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-
vf/dkjh dk inuke
ljdkjh ifjljksa dh Js.kh rFkk vf/dkj dh LFkkuh; lhek
1
2
3
1-
egk izca/d] ifjlj] lqj{kk rFkk izki.k foHkkx
egkjk"Vª jkT; esa eqacbZ] Bk.ks ftys esa ukckMZ ds
(Mhih,lih)]jk"Vªh; d`f"k ,oa xzkeh.k fodkl
LokfeRo okys ifjlj ;k ukckMZ }kjk ;k ukckMZ
cSad] iz/ku dk;kZy;] Hkwry] ^,* foax] lh&24]
dh vksj ls iV~Vs ij fy, x, ifjlj
^th* CykWd] ckanzk dqykZ dkWEIysDl] ckanzk (iwoZ)]
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-
egk izca/d] (Mhih,lih)] ukckMZ] vkjVhlh]
vka/z izns'k jkT; esa ukckMZ ds LokfeRo okys ifjlj
,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-
egk izca/d] (Mhih,lih)] ukckMZ] iksLV cWkDl
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
fnliqj] xqokgkVh&781001] vle
6-
egk izca/d] (Mhih,lih)] ukckMZ] ekS;kZ yksd
fcgkj jkT; esa ukckMZ ds LokfeRo okys ifjlj ;k ukckMZ
dkWEIysDl CykWd ch 4 vkSj 5oka ry] Mkd caxyk
}kjk ;k ukckMZ dh vksj ls iV~Vs ij fy, x, ifjlj
jksM] iksLV ckWDl ua- 178] iVuk&800001] fcgkj
7-
egk izca/d] (Mhih,lih)] ukckMZ] izFke ry]
NÙkhlx<+ jkT; esa ukckMZ ds LokfeRo okys ifjlj ;k ukckMZ
fiFkkfy;k dkWEIysDl] iQkiQkMhg pkSd] Vaªd ,Dlpsat
}kjk ;k ukckMZ dh vksj ls iV~Vs ij fy, x, ifjlj
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-
egk izca/d] (Mhih,lih)] ukckMZ] Vkoj]
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-
egk izca/d] (Mhih,lih)] ukckMZ] CykWd
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-
egk izca/d] (Mhih,lih)] ukckMZ] vkfnoklh
>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-
egk izca/d] (Mhih,lih)] ukckMZ] iksLV ckWDl
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-
egk izca/d] (Mhih,lih)] ukckMZ] bZ&5] ,jsjk
eè; izns'k jkT; esa ukckMZ ds LokfeRo okys ifjlj ;k ukckMZ
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-
egk izca/d] (Mhih,lih)] ukckMZ] 54] osYLys
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-
mi egk izca/d] (Mhih,lih)] ukckMZ] yhjsu eSa'ku]
ef.kiqj jkT; esa ukckMZ ds LokfeRo okys ifjlj ;k ukckMZ
nwljk ry] ySEiQsy lqij ekdsZV ds lkeus ySEiQsyir]
}kjk ;k ukckMZ dh vksj ls iV~Vs ij fy, x, ifjlj
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-
}kjk ;k ukckMZ dh vksj ls iV~Vs ij fy, x, ifjlj
28 (2)] /ku[ksrh] ykW dkWyst ds ikl] f'kyk¡x&
793003] es?kky;
20-
mi egk izca/d] (Mhih,lih)] ukckMZ] jkEgyqu
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-
mi egk izca/d] (Mhih,lih)] ukckMZ] pkSFkk ry]
ukxkySaM jkT; esa ukckMZ ds LokfeRo okys ifjlj ;k ukckMZ
if'peh ¯ox] iz'kklfud ,u,llhch fc¯YMx] [ksj
}kjk ;k ukckMZ dh vksj ls iV~Vs ij fy, x, ifjlj
egy] ldqZyj jksM] nhekiqj&797112] ukxkySaM
22-
egk izca/d] (Mhih,lih)] ukckMZ] 24] jktsUnz
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-
egk izca/d] (Mhih,lih)] ukckMZ] 48] egkRek
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&
}kjk ;k ukckMZ dh vksj ls iV~Vs ij fy, x, ifjlj
799001] f=kiqjk
29-
egk izca/d] (Mhih,lih)] ukckMZ] 11] fofiu [kaM
mÙkj izns'k jkT; esa ukckMZ ds LokfeRo okys ifjlj ;k ukckMZ
xkserh uxj] y[kumQ&226010] mÙkj izns'k
}kjk ;k ukckMZ dh vksj ls iV~Vs ij fy, x, ifjlj
30-
egk izca/d] (Mhih,lih)] ukckMZ] gksVy lujkbt
mÙkjk[kaM jkT; esa ukckMZ ds LokfeRo okys ifjlj ;k ukckMZ
fc¯YMx 113@2] jktiqj jksM] nsgjknwu&248001] mÙkjk[kaM
}kjk ;k ukckMZ dh vksj ls iV~Vs ij fy, x, ifjlj
31-
egk izca/d] (Mhih,lih)] ukckMZ] vfHkyk"kk] f}rh;
if'pe caxky jkT; esa ukckMZ ds LokfeRo okys ifjlj ;k
ry] 6] jkW;M LVªhV] iksLV ckWDl ua- 9083]
ukckMZ }kjk ;k ukckMZ dh vksj ls iV~Vs ij fy, x, ifjlj
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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THE GAZETTE OF INDIA : NOVEMBER 23, 2013/AGRAHAYANA 2, 1935
[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
dk-vk- 2380-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh /kjk 17 ds vuqlj.k esa dsUnzh; ljdkj eSllZ ,iQ lh
vkbZ 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 315@2003)
dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 30&10&2013 dks
izkIr gqvk Fkk A
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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THE GAZETTE OF INDIA : NOVEMBER 23, 2013/AGRAHAYANA 2, 1935
[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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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
ubZ fnYyh] 30 vDrwcj] 2013
dk-vk- 2381-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh /kjk 17 ds vuqlj.k esa] dsUnzh; ljdkj eSllZ ,iQ lh vkbZ
ds izca/ra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp]
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vf/dj.k@Je U;k;ky;] ukxiqj ds iapkV (lanHkZ la[;k 310@
2003) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 30&10&2013
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¹la- ,y&22012@292@2003&vkbZ vkj (lh,e&II)]
ch- ,e- iVuk;d] MsLd vf/dkjh
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
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 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
30&10&2013 dks izkIr gqvk Fkk A
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
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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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THE GAZETTE OF INDIA : NOVEMBER 23, 2013/AGRAHAYANA 2, 1935
[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
¹Hkkx II—[k.M 3(ii)º
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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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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
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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
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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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THE GAZETTE OF INDIA : NOVEMBER 23, 2013/AGRAHAYANA 2, 1935
[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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THE GAZETTE OF INDIA : NOVEMBER 23, 2013/AGRAHAYANA 2, 1935
[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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THE GAZETTE OF INDIA : NOVEMBER 23, 2013/AGRAHAYANA 2, 1935
[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
ubZ fnYyh] 30 vDrwcj] 2013
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dk 14) dh /kjk 17 ds vuqlj.k esa] dsUnzh; ljdkj eSllZ osLV~uZ
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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
6340
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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¹la- ,y&20012@208@2000&vkbZ vkj (lh&I)º
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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
Hkkjr dk jkti=k % uoEcj 23] 2013@vxzgk;.k 2] 1935
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
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % uoEcj 23] 2013@vxzgk;.k 2] 1935
6343
ubZ fnYyh] 8 uoEcj] 2013
dk-vk- 2400-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh /kjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ch 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
vfèkdj.k@Je U;k;ky; ua- 2] /uckn ds iapkV (lanHkZ la[;k
150@2000) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks
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¹la- ,y&20012@209@2000&vkbZ vkj (lh&I)º
,e- ds- ¯lg] vuqHkkx vf/dkjh
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
dk-vk- 2401-—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 dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k@Je U;k;ky; ua- 1] /uckn ds iapkV (lanHkZ la[;k
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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
dk-vk- 2402-—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 dsUnzh; ljdkj vkS|ksfxd
vfèkdj.k@Je U;k;ky; ua- 2] /uckn ds iapkV (lanHkZ la[;k
69@1996) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 8&11&2013
dks izkIr gqvk Fkk A
¹la- ,y&20012@486@1999&vkbZ vkj (lh&I)º
,e- ds- ¯lg] vuqHkkx vf/dkjh
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
6348
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
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % uoEcj 23] 2013@vxzgk;.k 2] 1935
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
ubZ fnYyh] 8 uoEcj] 2013
dk-vk- 2403-—vkS|ksfxd fookn vf/fu;e] 1947 (1947
dk 14) dh /kjk 17 ds vuqlj.k esa dsUnzh; ljdkj ch lh lh ,y
ds izca/ra=k ds lac¼ fu;kstdksa vkSj muds deZdkjksa ds chp]
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vf/dj.k@Je U;k;ky; ua- 2] /uckn ds iapkV (lanHkZ la[;k
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¹la- ,y&20012@62@1995&vkbZ vkj (lh&I)º
,e- ds- ¯lg] vuqHkkx vf/dkjh
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.