that the

post of Cap Lamp Issue Clerk is a cadre post which

permits the selection of qualified Mazdoors,but the

workman had no requisite qualification for it in the year

1992, so he had no right to direct entry in the Cadre post

at the relevant time as also argued by Mr. D. K.Verma,the

Ld. Counsel for the O.P./Management who has also

emphatically contended that mere authorization confers

no right upon the workman to claim for the post of Cadre

Scheme.

9. On appreciation of the materials in the case

record, I find and hold that an authorization to work as Cap

Lamp Issue Clerk purely temporary can not be a legal basis

for the post of cadre scheme, unless & until qualified for

it , when the workman got qualified and selected for, he

was regularized for the post w.e.f. 27-8-2007 as per the Cadre

Scheme.

Under the circumstances, in response to the

Reference, is hereby

ORDERED

The Award be and the same is passed that the

demand of the Union concerned for regularization of

Sri Jagdish Prasad Mahato, Caty. III Mazdoor to the post

of Cap Lamp Issue Clerk for implied period concerned is

neither proper nor legally justified. So the workman

concerned is not entitled to any relief from any date alleged

impliedly.

KISHORI RAM, Presiding Officer

f

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6343

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New Delhi, the 8th November, 2013

S.O. 2400.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 150/

2000) of the Central Government Industrial Tribunal-cum-

Labour Court No. 2, Dhanbad as shown in the Annexure,

in the Industrial Dispute between the management of

M/s. BCCL and their workman, received by the Central

Government on 8-11-2013.

[No. L-20012/209/2000-IR (C-I)]

M. K. SINGH, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL (NO. 2), AT DHANBAD

PRESENT : SHRI KISHORI RAM, Presiding Officer

In the matter of an Industrial Dispute under Section 10

( I )(d) of the l. D. Act, 1947.

REFERENCE NO 150 OF 2000.

Parties : Area Secretary,

Block II, Janta Shramik Sangh, Baghmara Dhanbad

Vs General Manager, Block II Area of M/s. BCCL,

Nawagarh, Dhanbad

APPEARANCES:

On behalf of the workman/Union : Mr. D. Mukhrjee,

Ld. Advocate

On behalf of the Management : Mr. D.K. Verma ,

Ld. Advocate

State : JHARKHAND

Industry: Coal

Dated, Dhanbad, the 11th Sept., 2013.

AWARD

The Government of India, Ministry of Labour, in

exercise of the powers conferred on them under Sec.10

( 1 )(d) of the I.D. Act,1947 has referred the following dispute

to this Tribunal for adjudication vide their Order No.

L-20012/209/2000(C-I) dt. 25.10.2000 .

SCH EDULE

"Whether the action of the management of

BCCL,Block II Area in demoting Shri Faudi Yadav

from the post of Bill Clerk to the post of Clerk Gr. III

w.e.f. 7.9.1999 on grounds of misappropriation is just

& proper? If not, to what relief is the workman

entitled?"

2. The case of the sponsoring union Janta Shramik

Sangh for workman Faudi Yadav is that he had been

unblemishedly working as a permanent Bill clerk at Jamunia

O.C. P. since long, but the local management biased against

him for trade union activity with the union motivatedly

victimized him by issuing a false and frivolous chargesheet

dt. 8th june, 1999 based on the alleged complain of the

General Manager.Allgedly payment of his monthly wages

Rs.3680/- for April,1999 to one Adari Baurin instead of her

entitled Rs.3,772, resulting in shortage of cash Rs.2,119

was the allegation against the workman. In reply to the

chargesheet,the workman had specifically stated the

payment of Rs.3,772 to her as verifiable from herself, but

the excess payment to the some workmen due to his

inadvertence or mistake. In spite of it, the management got

the invalid enquiry conducted by the enquiry Officer in

violation of the natural justice, as he was not given full

opportunity. Smt. Adari Bouri had also appeared in the

invalid enquiry, and stated to have received Rs. 3,777 from

the workman , but the complainant General Manager did

not appear in it. Though the charge was not proved against

him, even then the management illegally and arbitrarily

inflicted him the punishment of demotion from the post of

clerical grade to that of clerical grade III,which was too

harsh and disproportionate to the misconduct .He was not

given the copy of the enquiry proceeding .The Union

raised the industrial dispute before the A.L.C., Dhanbad,but

the failure in its conciliation due to adamant attitude of the

management resulted in the reference for an adjudication.

As such the action of the managements was illegal,

vindictive; unjustified.The workman sought the relief for

re-instatement in his post of Bill Clerk w.e.f., 7.9.1999 with

all arrears wages and consequential benefits.

3. The Union in its rejoinder specifically denied all

the allegations of the O.P./management, and stated that

despite the charges unproved in the departmental enquiry,

he was punished with punishment of demotion by the

unauthorized person on the basis of perverse finding of

the Enquiry Officer.

4. Whereas the contra pleaded case of the O.P./

Management with categorical denials is that Shri.Faudi

Yadav was a Bill Clerk in the J.O.C.P. In course of surprise

inspection by the General Manager, Block II Area in

fFf

6344

THE GAZETTE OF INDIA : NOVEMBER 23, 2013/AGRAHAYANA 2, 1935

[PART II—SEC. 3(ii)]

presence of Manager L.P. Singh and the Project Officer

S.N.Upadhya,it was detected the payment of Rs.8,680 to

Smt.Adari Baurin as contrasted with her pay sheet

Rs.2,772 shown as paid to her. The workman was issued

the chargesheet No.JOCP/682/99 dt.8.6.1999 for the

shortage of Rs.2,119 in cash as agreed by him on the

spot. The shortage of money was deposited by him, while

submitting its final account to the Senior Cashier. The

workman also partially accepted the charge by refunding

the shortage amount. On being dissatisfied with the reply

of the workman, the departmental enquiry was fairly

conducted in which he had participated, and was given

full opportunities for his defence. On the proof of the

charges levelled against him, he was punished with

demotion as Clerk Gr.III on 7.9.1999 in view of the gravity

of the charge. The action of the employer in demoting him

so was justified. The workman was not entitled to any

relief.

Further it is alleged that the BCCL is a Government

Company as meant u/s 161 of the Company Act. It is entirely

financed by the Central Government, so the employers of

the Company are public servants u/s 21(2) of the I.P.C. The

O.P./Management sought the permission /opportunity for

proof of the charges afresh on merits if the enquiry held

unfair at its preliminary issue.

5. In its parawise rejoinder, the O.P./Management has

categorically denied the allegations of the workman, and

stated that the workman has confessed his guilt as per his

letters dt. 9.6.1999 and 11.6.1999.The enquiry was conducted

as per the principles of natural justice. In view of

misappropriation of public fund as committed by the

workman, he ought to have been dismissed, but awarding

his the demotion from Gr.II to Gr.III was a lenient aspect of

the management.

FINDING WITH REASONS

6. In the instant reference when in lack of production

of any witness for the management at preliminary point as

to fairness of the domestic inquiry, the case of the

management for its evidence at preliminary point was twice

closed on 18.4.2011 as earlier by the Order No.16

dt.13.12.2005. In result, it directly came up for hearing on

merit.

In course of it, only WWI Faudi Yadav, the workman

himself for the Union concerned was examined.

The statement of WWI Faudi Yadav, the workman,

transpires the indisputable fact that he had replied to

the chargesheet; the domestic enquiry was held by

Shri R. D. Sharma, Area Personnel Manager as the Enquiry

Offier,before whom he had made his own statement that

due to mistake the amount of Rs.2,190 was paid in excess,

and the said amount was paid by him in the office of the

colliery in the presence of the General Manager and the

Agent of the Colliery; and for that mistake, he got his

demotion from Gr.II to Gr.III.

7 After hearing the argument of Mr. D. Mukherjee,

Ld. Advocate and Mr.D.K.Verma, Ld.Advocate for the O.P./

management and on consideration of the aforesaid facts, I

find that the O.P./Management utterly failed to justify its

action towards the workman. Man is not infalliable. Despite

the acceptance of the mistake by the workman about excess

payment to Smt.Adari Baurin and making up the shortage

of Rs. 2,119 in the cash, for which the punishment of his

demotion from Gr. II to Gr. III to the workman prima facie

appears to be too harsh in the nature of his misconduct;

this punishment extremely affecting his economic loss

cumulatively for ever is liable to be set aside.Therefore,the

workman needs a relief under the provision of Sec.11 A of

the Industrial Dispute Act,1947.

In result, it is, in the terms of the reference, hereby:

ORDERED

The award and the same is passed that the action

of the management of BCCL, Block 11 Area in demoting

Shri Faudi Yadav from the post of Bill Clerk to the post of

Clerk Gr.III w.e.f. 7.9.1999 on grounds of alleged

misappropriation is quite unjust and improper. as well

illegal. Therefore, the workman is entitled to the post of

Bill Clerk Gr.II w.e.f., 7.9.1999 with differences in pay and

all the consequential benefits till the date of his retirement

on 31.01.2011.

The O.P./Management, Block 11 Area of BCCL,

Nawagarh , Dhanbad is directed to implement the award

within one month from the receipt of its notification

following its publication by the Government of India in

the Gazette of India, otherwise it shall be liable to pay

with 8.9 interest over it in favour of the workman till its

full realization.

Let the copies - one soft and one hard copies of the

Award Employment government of India, New Delhi for

publication and needful.

KISHORI RAM, Presiding Officer

ubZ fnYyh] 8 uoEcj] 2013

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ds izca/ra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp]

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6345

70@1999) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 8&11&2013

dks izkIr gqvk Fkk A

¹la- ,y&20012@510@1998&vkbZ vkj (lh&I)º

,e- ds- ¯lg] vuqHkkx vf/dkjh

New Delhi, the 8th November, 2013

S.O. 2401.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 70/1999)

of the Central Government Industrial Tribunal-cum-Labour

Court No. 1, Dhanbad as shown in the Annexure, in the

Industrial Dispute between the management of M/s.

BCCL and their workman, received by the Central

Government on 8-11-2013.

[No. L-20012/510/1998-IR (C-I)]

M. K. SINGH, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL (NO. l), DHANBAD

IN THE MATTER OF A REFERENCE U/S 10(1) (D) (2A)

OF I.D. ACT, 1947

Ref. No. 70 of 1999

Employers in relation to the management of Barora Area

No.1 of M/s. B.C.C.L.

AND

Their workmen

Present :- Sri Ranjan Kumar Saran, Presiding officer

Appearances :

For the Employers-

:- None

For the workman

:- None

State:- Jharkhand

Industry:- Coal

Dated·27-9-2013

AWARD

By Order No. L-20012/510/98-IR(C-I), dated

28-4-99, the Central Government in the Ministry of Labour

has, in exercise of the powers conferred by clause (d) of

sub-section (1) and sub-section (2A) of Section 10 of the

Industrial Disputes Act, 1947, referred the following

disputes for adjudication to this Tribunal:

SCHEDULE

‘‘Whether the action of the management of Barora

Area No.1 of M/S BCCL, Dhanbad, not to regularize

as a store clerk is genuine and justified? If not , to

what relief the concerned Shri Subhas Yadav is

entitled?’’

2. After receipt of the reference, both parties are

noticed. But appearing for certain dates, none appears

subsequently, case remain pending, It is felt that the

dispute between the parties have been resolved in the

meantime. Hence "No Dispute" award is passed.

communicate.

R. K. SARAN, Presiding Officer

ubZ fnYyh] 8 uoEcj] 2013

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New Delhi, the 8th November, 2013

S.O. 2402.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 69/1996)

of the Central Government Industrial Tribunal-cum-Labour

Court No. 2, Dhanbad as shown in the Annexure, in the

Industrial Dispute between the management of

M/s. BCCL and their workman, received by the Central

Government on 8-11-2013.

[No. L-20012/486/1999-IR (C-I)]

M. K. SINGH, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL (NO. 2), AT DHANBAD

PRESENT : Shri Kishori Ram, Presiding Officer

In the matter of an Industrial Dispute under Section 10

( 1 )(d) of the l. D. Act., 1947.

REFERENCE NO. 69 OF 1996

Parties : Secretary, Dhanbad Colliery Karmchari

Sangh, Dhanbad

Vs.

fFf

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THE GAZETTE OF INDIA : NOVEMBER 23, 2013/AGRAHAYANA 2, 1935

[PART II—SEC. 3(ii)]

General Manager

Bhowra No.XI,of M/s BCCL,

Dhanbad.

APPEARANCES:

On behalf of the workman/Union :

Mr. R. N. Ganguly,

Ld. Advocate

On behalf of the Management : Mr. D. K.Verma ,

Ld. Advocate

State : Jharkhand

Industry: Coal

Dated, Dhanbad, the 16th July., 2013.

Dated, Dhanbad, the 16th July, 2013.

AWARD

The Government of India, Ministry of Labour, in

exercise of the powers conferred on them under Sec.10

( 1 )(d) of the I. D. Act., 1947 has referred the following

dispute to this Tribunal for adjudication vide their Order

No.L-20012(486)/99-IR(C-l) dt. 12.7. 96.

SCHEDULE

"Whether the demand for the regularization of

Sh.Sahdeo Kumar Mahato and 50 others (as per list

enclosed) by the Union as Wagon Loaders by the

management of Bhowra OCP of M/s. BCCL is

justified? If so, to what reliefs are the workmen entitled

and from which date?"

2. The case of sponsoring Union Dhanbad Colliery

Karamchari Sangh, for workmen Sahdev Kr.Mahato and 50

others (as per list) is that the Union raised the Industrial

Dispute as per its letter dt.4.4.1993 for 51 workmen as per

Annexure for their regularization, as they were working as

temporary wagon loader at Bhowra North Colliery.But later

on the Union as per its letter dt.1.11.1993 requested the

ALC(C) to include the left names of five another workmen

(1) Sitaram Rewani, (2) Jagarnath Modi, (3)Alok Kr.Ganguly

and (4) Mukendra Paswan (No fifth named). The Colliery

had shortage of permanent wagon loaders. So the wagon

loading had been regularly done by the workmen at the

rate of Rs. 20 per day since 1980 which was paid by the

management. All the workmen had put in 190/240 days

attendance per year in 1981-91 but regularly worked in

1992 until their termination. The job of the wagon loading

though prohibited under the Central Labour (R & A) Act,

1970 is permanent and perennial in nature in the colliery,

where the wagon loading by the workmen was regularly

under the supervision of the Mine Officials. But suddenly

it was stopped by the management from 3.8.92 without any

notice at their demand for regularization though the wagon

loading is continued through contractor Surrender Pd.Singh

and others by the management. When the management

did not do anything on their frequent requests for it, the

Union raised the Industrial Dispute before the ALC(C),

Dhanbad.

3. Further alleged by the Union is that the workmen

were also supplied the implements by the management for

the job. There is a clear relationship of master and servant

between the management and the workmen. The Labour

Commissioner (C), Dhanbad was informed by the Labour

Enforcement Officer (C), Jharia, as per letter dt. 5.8.94 that

the workmen had been working as wagon loaders for the

last 10-12 years ,and they were paid their wages by the

Loading Babu as per the order of them management. It

proves the directly employment of the workmen by the

Management. Even then the management failed to

regularize the workmen as per BCCL Circular No.BCCL/

DCPA/HQ/CC/89/23790-24090 dt.24/25.4.1989. At the delay

by the Government of India after failure of conciliation

report, the Hon 'ble High Court in CW JC No.2509/1995 (R)

as per order dt,7 .12.95 had directed the Ministry for its

reference in respect of 56 Nos. of the workmen within two

months, even then present reference was made devoid of

the aforesaid left names of 5 workmen's including one

Gautam Kumar. As such ,the workmen are entitled to get

regularization retrospectively with full wages.

4. The Union in its rejoinder has specifically denied

all the allegations ,and stated that the industrial dispute

comes under Sec.2(k) of the Industrial Dispute Act,1947.The

service conditions of the workmen are governed by the

Model/Certified Standing Orders and its any provision in

consistent with the Constitution of India is illegal,

unconstitutional and void. The appointment letter is not a

since quo non under Sec.2(k) of the Mines Act,1952,as

these workmen are/were persons employed in a mine under

the said Act. The workmen were paid their wages Rs. 20

much below the wages of the wagon Loader, Group III as

per the NCWA.The contractor's workmen are the workmen

of the Principle Employer and the contractor was only a

device to play fraud upon law.

5. Whereas with categorical denials, the contra

pleaded case of the Opp./Management is that the present

reference is legally unmaintainable as an industrial dispute;

no employer- employee relationship existed between the

management and the workmen at any time. The sponsoring

Union has adopted the method of recruitment of job seekers

through litigations. The workmen were never selected

recruited or engaged by the management at any time as per

the recruitment Rules of the Selection Committee for

selection of required number of employees by following

f

¹Hkkx II—[k.M 3(ii)º

Hkkjr dk jkti=k % uoEcj 23] 2013@vxzgk;.k 2] 1935

6347

the selection process as per the provision of the

Constitution of India. No Officer has been empowered to

recruit any workman without following the selection

procedure. All the employments arbitrarily made by the

any officer contrary to the rule stand null and void. The

Company can only appoint any workman by issuing

appointment letter stipulating condition of service. Such

person after employment is issued the Identity Card, and a

pay slip is monthly issued to him to receive his wages from

the pay counter. The workmen do not possess any such

things.

In the face of the prohibition as per the Notification

U/s 10 of the Contract Labour (Regular & Appointment)

Act, 1970 to engagement of contract labour on wagon

loading, as well as in view of the strict principles of law

applicable to the management, the engagement of any

contractor by the management for the wagon loading or in

the absence of the any contractor for such, alleged working

of the workmen for wagon loading through an imaginary

contrator are mere absurdities.

6. Since the Union had failed to produce any

documents in support of the workmen's working as wagon

loader, the Government Authorities considering its case to

be false did not recommend for reference, intimating the

management and the union about it as meritless. But at the

direction of the Hon'ble High Court on the production of

fabricated documents of the Union with a prayer to afford

them an opportunity to prove their case, the Ministry

referred it for an adjudication. The practice of the Union is

malafide and undesirable.

7. The opp./Management in its rejoinder has stated

that the claim of the Union is baseless; it has no scope for

an amendment to the Schedule of the Reference to include

new workmen in the reference. The workmen never worked

as wagon loader at Railway Siding Nos. 4 & 5 of the Bhowra

Colliery, as they were never employed so by the

management. Therefore, the question of stopping/

terminating them from their duties without compliance of

the law did not and cannot arise. Admitedly the wagon

loading jobs are not being carried on by engaging any

contract- labour nor the workmen could be engaged by the

management or by the contractor for some wagon loading

jobs. Moreover the question of payment to the workmen

cannot arise, as they were never on the roll of the Company.

FINDING WITH REASONING

8. In the reference, WWI Sahadeo Kumar Mahato,

one of the workmen,WW2 Darshin Bai,WW3, Ram Parikshit

Singh, a Retd. Loading Munshi and WW4 Gopaljee, the

Retd. L.E.O.(C), on behalf of the workmen /*union and

MWI Rahul Kr. Mandal, the Asst. Manager (Pers.), Bhowra

Colliery for the Opp./Management have been rerspectively

examined.

The oral statement of WWI Sahadeo Kr. Mahato,

the workman at Sl No. 1 of the list of the two pages, for all

the workmen discloses that they with permanent wagon

loaders continuously worked as wagon loaders on both

sidings Nos. IV & V of Bhowra Colliery at the rate of Rs. 20

per day from 1980 until their stoppage from work in the

year 1992, by completing more than 240 days of work in

each calendar year under the instruction and supervision

of the Loading Munshi. It also reveals that the management

used to supply them the tools for loading coal on the

wagons, but after stopping them from working so, the

management engaged labour contractor Surender Singh

for loading coal.

But the workmen witness (WWI) has admitted that

neither they have any paper to show their appointment by

the Loading Munshi and their working for 240 days on any

siding nor they were issued any pay slip or I.D. Cards by

the management.

WW2 Darshuin Bai as one of the permanent Wagon

Loaders at both the siding of the Bhowra Colliery states

about the workmen to have daily worked with the work of

wagon loading at the said sidings during the year 1980, but

in the year 1994, one Enforcement Officer had enquired of

it, recording her statement with others. Her admission

about the payment of wages implies that none of the

workmen was issued any pay slip, and the loading Munshi

used to keep all particulars of the workmen's service.

WW3 Ram Parikshit Singh an alleged retired Loading

Munshi, claimed to have served from the year 1988

accordingly at both the sidings of the colliery where he

saw the workmen working as wagon Loader since 1980 and

1988 which is self contradictory. According to him he used

to look after their work. The WW3 failed to produce any

paper about his status as permanent employee of the

management. He has asserted no payment' of wages in any

manner except through a Pay Slip issued by the

management, and he never individually recorded the names

or "Hajiri" of the workmen. His such statement disapproves

that of WW2 Darshin Bao related to maintenance of any

record by the Loading Munshi.

Lastly, the statement of WW4 Gopaljee, the Retd.

L.E.O. (C) reveals that while posted at Area II, Jharia, he

had investigated as per the A.L.C.(C), Dhanbad letter

(dt.25.7.94 Ext.WI) with a list of photograph of the workmen

at the siding spot. By recording statement of 18 permanent

workmen and those of 58 workmen (Ext.2/l-2) he (WW4)

fFf

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THE GAZETTE OF INDIA : NOVEMBER 23, 2013/AGRAHAYANA 2, 1935

[PART II—SEC. 3(ii)]

found their working with them for 10-12 years, and having

got their wages from the clerk. But the witness (WW4)

could not verify the photographs of the workmen nor could

take their L.T.I./signatures. His statement about the status

of the workmen is quite vague as wagon loading.

9. Whereas the statement of MWI Rahul Kr. Mandal

the Asstt. Manager (Pers), Bhowra Colliery for 1980-92

clearly depicts that after going through the case record,

none of the workmen Sahdeo Kr. Mahato & 50 others as

per the list enclosed was on the roll of the Company nor

any of them was given any job of wagon loaders at the

then siding Nos. 4 & 5 of the Open Cast Project now no

longer existence. It also indicates that the management

had sufficient number of wagon Loaders at the relevant

time, so the demand of the Union for their regularization is

unjustified.

10. The argument advanced as per the written one

on behalf of the workmen/union is that in excigency, the

direct engagement of casual workers to man the position

does not require the issuance of any appointment letter. It

is also argued to draw adverse inference against the

employees for non production of two documents (i) Wagon

Dispatch Registers of both sidings Nos. 4 & 5 for the period

from 1980 to 1992, though the MWI stated about the

documents of Supplier Loader to have been filed which is

apparently false, and the Attendance Register of permanent

wagon Loaders as called for by the workmen in order to

prove their case. But in lack of pleading about the specific

attendance of the workmen as well as in view of the

admission of the WW3 related non maintenance of the

names and attendance of the workmen, no such adverse

inference can be drawn against the employees, as what is

non-existence cannot be made existent by calling for an

imagined/presumed Register from the Employer; as such it

is pleaded that the case of the workmen is undoubtedly

alleged to have been proved, so they are entitled to their

regularization.

Just contrary to the plea of Mr. D. K.Verma, the Ld.

Counsel for the Opp./Management is that in the face of

the admission of the workmen witnesses, and of WW4

Gopaljee, the L.E.O., whose admitted failure to properly

verify the workmen's engagement on both sidings, the

Union utterly failed to prove the workmen's cases, so the

demand of the Union for regularization as wagon loader of

the management is not justified.

On the perusal and consideration of the materials on

the case record, and after hearing the argument of the

Ld. Counsels for the respective parties, I find that the Union

could not able to specifically establish its clear cut status

of the 51 workmen (as per list enclosed) as wagons loaders

for the disputed periods. In the situations of vagueness in

the reference, there is apparently no relationship of

employer-employee relation ever existent between the

workmen and the Opp/Management for any point of time.

In the result, it is hereby awarded that the demand of

the Union for regularization Sh. Sahdeo Kr. Mahato & 50

others (as per list enclosed) as Wagon Loaders of the

Management of Bhowra OCP of M/s. BCCL is quite

baseless, illegal and unjustified. So none of the workmen is

entitled to any relief from any date.

Let copies, one Hard and one Soft, of the Award be

sent to the Ministry of Labour & Employment, Government

of India, New Delhi for information and its needful

publication in the Gazettes of India.

KISHORI RAM, Presiding Officer

List of the workmen at siding No. 4

1. Sri Satrughan Lal B.P.

2 . Sri Ramesh Dhobi

3. Sri Chatmoti B.P.

4. Sri Niwas Mullick

5. Sri Manilal Manj

6. Sri Manoj Kr. Mullick

7. Sri Lagan Bauri

8. Sri Nepal Mahato

9. Smt Majhiyan

10. Sri Santan Manjhi

11. Sri Satnam Murmu

12. Sri Dilboy

13. Sri Rambhilas Bhuiya

14. Sri Anandram Satnami

15. Sri Kishori Paswan

16. Sri Ghoriba Paswan

17. Sri Jaynath Mahato

18. Sri Tarasram, Kurmi

19. Smt.Urmila Devi

20. Sri Ramsuman Chauuan

21. Sri Satinarayan Mahato

22. Sri Sujit Kr. Mahato

23. Sri Ramkumar B.P.

24. Sri Rohit Ram Kurmi

25. Sri Budu Manjhi

f

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6349

26. Sri Dara Satnami

27. Sri Kalaram Satnami

28. Smt. Sanatra Bhai

29. Sri Raghu Manjhi

30. Sri Timir Rakshit

List of the workmen at siding No. 5

31. Sri Sahdeo Kr. Mahato

32. Sri Ramsneh Dhobi

33. Sri Naresh Dhobi

34. Sri Kanta Pd. Dhobhi

35. Sri Satrughan Sahu

36. Sri Debram Kumri

37. Sri Shankar Das

38. Sri Ramlal Satnami

39. Sri Golak Manji

40. Sri Nokot Manjhi

41. Sri Govind Manjhi

42. Sri Godhar Mahato

43. Sri Radan Mahato

44. Sri Pado Rajak

45. Sri Bishnu Pd. Sahu

46. Sri Sahdeo Mahato (Chota)

47. Sri Basuri Paswan

48. Sri Mantulal Mahato

49. Sri Chotalal Mahato

50. Sri Praladh Mullick

51. Sri Baliram Mullick

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New Delhi, the 8th November, 2013

S.O. 2403.—In pursuance of Section 17 of the

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

Government hereby publishes the Award (Ref. No. 26/1996)

of the Central Government Industrial Tribunal-cum-Labour

Court No. 2, Dhanbad as shown in the Annexure, in the

Industrial Dispute between the management of M/s. BCCL

and their workman, received by the Central Government

on 8-11-2013.

[No. L-20012/62/1995-IR (C-I)]

M. K. SINGH, Section Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL (NO. 2), AT DHANBAD

PRESENT : SHRI KISHORI RAM, Presiding Officer

In the matter of an Industrial Dispute under Section 10

( 1 ) (d) of the I. D. Act, 1947.

REFERENCE NO. 26 OF 1996

Parties :

Secretary,

Bihar Colliery Kamgar Union, Hirapur, Dhanbad

Vs. General Manager, Moonidih Area of

BCCL, Moonidih, Dhanbad

APPEARANCES:

On behalf of the workman/Union : Mr. K. Chakraborty,

Ld. Advocate

On behalf of the Management : Mr. D. K.Verma ,

Ld. Advocate

State : JHARKHAND

Industry : Coal

Dated, Dhanbad, the 19th Sept., 2013.

AWARD

The Government of India, Ministry of Labour, in

exercise of the powers conferred on them under Sec.10 ( 1)

( d) of the I.D. Act., 1947 has referred the following dispute

to this Tribunal for adjudication vide their Order No.

L-20012/62/95-I.R.(Coal-I) dt. 4.3.1996.

SCHEDULE

"Whether the demand of the Union for placement of

S/Shri Sachidanand Singh Rajender Pandit and Sheo

Shankar Singh, Fitter-cum-Welders in Cat.VI from

1982 and in Technical and Supervisory, Grade 'C' from

1985 is justified? If so, to what reliefs are the

concerned workmen entitled?"

2. Neither Mr. K. Chakraborty, the Ld.Advocate nor

the Union representative for Bihar Colliery Kamgar Union,

fFf

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THE GAZETTE OF INDIA : NOVEMBER 23, 2013/AGRAHAYANA 2, 1935

[PART II—SEC. 3(ii)]

Dhanbad, nor any of three workmen Sachidanand Singh,

Rajender Pandit and Sheo Shankar Singh appeared. But

Mr.D.K.Verma, the Ld. Advocate for the O.P./Management

is present without any witness on behalf of the O.P./

management.

Perusal of the case record reveals that the evidence

of the workmen was already closed as per the Order No.53

dt. 4-1-2006 of the Tribunal. The present reference refers to

an issue regarding the demand of the Union for the

placement of the workmen Fitter-cum-Welder in Cat.VI from

1982 and in Technical and Supervisory Gr. C from 1985. lf

the Union/workmen fail to discharge the onus of their proof

by any evidence, it resulted in the closure of his case earlier

in the year 2006.This is the oldest case. Under these

circumstances, proceeding with the case for the evidence

of the O.P./Management as usually coming since then is

not only unwarranted but also against the principle of rule

of the law. In result, the case is closed as no Industrial

Dispute existent and accordingly an order is passed.

KISHORI RAM, 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.