fons'k ea=ky;
¼lhihoh izHkkx½
ubZ fnYyh] 3 fnlEcj] 2013
dkñvkñ 2593.—jktuf;d vkSj dkalqyh; vkWfQlj ¼'kiFk
vkSj Qhl½ ds vf/kfu;e] 1948 ¼1948 dk 41½ dh /kkjk 2 ds [kaM
¼d½ ds vuqlj.k esa dasnz ljdkj ,rn~}kjk Jh vuqjkx dqekj] lgk;d
dks 3 fnlacj] 2013 ls Hkkjr ds jktnwrkokl] feULd] lgk;d dksalqyj
vf/kdkjh ds drZO;ksa dk ikyu djus ds fy, izkf/kd`r djrh gSA
[la-Vh- 4330@01@2006]
vkjñdsñ isfjufM;k] mi lfpo ¼dksalqyj½
MINISTRY OF EXTERNAL AFFAIRS
(CPV DIVISION)
New Delhi, the 3rd December, 2013
S.O. 2593.—In pursuance of the clause (a) of the
Section 2 of the Diplomatic and Consular Officers (Oaths
and fees) Act, 1948 (41 of 1948), the Central Government
hereby authorize Shri Anurag Kumar, Assistant, in
Embassy of India, Minsk to perform the duties of Assistant
Consular Officer with effect from 3rd December, 2013.
[No. T.4330/01/2006]
R. K. PERINDIA, Dy. Secy. (Consular)
Je ,oa jkstxkj ea=ky;
ubZ fnYyh] 18 uoEcj] 2013
dkñvkñ 2594.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj eSllZ ,l lh lh
,y ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèdj.k@Je U;k;ky;] gSnjkckn ds iapkV ¼lanHkZ la[;k 58@2013½
dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 18@11@2013 dks izkIr
gqvk FkkA
[lañ ,y&22012@33@2013&vkbZvkj ¼lh ,e&II½]
chñ ,eñ iVuk;d] MsLd vf/kdkjh
MINISTRY OF LABOUR AND EMPLOYMENT
New Delhi, the 18th November, 2013
S.O. 2594.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
5074 GI/2013
(6675)
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- 50]
ubZ fnYyh, fnlEcj 8—fnlEcj 14] 2013] 'kfuokj@vxzgk;.k 17—vxzgk;.k 23] 1935
No. 50] NEW DELHI, DECEMBER 8—DECEMBER 14, 2013, SATURDAY/AGRAHAYANA 17—AGRAHAYANA 23, 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)
6676
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
Government hereby publishes the Award (Ref. No. 58/2013)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Hyderabad as shown in the Annexure, in the industrial
dispute between the management of M/s. Singareni
Collieries Co. Ltd., and their workmen, received by the
Central Government on 18/11/2013.
[No. L-22012/33/2013-IR(CM-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL T RIBUNAL-CUM-LABOUR COURT
AT HYDERABAD
Present : Smt. M. VIJAYA LAKSHMI,
Presiding Officer
Dated the 3rd day of October, 2013
INDUSTRIAL DISPUTE No. 58/2013
Between:
The General Secretary (Riaz Ahmed),
Singareni Miners & Engg. Workers Union (HMS)
Qtr. No. C-34, Sector-I, Godavarikhani,
Karimnagar (AP)-505209
........Petitioner/Union
AND
The Chief General Manager,
M/s. Singareni Collieries Company Ltd.,
Srirampur Area, Srirampur,
Adilabad Dist.-504303
..........Respondent
Appearances:
For the Petitioner:
M/s. A. Sarojana &
K. Vasudeva Reddy, Advocates
For the Respondent:
None
AWARD
The Government of India, Ministry of Labour by its
Order No. L-22012/33/2013-IR(CM-II) dated 1.5.2013 referred
the following dispute under section 10(1)(d) of the I.D.
Act, 1947 for adjudication to this Tribunal between the
management of M/s. Singareni Collieries Company Ltd.,
and their workman represented by the General Secretary,
Singareni Miners & Engg. Workers Union (HMS). The
reference is,
SCHEDULE
"Whether the action of the Chief General Manager,
M/s. Singareni Collieries Company Ltd., Srirampur
Area, Srirampur, Adilabad Dist., in terminating the
services of Sri Thallapalli Sadannandam, Ex. Genl.
Mazdoor, RK-6 inc., Srirampur Area with effect from
10.12.2002 is justified or not? If not, to what relief the
applicant is entitled for?"
The reference is numbered in this Tribunal as I.D.
No. 58/2013 and notices were issued to the parties
concerned.
2. The case stands for filing of Counter by the
Respondent to 14.10.2013. Petitioner filed IA No. 175/2013
on 3.10.2013 seeking for advancement of the case to
3.10.2013 and filed a memo seeking for permission to
withdraw the case.
3. In pursuance of the order in IA No. 175/2013 dated
3.10.2013, this case is advanced to 3.10.13. In the memo
filed by the Petitioner seeking for permission to withdraw
the case, Petitioner pleaded that the management was kind
enough to offer employment to him subject to withdrawal
of the present dispute and that he be permitted to withdraw
the petition.
4. Notice given to Respondent. Heard both parties.
Petitioner is permitted to withdraw his case.
5. In the result, the case is dismissed as withdrawn.
Award is passed accordingly. Transmit.
Dictated to Sri J. Vijaya Sarathi, UDC transcribed by
him and corrected by me on this the 3rd day of October,
2013.
M. VIJAYA LAKSHMI, Presiding Officer
Appendix of evidence
Witnesses examined for
Witnesses examined for
the Petitioner
the Respondent
NIL
NIL
Documents marked for the Petitioner
NIL
Documents marked for the Respondent
NIL
ubZ fnYyh] 18 uoEcj] 2013
dkñvkñ 2595.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj eSllZ ,l lh lh ,y
ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaè
esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèdj.k@
Je U;k;ky;] gSnjkckn ds iapkV ¼lanHkZ la[;k 79@2011½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 18@11@2013 dks izkIr gqvk FkkA
[lañ ,y&22012@149@2011&vkbZvkj ¼lh ,e&II½]
chñ,eñ iVuk;d] MsLd vf/kdkjh
New Delhi, the 18th November, 2013
S.O. 2595.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 79/2011)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6677
Hyderabad as shown in the Annexure, in the industrial
dispute between the management of M/s. Singareni
Collieries Co. Ltd., and their workmen, received by the
Central Government on 18/11/2013.
[No. L-22012/149/2011-IR(CM-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM- LABOUR COURT
AT HYDERABAD
Present : Smt. M. VIJAYA LAKSHMI,
Presiding Officer
Dated the 5th day of September, 2013
INDUSTRIAL DISPUTE No. I.D. 79/2011
Between :
The General Secretary
(Sri Bandari Lingaiah)
SC Employees Union (CITU)
Q. No. 39-T, SMG X Road, Somagudem,
Bellampalli (Via),
Adilabad
....Petitioner
AND
The General Manager,
M/s. Singareni Collieries Company Limited,
Mandamarri Division,
Mandamarri-504303
....Respondent
Appearances :
For the Petitioner:
NIL
For the Respondent:
NIL
AWARD
The Government of India, Ministry of Labour by its
Order No. L-22012/149/2011-IR(CM-II) dated 17.10.2011
referred the following dispute between the management of
M/s. Singareni Collieries Company Ltd., and their workman
under section 10(1)(d) of the I.D. Act, 1947 for adjudication
to this Tribunal. The reference is,
SCHEDULE
"Whether the action of the General Manager of
M/s. Singareni Collieries Company Ltd., Mandamarri
Division, Adilabad District in denying promotion to
Shri Nathari Shankaraiah and seven others (List
enclosed) as SF-D is legal and justified? To what
relief the workman concerned are entitled to?"
The reference is numbered in this Tribunal as I.D.
No. 79/2011 and notices were issued to the parties.
2. The case stands posted for appearance of
Petitioner union and for filing of claim statement and
documents. Petitioner union called absent and there is no
representation since long time. Inspite of giving fair
opportunity again and again Petitioner union is not taking
interest in the proceedings. In the circumstances, taking
that Petitioner union is not interested in the Proceedings,
petition is dismissed.
Award passed accordingly. Transmit.
Dictated to Smt. P. Phani Gowri, Personal Assistant
transcribed by her and corrected by me on this the 5th day
of September, 2013.
M. VIJAYA LAKSHMI, Presiding Officer
Appendix of evidence
Witnesses examined for
Witnesses examined for
the Petitioner
the Respondent
NIL
NIL
Documents marked for the Petitioner
NIL
Documents marked for the Respondent
NIL
ubZ fnYyh] 18 uoEcj] 2013
dkñvkñ 2596.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj eSllZ ,l lh lh ,y
ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaè
esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k@
Je U;k;ky;] gSnjkckn ds iapkV ¼lanHkZ la[;k 85@2012½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 18@11@2013 dks izkIr gqvk FkkA
[lañ,y&22012@155@2012&vkbZvkj ¼lh ,e&II½]
chñ ,eñ iVuk;d] MsLd vf/kdkjh
New Delhi, the 18th November, 2013
S.O. 2596.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 85/2012)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Hyderabad as shown in the Annexure, in the industrial
dispute between the management of M/s. Singareni
Collieries Co. Ltd., and their workmen, received by the
Central Government on 18/11/2013.
[No. L-22012/155/2012-IR(CM-II)]
B.M. PATNAIK, Desk Officer
6678
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT AT
HYDERABAD
Present : Smt. M. VIJAYA LAKSHMI,
Presiding Officer
Dated the 5th day of August, 2013
INDUSTRIAL DISPUTE No. I.D. 85/2012
Between :
The General Secretary
(Sri Peddapalli Satyanarayana)
Singareni Collieries Labour Union (TNTUC),
Qr. No. MD-7/J, Millenium Colony, Ganganagar,
Godavarikhani-505209
............Petitioner
AND
The General Manager,
M/s. Singareni Collieries Company Ltd.,
Ramagundam-I Area, Godavarikhani,
Karimnagar Dist.-505209
..........Respondent
Appearances :
For the Petitioner:
NIL
For the Respondent:
M/s. P.A.V.V.S. Sarma &
Vijaya Lakshmi, Advocates
AWARD
The Government of India, Ministry of Labour by its
Order No. L-22012/155/2012-IR(CM-II) dated 7.11.2012
referred the following dispute between the management of
M/s. Singareni Collieries Company Ltd., and their workman
under section 10(1)(d) of the I.D. Act, 1947 for adjudication
to this Tribunal. The reference is,
SCHEDULE
"Whether the action of the management of General
Manager of M/s. Singareni Collieries Company Ltd.,
Ramagundam-I Area, Godavarikhani in awarding
punishment of reduction of 2 SPRAs with effect from
1.7.2006 in respect of Annadi Hanumaiah, Hauler
Operator, GDK-I Inc., is justified or not? To what
relief the employee in question is entitled for?"
The reference is numbered in this Tribunal as I.D.
No. 85/2012 and notices were issued to the parties.
2. The case stands posted for appearance of
Petitioner union and for filing of claim statement and
documents. Petitioner union called absent and there is no
representation. Inspite of giving fair opportunity again and
again Petitioner union is not taking interest in the
proceedings. In the circumstances, taking that Petitioner
union is not interested in the proceedings, petition is
dismissed.
Award passed accordingly. Transmit.
Dictated to Smt. P. Phani Gowri, Personal Assistant
transcribed by her and corrected by me on this the 5th day
of August, 2013.
M. VIJAYA LAKSHMI, Presiding Officer
Appendix of evidence
Witnesses examined for
Witnesses examined for
the Petitioner
the Respondent
NIL
NIL
Documents marked for the Petitioner
NIL
Documents marked for the Respondent
NIL
ubZ fnYyh] 18 uoEcj] 2013
dkñvkñ 2597.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj
eSllZ ,u ,y lh ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa
ds chp] vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj
vkS|ksfxd vf/kdj.k@Je U;k;ky;] pSUubZ ds iapkV ¼lanHkZ la[;k
100@2011½ dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 18@11@2013
dks izkIr gqvk FkkA
[lañ ,y&22012@154@2011&vkbZvkj ¼lh,e&II½]
chñ ,eñ iVuk;d] MsLd vf/kdkjh
New Delhi, the 18th November, 2013
S.O. 2597.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 100/
2011) of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Chennai as shown in the Annexure, in the industrial dispute
between the management of M/s. Neyveli Lignite
Corporation Ltd., and their workmen, received by the Central
Government on 18/11/2013.
[No. L-22012/154/2011-IR(CM-II)]
B.M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
CHENNAI
Thursday, the 31st October, 2013
Present : K.P. PRASANNA KUMARI,
Presiding Officer
Industrial Dispute No. 100/2011
(In the matter of the dispute for adjudication under
clause (d) of sub-section (1) and sub-section 2(A) of Section
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6679
10 of the Industrial Disputes Act, 1947 (14 of 1947), between
the Management of Neyveli Lignite Corporation Ltd. and
their workmen)
Between :
Sri R. Paranjothy
:
1st Party/Petitioner
AND
The Director (Personnel)
:
2nd Party/Respondent
M/s. Neyveli Lignite Corporation Ltd.
Neyveli-607803
Appearances :
For the 1st Party/Petitioner :
Sri M. Pari, Advocate
For the 2nd Party/Management :
M/s N.A.K. Sarma,
Advocates
AWARD
The Central Government, Ministry of Labour &
Employment vide its Order No. L-22012/154/2011-IR (CM-
II) dated 02.12.2011 referred the following Industrial
Dispute to this Tribunal for adjudication.
The schedule mentioned in that order is:
"Whether the action of the management of Neyveli
Lignite Corporation in removing the workman
Sri R. Paranjothy, Technician IA, Mine-I from service
is legal and justified? To what relief the workman
concerned is entitled to?"
2. After the receipt of the Industrial Dispute this
Tribunal has numbered it as ID No. 100/2011 and issued
notices of both sides. Both sides appeared through counsel
and filed Claim and Counter Statement respectively.
3. The Case that is put forth in the Claim Statement is
this:
The petitioner had joined the Respondent
Corporation as a Worker, in the year 1994. A vehicle loan
was sanctioned to the petitioner by order dated 18.04.2008
and recovery was effected from April, 2008. The petitioner
was not able to produce the relevant documents before the
Management. The petitioner was suspended from service
without any notice by order dated 23.06.2008. A Charge
Memo also has been issued to him alongwith this. Though
the petitioner has requested for subsistence allowance the
Respondent has not considered this request. The
Respondent has conducted a domestic enquiry setting the
petitioner ex-parte and has given a finding against the
petitioner. On the basis of the finding a Show Cause Notice
was issued to the petitioner and the petitioner has submitted
his explanation. On the basis of the explanation the
Respondent has issued a letter extending time till 15.12.2008.
The petitioner has requested for further time by another
letter. The petitioner was not afforded an opportunity to
reopen the enquiry. He was dismissed from service by order
dated 16.01.2009. The enquiry was conducted against the
petitioner without complying with the principles of natural
justice. The punishment imposed on the petitioner is
excessive also. The petitioner is entitled to reinstatement
into service with continuity of service alongwith backwages
and all other attendant benefits. An order may be passed
accordingly.
4. The Respondent has filed Counter Statement
contending as follows:
The petitioner has joined the Respondent
Corporation as an Artisan Trainee in March 1984. He had
reached the post of Technician Grade-IA. While in this
post he had applied for conveyance advance and the
Respondent has sanctioned advance of Rs. 40,000/- for
purchasing a two-wheeler. The amount was disbursed to
the petitioner on 18.04.2008. Though the petitioner received
the conveyance advance he neither purchased a two
wheeler nor submitted the relevant documents to the
Respondent. In spite of reminders having been sent, he
failed to fulfill the terms and conditions of the loan. So he
was required to refund the sanctioned advance with penal
interest, apart from liable to be disciplinarily proceeded for
misconduct. Suspension order-cum-charge memo was
issued to the petitioner on 23.06.2008 calling upon him to
show cause within 3 days of the receipt of the memo. In
this it was indicated that he is eligible for subsistence
allowance during the period of suspension. Enquiry Notices
were sent to the petitioner to his local address. He did not
appear for enquiry. So he was made ex-parte in the enquiry
proceedings. Adequate opportunity has been given to the
petitioner to defend himself. He has failed to utilize the
opportunity. Enquiry was conducted in compliance with
the principles of natural justice. The Enquiry Officer has
found that the charges against the petitioner are proved.
The report of enquiry was sent to him and he has submitted
his objection. He has admitted the findings of the Enquiry
Officer by his objection dated 06.11.2008. On considering
the objections the Disciplinary Authority has passed final
order imposing punishment of removal from service. The
petitioner is not entitled to any relief. The petition is to be
dismissed.
5. The evidence in the case consists of oral evidence
of the petitioner examined as WW1, the witness of the
Respondent examined as MW1 and documents marked as
Exs. W1 to Ex. W29 and Exs. M1 to Ex. M11.
6. The points for consideration are:
(i) Whether the removal of the petitioner from the
service of the Respondent is legal and justified?
(ii)What is the relief to which the petitioner is
entitled?
The Points
7. The petitioner had admittedly joined the
Respondent Corporation as a Worker in 1984. He was
6680
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
Artisan (Trainee) at that time. On 18.11.2008 on which date
the petitioner was removed from service he was working as
Technician Grade-IA in the service of the Respondent. The
removal of the petitioner from the service of the Respondent
is in connection with the failure of the petitioner to comply
with the terms and conditions of his availing a Vehicle
Loan. Even as stated by the petitioner in his Claim
Statement, vehicle loan was sanctioned to him by order
dated 18.04.2008. Further details of the loan are available
from the Counter Statement of the Respondent. He had
applied for vehicle loan of Rs. 40,000/- for purchasing a
new two wheeler (Bajaj-Discover 135 (Disc) Model) (Ext.
M11) is the copy of the application for conveyance advance
given by the petitioner. This specifies that the advance of
Rs. 40,000/- is required for purchasing the two-wheeler. It
is clear from the Claim Statement of the petitioner itself that
the loan amount has been disbursed to him. What he had
stated in the Claim Statement is that due to personal and
family problems he was unable to produce the necessary
documents before the Respondent. He has stated in the
Claim Statement that for this reason suspension-cum-
charge memo has been issued to him without any prior
notice.
8. Ex.M1 is the copy of acknowledgement issued by
the petitioner for receiving the cheque of Rs. 40,000/- for
purchase of motor cycle. This shows that he has received
the amount on 18.04.2008. The stand of the Respondent is
that within 30 days of receipt of the advance amount the
petitioner was bound to produce the mortgage bond,
stamped cash receipt from the vendor for the amount paid
for the vehicle, registration book in evidence of the actual
transfer of the vehicle in the name of the employee and
also comprehensive insurance policy for value of not less
than the amount of advance. Ex.M4, Ex.M5 and Ex.M6 are
copies of memos sent to the petitioner for non-production
of relevant documents. It is clear from the very statement
of the petitioner in the Claim Statement itself that he did
not submit the relevant documents to the Respondent to
show that he has purchased the two-wheeler. Even at the
stage of trial of the case before this Tribunal there is no
case for the petitioner that he has purchased the vehicle
using the advance amount. What he has stated is that it
was used by his wife to meet some dire necessities.
9. The petitioner has raised a contention in the Claim
Statement that the enquiry conducted against him is not
accordance with the principles of natural justice. He has
stated that proper notice has not been issued to him in the
proper address and this is why he happened to be set ex-
parte in the enquiry proceedings. On the other hand it is
contended by the Respondent that in spite of notices
having been sent to the petitioner repeadely he has failed
to turn up and that is why he had to be set ex-parte. The
counsel for the petitioner has referred to Page-13 of the
typed set of documents of the Respondent and pointed
out that the petitioner has received the notice furnishing
the date of enquiry as 30.07.2008 on the said date only and
so there was no question of his participating in the enquiry
proceedings on the said day. In the absence of the petitioner
enquiry was adjourned to 05.08.2008 and then to 09.09.2008.
On 09.09.2008 he was set ex-parte and the enquiry was
conducted in his absence.
10. The contention that the enquiry is not conducted
in accordance with the principles of natural justice is raised
by the petitioner on the ground that proper notice has not
been given to him. However, even though this question
has been raised in the Claim Statement and the Respondent
has objected to this in the Counter Statement also, this is
not seen raised as a Preliminary Issue. Both parties have
gone for trial as if the issue is not in existence. Both sides
have aduced evidence. Both the petitioner as well as
Respondent have tried to establish the case by oral as well
as by documentary evidence. So there is ample material
before this Court to decide the issue. So the question
whether the enquiry has not been conducted in accordance
with the principles of natural justice has become redundant.
In Ex.W7 which is a copy of the representation made by
the petitioner to the Respondent, on 06.11.2008 he has
accepted the findings of enquiry. He has stated that in any
case he is not denying the conclusion of the Enquiry Officer.
He has added that it was to safeguard him and his family
members the conveyance advance has been spent.
11. Ex.M9 is the file of the enquiry proceedings. The
report of enquiry reveals the charge against the petitioner
as his failure to purchase two-wheeler and to produce the
relevant documents in spite of repeated reminders, though
the conveyance advance has been obtained. The very
admission by the petitioner would show that he has neither
purchased the vehicle nor submitted the relevant
documents before the Respondent. During his cross-
examination before this Court also he has admitted that he
has not submitted the vehicle documents to the
Reponsdent. So there is no doubt that the petitioner has
committed the misconduct of misusing the conveyance
advance.
12. Because of the admission of the petitioner himself
and other available evidence there is no reason to differ
from the report of the enquiry that the petitioner has
committed the offence charged against him in the enquiry.
When vehicle advance was received by him he was
expected to purchase the vehicle and submit necessary
documents to the Respondent. In spite of repeated
reminders he has failed to do so. It is not surprising that
the Respondent has proceeded against him.
13. The question now to be considered is whether
the punishment imposed on the petitioner is not in
proportion to the gravity of the offence committed by him.
In the Claim Statement the petitioner has claimed that he
has got an unblemished record of service. He has produced
Ex.W21 to show that he was honoured for meritorious
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6681
service. However, according to the Respondent disciplinary
proceedings have been initiated against the petitioner
earlier on more than one occasion. It is stated in the Counter
Statement that in 2005 his annual increment was stopped
for a period of one year without cumulative effect for
unauthorized absence of 25 days. In the same year he had
suffered punishment of reduction of pay by one stage for
a period of one year for habitual absence and availing extra-
ordinary leave. In 2006 he was awarded the punishment of
demotion to the lower post of Technician-IA for a period of
two years for sub-letting his quarters. The petitioner has
admitted in his cross-examination that he had suffered all
these punishments detailed in the counter statement.
14. In spite of the above punishments imposed on
the petitioner earlier, I am constrained to think that the
punishment now given to the petitioner is not at all
commensurate with the gravity of the offence. It could be
seen from the document produced by the petitioner that
the other workers who committed similar misconducts were
given punishment of a very minor nature. Ex.W29 is the
information given to the petitioner by the Respondent under
the Right to Information Act. This shows that several other
workers also had misused conveyance advance but they
were given the punishment of reduction of pay, stoppage
of increment or warning as the circumstances required.
The punishment of removal from service is so drastic in
nature that it is just like imposing punishment of death
sentence for an offence failling under Section-323 of IPC.
In spite of the history of the petitioner which spells out
some aberration in service he need not suffer such a drastic
punishment. The punishment imposed is liable to be
interfered with.
15. It is a fact that the petitioner has not so far remitted
back the amount obtained as conveyance advance, though
he has not purchased the vehicle. In Court he has expressed
his willingness to remit the amount to the Respondent. In
the circumstances an order is passed as follows:
(a) The Respondent shall, within one week inform the
petitioner in writing (with copy to this Tribunal) the
exact amount that is payable towards loan with interest
and other dues.
(b) Within a week of receipt of the information, the
petitioner shall remit the entire amount with the
Respondent.
(c) Within a week of remittance of the amount, the
Respondent shall reinstate the petitioner in service
with reduction of pay (from the pay he was drawing at
the time of removal from service) by one stage.
(d) The petitioner will not be entitled to any backwages,
but will be entitled to the benefit of continuity of
service.
16. An award is passed accordingly.
(Dictated to the P.A. transcribed and typed by him,
corrected and pronounced by me in the open court on this
day the 31st October, 2013)
K.P. PRASANNA KUMARI, Presiding Officer
Witnesses Examined:
For the 1st Party/Petitioner Union : WW1, Sri R. Paranjothy
For the 2nd Party/Management :
MW1, Sri R. Subramaniam
Documents Marked:
On the petitioner's side
Ex.No.
Date
Description
Ex.W1
20.05.2008
Suspension Order
Ex.W2
21.06.2008
Revocation Order
Ex.W3
23.06.2008
Suspension-cum-Charge Sheet
Memo
Ex.W4
11.08.2008
Representation by the petitioner
Ex.W5
18.10.2008
Report of the Enquiry Officer
Ex.W6
24.10.2008
Enquiry Report
Ex.W7
06.11.2008
Representation by the petitioner
Ex.W8
18.11.2008
Show Cause Notice
Ex.W9
27.11.2008
Explanation by the petitioner
Ex.W10
05.12.2008
Extension letter
Ex.W11
15.12.2008
Representation by the petitioner
Ex.W12
16.01.2009
Final Order
Ex.W13
02.02.2009
Representation by the petitioner
Ex.W14
13.02.2009
Dismissal Order
Ex.W15
20.02.2009
Representation by the petitioner
Ex.W16
11.03.2009
Final Order
Ex.W17
03.11.2009
Representation by the petitioner
Ex.W18
15.04.2012
Application under R.T.I. Act
Ex.W19
12.06.2012
Reply from the Information Officer,
NLC
Ex.W20
—
Particulars in respect of misuse of
conveyance advance.
Ex.W21
05.01.2001
D.O. letter no. 3179/B1/2000
regarding award for long and
meritorious service.
Ex.W22
18.10.2012
Seeking certain information about
the defaulters of conveyance
advance and related information
under RTI Act, 2005.
6682
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
Ex.W23
27.09.2010
Information under RTI Act
regarding disciplinary action
against Sri Bichhanda Patra.
Ex.W24
—
Provision of information to CPIO
in
respect
of
Transport
Department.
Ex.W25
09.01.2009
CPIO information regarding
sanction of Rs. 40,000/- to Sri V.
Saravanan, Sr. T.Gr.II.
Ex.W26
—
CPIO information regarding a case
of misconduct due to defaulting.
Ex.W27
—
CPIO information regarding list of
defaulters for conveyance
advance from the year 2000 to
30.06.2012 and action taken.
Ex.W28
24.02.2001
CPIO information regarding memo
to Smt. V. Anthoniammal.
Ex.W29
12.09.2007
CPIO information regarding memo
issued to Sri. T.V. Subramanian—
issue of caution.
On the Management's side
Ex.No.
Date
Description
Ex.M1
18.04.2008
Acknowledgement for receiving
the cheque for purchases of motor
cycle.
Ex.M2
—
Sanction Order.
Ex.M3
22.07.2008
Enquiry Notice.
Ex.M4
22.05.2008
Reminder sent to the 1st Party for
non-production of documents.
Ex.M5
20.05.2008
Memo sent to the 1st party for
non-production of documents.
Ex.M6
04.06.2008
Memo sent to the 1st party for
non-production of documents.
Ex.M7
30.07.2008
Enquiry notice sent to 1st party
local address with returned cover
and permanent address.
Ex.M8
02.09.2008
Enquiry notice sent to 1st party
local and permanent address.
Ex.M9
—
Enquiry proceedings.
Ex.M10
24.10.2008
Proceedings alongwith enquiry
report sent to 1st party with
returned covers.
Ex.M11
—
Application form for conveyance
advance for the purchase of two
wheeler/motor car submitted by
Paranjothy.
ubZ fnYyh] 18 uoEcj] 2013
dkñvkñ 2598.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj eSllZ lkmFk
bZLVuZ dksyQhYMl fyfeVsM ds izca/kra= ds lac) fu;kstdksa vkSj
muds deZdkjksa ds chp] vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh;
ljdkj vkS|ksfxd vf/kdj.k@Je U;k;ky;] tcyiqj ds iapkV ¼lanHkZ
la[;k 10@2005½ dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks
18@11@2013 dks izkIr gqvk FkkA
[lañ ,y&22012@402@2003&vkbZ vkj ¼lh,e&II½]
chñ ,eñ iVuk;d] MsLd vf/kdkjh
New Delhi, the 18th November, 2013
S.O. 2598.—In pursuance of Section 17 of the
Industrial Disputes Act. 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 10/2005)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Jabalpur as shown in the Annexure, in the industrial dispute
between the management of M/s. South Eastern Coalfields
Ltd. and their workmen, received by the Central Government
on 18/11/2013.
[No. L-22012/402/2003-IR(CM-II)]
B.M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
No. CGIT/LC/R/10/2005
PRESIDING OFFICER: SHRI R.B. PATLE
The President,
Rashtriya Koyla Khadan Mazdoor Sangh (INTUC),
Branch Nowrozabad,
Distt. Umaria (MP)
....Workman/Union
Versus
Chief General Manager,
South Eastern Coalfields Ltd.,
Johilla Area of SECL,
PO Nowrozabad,
Distt., Umaria (MP)
....Management
AWARD
Passed on this 23rd day of October, 2013
1. As per letter dated 7.1.2005 by the Government of
India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section-10 of I.D. Act, 1947 as per Notification No. L-22012/
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6683
402/2003-IR (CM-II). The dispute under reference relates
to:
"Whether the action of the management of Chief
General Manager, Sohagpur Area of SECL in awarding
punishment of stoppage of one increment in respect
of Shri D.R. Mishra, Sr. Clerk is legal and justified? If
not, to what relief the concerned workman is entitled
for?"
2. After receiving reference, notices were issued to
the parties. Despite of notice issued to the workman, he
failed to file his Statement of claim. Workman was proceeded
exparte on 6.12.2005. IInd party filed Written Statement.
Case of IInd party is that workman was issued with
chargesheet dated 19.7.2001. The allegation against
workman were of disorderly behavior on duty, committing
violent acts and insisting other employees for committing
such acts, threatening superior officers. Mr. R. Guha Roy
was appointed as Enquiry Officer and Shri S.N. Jha was
appointed as Management Representative. Enquiry was
conducted time to time. Details given in Para-9 of the Written
Statement. Full opportunity was given to the workman for
his defence. On report of Enquiry Officer, misconduct
against workman was to be proved. Punishment of stoppage
of one increment was imposed.
3. Considering pleadings on record, the points which
arise for my consideration and determination are as under.
My findings are recorded against each of them for the
reasons as below:—
(i) Whether the action of the
In Affirmative
management of Chief General
Manager Sohagpur Area of
SECL in awarding punishment
of stoppage of one increment
in respect of Shri D.R. Mishra,
Sr. Clerk is legal?
(ii) If not, what relief the
Relief prayed by
workman is entitled to?"
workman is rejected.
REASONS
4. Workman is challenging punishment order of
withholding his one increment. Workman proceeded exparte
on 31.3.2000. Management filed affidavit of evidence of
witness Shri Tulsidharan Kurup. His evidence covers most
of the contentions in Written Statement that enquiry was
conducted against workman and punishment was imposed.
His evidence remained unchallenged. I do not find reason
to disbelieve his evidence. For above reasons, I record my
finding in Point No. 1 in Affirmative.
5. In the result, award is passed as under:—
(1) Action of the management of Chief General
Manager, Sohagpur Area of SECL in awarding punishment
of stoppage of one increament in respect of Shri D.R.
Mishra, Sr. Clerk is proper.
(2) Relief prayed by workman is rejected.
R.B. PATLE, Presiding Officer
ubZ fnYyh] 18 uoEcj] 2013
dkñvkñ 2599.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj eSllZ lkmFk
bZLVuZ dksyQhYMl fyfeVsM ds izca/kra= ds lac) fu;kstdksa vkSj
muds deZdkjksa ds chp] vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh;
ljdkj vkS|ksfxd vf/kdj.k@Je U;k;ky;] tcyiqj ds iapkV ¼lanHkZ
la[;k 29@2003½ dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks
18@11@2013 dks izkIr gqvk FkkA
[lañ ,y&22012@208@2001&vkbZ vkj ¼lh,e&II½]
chñ ,eñ iVuk;d] MsLd vf/kdkjh
New Delhi, the 18th November, 2013
S.O. 2599.—In pursuance of Section 17 of the
Industrial Disputes Act. 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref. 29/2003 of
the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Jabalpur as shown in the Annexure, in the industrial dispute
between the management of SECL and their workmen,
received by the Central Government on 18/11/2013.
[No. L-22012/208/2001-IR(CM-II)]
B.M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
No. CGIT/LC/R/29/2003
Presiding Officer: SHRI R.B. PATLE
Shri Ram Vilas Shobhnath,
General Secretary,
Chhattisgarh Khadan Kharkhana Mazdoor Union,
Village & PO Bankimongra,
Distt., Korba, Chhattisgarh
....Workman/Union
Versus
Chief General Manager,
SECL, Kusmunda Area,
P.O. Kusmunda Colliery,
Distt., Korba, Chhattisgarh
....Management
AWARD
Passed on this 11th day of October, 2013
1. As per letter dated 6.1.2003 by the Government of
India, Ministry of Labour, New Delhi, the reference is
6684
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
received. The reference is made to this Tribunal under
Section-10 of I.D. Act, 1947 as per Notification No. L-22012/
208/2001-IR (CM-II). The dispute under reference relates
to:
"Whether the action of the management of SECL,
Kusmunda Area, Distt., Korba (Chhattisgarh) is not
protecting the basic pay of Smt. Lakshmini Bai,
General Mazdoor-II on appointment to the post of
Security Guard (female) w.e.f. 4.1.1997 is legal and
justified? If not, to what relief the worker is entitled?"
2. After receiving reference, notices were issued to
the parties. Ist party workman through Union submitted
statement of claim at Page 2/2 to 2/4. Case of workman
submitted through Union is that Laxmibai was working as
General Mazdoor Category-II. As per NCWA-V, she was
paid Rs. 79.22 per day (Rs. 2059.72 per month). That as per
order dated 4.1.1997, she was appointed as Security Guard
Cat-I. She was posted at Kusmunda OC Project. She had
objected to less payment of wages on her joining as security
guard. That she had joined the post of Security Guard
submitting that her pay should not be reduced. However
after joining as Security Guard, her pay was fixed to
Rs. 1781/- while she was working as General Mazdoor
Cateogry I, her pay was Rs. 59.72 despite of her protest at
time of joining. It is further contended that in SECL Korba
Area, General Mazdoor Category is appointed as security
guards. Their pay was not fixed on lower side. The
documents are produced by the workman. To be precise,
the workman prays for pay protection on her appointment
and posting as security guard.
3. IInd party filed Written statement at Page 6/1 to
6/6. IInd party raised preliminary objection that CKKMU
Union is not functioning in establishment of IInd party.
That workman is not its member therefore said Union has
no locus-standi to represent the workman in Reference
Proceeding. That workman was provided employment on
compassionate ground after death of her husband
Kartik Ram. She was as such provided employment on
21.12.1985. On 16.6.1990, workman was transferred to
Hasdev Area. The Ist party workman was given benefit of
clerk career Group as per guidelines of the company. The
applications were invited from all female workers who were
interested to work as Security Guard Female Trainee. She
was selected as such. The Ist party workman was appointed
as security guard female trainee subject to certain
conditions. That she would be on training for six months.
On completion of training satisfactorily, she would be
deployed against sanctioned post. She would be required
to undergo training prescribed time to time. Her performance
denying training period is not found satisfactory, she would
be reverted back to original post. That the post of security
guard carried pay scale 1781-43-2383. Said pay scale was
allowed to the workman on her joining as security guard
trainee on 6.1.1997. Ist party workman having fully
understood terms and conditions accepted the post of
security guard. The fixation on her pay is legal.
4. Management denies that workman was initially
appointed as General Mazdoor Cat-II. It is reiterated that
the workman had accepted terms and conditions for
appointment as security guard. It is denied that illegality is
committed while fixing her pay. On such ground IInd party
prays for rejection of the claim.
5. Considering pleadings on record, the points which
arise for my consideration and determination are as under.
My findings are recorded against each of them for the
reasons as below:—
(i) Whether the action of the
In Affirmative
management of SECL,
Kusmunda Area, Distt.,
Korba ( Chhattisgarh) in
not protecting the basic pay
of Smt. Lakshmini Bai,
General Mazdoor-II on
appointment to the post of
Security Guard (female)
w.e.f. 4.1.1997 is legal.?
(ii) If not, what relief the
Relief prayed by
workman is entitled to?"
workman is entitled.
REASONS
6. Ist party workman is claiming protection of pay as
General Mazdoor Cat-II. After her appointment as security
guard trainee. Management has denied her claim denying
all material contentions. The affidavit of workman is denied
covering most of her contentions in Statement of Claim. In
para-5 of her affidavit, workman has stated about pay
protection of security guards in SECL, Korba Area was
allowed by the management.
7. Workman remained absent for her cross-
examination. Therefore her evidence cannot be considered.
Management filed affidavit of evidence of Shri Albinus
Ekka covering the contentions of management in Written
Statement. Workman failed to cross-examine witness of
management. The documents produced on record are not
concerned with the pay protection of workman in SECL.
Any rule for pay protection is not produced by workman.
The documents produced by workman are not proved, the
same being zerox copies. Pay protection given to General
Manager Cat-II appointed as Security Guards in Korba
Area was as per the settlement between Union and the
management. In present case, the management of IInd party
is not accepting the claim for pay protection. Therefore the
claim of Ist party cannot be accepted. For above reasons, I
record my finding in Point No. 1 in Affirmative.
8. In the result, award is passed as under:—
(1) Action of the management of SECL, Kusmunda
Area, Distt. Korba (Chhattisgarh) in not protecting the basic
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6685
pay of Smt. Lakshmini Bai, General Mazdoor-II on
appointment to the post of Security Guard (female) w.e.f
4.1.1997 is legal.
(2) Claim of Ist party workman is rejected.
R.B. PATLE, Presiding Officer
ubZ fnYyh] 18 uoEcj] 2013
dkñvkñ 2600.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj eSllZ lkmFk
bZLVuZ dksyQhYMl fyfeVsM ds izca/kra= ds lac) fu;kstdksa vkSj
muds deZdkjksa ds chp] vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh;
ljdkj vkS|ksfxd vf/kdj.k@Je U;k;ky;] tcyiqj ds iapkV ¼lanHkZ
la[;k 72@96½ dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks
18@11@2013 dks izkIr gqvk FkkA
[lañ ,y&22012@341@1995&vkbZ vkj ¼lh&II½]
chñ ,eñ iVuk;d] MsLd vf/kdkjh
New Delhi, the 18th November, 2013
S.O. 2600.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 72/96)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Jabalpur as shown in the Annexure, in the industrial dispute
between the management of SECL, and their workmen,
received by the Central Government on 18/11/2013.
[No. L-22012/341/1995-IR(C-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
No. CGIT/LC/R/72/96
Presiding Officer: SHRI R.B. PATLE
General Secretary,
Chhattisgarh Khadan Karkhana Mazdoor Union,
Bankimogra, Bilaspur (MP)
....Workman/Union
Versus
Chairman-Cum-Managing Director,
SECL, Seepat Road,
Bilaspur (MP)
...Management
AWARD
Passed on this 17th day of October, 2013
1. As per letter dated 28-2-96 by the Government of
India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section-10 of I.D. Act, 1947 as per Notification No. L-22012/
341/95-IR (C-II). The dispute under reference relates to:
"Whether the action of the management of SECL,
Bilaspur in not providing employment on
compassionate ground to Shri Narendra Singh,
dependent son of late Shri Suresh Kumar, Ex-Loader,
Banki Colliery is legal? If not, to what relief, the
dependent of Shri Suresh Kumar is entitled for?"
2. After receiving reference, notices were issued to
the parties. Ist party Union submitted Statement of Claim
at Page 2/1 to 2/5. The case of Ist party union is that Shri
Suresh Kumar Loader died on 9-10-84. His widow
Chhatkunwar and minor Son Narendra and father Santram
were dependents. That as per NCWA applicable from
1-1-83, provided for employment on compassionate ground
as per clause 9.4.1 to 9.4.4 that the dependents include
unmarried daughter, adopted son. The younger brother,
widow daughter, widow daughter-in-law, son-in-law of
deceased are considered as dependents. If the dependents
are not above age of 35 years are considered for
employment, that after death of deceased Suresh Kumar,
his widow had requested management for employment on
compassionate ground submitting application on 3-2-85.
The management failed to provide employment to her. Vide
letter dated 25-3-85, widow was informed that she was
suffering from T.B. therefore she could not be provided
employment on compassionate ground. She may receive
treatment and after her recovery from illness, she will be
considered for employment. Next was when minor son
Narendra Singh attain majority, she may apply for
employment on compassionate ground. That she had
submitted application for her minor son after attaining
18 years of age, the proposal was sent to Head Office of
SECL at Bilaspur on 16-11-93. Despite of repeated
reminders, no response was received by the Manager.
Thereafter the workman approached Union and the
reference has been made. Workman further submits that
employment on compassionate ground towards Narendra
Singh is not provided on the ground of delay. Workman
further submits that employment on compassionate ground
was provided to Shri Sahettar Singh on 1-8-90. That Shri
Subaran died on 2-11-1974. That on death of Shri K.
Munnuswamy, his minor son was provided employment
on compassionate ground on 30-09-89. On such ground,
Union prays that Narendra, S/o deceased Suresh be
provided employment on compassionate ground with
wages from 5-6-95.
3. IInd party management filed Written Statement at
Page 6/1/ to 6/2. Claim of Union is denied. The management
submits that Late Suresh was appointed on 1-4-84 as piece-
rated loader at Banki Colliery. He died natural death on
9-10-84 leaving widow Chhatkunwar. She had not turned
up for employment, she was not willing to serve with SECL.
At that time, all dues were paid to widow and the property
6686
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
of late Suresh Kumar was sufficient to maintain his family.
That after a gap of 10 years, widow Smt. Chhatkunwar
approached to the management for providing employment
to her son Narendra Singh who attained age of 18 years.
That employer cannot wait for providing employment of
dependents of deceased workman or for getting minor
dependent major. The vacant posts are required to filled up
within reasonable period on requirement basis. That
provision for providing employment to dependent was
introduced from 1-1-1979 as per NCWA-II, Clause 10.1.
The main object to this clause was to provide immediate
relief to the family of deceased. In present case, the
employment on compassionate ground was claimed after
10 years of death of deceased Suresh. Such claim is not
tenable. On above grounds, IInd party prays for rejection
of claim of workman.
4. Union filed rejoinder at page 7/1 to 7/2 reiterating
its contentions in Statement of Claim. That the employment
on compassionate ground were provided to Shri Sahettar
Singh, legal heir of Late Shri Subaran and Shri Ilan Goman,
legal heir of Late Shri G.S. Prakashan.
5. Considering pleadings on record, the points which
arise for my consideration and determination are as under.
My findings are recorded against each of them for the
reasons as below:—
(i) Whether the action of the
In Negative
management of SECL,
Bilaspur in not providing
employment on compassionate
ground to Shri Narendra Singh,
dependent son of late
Shri Suresh Kumar, Ex-Loader,
Banki Colliery is legal and
justified?
(ii) If not, what relief the
As per final order.
workman is entitled to?"
REASONS
6. Claim of Union that denial of employment on
compassionate ground to Narendra Singh, S/o Late Shri
Suresh Kumar by management is illegal. That said Narendra
be provided employment on compassionate ground. Claim
is opposed by the management submitting that Shri Suresh
Kumar had left his widow with sufficient property to
maintain his family. After his death, she was not interested
in employment in SECL. The application for employment
on compassionate ground for her son was submitted after
10 years. The management cannot wait for such long period.
The evidence is filed by Shri Narendra Singh covering most
of the contention in Statement of claim. He was not cross-
examined. The evidence of Shri R.S. Singh is recorded.
Said witness of Ist party Union states that he had submitted
proposal Exhibit W-1 for employment of son of Late Suresh
Kumar. The proposal bears his signature. The document
Exhibit W-2 was sent to Smt. Chhatkunwar by him. He had
also sent Document Exhibit W-3 to Sub Area Manager and
reminder Exhibit W-4 was sent by him. That he had raised
dispute before ALC. Management filed reply Exhibit W-5.
Document Exhibit W-6 was sent to the Head Office.
Document W-7 is order of appointment of Subaran S/o
Sehattar Singh. In his cross-examination, he has also proved
document Exhibit W-8. In his cross-examination, said
witness says Exhibit W-2 bears signature of Mr. Lal. He
was acquainted with him. The Company had issued interim
orders for employment on vague dependents. That the
post cannot be kept vacant for employment of the
dependents of deceased for 9 years.
7. The affidavit of management's witness Shri D.B.
Janotkar is filed in detail. That the reply Exhibit W-2 dated
5-3-85 was not signed by Area Manager in reply to
Application dated 3-2-85, wife of deceased is not written
after taking the approval of competent authority. That Sub
Area manager was not enjoying powers to communicate to
the wife of the deceased. In his cross-examination,
management's witness says after 9 years of death of Suresh
Kumar, claim was submitted for appointment on
compassionate ground. There is no provision to keep post
vacant for 9 years for appointment of dependent of deceased
employee. The witness further says that copy of NCWA-II
is not on the record.
8. After the arguments were heard, learned counsel
for IInd party produced copy of NCWA-IV dated 23-12-00
as present matter relates to death of Suresh Kumar in 1984.
The claim under reference cannot be governed by NCWA-
IV. The copy of NCWA-II is also produced on record.
NCWA is made applicable from 11-10-83. NCWA-III-9.4.1
provides
"The employment would be provided to the
dependent of workers disabled permanently and
those who meet with death while in service. This
provision will be implemented as follows:—
9.4.2.—(i) the dependent for this purpose means
the wife/husband is the case may be, unmarried daughter,
son and legally adopted son. If no such direct dependent
is available for employment, younger brother, widowed
daughter/widowed daughter in law residing with the
deceased and almost wholly dependant on the earnings of
the deceased may be considered to be the dependent of
the deceased.
(ii) The dependant to be cosnidered for employment
should be physically fit and suitable for employment and
aged not more than 35 years provided that the age limit
shall not apply in the case of the spouse."
NCWA-III does not provide specific time for
providing employment on compassionate ground. NCWA-
IV Para 9.5.0 (iii) provided in case of death either in mine
accident or for other reasons for medical unfitness under
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6687
Clause 9.4.0, if no employment has been offered and the
male dependant of the concerned worker is 12 years and
above in age, he will be kept on a live roster and would be
provided employment commensurate with his skill and
qualifications when he attains the age of 18 years.
NCWA is dated 23-12-2000. It was not in force at the
time of death of Shri Suresh Kumar in 1984, matter is only
covered in NCWA-III. It does not prescribed age of the
minor dependent. The provisions of NCWA-III cannot be
compared with provisions in NCWA-IV. The document
Exhibit W-1 application submitted by Chhatkunwar for
providing employment of her minor son Narendra. In Exhibit
W-2 widow was advised that she may get treatment. After
she is cured of her illness, her claim may be considered.
That if her son Narendra attains majority, she may submit
application for employment. Thus claim for employment
on compassionate ground of minor Narendra was admitted
in Exhibit W-2. The document Exhibit W-4 application
submitted by Chhatkunwar was forwarded to General
Manager. However claim was not accepted. The reply is
filed at Exhibit W-5. That post could not be kept vacant for
such long time. As discussed above, NCWA-III do not
provide specific age for minor dependent. No time limit is
prescribed for employment on compassionate ground in
NCWA-III. Therefore refusing employment on
compassionate ground by IInd Party management is not
legal. It is supported by oral and documentary evidence on
record.
9. Learned counsel for IInd Party Mr. Shashi relies
on ratio held in:
"Case of Bank of Maharashtra versus Manoj Kumar
Deharia reported in 2010(3) M.P.L.J 213. Their
Lordship help having regard to the exceptional nature
of such appointment as it is granted under a special
scheme carved out dehors the normal mode of
recruitment, the same has to be governed as per the
policies or provisions governing such appointment
prevalent at a particular point of time when
consideration is to be made, and not on the basis of
a policy which was in vougue and has been given up
by the employer due to changed circumstances."
Ratio held in the case supports claim of Union as
Suresh died in 1984 the claim for service of dependents on
compassionate ground is covered by NCWA-III and not
by NCWA-IV which came in force in November 2000.
In case of Union of India versus Bhagwan Singh
reported in 1996(I) LLJ 1127. Their Lordship dealing with
appointment on compassionate ground. That death of
employee in 1972, Tribunal directed reconsideration of the
respondent's application rejected by the employer in 1987,
1990 and 1991. The employee left behind besides the
respondent two Major sons and his wife, they did not
apply for job on compassionate ground. The plea of the
respondent for compassionate employment held therefore
not to enable the family to tide over the sudden crisis to
the family, resulting from the employee's death in harness
Tribunal's order is set aside.
In present case as per document Exhibit W-2. Claim
of widow for appointment on compassionate ground was
not allowed as she was suffering from illness, she was
advised to get treatment, she was also advised that after
her son Narendra completes 18 years, application for his
employment would be submitted. The claim for employment
of Narendra has been wrongly rejected by the management
of IInd Party. Said action is not justified. Therefore I record
my finding in Point No. 1 in Negative.
10. Point No. 2, In view of my finding in Point No. 1,
action of IInd Party refusing employment on
compassionate ground to Shri Narendra Singh, S/o Shri
Suresh is not justified. The question arises to what relief
Shri Narendra Singh is entitled. The application for
employment on compassionate ground was submitted on
27-8-93 Exhibit W-3, said claim was forwarded to General
Manager, Korba Area. On 20-2-94 Exhibit W-4, there is no
specific evidence whether Shri Narendra Singh is employed
or unemployed. No evidence is addueced by the
management that Shri Narendra Singh is in gainful
employment. Considering above aspects, in my considered
view, instead of granting full back wages, 25% wages from
date of submission of application dated 27-8-93 would be
appropriate. Accordingly I record my finding on Point No. 2.
11. In the result, award is passed as under:—
(1) Action of the management of SECL, Bilaspur in
not providing employment on compassionate ground to
Shri Narendra Singh, dependent son of late Shri Suresh
Kumar, Ex-Loader, Banki Colliery is not proper.
(2) IInd Party is directed to take steps for employment
on compassionate ground to Shri Narendra S/o Shri Suresh
as per NCWA-III within 2 months.
IInd Party shall pay 25% wages from 27-8-93. Amount
as per above order shall be paid to workman within 30
days. In case of default, amount shall carry 9% interest per
annum from the date of award till its realization.
R. B. PATLE, Presiding Officer,
ubZ fnYyh] 18 uoEcj] 2013
dkñvkñ 2601.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj eSllZ ,Q lh vkbZ
ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqca/k esa
fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k@Je
U;k;ky;] tcyiqj ds iapkV ¼lanHkZ la[;k 144@2003½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 18@11@2013 dks izkIr gqvk FkkA
[lañ ,y&22012@212@2002&vkbZvkj ¼lh,e&II½]
chñ ,eñ iVuk;d] MsLd vf/kdkjh
6688
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
New Delhi, the 18th November, 2013
S.O. 2601.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref. 144/2003 of
the Cent.Govt.Indus.Tribunal-cum-Labour Court, Jabalpur
as shown in the Annexure, in the industrial dispute between
the management of Food Corporation of India, Contractor
FCI, and their workmen, received by the Central Government
on 18/11/2013.
[No. L-22012/212/2002-IR(CM-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
No. CGIT/LC/R/144/2003
PRESIDING OFFICER : SHRI R.B. PATLE
Shri Pritam Singh Kirar,
C/o Radhekrishna General Stores,
Ahmedpur Chouraha,
Opposite Central Bank of India,
Vidisha,
Vidisha (MP)
...Workman
Versus
District Manager,
Food Corporation of India,
Sagar (MP)
M/s V.R. Enterprises,
Contractor FCI,
Bansluli, Near Ganesh Temple,
Vidisha (MP)
...Management
AWARD
Passed on this 21st day of October 2013
1. As per letter dated 8-8-2003 by the Government of
India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section 10 of I.D. Act, 1947 as per Notification No. L-22012/
212/2002-IR(CM-II). The dispute under reference relates
to:
"Whether the action of the management of Food
Corporation of India by not following the due process
of law while regularizing the contract workers and
terminating the services of Shri Pritam Singh Kirar,
Shri Gajraj Singh, Shri Nandkishor Sharma. Shri
Lokesh Sharma, Shri Diwan Singh Kirar and Shri
Balaram w.e.f. June 1991 is legal and justified? If not,
to what relief the workmen are entitled?"
2. After receiving reference, notices were issued to
the parties. Ist Party workman submitted their statement of
claim at Page 4/1 to 4/7. The case of Ist Party workman is
that they had raised dispute before ALC, Bhopal claiming
that they were engaged as labour by IInd Party FCI for
handling transport work. They continued to do said work
for 12 hours in Vidisha depot of FCI. That as per judgment
by Apex Court, Central Govt. issued notification prohibiting
employment of contract labour in process of handling and
transport of goods in FCI. That the work in FCI was of
perennial nature. FCI decided to execute work of handling
transporting goods by contract labour system. FCI entered
in agreement with Jena Group of FCI Workers Union for
departmentalizing the contract labour system. The
Agreement was arrived between Union and FCI is against
the object and spirit of the constitutional mandate and
statutory provisions. The relevant cause in the agreement
provides. The management shall provide biodata forms to
the Union for the number of hands so assessed which
would be filled in by the workers and furnished by the
Union to the management. The biodata so furnished will
be jointly examined by the management and the Union.
The same bipartite team will ascertain physical fitness and
age of the workmen where after the management shall issue
identity cards to the workers concerned. It is alleged that
the Jena Group of FCI workers Union instead of considering
the case of workman was successful in getting the person
of its own choice in employment ignoring claim of senior
persons for regularization. The Union got employed through
favourite persons, outsiders and juniors without following
norms of recruitment as per letter dated 31-1-92 issued by
Sr. Regional Manager of FCI. That IInd Party did not comply
with instructions, letter dated 31-1-92 instead of getting
verification by authorities mentioned like gazetted officers,
members of parliament or State legislature belonging to
constituency or Sub Divisional Magistrate etc. IInd party
had clearly included names of Ist Party workman in the
original list, their names were struck out. That Writ Petition
No. 677/92 filed by the workman was disposed holding
that this petition would be governed by the order given in
another Writ Petition No. 1416/93. It was observed that
order in petition doesnot require any modification because
FCI was competent to say that workmen were not entitled
to absorption/regularisation. W.P. No. 1171/96 7 MCC No.
78 of 1996 were heard and similar orders were passed. That
petition was dismissed with liberty to approach forum under
Industrial Law. After failing of conciliation proceedings,
the reference was made.
3. The Ist Party workman submits that principle of
first come last go has not been followed. Ist Party workman
prays for their absorption in FCI.
4. IInd Party filed Written Statement at Page 6/1 to
6/11. It is submitted by IInd Party that if the claim under
reference is allowed, it will cause heavy burden on FCI. FCI
is dealing with transport and supply of coal particles. It
depend on huge subsidy drawn from the public exchequer.
Such contractors are appointed for several principal
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6689
employers. The labours are engaged by contractor. There
is no relationship of employer employee. FCI has no control
or supervision on the employees engaged by the contractor.
That the Ist Party workman are not covered as workman
under Section 2(s) of I.D. Act. All other allegation with
respect to demand by Union are denied. It is denied that
junior employees, outsiders are regularized/observed
through IInd Party. The contractors were professionals,
were employing several labours as per need. The workers
working in notified depot of the corporation under
contractors before abolition of contract system were
identified with the help of staff and officers of FCI. Suitable
person's state of requirement were induced as departmental
workers of the kind prescribed for their department. That
letter dated 29-11-91 produced by claimants were not
traceable in record of the corporation. IInd Party claims
that said letter is fabricated. Ist Party tried to create
documents with the help of Asstt. Manager. With respect
to judgments in Writ petitions, it is submitted that Hon'ble
High Court did not interfere in the matter.
5. IInd Party further submits that while making
reference, ALC overstepped his jurisdiction. The
Conciliation Authority ignored that the Ist Party workman
were not covered under Section 2 of I.D. Act. On all such
contentions, IInd Party prays for rejection of claim of
workman.
6. Considering pleadings on record, the points which
arise for my consideration and determination are as under.
My findings are recorded against each of them for the
reasons as below:—
(i) Whether the action of the
In Negative
management of Food
Corporation of India by
not following the due process
of law while regularizing
the contract workers and
terminating the services of
Shri Pritam Singh Kirar,
Shri Gajraj Singh, Shri
Nandkishor Sharma.
Shri Lokesh Sharma
Shri Diwan Singh Kirar and
Shri Balaram w.e.f.
June 1991 is legal?
(ii) If not, what relief the
As per final order.
workman is entitled to?
REASONS
7. The claim of Ist Party workman is that contract
labour system was abolished by Government in view of
judgment by Apex Court. That agreement was settled
between IInd Party and Jena Group of FCI Workers Union.
Junior persons were absorbed overlooking the senior labour
working in FCI. IInd Party denied all those allegation of Ist
Party workman. Affidavit of evidence is filed by workman
Nand Kishore Sharma, Balaram Ahirwar, Ratan Singh Kirar,
Diwan Singh Kirar, Gajraj Singh, Lokesh, Hukumchand
Sharma. Affidavit filed by all workmen were identical that
they were working for 10-12 years till 1991. They had
completed 240 days continuous service during each of the
year. The labours were retrenched at the time of regularizing
services, they were not considered. All the six workers (Ist
Party) were retrenched without notice, no retrenchment
compensation was paid to him. Their services are terminated
with violation of Section 25-F of I.D. Act. That they are
unemployed. Seniority list were not prepared.
8. Nand Kishore in his cross-examination says since
1983 to 1991, he was working under contractor. Contractors
were abolished in 1999. Thereafter his services were
discontinued. Balaram in his cross-examination says that
he was working in FCI, he was appointed in FCI, his work
was supervised by contractor. That his age was 16-17 years
in 1990. That for appointment in FCI, minimum age of 18
years is required. He was working under contractor R.R.
Enterprises. He denied that he was appointed by R.R.
Enterprises. Other labours were working with R.R.
Enterprises. There was Union of FCI labours. He had
complained against FCI Mazdoor Sangh. They did not
receive wage slip from FCI. That he had worked for 10-12
years with FCI. Certificate in that regard was with him. That
he had no quarrel with the Union or management.
9. Pritam Singh Kirar in his cross-examination says
he was working with contractor R.R. Enterprises and B.R.
Enterprises during 1983 to 1991. R.R. Enterprises was the
last contractor under whom he was working. His services
were discontinued after contract system was abolished.
Diwan Singh Kirar in his cross-examination says from 1983
to 1991, he was working under contractor. The wages were
paid by contractor. After abolition of contract system, his
services were discontinued. Gajraj Singh in his cross-
examination says that 10-12 Labours were working under
R.R. Enterprises contractor. He was doing cleaning work in
the godown. The contract work was discontinued in 1991.
Lokesh Sharma in his cross-examination says he was
working under contractor Rakesh. Appointment letter in
writing was not given to him. He was issued a card. He was
working under contractor. His wages were paid by the
contractor. The documents Exhibit W-1 I Card of all labours
is produced on record. Said Card has been issued on 1-12-87
by Asstt. Manager FCI, Vidisha. Document Exhibit W-2 is
letter issued by Sr. Manager of FCI about absorption of
contractor's labours. That the Ist Party workmen were not
working with contractor. Therefore they were not absorbed.
10. Affidavit of evidence of management's witness
Shri W. Ekka is filed. His affidavit is devoted about the
activities of FCI and abolition of contract labour. It is stated
by the management's witness that its activities are seasonal
and temporary in nature. It carries operations. The
6690
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
corporation usually engaged handling contractors for 2
years. That work of workman was not supervised by the
corporation or its officers. There was no specific term of
employment between contractors and the workers. In his
cross-examination, management's witness says since June
1991, work through contract labour is not done in FCI.
When contract labour were working in Vidisha Depot, the
contract labours were engaged. The labours working with
the management, list was not prepared. His further cross-
examination is on the point that contract labour system
was abolished, departmental labours were working in the
department. Appointment letters were not issued. He also
denies that I-Card was issued to the labours working in
godown of FCI. Relevant record may in Sagar District Office
of FCI. Witness of the management shown willingness to
produce said record. No such document are produced.
11. Written notes of argument are submitted on behalf
of both the parties. The evidence discussed above shows
that contract labour system was abolished in FCI, Vidisha.
Document Exhibit W-1 shows that workman were working in
FCI depot Vidisha. I Card was issued to them. The
management has not produced any document how many
contract labours are absorbed/departmentalized when Ist Party
workman were working in 1987. Their cross-examination
also shows that they were working under contractor of FCI
from 1983 to 1991. The IInd Party management has not
produced any document regarding absorption/
regularization of services of the labours working through
contractor. Evidence of Ist Party workman that they were
working till 1991, their services were discontinued without
notice or paying retrenchment compensation is not
shattered in cross-examination of the workman. When the
contract system was abolished, the workmen were entitled
to be regularized. However they were not regularized, their
services were discontinued by contractor. Therefore I
record my finding in Point No. 1 in Negative.
12. Point No. 2, In view of my finding in Point No. 1
that the action of IInd Party in not regularizing services of
Ist Party workman is illegal, question arises to what relief
the workmen are entitled? It is correct that those workmen
were not engaged by FCI, there was no direct relationship
of employer employee. Those employees were engaged
through contractor. On abolition of contract labour system
in FCI, in 1991, workmen have been regularized/absorbed,
those workers were not absorbed in FCI. Since 1991, Ist
Party workmen are out of employment. Their evidence is
not disclosing what they were doing during all those years
for their survival. All those workmen must be working some
where therefore claim of back wages cannot be allowed.
However the claim of Ist Party workmen for absorption in
FCI is justified. I hold and pass following award.
13. In the result, award is passed as under:—
(1) Action of the management of Food Corporation
of India by not following the due process of law while
regularizing the contract workers and terminating the
services of Shri Pritam Singh Kirar, Shri Gajraj Singh, Shri
Nandkishor Sharma. Shri Lokesh Sharma, Shri Diwan Singh
Kirar and Shri Balaram w.e.f. June 1991 is illegal.
(2) IInd Party FCI is directed to absorb Ist Party
workmen as its labours but without back wages.
R.B. PATLE, Presiding Officer
ubZ fnYyh] 18 uoEcj] 2013
dkñvkñ 2602.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj eSllZ osLVuZ
dksyQhYMl fyfeVsM ds izca/kra= ds lac) fu;kstdksa vkSj muds
deZdkjksa ds chp] vuqaca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh;
ljdkj vkS|ksfxd vf/kdj.k@Je U;k;ky; tcyiqj ds iapkV ¼lanHkZ
la[;k 221@98½ dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks
18@11@2013 dks izkIr gqvk FkkA
[lañ ,y&22012@331@1995&vkbZvkj ¼lh&II½]
chñ ,eñ iVuk;d] MsLd vf/kdkjh
New Delhi, the 18th November, 2013
S.O. 2602.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref. 221/98 of the
Cent. Govt. Indus. Tribunal-cum-Labour Court, Jabalpur
as shown in the Annexure, in the industrial dispute between
the management of WCL, and their workmen, received by
the Central Government on 18/11/2013.
[No. L-22012/331/1995-IR (C-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
No. CGIT/LC/R/221/98
PRESIDING OFFICER : SHRI R.B. PATLE
The Vice President,
L.C.M.M. Union (CITU),
Damua,
PO Damua,
Distt. Chhindwara (MP)
...Workman/Union
Versus
Sub Area Manager,
Damua Group of WCL,
PO Damua,
Distt. Chhindwara (MP)
...Management
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6691
AWARD
Passed on this 17th day of October, 2013
1. As per letter dated 28-9-98 by the Government of
India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section-10 of I.D. Act, 1947 as per Notification No. L-22012/
331/95-IR(C-II). The dispute under reference relates to:
"Whether the action of the management of Damua
Colliery, WCL in not correcting the date of birth of
Shri Babulal S/o Shri Chandulal, Line Mistry is legal
and justified? If not, to what relief is the workman
concerned entitled?".
2. After receiving reference, notices were issued to
the parties. Ist Party workman filed statement of claim at
Page 3/1 to 3/5. The case of workman is that he is employed
as Line Mistry at 22.23 Incline, Damua Colliery of WCL. He
was initially appointed on 3-12-1975. He was promoted to
higher post time to time and was working as Line Mistry.
He had received education at Anjangaon Surji from
2-5-1963 to 10-4-71. He studied upto 9th standard. In 1971,
he left school. At the time of entering in service, he submitted
original School Leaving Certificate to colliery authorities.
His date of birth was recorded in service record as
4-12-1951. Same date of birth was recorded in record
maintained by the company. In October, 1994, Ist Party
workman came to know that some alterations have been
made in his date of birth in service record. He immediately
approached the IInd Party. He perused records. He was
surprised to see that his date of birth was altered as 16-7-46
instead of 4-12-51. He had approached management about
alteration in service record. That management assured him
that his date of birth will be corrected within 15 days.
However workman did not recieved any information
regarding review of his date of birth. On 12-12-94, he
submitted representation to Sub Area Manager for
correction of his date of birth as 16-7-46 instead of 4-12-51.
The management did not care for correction of his date of
birth therefore he had approached to ALC and ultimately
reference has been made. That if his date of birth is not
corrected, he would be retired 5 years before completion of
retiring age. On such grounds, he prays for correction of
his date of birth as 16-7-46.
3. IInd Party management filed reply at Page 6/1 to
6/4. The relief prayed by workman is opposed. Management
submits that workman was appointed as General Mazdoor
on 8-3-75. That he was working as Mistry in Incline No. 22-
23 of Damua Colliery of WCL. Under Mines Legislation,
appointment orders are issued to the employee, his name
is recorded in various statutory records like Form B register,
service record of each employee is maintained. Form B
register and service record contains full particulars of the
employees including date of birth, qualification, address
etc. that after initial appointment of Ist Party workman, his
date of birth was recorded as 16-7-46 as declared by the
workman. He would be retired on attaining age of 60 years
on 16-7-06. The IInd Party management denied that date of
birth of workman was altered in Form B register, service
record. According to the management, the date of birth of
workman was recorded as 16-7-46 in Form B register, service
record, family pension form, declaration for Provident Fund
etc. Other contentions of workman are denied. It is submitted
that there is no discrepancies in the entries of date of bith
in record maintained by management. Workman did not
produce his documents required as per implementation
instruction No. 37 & 76. Workman had failed to produce
any document with regard to proof of his correct date of
birth when he entered in service or when objections were
invited in 1987, therefore the claim of workman is not tenable.
On such grounds, management prays for rejection of claim
of workman.
4. Considering pleadings on record, the points which
arise for my consideration and determination are as under.
My findings are recorded against each of them for the
reasons as below:—
(i) Whether the action of the
In Affirmative
management of Damua Colliery,
WCL in not correcting the date
of birth of Shri Babulal S/o Shri
Chandulal, Line Mistry is justified?
(ii) If not, what relief the
Relief prayed by
workman is entitled to?"
workman is rejected.
REASONS
5. The workman is praying for correcting of his date
of birth as 16-7-46 instead of 4-12-51. He submits that his
alterations were made in his date of birth. In record
maintained by management, his date of birth was recorded
as 16-7-46.
6. Workman filed affidavit of his evidence. He has
stated that his date of birth is 4-12-1951. He born at Surji,
Distt. Amravati in Maharashtra. He received education in
Ist Standard on 2-7-58 in Municipal Marathi School. He
continued education in said school till 1963. He had
received School Leaving Certificate. His date of birth is
4-12-1951. He received further education from standard Vth
to IXth at High School at Anjani. He left the school because
of ill-health and poverty on 30-4-71. He has further stated
that his date of birth was recorded in LIC policies, in PAN
Card. He had taken objection to his date of birth on
31-8-82. He had produced all the documents at that time.
However his date of birth was not corrected. In his cross-
examination, workman says that he had not received
appointment letter in writing, he was working under Line
Mistry Nathulal. He did not ask his age. In 1978, he was
appointed but appointment letter was not given. He had
not stated his date of birth to concerned clerk preparing
his service record. He admitted his thumb mark and
documents No. 6/5, 6/6, 6/7. In 1987, he received letter from
6692
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
department regarding objection of his date of birth. The
document in Serial No. 6/10 is said letter. Ist Party workman
says that he had submitted written objection. Its zerox copy
is produced by him. That when he left his school, his age
was 18 years. If the said period is calculated, his date of
birth would may come 1953 as he left school in 1971. In the
documents produced by workman Exhibit W-1, his date of
birth is shown as 4-12-1951. Exhibit W-2 School Leaving
Certificate, same date of birth is shown. The date of leaving
school is shown 30-4-71 in both documents Exhibit W-2 &
W-2(a). In Exhibit W-3, his date of birth is shown as
4-12-1951. In Exhibit W-4, LIC Policy, same date of birth is
recorded. In Exhibit W-5, W-6 is letter given by management
to workman calling objections about Implementation
Instruction No. 37. Document Exhibit W-7 is application
submitted by workman for correction of his date of birth on
12-12-94.
7. The evidence of management witness Shri Chandra
Pratap Tiwari is by way of denial of the date of birth.
Witness of the management has stated that date of birth as
furnished by workman himself is 16-7-1946 in service card
and other declaration submitted by workman. The workman
has not submitted documents for correction of date of birth
when letter was issued by management inviting objection.
Management's witness in his cross-examination says that
he had seen Instruction No. 37 for resolving the dispute.
The instructions were implemented in 1981. Instruction No.
76 was implemented from 1986. That income tax was
deducted as per Pan Card. He had not seen date of birth on
PAN. The appointments were made as per recruitment rules
considering the educational qualifications, date of birth
etc.
8. Case of the workman is that his date of birth was
altered fictitiously. At the time of argument, learned counsel
Shri A.K. Shashi for management pointed out that
documents Exhibit W-1 to W-2 are duplicate. Workman
was employed in 1978. The reasons for producing duplicate
school leaving certificate are not explained. Date of birth in
LIC policy and PAN card are recorded on declaration of
workman himself. There was no reason to obtain duplicate
School Leaving Certificate. Unless original is lost, there
was no reason for obtaining duplicates. The evidence of
workman doesnot show any reason how his date of birth
was recorded as 16-7-46 in documents and in service book,
nomination for payment of gratuity, declaration for
Provident Fund produced by the management. Ist Party
workman has admitted his thumb mark and signature. No
evidence is adduced by workman about fictitious alteration
of his date of birth. The documents produced by workman
in the year 1988, 2003, 2004 obtaining duplicate School
Leaving Certificate appears suspicious. The evidence of
workman is not cogent and reliable.
9. Learned counsel for IInd Party Mr. Shashi relies
on ratio held in :
"Case of CAT-1989-LAB.I.C. 700. It is held that
correction of date of birth of employee accepting
date of birth as recorded in service roll at time of
appointment. No protest against date of birth shown
in gradation lists. Representation for correction of
date of birth made only when notice of retirement
declaring date of superannuation served. Employee
not entitled for correction of date of birth."
10. Ratio held in :
"Case of G.M. Bharat Coking Coal Ltd. West Bengal
versus Shib Kumar Dushad and others reported in
2000(8) Supreme Court Cases 696. Their Lordship
held dealing with the judicial review of the
determination of date of birth held where question
regarding correctness of date of birth as entered in
service record raised by employee longafter his
joining the service and the employer decided the
question following the procedure prescribed by
statute, statutory rules or instructions, held, in
absence of any arithmetical or typographical error
apparent on the face of the record, High Court should
not interfere with such decision of the employer in
exercise of its extraordinary jurisdiction under Article
226. It was held that management correctly referred
the matter to Medical Board and accepted
determination of age of the employee by the Board
in accordance with the procedure laid down under
its instructions."
11. Copy of Implementation Instruction No. 76 is
produced at Exhibit W-1. The review of determination of
date of birth in respect of existing employees holding
matriculation certificate is provided under Sub
Para (B) i(a).
"In Para-ii, it is provided wherever there is no
variation in records, such cases will not be reopened
unless there is a very glaring and apparent wrong
entry brought to the notice of the management. The
management after being satisfied on the merits of
the case will take appropriate action for correction
through Determination Committee/Medical Board.
Para-(C) provides Age Determination Committee/
Medical Board for the above will be constituted by
the management. In case of employees whose date
of birth cannot be determined in accordance with the
procedure mentioned in (B)(i)(a) or (B)(i)(b) above,
the date of birth recorded in the records of the
company, namely Form B register, CMPF Records
and Identity Cards will be treated as final provided
that where there is a variation in the age recorded in
the records mentioned above, the matter will be
referred to the Age Determination Committee/Medical
Board constituted by the management for
determination of age."
12. Workman is not asking for deciding his date of
birth by the Committee or Medical Board. The documents
¹Hkkx II—[k.M 3(ii)º
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6693
produced by him are subsequent in time and duplicate
School Leaving Certificate. Therefore claim of workman
cannot be accepted. For above reasons, I record my finding
in Point No. 1 in Affirmative.
13. In the result, award is passed as under:—
(1) Action of the management of Damua Colliery,
WCL in not correcting the date of birth of Shri
Babulal S/o Shri Chandulal, Line Mistry is proper.
(2) Relief prayed by workman is rejected.
R. B. PATLE, Presiding Officer
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New Delhi, the 18th November, 2013
S.O. 2603.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref. 07/2008 &
13/2008 of the Cent.Govt.Indus.Tribunal-cum-Labour Court,
GUWAHATI as shown in the Annexure, in the industrial
dispute between the management of Coal India Limited,
and their workmen, received by the Central Government on
18/11/2013.
[No. L-22012/65/2008-IR (CM-II),
No. L-22012/60/2008-IR(CM-II)]
B. M. PATNAIK, Desk Officer,
ANNEXURE
IN THE CENTRAL GOVT. INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, GUWAHATI,
ASSAM
Present: Sri L.C. Dey, M.A. LL.B.,
Presiding Officer,
CGIT-cum-Labour Court, Guwahati,
In the matter of an industrial Dispute between:
The Management of Coal India Ltd., Tinsukia, Assam.
-Vrs-
Their Workman Sri Nasir Hussain.
Ref. Case No. 07 of 2008 &
Ref. Case No. 13 of 2008.
APPEARANCES
For the Management:
Mr. M.Z. Ahmed, Sr. Advocate.
Mr. A.M. Dutta, Advocate.
For the Workman:
Mr. A.Dasgupta, Advocate.
MR. K.M. Haloi, Advocate.
Date of Award: 30.10.2013
1. This Reference is arising out of an Industrial
dispute exists between the Management of Coal India
Limited and their workman Sri Nasir Hussain, which was
referred to by the Ministry of Labour, Government of India
vide their Order No. L-22012/60/2008-IR(CM-II); Dated
30/06/2008, under Section 10(1) (D) of Industrial Dispute
Act. The Schedule of the Reference is an under:
SCHEDULE
"Whether the action of the managemnet of Coal India
Limited in dismissing Shri Nasir Hussain from service
w.e.f. 26.07.2004 is legal and justified? To what relief
is the claimant entitled?"
2. On receipt of this order from the Ministry this
Reference case has been registered and notices were served
upon both the parties for filing their respective claim
statements/written statements along with relevant
document before the Tribunal with direction to both the
parties to exchange their respective copies of Claim
Statement/Written Statement and documents between
them. Accordingly both the parties appeared and contested
the proceeding filing their respective claim statement/
written statement. In the mean time another order being
No. L-22012/65/2008-IR (CM-II) dated 05.11.2008 has been
received from the Ministry of Labour, Government of India
referring an Industrial Dispute exist between the employer
in relation to the Management of Coal India Ltd. and their
workman in respect of the matter specified in the Schedule
which was registered being Reference case No. 13/2008 in
respect of the same issue between the same party.
Accordingly upon hearing both the parties and on perusal
of the schedule reference made in both the cases the
Reference Case No. 13/2008 has been amalgamated with
the present Reference.
3. The case of the workman Sri Nasir Hussain, inter-
alia, is that he was an employee of North Eastern Coalfields
under the Coal India Limited and served as a coal cutter in
Ledo Colliery having Employee No. 31197. The coal cutting
is a very dangerous job as the coal cutter is to perform the
job by entering into the deep wells of coal mine. The coal
India Limited has the scheme to provide alternative job like
the job of General Mazdoor to such employees who are not
physically fit to work as coal cutter and the workman Nasir
Hussain was not physically fit to work as coal cutter for
6694
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
which he approached the Management on several times to
change his job from coal cutter to General Mazdoor but the
Management did not pay heed to it. The Management
initiated a disciplinary proceeding on the charges with the
misconduct of continuous and habitual absenting from
duty without any sanctioned leave and sufficient cause
from 10.11.2003 framed under clause 26.24 and 26.30 of the
Standing Order. Charge Sheet was issued to the workman
on 3.2.2004 and one Bikul Barthakur was appointed as
Enquiry Officer. Accordingly an ex-parte enquiry was held
on 20.7.2004 and on that day the Management after
recording the statement of their witness Sri Dulal Deb and
the presenting Officer, the Enquiry Officer submitted his
findings holding that the present workman guilty of the
charges as mentioned above. Based upon the said enquiry
report the workman was discharged from his duty by the
Personnel Manager, North Eastern Coal Fields, Coal India
Limited on 28.07.2004 w.e.f. 26.07.2004.
The workman pleaded that the charges framed
against him are not proved and he was not given any
opportunity to submit reply to the said charge sheet. Even
no notice regarding the enquiry held on 20.7.2004 was
served upon the workman. Had it been served upon the
workman he must have appeared before the Enquiry Officer.
Although the Management stated that the notice for
appearance of the present workman before the Enquiry
Officer was published in the vernacular Newspaper 'Danik
Janambhumi' but the workman lives in the remote area where
newspapers hardly reaches and being very poor person it
is a beyond his ability to access a newspapers. As such, it
is crystal clear that if the notice had been published in the
said newspapers also, it was not possible on the part of the
workman to come across it. He also mentioned that there
was no opportunity to have examined himself as well as to
cross examine the Management witness. Further before
discharging the workman the Management did not serve a
copy of the enquiry report to him for submission of his
representation to the Management. Therefore, it is clear
that the enquiry was in gross violation of principle of
Natural Justice. As the workman was deprived of his
opportunity to present his case before the Enquiry Officer
although he was entitled to be represented by his co-worker,
and to adduce evidence in support of his case, he was
deprived of his due opportunity and hence, question of
cross-examination did not arise as the enquiry was an
ex-parte one with all procedural irregularity, illegality and
unfairness.
The workman again stated that the Management did
not take adequate step to serve the charge sheet on the
workman and hence, the enquiry was void abinitio. The
workman being a member of the Rashtriya Coal Mazdoor
Union functioning in the North Eastern Coalfields with the
support of the majority of the workers, on being aggrieved
by the action of the Management in discharging him from
service, approached the Union for his reinstatement with
consequential benefits while the Union demanded for
reinstatement of the workman with full back wages but the
Management did not pay heed to it. Thereafter the Union
raised this Industrial Dispute before the conciliation Officer
who initiated the conciliation proceeding but the dispute
could not be settle. Accordingly the Conciliation Officer
submitted his FOC as contained in Section 12(4) of the
Industrial Dispute Act, 1947 before the Appropriate
Government.
The workman again stated that due to unavoidable
circumstances beyond the range of control the workman
could not perform his duties he has been illegally discharged
and as such, he is entitled to be reinstated with full back
wages. Hence, the workman prayed to pass an award in his
favour directing the management to reinstate the workman
with full backwages and/or pass any further or other award
as this Tribunal deem fit and proper.
In his additional claim statement the workman stated
that he was appointed in the North Eastern Coal Field under
Coal India Limited as coal cutter in Ledo Colliery on 4.5.1998.
He denied the contention of the Management made in
paragraphs 5,7,9,10,11,12,13,14 and 15 of their written
statement.
4. The Management, on the other hand, submitted
written statement stating, inter-alia, that the Coal India
Ltd. is a Government of India undertaking duly registered
under the Indian Companies Act, 1956, engaged in the
business of Coal mining in various parts of the country,
and the North Eastern Coalfields is a subsidiary unit of
Coal India Limited which is owning and manageing amongst
others, the Coalfields/Mines situated in the North Eastern
region of the country. The workman Nasir Hussain was
appointed as a daily rated employee and engaged as a Coal
Cutter (Trainee) in the North Eastern Coalfields, Margherita
and the said employee was a habitual absentee and he had
remained absent on a number of occasions for which he
was issued cautioned letter and was even imposed
punishment for the same. Caution letters issued agasinst
the workman on 16.2.1999, warning letters were issued on
17.6.1999, 15.5.2002, and even punishments were imposed
for the period of 10 days suspension on 21.10.1999, and
02.06.2000 each and stoppage of increment without
cumulative effect for 5 years on 11.09.2003. The
Management mentioned that inspite of the issuance of
caution letters imposition of punishment on the workman,
as aforesaid the workman did not care to improve his
attendance and remained continuously absent from the
duty with effect from 10.11.2003 without any sanctioned
leave or prior permission from the competent authority
which amounts to "gross misconduct" under the Standing
Order of North Eastern Coal Fields. The details of physical
attendance of the workman during last 5 years of his service
is 71 days in the year 2000; 40 days in the year 2001;, 46
days in the year 2002; 44 days in the year 2003; no
attendance in the year 2004 and 2005.
¹Hkkx II—[k.M 3(ii)º
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6695
The Management having no other alternative
proposed to initiate an enquiry against the workman and
issued a Charge Sheet being No. 42/PIR/167 dated
03.02.2004 for violation of Provision of Clause 26.30 and
26.24 of the Standing Order which reads as under:—
"Clause 26.24= Habitual late attendance or habitual
absence from duty without sufficient cause.
Clause 26.30= Absence from duty without sanctioned
leave or sufficient cause or overstaying beyond
sanctioned leave".
The notice was served to the workman on 04.02.2004
giving him 7 days time from the date of receipt of the charge
sheet, to submit his written emplanation as to why
disciplinary action should not be initiated against him and
Sri Bikul Barthakur, SE (Civil), Margherta and Sri D.
Choudhury, Sr. Executive Engineer (C), Ledo Colliery were
appointed as Enquiry Officer and Presenting Officer
respectively. But the notice dated 04.02.2004 could not be
served on the workman as he was not found in station and
hence, second notice was sent to him on 28.4.2004
requesting him to be present in the enquiry to be held in
the Office of the Agent, Ledo Colliery on 07.05.2004 but the
same could not be served upon the workman as he was not
located on 04.05.2004 and third notice was sent through
Registered Post with A/D which also could not served
upon the workman as his home address could not be
located and the letter was returned with the endorsement
as "addressee not known" and addressee "not found".
Thereafter the Management, having no other option
published the charge sheet and the Notice in a local
newspaper namely 'Janambhumi' on 02.07.2004 fixing the
date of enquiry on 09.07.2004 at 9 AM in the Office of the
Superintending Engineer (Civil), Margherita and requiring
the workman to be present on that date failing which enquiry
would be proceeded ex-parte but the workman did not
appear in the enquiry held on 09.07.2004 and the same was
proceeded ex-parte wherein the workman was found guilty
of the charge framed against him. Thereafter the
Management, on the basis of the said departmental enquiry
and considering the gravity of the offence by way of an
order dated 28.07.2004 discharged the workman from the
service of the North Eastern Coalfields under Clause 27.1(g)
of the Standing Order applicable to the workman.
The Management averred that inspite of numerous
caution letters and punishment imposed on the workman,
the workman did not improve his attendance and remained
continuously absent from duty with effect from 10.11.2003
without any sanctioned leave or permission from the
competent authority which amounted to gross misconduct
under the Standing Orders of North Eastern Coalfields;
and the workman also failed to appear before the enquiry
proceeding and defend himself inspite of being offered
ample opportunities to do so. Hence, it is evident from the
conduct of the workman that he was not at all interested to
work for the Company and the Company in no way support
an unproductive employee such as the employee like the
workman who has otherwise became a burden on the
Company and as such, the Management had rightly issued
impugned order and hence, there can be no reason for this
learned Tribunal to interfere with the order impugned, and
the claim of the workman is liable to be rejected. It is also
pointed out by the Management that since the management
has duly followed the procedure prescribed by law and
had issued the impugned order as per law complying with
all the requirements and also conducted the departmental
enquiry in accordance with law; as the workman has
miserably failed to make a case warranting interference by
this Tribunal; the workman is not entitled to any relief as
claimed. Under the above circumstances, the Management
prayed to reject the claim of the workman after hearing
both the sides.
In their additional written statement the Management
averred that the workman was appointed in place of his
mother who had taken VRS under Special Female Voluntary
Retirement Scheme and the workman was allowed to join
on duty only after receipt of letter of acceptance to work as
a piece rated worker in underground Mines by the
Company; and as per the directive/guidelines of Coal India
Ltd. in case of Special Family Voluntary Retirement Scheme,
the job offered to the dependent (son) is restricted only to
underground piece rated mines/loaders and as such, the
claim of the workman to change his job from coal cutter to
General Mazdoor is not acceptable to the Company. The
Management also mentioned that the departmental enquiry
was held on 09.07.2007 and not on 20.07.2007 as claimed by
the workman, and the workman was staying in Mazid
Colony, P.O. Margherita town and newspaper are easily
available in the said locality and the workman could have
easily obtained the said vernacular newspaper i.e. Dainik
Janambhumi dated 02.07.2004. As the workman did not
appear before the Enquiry Officer inspite of the Press
Notification, the Management has not served him the
enquiry report before awarding the punishment; and inspite
of issuance notices for appearance and attending the
enquiry proceeding on 3 occasions and lastly by publishing
in newspapers the claim of the workman is not sustainable
in law.
5. The workman examined two witnesses including
himself as W.W.1 and Mr. Swapan Roy, the General
Secretary of the Rastriya Coal Mazdoor Union, Tinsukia as
W.W.2, while the Management examined Rajen Kumar
Dutta, chief Manager (Personnel), North Eastern Coal
Fields, Coal India Ltd., Margherita as MW.1. Both the parties
have proved and submitted the documents relied upon
them.
Let me discuss the evidence adduced by both the
sides along with the documents relied by them. The
workman Nasir Hussain, hereinafter called the workman
witness No 1 (W.W.1) stated that his father was an employee
6696
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
of the Coal India Ltd. and after death of his father his mother
Smt. Sabarun Khatun was engaged as an employee of the
Coal India Ltd in Ledo Colliery and served as Peon who
accepted Voluntary Retirement due to her old age ailment
in the year 1998 and in terms of the Female Voluntary
Retirement Scheme he was appointed on 29.04.1998 as piece
rated worker in Coal India Ltd., North Eastern Coalfields at
Ledo Colliery. Having declared medically fit he joined the
duty on the same day i.e. on 29.04.1998. After his joining he
was engaged as Coal Cutter and he had to perform the job
by entering into the deep well of the Coal Mine. The
Management of Coal India Ltd. has the scheme to provide
alternate job of General Mazdoor as such employees who
are not physically fit to work as coal cutter as the job of
coal cutter is very dangerous and all people are not fit for
performing the said job. Apart from this as per the National
coal Wage agreement arrived at between the management
of Coal India Ltd. and Union, no employee is to be engaged
in the job of coal cutting at the time of initial joining as this
job requires expertise skill; and as he was not fit to work as
coal cutter he approached the Management to engage him
in alternative job like General Mazdoor. Accordingly he
was engaged temporarily as Mazdoor for two months and
again he was engaged in coal cutting job resulting in his
illness for several occasions for which he could not attend
his duty sometimes which he informed the Management as
to his absence submitting sick certificate. The workman
mentioned that the charge sheet dated 03.02.2004 issued
against him by the Management that the charges of his
misconduct and continuous and habitual absence from
duty without any sanctioned leave or sufficient cause from
10.11.2003 was not served upon him at any point of time;
and he was also not given any opportunity to submit his
reply to the charge sheet nor the findings of the enquiry
proceeding was furnished to him so that he could submit
representation against the said findings of the enquiry
proceeding. He also added that in terms of the said charge
sheet an ex-parte enquiry was held on 20.07.2004 and he
was held guilty of the said charge but he was not provided
any opportunity to be heard in the enquiry proceeding. He
also added that he had noticed no newspaper publication
regarding the aforesaid enquiry as he resides in remote
place. Thus the management arbitrarily and in gross
violation of natural justice discharged him from service
with effect from 26.07.2004 on the basis of the ex-parte
enquiry as he was deprived of due opportunity to present
his case before the Enquiry Officer before whom he could
represent through any co-worker. He was also provided
with opportunity to examine himself and to cross-examine
the Management witnesses. hence, he was illegally
discharged by the Management.
During his cross-examination the workman Nasir
Hussian stated that his house is situated at a distance of
8 K.M. from his place of work and about 2 and 1/2 K.M.
from his Head Office and as area is covered under the Post
Office which adjacent to his Head Office. He also said that
he received the letter relating to his discharge through his
brother and before that he was not in receipt of any letter.
he admitted that he was discharged from his service due to
his absenteeism from duty and he submitted prayer before
the Authority showing cause of his absent but he did not
produce any letter or representation to that effect nor did
he produce any document to show his illness though it
was submitted before the management. He also did not
mention anything to show that he met an accident.
He was appointed as coal cutter having been found
fit on medical test. But after joining his service he was
asked to do the job of coal cutter which was not permitted
by his health and he was examined by management's Doctor
while he felt sick and he prayed before the authority to
change his nature of duty as General Mazdoor. The
workman again said that he informed verbally about his
illness to the management and also he submitted sickness
certificate. The workman admitted that he never applied for
leave in writing, and he denied the suggestion tendered by
the Management that he remained absent from duty for
71 days, 40 days, 46 days, 44 days and entire year from the
year 2000, 2001, 2002, 2003, 2004 respectively. The workman
mentioned that while he was posted outside the coal mine
he used to remain present all the time. He does not know
whether he was issued caution letter/warning letter/
suspension order and stoppage of increment etc. He
categorically mentioned that he was never suspended
during his service period nor his increment was stopped.
He also did not know if any departmental proceeding was
initiated against him nor did he receive letter from the Post
Office about the initiating of the departmental proceeding
nor any publication was made by the Management in this
regard. The workman has proved the appointment letter
issued by the Management vide Exhibit-1 wherein Exhibit-
1(1) is the signature of the then personnel manager,
Mr. P.N. Gowala, which he knows; the joining report issued
on 29.4.1992 by the personnel Manager, North Eastern Coal
fields, Coal India Ltd., Margaritha vide Exhibit-2 and the
charge sheet marked as Exhibit-3.
Sri Swapan Roy, (WW.2) in his evidence stated that
as General Secretary of the Rastriya Coal Mazdoor union,
Tinsukia, he has been representing the workman in this
Reference and he is well acquinted with the facts and
circumstances of the case. He mentioned that the workman
Nasir Hussain was appointed in the year 1998 in the North
Easter Coal Field under the Coal India Ltd. on
compassionate ground and he was a General Mazdoor. He
also said that a mazdoor at his initial stage of service is not
allotted with the jobs of dangerous occupation; and initially
Mazdoor is entrusted with the job of trimming, cleaning of
drains, fitter helper, timber mazdoor helper, pump operator
helper and after acquiring experience of a mazdoor is trained
to perform the job which are dangerous in nature such as,
coal cutting job. As the persons engaged in coal cutting
¹Hkkx II—[k.M 3(ii)º
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6697
are required to enter into the deepest part of the coal mine
and to cut the coal manually which requires training for a
period of minimum six months, but the workman is not a
trained person for coal cutting job while he was allotted
with the job of coal cutting from the date of his initial
appointment. The W.W. 2 further stated that in course his
job of coal cutting the workman felt sick several times and
he was suffering from occupational disease. While the
workman informed the management about his sickness and
applied for change of his duty. But the Management did
not pay heed to it and he was absent from duty with due
leave. The W.W.2 again mentioned that the workman was
discharged from his duty on 28.7.2004 after holding an ex-
parte enquiry on 20.07.2004.
In his cross-examination he confirmed that the
workman had been their member since after joining under
Management and the workman resides at Margaritha. The
MW.2 added that the workman used to remain absent from
duty from time to time since 2002 to 2004 due to his ailment
and so far he knows the workman applied leave for absence,
but he did not submit any paper to show that the workman
applied for leave. He also added that the workman was
examined by the Coal India Doctor and the Margaritha
Post Office is situated at a distance of 2 K.M. away from
the house of the concerned workman. He denied the
suggestion put forward by the Management that before
filing charge sheet the Management issued caution/
warning letters to the workman. He said as per the Standing
Order, if an employee intentionally remains absent from
duty it becomes within the ambit of misconduct; and that
no leave application is required in case of medical leave
and it is the duty of the attending Doctor to inform the
authority about illness of the workman. He contended that
the order of dismissal was illegal and arbitrary and hence,
the workman is entitled to be reinstated with full financial
benefits.
6. The Management witness, herein after called
MW.1, Mr. Rajen Kumar Dutta, Chief Manager (Personnel),
North Eastern Coalfields, Coal India Ltd., Margheratia and
he was duly authorized to swear evidence-on-Affidavit on
behalf of the Management as he is fully acquainted with
the facts and circumstances of the case. According to the
MW.1 the workman was appointed as Piece rated worker
and engaged as coal cutter on 04.05.1998 vide employee
No. 31197, in place of his mother who had taken Voluntary
Retirement Scheme under special Female Voluntary
Retirement Scheme and the workman was allowed to join
his duty after receipt of his letter of acceptance to work as
a Piece rated worker in underground mines. But the workman
was habitual absentee who had to remain absent on various
occasions for which he was issued caution letter on
16.2.1999 warning letter on 17.6.1999 & 15.5.2002 and even
imposed punishment for the same. On 17.06.1999 and
15.5.2002 warning letter was issued against the workman,
while on 16.02.1999 caution letter was issued upon the
workman; and punishment was imposed against the
workman such as, 10 days suspension order was issued
on 21.10.1999 and again 10 days suspension was imposed
upon the workman on 02.06.2000 and lastly on 11.9.2003
stoppage of increment without cumulative effect for 5 years
was imposed against the workman. The said witness also
mentioned that the workman attended his duty for 71 days,
40 days, 46 days, 44 days, in the year 2000, 2001, 2002, 2003
and 2004 respectively and in the year 2004 his attendance
was nil. Having no other alternative the Management
proposed to conduct an enquiry and issued charge sheet
No. 42/PIR/167 dated 03.02.2004 (Exhibit-C) & notice
against the workman for violation of Clause 26.30 and
Clause 26.24 of the Standing Order and notice was sent to
the workman on 04.02.2004 giving him 7 days time from the
date of receipt of the charge sheet to submit his written
explanation as to why disciplinary action should not be
initiated against him. But the said notice could not be served
on the workman as he was not found at the station, and
thereafter the second notice was sent to the workman on
28.4.2004 marked as Exhibit-D requesting him to remain
present in the enquiry to be held against him on 7.5.2004
and the said notice also could not be served upon the
workman as he could not be located. Then on 04.05.2004
vide Exhibit-E a third notice was issued by the Enquiry
Officer by Registered Post with A/D vide Exhibit-F which
was also not served upon the workman as his home address
could not be located and the said notice returned with
endorsement as "addressee not known"and "addressee
not found". Since the notice could not be served on the
workman, having no other option, the Management,
published the Charge Sheet and the Notice in a Local
Newspaper, namely, 'Janambhumi'on 02.07.2004 vide Exhibit-
G fixing the date of enquiry on 09.07.2004 at 9 A.M. in the
office of the Superintending Engineer (Civil), Margaritha
and requiring the workman to be present on that day failing
which the enquiry would be proceeded ex-parte. But the
workman did not appear in the enquiry held on 09.07.2004
in spite of the Press Notification as aforesaid and the
enquiry was proceeded ex-parte, wherein the workman was
found guilty of the charge framed against him. The witness
concerned has proved the enquiry proceeding marked as
Exhibit-H. The M.W.1 also proved the caution letter, warning
letter and punishment imposed on the workman as well as
his physical attendance for the year 2000, 2001, 2002, 2003
and 2004 vide Exhibit-A series and Exhibit-B series
respectively. Thereafter the Management on the basis of
the report of the departmental enquiry, considering the
gravity of the offence, by way of order dated 28.07.2004
vide Exhibit-I from the service of the North Eastern Coal
Fields under Clause 27.1(g) of the Standing Order applicable
to the workman. The Management witness No.1 against
said that in spite of numerous caution letters and
punishment imposed upon the workman, the workman did
not care to improve his attendance and remain continuously
absent from duty with effect from 10.11.2003 without any
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[PART II—SEC. 3(ii)]
sanctioned leave or permission from the competent
authority which amounted to gross misconduct under the
Standing Order of North Eastern Coalfields; and inspite of
offering ample opportunities to the workman to appear in
the enquiry proceeding and to defend himself the workman
did not appear who was staying in Maszid Colony near the
Margherita town and newspapers are easily available in
the said locality and the workman could have easily
obtained the said vernacular newspaper i.e. Dainik
Janambhumi dated 02.07.2004 as the workman studied upto
Class-IX as per the record of the Management.
In course of his cross-examination the Management
witness No. 1 stated that the piece rated workers are
entrusted by the Management for cutting coal and their
wages are paid on the basis of the rate fixed by the specific
measured pieces; and that as per the direction of the
Management the Chairman of Coal India Ltd. only has the
power to entrust a mazdoor from piece rated worker to
daily rated worker in the event of finding said piece rated
workers unfit for performing the job. He also mentioned
that there is no such Scheme in their establishment that
initially a worker can not be engaged as piece rated (coal
cutter) and in other coal fields of Coal India Ltd. the piece
rated workers include coal cutting, loading etc. Also there
is a decision of CMD meet of Coal India Ltd. that the son
under Female Voluntary Retirement Scheme are appointed
only as piece rated worker but he had not produced any
document in support of his statement. He also said that in
case of ailment of the piece rated worker on the basis of the
certificate issued by the Company Medical Officer the said
worker is very temporarily engaged daily rated worker in
any other light duty. He categorically denied the suggestion
that when the workman Nasir Hussain became ill he was
give light duty temporarily and during that period the
workman discharged his duty satisfactorily. He also did
not know whether the workman submitted any
representation with prayer for conversion his duty from
piece rated worker to daily rated worker for light duty, but
the Management did not engage the workman as daily
rated worker instead of piece rated worker after issuance of
sick certificate by the Medical Officer of Coal India Ltd. He
also said that the extract from the Attendance Register in
respect of the attendance of the workman marked as
Exhibit-B series was prepared by the dealing clerk but they
have not produced the original Attendance Register which
was duly signed along with some remarks entered into the
loose leaf sheets which are not the Attendance Register
prepared on the basis of the Attendance Register and they
are maintaining this procedure all along. He also said
Standing Order has been produced before the Court but he
has not produced the original or certified copy of the same.
He again mentioned that the Charge Sheet sent to the
workman through their Office Peon but finding the workman
absent they issued the Charge Sheet by ordinary Post and
finally by Registered Post and yet the same could not be
served and the letters returned with report that the
addressee could not be found, but he could not recollect
the name of the Peon who was entrusted to serve the Charge
Sheet and notice nor did he produce the Peon Book before
the Court. He further mentioned that the enquiry proceeding
along with the findings was forwarded to the workman by
Post but the same was returned for non receipt by the
workman but he has not produced any document to the
effect that the enquiry report along with finding returned
unserved. He admitted that they have not furnished the
copy of the proposed punishment to the workman, and
denied the fact that the workman was not absent for a long
period without any authority and that he was dismissed
illegally. The Management witness said that the Post Man
who returned the unserved letter/Notice with endorsement
stating "not found" and "addressee not known", was not
examined in course of enquiry proceedings nor in the
present proceeding. He admitted that there is some
discrepancy in respect of the Attendance Register of the
workman pertaining to the month of October, 2003 between
the Attendance Sheet (LLS) in page 16 of Exhibit-B series
and the report submitted by the concerned time keeper
marked as Exhibit-H series in (at page-28); and in Exhibit-B
Series (at page-16) the entries made in column-4 is not
proper and complete. The suggestion tendered by the
workman that the Management has applied hire and fire
policy in dealing with the workman.
7. On careful scrutiny of the evidence on record along
with the documents, it appears that the workman Nasir
Hussain was engaged as daily rated workman as coal cutter
in North Eastern Coal Field, Coal India Ltd. having his
workman No. 31197, in place of his mother who had availed
Voluntary Retirement Scheme under Special Female
Retirement Scheme. The contention of the workman is that
the coal cutting is a very dangerous job which is to be
performed entering into the deep well of coal mine and he
was not fit to work as coal cutter for which he became ill
and he approached the Management for engagement in
alternative job like general mazdoor; and the Coal India has
the scheme to provide alternative job of general mazdoor
to the employees who are not physically fit as coal cutter;
but the workman has not been able to prove his contention
by adducing documentary evidence such as medical
certificate regarding his ailment, the Scheme of the Coal
India Ltd. regarding provision of alternative job of general
mazdoor to such employees who are not physically fit to
work as coal cutter. The workman himself admitted that
having declared medically fit, he joined the job on the basis
of the appointment/acceptance letter marked as Exhibit-1
and the joining letter (Exhibit-2). The workman although
mentioned that he has informed the Management about
his sickness and applied for change of his duty but no
document has been produced in support of his contention.
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He also said that due to his sickness he could not attend
his duty which he informed his Management submitting
sick certificate while in his cross-examination he said that
he has no document to show that he ever applied for leave.
The Management witness No. 1, on the other hand,
categorically mentioned that the workman was engaged in
place of his mother who had taken VRS under Special
Female Voluntary Retirement Scheme, and the workman
was allowed to join his duty after receiving his letter of
acceptance to work as piece rated work in underground
mine. But the workman was habitually absentee who
remained absent on various occasions for which caution
letters/warning letters were issued on different occasions
and even the workman was punished for his absence. He
categorically mentioned that there is no such scheme in
their establishment that initially a worker can not be
engaged as piece rated coal cutter, while there is a decision
of CMD meeting of Coal India Ltd. that the son under the
Female Voluntary Retirement Scheme is only appointed as
piece rated worker. He also said that the workman did not
submit any representation with prayer for conversion of
his duty from piece rated worker to daily rated worker for
light duty. The Management in order to establish their stand
has proved the caution letters dated 16.2.1999, award of
punishment dated 17.6.1999, the Office Order dated
21.10.1999 regarding suspension of 10 working days. The
Award of punishment of suspension against the workman
for 10 working days without wages dated 2.6.2000, the
caution letter issued by the Management on 15.5.2002 due
to the absent of the workman from duty, the award of
punishment dated 11.9.2003 stopping the increment without
cumulative effect for five years, marked as Exhibit-A (in 6
pages). The Management has also proved the extract from
the Attendance Register in respect of the workman which
was prepared on the basis of the Loose Leaf Sheets vide
Exhibit-B series containing 4 pages. On perusal of the
document marked as Exhibit-B series, it appears that the
workman was present in duty for 85 days in 1998 and 18
days in 1999; 71 days in 2000; 40 days in 2001; 46 days in
2002; 44 days in 2003 and in 2004 the workman was found
absent although the Management witness No. 1 admitted
that there is some minor discrepancy in respect of the
Attendance Register pertaining to the Attendance Register
of 2003 between the Loose Leaf Sheets (Exhibit-B series)
and the report submitted by the concerned time keeper
marked as Exhibit-H series, (page-6) but this discrepancy
is found ignorable as it will not affect the merit of the
proceeding. From the caution letter/Award of punishment/
Office Order proved in Exhibit-A series, it appears that the
workman was absent with effect from 16.1.1999 till 15.2.1999
without the permission of the competent authority or
without showing sufficient reason (vide Exhibit-A series,
page-1); the warning letter dated 17.6.1999 issued by the
Management finding the workman guilty of charges in the
Departmental Proceeding held on 9.6.1999 (page 2 of
Exhibit-A series), the Office Order imposing punishment of
suspension of 10 working days under Clause 27.1(C) of the
Standing Order with effect from 22.10.1999 to 02.11.1999
(Page-3 of Exhibit-A series), the Award of punishment of
suspension for 10 working days without wages with effect
from 2.6.2000 to 13.6.2000 under Clause 27.1(C) of the
Standing Order against the workman issued on 2.6.2000
(vide page 4 of Exhibit-A series); the caution letter issued
by the Management on 15.5.2002 finding the workman
absent from duty from 27.8.2001 (vide page-5 of Exhibit-A
series); and the Award of punishment dated 11.9.2003
passed by the Management under Clause 27.1(D) of the
Standing Order imposing punishment of stoppage of
annual increment without cumulative effect for 5 years
against the workman (vide page-6 of Exhibit-A series). The
workman although denied that he never received any
caution letter/warning letter or any order of punishment
marked as Exhibit-A series which are official documents
duly proved by the Management and the workman has not
been able to twist or shake the testimony of the
Management witness No. 1 in respect of the documents
marked as Exhibit-A series and hence, these documents
can not be rejected. Nor the workman in order to disprove
this contention of the Management has taken another step
for production of the original record in connection with the
documents marked as Exhibit-A series. Although the
workman stated that he was absent from duty on different
occasion with intimation to the Management along with
the medical report, in his cross-examination, he clearly
admitted that he informed the Management verbally about
his illness and also sumitted sickness certificate but he
never applied for leave in writing. The workman also failed
to produce any document/medical certificate to show that
he remained absent with intimation to the Management.
Thus the workman himself contradicted his own statement
which hampers the credibility of the testimony of the
workman.
The workman mentioned that the Management
issued the alleged charge sheet dated 3.2.2004 against him
on the charge of his misconduct and continuous and
habitual absence from duty without any sanctioned leave
or sufficient cause from 10.11.2003 but the same was not
served upon him at any point of time; and he was not given
any opportunity to submit his reply to the charge sheet
nor the findings of the enquiry proceeding was furnished
to him so that he could represent himself against the said
findings of the enquiry proceeding. He alleged that he was
illegally terminated from service on the basis of the findings
of ex-parte enquiry which was done arbitrarily and in gross
violation of natural justice. He also added that he was
deprived of due opportunity to present his case before the
Enquiry Officer and being heard on the point of his
imposition of punishment.
8. On perusal of the documents marked as Exhibits-
C, D and E, it appears that the charge sheet was forwarded
to the workman framing charge of absence from the duty
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[PART II—SEC. 3(ii)]
by the workman since the year 2002 to 2004. The notices of
enquiry issued by the Enquiry Officer, Sri B. Borthakur
dated 28.4.2004 and 4.5.2004 were issued against the
workman by Registered Post with A/D vide Exhibit-F which
were returned with report of the Postman with remarks "not
found", "not known, addressee not known" and the notices
were tried to be served on different dates shown as
13.5.2004, 14.5.2004, 15.5.2004, 17.5.2004. Thereafter the
notice dated 3.2.2004 along with the charge sheet framed
against the workman was issued by publication in the local
daily Newspaper namely 'Janmabhumi' on 2.7.2004, vide
Exhibit-G. Yet the workman did not appear before the Enquiry
Authority. The workman took the plea that he did not receive
any notice nor any charge sheet from the Management,
nor did he read the Newspaper as he is a lay man. In his
cross-examination the workman stated that his house is
situated at a distance of 8 K.M. from the place of his work
and 21/2 K.M. from the Head Office and his place cover
under the Post Office which is adjacent to the Head Office;
and he did not know whether any departmental proceeding
was initiated against him nor any paper publication was
done by the Management in this regard, but the discharge
letter was received by his brother through Post Office which
was received by him after 10/12 days since he was out of
station. The workman witness No. 2, Sri Swapan Roy in his
cross-examination categorically mentioned that his
residence is about 11 K.M. far away from that of the
workman and he knew that in the year 2004 the concerned
workman was charge sheeted by the Management. It is
also admitted by the workman witness No. 2 that the
workman used to remain absent from duty from time to time
since 2002 to 2004; and in the year 2002 the concerned
workman was charge sheeted by the Management and as
per the Standing Order if an employee intentionally remains
absent from duty in comes within the ambit of misconduct.
The Management witness No. 1 also said that the workman
was staying in Masjid Colony near Marghareta town and
the Newspapers are easily available in the said locality for
which the workman could have easily obtained the said
vernacular Newspaper namely 'Dainik Janambhumi' dated
2.7.2004 as the workman studied upto Class-IX.
The provision of CPC regarding substituted services
as provided in Order V Rule 20 which runs as under:—
"20. Substituted service—(1) Where the Court is
satisfied that there is reason to believe that the
defendant is keeping out of the way for the purpose
of avoiding service, or that for any other reason the
summons cannot be served in the ordinary way, the
Court shall order the summons to be served by
affixing a copy thereof in some conspicuous place in
the Court house, and also upon some conspicuous
part of the house (if any) in which the defendant is
know to have last resided or carried on business or
personally worked for gain, or in such other manner
as the Court thinks fit.
(1-A) Where the Court acting under sub-rule (1)
orders service by an advertisement in a newspaper,
the newspaper shall be a daily newspaper circulating
in the locality in which the defendant is last known
to have actually and voluntarily resided, carried on
business or personally worked for gain."
From the pleading of the Management as well as the
testimony of the Management witness No. 1 along with
the documents proved by the Management, it appears that
the Management due to unauthorized absence of the
workman framed charge sheet which was forwarded to the
workman but the same could not be served and thereafter
the enquiry was initiated by the Management upon which
a notice along with the charge sheet against the workman
was published by the Management in the daily vernacular
Newspaper namely Janambhumi and as the evidence shows
that the workman has been residing in the Masjid Colony
which is 21/2 K.M. from his Head Office within the jurisdiction
of same Post Office. Thus it is clear that the Management,
on failure to cause service of notice upon the workman
directly, followed the recourse of substitute service as per
Provision of Rule 20(1-A) Order V of CPC. In such a
situation, I find no reason to discard the plea of the
Management as the efforts taken by the Management as
mentioned above is not sufficient enough to hold the notice
and the charge sheet deemed to have been served upon
the workman.
9. In course of argument Mr. K.M. Haloi, learned
Advocate for the workman submitted that the workman
was not notified as to the initiation of the enquiry
proceeding nor the workman was given any opportunity
to represent himself as well as to be heard; and even the
workman was deprived of exercising his fundamental right
as enshrined in Constitution of India (Article 309 and 311).
He also emphasized that the workman was an innocent and
he would contest the departmental proceeding if notified
to him. Mr. Haloi contended that the Management in order
to deprive the workman from his job and with malafide
intention initiated the enquiry proceeding keeping the
workman in darkness and accordingly made this ex-parte
enquiry violating the principle of natural justice as well as
the provision of Constitution by discharging the workman
illegally exercising the hire and fire policy, and such action
of the Management is liable to be set aside.
In support of his argument Mr. Haloi relief decisions
laid down in the following cases of Hon'ble Supreme Court.
(a) In C.L. Subramaniam-vrs-The Collector of
Customs, reported in AIR 1972 Supreme Court 2178, wherein
it was held in Para-5 as—"The appellant who was a member
of the Civil service of the Union of India was holding his
office during the pleasure of the President; but in view of
Article 311 of the Constitution, he could not have been
removed from service except after enquiry in which he had
been given a reasonable opportunity of being heard in
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6701
respect of the charge levelled against him. This procedural
guarantee is undoubtedly a valuable one. Breach of that
guarantee vitiates the enquiry."
(b) In Managing Director, ECIL, Hyderabad and
others-vs-B. Karunakar and Others reported (1993) 4
Supreme Court Cases 727 and in Union of India and Others-
vrs-Md. Ramjan Khan, it was held that Right to show cause
against penalty proposed which has been taken away by
the 42nd Amendment pertains to the second stage of the
inquiry when disciplinary authority takes decision on the
question of penalty imposable on the delinquent, denial of
right to copy of the enquiry report amounts to denial of
reasonable opportunity and violation of Articles 14 and 21
and principles of natural justice; Where punishment
imposable is other than the major punishment of dismissal,
removal and reduction in rank and the rules contemplate
inquiry and the enquiry officer is not the disciplinary
authority, then also enquiry report is to be supplied; and
non furnishing the copy of report of Enquiry Officer to the
delinquent employee would be violative of principles of
natural justice rendering the final order invalid against the
delinquent void.
10. Mr. M.Z. Ahmed, learned Sr. Advocate for the
Management, on the other hand, objecting to the
submission of the workman side raised his argument stating
that the workman was appointed in place of his mother on
the ground of the Voluntary Retirement Scheme taken by
his mother under Special Female Voluntary Retirement
Scheme and he was allowed to join his duty on receipt of
the letter of acceptance to work as piece rated worker in
underground mine and under the said Special Female
Voluntary Retirement Scheme the job offered to the
workman is restricted only to the underground piece rated
miner and loader and nothing else. He also added that as
per direction of the Management, the Chairman of Coal
India Ltd. only has the power to entrust a mazdoor from
piece rated worker to a time rated worker in the event of
finding the said piece rated worker unfit for performing the
job on the basis of Medical Certificate issued by the
Medical Officer of the Company but the workman has failed
to produce any representation with the prayer for
converting his duty from piece rated works to daily rated
work or for light duty, rather the workman was found a
habitual absentee and in spite of issuing caution letter/
warning letter and even imposing punishment for his absent
the workman did not improve his attendence. Thereafter
the Management finding no alternative initiated an enquiry
and framed the charge againts the workman for violation of
Clause 26.30 and Clause-26.24 of the Standing Order as
discussed above, and the notice along with the charge
sheet was issued against the workman but could not be
served due to not finding the workman at his given address
as well as avoidance of the workman as it appears from his
previous conduct and from the endorsement made by the
Postman on the body of envelop containing the notice.
Thereafter the notice was served upon the workman as per
the procedure laid down under Order V Rule 20 of the CPC.
But the workman did not take part in the enquiry
proceeding, who appears to had been residing about 2 KM
away from the Head Quarter to the Management, hence,
Mr. Ahmed contended that since the Management has
made all efforts to cause service of notice of enquiry as
well as to supply the charge framed against him exhausting
all the procedure there is no further necessity to furnish
the copy of enquiry report along with document regarding
proposed punishment against the workman by the Enquiry
Authority since it will be a meaningless as well as futile
Act. As such, the Management has committed no illegality
for violated the principle of natural justice in holding the
enquiry against the workman. Mr. Ahmed also mentioned
that the workman was absenting from his duty deliberately
without any intimation although he has taken the plea that
due to medical ground he could not attend his duty but
there is no iota of evidence on record to show that such
explanation of the workman is found established hence,
the workman is not entitled to any relief as claimed. In
support of his contention he relied upon the decision of
the Hon'ble Supreme Court in Bank of India - vrs - T.S.
Kelawala and others, S.U. Motors Private Ltd.-vrs-Workmen
published in (1990) 4 Supreme Court Cases 744 that
deliberate abstention from work, whether by resort to strike
or go slow or any other method, legitimate, resulting in no
work for the whole day or days or part of the day or days,
will entitle the management to deduct, pro rata or otherwise,
wages of the participating workmen notwithstanding
absence of any stipulation in the contract of employment
or any provision in the service rules, regulations or
Standing Orders.
Mr. Ahmed further argued that the workman being a
daily rated/piece rated worker appointed on a
compassionate ground in the event of the Voluntary
Retirement Scheme taken by his mother, committed gross
misconduct and due to such behaviour of the workman the
order of discharge passed by the Management after holding
enquiry is in no way illegal and the workman has also no
right to the post. Mr. Ahmed relied upon the decision in
Reserve Bank of India - vrs- Gopinath Sharma and another
wherein it was laid down that the workman not appointed
to any regular post but engaged on the basis of need of
work on day to day basis held, acquired no right to the
post.
The Management side also submitted that the
enquiry against the workman was held as per procedure
and the charges framed against the workman was found
well established, but due to failure of the Enquiry Officer to
supply the enquiry proceeding and the punishment
proposed by the Management against the workman finding
no where about the workman will not vitiate the entire
enquiry proceeding as well as its finding. Learned Advocate
for the Management also submitted that if the Tribunal
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THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
finds that the instant reference case would be Prejudice
because of non supply of the report the Tribunal may set
aside the order of punishment and issue direction for fresh
enquiry from the stage of supply of the report. In this
connection Mr. Ahmed, the leanred counsel for the
Management, cited the decision of Hon'ble Supreme Court
in NTC (WBAB&O) Ltd. and another—vrs— Anjan K.
Saha published in (2004) 7 Supreme Court Cases 581 which
runs as follows:—
"The language of clause 14(4)(c) of the Model
Standing Orders is not manadatory. In any case,
non-compliance therewith cannot be held to be a
more vitiating factor than non-supply of enquiry
report. If the Constitution Bench of the Supreme
Court in cases of non-supply of enquiry report directs
the procedure to be adopted by allowing the
employer to restart the enquiry from the stage of
supply of enquiry report without reinstating the
employee, why such a course should not be directed
to be adopted where the other grievance of the
employee is denial of opportunity to show cause
against proposed penalty? When the court can direct
a fresh enquiry from the stage of supply of enquiry
report the next step in the enquiry of giving
opportunity against the proposed penalty can also
be directed to be taken. After the fresh enquiry is
over from the stage of supply of enquiry report, the
employee can be granted opportunity against
proposed penalty in terms of clause 14(4)(c) of the
Model Standing Orders. Consequential order, if any
passed, shall abide the final result of the proceedings.
As held in the case of B. Karunakar, (1993) 4 SCC 727
if the employee is cleared of the charges and is
reinstated, the disciplinary authority would be at
liberty to decide according to law how it will treat the
period from the date of dismissal till the period of
reinstatement and the consequential benefits."
"Mr. K.M. Haloi, learned Advocate for the workman
vehemently objecting to the submission of the learned
Advocate for the Management citing the case of State
Bank of Bikaner and Jaipur—vrs— Om Prakash Sharma
reported in (2006) 5 SCC 123 that this Tribunal/Labour Court
can not go beyond the terms of reference and an award
passed by the Labour Court in excess of his jurisdiction,
held, his capability of correction by the High Court in
exercise of his power judicial review. He also relied upon
the decision laid down in Mahendra L. Jain and Ors.-vrs-
Indore Development Authority and Ors. reported in (2005)
1 SCC 639 "(Head Note D). Labour law-Industrial Disputes
Act, 1947—Ss 10 and 11—Jurisdiction of he Labour
Court—Held, Labour Court cannot enlarge the scope of
reference nor can deviate therefrom—A demand not raised
at the time of raising dispute, cannot be adjudicated by
it—Further held, no relief can be granted against a separate
juristic entity which was not a party to the proceedings —
M.P. Industrial Employment (Standing Orders) Act, 1961
(26 of 1961)-M.P. Industrial Employment (Standing Orders)
Rules, 1963.
In the present reference the Management appears
to have exhausted all the procedure for causing service of
notice along with the charge sheet upon the workman and
the enquiry was held ex-parte. In this proceeding also
the workman has not been able to establish his contention
that the was absent from duty with authority nor could he
support his contenting by adducing any documentary
evidence. Therefore, it is clear that the Management has
been able to prove the charge of habitual absent from
duty without sufficient cause and absent from duty without
sanctioned leave or sufficient cause or over staying
beyond sanctioned leave as framed by the Management
under Clause 26.24 and Clause 26.30 of the Standing Order.
On scrutiny of the proceeding of the departmental enquiry
and the findings of the Enquiry Officer marked as Exhibit-
H together with my discussion as above, I find the charges
was established against the workman; and in the event of
passing the award setting aside the punishment only
because of the procedural irregularity i.e. the non-supply
of proceeding of the enquiry along with its findings and
the punishment imposed upon the workman, it will cause
much prejudice to this proceeding as such, I find no reason
to discard the submission of Mr. M.Z. Ahmed, learned
Advocate for the Management as to passing an Award
allowing the employer to start the enquiry from the stage
of supply of enquiry report without reinstating the
employee since the workman has already been discharged.
11. In view of my above discussion and the findings
as well as the ratio of the decisions of the Hon'ble Supreme
Court held in the cases as aforesaid, I find it a fit case to
follow the decision of the Hon'ble Supreme Court in NTC
(WBAB&O) Ltd. and another—vrs—Anjan K. Saha
reported in (2004) 7 SCC 581. Further there is also no chance
of infringement of jurisdiction of this Tribunal nor any
violation of the terms of reference.
Accordingly this reference is disposed of directing
the Management a fresh enquiry from the stage of supply
of enquiry report to the next step in the enquiry giving
opportunity against the proposed penalty is also be
directed; and after the fresh enquiry is over from the stage
of the supply of the enquiry report the workman be granted
opporunity against the proposed penalty as per provision
of Model Standing Order. The Disciplinary Authority
would be at liberty to decide according to law how it will
treat the period from the date of dismissal in the event of
passing any order of reinstatement or consequential
benefits. The management is further directed to dispose
of the inquiry proceedings as directed above, within
three months from the date of notification of the award.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6703
The workman is also directed to co-operate with the
Management in disposing the inquiry proceeding.
Send the Award to the Government as per
procedure. Given under my hand and seal of this Court
on this 30th day of October, 2013 at Guwahati.
L. C. DEY, Presiding Officer
ubZ fnYyh] 18 uoEcj] 2013
dkñvkñ 2604.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj
eSllZ ,l lh lh ,y ds izca/kra= ds lac) fu;kstdksa vkSj muds
deZdkjksa ds chp] vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh;
ljdkj vkS|ksfxd vf/kdj.k@Je U;k;ky;] gSnjkckn ds iapkV ¼lanHkZ
la[;k 21@2011½ dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks
18@11@2013 dks izkIr gqvk FkkA
[lañ ,y&22012@4@2011&vkbZ vkj ¼lh ,e&II½]
chñ ,eñ iVuk;d] MsLd vf/kdkjh
New Delhi, the 18th November, 2013
S.O. 2604.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947) , the Central
Government hereby publishes the Award (Ref. 21/2011) of
the Cent. Govt. 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 18/11/2013.
[No. L-22012/4/2011-IR(CM-II)]
B.M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR
COURT AT HYDERABAD
Present :Smt. M. Vijaya Lakshmi, Presiding Officer
Dated the 21st day of August, 2013
INDUSTRIAL DISPUTE No. I.D. 21/2011
Between :
The General Secretary,
(Sri Bandari Satyanarayana)
Singareni TNTUC,
H.No. 18-3-90/3, Ganesh Nagar
Markandeya Colony,
Godavarikhani-505209.
....Petitioner
AND
The General Secretary,
M/s. Singareni Collieries Company Limited,
Mandamarri Division,
Mandamarri-504303.
....Respondent
Appearances:
For the Petitioner:
NIL
For the Respondent:
NIL
AWARD
The Government of India, Ministry of Labour by its
order No. L-22012/4/2011-IR(CM-II) dated 19.4.2011 referred
the following dispute between the management of M/s.
Singareni Collieries Company Ltd., and their workman under
section 10(1)(d) of the I.D. Act, 1947 for adjudication to
this Tribunal. The reference is,
SCHEDULE
Whether the action the management of General
Manager of M/s. Singareni Collieries Company Ltd.,
Mandamarri Division, Adilabad District in dismissing
the services of Sri Kummari Mondi, Ex-Coal Filler,
KK-5A INC. of Mandamarri Division w.e.f. 13.1.2007
is justified? To what relief the dismissed worker is
entitled to?"
The reference is numbered in this Tribunal as I.D.
No. 21/2011 and notices were issued to the parties.
2. The case stands posted for appearance of
Petitioner union and for filing of claim statement and
documents. Petitioner union called absent and there is no
representation. Claim statement not filed since 2011 inspite
of giving fair opportunity. In the circumstances, taking that
Petitioner union is not interested in the proceedings,
petition is dismissed.
Award passed accordingly. Transmit.
Dictated to Smt. P. Phani Gowri, Personal Assistant
transcribed by her and corrected by me on this the 21st
day of August, 2013.
M. VIJAYA LAKSHMI, Presiding Officer
Appendix of evidence
Witnesses examined for the
Witnesses examined for the
Petitioner
Respondent
NIL
NIL
Documents marked for the Petitioner
NIL
Documents marked for the Respondent
NIL
ubZ fnYyh] 18 uoEcj] 2013
dkñvkñ 2605.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj eSllZ ,l lh lh ,y
ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaè
esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèdj.k@Je
6704
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
U;k;ky;] gSnjkckn ds iapkV ¼lanHkZ la[;k 19@2013½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 18@11@2013 dks izkIr gqvk FkkA
[lañ ,y&22012@203@2012&vkbZ vkj ¼lh ,e&II)]
chñ ,eñ iVuk;d] MsLd vfèdkjh
New Delhi, the 18th November, 2013
S.O. 2605.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 19/2013) of
the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Hyderabad as shown in the Annexure, in the industrial
dispute between the management of M/s. Singareni
Collieries Co. Ltd., and their workmen, received by the
Central Government on 18/11/2013.
[No. L-22012/203/2012-IR (CM-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR
COURT AT HYDERABAD
Present : Smt. M. Vijaya Lakshmi, Presiding Officer
Dated the 24th day of September, 2013
INDUSTRIAL DISPUTE No. I.D. 19/2013
Between :
The President,
(Sri Bhandari Satyanarayana)
Telangana Trade Union Council,
H.No. 5-295, Indira Nagar,
Opp. Bus Stand, Mancherial,
Adilabad Distt.-504208.
....Petitioner
AND
The General Manager,
M/s. Singareni Collieries Company Limited,
Sreerampur Area, Sreerampur,
Adilabad district-504303.
....Respondent
Appearances:
For the Petitioner :
NIL
For the Respondent : M/s P.A.V.V.S. Sarma & Vijaya
Lakshmi Panguluri, Advocates
AWARD
The Government of India, Ministry of Labour by its
order No.L-22012/203/2012-IR(CM-II) dated 30.11.2012
referred the following dispute between the management of
M/s. Singareni Collieries Company Ltd., and their workman
under section 10(1)(d) of the I.D. Act, 1947 for adjudication
to this Tribunal. The reference is,
SCHEDULE
"Whether the action the management of General
Manager of M/s. Singareni Collieries Company Ltd.,
Sreerampur Area, Sreerampur, Adilabad District in
terminating the services of Sri Ande Ramulu, Ex-Coal
Filler, RK-5 Inc., SCCL Sreerampur Area, with effect
from 1.2.2005 is justified or not? To what relief the
applicant is entitled for?"
The reference is numbered in this Tribunal as I.D.
No. 19/2013 and notices were issued to the parties.
2. The case stand posted for appearance of Petitioner
union and for filing of claim statement and documents.
3. Petitioner union called absent and there is no
representation. Claim statement not filed inspite of giving
fair opportunity. In the circumstances taking that Petitioner
union is not interested in the proceedings, petition is
dismissed.
Award passed accordingly. Transmit.
Dictated to Smt. P. Phani Gowri, Personal Assistant
transcribed by her and corrected by me on this the 24th
day of September, 2013.
M. VIJAYA LAKSHMI, Presiding Officer
Appendix of evidence
Witnesses examined for the
Witnesses examined for the
Petitioner
Respondent
NIL
NIL
Documents marked for the Petitioner
NIL
Documents marked for the Respondent
NIL
ubZ fnYyh] 18 uoEcj] 2013
dkñvkñ 2606.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj eSllZ ,l lh lh
,y ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqcaè esa fufnZ"V vkS|ksfxd fookn esa vkS|ksfxd vfèdj.k@Je
U;k;ky;] xksnkojh[kUuh ds iapkV ¼lanHkZ la[;k 54@2010½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 18@11@2013 dks izkIr gqvk Fkk
[lañ ,y&22013@1@2013&vkbZ vkj ¼lh&II½]
chñ ,eñ iVuk;d] MsLd vfèdkjh
New Delhi, the 18th November, 2013
S.O. 2606.—In pursuance of Section 17 of the
Industrial Dispute Act, 1947 (14 of 1947), the Central
Government hereby publishes the award of the Indus.
Tribunal-cum-Labour Court, Godavarikhani (IT/ID/54/2010)
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6705
as shown in the Annexure in the Industrial Dispute between
the employers in relation to the management of SCCL and
their workmen, which was received by the Central
Government on 18.11.2013.
[No. L-22013/1/2013-IR(C-II)]
B.M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CHAIRMAN INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT-CUM-VI ADDL. DISTRICT
& SESSIONS COURT, GODAVARIKHANI
Present : Sri G. V. Krishnaiah,
Chairman-cum-Presiding Officer.
INDUSTRIAL DISPUTE No. 54 OF 2010
Saturday, the 19th day of October, 2013.
Between :
Gujjula Swamy, S/o. Buchaiah, Age 32 years,
Occ: Coal Filler, R/o. Kila Vanaparthi, Mandal,
Dharmaram, District: Karimnagar
---Petitioner.
And
(1)The General Manager,
S.C. Co. Ltd., Ramagundam-I,
Post: Godavarikhani, Dist. Karimnagar.
(2)The Managing Director (Administration),
S.C. Co. Ltd., P.O., Kothagudem,
District Khammam (A.P.)
---Respondents.
This case coming before me for final hearing in the
presence of Sri S.Bhagavantha Rao, Advocate for the
petitioners and of Sri D. Krishna Murthy, Advocate for the
Respondents; and having been heard and having stood
over for consideration till this day, the Court delivered the
following:-
AWARD
This petition is filed U/Sec. 2-A(2) of the Industrial
Disputes Act, 1947 praying this court to direct the
respondents to reinstate the petitioner into service with
continuity of service and other attendant benefits by setting
aside dismissal order vide Proc. No. PRG.1/32/98, dt.
26-3-1998 on the file of 1st respondent with full back wages.
2. The averments of the petition are that the petitioner
was appointed as an employee in respondent company
14-10-1991 and the petitioner discharged his duties to the
fullest satisfaction of superiors till removal from service
and his services are governed by various standing orders
of SC company.
3. The petitioner got employment in place of his father
who was declared medical unfit by company and he got a
job under "Department quota"as per settlements. The
petitioner was initially appointed as Badli Filler and
subsequently confirmed service. The petitioner fell ill during
the year 1998 and a charge of absenteeism U/Sec.25:25 of
standing orders is foisted against the petitioner and
terminated from service and the petitioner was put in seven
years of service in the company.
4. The respondent company also reviewed the cases
of absenteeism by High power committee and the petitioner
received a call letter from High power committee Kothagudem.
But the petitioner's case was not considered by the High
power committee. The father of the petitioner lost two eyes
while working in the company. He was made unfit and so
respondent provided employment to the petitioner. But
petitioner was removed from service which is illegal and
against the principles of natural justice. Therefore he prays
to set aside the dismissal order dt.26-3-1998 and to reinstate
him into service with full back wages.
5. The respondent No. 1 filed his counter denying all
the allegations in the petition putting the petitioner to strict
proof of all those allegations. The 2nd respondent filed
memo adopting the counter filed by R-1.
6. The brief averments of counter of R-1 are that the
respondents'company is a Government Company
incorporated under the provisions of Company's Act, 1956
for carrying out the business of mining and selling the coal
and since the coal mining industry is a central subject, the
appropriate Government for this respondent/management
is Central Government. As per Sec. 7 (A) (1) of I.D., Act, the
appropriate Government may by notification in the official
gazette constitutes one or more Industrial Tribunals for
the adjudication of Industrial Disputes relating to any
matter whether specified in the 2nd or 3rd schedule and for
performing such other functions as may be assigned to
them under this Act. And that the Central Government
established an Industrial Tribunal-cum-Labour Court at
Hyderabad from 29-12-2000 for adjudication of Industrial
Disputes and the petitioner ought to have approached the
said Tribunal for the redressal of grievances if any. But he
conveniently avoided to file his petition before the Tribunal
established by the Central Government for the reasons
best known to him and the petition is not maintainable
under law and the same may be dismissed on this ground
alone. The present dispute is barred by limitation as per
Sec. 2-A of the Industrial Disputes Amendment Act, 2010
which came into force w.e.f. 15.9.2010. The petitioner was
dismissed from service in the year 1998, he kept quiet for
12 years and raised this dispute, which is barred by limitation.
Therefore, the I.D., is liable to be dismissed in limini.
7. The petitioner was appointed as Badli Filler on
14.10.1991 on companssionate grounds. The petitioner is a
chronic absentee. The following attendance particulars
indicate that he was not regular to his duties and in no year
he had put in 190 musters during the years 1995 to 1998.
6706
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
Sl. No.
Year
No. of musters
1.
1995
21
2.
1996
38
3.
1997
95
4.
1998
20
During the period from January, 1996 to December,
1996 the petitioner has put in only 38 musters. As the
above act amounted to misconduct under Companies
Standing Orders Clause No. 25.25 he was charge sheeted
vide charge sheet No. GDK1/6-g/97/1702, dt. 18.07.1997.
The relevant clause of standing orders reads as under:—
"Clause 25.25-Habitual late attendance or habitual
absence from duty without sufficient cause".
8. The petitioner received and acknowledged the
charge sheet, but failed to submit any explanation. He fully
participated in the enquiry proceedings. The enquiry was
conducted duly following the principles of natural justice.
The enquiry officer submitted his findings holding the
petitioner guilty of the misconduct under the company's
standing orders. He was issued show cause notice dt.
19.1.1998 to make his representation if any against the
findings of the enquiry. Having received the said notice,
he submitted explanation dt. 2.2.1998. Finding his
explanation not satisfactory and considering the enquiry
report, the respondents' company dismissed the petitioner
from service vide office order dt. 26.3.1998 w.e.f. 31.3.1998.
The respondents' company reviewed absenteeism cases
by high-power, committee at Kothagudem, the petitioner
was also called for interview, but his case was not
considered for reapointment by the high-power committee,
due to poor past performance. Therefore, the respondents
pray to dismiss the petition with costs.
9. Ex. W-1 to Ex. W-4 are marked on behalf of the
petitioner and no documents are marked on behalf of the
respondents.
10. Heard both sides. Perused the material papers on
record.
11. Both sides have also filed written arguments.
12. Now the points for consideration are:—
(1) Whether the present petition is maintainable
before this Tribunal?
(2) To what extent the alleged misconduct on the
part of the petitioner was made out in the
domestic enquiry and whether the punishment
of dismissal of the petitioner is justified?".
13. In this case, the counsel for the petitioner filed
Memo stating that the patitioner is not disputing the validity
of domestic enquiry and prayed this court to decide the
gravity of punishment and mould the relief, U/Sec. 11-A of
ID Act, on 28.11.2011, which was recorded. Therefore there
is no necessity to decide the validity of domestic enquiry
conducted by the respondents.
14. POINT No. 1:—It is the case of the respondents
that the respondents company incorporated under the
provisions of Company's Act 1956 for carrying out the
business and selling the coal and since the coal mining
industry is a Central subject, the appropriate Government
for this respondents/management is Central Government
and that as per Sec. 7A(1) of I.D. Act, the appropriate
Government by may its notification the official gazette
constitute one or more industrial tribunals for adjudication
of industrial disputes relating to any matter whether
specified in the 2nd or 3rd schedule and for performing
such other functions as may be assigned to them under
this Act. The respondents further submitted in their counter
the Central Government established an industrial Tribunal-
cum-Labour Court at Hyderabad on 29.12.2000 for
adjudication of Industrial disputes and the petitioner ought
to have approached the said tribunal for redressal of
grievances if any. As such, the ID is liable to be dismissed
in limini.
15. In a case reported in 1998(5) ALD-16 (D.B) in a
writ petition between U. Chinnappa Vrs. Cotton Corporation
of India and others; the Division Bench of our High Court
held—"we will assume that in so far as the dismissed or
retrenched workman is able to approach the Labour Court
straight-away, the power of the Central Government to make
a reference of the dispute may be whittled down protanto
and in that sense there is a conflict or repugnancy with
sub-section (2) of section 2(A) and Section 10(1) r/w sub-
section (1) of section 2-A and Section 3 of the Act. Even
then, the Presidential assent given under Article 254(2)
makes the State law prevail over the provisions of the
Central law to the extent of repugnancy". It also further
observed Industrial Disputes Act, 1947, Section 2-A(2) is
not confined to workmen employed in Industrial
undertakings of State Government and it applies also to
workmen engaged in Central Government undertakings.
16. In the light of the above cited case law, Section 2-
A(2) of I.D. Act, 1947 applies both to the workmen
employed in State Government undertakings and Central
Government undertakings. It is for the workman to approach
U/Sec. 2-A(2) of I.D. Act, either to the Industrial Tribunals
having Central jurisdication and also the Tribunals having
State jurisdication. The petitioner was dismissed from
service by order dt. 13.2.2003 i.e., much prior to the
Amendment Act, 2010 came into force. This amendment
has no retrospective effect. The petitioner's case is not
covered by the Amendment Act, as such the I.D., is
maintainable before this court.
17. In view of the above, I hold that this Tribunal is
having jurisdiction to decide the industrial dispute on hand
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6707
and the petition field by the petitioner is maintainable. The
point is answered accordingly.
18. The petitioner has conceded the validity of
domestic enquiry conducted by the respondents. During
the period from January 1996 to December 1996, the
petitioner had put in only 38 musters. The petitioner
admitted his attendance particulars, furnished hereunder:—
Year
No. of musters
1995
21
1996
38 Charge sheet year
1997
95
1998
20 upto removal
The petitioner contended that he fell ill during the
year 1996, due to which he could not attend to his duties.
He has not filed any piece of document to substantiate his
ill-health.
The above attendance particulars admitted by the
petitioner shows that he was in the habit of absenting from
duties frequently. But to consider the punishment awarded
to the petitioner whether it is proportionate to the charges
proved against the petitioner or not, has to be considered.
19. The learned counsel for the petitioner contended
that the major punishment of dismissal from service imposed
on the petitioner is shockingly disproportionate. The
absence of the petitioner was due to the ill-health of the
petitioner only, but not otherwise. As such, the respondents
ought not have dismissed the petitioner from service. Hence
the major punishment of dismissal be modified to stoppage
of two increments with cumulative effect. In support of his
contention, the learned counsel for the petitioner relied on
the decision of the Hon'ble Supreme Court reported in 2009-
III-LLJ-373 S.C. between Jagis Singh and Punjab
Engineering College.
20. In this case, the petitioner had put in less musters
during the years 1995 to 1998. Charge sheet was issued
with reference to the absenteeism for the year 1996. Thus,
prior to charge sheeted and subsequent years also, the
petitioner had put in less musters. Admittedly the petitioner
was appointed on compassionate grounds, during the
year 1991. The petitioner can be given one more chance to
mend himself. In these circumstances, I am of the considered
opinion, that dismissal of the petitioner from service is not
proportionate to the charge proved against him. Therefore,
I hold that dismissal of the petitioner from service is not
justified.
21. In the light of above foregoing discussion, I hold
that the charge framed against the petitioner is proved and
the punishment of dismissing the petitioner from service is
not justified and not proportionate to the charge proved
against him. Therefore, I hold that the punishment of
dismissal needs modification to that of reinstatement as
Badli Filler "afresh", to meet the ends of justice. The point
is answered accordingly.
22. In the result, the order of dismissal dt. 26.03.1998
is set aside and the respondents are directed to reinstate
the petitioner into service as a "Fresh Badli Fillter". The
petitioner is not entitled to any back wages or continuity
of service.
Typed to my dectation, corrected and pronounced
by me in open Court, on this the 19th day of October, 2013.
G. V. KRISHNAIAH, Chairman-cum-Presiding Officer
Appendix of Evidence
Witnesses Examined
For workman:—
For Management:—
-Nil-
-Nil-
EXHIBITS
For workman:—
Ex. W-1
Dt. 27.05.1997
Letter issued to the Colliery
Manager, GDK.1
Incline by the Medical Supdt.,
Area Hospital
RG, x.copy.
Ex.W-2
Dt. 12.04.1998
Mercy appeal, x. copy
Ex.W-3
Dt. 26.03.1998
Dismissal order, x.copy
Ex.W-4
Dt. 22.07.2003
Representation of petitioner
submitted to the Hon'ble
Minister, Mines Govt. of AP.,
Hyderabad, o/c.
For Management:—
-Nil-
ubZ fnYyh] 18 uoEcj] 2013
dkñvkñ 2607.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj eSllZ bZ ;w ,e ih
ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/kdj.k@Je U;k;ky; y[kuÅ ds iapkV ¼lanHkZ la[;k 02@2002½
dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 18@11@2013 dks izkIr
gqvk FkkA
[lañ ,y&42012@28@2001&vkbZvkj ¼lh ,e&II)]
chñ ,eñ iVuk;d] MsLd vf/kdkjh
6708
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
New Delhi, the 18th November, 2013
S.O. 2607.—In pursunace of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref. 02/2002 of
the Cent.Govt.Indus.Tribunal-cum-Labour Court, Lucknow
as shown in the Annexure, in the industrial dispute between
the management of Institute of Unani Medicine Plants,
and their workmen, received by the Central Government on
18/11/2013.
[No. L-42012/28/2001-IR (CM-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT,
LUCKNOW
Present : DR. MANJU NIGAM, Presiding Officer
I.D. No. 02/2002
Ref. No. L-42012/28/2001-IR(CM-II) dated: 24.12.2001
BETWEEN
Shri Sukh Lal C/o Sh. B.P. Singh
E-165, Sector "G', L.D.A. Colony
Kanpur Road
Lucknow (U.P.)
AND
The Project Coordinator
Institute of Unani Medicine Plants
Kurshi Road, Sec. 'C', Jankipuram
Lucknow.
AWARD
1. By order No. L-42012/28/2001-IR(CM-II) dated:
24.12.2001 the Central Government in the Ministry of
Labour, New Delhi in exercise of powers conferred by clause
(d) of sub section (1) and sub section (2A) of Section 10 of
the Industrial Disputes Act, 1947 (14 of 1947) referred this
industrial dispute between Shri Sukh Ram, C/o Sh. B.P.
Singh, E-165, Sector ‘‘G’’, L.D.A. Colony, Kanpur Road,
Lucknow and the Project Coordinator, Institute of Unani
Medicine Plants, Kurshi Road, Sec. 'C', Jankipuram,
Lucknow to CGIT-cum-labour Court, Lucknow for
adjudication.
2. The reference under adjudication is:
"WHETHER
THE
ACTION
OF
THE
MANAGEMENT OF UNANI MEDICINAL PLANTS
IN TERMINATING THE SERVICES OF SHRI SUKH
LAL S/O SH. MOTI LAL ON 13.07.1999 IS LEGAL
AND JUSTIFIED? IF NOT, TO WHAT RELIEF THE
WORKMAN IS ENTITLED TO?"
3. The case of the workman, Shri Ram, in brief, is that
he was employed with the opposite party w.e.f. 01.01.1998
as a labour on daily wages @ Rs. 42.50 per day; and he
worked accordingly, continuously up to 13.07.1999,
including Sundays and holidays, He has alleged that his
services have been terminated w.e.f. 13.07.1999 without
any rhyme or reason, notice or ntoice pay in lieu thereof, in
violation to the provisions contained in the Industrial
Disputes Act, 1947. Hence, the workman has prayed to set
aside his termination and reinstate him with consequential
benefits including full back wages.
4. The mangement of the Unani Medicine has
disputed the claim of the workman by filing its written
statement; wherein it has stated that the workman was not
employed by it; rather he was engaged on daily/temporary
basis. The opposite party has pleaded that the applicant is
not the workman; moreover it is not an 'industry' within the
provisions of Act as its main object is to carryout research
work and is not indulge in any trade, business. It has been
submitted that the labours are engaged as per need of the
work and the applicant has worked with it w.e.f. 16.10.98 to
11.07.99 with several breaks only for 96 days and never
remained in continuous work. It has further submitted that
the alleged disengagement was automatic and in terms of
standing orders; accordingly.
5. The workman has filed its rejoinder wherein apart
from the averments already made in the statement of claim
he has submitted that the opposite party has admitted of
having workman worked with it therefore, he is a workman
as defined under section 2 (s) of the Industrial Disputes
Act, 1947. Further, it has denied the contentions of the
opposite party that the establishment of Unani Medicine
is not an 'Industry' and has submitted that the same is
covered under the terms of 'Industry' as defined under
section 2 (j) of the Act.
6. The parties have field documentary evidence in
support of their respective stand. The workman examined
himself whereas the management has though filed affidavits
of Miss Rafat Mahmooda, Dy. Director in Charge and of
Dr. Idris Ahemad, Technical Advisor in support of their
case; but produced none for their cross-examination.
7. Having gone through entire evidence on record, it
comes out that the case was referred to this tribunal in
December, 2001 and after conclusion of pleadings on behalf
of the parties the case was fixed for evidence on 25.11.2003;
and the workman's evidence was recorded on 01.02.2006;
however his cross-examination was done by the authorized
representative of the management on 13.05.2009. Thereafter,
30.07.2009 was fixed for opposite party's evidence. After
passage of so many dates the opposite party filed evidences
of its two witnesses viz. Miss Rafat Mahmooda, Dy. Director
In Charge and of Dr. Idris Ahemad. Technical Advisor on
16.12.2010 and next date 28.01.2011 was fixed for cross-
examination of the management witnesses. Thereafter, the
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6709
case was fixed on 28.01.2011, 09.03.2011, 04.05.2011,
16.06.2011, 17.08.2011, 03.10.2011, 28.11.2011, 18.01.2012,
15.03.2012 and 03.05.2012; but the management did not
produced the management witnesses for cross-
examination; accordingly, keeping in view reluctance of
the management to produce it witness for cross-examination
for more than one & half year, the opportunity to get their
witness cross-examined was closed vide order dated
03.05.2012 and case was fixed for 13.06.2012 for arguments.
Since then the case was listed for argument on 13.06.2012,
07.08.2012, 03.10.2012, 02.11.2012, 20.12.2012, 04.02.2013,
27.02.2013, 08.04.2013, 04.06.2013, 16.08.2013 and 07.10.2012;
but none turned up from the management to argue their
case nor filed any adjourment. Thus due to non-appearance
of management for long the workman's representative was
heard and case was reserved for award keeping in view
reluctance of the management and long pendency of the
case, since 2002.
8. Heard representatives of the workman only and
scanned entire evidence on record.
9. The authorized representative of the workman has
contended that the opposite party is indulge in research
activities, which is not sovereign function; aslo, the result
of their research is being used by the Government and
other agencies for drug manufacturing, therefore, the
opposite party comes within the definition of 'Industry' as
defined in the Section 2 'j' of the Act. He has further
contended that the applicant is 'workman' as it is evident
from the written statement of the management itself that he
was engaged as labour for 96 days. The authorized
representative has argued that the workman has well
established through his oral testimony before this Tribunal
that he has worked from 16.10.98 to 11.07.99 continuously
and the same is reliable in view of non-submission of any
evidence by the management or rebuttal of workman's
evidence. It has also been submitted by the representative
of the workman that the workman has worked continuously
for more than 240 days on daily wages and his services
were terminated w.e.f. 13.07.99; without any notice or
compensation, in violation of the provisions contended in
Section 25F of the I.D. Act.
10. I have given my thoughtful consideration to the
contentions of the representatives of the workman and
perused respective pleadings of the parties.
11. The workman in his statement on oath has stated
that he worked from 16.10.98 to 11.07.99 continuously and
he was paid @ Rs. 42.50 per day as labour. The workman
has not filed any documentary evidence in support of his
contentions that he actually worked for the duration he
pleaded in the statement of claim. The management has
though filed affidavits of its two witnesses; but has not
turned up for their cross-examination; therefore, their
evidence cannot be taken into account, which makes the
evidence of the workman uncontroverted.
12. As regard pleading of the management that the
applicant is not workman under provisions of the Act, it
has not submitted any specific chart of duties of the
applicant which goes to show that he is not workman. On
the contrary, it is admitted that the applicant was engaged
as labour for 102 days by the opposite party. This admission
of the management itself clears the picture that the applicant
is 'workman' within the criterion provided in Section 2 's' of
the Act as per management's admission the applicant was
engaged as 'labour' for some time. Therefore, it of the firm
opinion that the applicant is 'workman' within the terms of
the Act.
13. Further, the management has taken plea that it is
not an 'Industry' as defined in Section 2 'j' of the Act. In this
regard the workman has argued that the opposite party is
industry as it qualifies the 'triple test' provided by Hon'ble
Supreme Court in Banglore Water Supply case.
The parties have relied on verdict of Hon'ble Apex
Court in Banglore Water Supply & Sewerage Board etc. vs.
A Rajappa & others case; wherein it has been observed
that
"absence of profit motive or gainful objective is
irrelevant, be the venture in the public, joint, private
or other sector."
Hon'ble Apex Court has further observed that
"Where (i) systematic activity (ii) organized by co-
operation between employer and employee (the direct
and substantial element is commercial (iii) for the
production and/or distribution of goods and services
calculated to satisfy human wants and wishes not
spiritual or religions but inclusive of material things
or services geared to celestial bliss i.e. making on a
large scale Prasad or food) prima facie, there is an
industry in that enterprise."
It is clear that Institute of Unani Medicine Plants
carries out research work by cultivating certain 'Herb plant';
the management has submitted that outcome of the such
research is used through their hospitals and dispensaries
free of cost and there is no trade activity or profit motive
involved. In above cited case law Hon'ble Supreme Court
is of the view that the "absence of profit motive or gainful
objective is irrelevant" provided an establishment qualifies
the triple test, it is an industry. In this case the result of
research work is used by the hospitals and dispensaries
for better prospect of human being; also, the work carried
out by the Institute of Unani Medicine is not 'sovereign' in
nature as same work is performed by other research
laboratories etc. This indicates that the nature of work
carried out by Institute of Unani Medicine qualifies the
triple test, formulated by Hon'ble Apex Court in Banglore
Water Supply case. Thus, in view of facts and circumstances
of the case and above legal prepositions, I am of considered
opinion that Institute of Unani Medicine is an 'industry'
6710
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
within the provisions of Section 2 (j) of the Industrial
Disputes Act, 1947.
14. Now coming to the merit of the case, it is apparent
on the face of record that the management did not rebutted
the evidence of the workman in spite of ample opportunity
was afforded to them since 28.01.2011; but it failed to do
so, resulting into workman's evidence uncontroverted. He
has also stated that he worked continuously from October,
1998 to November, 1999. The management has filed photo
copy of working details from October, 1998 to July, 1999
which goes to show his continuous working in said months,
and in the absence of any evidence from the management
there is no reason to disbelief the statement of the workman
that he worked continuously from 16.10.98 to 11.07.99. The
management has neither pleaded not there is any evidence
on record that it complied with the provisions contained in
Section 25 F of the I.D. Act, 1947 while disengaging the
workman.
15. The terms of the reference says that this Tribunal
has to adjudicate upon the validity of action of the
management in terminating the services of the workman
w.e.f. 13.07.99; and in this regard the workman has
succeeded in substantiating that he actually worked with
the management of the Institute of Unani Medicine from
16.10.98 to 11.07.99 and his services have been terminated
by the management without following procedure given in
the Section 25 F of the Act.
16. Now, it is to be considered as to whether the
workman is entitled for reinstatement. From the evidence
produced by the workman it is not proved that his
appointment was as a regular worker. Even the statement
of workman himself goes to show that he was engaged by
one Harbhans Singh, an employee of the Institute; and
was not given any appointment letter etc. Admittedly, the
services of the workman were terminated on 13.07.99. In
(2005) 5 SCC 591; 2005 SCC (L&S) 716 Haryana Roadways
vs. Rudan Singh Hon'ble Apex Court while considering the
question regarding award of back wages has observed:
"There is no rule of thumb that in every case where
the Industrial Tribunal gives a finding that the
termination of service was in violation of section
25 F of the Act, entire back wages should be awarded
.................................... However, where the total length
of service rendered by a workman is very small, the
award of back wages for the complete period i.e.
from the date of termination till the date of the award,
which our experience shows is often quite large,
would be wholly inappropriate. Another important
factor, which required to be taken into consideration,
is the nature of employment. A regular service of
permanent character cannot be compared to short or
intermittent daily wage employment though it may
be for 240 days in a calander year."
17. In 2008 (119) FLR 877 Deepak Ganpat Tari vs.
N.E. Theater Pvt. Ltd. Hon'ble Bombay High Court relying
on the Hon'ble Apex Court's judgment in 2008 (117) FLR
1086 (SC) A P V K Brahmandandam 2008 (118) FLR 376
(SC) Telephone DM vs. Keshab Deb 2006 (111) FLR 1178
(SC) JDA vs. Ram Sahai, while awarding compensation of
Rs. 1,50,000/- to the concerned workman considering his
daily wages as Rs. 45/- in view of the fact that the workman
had put in about 3 years of service, has observed as under:
"It is apparent that termination of services of a
daily wager does not amount to retrenchment and
for violation of section 25 F in such circumstances,
the employee cannot be given benefit of
reinstatement with continuity and back wages.
Hon'ble Apex Court has hold that in such
circumstance employee is entitled to benefit of
compensation only."
18. Also, in Jagbir Singh v. Haryana State Agriculture
Mktg. Board (2009) 15 SCC 327 : (2010) 1 SCC (L&S)
545: Senior Superintendent Telegraph (Traffic), Bhopal
v. Santosh Kumar Seal and others (2010) 2 SSC (L&S)
309 Hon'ble Apex Court has observed as under:
"However, in recent past, there has been a shift in
the legal position and in a along line of cases, this
Court has consistently taken the view that relief by
way of reinstatement with back wages is not
automatic and may be wholly inappropriate in a given
fact situation even though the termination of an
employee is in contravention of the prescribed
procedure. Compensation instead of reinstatement
has been held to meet the ends of justice.
The award of reinstatement with full back wages in a
case where the workman has completed 240 days of
work in a year preceding the date of termination,
particularly, daily wagers has not been found to be
proper by this Court and instead compensation has
been awarded."
19. In the light of principle laid down in
aforementioned case laws, it would not be just and proper
to direct that the workman be reinstated in service.
The ends of justice would meet by paying
compensation to the workman instead in place of relief of
reinstatement in service.
20. Having regards to these facts that the workman
has worked as daily wager only and he was getting
Rs. 42.50 per day at the time of his alleged termination and
keeping in view the entire facts of the case and the law, the
interest of justice would be subserved, if, management is
directed to pay lump sum amount of compensation of
Rs. 85,000/- only.
21. Accordingly the management is directed to pay a
sum of Rs. 85,000/- (Rupees Eighty Five Thousand only)
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6711
to the workman as compensation for termination of his
services in violation of section 25 F of the I.D. Act. The
said amount shall be paid to the workman within 08 weeks
of publication of the award, failing which; the same shall
carry interest @ 8% per annum.
22. The reference is answered accordingly.
LUCKNOW.
29th October, 2013.
DR. MANJU NIGAM, Presiding Officer
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New Delhi, the18th November, 2013
S.O. 2608.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 03/2002)
of the Central. Govt. Indus Tribunal-cum-Labour Court,
Lucknow as shown in the Annexure, in the industrial
dispute between the management of Institute of Unani
Medicine Plants, and their workmen, received by the Central
Government on 18/11/2013.
[No. L-42012/27/2001-IR(CM-II)]
B. M. PATNAIK, Desk Officer.
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT LUCKNOW
Present : Dr. Manju Nigam, Presiding Officer
I.D. No. 03/2002
Ref. No. L-42012/27/2001-IR(CM-II) dated: 09.01.2002
BETWEEN
Shri Ram S/o Moti Lal
R/o Village Raniapu
Post-Aurawan
Distt. Lucknow
AND
The Project Coordinator
Institute of Unani Medicine Plants
Kurshi Road, Sec. 'C', Jankipuram
Lucknow.
AWARD
1. By order No. L-42012/27/2001-IR(CM-II) dated:
09.01.2002 and corrigendum dated 08.07.2002, the Central
Government in the Ministry of Labour, New Delhi in exercise
of powers conferred by clause (d) sub-section (1) and sub-
section (2A) of Section 10 of the Industrial Disputes Act,
1947 (14 of 1947) referred this industrial dispute between
Shri Ram S/o Moti Lal, R/o Village Raniapu, Post-Aurawan,
Distt. Lucknow and the Project Coordinator, Institute of
Unani Medicine Plants, Kurshi Road, Sec. 'C', Jankipuram,
Lucknow to CGIT-cum-Labour Court, Lucknow for
adjudication.
2. The reference under adjudication is:
"Whether the Action of The Management of Unani
Medicinal Plants in Terminating the Services of Shri Ram
S/O Sh.Moti Lal on 13.07.1999 is Legal and Justified? If
not, to what relief the Workman is Entitled to?"
3. The case of the workman, Shri Ram, in brief, is that
he was engaged by the opposite party w.e.f. May, 1997 as
a labour on daily wages @ Rs. 42.50 per day; and he worked
accordingly, continuously up to 13.07.1999, including
Sundays and holidays. He has alleged that his services
have been terminated w.e.f. 13.07.1999 without any rhyme
or reason, notice or notice pay in lieu thereof, in violation
to the provisions contained in the Industrial Disputes Act,
1947. Hence, the workman has prayed to set aside his
termination and reinstate him with consequential benefits
including full back wages.
4. The management of the Unani Medicine has
disputed the claim of the workman by filing its written
statement; wherein it has stated that the workman was not
employed by it; rather he was engaged on daily/temporary
basis. The opposite party has pleaded that the applicant is
not the workman; moreover it is not an 'industry' within the
provisions of Act as its main object is to carryout research
work and is not indulge in any trade, business. It has been
submitted that the labours are engaged as per need of the
work and the applicant has worked with it w.e.f. 16.10.98 to
11.07.99 with several breaks only for 96 days and never
remained in continuous work. It has further submitted that
the alleged disengagement was automatic and in terms of
standing orders; accordingly.
5. The workman has filed its rejoinder wherein apart
from the averments already made in the statement of claim
he has submitted that the opposite party has admitted of
having workman worked with it therefore, he is a workman
as defined under Section 2 (s) of the Industrial Disputes
Act, 1947. Further, it has denied the contentions of the
opposite party that the establishment of Unani Medicine
is not an 'industry' and has submitted that the same is
covered under the terms of 'industry' as defined under
Section 2 (j) of the Act.
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THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
6. The parties have field documentary evidence in
support of their respective stand. The workman examined
himself whereas the management has though filed affidavits
of Miss Rafat Mahmooda, Dy. Director In Charge and of
Dr. Idris Ahemad, Technical Advisor in support of their
case, but produced none for their cross-examination.
7. Having gone through entire evidence on record, it
comes out that the case was referred to this tribunal in the
year 2002 and after conclusion of pleadings on behalf of
the parties the case was fixed for evidence on 25.03.2004;
and the workman's evidence was recorded on 20.11.2003;
however his cross-examination could not be done due to
absence of the opposite party. When the opposite party
did not turn up for cross-examination of the workman, the
case was proceeded to ex-parte against the management
vide order dated 08.11.2006 and next date 18.01.2007 was
fixed for management's evidence. The opportunity to lead
evidence by the management was closed due to their
negligence for same vide order dated 13.04.2009 and case
was fixed for 13.05.2009 for arguments. The order dated
13.04.2009 was recalled vide order dated 13.05.2009 on
moving application by the management and no objection
from the workman; and accordingly, 30.07.2009 was fixed
for opposite party's evidence. After passage of so many
dated the opposite party filed evidences of its two
witnesses viz. Miss Rafat Mahmooda, Dy. Director In
Charge and of Dr. Idris Ahemad, Technical Advisor on
16.12.2010 and next date 28.01.2011 was fixed for cross-
examination of the management witnesses. Thereafter, the
case was fixed on 28.01.2011, 09.03.2011,04.05.2011,
16.06.2011, 17.08.2011, 03.10.2011, 28.11.2011, 18.01.2012,
15.03.2012 and 03.05.2012; but the management did not
produced the management witnesses for cross examination;
accordingly, keeping in view reluctance of the management
to produce it witness for cross-examination for more than
one & half year, the opportunity to get their witness cross-
examined was closed vide order dated 03.05.2012 and case
was fixed for 13.06.2012 for arguments. Since then the case
was listed for argument on 13.06.2012, 07.08.2012,
03.10.2012, 02.11.2012, 20.12.2012, 04.02.2013 and 27.02.2013;
but none turned up from the management to argue their
case nor filed any adjournment. Thus due to non-
appearance of management for long the workman's
representative was heard and case was reserved for award
keeping in view reluctance of the management and long
pendency of the case, since 2002.
8. Heard representatives of the workman only and
scanned entire evidence or record.
9. The authorized representative of the workman has
contended that the opposite party is indulge in research
activities, which is not sovereign function; also, the result
of their research is being used by the Government and
other agencies for drug manufacturing, therefore, the
opposite party comes within the definition of 'Industry' as
defined in the Section 2 'j' of the Act. He has further
contended that the applicant is 'workman' as it is evident
from the written statement of the management itself that he
was engaged as labour for 96 days. The authorized
representative has argued that the workman has well
established through his oral testimony before this Tribunal
that he has worked from 16.10.98 to 11.07.99 continuously
and the same is reliable in view of non-submission of any
evidence by the management or rebuttal of workman's
evidence. It has also been submitted by the representative
of the workman that the workman has worked continuously
for more than 240 days on daily wages and his services
were terminated w.e.f. 13.07.99; without any notice or
compensation, in violation of the provisions contended in
Section 25 F of the I.D. Act.
10. I have given my thoughtful consideration to the
contentions of the representatives of the workman and
perused respective pleadings of the parties.
11. The workman in his statement on oath has stated
that he worked from 16.10.98 to 11.07.99 continuously and
he was paid @ Rs. 42.50 per day as labour. The workman
has filed photocopy of Muster Roll for the month of July,
99 and that of Acquaintance Roll for the month of May, 99,
June, 99, July, 99 in support of his claim. The management
has though filed affidavits of its two witness; but has not
turned up for their crosss-examination, therefore, their
evidence cannot be taken into account, which makes the
evidence of the workman uncontroverted.
12. As regard pleading of the management that the
applicant is not workman under provisions of the Act, it
has not submitted any specific chart of duties of the
applicant which goes to show that he is not workman. On
the contrary, it is admitted that the applicant was engaged
as labour or 96 days by the opposite party. This admission
of the management itself clears the picture that the applicant
is 'workman' within the criterion provided in Section 2 's' of
the Act as per management's admission the applicant was
engaged as 'labour' for some time. Therefore, it of the firm
opinion that the applicant is 'workman' within the terms of
the Act.
13. Further, the management has taken plea that it is
not an 'industry' as defined in Section 2 'j' of the Act. In this
regard the workman has argued that the opposite party is
industry as it qualifies the 'triple test' provided by Hon'ble
Supreme Court in Banglore Water Supply case.
The parties have relied on verdict of Hon'ble Apex
Court in Banglore Water Supply & Sewerage Board etc. vs.
A. Rajappa & others case; wherein it has been observed
that:
"absence of profit motive or gainful objective is
irrelevant, be the venture in the public, joint, private
or other sector."
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6713
Hon'ble Apex Court has further observed that:
"Where (i) systematic activity (ii) organized by co-
operation between employer and employee (the direct
and substantial element is commercial (iii) for the
production and/or distribution of goods and services
calculated to satisfy human wants and wishes (not
spiritual or religions but inclusive of material things
or services geared to celestial bliss i.e. making on a
large scale Prasad or food) prima facie, there is an
industry in that enterprise."
It is clear that Institute of Unani Medicine Plants
carries out research work by cultivating certain 'Help plant';
the management has submitted that out come of the such
research is used through their hospitals and dispensaries
free of cost and there is no trade activity or profit motive
involved. In above cited case law Hon'ble Supreme Court
is of the view that the "absence of profit motive or gainful
objective is irrelevant" provided an establishment qualifies
the triple test, it is an industry. In this case the result of
research work is used by the hospitals and dispensaries
for better prospect of human being; also, the work carried
out by the Institute of Unani Medicine is not 'sovereign' in
nature as same work is performed by other research
laboratories etc. This indicates that the nature of work
carried out by Insitute of Unani Medicine qualifies the
triple test, formulated by Hon'ble Apex Court in Banglore
Water Supply case. Thus, in view of facts and circumstances
of the case and above legal prepositions, I am of considered
opinion that Institute of Unani Medicine is an 'industry'
within the provisions of Section 2 (j) of the Industrial
Disputes Act, 1947.
14. Now coming to the merit of the case, it is apparent
on the face of record that the management did not rebutted
the evidence of the workman inspite of apple opportunity
was afforded to them since 18.01.2007; but it failed to do
so, resulting into workman's evidence unconoverted. He
has also stated that he worked continuously from 16.10.98
to 11.07.99 and has some evidence in his support; and to
corroborate his evidence, the workman has filed photocopy
of acquaintance roll for the month of May, 99, June, 99 and
July, 99, which goes to show his continuous working in
said months, this goes to show that the workman had
actually worked with the management and in the absence
of any evidence from the management there is no reason to
disbelief the statement of the workman that he worked
continuously from 16.10.98 to 11.07.99. The management
has neither pleaded not there is any evidence on record
that it compiled with the provisions contained in Section
25 F of the I.D. Act, 1947 while disengaging the workman.
15. The terms of the reference says that this Tribunal
has to adjudicate upon the validity of action of the
management in terminating the services of the workman
w.e.f. 13.07.99; and in this regard the workman has
succeeded in substantiating that he actually worked with
the management of the Institute of Unani Medicine from
16.10.98 to 11.07.99 and his services have been terminated
by the management without following procedure given in
the Section 25 F of the Act.
16. Now, it is to be considered as to whether the
workman is entitled for reinstatement. From the evidence
produced by the workman it is not proved that his
appointment was as a regular worker. Even the statement
of workman himself goes to show that he was engaged by
one Harbansh Singh, an employee of the Institute; and
was not given any appointment letter etc. Admittedly, the
services of the workman were terminated on 13.07.99. In
(2005) 5 SCC 591; 2005 SCC (L&S) 716 Haryana Roadways
vs. Rudhan Singh Hon'ble Apex Court while considering
the question regarding award of back wages has
observed:
"There is no rule of thumb that in every case where
the Industrial Tribunal gives a finding that the
termination of service was in violation of Section 25 F
of the Act, entire back wages should be awarded
.................................. However, where the total length
of service rendered by a workman is very small, the
award of back wages for the complete period i.e.
from the date of termination till the date of the award,
which our experience shows is often quite large,
would be wholly inappropriate. Another important
factor, which required to be taken into consideration,
is the nature of employment. A regular service of
permanent character cannot be compared to short or
intermittent daily wage employment though it may
be for 240 days in a calander year."
17. In 2008 (119) FLR 877 Deepak Ganpat Tari Vs.
N.E. Theater Pvt. Ltd. Hon'ble Bombay High Court relying
on the Hon'ble Apex Court's judgment in 2008 (117) FLR
1086 (SC) A P V K Brahmanandam 2008 (118) FLR 376 (SC)
Telephone DM Vs. Keshab Deb 2006 (111) FLR 1178 (SC)
JDA vs. Ram Sahai, while awarding compensation of Rs.
1,50,000/- to the concerned workman considering his daily
wages as Rs. 45/- in view of the fact that the workman had
put in about 3 years of service, has observed as under:
"It is apparent that termination of services of a daily
wager does not amount to retrenchment and for
violation of Section 25 F in such circumstances, the
employee cannot be given benefit of reinstatement
with continuity and back wages. Hon'ble Apex Court
has hold that in such circumstance employee is
entitled to benefit of compensation only."
18. Also, in Jagbir Singh v. Haryana State Agriculture
Mktg. Board (2009) 15 SCC 327: (2010) 1 SCC (L&S) 545:
Senior Superintendent Telegraph (Traffic), Bhopal Vs.
Santosh Kumar Seal and others (2010) 2 SSC (L&S) 309
Hon'ble Apex Court has observed as under:
6714
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
"However, in recent past, there has been a shift in
the legal position and in a along line of cases, this
Court has consistently taken the view that relief by
way of reinstatement with back wages is not
automatic and may be wholly inappropriate in a given
fact situation even though the termination of an
employee is in contravention of the prescribed
procedure. Compensation instead of reinstatement
has been held to meet the ends of justice.
The award of reinstatement with full back wages in a
case where the workman has completed 240 days of
work in a year preceding the date of termination,
particularly, daily wagers has not been found to be
proper by this Court and instead compensation has
been awarded."
19. In the light of principle laid down in
aforementioned case laws, it would not be just and proper
to direct that the workman be reinstated in service. The
ends of justice would meet by paying compensation to the
workman instead in place of relief of reinstatement in service.
20. Having regards to these facts that the workman
has worked as daily wager only and he was getting Rs.
42.50 per day at the time of his alleged termination and
keeping in view the entire facts of the case and the law, the
interest of justice would be subserved, if, management is
directed to pay lump sum amount of compensation only.
21. Accordingly, the management is directed to pay a
sum of Rs. 80,000/- (Rupees Eighty Thousand only) to the
workman as compensation for termination of his services
in violation of Section 25 F of the I.D. Act. The said amount
shall be paid to the workman within 8 weeks of publication
of the award, failing which; the same shall carry interest
@ 8% per annum.
22. The reference is answered accordingly.
LUCKNOW,
23rd October, 2013.
Dr. MANJU NIGAM, Presiding Officer
ubZ fnYyh] 18 uoEcj] 2013
dkñvkñ 2609.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj eSllZ lh ih vkbZ
ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaè
esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k@Je
U;k;ky; lañ 1] /kuckn ds iapkV ¼lanHkZ la[;k 94@2002½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 18@11@2013 dks izkIr gqvk FkkA
[lañ ,y&42012@292@2001&vkbZvkj ¼lh ,e&II½]
chñ ,eñ iVuk;d] MsLd vf/kdkjh
New Delhi, the 18th November, 2013
S.O. 2609.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 94/2002)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court No.
1, Dhanbad as shown in the Annexure, in the industrial
dispute between the management of Central Potato
Research Institute, and their workmen, received by the
Central Government on 18/11/2013.
[No. L-42012/292/2001-IR(CM-II)]
B.M. PATNAIK, Desk 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. 94 of 2002
Employers in relation to the management of Central
Potato Research Institute, Patna
AND
Their workmen.
Present:
Sri Ranjan Kumar Saran,
Presiding Officer
Appearances:
For the Employers.:
Sri D.K. Verma, Advocate
For the workman.:
Sri D. Mukherjee, Advocate
State: Bihar
Industry: Agriculture
Dated 30/10/2013
AWARD
By Order No. L-42012/292/2001-IR (CM-II), dated
09-08-2002, the Central Government in the Ministry of
Labour has, in exercise of the powers conferred by clause
(d) of sub-section (1) and sub-section (2A) of Section 10 of
the Industrial Disputes Act, 1947, referred the following
disputes for adjudication to this Tribunal:
SCHEDULE
"Whether the action of the management of Central
Potato Research Centre, Patna in terminating the
service of Sh. Raj Kumar Singh is legal and justitified?
If not, to what relief the workman is entitled to?"
2. The case is received from the Ministry of Labour
on 11.09.2002. After receipt of the reference, both parties
are noticed, the workman along with Sponsoring Union
files their written statement on 27.11.2002. The management
files their written statement 25.02.2003. Rejoinder and
documents are also filed by the parties. Examined the
witnesses from both side.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6715
3. The workman claim is he be regularised as
temporary workman as he has already rendered 240 days
work including Sunday in a calendar year prior to
termination.
4. On the other hand that the workman was a purely
temporary worker and after his work ceases his services
was terminated.
5. It is also submitted by the management, after
termination the workman approached Central
Administrative Tribunal, the lost there.; There after he
approached High Court inWJC 432/2001 and there also his
claim was not accepted.
6. It is submitted by the workman either CAT or the
High Court, failed to appreciate the beneficial provisions
of the I.D. Act, therefore the Tribunal has jurisdiction to
impart justice.
7. But the view of this Tribunal is while when the
workman has already lost in two consecutive forums, this
forum will not extend any liberal hand to the workman.
8. Considering the facts and circumstances of this
case, I hold that the action of the management of Central
Potato Research Centre, Patna in terminating the service of
Sh. Raj Kumar Singh is legal and justified, and he is not
entitled to get any relief, Accordingly award answered
against the workman.
This is my award
R.K. SARAN, Presiding Officer
ubZ fnYyh] 18 uoEcj] 2013
dkñvkñ 2610.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj eSllZ ,l lh lh
,y ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèdj.k@Je U;k;ky;] gSnjkckn ds iapkV ¼lanHkZ la[;k 11@2012½
dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 18@11@2013 dks izkIr
gqvk FkkA
[lañ ,y&22012@9@2012&vkbZvkj ¼lh ,e&II½]
chñ ,eñ iVuk;d] MsLd vf/kdkjh
New Delhi, the 18th November, 2013
S.O. 2610.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref. 11/2012 of
the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Hyderabad as shown in the Annexure, in the industrial
dispute between the management of M/s. Singareni
Collieries Co. Ltd., and their workmen, received by the
Central Government on 18/11/2013.
[No. L-22012/9/2012-IR(CM-II)]
B.M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR
COURT AT HYDERABAD
Present : Smt. M. Vijaya Lakshmi,
Presiding Officer
Dated the 27th day of August, 2013
Industrial Dispute No. I.D. 11/2012
Between:
The General Secretary,
(Shri Raiz Ahmed)
Singareni Miners & Engg. Workers Union (HMS),
C-34, Sector-I,
Godavarikhani-505209. Petitioner
AND
The General Manager,
M/s. Singareni Collieries Company Limited,
Bhupalapally Area, Bhupalapally,
Warangal Dist.-506169.
Respondent
Appearances:
For the Petitioner:
NIL
For the Respondent:
NIL
AWARD
The Government of India, Ministry of Labour by its
order No. L-22012/9/2012-IR(CM-II) dated 28.3.2012 referred
the following dispute between the management of
M/s. Singareni Collieries Company Ltd., and their workman
under Section 10(1) (d) of the I.D. Act, 1947 for adjudication
to this Tribunal. The reference is,
SCHEDULE
‘‘Whether the action the management of General
Manager, M/s Singareni Collieries Company Ltd.,
Bhupalapalli Area, in terminating the services of
Sri Bandirala Venkateswarlu, Ex-Coal Filler, KTK-5
Incline, Bhupalapalli Area with effet from 5.9.2007 is
fair and justified? To what relief the concerned
workman is entitled?’’
The reference is numbered in this Tribunal as I.D.
No. 11/2012 and notices were issued to the parties.
2. The case stands posted for filling of claim statement
and documents. Petitioner union called absent and there is
no representation. Claim statement not filed. Inspite of
giving fair opportunity and since the year 2012 claim
statement is not filed. In the circumstances, taking that
Petitioner union is not interested in the proceedings,
petition is dismissed.
Award passed accordingly, Transmit.
6716
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
Dictated to Smt. P. Phani Gowri, Personal Assistant
transcribed by her and corrected by me on this the 27th
day of August, 2013.
M. VIJAYA LAKSHMI, Presiding Officer
Appendix of evidence
Witnesses examined for the
Witnesses examined for the
Petitioner
Respondent
NIL
NIL
Documents marked for the Petitioner
NIL
Documents marked for the Respondent
NIL
ubZ fnYyh] 18 uoEcj] 2013
dkñvkñ 2611.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj eSllZ ,l lh lh
,y ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqcaè esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/kdj.k@Je U;k;ky;] gSnjkckn ds iapkV ¼lanHkZ la[;k 58@2012½
dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 18@11@2013 dks izkIr
gqvk FkkA
[lañ ,y&22012@126@2012&vkbZvkj ¼lh ,e&II½]
chñ ,eñ iVuk;d] MsLd vf/kdkjh
New Delhi, the 18th November, 2013
S.O. 2611.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 58/2012)
of the Cent.Govt.Indus.Tribunal-cum-Labour Court,
Hyderabad as shown in the Annexure, in the industrial
dispute between the management of M/s. Singareni
Collieries Co. Ltd., and their workmen, received by the
Central Government on 18/11/2013.
[No. L-22012/126/2012-IR (CM-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR
COURT AT HYDERABAD
Present : Smt. M. Vijaya Lakshmi, Presiding Officer
Dated the 3rd day of October, 2013
Industrial Dispute No. I.D. 58/2012
Between :
The General Secretary,
(Sri Bhandari Satyanarayana)
Singareni Telugu Nadu Trade Union Council (STNTUC),
H.No. 5-295, Indira Nagar,
Opp. Bus Stand, Mancherial,
Adilabad Dist.—504208.
...Petitioner
AND
The General Manager,
M/s. Singareni Collieries Company Limited,
Bellampally Area, Goleti Township,
Adilabad district-504292
....Respondent
Appearances :
For the Petitioner:
NIL
For the Respondent:
Sri S.M. Subhani, Advocate
AWARD
The Government of India, Ministry of Labour by its
Order No. L-22012/126/2012-IR(CM-II) dated 26.9.2012
referred the following dispute between the management of
M/s. Singareni Colleries Company Ltd., and their workman
under section 10(1)(d) of the I.D. Act, 1947 for adjudication
to this Tribunal. The reference is,
SCHEDULE
"Whether the action the Chief General Manager of
M/s. Singareni Collieries Company Ltd., Bellampally
Area, Goleti Township, Adilabad District in
terminating the services of Shri Abbasi Lachaiah,
Ex-Gen. Mazdoor, Goleti No.1 Inc., of Bellampalli Area
with effect from 11.10.2001 is justified or not? To
what relief the applicant is entitled for?"
The reference is numbered in this Tribunal as I.D.
No. 58/2012 and notices were issued to the parties.
2. Case stands posted for appearance of Petitioner
union and for filing of claim statement and documents.
3. Petitioner union called absent and there is no
representation since long time. Claim statement not filed
inspite of giving fair opportunity. In the circumstances,
taking that Petitioner union is not interested in the
proceedings, petition is dismissed.
Award passed accordingly. Transmit.
Dictated to Sri. J. Vijaya Sarathi, UDC transcribed by
him and corrected by me on this the 3rd day of
October, 2013.
M.VIJAYA LAKSHMI, Presiding Officer,
Appendix of evidence
Witnesses examined for the
Witnesses examined for the
Petitioner
Respondent
NIL
NIL
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6717
Documents marked for the Petitioner
NIL
Documents marked for the Respondent
NIL
ubZ fnYyh] 18 uoEcj] 2013
dkñvkñ 2612.—vkS|ksfxd fookn vf/kfu;e] 1947
¼1947 dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj eSllZ
,l lh lh ,y ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds
chp] vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/kdj.k@Je U;k;ky;] gSnjkckn ds iapkV ¼lanHkZ la[;k 44@2011½
dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 18@11@2013 dks izkIr
gqvk FkkA
[lañ ,y&22012@95@2011&vkbZvkj ¼lh,e-II½]
chñ ,eñ iVuk;d] MsLd vf/kdkjh
New Delhi, the 18th November, 2013
S.O. 2612.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 44/2011)
of the Cent.Govt.Indus.Tribunal-cum-Labour Court,
Hyderabad as shown in the Annexure, in the industrial
dispute between the management of M/s. SCCL and their
workmen, received by the Central Government on 18/11/2013.
[No. L-22012/95/2011-IR (CM-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR
COURT AT HYDERABAD
Present: Smt. M. Vijaya Lakshmi, Presiding Officer
Dated the 21st day of August, 2013
INDUSTRIAL DISPUTE NO. I.D. 44/2011
Between:
The General Secretary,
(Sri Bhandari Satyanarayana)
Singareni TNTUC,
H.No. 18-3-90/3, Ganesh Nagar,
Markandeya Colony,
Godavarikhani-505209.
...Petitioner
AND
The General Manager,
M/s. Singareni Collieries Company Limited,
Mandamarri Division,
Mandamarri-504 303.
...Respondent
Appearances :
For the Petitioner:
NIL
For the Respondent:
M/s. P.A.V.V.S. Sarma & Vijaya
Lakshmi, Advocates
AWARD
The Government of India, Ministry of Labour by its
Order No. L-22012/95/2011-IR(CM-II) dated 2.8.2011 referred
the following dispute between the management of M/s.
Singareni Collieries Company Ltd., and their workman under
section 10(1)(d) of the I.D. Act, 1947 for adjudication to
this Tribunal. The reference is,
SCHEDULE
"Whether the action the Management of General
Manager of M/s. Singareni Collieries Company Ltd.,
Mandamarri Division, Adilabad District in dismissing
the services of Shri Gaini Kumar, Ex-Timberman,
Shantikhani Mine of SCCL/Mandamarri Division
w.e.f. 18.10.2007 is justified? To what relief the
workman concerned is entitled to?"
The reference is numbered in this Tribunal as I.D.
No. 44/2011 and notices were issued to the parties.
2. The Case stands posted for appearance of
Petitioner union and for filing of claim statement and
documents. Petitioner union called absent and there is no
representation. Claim statement not filed since 2011 inspite
of giving fair opportunity. In the circumstances, taking that
Petitioner union is not interested in the proceedings,
petition is dismissed.
Award passed accordingly. Transmit.
Dictated to Smt. P. Phani Gowri, Personal Assistant
transcribed by her and corrected by me on this the 21st
day of August, 2013.
M. VIJAYA LAKSHMI, Presiding Officer
Appendix of evidence
Witnesses examined for the
Witnesses examined for the
Petitioner
Respondent
NIL
NIL
Documents marked for the Petitioner
NIL
Documents marked for the Respondent
NIL
6718
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
ubZ fnYyh] 18 uoEcj] 2013
dkñvkñ 2613.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj eSllZ ,l lh lh
,y ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/
kdj.k@Je U;k;ky;] gSnjkckn ds iapkV ¼lanHkZ la[;k 31@2011½ dks
izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 18@11@2013 dks izkIr gqvk
FkkA
[lañ ,y&22012@65@2011&vkbZvkj ¼lh,e&II½]
chñ ,eñ iVuk;d] MsLd vf/kdkjh
New Delhi, the 18th November, 2013
S.O. 2613.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 31/2011)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Hyderabad as shown in the Annexure, in the industrial
dispute between the management of M/s. Singareni
Collieries Co. Ltd., and their workmen, received by the
Central Government on 18/11/2013.
[No. L-22012/65/2011-IR(CM-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR
COURT AT HYDERABAD
Present : Smt. M. Vijaya Lakshmi, Presiding Officer
Dated the 21st day of August, 2013
INDUSTRIAL DISPUTE No. I.D. 31/2011
Between :
The General Secretary,
(Sri Bandari Satyanarayana)
Singareni TNTUC,
H.No. 18-3-90/3, Ganesh Nagar,
Markandeya Colony,
Godavarikhani-505209.
....Petitioner
AND
The General Manager,
M/s. Singareni Collieries Company Limited,
Mandamarri Division,
Mandamarri-504 303.
....Respondent
Appearances :
For the Petitioner:
NIL
For the Respondent:
NIL
AWARD
The Government of India, Ministry of Labour by its
Order No. L-22012/65/2011-IR(CM-II) dated 11.7.2011
referred the following dispute between the management of
M/s. Singareni Collieries Company Ltd., and their workman
under section 10(1)(d) of the I.D. Act, 1947 for adjudication
to this Tribunal. The reference is,
SCHEDULE
“Whether the action the management of General
Manager of M/s. Singareni Collieries Company Ltd.,
Mandamarri Division, Adilabad District in dismissing
the services of Sri Kotha Thirupathi, Ex-Badli Filler,
KK-5A Inc., of Mandamarri Division w.e.f. 11.5.2002
is justified? To what relief the workman concerned is
entitled to?’’
The reference is numbered in this Tribunal as I.D.
No. 31/2011 and notices were issued to the parties.
2. The case stands posted for filing of claim statement
and documents. Petitioner union called absent and there is
no representation. Claim statement not filed since 2011
inspite of giving fair opportunity. In the circumstances,
taking that Petitioner union is not interested in the
proceedings, petition is dimissed.
Award passed accordingly, Transmit.
Dictated to Smt. P. Phani Gowri, Personal Assistant
transcribed by her and corrected by me on this the 21st
day of August, 2013.
M. VIJAYA LAKSHMI, Presiding Officer
Appendix of evidence
Witnesses examined for the
Witnesses examined for the
Petitioner
Respondent
NIL
NIL
Documents marked for the Petitioner
NIL
Documents marked for the Respondent
NIL
ubZ fnYyh] 19 uoEcj] 2013
dkñvkñ 2614.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj eSllZ ,e lh lh ,y
ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaè
esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k@Je
U;k;ky;] Hkqous'oj ds iapkV ¼lanHkZ la[;k 87@2012½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 19@11@2013 dks izkIr gqvk FkkA
[lañ ,y&22012@142@2012&vkbZvkj ¼lh,e&II½]
chñ ,eñ iVuk;d] MsLd vf/kdkjh
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6719
New Delhi, the 19th November, 2013
S.O. 2614.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 87/2012)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Bhubaneswar as shown in the Annexure, in the industrial
dispute between the management of Jagannath Area of
MCL, and their workmen, received by the Central
Government on 19/11/2013.
[No. L-22012/142/2012-IR(CM-II)]
B.M. PATNAIK, Desk Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL- CUM-LABOUR COURT,
BHUBANESWAR
Present : Shri J. Srivastava, Presiding Officer,
C.G.I.T.-cum-Labour Court, Bhubaneswar
INDUSTRIAL DISPUTE CASE No. 87/2012
Date of Passing Order-6th August, 2013
Between:
The Chief General Manager,
Jagannath Area of MCL
P.O. South Balanda, Dist. Angul,
Orissa.
...1st Party-Managements.
AND
The General Secretary, Talcher,
Koila Khani Mazdoor Sangh, At. Jamde Bhavan,
P.O. South Balanda, Dist. Angul,
Orissa-759116.
...2nd Party-Union
Appearances:
None.
...
For the 1st Party-Management.
None.
...
For the 2nd Party-Union.
ORDER
Case taken up. None of the parties is present. No
statement of claim has been filed despite sending two
notices, one on 28.1.2013 by ordinary post and the other
on 7.5.2013 by regd. post, though the authorized
representative for the 2nd Party-Union appeared in the
court on 26.2.2013 and 26.6.2013. The 2nd Party-Union has
not even explained the reasons for not filing the statement
of claim nor moved any petition for time. Without the
pleadings of the parties the dispute under reference cannot
be adjudicated. Hence the reference is liable to be returned
to the Government unanswered. Accordingly the reference
is returned to the Government unanswered for taking
necessary action at its end.
JITENDRA SRIVASTAVA, Presiding Officer
ubZ fnYyh] 19 uoEcj] 2013
dkñvkñ 2615.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj eSllZ lhvkbZ,Q,
ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaè
esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k@Je
U;k;ky; Hkqous'oj ds iapkV ¼lanHkZ la[;k 19@2003½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 19@11@2013 dks izkIr gqvk FkkA
[lañ ,y&42012@22@2003&vkbZvkj ¼lh,e&II)]
chñ ,eñ iVuk;d] MsLd vf/kdkjh
New Delhi, the 19th November, 2013
S.O. 2615.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 19/2003)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Bhubaneswar as shown in the Annexure, in the industrial
dispute between the management of Central Institute of
Freshwater Aquaculture (CIFA), and their workmen,
received by the Central Government on 19/11/2013.
[No. L-42012/22/2003-IR (CM-II)]
B.M. PATNAIK, Desk Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT, BHUBANESWAR
Present : Shri J. Srivastava, Presiding Officer,
C.G.I.T.-cum-Labour Court, Bhubaneswar
INDUSTRIAL DISPUTE CASE No. 19/2003
Date of Passing Award-17th July, 2013
Between :
The Director, Central Institute of
Freshwater Aquaculture, Kausalyagang,
Bhubaneswar.
....1st Party-Management.
AND
Their workmen Shri Harekrushna Sahu and
Others C/o Sh. Maheswar Sahu,
At. Uttarasasan, PO. Kausalyagang,
P.S. Pipli, Dist. Puri.
.... 2nd Party-Workmen.
Appearance :
Shri K.C. Das,
....
For the 1st Party-
Admn. Officer
Management
Shri Prakash Kumar Baul
....
For Himself and
Other workmen.
AWARD
The Government of India in the Ministry of Labour
vide its letter No. L-42012/22/2003-IR(CM-II), dated
6720
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
11.07.2003 has referred an industrial dispute existing
between the employers in relation to the management of
Central Institute of Freshwater Aquaculture (CIFA) and
their workmen 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 in respect of the following
matter:—
“Whether the action of the management of Central
Institute of Freshwater Aquaculture, Kausalyagang
in terminating the services of S/Shri Harekrushan
Sahu, Bichitrananda Panda, Ghanashyam Swain,
Prafulla Kumar Biswal, Sudam Charan Mohanty,
Prakash Kumar Bhaul and Maharban Mohammad
without complying Section 25 of I.D. Act, making
discrimination between the co-workers, not paying
their wages @1/30th of pay scale of Group 'D'
employees and denying their wages w.e.f. 1.7.2002 is
legal and justified? If not, to what relief the workmen
are entitled?
2. The disputant workmen filed their statement of
claim in which they have alleged that they all were employed
by the management of CIFA, Kausalyagang and had been
working since 1994/1996 continuously till their illegal
termination on 6.8.2002. In June, 1996 they were appointed
against a sponsored project called "Mission Mode Prawn
and Aquaculture shortly known as MMPA. Four workmen
namely Harekrushna Sahu, Bichitrananda Panda,
Ghanashyam Swain, and Prafulla Kumar Biswal, who were
working since 1994, were taken into the said project as in
service candidates and the remaining three were appointed
in the Project as fresh recruits. Initially they were getting
wages @ of Rs. 1500/- per month which was subsequently
enhanced to Rs. 3000/- per month. Even though the tenure
of appointment as mentioned in the appointment order was
up to 31.3.1998 or till the completion of the project
whichever was earlier, the workmen continued to work
regularly till 6.8.2002. Later the completion of the project
was extended up to 31.3.2000 and it was closed on the
same date. After completion of the project all the seven
workmen were allowed to continue by verbal instructions
of the authority and were assigned with different jobs under
the Management. During their service period they were
performing their duties in feed-mill operation, fishing and
other related work of prawn cultivation. The work which
the 2nd Party-workmen were performing is perennial in
nature and being carried on for prawn cultivation in
continuous process from before the sponsoring of the
M.M.P.A. project and is still continuing after closure of the
above project. The Management after completion of the
project tried to change the nature of their employment from
departmental worker to contract worker and asked them to
receive their wages from the contractor. The Management
also threatened to terminate their services if they do not
receive their wages from the contractor. Their monthly
wages were also reduced from Rs. 3000/- to Rs. 2230/- when
the disputant workmen protested against the vindictive,
unlawful and arbitrary action of the management. All of
them excepting one were denied their wages from the month
of May, 2000. The exception was Shri Bichitrananda Panda
who was paid his wages up to August, 2000 and denied
wages from Sept., 2000. Vide order dated 24.1.2002 passed
by the Central Government Industrial Tribunal-cum-Labour
Court, Bhubaneswar in Misc. Case No. 4/2001 the
Management/Opp. Party was directed to make payment to
wages @ of Rs. 3000/- per month to the disputant workmen
and pursuant to that order the 1st Party-Management paid
wages to them till June, 2002. Thereafter adopting vindictive
attitude the Management issued termination order to all
the seven workmen on 6.8.2002 while they were working
continuously from the date of their joining till the date of
termination thereby constituting continuous service of
more than one year as defined under section 25/B of the
Industrial Disputes Act. As such provisions of Section 25-
F of the aforesaid Act are applicable to their case. Neither
any notice nor retrenchment compensation was given to
them prior to termination. Principles of natural justice have
also not been followed by the Management. Continuance
of their service for more than two years after closure of the
MMPA project cannot be said to be within the tenure of
the execution of the said project. Moreover four workmen
were working since 1994 before coming into the MMPA
Project. Many of the workers engaged in various sponsored
projects taken up by the CIFA are allowed to work even
after completion of the project and have been brought to
regular cadre. The termination of the services of the
disputant workmen is therefore illegal and unjustified and
they are entitled to reinstatement with full back wages.
3. As regards grant of 1/30th pay to the disputant
workmen in the pay scale of Group ''D'' employees it has
been submitted that CIFA, Kausalyagang is an unit of Indian
Council of Agriculture and Research under the Ministry of
Agriculture, Government of India and functions under the
guidelines, circulars and notifications issued by the
Government of India/ICAR. The ICAR has issued
guidelines/directions to CIFA to grant 1/30th pay in the
pay scale of Group ''D'' employees to casual workers those
who have completed 240 days of work. The disputant
workmen namely Shri Bichitrananda Panda has been
granted 1/30th pay, but the other disputant workmen having
equal status have not been granted 1/30th pay even after
completion of six to eight years of continuous service. The
Management has also not paid them duty pay from 1.7.2002
till the date of termination for the reasons best known to it
and the matter is said to have been referred to ICAR for
approval. Therefore all the disputant workmen be reinstated
in their services with full back wages from the date of
termination and be paid wages at the rate of 1/30th pay in
the pay scale of Group ''D'' employees and duty pay from
1.7.2002 to 6.8.2002.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6721
4. The 1st Party-Management in its written statement
has alleged that the dispute is not maintainable in as much
as the organization of CIFA is not an industry under section
2(j) of the Industrial Disputes Act, 1947. It is a research
organization and does not manufacture or produce any
goods for commercial purpose. The predominant nature of
job is research in Freshwater Aquaculture etc. The
disputant workmen were employed under a project called
Mission Mode Prawn Aquaculture shortly known as MMPA
project for a specified period. They were appointed till
31.3.1998 or the termination of the project whichever was
earlier. The disputant workmen have no right to claim service
under the CIFA. Initially the project was to complete on
31.3.1998, but the period of completion was extended from
time to time. The project was finally closed on 31.3.2000.
The disputant workmen were allowed to continue to work
till the aforesaid date and were paid wages till that date.
After completion of the project they were allowed to
continue for some residuary ancillary work of the project,
such as guarding and cleaning of machineries, unkeep of
tools and implements and other miscellaneous work of the
said project till the materials are finally shifted from CIFA.
Since funds allotted to the project were exhausted the
disputant workmen were not paid their wages from May,
2000. On direction of the Central Government Industrial
Tribunal-cum-Labour Court, Bhubaneswar passed on a
petition filed by the disputant workmen under section 33-
C(2) of the Industrial Disputes Act they were paid their
wages upto June, 2002 on sanction of additional funds
from the ICAR. Since the disputant workmen were employed
for a particular project for a specific period as stipulated in
their appointment order and they have been terminated
from service on completion of the said project, their
termination cannot be termed as retrenchment under section
2(oo) of the Industrial Disputes Act, 1947 and compliance
of Section 25-F of the said Act is not required. There was
no master and servant relationship between the
Management of CIFA and the disputant workmen. The first
four disputant-workmen as mentioned in Para-4 of their
statement of claim were engaged in different miscellaneous
jobs in 1994, but they were appointment in MMPA project
on their application from 27.6.1996. Their engagement in
the said project is separate from that of their earlier
engagement. Therefore their engagement from 1994 cannot
be said to be continuous. It is not proved that the disputant
workmen were performing the duties of perennial nature
relating to prawn cultivation. It is not a continuous process
of work as alleged. The allegation that the Management
tried to change the nature of their employment from
departmental to contract worker and asked to receive their
wages through contractor is not correct. It is also not correct
that the Management threatened to terminate their services
and stop payment of wages from May, 2000. There is no
question of regularizing the disputant workmen in regular
vacancies as they do not fulfill the eligibility criteria in the
post and have not come through due selection process.
Since the disputant workmen were appointed under a
sponsored MMPA project, the principle of 1/30th of pay of
Group ''D'' employees is not applicable to them. Shri
Bichitrananda Panda was given 1/30th pay for three months
only from June, 2000 to August, 2000 since he had
performed the duties of Group ''D'' employee as per
certificates furnished by the concerned Scientists. The
termination or disengagement of the disputant workmen
cannot be said to be illegal or unjustified due to non-
availability of the work.
5. The disputant workmen in their rejoinder have
denied that after closure of the M.M.P.A. project they were
engaged in some residuary and ancillary work of the project,
but have stated that they were engaged for doing the job
in feed mill operation, production of feed, Hatchery
operation and production including sale of prawn seeds,
culture activities including brood stock raising and other
ancillary work such as guarding and up-keep of tools and
machineries etc. They have further alleged that about 100
workmen who were recruited on later dates and were junior
to the disputant workmen are allowed continuous
engagement under the 1st Party-Management. Termination
of services of the disputant workmen on the plea of closure
of project is illegal, unjustified and violative of the
provisions of the Industrial Disputes Act, 1947. There exists
relationship of employer and employee between the
Management of CIFA and the disputant workmen as all of
them were recruited by the Management of CIFA and
working under the control and supervision of CIFA and
were paid their wages by CIFA. The work which was being
done by the disputant workmen is of perennial nature and
still in existence being done by engaging fresh persons in
their place.
6. On the pleadings of the parties, following issues
were framed.
ISSUSES
1. Whether the reference is maintainable?
2. Whether the termination of services of S/Shri
Harekrushna Sahu, Bichitra Nanda Panda,
Ghanshayam Swain, Prafulla Kumar Biswal, Sudam
Charan Mohanty, Prakash Kumar Bhaul and
Meharban Mohammad by the management of
CIFA is legal and justified?
3. Whether the workmen are entitled to wages
@ 1/30th of pay scale of Group ''D'' employees
and if so, whether they are entitled to such wages
w.e.f. 01.07.2002?
4. If not, to what relief the workmen are entitled?
7. The 1st Party-Management has examined
M.W.-1 Shri Chakradhar Sahoo and relied upon six
documents marked as Ext.-A to Ext.-E/1. On the
remand of the case by the Hon'ble High Court the
6722
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
1st Party-Management has further examined one more
witness namely Shri A.K. Prusty.
8. The disputant workmen have examined
Shri Prakash Kumar Bhaul as W.W.-1 and Shri Bichitrananda
Panda as W.W.-2 and relied upon several documents
marked as Ext.-1 to Ext.-11. The disputant workmen on
remand of the case have further examined Shri Harekrushna
Sahu.
FINDINGS
ISSUE No. 1
9. The 1st Party-Management has challenged the
maintainability of the reference on the ground that the
organization of CIFA is not an "industry" as defined under
Section 2(j) of the Industrial Disputes Act, 1947. It is a
research organization and does not manufacture or produce
any goods for commercial purpose. My learned
predecessor while deciding this issue in his Award dated
30.10.2007 has misdirected himself and held that "this
Tribunal has no jurisdiction to try the same for the reference
not being in tune with the requirements of Section 10 of
the Industrial Disputes Act", whereas the issues raised by
him in coming to this conclusion were not picked up by
any party to the reference nor come up to oust the
jurisdiction of this Tribunal. The disputant workmen
challenged the above findings of this Tribunal before the
Hon'ble High Court of Orissa in Writ Petition No. 13974/
2008. The Hon'ble High Court of Orissa vide its order dated
17.3.2011 has set aside the findings and remanded back
the case to answer Issue No. 2 only with a direction to give
opportunity to the parties, if either of them wants to adduce
further evidence. Therefore it is implied in the order of the
Hon'ble High court that this Tribunal has got jurisdiction
to decide this reference holding its maintainability.
10. However in the definition of "industry" under
clause (j) of Section 2 "any systematic activity carried on
by Co-operation between an employer and his workmen
for the production, supply or distribution of goods or
services with a view to satisfy human wants or wishes has
been enacted whether or not any capital has been invested
or whether or not such activity is carried on with a motive
to make any gain or profit, but such an enterprise does not
include any agricultural operation except when such
agricultural operation is carried on in an integrated manner
with any other activity and such other activity is the
predominant one.
11. In the four corners of this definition I do not find
that the organization of CIFA is not covered under the
definition of "Industry". Moreover this issue also seems
to have been foregone by the 1st Party-Management as
nothing has been said by it in its argument. Thus it is held
that the reference is maintainable. This issue is accordingly
decided in the affirmative.
ISSUE No. 2
12. It is an admitted case of both the parties that the
disputant workmen were appointed by the 1st Party-
Management against a sponsored project called "Mission
Mode Prawn and Aquaculture", shortly known as MMPA
in June, 1996 upto 31.3.1998 or till the completion of the
project whichever was earlier. Their term of appointment
was extended upto 31.3.2000 with the extension of the
project till that date. The project was closed on 31.3.2000,
but all the disputant workmen were allowed to continue to
work by verbal instruction till 6.8.2002 and were assigned
with different jobs, according to the disputant workmen
under the 1st Party-Management such as feed mill
operation, fishing and other related work of prawn
cultivation, and according to the 1st Party-Management in
residuary and ancillary work of the project, such as
guarding and cleaning of machineries, upkeep of tools and
implements and other miscellaneous work of the said project
till the materials are finally shifted from CIFA. The
appointment to the disputant workmen was given upto
31.3.1998 or till the termination of the project, whichever is
earlier as is admitted by the parties and is also reflected
from the appointment letter dated 22.6.1996 marked as Ext.-
E. Another document Ext.-D shows that the duration of the
project was extended upto March, 2000. It has been
stipulated in the Memorandum of appointment/selection,
Ext.-E, which is similar to the Memorandum of appointment/
selection issued to other disputant workmen, that "the
individual shall not be a regular employee of the Institute
and hence shall not be entitled to service benefits available
to the regular staff". It has also been stipulated in the
Memorandum that "the award of the post shall not confer
on the individual any right to seek absorption in CIFA on
termination of the Project".
13. Here the point of dispute between the parties is
that after closure of the Project the disputant workmen were
allowed to continue to work till 6.8.2002 and without giving
prior legal notice of termination service and payment of
compensation as required under section 25-F of the
Industrial Disputes Act, 1947 their services were dispensed
with. Hence, according to then, their termination is illegal
and unjustified.
14. There is admittedly no dispute that the disputant
workmen had worked till 6.8.2002, i.e. for more than two
years after closure of the project while their appointment
letters stipulated that their services will terminate with the
closure of the project. When the disputant workmen were
allowed to work continuously for more than two years after
closure of the project, it is to be assumed that they were
given fresh appointment or engagement by the 1st Party-
Management and in that circumstance they cannot be said
to be engaged against the M.M.P.A. project, though
payment of their wages may be made out of the budget or
finance sanctioned for the above project. Therefore
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6723
rendition of continuous service for more than 240 days
during a period of 12 calender months preceding the date
of their termination makes the 1st Party-Management liable
for compliance of provisions of Section 25-F of the Industrial
Disputes Sct, 1947. Retrenchment under clause (oo) of
Section (2) of the aforesaid Act means the termination by
the employer of the services of a workman for any reason,
whatsoever, otherwise than as a punishment inflicted by
way of disciplinary action. Since the disputant workmen
were allowed to continue to work after closure of the project
it will mean either a fresh contract of employment was
created or renewal of contract of employment was made
between the employer and the workmen. Therefore
termination of services of the disputant workmen without
compliance of provisions of Section 25-F of the Industrial
Disputes Act, 1947 cannot be treated as legal and justified.
This issue is accordingly decided in favour of the disputant
workmen and against the 1st Part-Management.
ISSUE No. 3
15. The disputant workmen have claimed wages at
the rate of 1/30th of pay scale of Group-D employees as per
guidelines of the ICAR on the ground that they had
completed 240 days of work as casual workers seeking
similarity to the case of Shri Bichitrananda Panda who was
granted 1/30th of pay admittedly for three months from
June, 2002 to August, 2002. According to the 1st Party-
Management Shri Bichitrananda Panda had performed the
duties equal to those of Group-D employees for the
aforesaid three months as per certificates furnished by the
concerned scientists under whom he had worked. Further
the disputant workmen are not eligible for 1/30th pay of
Group-D employees as they were engaged under a
sponsored project and have not filed any proof of
performing duties of Group-D employees. In my view the
disputant workmen are not entitled to this benefit in terms
of their letters of appointment. Even for the extended period
they had worked as casual labourers as earlier. Hence their
engagement cannot be given temporary status for
entitlement of 1/30th pay of Group-D employees from
1.7.2002. Therefore this issue is decided in the negative
and against the disputant workmen.
ISSUE No. 4
16. In view of the finding recorded against Issue No.
2 above, the termination of services of the disputant
workmen is found to be illegal and unjustified. But they
cannot be reinstated in their respective posts as the project
against which they were appointed has come to a close
and a period of more than 11 years is going to expire since
then. However they are entitled to some appropriate
compensation which, in my view shall be Rs. 20,000/- to
each of the disputant workmen in addition to the benefits
accrued under Section 25-F of the Industrial Disputes Act,
1947 which entitles them to get fifteen days average pay
for every completed year of continuous service or any part
thereof in excess of six months as retrenchment
compensation and one month's wages in lieu of notice as
required.
17. The 1st Party-Management is, therefore, directed
to pay a sum of Rs. 20,000/- to each of the disputant
workmen as compensation in place of reinstatement of their
services and one month's wages in lieu of statutory notice
as required under section 25-F of the Industrial Disputes
Act, besides fifteen days average pay for every completed
year of continuous service of any part thereof in excess of
six months within three months from the date of publication
of the award.
18. This reference is answered accordingly.
JITENDRA SRIVASTAVA, Presiding Officer
ubZ fnYyh] 19 uoEcj] 2013
dkñvkñ 2616.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj eSllZ ,e lh
,y ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/kdj.k@Je U;k;ky;] Hkqous'oj ds iapkV ¼lanHkZ la[;k 89@2012½
dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 18@11@2013 dks izkIr
gqvk FkkA
[lañ ,y&22012@166@2012&vkbZ vkj ¼lh,e&II½]
chñ ,eñ iVuk;d] MsLd vf/kdkjh
New Delhi, the 19th November, 2013
S.O. 2616.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref. 89/2012 of
the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Bhubaneswar as shown in the Annexure, in the industrial
dispute between the management of Jagannath Area,
Mahanadi Coal Fields Ltd., and their workmen, received by
the Central Government on 19/11/2013.
[No. L-22012/166/2012-IR(CM-II)]
B. M. PATNAIK, Desk Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT, BHUBANESWAR
Present :
Shri J. Srivastava,
Presiding Officer, C.G.I.T.-cum-Labour
Court, Bhubaneswar.
Industrial Dispute Case No. 89/2012
Date of Passsing Order-25th July, 2013
Between :
The General Manager,
Jagannath Area, Mahanadi Coal Fields Ltd.,
Po. Talcher, Distt., Angul, Orissa.
..... 1st party-Management
6724
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
(And)
The General Secretary, Talcher Koila
Khani Mazdoor Sangh, At. Jamde Bhavan,
Po. South Balanda, Distt. Angul, Orissa.
........... 2nd Party-Union.
Appearances:
For the 1st Party
…
None
Management
For the 2nd Party
…
None
Workman
ORDER
Case taken up. Both the parties are absent. The 2nd
party-Union was to file the statement of claim in response
to the order of reference within fifteen days from the date
of its receipt, but no statement of claim was filed within the
stipulated time. Hence a notice by ordinary post was sent
to the 2nd Party-Union, but the 2nd Party-Union failed to
file any statement of claim by the date fixed. Thereafter a
second notice was issued to the 2nd Party-Union under
regd. Cover on 7.6.2013, but even then neither any office
bearer of the 2nd Party-Union appeared nor filed the
statement of claim. Thus the Union has not taken any
steps to prosecute its case till to day even after lapse of a
period of nearly eight months.
2. Therefore it appears that the 2nd Party-Union is
either not interested in prosecuting its case or has settled
the case amicably with the Management out of the court.
The case cannot be allowed to linger on indefinitely when
the statute requires it to be decided within three months.
3. In the above circumstances a no-dispute award is
to be passed in the case. Accordingly a non-dispute award
is passed.
4. The reference is answered in the above terms.
JITENDRA SRIVASTAVA, Presiding Officer
ubZ fnYyh] 19 uoEcj] 2013
dkñvkñ 2617.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj eSllZ , vkbZ
fyfeVsM ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/kdj.k@Je U;k;ky; Hkqous'oj ds iapkV ¼lanHkZ la[;k 2@2012½
dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 19@11@2013 dks izkIr
gqvk FkkA
[lañ ,y&22012@176@2011&vkbZvkj ¼lh ,e&II)]
ch ,e iVuk;d] MsLd vf/kdkjh
New Delhi, the 19th November, 2013
S.O. 2617.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref. 2/2012 of the
Cent. Govt. Indus. Tribunal-cum-Labour Court,
Bhubaneswar as shown in the Annexure, in the industrial
dispute between the management of Atlanta Infrastructure
Ltd. and their workmen, received by the Central Government
on 19/11/2013.
[No. L-22012/176/2011-IR(CM-II)]
B.M. PATNAIK, Desk Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT, BHUBANESWAR
Present:
Shri J. Srivastava,
Presiding Officer, C.G.I.T.-cum-Labour
Court, Bhubaneswar.
INDUSTRIAL DISPUTE CASE No. 2/20012
Date of Passing Order - 29th July, 2013
Between:
M/s. Atlanta Infrastructure Ltd.,
101, Shree Ambasanti Chambers, Opp: Hotel
Leela, Andheri Kurla Road, Andheri East,
Mumbai - 400 059
... 1st Party-Management.
(And)
Their Workman Shri Sanatan Bhutia,
At. Pandarabarania, Po. Bhuda Park,
P.S. Banarpal, Angul.
... 2nd Party-Workman.
Appearances:
For the 1st Party
…
None
Management
For the 2nd Party
…
None
Workman
ORDER
This reference has come to this Tribunal/Labour
Court vide letter No. L-22012/176/2011-IR(CM-II), dated
4.1.2012 of the Government of India, Ministry of Labour for
adjudication of an industrial dispute between the employers
of M/s. Atlanta Limited, 101, Shree Ambasanti Chamers,
Mumbai and their workman.
2. While sending the copy of letter of reference to
the parties the 2nd Party-workman raising the dispute was
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6725
directed to file a statement of claim complete with relevant
documents, list of reliance and witnesses with the Tribunal
within fifteen days of the receipt of the order of reference,
but the 2nd Party-workman did not comply the direction.
Hence a notice was issued to the 2nd Party-workman on
23.2.2012 for filing the statement of claim, and thereafter
to both the parties on 7.5.2012 and 10.8.2012 to appear
before Lok Adalat for settlement of dispute. But none of
the parties appeared on the dates fixed. Since the case
had lingered for more than eleven months till then, a notice
was ordered to be issued by regd. post to the 2nd Party-
workman vide order dated 20.12.2012 which was issued
on 7.1.2013 fixing 31.1.2013 for filing of statement of claim
and for further order. But the 2nd Party-workman failed to
appear till today inspite of fixing four or five dates
hereafter. Now it seems that the 2nd Party-workman is
either not-interested in prosecuting his case or has settled
the dispute amicably with the Management out of the
court. The case cannot be allowed to linger on indefinitely
and since a period of more than one and half years has
expired appropriate order has to be made to dispose of
the case.
3. In the given circumstances, a no-dispute award is
required to be passed and accordingly a no-dispute award
is passed in the case.
4. The reference is answered in the above terms.
JITENDRA SRIVASTAVA, Presiding Officer
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New Delhi, the 19th November, 2013
S.O. 2618.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref. 45/2011 of
the Cent.Govt.Indus.Tribunal-cum-Labour Court, No. 1,
New Delhi as shown in the Annexure, in the industrial
dispute between the management of Punjab National Bank
and their workmen, received by the Central Government on
19/11/2013.
[No. L-12011/35/2003-IR(B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
BEFORE DR. R.K. YADAV, PRESIDING OFFICER,
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL
No. 1, KARKARDOOMA COURTS COMPLEX, DELHI
I. D. No. 45/2011
1. The President,
All India Bank Deposit Collectors' Federation,
TKV Memorial, P.B. No. 3673,
College P.O. Mahakavi Bharathiyar Road,
Ernakulam-682 035 (Kerala).
2. The Organizing Secretary,
All India Bank Deposit Collectors
Workmen Union ® 772,
# 1439, Renukacharya Temple Street,
K.P. Agrahara, Mysore-570 024.
...Workmen
Versus
1. The Officer on Special Duty,
Indian Banks' Association Local Chapter,
Punjab National Bank,
C/o P.N.B. ECE House, 2nd Floor,
K.G.Marg, New Delhi-110 001.
2. The Chairman,
Indian Banks' Association,
Stadium House 6th Floor,
Block 3, Veer Nariman Road,
Mumbai -400 020.
...Managements
AWARD
Daily small saving scheme, known as Pigmy Deposit,
was started by Syndicate Bank in the year 1927 to inculcate
habit of saving and banking amongst public with limited
means and saving capacity, such as middle income group,
small traders, businessmen, artisans, self-employed persons
and housewives etc. Deposit collectors were engaged by
the bank to visit business premises and residence of the
customers to collect money. The scheme became popular
and Syndicate Bank became a giant. Daily small saving
schemes were started by other banks too. In various banks,
the scheme was known as with names Pigmy Deposits,
Adarsh deposits, Tiny Deposits, Janata Deposits, Nitya
Nidhi Deposits, Laghu Bachat Yojna, Honey bees etc.
Deposit collectors were authorised by the banks to collect
money from the public, on which collections they were
paid commission by the banks. No minimum qualification
and age limit was prescribed for the deposit collectors.
Deposit collectors felt that the commission, earned by them
on the deposits, was too meager. They belaboured under a
belief that their status should be at par with the employees
of the banks. To project their grievances, the deposit
6726
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
collectors organized and formed a union with the name All
India Bank Deposit Collectors Federation (hereinafter
referred to as the Federation). The Federation took up their
cause and raised demands for redressal of their grievances.
When the demands were not conceded to by the banks,
where the deposit collectors were engaged, the Federation
raised an industrial before the Conciliation Officer. The
said dispute was referred for adjudication to the Industrial
Tribunal, Hyderabad, against 11 Banks. Subsequently, a
corrigendum was issued and 37 other banks were made
parties to the dispute. The Industrial Tribunal, Hyderabad,
passed an award on 22.12.1988 granting relief of absorption
in services of the banks. Deposit collectors were granted
fall back wages and incentive remuneration in case they
opt not be regularized or have crossed the age of 45 years.
On judicial review, relief of regularization in service of the
bank(s) was set aside and grant of fall back wages and
incentive remuneration was confirmed. Since 1988, prices
have gone up and the deposit collectors felt that their fall
back wages are not enough, they approached the Federation
and the latter raised an industrial dispute for enhancement
of fall back wages and incentive remuneration, available to
the deposit collectors pursuant to award dated 22.12.1988.
Conciliation Officer called Indian Banks Association
(hereinafter referred to as the Association) for settlement
of the dispute. The Association claimed that there was no
privity of contract and the deposit collectors were not
entitled to enhancement of fall back wages and incentive
remuneration. Since conciliation proceedings ended into
failure, the Conciliation Officer submitted his failure report
to the appropriate Government. On consideration of failure
report, so submitted, the appropriate Government referred
the dispute to this Tribunal for adjudication, vide order
No.L 12011/35/2003-IR(B-II), New Delhi, dated 06.08.2003,
with following terms:
"Whether the demand of All India Banks Deposit
Collectors' Federation for linkage of fall back wages
of Rs.750.00 as determined by award dated 22.12.1988
by Industrial Tribunal, Hyderabad, which is based
on Consumer Price Index at 500 points(Base 1960 =
100) to the present Consumer Price Index and their
upward revision is justified? Whether the demand of
All India Banks Deposit Collectors' Federation for
reimbursement of conveyance expenses at revised
and enhanced rate is justified? If so, what relief the
said deposit collections, employed by various banks'
represented by the Indian Banks' Association, are
entitled to and from which date?"
2. Claim statement was filed by the Federation,
pleading therein that originally Syndicate Bank evolved
small deposit scheme known as Pigmy Accounts in South
India through deposit collectors in 1927. Subsequently the
said scheme spread to other parts of the country and was
adopted by several other banks, including nationalized
banks. The banks appointed deposit collectors to augment
collection of money from account holders. The Federation
claims that the deposit collectors should be governed by
service conditions at par with bank employees. Their
demands in that regard was not considered by the banks.
As such, a conflict arose between the deposit collectors
and the banks relating to their service conditions. The said
dispute between the deposit collectors and 11 Banks was
referred by the appropriate Government for adjudication to
the Industrial Tribunal, Hyderabad. Subsequently, by way
of issuance of corrigendum, 37 other banks were made
parties to the dispute. Terms of the dispute, which was
referred for adjudication to the Industrial Tribunal were as
follows:
"Whether demand of the commission agents or as
the case may be, deposit collectors engaged in the
banks listed in the annexure that they are entitled to
pay scales, allowances and other service conditions
available to regular clerical employees of those banks
is justified? If not, to what relief the workmen are
entitled to and from which date?"
3. Claimants involved in that dispute were called by
different names, such as Pigmy Agents, NND Agents, JMD
Agents, Honey Bees etc. Though they were known by
different names, yet they performed same duties such as
daily collection of money from small depositors by going
to their houses and work places to canvass business. The
deposit collectors were working with the banks for
remuneration since long. The scheme of daily visits played
a vital role in the growth of Syndicate Bank and large number
of other banks in the country. By virtue of these deposits,
Syndicate Bank grew from a pigmy to a giant. Success of
Syndicate Bank made other banks to launch the scheme
with stupendous expansion of their branches, after
nationalization of the banks. The scheme spread all over
the country. The deposit collectors have to perform duties
of traveling, collection of cash daily from small depositors,
do work of accounting and remittance of such collection to
the banks. They have to distribute receipts of the
customers. They obtain applications from the depositors
alongwith their specimen signatures and deliver the same
to the banks with their counter signatures. Daily collection
of deposits are generally entered in daily collection
statement with counter foil for each customer and each
days' collection is to be deposited in the bank on the next
day. Particulars, entered in small deposits daily collection
statement, are prepared and totals are checked and tallied
with credit vouchers prepared by the deposit collectors at
the bank(s) premises. In some of the banks entries in ledger
folio are also made by the deposit collectors. On receipt of
weekly or monthly collection statement, entries are verified
by supervisory staff. Counterfoils of weekly collection
statement are filed in the bank, checked and signed by
authorized officers and then handed over to the deposit
collectors for distribution to the respective depositors.
Cross checking was maintained by the bank to effectively
¹Hkkx II—[k.M 3(ii)º
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6727
supervise and monitor the work done by the deposit
collectors. The deposit collectors perform work of clerical
and manual nature. Supervisory staff also used to issue
directions to the deposit collectors as to in which manner
they should write accounts and make collections. In some
of the banks, even routes through which deposit collectors
should reach their customers were advised by the
supervisory staff. Many banks issue instructions to the
deposit collectors not to open new accounts, which
instructions were to be obeyed even against their own
interest. Right to control the manner of work was vested in
respective banks. Deposit collectors were required to
discharge their duties diligently and honestly and expected
to maintain secrecy. They used to carry identity cards issued
to them by the banks. Respective bank retained the right to
terminate their employment when their acts were considered
prejudicial to the interest of the bank.
4. Deposit collectors mainly perform work of
collection of deposits for which lower rate of interest was
paid by the banks, while the money, so collected, was
utilized by the banks to advance loans to customers at
higher rate of interest. Thus, banks were generating income
out of funds collected by the deposit collectors. Deposit
collectors have no right to obtain deposits at lower rates of
interest and thereby enriching themselves. Deposit
collectors were separate and distinct from independent
contractors. In the claim filed by the Federation before
Industrial Tribunal, Hyderabad, a prayer was made that
minimum wages in the region of Rs. 800.00 at 500 points in
the All India Consumer Price Index for industrial workers
on the basis of comparison of different wage structures in
public sector undertaking may be awarded in their favour.
The Federation claimed only Rs. 750.00, which was linked
to 500 points without claiming any dearness allowance
thereon. Incentive remuneration of 5% on deposits
collected in excess of Rs. 7500.00 was also claimed. Benefits
of weekly holidays, national festivals, annual leave with
wages, sick leave, medical leave and retirral benefits were
also claimed.
5. Industrial Tribunal, Hyderabad, answered the
reference as follows:
(i)
All the deposit collectors and agents who are
below the age of 45 years as on October 1980 (the
date of reference to the Tribunal) shall be
considered for regular absorption in the post of
clerks and cashiers if they are matriculates and
above, including qualified graduates and post
graduates. Those who are absorbed shall be
treated at par with regular clerical employees of
the banks. Those who are qualified with 8th class
and below matriculate shall be considered for
absorption as sub staff by taking qualifying
examination.
(ii) As regards deposit collectors and agents who
are above 45 years of age as on 03.01.1980 and
also those who are unwilling to be absorbed in
regular bank service, they shall be paid fall back
wages of Rs. 750.00 per month linked with
minimum deposit of Rs. 7500.00 per month and
they should be paid incentive remuneration at
2% for collection over and above Rs. 7500.00 per
month and they should also be paid uniform
conveyance allowance of Rs. 50 per month for
deposits of less than Rs.10,000,00 and Rs.100 per
month for deposits of more than Rs. 10,000.00 or
upto or above Rs. 30,000.00 per month. They
should be paid gratuity of 15 days commission
for each year of service rendered.
6. Award dated 22.12.1988, passed by Industrial
Tribunal, Hyderabad, was assailed by Syndicate Bank
before the High Court of Andhra Pradesh. The High Court,
granting writ of Syndicate Bank partly, ruled as follows:
"On conspectus of consideration, the award
reached the conclusion that deposit collectors are
workmen of the respective banks though they are
not and also cannot claim to be regular employees.
In view of the conclusion, it necessarily follows that
the scheme evolved by the Tribunal in Para 69 of the
award for absorption of the deposit collectors who
are below 45 years of age as on 03.10.1980 has to go.
But the award also directed that the deposit collectors
who are above 45 years and those who are not will to
be absorbed as regular employees, be paid fall back
wages of Rs. 750.00 linked with minimum deposit of
Rs. 7500.00 per month plus incentive remuneration
at 2%. Besides such unabsorbed deposit collectors
were also made entitled to conveyance allowance of
Rs. 50 per month for deposit of less than Rs. 10,000.00
and Rs.100 per month for deposits of more than
Rs. 10,000 upto or above Rs. 30,000.00 per month.
Besides, they were also entitled to gratuity of 15
days commission for each year of service rendered.
Now that we find that all deposit collectors are only
workmen and none can be absorbed as regular
employees, all of them have to be treated as only one
category. The award would hence uphold and apply
the decision of the Tribunal for payment of fall back
wages and inventive commission as well as
conveyance allowance and gratuity to the deposit
collectors as workmen. The award has been modified
accordingly."
7. The Association challenged the judgement dated
28.03.1997, handed down by High Court of Andhra Pradesh,
by way of filing of a special leave petition before the Apex
Court. The Apex Court, while disposing the said special
leave petition, ruled as follows:
"We have considered the rival submissions. In our
view, Shri Sharma was right when he submitted that
6728
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
on the basis of evidence before it, the Tribunal has
given findings to the effect that the deposit collectors
are workmen within the meaning of section 2(s) of
the Industrial Disputes Act, 1947. On the evidence
on record, it cannot be said that the finding was
unsustainable. Having been shown relevant
evidence, we are also of the opinion that the Tribunal
correctly arrived at a conclusion that these deposit
collectors were workmen."
8. On the issue of grant of pay scales, allowances &
other service conditions and on continuance of the schemes
the Apex Court concluded thus:
"In the present case, not only are mode of selection
and qualification not comparable but even the work
is not comparable. Work which the deposit collectors
perform is completely different from the work which
regular employees do. There was no question of the
deposit collectors being paid the same pay scales,
allowances and other services conditions as regular
employees of the bank.
...........................................................................................................................
The award also showed no substance in the
contention that these schemes are un-remunerative.
Banks have introduced these schemes because they
want to encourage common man to make small and
regular deposits. As a result of such schemes, number
of depositors have become much large. We have no
doubt that such schemes are continuing because
the banks find them remunerative. Banks have large
collection through such schemes."
9. The Federation pleads that thereafter, bank
managements resorted to reducing rates of commission
from 3.5% to 2% for collection over and above Rs. 7500.00
per month. Bank managements also took steps to recover
allegedly paid excess amount from 1997. Above steps were
illegal and unwarranted. Banks have been paying 3.5%
commission from 1978 to 2002 and subsequently reduced
it to 2%. In fact, the Association mistook the incentive
remuneration as commission. The Federation projects that
incentive remuneration is part of the fall back wages for
doing clerical work in the banks and the commission is for
manual work done by the deposit collectors in collecting
the amount. Industrial Tribunal, Hyderabad, Andhra
Pradesh High Court and the Apex Court did not strike down
the contract between the deposit collectors and the banks,
hence banks were paying 3.5% commission for the manual
work.
10. With the above background, the Federation
presents that linkage of fall back wages of Rs. 750.00,
determined by Industrial Tribunal, Hyderabad, vide award
dated 22.12.1988, which was based on consumer price index
at 500 points (base 1960 = 100 points), has become totally
out of date due to afflux of time and tremendous rise in
prices in last 15 years. The fall back wages are required to
be adjusted upwards, related to the present consumer price
index. Need for upward revision of fall back wages of
Rs. 750.00 per month is obvious. Fall back wages of
Rs. 750.00 was linked to minimum deposit of Rs. 7500.00
per month. This linkage was based on consumer price index
at 500 points. At present, consumer price index stands at
2438 points. Tenth Five year plan has projected annual
growth rate of 8% in GDP as its target. Achievement of
such growth rate will need higher investment accompanied
by improvement in efficiency all round. For financial targets
of increased investment, the country will require substantial
enhanced domestic saving rate alongwith very efficient
and higher absorption of saving for investment. The
Federation went on to narrate that role of all commercial
banks in development of country's economy and
improvement in standard of living has been increasingly
considered critical since beginning of planning with the
series of five year plans. After nationalization of banks,
number of branches of national banks which stood at 41182
in 1983 rose to 46782 in March 2003. Deposits, credits and
loans extended to the customers by the banks have
increased manifolds. Amount of deposits, which was
Rs. 50660 crores in 1983, has risen to Rs. 10,79,381 crores in
March 2003. Credits, which stood at Rs. 34511 crores in
1983, has risen to 535435 crores in March 2003. Therefore,
necessity of mobilizing more and more deposits, especially
from the small depositors, cannot be over-emphasized.
Deposit collectors can contribute to the prosperity of the
banks just as any other segment of its employees working
on regular basis. If the energies and capacities of the deposit
collectors are properly channelized to contribute
substantially to daily deposits by inducing ordinary
citizens to deposit their tiny savings, it may result in
becoming a big stream for the growth and development of
the country. The Federation projects that in an open society
demands for improvement in the basic social fabric cannot
be ignored year after year unless overall savings rate is
stepped up. It is, therefore, imperative to mop up the surplus
funds available with the small investors by making
consistent and constant efforts through deposit collectors
by paying them adequate and proper amount.
11. State Governments have fixed minimum wages
on upward side consistently. In order to show justification
of linkage of fall back wages of the deposit collectors, with
All India Consumer Price Index, the Federation details the
amount of minimum wages, fixed by the Government of
NCT Delhi from time to time, which is reproduced as
follows:
¹Hkkx II—[k.M 3(ii)º
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6729
S.
Date
Unskilled (p.m.)
Clerical (p.m.)
No.
(Rs.)
matriculate (Rs.)
1.
16.03.1988
562
750
2.
01.02.1989
750
1014
3.
01.02.1990
767
1031
4.
01.08.1990
793
1057
5.
01.02.1991
854
1118
6.
01.08.1991
891
1155
7.
01.02.1992
958
1222
8.
01.08.1992
1009
1273
9.
01.02.1993
1078
1342
10.
01.08.1993
1119
1383
11.
01.02.1994
1382
1830
12.
01.08.1994
1420
1868
13.
01.02.1995
1495
1943
14.
01.08.1995
1545
1993
15.
01.02.1996
1677
2125
16.
01.02.1997
1784
2232
17.
01.02.1998
1937
2385
18.
01.02.1999
2348
2796
19.
01.02.2000
2419
2867
20.
01.08.2000
2524
2972
21.
01.02.2001
2579
3072
22.
01.08.2001
2592
3040
23.
01.02.2002
2667.40
3115.40
24.
01.08.2002
2679.70
3127.70
25.
01.02.2003
2783.90
3231.90
12. The Federation asserts that analysis of above
data relating to minimum wages for unskilled workmen would
show that in March 1988 unskilled worker was being paid
Rs. 562.00 per month, which minimum wages rose to
Rs. 2783.90 per month as on 01.02.2003. There has been
increase of 495% from March 1988 to February 2003 for
unskilled worker in Delhi. Matriculate clerk was receiving
minimum wage of Rs. 750.00 per month in March 1988 which
wages has been enhanced to Rs. 3231.90 per month as on
01.02.2003, which projects that there had been an increase
of 415% in the wages of clerks in the period referred above.
13. The Federation demonstrates that the matter can
be viewed from another angle, since there has been steep
increase in consumer price index. In March 1983, consumer
price index was 500 points, which has gone up to 2438
points in 2003. Thus, there had been an increase of 500% in
consumer price index, which fact would justify enhancement
of fall back wages paid to the deposit collectors.
14. The Apex Court had held that deposit collectors
are workmen within the meaning of section 2(s) of the
Industrial Disputes Act, 1947 (in short the Act). Deposit
collectors are required to be compensated properly and
adequately by the banks. The fact that other employees
working in the banks are paid good fair wages and capacity
to pay of the banks is well known, the deposit collectors
have valid claim for enhancement of fall back wages and
conveyance allowance on principles of region and industry.
In Crown Aluminium Works (AIR 1958 SC 30), the Apex
Court ruled that no employer has right to pay less than the
prescribed minimum wages, which fact is also to be borne
in mind in considering the claim for enhancement of fall
back wages. A sum of Rs. 750.00 fixed by Industrial Tribunal,
Hyderabad, is far below even the subsistence level in the
year 2003. Fall back wages cannot be below minimum wages,
fixed by the State Governments from time to time. Concept
of fall back wages would mean that minimum wages must
be paid regardless of all other facts.
15. Some of the settlements, made in the organized
sector viz, steel, power, transport, textiles etc., show that
even a decade back workers employed in these sectors
were getting Rs. 2130.00 to Rs. 2850.00 per month, besides
other fringe benefits like annual increments, variable
dearness allowance, house rent allowance, compensatory
allowance, washing allowance, children education
allowance, transport subsidy and uniforms etc. No such
benefits are available to the deposit collectors.
16. Seventh Bipartite Settlement, entered into by the
banking industry fixes minimum basic pay of sub staff at
Rs. 2750.00 per month, besides dearness allowance, house
rent allowance and city compensatory allowance. Minimum
basic pay for clerical staff has been fixed at Rs. 3020.00 per
month, besides above benefits. Fall back wages for deposit
collectors was fixed at Rs. 750.00 per month, when an
employee of clerical grade in the bank was getting basic
pay of Rs. 520.00 besides above benefits. His total salary
used to come around Rs. 750.00 per month. Minimum wages
of workmen in various industries have gone upwards, as
compared to the year 1983. There is a manifest justification
for enhancement in fall back wages of atleast Rs. 5000.00
for collection of Rs. 50,000.00 per month to compensate the
deposit collectors for increase in cost of living. Deposit
collectors, who collect more than Rs.50,000.00 per month,
may be entitled to commission at 3.5% for an amount
collected above the above Rs. 50,000.00. The Federation
pleads that to avoid conflicts and industrial disputes in
future, payment of fall back wages may be linked with All
India Consumer Price Index. A formula for payment of
dearness allowance may also be devised for the deposit
collectors.
17. The Federation presents that conveyance
allowance fixed by Industrial Tribunal, Hyderabad, needs
enhancement upto Rs. 800.00 per month. A deposit collector
is required to make repeated visits for collection of deposits
and to motivate small investors to deposit in commercial
banks. Conveyance allowance fixed by Industrial Tribunal,
Hyderabad, was based on conditions prevalent in the year
1988. During last 15 years, there has been a phenomenal
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THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
increase in petrol prices from Rs. 9.00 per litre in 1988 to
Rs. 33 per litre in February 2003. There has been a steady
increase in purchase price of scooter/motor cycles. Even if
one has to travel by public transport, charges have gone
up phenomenally. There has been an urgent need to
enhance conveyance charges from Rs. 50.00 per month
upto Rs. 1,000.00, and Rs. 100.00 per month for above
Rs. 10,000.00 but upto 30,000.00 to 8000.00 per month.
18. The Federation presents that deposit collectors
are having fundamental right to live, which means not mere
animal existence but right to live with human dignity.
Meager amount of fall back wages, as referred above,
denies the right to live with human dignity to the deposit
collectors. It has been prayed that fall back wages may be
fixed at Rs. 5000.00 per month for collection of Rs. 50,000.00
per month or 10% of the deposits collected upto
Rs. 50,000.00 plus commission of 3.5 % on collection over
and above Rs. 50,000.00. Deposit collectors may be awarded
conveyance allowance @ Rs. 8000.00 per month and fall
back wages may be linked with consumer price index, with
retrospective effect. Interest may also be awarded to them
on the arrears which would become due to them, besides
costs.
19. All India Bank Deposit Collectors' Workmen
Union (in short the Union), National Confederation of Bank
Deposit Collectors, India Bank Deposit Collectors
Federation and Syndicate Bank Deposit Collectors Welfare
Association moved application for their impleadment as
parties to the dispute. After hearing them, those
applications were dismissed by the Tribunal vide order
dated 27.09.2007. When application of the Union, seeking
impleadment as party to the dispute was dismissed, the
Union approached the appropriate Government. On
consideration of facts presented before it, the appropriate
Government was of the view that the Union represents
interest of the deposit collectors and issued corrigendum
on 07.10.2007, adding it to the arrays of parties to the
dispute.
20. Claim statement was filed by the Union pleading
that it is a trade Union registered under the Trade Union
Act, 1926. The Union claims that the facts presented by
the Federation in its claim statement, may be treated as part
and parcel of its claim, to avoid repetition. The Union pleads
that the deposit collectors canvass all types of deposits
without any remuneration. They prepare cards, which show
particulars of amount received from the depositors during
the week. Some banks also maintain pass books and
deposit collectors are required to make entries of deposits
in those pass books. They visit depositors at their places
of work/residence, according to convenience of the latter.
They are under direct control and supervision of the bank
management. Their remuneration is to be fixed on piece
rate basis linked to total amount of collection made. Banks
provide all records and forms to the deposit collectors for
transacting business. They are required to attend the bank
at fixed times. On an average, they work for 2 hours in the
bank to write daily collection statement. There are standard
terms of employment for the deposit collectors. The Union
also narrate facts relating to the dispute referred to the
National Tribunal, Hyderabad, and award passed on
22.12.1988, besides the judgement handed down by the
Andhra Pradesh High Court as well as the Apex Court over
the matter. According to the Union, the banks have misread
the judgement and reduced payment of commission from
3.5% to 2%.
21. The Union presents that the deposit collectors
are required to be qualified to do deposit work and other
clerical work. Qualified persons are recruited as deposit
collectors. Collections made by the deposit collectors run
into crores of rupees and the schemes are yielding good
returns to the banks as compared to other deposits. The
Union asserts that the banks are earning good amount of
interest on the deposits collected by the deposit collectors.
It has been highlighted that in the banking industry 8th
Bipartite Settlement lays down wages settled for banks'
employees and though deposit collectors are toiling hard
for development of the banks, yet they are kept outside the
purview of the bipartite settlement. This act of the bank is
discriminatory. Bipartite settlements are arrived at to
improve salary and other service conditions of regular
employees whereas deposit collectors are neglected in toto.
Payment of fall back wages and conveyance allowance,
fixed by the Industrial Tribunal, Hyderabad, remained
unchanged since decades without any increment.
22. The Union asserts that even part time sweepers
are elevated to higher scales of pay. Part time employee
working in banks upto three hours is paid consolidated
pay of Rs. 750.00, while one working for more than three
hours but less than six hours is paid a sum of Rs. 1050.00
per month. Deposit collectors earn meager amount in the
form of fall back wages. The Union also demonstrates that
consumer price index had also seen steep rise. Though
deposit collectors have been declared as workmen, yet
they are being discriminated in payment of salary and other
service conditions as compared to regular employees. The
Union claims that fall back wages with minimum of Rs. 9500
per month on minimum collection of Rs. 50,000.00 per month
and upward revision as per All India Consumer Price Index
may be awarded in favour of the deposit collectors. It has
also been claimed that commission @3.5% may also be
awarded for collection of over and above Rs. 50,000.00 per
month. Deposit collectors may be awarded 2 litres of petrol,
besides conveyance expenditure of Rs. 100.00 per day with
upward revision as per All India Consumer Price Index.
23. An application under section 18(3) of the Act was
moved by the Federation on 31.01.2005, pleading therein
that 48 banks, enlisted below may be impleaded as parties
to the dispute:
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6731
(1)
Syndicate Bank
(2)
State Bank of Hyderabad
(3)
Indian Bank
(4)
Vijaya Bank Ltd.
(5)
Vysya Bank Ltd.
(6)
Corporation Bank Ltd.
(7)
State Bank of India
(8)
Central Bank of India
(9)
Andhra Bank Ltd.
(10)
Canara Bank
(11)
Tamilnadu Bank
(12)
Allahabad Bank
(13)
Bank of Baroda
(14)
The Bank of Cochin Ltd.
(15)
Bank of India
(16)
Bank of Madura Ltd.
(17)
Bank of Maharashtra
(18)
Bank of Rajasthan Ltd.
(19)
Catholic Syrian Bank Ltd.
(20)
Dena Bank
(21)
Dhanalakshmi Bank Ltd.
(22)
Federal Bank Ltd.
(23)
Indian Overseas Bank Ltd.
(24)
Karnataka Bank
(25)
Karur Vysya Bank Ltd.
(26)
Lakshmi Commercial Bank Ltd.
(27)
Lakshmi Vilas Bank ltd.
(28)
Lord Krishna Bank Ltd.
(29)
Mercantile Bank Ltd.
(30)
Miraj State Bank Ltd.
(31)
Nedungadi Bank Ltd.
(32)
New Bank of India
(33)
Oriental Bank of Commerce Ltd.
(34)
The Parur Central Bank Ltd.
(35)
Punjab and Sind Bank
(36)
Punjab National Bank
(37)
Sangli Bank Ltd.
(38)
The South India Bank Ltd.
(39)
State Bank of Bikaner & Jaipur
(40)
State Bank of Indore
(41)
State Bank of Mysore
(42)
State Bank of Patiala
(43)
State Bank of Saurashtra
(44)
State Bank of Travancore
(45)
Syndicate Bank
(46)
Union Bank of India
(47)
United Bank of India
(48)
United Commercial Bank
24. When scheme of the Act is construed, no express
power is found to have been granted to the Tribunal to add
parties to the proceedings. However, such powers are
necessarily to be implied from section 18(3) (b) of the Act,
wherein it has been mentioned that settlement arrived at in
the course of conciliation proceedings or award shall be
binding on all other parties summoned to appear in the
proceedings as parties to the dispute, unless the Tribunal
records opinion that they were so summoned without proper
cause. Consequently, it implies that the Tribunal has
powers to summon parties to the dispute.
25. On construction of the provisions of section 18(3)
(b) of the Act, the Apex Court ruled time and again that the
Tribunal has powers to implead a party to the dispute. Law
laid by the Apex Court makes it clear that when it appears
to the Tribunal that the parties to the industrial dispute,
named in the reference order, does not completely or
adequately represent interest either on the side of the
employer or of the employee, it may direct that other persons
should be joined, who would be necessary to represent
such interest. When employer named in the reference order
does not wholly represent interest of the employer as such,
the other persons, who are interested in the undertaking of
the employer. may be joined. Law to this effect was laid by
the Apex Court in Hochtief Gammon (1964(2) LLJ 460),
Wenger & Co.(1967(2) LLJ 403) and National Iron and Steel
Company Ltd.(1967(2) LLJ 23). The necessary or
appropriate party to the dispute referred for adjudication
can be summoned at the instance of one of the parties or
suo moto by the Tribunal and the award eventually would
be binding on the parties so summoned, unless Tribunal
records that the said party was summoned without proper
cause.
26. As pointed out above, there is implied power
vesting in the Tribunal to implead parties. However, the
Tribunal cannot exercise that power to enlarge materially
scope of reference, since its jurisdiction to deal with
industrial dispute is derived solely from the order of
reference, passed by the appropriate Government under
section 10(1) of the Act. In the light of above legal
propositions, the Tribunal was of the view that banks
represent interest of the employer and granted application,
vide order dated 19.07.2005, ordering impleadment of the
aforesaid banks as parties to the dispute, except the banks
mentioned below, since they ceased to exist:
(1)
The Bank of Cochin Ltd.
(2)
Bank of Madura Ltd.
(3)
Lakshmi Commercial Bank Ltd.
(4)
Mercantile Bank Ltd.
(5)
Miraj State Bank Ltd.
(6)
Nedungadi Bank Ltd.
(7)
New Bank of India
(8)
The Parur Central Bank Ltd.
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[PART II—SEC. 3(ii)]
27. The Association demurs the claim pleading that
the Association is neither employer of the deposit collectors
nor lays down terms and conditions of their engagement/
service. Deposit collectors are persons engaged on the
basis of individual contracts to work on commission basis.
Such individual contracts are between the deposit
collectors and the banks and as such on any matter or
matters, which is/are part of the contract, no grievance/
dispute lies against the Association. The Association
appeared before the Industrial Tribunal, Hyderabad, on
the basis of authority/mandate given to it by the concerned
banks. No such mandate/authority is available to the
Association now to appear on behalf of the banks in the
present dispute and as such it cannot be named in the
arrays of parties. There exists no relationship of employer
and employee between the Association and the deposit
collectors, engaged by the banks. The Association further
presents that the Federation is not a registered trade Union
of employees of the banks, hence not clothed with
representative character to raise the dispute. In view of the
provisions of section 2(qq) of the Act, only a Union of the
workmen, registered under the Trade Union Act, 1926, can
raise an industrial dispute. The Association presents that
it is the duty of this Tribunal to enquire as to whether the
Federation has a representative character to raise the
present dispute. The Association asserts that the dispute
raised by the Federation is not maintainable.
28. While giving history of the dispute, the
Association projects that large number of banks in public
and private sector initiated small saving schemes known
as Pigmy Deposits, Adarsh Deposits, Tiny Deposits, Janata
Deposits, Nitya Nidhi Deposits etc. One of the nationalized
banks had started the scheme in 1927 and several others
followed suit. These schemes were primarily aimed at
inculcating habit of saving and banking amongst people
of limited means and saving capacity suchas lower and
middle income groups, small traders and businessmen,
artisans, self employed persons and house wives etc. As
the deposits were to be collected from their doorstep, the
banks deputed their authorized agents to collect money,
issue receipt for it and then deposit it in the nearest branch
of the bank concerned. No minimum educational
qualification or age limit etc. was prescribed for deposit
collectors. The schemes served socio economic need when
number of banks were small and network of bank branches
was not widespread, especially in rural and semi urban
areas. With rapid expansion in banking and branch network,
in all population areas as well as rising of cost of running
schemes, importance of the schemes diminished and several
banks have discontinued their schemes. The Association
unfolds that currently only 26 public sector banks and 12
private sector banks are running such schemes. Several of
them, on consideration of cost benefit have discontinued
the expansion of the scheme, including opening of new
accounts. As against this, 43 banks had the scheme when
the matter was referred for adjudication to the Industrial
Tribunal, Hyderabad, in October 1980.
29. Over a period of time, deposit collectors came to
be organized and claimed status of employees of the banks
and benefits relating to security of tenure, minimum wages,
leaves and terminal benefits akin to those available to
regular employees of the banks, pleads the Association.
Initially there was no fall back wages/minimum commission/
wages payable to the deposit collectors, not to talk of
payment of conveyance allowance and gratuity. There was
no uniformity among banks in regard to terms and
conditions, on which deposit collectors were engaged.
30. In October 1980, appropriate Government, finding
large number of disputes between the banks and the deposit
collectors pertaining to their terms of engagement, status
vis-a-vis regular employees, working conditions and
facilities, referred those issues to the Industrial Tribunal,
Hyderabad, for adjudication. The Industrial Tribunal gave
its award on 22.12.1988, which was assailed by the
Association as well the banks by way of a writ petition
before the High Court of Andhra Pradesh. The High Court
gave its verdict on 28.03.1997 upholding the award in all
respects, except directions to absorb the deposit collectors
as clerks/sub staff, as the case may be. The banks as well
as the Association challenged the verdict dated 28.03.1997
by way of filing a special leave petition before the Apex
Court. The Apex Court handed down its judgement on
13.02.2001 upholding the judgement of the High Court. As
laid down by the High Court and reaffirmed by the Apex
Court, deposit collectors are workmen within the meaning
of section 2(s) of the Act and their remuneration has been
fixed with minima of Rs. 750 subject to collection of Rs.
7500.00 per month and 2% commission on collection over
and above Rs.7500.00 per month. In addition, they are also
eligible for conveyance allowance and gratuity. Deposit
collectors had accepted the award. Uniformity of fall back
wages of Rs. 750.00 on collection of Rs. 7500.00 per month,
besides additional benefits in the form of conveyance
allowance and gratuity, was made admissible to the deposit
collectors. Uniform rate of commission of 2% on monthly
collection exceeding Rs.7500.00 is also available to the
deposit collectors. Their present demand for higher fall
back wages and higher conveyance allowance is not
justified at all. The Apex Court ruled that there was no
question of the deposit collectors being paid the same pay
scale, allowance and other service conditions as applicable
to regular employees of the bank.
31. The Association raises objections to the reference
of the dispute to this Tribunal, which objections are as
follows:
(i) The Association is neither employer of the deposit
collectors not it lays down terms and conditions
of their engagement. Deposit collectors are
persons engaged on the basis of individual
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6733
contracts to work on commission basis. Hence
they cannot raise any grievance against the
Association.
(ii) The Association narrates that the Federation is
not a registered trade Union of employees
working in banks. It cannot raise an industrial
dispute. It does not have representative character
to espouse cause of the deposit collectors.
(iii) In terms of sub-section (6) of section 19 of the
Act, an award shall continue to be binding on the
parties until a period of two months has elapsed
from the date on which notice is given by any of
the parties intimating its intention to terminate
the award. No notice under sub-section (6) of
section 19 of the Act shall have effect unless given
by a party representing majority of the persons
bound by the award. Since the Federation does
not have a representative character, notice served
by it does not satisfy provisions of sub-section
(7) of section 19 of the Act. Since no effective
notice of termination of the award has been
served, provisions of the award continue to be
operative and bars the reference.
32. The Association claims that the banks are
generally incurring losses in running tiny deposit schemes.
Plea raised by the Federation is contradictory since at one
point of time it asserts that the remuneration of deposit
collectors is fixed on piece rate basis linked to total amount
of collection made and in subsequent breath it seeks
upward revision in fall back wages linked to the minimum
wages, notified from time to time. According to the
Association, these two propositions cannot go hand in
hand. The deposit collector, who work on commission basis,
cannot claim revision on the basis of minimum wages. The
Federation has tried to give a new meaning to incentive
remuneration, different than the commission earned by the
deposit collectors. Demand of the Federation for payment
of wages in the region of Rs. 800 up to 500 points of all
India Consumer Price index, raised before the Industrial
Tribunal, Hyderabad, was not specifically linked to the
demand of fall back wages on consumer price index
prevailing then. This aspect was not appreciated by the
Tribunal and as such said proposition was rejected.
33. Minimum wages are being revised by the State
Governments under the Minimum Wages Act, 1948.
Revision of fall back wages having linkage with the
minimum wages is uncalled for, since banking industry has
not been included in the schedule of employments under
the Minimum Wages Act, 1948. On the other hand, minimum
wages are fixed with reference to the minimum period of
work per day, which an employee is required to render. In
the case of deposit collectors, no such minimum period of
work is prescribed. Fall back wages of Rs. 750.00 per month
cannot be reduced on account of failure of minimum
collection of Rs. 7500.00 per month. For collection over
and above Rs. 7500.00, a deposit collector is entitled for
minimum commission of 2% on the amount so collected.
Under the provisions of the Minimum Wages Act, 1948, an
employee is not entitled to payment of any commission,
which fact makes it clear that fall back wages cannot be
linked with the minimum wages, fixed under the said Act.
34. The contention raised by the Federation that
basic pay of sub staff and clerical staff have been revised
from time to time, hence fall back wages are also to be
raised upward, is without any merit and substance. Deposit
collectors are categorically held to be not regular employees
of the bank. Their parity with regular employees of the
bank is not available. Fall back wages of Rs. 750.00 per
month is fixed component of commission that came to be
earned by deposit collector and there is no upper limit of
such earning of deposit collectors depending upon their
efforts. On the other hand, salaries payable to regular
employee of the bank is fixed. An employee cannot better
his remuneration depending upon his independent skill
and ability to mobilize more deposits.
35. Parity claimed by the Federation with workers of
steel, transport and textile sector etc. is like comparing
apples to oranges, pleads the Association. The issue
referred for adjudication presents a wrong assumption to
the effect that the Industrial Tribunal, Hyderabad, had
granted fall back wages of Rs. 750.00 on minimum deposit
of Rs. 7500 based on consumer price index of 500 points
(base 1962= 100). In fact the Tribunal had not ruled as
such. Award dated 22.12.1988 has attained finality. The
Federation is barred from raising same/similar demand.
Dispute is barred by principles of res judicata. Claim is
otherwise not maintainable on account of financial
implication. Scheme introduced by the banks to inculcate
habit of small saving in public at large, has lost its utility
since the same has become un-remunerative and
unviable.
36. The Association presents that there is no system
of paying conveyance allowance separately to the deposit
collectors. Transport allowance payable to regular
employees of the banks in workmen category is only Rs.
65.00 per month, whereas deposit collectors are getting Rs.
50.00 to Rs. 100.00 per month. Since mode of selection and
qualification for deposit collectors are not comparable with
the regular employees of the banks, their demand for linkage
of remuneration to consumer price index has no legal basis.
While considering right to live with human dignity, financial
difficulties of the institution cannot be ignored. Burden of
increase should not be such as to drive the employer out
of business. Deposit collectors are part time workmen and
there is no prohibition on them from pursuing any other
business or activities simultaneously. Lack of financial
capacity of the banks would denude the deposit collectors
of their demand.
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THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
37. The Association asserts that the very
nomenclature of the deposit collectors, viz., commission
agents, collection agents, deposit collectors etc. confirm
that they are individuals working on commission. Their
commission is fixed on piece rate basis linked to total
amount of collection made by them. They do not perform
any other work than remitting deposits collected from the
public. Highlighting all these aspects, the Association
claims that the deposit collectors have no right for
enhancement of their fall back wages as well as conveyance
allowance, awarded in their favour by the Industrial
Tribunal, Hyderabad.
38. Reiterating the above facts, the Association
demurs the claim made by the Union that in its award,
Industrial Tribunal, Hyderabad, had gone into all aspects
relating to nature of work, extent of supervision and control
of the banks over the deposit collectors, when fall back
wages and commission were adjudicated for them. The
Tribunal, in its award dated 22.12.1988, had not given the
basis on which relief of fall back wages, incentive
commission, conveyance allowance and gratuity was
granted to the deposit collectors. The Tribunal had not
determined fall back wages taking into account the level of
All India Consumer Price Index at that time. The Association
presents that the Union had not made out a different case
than those projected by the Federation and claim made is
liable to be discarded on those very factors detailed by it in
its counter. It has been pleaded that the claim put forth by
the Union may be discarded, being devoid of merits.
39. Claims were also demurred by United Commercial
Bank, counts of attack which are common to those made
by the Association, are not reproduced again for sake of
brevity. It has been pleaded that the claimants are
commission agents appointed under Laghu Bachat Yojna
(in short LBY) Scheme. Being LBY agents, they are not
employees of the bank. Every LBY deposit costs about
7.5% of the deposits since bank pays interest rate of 5%
per annum for deposits for 39 months and over above these
interest 2% commission, conveyance charges of Rs. 50.00
or Rs. 100.00 and fall back amount of Rs. 750.00 for an
amount upto Rs. 7500.00 to the deposit collectors. Average
cost of other deposits is around 5.2%. On an average deposit
of Rs. 100.00, bank incurs a loss of Rs. 1.80. The loss will
increase to Rs. 4.67 on every deposit of Rs. 100.00, if the
claim made by the Federation/Union is accepted. LBY
deposits costs more to the bank than any other deposit.
LBY agents have caused serious financial loss to the bank
and as such LBY scheme had cost too much and it became
absolutely unviable. Since the scheme is causing loss to
the bank, serious endeavours are made to take a decision
whether to continue with the scheme or not. LBY agents
are freelancers with liberty to choose their working hours
for canvassing deposits/collections. Fall back wages is
linked with minimum deposit of Rs.7500.00 per month, hence
it is not wages. Remuneration payable to the deposit
collectors cannot be fixed on the principles of industrial
adjudication dealing with the demand for wage revision or
allowances. Claim made by the Federation/Union is not
maintainable.
40. Due to rapid commercialization and
computerization, the scheme has become unremunerative.
It is a matter of common knowledge that most of the banks
are facing acute competition from foreign players. Banks
introduce various deposit/loans schemes, besides services
through automated teller machines (in short ATM), where
one can withdraw and deposit cash and cheques. Banks
have virtually tried to reach out to the common man.
Expansion of the banking network and transactions of the
customers through ATMs make it apparent that there is no
need for having a regular branch/employee to carry out
such transactions. The answering bank has 1753 branches
as well as 111 ATMs. Bank disputes that LBY agents are
entitled to parity in the matter of payment with regular
employees. Claim put forth, being untenable, may be
discarded.
41. Federal Bank dispels the claim statements
pleading that the deposit collectors, called as honey bees
in the bank, are being governed by the award passed by
the Industrial Tribunal, Hyderabad, which was modified
by the High Court of Andhra Pradesh and the Supreme
Court of India. The bank asserts that fall back wages of Rs.
750.00 per month based on consumer price index at 500
points were fixed by the Tribunal, taking into account the
submissions made by the parties. Adequacy of fall back
wages was confirmed by the High Court and the Apex
Court. Any revision in fall back wages would make entire
scheme unviable. Fall back wages of Rs. 750.00 was linked
with minimum deposit of Rs. 750.00 and an incentive
remuneration of 2% on collection over and above Rs.7500.00
per month is being paid to the deposit collectors. The
deposit collectors are being paid gratuity and conveyance
allowance over and above the commission paid to them.
Now, it is not open to deposit collectors to claim
enhancement of fall back wages, after accepting the award
as a package. The bank projects that it is not correct to say
that conveyance allowance was fixed on conditions then
prevalent in the year 1988. When conveyance allowance
was also confirmed by the Apex Court, it cannot be
questioned by the Federation/Union now. The bank claims
that an award may be passed against the Federation/ Union.
42. The South Indian Bank Ltd. questions the claim
statements pleading that out of its 432 branches spread all
over the country, daily savings deposits scheme is in vogue
in just 95 branches which are under rural/semi-urban
segments. The deposit collectors need not to perform
travelling to collect money. They perform contract
assignments and are not employees of the bank. They do
not perform any part of work to account the money in
books of the branches. The deposit collectors collect money
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6735
from the customers and in that work they are neither
supervised nor monitored by the bank officials. They
discharge their duties in their own interest to earn interest
and maintain confidence of the depositors. Though the
bank can terminate contract agreement yet it cannot initiate
any disciplinary action against the deposit collectors. The
bank asserts that it is wrong to claim that the deposit
collectors generate income through their collections and
out of that income their remuneration is paid. Factors such
as Cash Reserve Ratio, Statutory Liquidity Ratio, staff cost
and operating cost are to be taken into account to consider
whether bank generate any income on such collections. It
is wrong to claim that the bank pays lesser interest on
these collections. On the other hand, the bank pays interest
on deposits based on cap fixed by Reserve Bank of India.
The deposit collectors are independent contractors, who
use their skill and influence to earn more commission. They
perform their assignment as per their convenience. They
hardly work for less than an hour. In the award, there is
hardly a whisper of linkage of fall back wages with consumer
price index. Claim for enhancement of fall back wages linking
it with All India Consumer Price Index is uncalled for. The
bank disputes that it resorted to reduce rate of commission
amount from 2.5% to 2%. The deposit collectors cannot be
paid salary as per time scales, applicable to bank employees.
43. The bank went on to assert that the scheme
per-se is susceptible to fraud. The number of fraud cases
in this category is higher than any other sector. Deposit
collectors nowhere contribute to prosperity of the bank.
Actual cost of such deposits are abnormally high and the
bank is not able to service the said deposits. Cost benefit
analysis, done by the bank, projects that proposition. The
bank claims that for one hour work in a day on collection of
Rs.10,000.00, a deposit collector would earn Rs. 902.00 and
he would be able to perform other jobs too. There is no
justification for enhancement of their fall back wages. It
also asserts that claim for enhancement of conveyance
allowance is also unfounded. They are not entitled to any
relief, pleads the bank.
44. The Bank of Rajasthan Ltd. projects that there is
no tiny deposit scheme in the bank and as such the dispute
does not relate to them. It has been projected that when
the dispute was raised before the Conciliation Officer on
30.05.2001, the bank filed its reply dated 20.11.2001 and
made known that no such scheme was being run by the
bank. It has been claimed that the name of the bank may be
deleted from arrays of parties.
45. The Bank of Maharashtra presents that its written
statement may be read in support of and in addition to the
written statement filed by the Association. The submissions
made by the Association may be treated as part and parcel
of their written statement. The bank unfolds that it has
already initiated steps to discontinue its scheme called
‘Lok Mangal Deposit Scheme’, since it was found
economically unviable. Circular dated 13.02.1997 has been
issued directing all the branches to discontinue the scheme
wherever collection is less than Rs. 50,000.00 per month.
Cost benefit analysis done by the bank demonstrates that
the scheme is not beneficial and viable. Cost percentage of
the scheme is 9.09% whereas total benefits from the scheme
comes to 8.05%. The bank is incurring heavy losses on the
scheme. Frauds are also committed by the agents, which
adversely affects bank's business. It has been claimed that
an award may be passed against the Federation/Union.
46. The Catholic Syrian Bank disputes contents of
the claim statements filed by the Federation/Union. The
bank presents that the Federation/Union attempted to
portray a picture that the dispute arose only due to
uncompromising and rigid attitude exhibited by the banks,
which assertion is not true. Out of its 314 branches spread
in the country, the scheme is in existence only in 84
branches. Total number of deposit collectors engaged is
only 91. The deposit collectors perform no travelling as
part of their work. There is no specified time or fixed hours
for performing their job. Generally they work hardly for
less than an hour a day. Deposits canvassed by them forms
only a small portion of the deposit of the bank. Out of a
total deposit of Rs. 4184 crores as on 24.02.2006, only
Rs. 111.24 crores were collected by the deposit collectors.
There are no restrictions on number of assignment to be
undertaken by a deposit collector. Claim for grant of
minimum wages to them cannot be sustained. A deposit
collector may canvass more deposit and earn more
commission. Fall back wages was a new concept, introduced
as a result of package scheme. There is no link of fall back
wages with consumer price index figures. This scheme is a
type of social service, introduced for cultivating saving
habit amongst the public. The bank projects the claim
statements are liable to be rejected.
47. Oriental Bank of Commerce presents that it had
not introduced any tiny deposit scheme and never
appointed any tine deposit collector. A prayer was made
that the name of the bank may be deleted from arrays of
parties.
48. Bank of Baroda projects that on the date of
reference, neither any tine deposit scheme was in force nor
any deposit collector was working with the bank. The bank
does not have any dispute with any tine deposit collector,
relating to payment of fall back wages and conditions of
his service. Kutumb Kalyan Nidhi Scheme, which was
started by the bank stood scrapped with effect from
01.07.2002, much before the date of reference, which is
06.08.2003. Therefore, the bank is not concerned with the
dispute referred for adjudication by the appropriate
Government.
49. ICICI Bank also presents that Sangli Bank Ltd.
was amalgamated with the bank with effect from 19.04.2007.
The deposit collectors working with Sangli Bank were
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[PART II—SEC. 3(ii)]
compensated in terms of the award passed by Industrial
Tribunal, Hyderabad, modified by the Andhra Pradesh
High Court, and the Supreme Court. Payments were made
to the deposit collectors in view of memorandum of
understanding dated 29.10.2007 and the bank was
discharged from all future liabilities in respect of the deposit
collectors, who were working with the Sangli Bank. A claim
has been made that the bank may be deleted from array of
parties.
50. Indian Bank filed affidavit of Shri S.R. Sridhar,
Chief Manager, as counter and asserts that it joins and
sails with the Association and adopts all averments made
by it in the written statement. The bank presents that facts
pleaded there in the said written statement by the
Association may be treated as facts pleaded by it, assailing
the claim statement filed by the Federation/Union.
51. Allahabad Bank presents that no deposit scheme
known as pigmy accounts was ever adopted by the bank.
The bank had neither adopted any small deposit scheme
nor engaged any deposit collector. It has been prayed that
since such scheme is not adopted by the bank, its name
may be deleted from the array of parties.
52. ING Vysya Bank introduced Pragati Deposits
Scheme and engaged deposit collectors called as Pragati
Deposit Collectors. Out of 375 branches of the bank, scheme
was in vogue in only about 100 branches, which were in
rural segment. The bank incurred loss of Rs. 1387.49 per
Pragati Deposit Account on collection of Rs.1811.57.59 per
deposit collector for the year 2002-03, which fact emerge
out of cost benefit analysis conducted by it. It has been
claimed that Pragati Deposit Collectors are engaged on
contract on commission. There are not entitled for
enhancement of their fall back wages. Fall back wages still
vary from person to person, since they collect different
amounts from the customers. Fall back wages cannot be
linked with consumer price index. There is no substance in
the claim put forward for enhancement of fall back wages
as well as conveyance allowance.
53. Laxmi Vilas Bank presents that initially pigmy
deposit scheme was introduced with the name of Lakshmi
Dhina Senipu, which was subsequently named as Nityha
Lakshmi Deposit Scheme. Deposit collectors were engaged
on individual contract, subject to periodical renewal. Earlier
their commission was fixed at 3.5 % on the amount collected
by them, which is paid at 2% now, as agreed by them before
the High Court of Andhra Pradesh. Nature of work
performed by these agents is also similar to the work
performed by other agents in other banks. The bank
disputes that pigmy deposits is remunerative. When rate
of interest is periodically going down and cost factor had
gone on higher side, the scheme is not at all economically
viable. Since the commission agents are contractors, they
cannot negotiate for upward revision of their commission.
Their demand for linkage of their fall back wages with
consumer price index is uncalled for. The bank further
presents that the deposit collectors are not entitled for
enhancement of their conveyance allowance too.
54. Union Bank of India introduced Mini Deposit
Salap Sanchay. The bank projects that mini deposit scheme
and agents engaged for the same have not played a vital
role in growth of the bank. Initially, the scheme may have
been lucrative, during the early stages of banking industry,
but now it has lost efficacy and became un-remunerative.
As per cost benefit analysis, there is net loss of (-) 18.11%
in implementation of the scheme. Bank disputes claim for
revision of fall back wages and conveyance allowance put
forward by the Federation/Union.
55. Syndicate Bank, which was pioneer in initiating
mini deposit scheme called pigmy deposits, also presents
the same stand as taken by the Association. It narrates
that the pigmy deposit collectors have not played any vital
role in growth of the bank. Though the scheme may have
been lucrative at some point of time during earlier stages of
banking industry, it has now become un-remunerative and
resulted in huge expenses. The bank is facing grave
competition from domestic as well as foreign players. As
such, the scheme is no longer profitable. There are 2006
computerized branches, besides number of ATMs being
run by the bank. Cost benefit analysis, conducted on pigmy
deposit scheme, reveals that the bank has not incurred any
huge profit from it. Deposit collectors discharge duties in
their own interest to earn commission and to maintain
confidence of the deposit collectors. There is no upper
ceiling on commission earned by them since they can collect
more and earn more, which is not applicable to regular
employees. The bank has been making profit of Rs. 1.128
per Rs. 100.00 on an average deposit as far as pigmy deposit
scheme is concerned. If demands made by the deposit
collectors are accepted, the scheme would give negative
return to the bank. It will become un-remunerative and
would cause loss of Rs. 0.137 per Rs. 100 on average
deposits. The bank presents that fall back wages were not
linked to the consumer price index by Industrial Tribunal,
Hyderabad. The pigmy deposit collectors, engaged on
contract, are getting commission as agreed by them.
Demand for fixation of fall back wages, having linkage with
consumer price index, is beyond the terms of contract. When
deposit collectors are not paid wages on monthly basis,
provisions of Minimum Wages Act, 1948 would not come
to their rescue. Comparative wages of unskilled workmen,
educated clerks and rising consumer price index are not at
all related to the issue referred for adjudication. Deposit
collectors cannot be treated at par with regular employees
for the purpose of their service conditions, as held by the
Apex Court. Terms of Bipartite Settlements which fixes
wages of regular employees of the bank, would not come
to the rescue of the deposit collectors. Revision in fall back
wages, as claimed by the Federation/Union, is excessive
and beyond the terms of reference. Claim for enhancement
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6737
of conveyance allowance is also excessive and
unjustifiable. The bank claims that demand raised by the
Federation/Union may be discarded.
56. Deposit collectors are called as tiny deposit
collectors in Central Bank of India. The bank agitates that
the scheme had not played any vital role, and has lost its
efficacy. Scheme has become un-remunerative and resulted
in huge expenses being incurred by the bank. The bank
conducted a study wherein it revealed that loss of
Rs. 450.00 per Rs. 25000.00, collected by the deposit
collectors, is being incurred by it. Fresh demand of the
agents, if accepted, would result in loss of Rs. 1100.00 per
Rs. 25000.00, collected by the deposit collectors. The bank
asserts that demand for enhancement of fall back wages
and conveyance allowance is uncalled for.
57. Vijaya Bank also claims that the scheme resulted
into loss of 3.89% in the year 2004-05, which fact emerge
out when cost benefit study was conducted. Total benefit
of 8.16 per Rs. 100.00 on collection comes while total cost
of such collection is found to be Rs. 12.05. These facts
highlight that the scheme gives negative returns. Vijaya
Bank also attempts to demolish the claim made by the
Federation/Union.
58. Corporation Bank presents that on an average
collection of Rs. 100.00, benefit of Rs. 8.08 accrues while
cost of Rs. 15.35 is incurred. There is net loss of Rs. 7.27 on
average collection of Rs. 100.00 made by the deposit
collectors. The bank denounces claim put forward for
enhancement of fall back wages and conveyance allowance.
59. Punjab National Bank introduced the scheme with
the name mini deposit. It projects that the deposit collectors
have not played any vital role in growth of the bank. The
bank sounds the same defence when it pleads that many
deposit collectors are engaged on contract basis, who earn
commission. Their demand for linkage of fall back wages
with consumer price index is beyond the terms of contract.
Provisions of Minimum Wages Act, 1948, would not come
to rescue of the deposit collectors. Deposit collectors
cannot be treated at par with regular employees since their
service conditions are different. Demand for enhancement
of fall back wages, raised by the Federation/Union, is
excessive. Fall back wages cannot be linked with consumer
price index. Deposit collectors are not entitled to claim
dearness allowance. Demand for enhancement of
conveyance allowance is also excessive. Scheme is not
economically viable and financial capacity of the employer
bank cannot be ignored as a whole. Since deposit collectors
are commission agents, their claim for enhancement of fall
back wages and conveyance allowance is not sustainable.
60. Dhanvardhan Saving Deposits Scheme was
introduced by Lord Krishna Bank Ltd. In the end of financial
year 2005, the scheme constituted an amount equal to 0.05%
of the average deposits of the bank. Cost benefit study of
the scheme highlights that there is no purpose to engage
Dhanvardhan Deposit Collectors. Out of 100 branches
spread all over the country, deposit collectors are engaged
only in seven branches. The bank argues that demand for
enhancement of fall back wages and conveyance allowance
is not at all justifiable.
61. In the year 1971, Karur Vysya Bank Ltd introduced
tiny deposit scheme called honey bees scheme. Deposit
collectors nowhere contribute to the growth of the bank,
which fact emerges out of cost benefit analysis conducted.
Remuneration of deposit collectors cannot be determined
on the basis of overall capacity of the bank and it should
be on economics involved in the operation of such tiny
deposit schemes. Collection made by the deposit collectors
incurred loss of nearly 9%, which fact projects that the
scheme is not at all viable. The bank presents that the
demand raised by the Federation/Union for enhancement
of fall back wages and conveyance allowance is not
justifiable.
62. Bhagya Lakshmi Deposits was introduced by the
Andhra Bank. There was net loss of Rs. 1.06 crores,
Rs. 0.96 crores and of Rs. 1.61 crore to the bank in the years
2002-03, 2001-02 and 2000-01 respectively. Commission paid
to deposit collectors was Rs.1.84 crore for the year 2002-03
and Rs. 2.18 crore in the year 2000-01. The bank pleads that
since the scheme is not economically viable, deposit
collectors are not entitled to enhancement in fall back wages
and conveyance allowance, as claimed.
63. State Bank of Patiala dispels the claim pleading
that the scheme has proved to be non-remunerative. In
1997, the scheme was running in 25 branches, while in July
2006 it was being run only in 8 branches. Average yield on
advances made by the bank is 8.18% p.a. Thus, the bank is
incurring a loss of about 2.32% for running the scheme.
The bank asserts that demand for enhancement of fall back
wages is not justified. Concerning conveyance allowance,
the bank pleads that regular employees of workmen
category get Rs.65.00 while the deposit collectors draw an
amount varying from Rs. 50.00 to Rs. 100.00 per month.
The demand for enhancement of conveyance allowance is
also not justified, proclaims the bank.
64. Thrift Deposit Collection Scheme served a social
need in past when number of banks were small and network
of branches remained limited to rural and semi-urban areas,
pleads Indian Overseas Bank. At present, the bank is
incurring a loss of Rs.3. 38 for every Rs. 100.00 collected by
the deposit collectors. The bank claims that demands for
enhancement of fall back wages and conveyance allowance
are not at all maintainable.
65. State Bank of Travancore adopts facts pleaded
by the Association as well as State Bank of India in their
written statements and details that there are only 18 deposit
collectors in the bank. It has been contended that the scheme
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[PART II—SEC. 3(ii)]
is not viable and cost of collections, made by the deposit
collectors, exceeds earning of the bank on such collections.
66. State Bank of Hyderabad presents that a loss of
Rs. 1.78 on collection of Rs. 100.00 by the deposit collectors
is incurred by the bank. Cost benefit analysis of the scheme,
as made on 31.08.2005, bring it over the record that a sum
of Rs. 7.89 is being earned on every Rs. 100.00 collected,
while a sum of Rs.9.67 comes as a cost of collection to the
bank. The bank incurred a loss of Rs. 3054218.00 on Janta
Deposit Scheme, which fact highlights that the scheme is
non-viable, announces the bank.
67. Mini Deposit Scheme was launched by Union
Bank of India on 22.05.1974 with the object of tapping
deposits of neglected sectors. The scheme causes loss to
the bank. As per cost benefit analysis conducted on
31.03.2005, the bank was earning a sum of Rs.7.96 on every
Rs.100.00 collected, while it was incurring a cost of Rs.19.15
on such collection. Thus the bank was incurring a loss of
Rs.11.19 on ever Rs.100.00 collected by the deposit
collectors. The bank asserts that the demand for
enhancement of fall back wages and conveyance allowance
is not at all justified.
68. Canara Bank also claims that the deposit scheme
gives a negative return of Rs. 4.46 on every Rs. 100.00
collected by the deposit collectors. It has been claimed
that in April 2005, there were 302629 accounts being run
under the scheme, number of which account decreased to
295039 in March 2005. Average commission paid to the
deposit collector was Rs. 80844.00 per year in 2003-04 which
increased to Rs. 86711.00 in the year 2004-05. Operating
cost was Rs. 5940009 in the year 2003-04, which has
increased to Rs. 65396652 in the year 2004-05. These factors
make it apparent that the scheme is not at all remunerative.
The bank questions the demand for enhancement of fall
back wages and conveyance allowance.
69. Dena Bank launched the scheme in 1973 in
selected branches. In April 2006, there were only 31 deposit
collectors engaged by the bank. For running the scheme,
the bank was incurring a cost of Rs. 8.18 on every
Rs. 100.00 collected by the deposit collectors, while it
earned a sum of Rs. 7.37 on the amount so collected. The
scheme caused a loss of Rs. 0.81 on every Rs. 100.00
collected by the deposit collectors. The bank denounces
the demand for enhancement of fall back wages and
conveyance allowance.
70. Honey Deposit Collectors is the name given by
Karnataka Bank to the deposit collectors. The bank presents
that on every Rs.100.00, collected by the deposit collectors,
it earns Rs. 8.57 while it had to spend a sum of Rs. 8.86 on
such collection. It has been claimed that the bank suffers a
loss of Rs. 0.29 on every Rs.100.00, collected by the deposit
collectors. The bank dislodges the demand for enhancement
of fall back wages and conveyance allowance, since the
scheme is not economically viable.
71. Janta Deposit Scheme was introduced by State
Bank of Mysore. The bank earns a profit of Rs. 1.128 on
every Rs. 100.00 collected by the deposit collectors. In
case the demand for enhancement of fall back wages and
conveyance allowance would be accepted, it would incur a
loss of Rs.2.46, pleads the bank. It has been prayed that
demand for enhancement of fall back wages and
conveyance allowance may not be accepted.
72. Janata Deposit Scheme was introduced by State
Bank of India in 1971 to mobilize deposits and inculcate
saving habit amongst low income group. The bank
conducted viability study of the deposits at New Delhi,
Kolkatta, Patna, Thiruvananthapuram, Chennai,
Chandigarh, Hyderabad, Bhopal and Lucknow circles. It
was found that the scheme was not at all viable. In May/
June 2001, the bank issued instructions to all concerned to
discontinue the scheme and not to open new accounts or
to receive additional deposit. Deposit collectors filed writ
petitions in various High Courts. The bank moved a transfer
petition before the Apex Court and vide order dated
21.10.2005, the Apex Court transferred all the writ petitions
to its board. The bank pleaded that since it had taken a
decision to discontinue the scheme, prior to the reference
order, its name may be deleted from arrays of parties. The
bank also asserts that since the scheme is not viable,
demand of enhancement of fall back wages and conveyance
allowance is unjustified.
73. Tamil Nadu Mercantile Bank projects that deposit
collectors are paid commissions of 2.5% for 1st year of the
deposit and 3% of commission on three years of deposit,
besides fall back wages. Deposit collectors are not entitled
for enhancement of fall back wages and conveyance
allowance, pleads the bank.
74. State Bank of Bikaner and Jaipur presents that
operational cost of Rs. 11.00 comes on every Rs. 100.00
collected by the deposit collectors, whereas bank earns
Rs. 9. 26 on that collection. Thus, the bank incurs a loss of
Rs. 1.74 per Rs. 100.00, collected by the deposit collectors.
According to the bank, the scheme produces negative
returns. Demand for enhancement of fall back wages and
conveyance allowance is uncalled for.
75. Bank of India disputes the claim projecting that it
never launched any tiny deposit scheme. The bank had
not engaged any deposit collector at any point of time. It
was claimed that name of the bank may be deleted from
arrays of parties.
76. Punjab and Sind Bank pleads that tiny deposit
collection scheme was abolished by the bank long before
raising of the industrial dispute. Since there are no deposit
collectors engaged by the bank, its name may be deleted
from the array of parties.
77. State Bank of Indore, State Bank of Saurashtra
and Dhanlakshmi Bank Ltd. opted not to file any written
statement.
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6739
78. In rejoinders, filed by the Federation/Union, to
the written statements filed by United Commercial Bank,
Federal Bank, South Indian Bank Ltd., Bank of Rajasthan
Ltd., Bank of Maharashtra, Catholic Syrian Bank, Oriental
Bank of Commerce, Bank of Baroda, ICICI Bank, Indian
Bank, Allahabad Bank, ING Vysya Bank, Laxmi Vilas Bank,
Union Bank of India, Syndicate Bank, Central Bank of India,
Vijaya Bank, Corporation Bank, Punjab National Bank, Lord
Krishna Bank, Karur Vysya Bank Ltd. Andhra Bank, State
Bank of Patiala, Indian Overseas Bank, State Bank of
Travancore, State Bank of Hyderabad, Union Bank of India,
Canara Bank, Dena Bank, Karnataka Bank, State Bank of
Mysore, State Bank of India, Tamil Nadu Mercantile Bank
and State Bank of Bikaner and Jaipur facts pleaded in the
claim statements were reiterated.
79. The case was transferred to Central Government
Industrial Tribunal No. 2, New Delhi, for adjudication, by
the appropriate Government vide its order No.Z 22019/6/
2007-IR(C-II) New Delhi dated 11.02.2008. It was
retransferred to this Tribunal for adjudication by the
appropriate Government, vide order No.Z 22019/6/2007-
IR(C-II), New Delhi dated 30.03.2011.
80. On pleadings of parties following issues were
settled by my learned predecessor:
(i) As per terms of reference sent by Government of
India.
(ii) Was there any privity of contract between the
concerned workmen and the IBA? If not, what are
consequences?
(iii) Relief.
81. Shri I.P. Ponnusamy, Shri Ashwani Vijh and
Shri Ashish Bilala were examined by the Federation to
substantiate its claim. Shri Ashok Kumar and Shri A.N.
Sivanand Babu were examined by the Union to establish
its case. Shri K. Ganesan, Vice President of the Association,
entered the witness box to detail facts to establish its
defence. Shri Neeraj Gupta (Assistant General Manager,
Punjab National Bank), Shri Satheesh Kumar (AGM, South
Indian Bank), Shri JNS Murali (Senior Manager Vijaya Bank),
Shri Kusal Pal (Senior Manager, Central Bank of India),
Shri L. Makkad (Manager(P), State Bank of Bikaner and
Jaipur), Shri Shyamal Kumar Singh, (Chief Manager, Indian
Bank), Shri C.M Duggal, (AGM, Federal Bank) Shri Ajit
Kumar Srivastava, (Manager (Law), Canara Bank), Shri Sunil
Prakash, (Assistant Manager(Law) Union Bank of India),
Shri Arun Kumar Tyagi (Deputy General Manager,
Syndicate Bank) Shri Sudershan D. Sheth, (Chief Manager,
Karnataka Bank), Shri Joginder Pal Bhagat (Chief Manager,
UCO Bank), Shri Anil Kumar V(Chief Manager, State Bank
of Travancore), Shri R. Venkatesh (Chief Manager, State
Bank of Hyderabad) and Shri P. Venugopal (State Bank of
Hyderabad) deposed facts on behalf of their respective
banks. No other witness was examined by either of the
parties.
82. Arguments were heard at the bar. Shri Inderjit
Singh, authorized representative of the Federation, and
Ms. Rashmi B. Singh, authorized representative of the
Union, raised submissions on behalf of the deposit
collectors. Ms. Arti Singh, authorised representative of
State Bank of India, Shri Rajat Arora, authorised
representative for Indian Bank Association, Bank of India,
Syndicate Bank, Vijay Bank, Punjab National Bank, Canara
Bank, Oriental Bank of Commerce, Punjab & Sind Bank,
Federal Bank, Andhra Bank, Vysya Bank, South Indian Bank,
Corporation Bank, State Bank of Bikaner & Jaipur, Central
Bank of India, Lakshmi Vilas Bank, Union Bank of India,
UCO Bank, Lord Krishna Bank, Tamilnadu Mercantile Bank,
Union Bank of India and Indian Bank, Mr. Ravi Panwar,
authorized representative for Karnataka Bank, Shri B.A.
Ranganathan, authorized representative for the State Bank
of Hyderabad & State Bank of Travancore, Shri Mohd.
Asif, authorized representative for Bank of Mysore, Shri
Sunil Prakash, authorized representative for the Union Bank
of India, Shri Navin Garg, authorized representative for
State Bank of Mysore, C.K. Sharma, authorized
representative for Indian Overseas Bank, Shallky Sachdeva,
Law Officer for UCO Bank, Ms. Khusbhu, authorized
representative for ICICI Bank, Shri Javed Khan, authorized
representative for Dena Bank, Shri A.K. Ansari, authorized
representative for Bank of Baroda, Shri Z.A. Hashmi,
authorized representative for State Bank of Patiala, Shri
AN Tiwari, authorized representative for Dhanlakshmi Bank,
raised their submissions to rebut claims put forth by the
Federation as well as the Union. Written arguments were
also filed by the parties. I have given my careful
considerations to the arguments advanced at the bar and
cautiously perused the record. My findings on issues
involved in the controversy are as follows:—
Issue No.2
83. As record tells, appropriate Government referred
the dispute for adjudication to this Tribunal, to which
dispute President of the Federation and Organizing
Secretary of the Union, besides Officer on Special Duty of
the Association were shown as parties. In its written
statement, the Association took an objection that that it is
neither employer of the deposit collectors nor lays down
terms and conditions of their engagement. Deposit
collectors are persons engaged by the respective banks
on the basis of their individual contracts to work on
commission basis. Such individual contracts are between
the banks and the deposit collectors and as such, on any
matter or matters which is/are part of the contracts, they
cannot raise any grievance against the Association.
84. Persuaded by these facts, the above issue was
settled by the Tribunal. On 31.01.2005, an application under
section 18(3) of the Act was moved with a prayer to implead
48 banks in arrays of parties, which application was allowed
vide order dated 19.07.2005.
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[PART II—SEC. 3(ii)]
85. Whether by grant of that application, the Tribunal
proceeded to enlarge the scope of the reference order? In
dealing with this question, it is necessary to bear in mind,
one essential fact that this Tribunal is a Tribunal of limited
jurisdiction. Jurisdiction of this Tribunal is to try an
industrial dispute referred to it for adjudication by the
appropriate Government by an order of reference passed
under section 10 of the Act. It is not open to the Tribunal to
travel materially beyond the terms of reference, for it is well
settled that the terms of reference determine the scope of
its powers and jurisdiction from case to case. Provisions of
section 10(1)(d) of the Act empower the appropriate
Government to refer the dispute or any matter appearing to
be connected with, or relevant to the dispute, whether it
relates to any matter specified in the Second Schedule or
the Third Schedule, to a Tribunal for adjudication. Section
10(4) of the Act provides, inter alia, that the jurisdiction of
an Industrial Tribunal would be confined to points of
dispute specified by the order of reference and adds that
the said jurisdiction may take within its sweep matters
incidental to the said points. In other words, where certain
points of disputes have been referred to an Industrial
Tribunal for adjudication, it may while dealing with the
said points, deal with the matters incidental thereto, and
that means that if, while dealing with such incidental matters,
the Tribunal feels that some persons who are not joined to
the reference should be brought before it, it may be able to
make an order in that behalf under section 18(3)(b) of the
Act.
86. Section 10(5) of the Act confers powers on the
appropriate Government to add to the reference other
establishments, groups or classes of establishments of a
similar nature, if it is satisfied that these establishments are
likely to be interested in, or affected by, such dispute. In
other words, if an industrial dispute is referred to a Tribunal
for adjudication, and in that area within the territorial
jurisdiction of the appropriate Government, there are other
establishments which would be affected by, or interested
in, such a dispute, the appropriate Government may add
them to the said reference either at the time when the
reference is initially made or during the pendancy of the
said reference proceedings, but in every case, such
additions can be made before the award is submitted. If
such persons are to be added to the reference, the Industrial
Tribunal may in exercise of its powers under section 18(3)(b)
of the Act, summon them to appear before it.
87. Reverting to the question, the Tribunal cannot
exercise powers of summoning a party to appear before it,
which is implied in section 18(3)(b) of the Act, so as to
materially enlarge the scope of reference. But when it
appears to the Tribunal that a party, named in the order of
reference, does not completely or adequately represent
the interest either on the side of the employer or the side of
the employee, it may direct that other person should be
joined who would be necessary to represent such interest.
The test, always must be, is that the addition of the party
necessary to make the adjudication itself effective and
enforceable. Here in the case, banks, where deposit
collectors are working, were not made parties to the dispute.
Addition of the banks was necessary to make adjudication
effective and enforceable. The banks, added to the dispute,
are not rank outsiders or disinterested spectators. Presence
of these banks was necessary to make the ultimate award
effective, valid and enforceable.
88. Admittedly the banks, impleaded in the array of
parties, are the employers of the deposit collectors. The
Association asserts that it is neither the employer nor
represents interest of the banks, in the present proceedings.
The dispute, referred for adjudication, is substantially
between the banks and the members of the Federation and
the Union. By summoning the banks before the Tribunal,
parties who represent the interest of the employer, are made
to project facts essential for adjudication of the controversy.
Hence, it is apparent that the Tribunal has not materially
enlarged the scope of reference by summoning the banks
to appear before it.
89. Record tells that vide order dated 19.07.2005, 40
banks were summoned to represent interest of the employer.
Those banks filed their respective written statements and
contested claims put forward by the Federation as well as
the Union. Admittedly, the deposit collectors represented
by the Federation /Union, work with those banks, who
have been added as parties to the dispute. On impleadment
of those banks as parties to the dispute, the issue became
redundant. Accordingly, it is concluded that the issue,
referred above, needs no adjudication. It is answered,
accordingly.
Issue No.1
90. First count of attack made by the Association on
claim statement, filed by the Federation, is that the dispute
has not acquired status of an industrial dispute, for want
of espousal. The Association pleads that the dispute,
referred for adjudication, is not an industrial dispute since
it has not been validly espoused by a union having
representative character in the establishment of the
respective banks. The Federation dispels the submission
made by the Association. For an answer to this proposition,
definition of the term industrial dispute is to be construed.
Section 2(k) of the Act defines the term 'industrial dispute',
which definition is extracted thus:
''2(k) ''Industrial dispute'' means any dispute or
difference between employers and employers, or
between employers and workmen, or between
workmen and workmen, which is connected with the
employment or non-employment or the terms of
employment or with the conditions of labour, of any
person;"
91. The definition of term "industrial dispute" referred
above, can be divided into four parts, viz. (i) factum of
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6741
dispute, (2) parties to the dispute, viz.(a) employers and
employers, (b) employer and workmen, or (c) workmen and
workmen, (3) subject matter of the dispute, which should
be connected with —(i) employment or non employment,
or (ii) terms of employment, or (iii) condition of labour of
any person and (4) it should relate to an "industry".
92. The definition of "industrial dispute" is worded
in very wide terms and unless they are narrowed by the
meaning given to word "workman" it would seem to include
all "employers", all "employments" and all "workmen",
whatever the nature or scope of the employment may be.
Therefore, except in the case where there can be a dispute
between the employers and employers and workmen and
workmen, one of the parties to an industrial dispute must
be an employee or a class of employees. The first point,
therefore, to be noted, perhaps self evident, is that the
phrase "employer and workmen", the plural may include
singular on either side or any permutation of singular or
plural, the masculine including the feminine. In order,
therefore, to determine as to whether a controversy or
difference or a dispute is an “an industrial dispute” or not,
it must first be determined whether the workman concerned
or workmen sponsoring his cause satisfy the conditions of
clause (s) of section 2 of the Act. Here in the case there
cannot be any dispute to the proposition that the deposit
collectors are workmen within meaning of section 2(s) of
the Act.
93. The Apex Court put gloss on the definition of
''industrial dispute" in Dimakuchi Tea Estate [1958 (2) LLJ
500] and ruled that the expression "any person" in clause
(k) of section 2 of the Act must be read subject to such
limitation and qualification as arise from the context, the
two crucial limitations are (1) the dispute must be a real
dispute between the parties to the dispute (as indicated in
the first two parts of the definition clause) so as to be
capable of settlement or adjudication by one party to the
dispute giving necessary relief to other, and (2) the person
regarding whom the dispute is raised must be one for whose
employment, non employment, terms of employment or
conditions of labour, as case may be, the parties dispute
for a direct or substantial interest. Where workmen raised a
dispute as against their employment, the person regarding
whose employment, non employment, terms of employment
or conditions of labour, the dispute is raised need not be
strictly speaking "workman" within the meaning of the Act,
but must be one in whose employment, non employment,
terms of employment, or conditions of labour the workmen
as a class have a direct or substantial interest. The
observations, made by the Apex Court, are extracted thus:
"We also agree with the expression "any person" is
not co-extensive with any workman, particular or
otherwise, equal with other, that the crucial test is
one of community of interest and the person
regarding whom the dispute is raised must be one in
whose employment, non employment, terms of
employment, conditions of labour (as the case may
be) the parties to the dispute have a direct or
substantial interest. Whether such direct or
substantial interest has been established in a
particular case will depend on its facts and
circumstances."
94. In Kyas Construction Company (Pvt.) Ltd. [1958
(2) LLJ 660], the Apex Court ruled that an industrial dispute
need not be a dispute between the employer and his
workman and that the definition of the expression
"industrial dispute" is wide enough to cater a dispute raised
by the employer's workmen with regard to non employment
of others, who may not be employed as workman at the
relevant time. The Apex Court in Bombay Union of
Journalist [1961 (II) LLJ 436] has observed that in each
case in ascertaining whether an individual dispute has
acquired the character of an industrial dispute, the test is
whether at the date of reference, the dispute was taken up
as submitted by the Union of the workmen of the employer
against whom the dispute is raised by an individual
workman or by an appreciable number of workmen. In order,
therefore, to convert an individual dispute into an industrial
dispute, it has to be established that it has been taken up
by the Union of employees of the establishment or by an
appreciable number of the employees of the establishment.
As far as Union of the workmen of establishment itself is
concerned, the problem of espousal by them generally
presents little difficulty, since such workmen who are
members of such Unions generally have a continuity of
interest with an individual employee who is one of their
fellow workman. But difficulty arise when the cause of a
workman, in a particular establishment, is sponsored by a
Union which is not of the workmen of that establishment
but is one of which membership is open to workmen of
their establishment as well as in that industry. In such a
case a Union which has only microscopic number of the
workmen as its member, cannot sponsor any dispute arising
between the workmen and the management. A
representative character of the Union has to be gathered
from the strength of the actual number of co-workers
sponsoring the dispute. The mere fact that a substantial
number of workmen of the establishment in which the
concerned workman was an employee were also members
of the Union would not constitute sponsorship. It must be
shown that they were connected together and arrived at
an understanding by a resolution or by other means and
collectively submitted the dispute.
95. The expression "industrial dispute" has been
construed by the Apex Court to include individual disputes,
because of the scheme of the Act. In Raghu Nath Gopal
Patvardhan [1957(1) LLJ 27] the Apex Court ruled as to
what dispute can be called as an industrial dispute. It was
laid thereon that (1) a dispute between the employer and a
single workman cannot be an industrial dispute, (2) it cannot
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per-se be an industrial dispute but may become if it is taken
up by a trade Union or a number of workmen. In Dharampal
Prem Chand [1965 (1) LLJ 668] it was commanded by the
Apex Court that a dispute raised by a single workman cannot
become an industrial dispute unless it is supported either
by his Union or in the absence of a Union by substantial
number of workmen. Same law was laid in the case of Indian
Express Newspaper (Pvt.) Limited [1970 (1) LLJ 132].
However in Western India Match Company [1970 (II) LLJ
256], the Apex Court referred the precedent in Dimakuchi
Tea Estate's case [1958 (1) LLJ 500] and ruled that a dispute
relating to “any person becomes a dispute where the person
in respect of whom it is raised is one in whose employment,
non employment, terms of employment or conditions of
labour, the parties, dispute for a direct or substantial
interest".
96. What a substantial or considerable number of
workmen would be in a given case, depend on particular
facts of the case. The fact that an ''industrial dispute", is
supported by other workmen will have to be established
either in the form of a resolution of the Union of which
workman may be member or of the workmen themselves
who support the dispute or in any other manner. From the
mere fact that a general Union, at whose instance an
“industrial dispute" concerning an individual workman is
referred for adjudication, has on its roll a few of the workmen
of the establishment as its members, it cannot be inferred
that the individual dispute has been converted into an
“industrial dispute". The Tribunal has therefore, to consider
the question as to how many of the fellow workman actually
espoused the cause of the concerned workman by
participating in the particular resolution of the Union. In
the absence of a such a determination by the Tribunal, it
cannot be said that the individual dispute acquired the
character of an industrial dispute and the Tribunal will not
acquire jurisdiction to adjudicate upon the dispute.
Nevertheless, in order to make a dispute an industrial
dispute, it is not necessary that there should always be a
resolution of substantial or appreciable number of workmen.
What is necessary is that there should be some express or
collective will of a substantial or an appreciable member of
the workmen treating the cause of the individual workman
as their own cause. Law to this effect was laid in
P.Somasundrameran [1970 (1) LLJ 558].
97. It is not necessary that the sponsoring Union is a
registered trade Union or a recognized trade Union. Once it
is shown that a body of substantial number of workmen
either acting through a Union or otherwise had sponsored
the workman's cause, it is sufficient to convert it into an
industrial dispute. In Pardeep Lamp Works [1970 (1) LLJ
507] complaints relating to dispute of ten workmen were
filed before the Conciliation Officer by the individual
workmen themselves. But their case was subsequently
taken up by a new Union formed by a large number of co-
workmen, if not a majority of them. Since this Union was
not registered or recognized, the workmen elected five
representatives to prosecute the cases of ten dismissed
workmen. Thus cases of the dismissed workmen were
espoused by the new Union, yet unregistered and
unrecognized. The Apex Court held that the fact that these
disputes were not taken up by a registered or recognized
Union does not mean that they were not "industrial
dispute".
98. It is not expedient that same Union should remain
incharge of that dispute till its adjudication. The dispute
may be espoused by the workmen of an establishment,
through a particular Union for making such a dispute an
''industrial dispute", while the workman may be represented
before the Tribunal for the purpose of section 36 of the Act
by a member of executive or office bearer of altogether
another Union. The crux of the matter is that the dispute
should be a dispute between the employer and his workmen.
It is not necessary that the dispute must be espoused or
conducted only by a registered trade Union. Even if a trade
Union ceases to be registered trade Union during the
continuance of the adjudication proceedings that would
not affect the maintainability of the order of reference. Law
to this effect was laid by the High Court of Orissa in Gammon
India Limited [1974 (II) LLJ 34]. For ascertaining as to
whether an individual dispute has acquired character of an
industrial dispute, the test is whether on the date of the
reference the dispute was taken up as supported by the
Union of the workmen of the employer against whom the
dispute is raised by the individual workman or by an
appreciable number of the workman. In other words, the
validity of the reference of an industrial dispute must be
judged on the facts as they stood on the date of the
reference and not necessarily on the date when the cause
occurs. Reference can be made to a precedent in Western
India Match Co. Ltd. [1970 (II) LLJ 256)].
99. Now I would turn to the facts. As emerged out of
affidavit Ex.WW1/A sworn by Shri I.P. Ponnusamy, dispute
referred for adjudication to Industrial Tribunal, Hyderabad,
was raised by the Federation only. Shri Ponnusamy deposed
that the said dispute was referred by the Federation and it
contested the matter right up to the Apex Court. He went
on to detail that the Federation has been registered under
the Trade Union Act, 1926 on 12.09.2005. During the course
of cross examination, he presents that in the year 2004,
there were 15000 members of the Federation. He details
that the Federation has its members in 18 states. When the
dispute under reference was raised, there were about 14000
deposit collectors who were members of the Federation,
announces Shri Ponnusamy. He also details that the
Federation resolved to raise the dispute, which fact emerged
out of resolution dated 13.07.2001, passed by Central
Committee of the Federation. Facts projected by
Shri Ponnusamy were not at all dispelled by the Association
and/or the banks who have been made parties to the dispute.
Shri Ashwani Vijh gives reaffirmation to the facts unfolded
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6743
by Shri Ponnusamy. He testified that there were about 18000
to 20000 members of the Federation as on date. Therefore,
these facts are sufficient to conclude that the Federation
enjoys representative character in the establishment of the
banks, being a union of the deposit collectors. It has also
been brought over the record by Shri Ponnusamy that the
Federation took decision to espouse cause of the deposit
collectors and then issued notice under sub section (6) of
section 19 of the Act, to terminate the award. After issuance
of that notice, the Federation raised the industrial dispute.
Consequently, it is crystal clear that the Federation is a
representative body of the deposit collectors and had
espoused their cause for adjudication. Dispute, when it
was espoused by the Federation, acquired status of an
industrial dispute.
100. When a dispute affects rights of the workmen
as a class, it acquires character of industrial dispute, as
held by the Apex Court in India Cable Co. Ltd. [1962(1) LLJ
409]. The word ''industrial' as used to the nature of quality
of dispute denotes two qualities which distinguish them
from ordinary private disputes between individuals namely
(i) that the dispute relates to industrial matters, and (ii) that
on one side atleast of the dispute the disputant are a body
of men acting collectively and not individually. In other
words, ‘an element of collective bargaining which is the
essential feature of modern trade Union movement is
necessarily involved in industrial adjudication' ruled the
Apex Court in Associated Cement Companies Ltd. [1960(1)
LLJ 491]. It is the community of interest of the class as a
whole — class of employees or class of workmen—which
furnishes the real nexus between the dispute and the parties
to the dispute.
101. The Act is a legislation relating to what is known
as 'collective bargaining' in the economic filed. This policy
of the legislature is also implicit in the definition of the term
'industrial dispute'. Collective bargaining being the order
of the day in the democratic social welfare State, legitimate
trade Union activities, which must shun all kinds of
physical threats, coercion or violence, must march with a
spirit of tolerance, understanding and grace in dealings on
the part of the employer. Such activities can flow in healthy
channel only on mutual co-operation between the employer
and the employees and cannot be considered as irksome
by the management in the best interest of its business. The
very nature of an industrial dispute as distinguished from
an individual dispute, is to obtain new industrial conditions,
not merely for the specific individual then working from
the specific individuals then employing them, not for the
moment only, but for the class of employees from the class
of employers. It is a battle by the claimants, not for
themselves alone. In the light of these legal propositions, a
letter addressed to the management by the Secretary of
Trade Union containing a categorical assertion that the
Union represented a majority of the workers of the industrial
establishment, which fact was not questioned and
requesting the payment of same rate of bonus as in another
similar establishment, the said letter was held to constitute
a demand. The refusal of the said demand was held to be
an industrial dispute. Reference can be made to the
precedent in Sri Minakshi Mills Ltd.(3 FJR 229).
102. The workmen were not satisfied with the existing
union, they formed a new union. Since the new union was
not registered, they appointed five representatives but the
management refused to negotiate with them on the ground
that a dispute was not raised by the recognized union. The
management did not even accept communications from
that union. On failure of conciliation proceedings, the
Conciliation Officer sent his failure report. On these facts,
it was ruled that it cannot be said that there was no industrial
dispute or this was only an individual dispute. It was further
held that espousal by a minority union, having a
membership of substantial number of workmen, would be
sufficient to convert the dispute into an industrial dispute.
Reference can be made to Pradip Lamp Works [1970(1) LLJ
507].
103. As testified by Shri Ponnusamy and Shri Vijh,
there were 15000-20000 deposit collectors, who were
members of the Federation. The Federation is having its
members in 18 States of the Country. The Federation
espoused the industrial dispute, referred for adjudication
to the Industrial Tribunal, Hyderabad. The Federation made
its efforts to project cause of the deposit collectors before
High Court of Andhra Pradesh and the Apex Court. The
Federation served a notice under sub-section (6) of section
19 of the Act to terminate the award dated 22.12.1988.
Thereafter, the Federation served a notice of demand on
the Association, who represented interest of the banks,
while adjudication of the above dispute culminated into an
award. In the present controversy too, the Federation
served a notice of demand on the Association, who
represents the banks while arriving at bipartite settlements,
concerning service conditions of award staff of the banks.
Thus, it is evident that notice of demand was served on the
Association, who represents interest of the banks. The
Federation acquires a representative character and
expressed its collective will to espouse the cause of the
deposit collectors. These facts make me to announce that
the Federation is a representative body, who espoused the
cause of the deposit collectors and raised an industrial
dispute. The objection raised by the Association, claiming
that the dispute has not acquired character of an industrial
dispute, has no substance. The Federation, being a
representative body, raised the dispute on behalf of the
deposit collectors as a class. The collective will expressed
by the Federation, while raising the dispute, gave character
of an industrial dispute to the dispute, so raised. Objection
raised by the Association is, therefore, brushed aside.
104. Next contention raised is that the notice,
contemplated by sub-section (6) of section 19 of the Act,
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[PART II—SEC. 3(ii)]
was not issued by a representative body. In answer to this
proposition, legal provisions are to be construed. As
enacted, provisions of sub section (3) of section 19 of the
Act prescribes statutory period of operation of an award.
It contemplates that an award shall subject to provisions
of this section, remain in operation for a period of one year
from the date on which the award becomes enforceable
under section 17A. The maximum period of one year
mentioned in sub-section (3) starts from the date on which
the award becomes enforceable and does not cover the
period antecedent to the award. The words 'subject to the
provisions of this section', make the period of operation of
the ward subject to other provisions of section 19 of the
Act. First proviso to sub-section (3) empowers the
appropriate Government to reduce the period of an award
from one year to such short period, as it may think fit. The
period can be shortened by compliance of the proviso of
sub-section (4) of section 19 of the Act. Second proviso to
sub-section (3) empowers the Government to extend the
period of operation of an award. The requirements of the
proviso are:
(i) The period must be extended before the period
prescribed in sub-section (1) has expired,
(ii) The period extended should not exceed one year
at a time, and
(iii) The total period of operation of any award should
not exceed three years from the date on which the
award came into operation.
105. Sub-section (6) of section 19 of the Act
postulates that after expiry of the period of operation of an
award, be it from one year as specified in sub-section (3) or
for a reduced or extended period as contemplated in the
provisos annexed thereto, it does not automatically cease
to be binding on the parties. In other words, though the
period of operation expires, the binding effect of the award
would still survive. In order to terminate the award, the
party intending to terminate it must give a notice of two
months duration under sub-section (6) of section 19 of the
Act to the other party or parties. Language of sub-section
(6) makes it clear that even after the notice, the award
continues to be binding for a further period of two months
from the date on which it was given. Sub-section (7)
contemplates that notice must only be given by a party
representing the majority of persons bound by settlement
or award, as the case may be.
106. Now, question for consideration would be as to
whether notice given, under sub-section (6) of section 19
of the Act, was by a party representing the majority of
persons bound by the award, made by Industrial Tribunal,
Hyderabad. For an answer to this proposition, the evidence
adduced by the parties is to be looked into. As deposed by
Shri I.P. Ponnusamy, the Federation was registered as a
trade Union on 12.09.2005. He unfolds that in the year 2005,
members of the Federation were more than 15000. Shri
Ponnusamy went on to depose that in May 2011, there
were 10345 members of the Federation. Shri Ponnusamy
had detailed in his affidavit Ex.WW1/A that the dispute,
which was referred for adjudication to the Industrial
Tribunal, Hyderabad, was raised by the Federation. He
projects that the Federation is the representative body. He
further asserts that when the present dispute was raised,
at that time, there were about 15000 deposit collectors
working with the various banks, who were members of the
Federation. He went on to narrate that there were about
14000 deposit collectors, who were working with various
banks. The above facts remained un-assailed, when Shri
Ponnusamy faced rigors of cross examination. From facts
unfolded by Shri Ponnusamy, it came to light that the
Federation raised the dispute, in representative capacity in
the year 1980, which dispute was adjudicated by the
Industrial Tribunal, Hyderabad. When notice required
under sub-section (6) of section 19 of the Act was given
and the present dispute was raised, there were about 15000
deposit collectors who were members of the Federation. It
is crystal clear, out of facts testified by Shri Ponnusamy
that the Federation represents majority of persons bound
by the award, made by Industrial Tribunal, Hyderabad.
The notice to terminate the award, given under sub-section
(6) of section 19 of the Act, was given by the Federation,
who represents majority of the deposit collectors, bound
by the award of Industrial Tribunal , Hyderabad. The
evidence brought over the record is sufficient to conclude
that the Federation represents majority of the deposit
collectors and is their representative body. The objection
raised by the Association, to the effect that the notice
given under sub-section (6) of section 19 of the Act was
not from the party who represents majority of the deposit
collectors bound by the award, is uncalled for. The objection
is, accordingly, brushed aside. It is announced that a
representative body served the notice under sub-section
(6) of section 19 of the Act to terminate the award.
107. Next count of attack was made by the
Association claiming that the award, made by Industrial
Tribunal, Hyderabad, operates as res-judicata. According
to Shri Arora, the Federation as well as the Union are
estopped from raising any grievance against the award.
For an answer to this proposition, it would be considered
whether award dated 22.12.1988 would come to the rescue
of the Association as well as the banks. Section 19(3) of
the Act provides that an award of an Industrial adjudicator
remains operating for a period of one year from the date on
which it becomes enforceable. It can be terminated by any
party bound by it by giving a notice as required by sub-
section (6) of section 19 of the Act. An award continues to
be binding on the parties only as long as it remains in
operation. Therefore, there is a statutory bar to the reference
of an industrial dispute, which is the subject matter of an
operative award so long as a previous award is in force in
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6745
respect of a certain industrial dispute. Those disputes
cannot be referred as fresh to the industrial adjudicator by
merely changing the phraseology of the dispute and the
tribunal will not have jurisdiction to entertain the fresh
reference in respect of those matters of dispute. See British
India Corporation Ltd. (13 FJR 352), There can be no
reference while a valid award is subsisting. The Tribunal
will have no jurisdiction to decide the reference. See
Bangalore WC & S Mills Ltd. (1968(1) LLJ 555). In such
cases, question of application of principles of res judicata
does not arise.
108. It would also be expedient to note law relating to
doctrine of res-judicata. Law laid under section 11 of the
Code of Civil Procedure 1908 (in short the Code) embodies
the doctrine of res-judicata or the rule of conclusiveness
of a judgment, as to the point decided either of fact, or of
law, or of fact and law, in every subsequent suit between
the same parties. It enacts that once a matter is finally
decided by a competent court, no party can be permitted to
reopen it in a subsequent litigation. The doctrine of res-
judicata has been explained in the simplest possible manner
by Das Gupta J. in the case of Statyadhyan Chosal (AIR
1960 S.C. 941) in following words:
"The principle of res-judicata is based on the need
of giving a finality to judicial decision. What it says
is that once a res judicata, it shall not be adjudged
again. Primarily it applies as between past litigation
and future litigation. When a matter — whether on a
question of fact or a question of law—has been
decided between two parties in one suit or proceeding
and the decision is final, either because no appeal
was taken to a higher court or because the appeal
was dismissed, or no appeal lies, neither party will be
allowed in a future suit or proceedings between the
same parties to canvass the matter again".
109.
It is not every matter decided in a former suit
that will operate as res judicata in a subsequent suit. To
constitute a matter as res-judicata under section 11 of the
Code, the following conditions must be satisfied:
1.
The matter directly and substantially in issue
in the subsequent suit must be the same matter which was
directly and substantially in issue either actually or
constructively in the former.
2.
The former suit must have been a suit between
the same parties or between parties under whom they or
any of them claim.
3.
Such parties must have been litigating under
the same title in the former suit.
4.
The court which decided the former suit must
be a court competent to try the subsequent suit or the suit
in which such issue is subsequently raised.
5.
The matter directly and substantially in issue
in the subsequent suit must have been heard and finally
decided by the court in the former suit.
110. In Nawab Hussain, (1977 Lab. I.C.911), the Apex
Court enunciated general principles of doctrine of res-
judicata as under:
"The principle of estoppel per res judicata is a rule
of evidence. As has been stated in Marginson v.
Blackburn Borough Council [1939 (2) KB 426 at P.437]
it may be said to be "the broader rule of evidence
which prohibits the reassertion of a cause of action."
This doctrine is based on two theories: (i) the finality
and conclusiveness of judicial decisions for the final
termination of disputes in the general interest of the
community as a matter of public policy, and (ii) the
interest of the individual that he should be protected
from multiplication of litigation. It, therefore, serves
not only a public but also a private purpose by
obstructing the reopening of matters which have
once been adjudicated upon. It is thus not permissible
to obtain a second judgment for the same civil relief
on the same cause of action, for otherwise the spirit
of contentiousness may give rise to conflicting
judgments of equal authority, lead to multiplicity of
actions and bring the administration of justice into
disrepute. It is the cause of action which gives rise
to an action, and that is why it is necessary for the
courts to recognize that a cause of action which
results in a judgment must lose its identity and vitality
and merge in the judgment when pronounced. It
cannot therefore survive the judgment, or give rise
to another cause of action on the same facts. This is
what is known as the general principle of res-
judicata."
111. But there is no provision in the Act indicating as
to when and under what circumstances the subject matter
covered by an industrial award can be validly referred for
adjudication again after termination of such award; whether
an award given on a matter in controversy between the
parties after its termination in terms of sub-section (6) of
section 19 of the Act, after expiry of the period of one year
as postulated by sub-section (3) of section19 of the Act,
would operate as res judicata to a subsequent reference of
the same matter after adjudication or whether the Tribunal
has no option when such a matter is again referred to it for
adjudication but to proceed to try it de novo, traverse the
grounds again and come to a fresh decision? These
questions were addressed to by the Apex court in Burn &
Co. Ltd. [1957 (1) LLJ 226] and held that though section 11
of the Code, in term, is inapplicable to industrial adjudication,
the principle underlying it expressed in the maxim "interest
rei publicae ut sit finis litium", which is founded on sound
public policy and is of universal application being a rule
'debated by a wisdom which is for all time' is applicable to
the decisions of industrial adjudicator for 'good reasons'.
Approving the decision of the Labour Appellate Tribunal
in Army and Navy Stores Ltd. [1951(2) LLJ 31] and Ford
Motor Co. of India Ltd. [1951(2) LLJ 231], the Court ruled
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[PART II—SEC. 3(ii)]
that it would be contrary to the well-recognized principles
that a decision once rendered by competent authority as a
matter in issue between the parties after a full enquiry
should not be permitted to be re-agitated. It was further
pointed out that if 'an adjudication loses its force when it is
repudiated under section 19(6) of the Act and the whole
controversy is at large, then the result would be that far
from reconciling themselves to the award and settling down
to work it, either party will treat it as a mere stage in the
prosecution of prolonged struggle and far from bringing
industrial peace, the awards would turn out to be but truces
giving the parties breathing time before resuming hostile
action with renewed vigour. But realizing that in a case of
fixation of wage structure principles of res-judicata would
not apply, the Court added that by regarding the awards of
industrial adjudicators to have long terms of operations
and liable to be modified by change in the circumstances
on which they were based, the object of the Act would be
served. Thus, it emerges that general principles of res-
judicata will apply to the decisions of the industrial
adjudicators but the awards, based on prevailing
circumstances such as wage structure and dearness
allowance etc. though normally treated to have long term
operations, should be liable to be modified by change in
circumstances on which they are based.
112. In India General Navigation and Railway Co.
Ltd. [1960(1) LLJ 561], Balmer Lawrie and Co. Ltd. [1964 (1)
LLJ 380] and Shahdara (Delhi) Saharanpur Light Railway
Co. Ltd. [1969 (1) LLJ 734], the Apex Court ruled that the
awards based on prevailing circumstances are liable to be
modified by change in circumstances on which they were
based. The Calcutta High Court in Shankar Prasad Banerjee
[1975 (1) LLJ 71] stated above principle with precision and
clarity in following words:
'***the principle of res judicata would be normally
applicable to industrial adjudications or awards as
industrial settlements are intended, consistent with
the policy of the Industrial Disputes Act, 1947, to be
operative for a fairly long period unless there is
change of circumstances which may be basis of the
award. In cases where the award is based on
prevailing circumstances like determination of wage
structure and the like on existing price index with the
constant change of circumstances like spiraling of
prices, the principle of res-judicata would be
inappropriate and inapplicable. Such principle would
however be applicable when the award is not based
on prevailing circumstances but on rights claimed
long existing but found by the Labour Court as non-
existent and there is no scope for any change of the
rights or in the claim of the workmen on the employer
by reason of change of circumstances. In this state
of affairs, there can be no dispute that in such cases,
the principle of re- judicata would have full
application.'
113. The rule that wage structure was liable to be
revised only if there was a change in the circumstances,
was not adhered to by the Apex Court in Balmer Lawrie &
Co. Ltd.(supra). In that case, the Apex Court observed that
the adjudicator would not normally be justified in rejecting
the claim of the workmen for revision of wage scales, solely
on the ground that enough time had not passed after making
of the earlier award or that material change in the relevant
circumstances had not been proved. These factors were
not considered as justification to bar the claim for revision
of wage scale. On the other hand, some other factors such
as increase in the paying capacity of the employer, upward
trend in the cost of living, other anomalies, mistake or errors
in the earlier award, fixing the wage structure, the rise in the
wage structure in comparable industries in the region, were
considered as valid justification for wage revision.
Regarding applications of principles of res judicata to the
awards dealing with the revision of wage structure, the
Apex Court ruled thus:
'While dealing with the question about the revision
of wage scales, it is necessary to remember that the
technical considerations of res judicata should not
be allowed to hamper the discretion of industrial
adjudication. It is undoubtedly true that wage scales
are devised and wage structures constructed as
matters of long-term policy, and so, industrial
adjudication would naturally be reluctant to interfere
with the wage structures without justification or in a
lighthearted manner. When a wage structure is
framed, all relevant factors are taken into account
and normally it should remain in operation for a fairly
long period; but it would be unreasonable to
introduce considerations of res judicata as such,
because for various reasons which constitute the
special characteristics of industrial adjudication the
said technical considerations would be inadmissible.
As the Labour Appellate Tribunal itself has
observed, the principle of gradual advance towards
the living wage which industrial adjudication can
never ignore, itself constitutes such a special feature
of industrial adjudication that it renders the
application of the technical rule of res judicata
singularly inappropriate.'
114. When an award is terminated by a party under
sub-section (6) of section 19 of the Act, it is no longer
binding on the parties and will not, therefore bar subsequent
reference for fresh wage fixation on which a fresh award is
permissible on account of change in nature of industrial
problems and constant spiraling of prices. Application of
principle of res-judicata is in so far as claim for revision of
wage structure is concerned, is inconsistent with the
approach of the industrial adjudication from the minimum
wage towards living wage. The industrial adjudication
attempts to evolve a wage structure which may plead from
subsistence level to the living wage level and cannot be
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6747
checkmated by introducing technical rules, like res judicata
in the adjudicatory process.
115. Now attempt would be made to access as to
whether the fall back wages of Rs. 750.00 per month for
collection of Rs. 7500.00 by the deposit collectors, awarded
by the Industrial Tribunal, Hyderabad, have any linkage
with the circumstances prevailing in those days, when the
above award was made. For an answer contents of the
award, proved as Ex.WW1/3, are to be taken not of. As
emerge out of the award, the Federation made a claim to the
effect that the deposit collectors were entitled to pay scales,
allowances and other service conditions, as applicable to
clerical employees of the banks. Besides that demand, the
Federation claimed alternative reliefs, which are reproduced
below:
(i) Fall back wages of Rs. 750.00 linked with minimum
deposit of Rs. 7500.00 per month and attendance
of not less than one hour at the branch each day
for accounting and remittance purposes.
(ii) Incentive remuneration @5% for collections over
and above Rs. 7500.00 per month.
(iii) Conveyance allowance of minimum of Rs. 50.00
and Rs. 100.00 for deposit of Rs. 10,000.00 and
Rs. 30,000.00, Rs. 150.00 for deposit of in excess
of Rs. 30,000.00 upto Rs. 50,000.00 per month.
(iv) Paid weekly holiday and paid national festival
holidays. Annual leave of one month of every
11 months of service, sick leave of one month per
year.
(v) Retirement benefits, provident fund at 10%
contributory Gratuity of 15 days each year of
service and pension as per bipartite settlement to
clerical staff.
(vi) Medical and hospitalization as per bipartite
settlement to the clerical staff.
(vii) Risk insurance for one lac for death and
proportionate loss for bodily injury.
116. The Tribunal took note of the fact that the
Federation claimed that the award may be given
retrospective effect from 03.10.1980, the date when the
dispute was raised. While adjudicating the dispute, the
Tribunal ruled that deposit collectors were employees of
the banks, which findings were reaffirmed by the Andhra
Pradesh High Court and the Apex Court. Certain reliefs,
claimed by the Federation, were declined. However, the
Tribunal granted reliefs in favour of the deposit collectors,
which are extracted thus:
"(i)All those Deposit Collectors and agents who are
below the age of 45 years as on 03.10.1980 (the
date of reference to the Industrial Tribunal) shall
be considered for regular absorption in the post
of clerks and cashiers if they are matriculates and
above, including qualified graduates and post
graduates. They may be taken to bank's service
as regular employees if they pass the qualifying
examination conducted by the bank. Those who
are absorbed shall be treated at par with regular
clerical employees of the banks. Those who are
qualified with 8th class and below matriculates
shall be considered for absorption as sub staff by
taking qualifying examination.
(ii) As regards Deposit Collectors and agents who
are above 45 years of age as on 03.10.1980 and
also those who are unwilling to be absorbed in
regular bank service, they shall be paid fall back
wages of Rs. 750.00 per month, linkage with
minimum wages of Rs. 750.00 per month and they
should be paid incentive remuneration at 2% for
collection and over and above Rs. 7500.00 per
month and they should also be paid uniform
conveyance allowance of Rs.50 per month for
deposits of less than Rs.10,000,.00 and Rs.100 per
month for deposits of more than Rs. 10,000.00 or
upto or above Rs.30,000.00 per month. They
should be paid gratuity of 15 days commission
for each year or service rendered."
117. Relief of absorption in the services of the bank
was declined by the High Court, when matter reached
before it for judicial review. The Apex Court also reaffirmed
that proposition. Therefore, award of the Tribunal granting
fall back wages, incentive remuneration at 2% for collection
over and above Rs.7500.00 per month and conveyance
allowance was confirmed by the High Court and the Apex
Court. It emerged that the Tribunal took note of the
proposition relating to paying capacity of the bank, trends
of cost of living and wage structure prevalent in banking
industry in those days. Reference of 3rd October 1980, the
date of reference, in the award would make an ordinary
prudent man to say that while handing down the said award,
the Industrial Tribunal, Hyderabad, took note of prevalent
circumstances when it granted quantum of fall back wages
and incentive remuneration, besides conveyance allowance
in favour of the deposit collectors. The award, which is
based on prevalent circumstances, can be modified, taking
into account the spiraling rise in prices, paying capacity of
the banks and prevalent wage structure paid in comparable
industries in the region.
118. As noted above, the Apex Court ruled that there
was no question of grant of same pay scales, allowances
and other service conditions, as applicable to regular
employees of the banks, to the deposit collectors.
Therefore, question as to whether the deposit collectors
are entitled to same scales of pay, allowances and other
service conditions, as applicable to regular employees of
the banks, stood determined conclusively. There is no
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THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
change in the circumstances, which were prevalent at the
time when award dated 22.12.1988 was passed, relating to
grant of same scale of pay, allowances and other service
conditions. Therefore, question relating to grant of scales
of pay at par with regular employees of the banks,
allowances and other service conditions, to the deposit
collectors no more remains res integra. Principles of res
judicata are applicable to that adjudication. The Federation/
Union cannot raise such a question, since it was
conclusively adjudicated vide award dated 22.12.1988,
which merged in the orders passed by High Court of Andhra
Pradesh and the Apex Court.
119. Determination of fall back wages at Rs.750.00 on
a collection of Rs.750.00 and incentive remuneration at 2%
on collection over and above Rs.7500.00 per month, in award
dated 22.12.1988, was based on circumstances prevalent at
that time. An industrial adjudication makes gradual advances
towards living wage and for that purpose takes into
consideration various factors, such as: (i) conditions of
wage structure prevalent in the industry, (ii) condition of
wage level prevalent in the industry and the region, (iii)
wage packet as a whole is sufficient to meet economic
requirements of daily existence consistent with the status
of the earner in the society, his responsibilities, efficiency
at work and industrial peace, (iv) the position of the industry,
viewed in relation to other comparable industries, (v)
preemptive necessity for full neutralization of cost of living
at the rock bottom of wage scale or at just above
subsistence level, (vi) financial capacity of the employer,
and (vii) cost of living index and consumer price index etc.
These factors are only illustrative and not exhaustive.
Consideration of these factors itself constitute a special
feature of industrial adjudication. These factors may project
that question relating to fixation of wage structure is
normally based on prevalet circumstances, when such an
exercise is undertaken. As noted above, award Ex. WW1/3
bring it to the light that fall back wages and incentive
remuneration fixed therein were based on circumstances
prevalent at that time. Therefore, it is concluded that
adjudication as to fall back wages and incentive
remuneration in award Ex.WW1/3 would not operate as res
judicata. Submissions made by the Association and the
banks are discarded on that count.
120. The Federation/Union claim for enhancement of
fall back wages, incentive remuneration in the form of
commission and conveyance allowance, paid to the deposit
collector, pursuant to the award Ex.W1/3. It is apparent
that the deposit collectors got fall back wages and incentive
remuneration only as reward for the work done in the banks.
Resultantly, it emerged over the record that the
Federation/Union claim higher wage structure than those
granted in their favour by the Industrial Tribunal,
Hyderabad. An industrial adjudicator has to bear the
following points in mind while considering higher wage
structures for workmen:
(i) Better living conditions for workmen can only be
possible by giving them living wage which in turn
will tend to increase the national wealth and
income,
(ii) Higher wages, nearing a living wage, would
appreciably increase efficiency of workmen, by
enabling them to live in fair comfort and discharge
their obligations to the members of their families,
(iii) Wage structure nearing living wage would be
conducive to harmony and peace in the industry,
(iv) Claim of social justice and the national economy
to secure to workmen, a fair share of the national
income, which they help to produce,
(v) Requirements of a workman's living wages in a
civilized and progressive society.
121. Since the industrial adjudication tends in favour
of living wage to workmen, it becomes expedient to know
the concept of minimum wage, fair wage and living wage.
In Hindustan Times Ltd. [1963(1) LLJ 108], the Apex Court
ruled that minimum wage is at the bottom of the ladder.
There is minimum basic wage an employer of any industrial
labour must pay in order to lead to continuance of the
industry. In other words, minimum wages is lowest wage
below which efficiency of workmen is likely to be impaired.
The concept of minimum wage is not fixed and static, since
it varies from time to time and from place to place. Tripartite
Committee of Indian Labour Conference held in 1957
declared wage policy to be followed during the second
five year plan, laying following norms for fixation of
minimum wage:
i. In calculating the minimum wage, the standard
working class family should be taken to comprise
three consumption units for one earner, the
earnings of women, children and adolescents
being disregarded.
ii. Minimum food requirements should be calculated
on the basis of a net intake of 2700 calories as
recommended by Dr.Aykroyd for an average
Indian adult of moderate activity.
iii. Clothing requirements should be estimated on the
basis of a per capita consumption of 18 yards per
annum, which would give for the average worker's
family of four a total of 72 yards.
iv. In respect of housing, the minimum rent
corresponding to the minimum area for houses
provided under the Government's Industrial
Housing Scheme should be taken into
consideration in fixing the minimum wage, and
v. Fuel, lighting and other miscellaneous items of
expenditure should constitute 20 per cent of the
total minimum wage.
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122. In Reptakos Brett & Co. Ltd.(1992
Lab.I.C.289),the Apex Court adopted above factors and
added factors of children education, medical requirements.
minimum recreation, including festival/ceremonies and
provision of old age, marriage etc., who should constitute
25% of the total, as one of the standard for fixation of
minimum wage. For payment of minimum wage, capacity of
employer to pay it is treated as irrelevant. However, no
addition should be made to the components of minimum
wage, which would bring it near the lower level of fair wage.
At the same time, components of this concept must ensure
for the employee not only his subsistence and that of his
family, but must also preserve his efficiency as a worker. In
Kamani Metals & Alloys Ltd. (1976(2) LLJ 55), the Apex
Court ruled that minimum wage is to be paid to the workman,
which is bare subsistence. Observations made by the Court
are reproduced thus:
'...minimum wage which, in any event must be paid,
irrespective of the extent of profits, the financial
condition of the establishment or the availability of
workmen on lower wages. This minimum wage is
independent of the kind of industry and applies to
all alike big or small. It sets the lowest limit below
which wages cannot be allowed to sink in all
humanity'.
123. Fair wage is something above minimum wage,
'which may roughly be said to approximate to the need
based minimum in the sense of the wage which is adequate
to cover normal needs of an average employee regarded as
a human being in a civilized society', rules the Apex Court
in Hindustan Times Ltd.(Supra) In Express Newspapers
(P) Ltd.(1961(1) LLJ 339), the Apex Court described fair
wages as a mean between living wage and minimum wage.
Fair wage must also take note of economic reality of the
situation and minimum needs of the worker
having a fair
sized family, with an eye to the preservation of his efficiency.
In Kamanai Metals & Alloys Ltd.(supra), the Apex Court
details the following factors for fixation of fair wage:
"A fair wage is thus related to the earning capacity
and work load. It must, however, be realized that a
fair wage is not a living wage, by which is meant a
wage which is sufficient to provide not only essentials
mentioned above, but fair measure of frugal comfort,
with an ability to provide for old age and evil days.
Fair wage lies between minimum wage, which must
be paid in any event, and the living wage, which is
the goal."
124. Living wage, according to the Committee on
Fair Wages, represents higher level of wage, and naturally,
it would include all amenities which a citizen living in
modern civilized society is entitled to, when the economy
of the country is sufficiently advanced and the employer is
able to meet expanding aspirations of his workers. Economic
considerations make living wage only a dream for the future.
Industrial adjudicator generally confine their horizon to
the target of fixing a fair wage. In All India Reserve Bank
Employees Association (1965(2) LLJ 175), the Apex Court
remarked thus:
'... our political aim is 'living wage' though in actual
practice, living wage has been an ideal which has
eluded our efforts like an ever receding horizon and
will so remain for some time to come. Our general
wage structure is at best, reached the lower level of
fair wage, though some employers are paying much
higher wages than the general average.'
125. Living wage is a matter of concern and
mortification that even today, the aspiration of living wage
for workmen remains a mirage and a distant dream. Directive
principles enshrined in the Constitution make it a duty of
the State to strive and secure living wages for the working
class. However, it cannot be achieved at one stroke, for the
interests of the industry and its survival are as important
as betterment of the standard of living of the working class.
126. For fixation of wage structure, industrial
adjudicator had to take following counter balancing
circumstances into account:
(i) Unreasonable inroads into the profit of the
employer may have the tendency to drive the
capital away from the fruitful improvement and
may prejudicially affect the capital formation.
(ii) Wage-structure, which is beyond the financial
capacity of the employer, may lead to the closure
of the industry itself.
(iii) Wage structure, being a long range plan, a long
range view of the financial capacity of the industry
should be taken into consideration.
(iv) For considering increase in the wage, increase
should be correlated to minimum wage, in relation
to financial capacity of the industry to bear the
burden.
(v) Effect of increase on other similar industries in
the region, should be taken into consideration,
i.e. a wage structure should take into
consideration on industry-cum-region basis, after
giving careful consideration to the ability of the
industry to pay.
(vi) Total pay packet of the workmen, including
dearness allowance, other allowance and other
benefits enjoyed by them.
(vii) Effect of rise in prices, resulting from the rise in
wages, which may affect other members of the
community and even prejudicially affect living
conditions of the workmen themselves.
(viii) The effect of the rise in process on the international
trade of the country.
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[PART II—SEC. 3(ii)]
127. Now, I would turn to the facts unfolded by the
witnesses, examined by the Federation/Union as well as
the banks, in order to consider as to what would be the
structure of fall back wage for the deposit collectors.
Shri Ponnusamy unfolds in his affidavit Ex.WW1/A that
minimum wages and cost of living has gone up since 1980.
Rates of fall back wages, fixed by the Industrial Tribunal,
Hyderabad, in award passed in the year 1988 are still
continuing without any upward revision. As against this,
the pay scales for regular employees of the banks have
been raised ten times, as a result of bipartite settlements
signed by the Association and organization of the bank
employees from time to time. He went on to narrate that
total pay packet of a clerk, which stood at about Rs.1228.00
per month in 1980 has now gone up to Rs.12,064.00 per
month. Similarly, total pay packet of a sub staff has gone
up from Rs.910.00 per month in 1980 to Rs.8821.00 per month.
He details that price of petrol, so necessary for conveyance
of a deposit collector, which was hardly a few rupees per
litre in 1980 is currently selling at over Rs.50.00 per litre. He
presents that conveyance allowance, paid to deposit
collectors, has remained static at Rs.50.00 or Rs.100.00 per
month. During the course of his cross-examination, above
facts remained un-assailed since the witness was not
confronted by the banks on those propositions. The banks
put their cost benefit analysis to the witness to portrait
that the scheme is not remunerative, which documents were
disputed by the witness.
128. Shri Ashwani Vijh detailed in his affidavit
Ex.WW2/A that consumer price index (base 1960=100) has
since crossed 4400 points. Despite rise of consumer price
index fall back wages, commission and conveyance charges
fixed by Industrial Tribunal, Hyderabad, vide its award
dated 22.12.1988, have totally become out of date with
current reality of life and need urgent upward revision. He
has also produced a chart showing rise in petrol, kerosene,
diesel and LPG prices since April 1989 till July 2009, with a
view to substantiate his claim for revision of conveyance
allowance, paid to the deposit collectors. It would not be
out of place to mention that these facts were not at all
assailed by the Association as well as the banks, when
testimony of Shri Vijh was purified by an ordeal of cross-
examination.
129. Shri Ashish Bilala swears facts in his affidavit
Ex.WW3/A to the effect that banking industry is not one
of the sweated industries. Bank employees can reasonably
expect and demand payment of fair wages. He further
narrates that the Association and the banks do not claim
that they are running into losses. He claims that as per his
information, banks are making good profit and declaring
dividends. He quantifies profits, earned by some of the
public sector banks during the year 2005-06 and 2006-07,
as follows:
S.
Name of Banks
2005-06
2006-07
No.
(rupees in
(rupees in
crores)
crores)
1
Allahabad Bank
Rs.706.13 crore
Rs.750.14 crore
2
Andhra Bank
Rs.485.50 crore
Rs.537.60 crore
3
Bank of India
Rs.701.44 crore
Rs.1123.17 crore
4
Bank of Maharashtra
Rs.50.79 crore
Rs.271.84 crore
5
Canara Bank
Rs.1343.22 crore
Rs.1420.81 crore
6
Central Bank of India Rs.257.42 crore
Rs.498.01 crore
7
Corporation Bank
Rs.4444.46 crore
Rs.536014 crore
8
Dena Bank
Rs.72.99 crore
Rs.201.56 crore
9
Indian Bank
Rs.504.48 crore
Rs.759.77 crore
10
Indian Overseas bank
Rs.783.34 crore
Rs.1006.43 crore
11
Oriental Bank of
Rs.557.16 crore
Rs.580.81 crore
Commerce
12
Punjab & Sind Bank
Rs.108.33 crore
Rs.218.53 crore
13
Punjab National Bank Rs.1439.31 crore
Rs.1540.08 crore
130. Rate of compensation for the deposit collectors
remained static and in fact had gone down since it was
fixed by the Industrial Tribunal, Hyderabad, in 1988,
announces Shri Bilala. He details that most of the banks
have reduced the commission paid to deposit collectors
from 3.5% to 2%, after judgment was handed down by the
Apex Court. Reduction of rate of commission had caused
hardship to deposit collectors, when prices are going up
and they are required to maintain the same living standards
for their family and children.
131. Shri Ashok Kumar claims in his affidavit
Ex.WW4/A that revision in salary of regular employees of
the banks had been ten times since 1980, which fact clearly
establishes financial capacity of the banks to pay more to
the deposit collectors. Though the prices have touched
the sky, yet the deposit collectors are getting same fall
back wages and incentive remuneration, which were
awarded by the Industrial Tribunal, Hyderabad. Travelling
allowance at actual rate is demanded by the deposit
collectors since price of petrol has gone up from Rs.13 per
liter in 1980 to Rs.75 per litre as on date. 4216 pigmy deposit
collectors were working in 1587 branches of Syndicate Bank
as on 31.03.2011. Pigmy deposit balance has been increased
from Rs.1195.64 crores to Rs.2656.28 crores from 31.03.2001
to 31.03.2011, which information was obtained by him under
Right to Information Act, 2005, details Shri Kumar.
132. Shri A.N. Shivanand Babu brings figures on
record relating to cost of living in Benguluru, Delhi,
Mumbai, Kolkata and Chennai, through documents
Ex.WW5/1 to Ex.WW5. He also details that scale wages of
regular employees of the banks have been enhanced from
time to time, with a view to project that cost of living has
gone up. At the cost of repetition, it is pointed out that the
above facts, testified by these witnesses have not been
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6751
questioned at all when these witnesses faced rigors of
cross-examination.
133. Shri K. Ganeshan, Vice President of the
Association, swears in his affidavit Ex.MW1/A that daily
small saving schemes known as Pigmy Deposit, Tiny
Deposit, Janta Deposit, Nithya Deposit etc. were primarily
aimed to inculcate habit of saving and banking amongst
public with limited means and saving capacity. With the
expansion of banks and branch network in all population
areas as well as rise in cost of running such schemes, the
importance of such schemes has diminished and several
banks have discontinued the scheme. No new deposit
collectors is being engaged by the public/private sector
banks, since the schemes are not profitable at all. He details
that at present only 22 banks are having small deposit
collection schemes, while in 1980 the scheme was in
operation in about 43 banks. With the increase in the
banking business, banking branches as well as in
technology, the demand for such deposit schemes have
diminished. Placing cost benefit analysis, conducted by
the Indian Bank, Tamil Nadu Mercantile Bank Ltd, Punjab
National Bank, Vijaya Bank, Andhra Bank and UCO bank
on record, the witness asserts that such schemes have
become non-remunerative. During the course of his cross
examination, he concedes that the banks, where deposit
collectors are engaged, are making profits and declaring
dividends. He also admits that cost of living is increasing
day by day, since 1988. He announces that in the year
2007, there were 10274 deposit collectors working with
various banks. According to him, deposit collectors may
be getting less than the minimum wages notified for an
unskilled worker. He further admits that object of small
deposit schemes still subsists. He admits that Ex.MW1/
W1 to Ex.MW1/W4 are annual reports of four banks while
Ex.MW1/W5 is half yearly report of Punjab National Bank.
134. Shri Neeraj Gupta unfolds in affidavit Ex.MW2/
A that a small deposit scheme was introduced by Punjab
National Bank in 1978. As on date, there are 162 deposit
collectors working for the bank and the scheme has not
remained profitable at all. With the increase of banking
business, banking branches and computerization of the
bank, the scheme no longer remains remunerative. During
the course of cross-examination, he admits that the bank is
making profit and had not incurred any loss during the last
4-5 years. He further admits that in third quarter of the year
2011, the bank had earned profit of Rs.1150 crores and in
earlier nine months, it had earned a profit of Rs.3460 crores.
135. Shri S. Satheesh Kumar unfolds in his affidavit
Ex.MW3/1A that South Indian Bank introduced small
deposit saving scheme in the year 1965, which was primarily
aimed at inculcating habit of saving and banking amongst
people with limited means and saving capacity. He narrates
that with the expansion of bank and branch network as
well as rising cost of running such schemes, importance of
the scheme has diminished. Out of its 675 branches, bank
has the scheme only in 71 branches. Total balance
outstanding under the scheme as on 31.03.2011 was
Rs.15.68 crores, out of which bank had to keep Rs.0.94
crore as cash reserve ratio and Rs.3.76 crore as statutory
liquidity ratio. Average income on amount kept as statutory
liquidity ratio is 7%, which comes to total of 0.26 crore.
Bank can only lend balance amount of Rs.10.98 crore, on
which average yield would be 10.90%. Thus income from
the above advances would be Rs.1.20 crore. On the other
hand, total cost of collection on scheme comes to Rs.1.59
crores. Break up of Rs 1.59 crore is interest on deposit
@4.86% (Rs.0.76 crore), commission paid to the deposit
collectors (Rs.0.56 crore,) staff cost of Rs.0.18 crore and
operating cost of Rs.0.09 crore. Thus bank's cost is more
than the benefit by Rs.0.13 crores. This scheme floated by
the bank is not profitable at all. During the course of his
cross-examination, he showed ignorance as to whether bank
earns profit on saving bank accounts or not.
136. Shri T.N.S. Murali deposed that small deposit
saving scheme was introduced by Vijaya Bank around 1970,
which scheme has lost its utility. When the scheme was
introduced, the bank had only 126 branches, which has
now gone up to 12467 branches, 44 extension counters
and 6889 ATMs. The scheme is not at all profitable, as
projected in cost benefit analysis, Ex.MW4/1. During the
course of cross examination, he admits that 580 deposit
collectors are working with the bank. He further admits
that the bank is earning profit. Bank charges interest from
4% to 22% on its advances. However, he could not explain
on what type of advances 4% interest is charged by the
bank. He admits that Ex.MW4/1 has not been certified by
auditors of the bank.
137. Shri Kushal Pal announces that Central Mini
Deposit Scheme was introduced by Central Bank of India
in 1978, which is not profitable at all at this juncture. There
were about 1970 branches when the scheme was introduced
but at present the bank has about 4000 branches, 178
extension counters and more than 1500 ATMs. At present
there are 410 deposit collectors working with the bank.
Cost benefit analysis Ex.MW6/1 projects that the scheme
is not economically viable. However, he admits that
EX.MW5/1 has not been certified by auditors of the bank.
Bank has been earning profits since the last many hears,
admits Shri Pal.
138. Shri M.L. Makkad deposes that State Bank of
Bikaner and Jaipur introduced small deposit scheme in the
year 1975, which is now not at all profitable. There were
about 363 branches of the bank when the scheme was
introduced. At present, the bank has 921 branches and
large number of ATMs. On account of expansion of
business of the bank, the scheme has lost its utility. He
admits that cost benefit analysis, which is Ex.MW6/1, has
not been certified by the auditors of the bank. Bank had
been earning profits, deposes Shri Makkad.
6752
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
139. Shri Shyamal Sinha swears in his affidavit
Ex. MW7/A that Indian Bank reintroduced small deposit
scheme in 1993. At that time, bank had about 1253 branches.
Now there are 1932 branches of the bank, besides 1235
ATMs. At present, there are 100 deposit collectors working
with the bank. Due to increase in banking business,
expansion of bank branches, advancement in technology
in banking sector, demand for such deposit scheme is not
there. The scheme is not at all viable. He admits that in cost
benefit analysis, proved as Ex. MW7/1, staff cost
represented cost incurred on the staff who is supposed to
maintain record in respect of collections made by the
deposit collectors. He further admits that the bank is earning
profit.
140. Shri C.M. Duggal presents that Federal Bank
introduced the scheme in 1970s, which is not at all
economically viable as on date. The bank has 950 branches,
besides 1030 ATMs. Utility of the scheme has diminished
since there are 35 deposit collectors working with the bank.
He admits that the bank is making profits. He further admits
that a sum of Rs.9237211.00 earmarked towards gratuity for
the financial year 2010-11 has not been invested by the
bank for any purpose.
141. Shri Ajit Kumar Srivastava deposes that Canara
Bank introduced small deposit scheme, known as New Nitya
Nidhi Deposit Scheme. The scheme has lost its utility. When
the scheme was introduced there were less than 2000
branches of the bank. However, at present, the bank has
3569 branches besides 2666 ATMs. Cost benefit analysis
projects that the scheme is not at all economically viable.
He admits that cost benefit analysis Ex. MW9/1 has not
been authenticated by auditors of the bank. He further
admits that the bank is earning profits.
142. Shri Sunil Prakash presents that Union Bank of
India introduced the scheme in 1980s. At that time, there
were about 1000 branches, which has increased upto 3200,
besides more than 3000 ATMs. In the year 2005, the bank
had only 127 deposit collectors working with it. He
concedes that cost benefit analysis, proved as Ex. MW10/
1, has not been authenticated by the auditors of the bank.
He makes a candid admission that the bank earns profits.
143. Shri Arun Kumar Tyagi declares that pigmy
deposit scheme was introduced by Syndicate Bank in1928,
which was modified in the year 2007. According to him,
there were 2493 branches of the bank as on 31.30.2011, out
of which 1587 breaches are having pigmy deposit accounts.
There are 34216 deposit collectors as on 31.03.2011. In case
demand made by the Federation/Union relating to
enhancement of fall back wages and conveyance allowance
would be accepted, the scheme would not remain profitable
for the bank. He admits that after reference of the dispute
to this Tribunal for adjudication, the bank had engaged
1300 new deposit collectors. He also does not dispute that
the bank earns profits. He admits that cost benefit analysis,
proved as Ex. MW11/1, has not been authenticated by the
auditors of the bank.
144. Shri Sudershan D. Sheth presents that honey
deposit scheme, introduced by Karnataka Bank is causing
loss of Rs. 0.29 per Rs.100.00 collected by the deposit
collectors. A sum of Rs. 93,43,97,447.00 was collected by
the deposit collectors in the financial year 2010-11, on which
commission of Rs.1,87,65,780.00 was paid. There were 170
deposit collectors as on 31.03.2011. He admits that cost
benefit analysis, proved as Ex. MW12/12 and Ex. MW12/3,
are not certified by auditors of the bank. According to him
from 2005 to 2011, there is small increase in earning of the
bank from the scheme but the increase is not continuous.
145. Shri Joginder Pal Bhagat announced that Laghu
Bachat Yojna Deposits was introduced by UCO bank in
the year 1977. At that time, there were 1005 branches of the
bank, which has gone upto to 23890 besides 864 ATMs. At
present, 458 deposit collectors are working with the bank.
The scheme no more remained profitable. He concedes
that the bank is earning profits. He also admits that cost
benefit analysis, proved as Ex. MW13/1, has not been
certified by auditors of the bank.
146. Shri Anil Kumar V. deposes that State Bank of
Travancore does not find the scheme remunerative. State
Bank of India discontinued the scheme in the year 2001
due to heavy losses and loss of popularity of the scheme.
Andhra Bank, State Bank of Patiala and Canara Bank etc.
have also discontinued the scheme. However, he admits
that the bank is earning profit consistently. He further
admits that the cost benefit analysis, proved as Ex. MW14/
1, has not been prepared by auditors of the bank.
147. Shri R. Venkatesh details that State Bank of
Mysore does not find the scheme lucrative any more. The
bank is suffering losses from the scheme. However, during
the course of cross examination, he admits that the profit
of the bank has not gone down during the last 4-5 years.
Cost benefit analysis, proved as Ex. MN15/2 and Ex. MW15/
3, are not prepared by auditors of the bank.
148. Shri P. Venugopal of State Bank of Hyderabad
deposes that janata deposit scheme was introduced by the
bank in 1977. In the year 2005, the scheme was found not at
all commercially feasible. Cost benefit analysis as on
01.04.2005 as well as 01.04.2011 project that scheme is
causing loss to the bank. Vide circular dated 06.02.2010,
the bank sought to discontinue the scheme. The bank was
dragged into litigation on that count by the Federation.
The bank took final decision on 20.02.2010 that the scheme
is not at all viable. Services of the deposit collectors were
discontinued with effect from 22.01.2012. The bank is out
of pocket, while retaining these deposit collectors. During
the course of his cross examination, he concedes that
profits of the bank had not gone down during the last 4-5
years. Cost benefit analysis was not done by the bank to
¹Hkkx II—[k.M 3(ii)º
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6753
assess financial viability of the award staff and officers of
the bank.
149. When facts unfolded by Shri Ponnusamy, Shri
Ashwini Vijh, Shri Bilala, Shri Ashok Kumar and Shri A.N.
Shivanand Babu are scanned, it came to light that rates of
fall back wages fixed by Industrial Tribunal, Hyderabad,
vide award dated 22.12.1988, still continues without any
upward revision. Award Ex. WW1/3 passed by Industrial
Tribunal, Hyderabad, fixes fall back wages of Rs.750.00 on
collection of Rs.7500.00, besides incentive remuneration
of 2% for collection of over and above Rs.7500.00 per
month. Witness examined by and on behalf of the
Federation /Union project that the fall back wage, fixed by
the Industrial Tribunal, Hyderabad, are inadequate as cost
of living has gone up. The witnesses portrait a picture that
it had become very difficult for deposit collectors to provide
bare subsistence of life, not to talk of preservation of their
efficiency and measures of education, medical requirements
and other amenities to their family members. S/Shri K.
Ganeshah, Neeraj Gupta, S. Satheesh Kumar, Shri TNS
Murali, Kushal Pal, M.L. Makkad, Shyamal Singh, C.M.
Duggal, Ajit Kumar Srivastava, Arun Kumar Tyagi,
Sudarshan D. Sheth, Joginder Pal Bhagat, Anil Kumar V.
and R. Venkatesh nowhere dispute that the fall back wages
and incentive remuneration, admissible to deposit
collectors on collection of over and above Rs.7500.00 per
month, is too meager to enable the deposit collectors to
cover their bare physical needs and keep themselves just
above starvation. Therefore, facts highlighted by the above
witnesses bring it over the record that the fall back wages
and incentive remuneration, admissible to the deposit
collectors, do not constitute an amount sufficient to meet
bare subsistence for them as well as their family members.
There has been a complete agreement on the proposition
amongst witnesses examined by the Association and the
banks that the money packet, which reaches hands of the
deposit collectors, is not sufficient for their bare subsistence
and their family members. It does not include any expenses
necessary for their other primary needs such as medical
expenses, expenses to meet some education for their
children, minimum recreation, provision for old age and in
some cases transport charges etc. One can say that with
the amount which a deposit collectors earns in a month, a
standard family cannot embark to live a life above
subsistence level. I have every reason to conclude that the
fall back wages and incentive remuneration admissible to
the deposit collectors, even does not meet the standards
on which minimum wages are fixed by the State Government
for a workman, from time to time.
150. What are the minimum wages for an employee
of skilled category? For an answer, areawise rates of minimum
wages notified for scheduled employment in central sphere,
are to be taken note of. Below mentioned rates of minimum
wages were notified as on 01.04 2013:
Name of
Category of Worker
Rates of wages including V.D.A. per day
Scheduled
(in Rs.)
Employment
Area A
Area B
Area C
1
Agriculture
Unskilled
195.00
177.00
175.00
Semi-Skilled Supervisory
213.00
197.00
180.00
Skilled/Clerical
232.00
213.00
196.00
Highly Skilled
258.00
238.00
213.00
2.
Workers engaged
1. Excavation & removal of over burden with 50 meters lead/1.5 meters lift:
in Stone Mines for
(a) Soft Soil
198.11
Stone Breaking and
(b) Soft Soil with Rock
299.63
Stone Crushing
(c) Rock
397.26
2. Removal and Staking of
rejected stones with 50 metres
158.10
lead 1.5 metres lift
Stone breaking or Stone Crushing for the stone size
(a) 1.0 inch to 1.5 Inches
1232.87
(b) Above 1.5 Inches to 3.0 Inches
1053.41
(c) Above 3.0 Inches to 5 Inches
615.89
(d) Above 5.0 Inches
505.66
3.
Sweeping and Cleaning
Unskilled
297.00
246.00
198.00
4.
Watch and Ward
Without Arms
328.00
279.00
231.00
With arms
361.00
328.00
279.00
5.
Loading and
Unskilled
297.00
246.00
198.00
Unloading
6754
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
6.
Construction
Unskilled
297.00
246.00
198.00
Semi-Skilled Supervisory
328.00
279.00
231.00
Skilled/Clerical
361.00
328.00
279.00
Highly Skilled
393.00
361.00
328.00
7.
Non-Coal Mines
Above
Below
Ground
Ground
Unskilled
198.00
246.00
Semi-Skilled Supervisory
246.00
297.00
Skilled/Clerical
297.00
345.00
Highly Skilled
345.00
393.00
Name of Scheduled
Employment
Nomenclature
1.
Agriculture
Agriculture
2.
Workers engaged in Stone
Workers engaged in Stone Mines for Stone Breaking and Stone Crushing
Mines for Stone Breaking
and Stone Crushing
3.
Sweeping and
Employment of Sweeping and Cleaning excluding Activities prohibited under the
Cleaning
Employment of Manual Scavengers and Construction of Dry Latrines
(Prohibition) Act, 1993
4.
Watch and Ward
Employment of Watch and Ward
5.
Loading and
Employment in Loading and Unloading in (i) Goods Sheds, Parcel Offices of Railways;
Unloading
(ii) Other Goods sheds, Godowns, Warehouses etc. and; (iii) Docks and Ports
6.
Construction
Construction or maintenance of Roads or Runways or in Building Operations including
laying down Underground Electric, Wireless, Radio, Television, Telephone, Telegraph
and Overseas Communication Cables and similar other Underground Cabling Work,
Electric Lines, Water Supply Lines and Sewerage Pipe Lines
7.
Non-Coal Mines
Employees engaged in the employment of Gypsum, Barytes, Bauxite, Manganese,
China Clay, Kyanite, Copper, Clay, Magnesite, White Clay, Stone, Steatite (including
the mines producing Soap Stones and Talc), Orchre, Asbestos, Fire Clay, Chromite,
Quartzite, Quartz, Silica, Graphite, Felspar, Laterite, Dolomite, Red Oxide, Wolfram, Iron
Ore, Granite, Rock Phosphate, Hematite, Marble and Calcite, Uranium, Mica, Lignite,
Grave, Slate and Magnetite Mines
151. Following chart details cities classified as Area 'A', Area 'B' and Area 'C' for the purposes of minimum wages,
referred above:
AREA — "A"
Ahmedabad
(UA)
Hyderabad
(UA)
Faridabad
complex
Bangaluru
(UA)
Kanpur
(UA)
Ghaziabad
(UA)
Kolkata
(UA)
Lucknow
(UA)
Gurgaon
Delhi
(UA)
Chennai
(UA)
Noida
Greater Mumbai
(UA)
Nagpur
(UA)
Secundrabad
Navi Mumbai
(UA)
Name of
Category of Worker
Rates of wages including V.D.A. per day
Scheduled
(in Rs.)
Employment
Area A
Area B
Area C
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6755
AREA — "B"
Agra
(UA)
Jodhpur
Jabalpur
(UA)
Ajmer
Kochi
(UA)
Jaipur
(UA)
Aligarh
Kolhapur
(UA)
Jalandhar
(UA)
Allahabad
(UA)
Kozhikode
(UA)
Jamshedpur
(UA)
Amravati
Kota
Puducherry
(UA)
Aurangabad
(UA)
Ludhiana
Jalandhar-cantt.
(UA)
Bareilly
(UA)
Madurai
(UA)
Dhanbad
(UA)
Bhavnagar
(UA)
Meerut
(UA)
Dehradun
(UA)
Bikaner
Moradabad
(UA)
Durg-Bhilai Nagar
(UA)
Bhopal
(UA)
Mysore
(UA)
Jammu
(UA)
Bhubaneshwar
(UA)
Nasik
(UA)
Jamnagar
(UA)
Amritsar
(UA)
Pune
(UA)
Vijayawada
(UA)
Chandigarh
(UA)
Patna
(UA)
Vishakhapatnam
(UA)
Coimbatore
(UA)
Raipur
(UA)
Warangal
Cuttack
(UA)
Rajkot
Mangalore
(UA)
Durgapur
(UA)
Ranchi
(UA)
Salem
(UA)
Gorakhpur
(UA)
Sholapur
(UA)
Tiruppur
(UA)
Guwahati
(UA)
Srinagar
(UA)
Tiruchirappalli
(UA)
Guntur
Surat
(UA)
Asansol
(UA)
Gwalior
(UA)
Thiruvananthapuram
(UA)
Belgaum
(UA)
Indore
(UA)
Vadodara
(UA)
Bhiwandi
(UA)
Hubli-Dharwad
Varanasi
(UA)
AREA 'C' will comprise all areas not mentioned in this list. NB : U.A. stands for Urban Agglomeration.
152. Minimum rates of wages notified by Government of NCT Delhi in various scheduled employments as on
01.04.2013, are as follows:
S.
Scheduled employment
Category of
Basic
VDA
Total
No.
Workers
Minimum
Wages
wages
1
Agriculture
Unskilled
203.00
0.00
203.00
Semi-skilled
225.00
0.00
225.00
Skilled
248.00
0.00
248.00
2
Automobile Engineering, including
Unskilled
203.00
0.00
203.00
Servicing and Repair work of
Semi-skilled
225.00
0.00
225.00
Automobiles
Skilled
248.00
0.00
248.00
3
Bakery, Confectionery, Dairy
Unskilled
203.00
0.00
203.00
products, Food preservation etc.
Semi-skilled
225.00
0.00
225.00
Skilled
248.00
0.00
248.00
4
Brick Kiln Industry
Unskilled
203.00
0.00
203.00
Semi-skilled
225.00
0.00
225.00
Skilled
248.00
0.00
248.00
5
Cement Working Establishments
Unskilled
203.00
0.00
203.00
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THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
Semi-skilled
225.00
0.00
225.00
Skilled
248.00
0.00
248.00
6
Chemicals
Unskilled
203.00
0.00
203.00
Semi-skilled
225.00
0.00
225.00
Skilled
248.00
0.00
248.00
7
Clubs
Unskilled
203.00
0.00
203.00
Semi-skilled
225.00
0.00
225.00
Skilled
248.00
0.00
248.00
8
Construction and maintenance of
Unskilled
203.00
0.00
203.00
roads or in building operation
Semi-skilled
225.00
0.00
225.00
Skilled
248.00
0.00
248.00
9
Dal and Flour mills
Unskilled
203.00
0.00
203.00
Semi-skilled
225.00
0.00
225.00
Skilled
248.00
0.00
248.00
10
Delhi Transport Corporation
Unskilled
203.00
0.00
203.00
Semi-skilled
225.00
0.00
225.00
Skilled
248.00
0.00
248.00
11
Foundries with or without machine
Unskilled
203.00
0.00
203.00
shop
Semi-skilled
225.00
0.00
225.00
Skilled
248.00
0.00
248.00
12
Private hospitals and nursing homes
Unskilled
203.00
0.00
203.00
not carried on by Government or
Semi-skilled
225.00
0.00
225.00
local Authorities
Skilled
248.00
0.00
248.00
13
Ice Factories and Cold Storage
Unskilled
203.00
0.00
203.00
Semi-skilled
225.00
0.00
225.00
Skilled
248.00
0.00
248.00
14
Local authorities
Unskilled
203.00
0.00
203.00
Semi-skilled
225.00
0.00
225.00
Skilled
248.00
0.00
248.00
15
Laundries, Laundry services, Cleaning
Unskilled
203.00
0.00
203.00
and Dyeing Plants, i.e. Factories/shops
Semi-skilled
225.00
0.00
225.00
Skilled
248.00
0.00
248.00
16
Metal working establishments other
Unskilled
203.00
0.00
203.00
than Foundries and Automobile
Semi-skilled
225.00
0.00
225.00
Engineering Workshop
Skilled
248.00
0.00
248.00
17
Oil Mills
Unskilled
203.00
0.00
203.00
Semi-skilled
225.00
0.00
225.00
Skilled
248.00
0.00
248.00
18
Plastic, Rubber including Cable
Unskilled
203.00
0.00
203.00
industries
Semi-skilled
225.00
0.00
225.00
Skilled
248.00
0.00
248.00
19
Pottery industries
Unskilled
203.00
0.00
203.00
Semi-skilled
225.00
0.00
225.00
Skilled
248.00
0.00
248.00
20
Printing Press
Unskilled
203.00
0.00
203.00
S.
Scheduled employment
Category of
Basic
VDA
Total
No.
Workers
Minimum
Wages
wages
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6757
Semi-skilled
225.00
0.00
225.00
Skilled
248.00
0.00
248.00
21
Private unrecognized Teaching
Unskilled
203.00
0.00
203.00
Institutions
Semi-skilled
225.00
0.00
225.00
Skilled
248.00
0.00
248.00
22
Public Motor Transport
Unskilled
203.00
0.00
203.00
Semi-skilled
225.00
0.00
225.00
Skilled
248.00
0.00
248.00
23
Readymade Garments
Unskilled
203.00
0.00
203.00
Semi-skilled
225.00
0.00
225.00
Skilled
248.00
0.00
248.00
24
All Shops and other Establishments
Unskilled
203.00
0.00
203.00
(Covered by Delhi shops and Estt.
Semi-skilled
225.00
0.00
225.00
Act, 1954)
Skilled
248.00
0.00
248.00
25
Stone Breaking/Stone crushing
Unskilled
203.00
0.00
203.00
Semi-skilled
225.00
0.00
225.00
Skilled
248.00
0.00
248.00
26
Textile Industry, including Hosiery
Unskilled
203.00
0.00
203.00
Handloom, Niwar, Thread Ball Mfg.
Semi-skilled
225.00
0.00
225.00
Name Label, Dyeing, printing of
Skilled
248.00
0.00
248.00
Textile
27
Manufacturing of Radio and
Unskilled
203.00
0.00
203.00
Television including sound producing
Semi-skilled
225.00
0.00
225.00
and recording, Equipment including
Skilled
248.00
0.00
248.00
tape recorders, electric apparatus,
appliances & their accessories
28
All registered factories not covered
Unskilled
203.00
0.00
203.00
by the employment at item nos.1 to 26
Semi-skilled
225.00
0.00
225.00
Skilled
248.00
0.00
248.00
29
Work Working establishments
Unskilled
203.00
0.00
203.00
including saw mills
Semi-skilled
225.00
0.00
225.00
Skilled
248.00
0.00
248.00
153. Unskilled, semi skilled and skilled employees would get following rates of wages in all scheduled employment in
Delhi, except employment in shops and clubs, as on 01.04.2013:
Category
Rates as on
Dearness
Rates from (Rs.) 01.04.2013
01.10.2012
Allowance (pm)
wef 01.04.2013
Rupees
Rupees
Per month
Per day
Unskilled
7254.00
468.00
7722.00
297.00
Semi Skilled
8008.00
520.00
8528.00
328.00
Skilled
8814.00
572.00
9386.00
361.00
S.
Scheduled employment
Category of
Basic
VDA
Total
No.
Workers
Minimum
Wages
wages
6758
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
155. To ascertain quantum of fall back wages for the
deposit collectors, it would be expedient to know the
category of employment in which deposit collectors fall.
The deposit collectors are held to be workmen, a class in
themselves. Whether they fit in any category of employees,
who serve the banks? For an answer, the Tribunal has to
note the categories of employees, employed by the banks.
Shastri Award classifies employees of the bank in the
following categories: (a) permanent employees;
(b) probationers; (c) temporary employees; and (d) part-
time employees. The employees of the above categories
have been defined to mean as:
(a)
"permanent employee" means an employee who has
been appointed as such by the bank,
(b)
"probationer" means an employee who is
provisionally employed to fill a permanent vacancy
or post and has not been made permanent or
confirmed in service,
(c)
"temporary employee" means an employee who has
been appointed for a limited period for work which is
of an essentially temporary nature, or who is
employed temporarily as an additional employee in
connection with a temporary increase in work of a
permanent nature,
(d)
"part-time employee" means an employee who does
not or is not required to work for the full period for
which an employee is ordinarily required to work
and who is paid on the basis that he is or may be
engaged in doing work elsewhere.
156. As is evident, the banks employ part time
employees. It is not a matter of dispute that the deposit
collectors are workmen within the meaning of section 2(s)
of the Act, who are not awarded scales of wages applicable
to the employees of the banks. They are a special class in
themselves. Neither they are classified as part time
employees nor permanent employees. However, for the
purpose of assessment of their fall back wages and incentive
remunerations it would be taken note of as to what quantum
of wages a part time employee gets from the banks. 9th
Bipartite Settlement, signed on wage revision, pension and
other service conditions between the Association and their
workmen represented by their various Unions on
27.04.2010, details wages paid to a part time employee.
Clause 21 of the said settlement provides as follows:
"In substitution of Clause 21 of the Bipartite
Settlement dated 2nd June 2005, with effect from
1st November 2007, Part-Time employees who are
members of the subordinate staff on consolidated
wages and whose normal working hours per week
are "upto 3 hours' and "more than 3 hours but less
than 6 hours" shall be paid one third scale wages
w.e.f. 1st May, 2010. From 1st November, 2007 to
30th April, 2010, they shall be paid consolidated
wages as under:
a. Upto 3 hours : at bank's discretion with a minimum
of Rs.10301- p.m.
b. More than 3 hours but less than 6 hours : at bank's
discretion with minimum of Rs.1140/- p.m.
154. Following are minimum rates of wages notified by the Government of NCT of Delhi for (i) employment in Shops
and Establishments (ii) in clubs, as applicable on 01.04.2013:
Category
Rates as on
Dearness
Rates from
01.10.2012
Allowance (pm) (Rs.) 01.04.2013
wef 01.04.2013
Rupees
Rupees
Per month
Per day
Unskilled
(i) 7254.00
468.00
(i)
7722.00
(i) 297.00
(ii) 7098.00
(ii)
7566.00
(ii) 291.00
(iii) 6396.00
(iii)
6864.00
(iii) 264.00
(iv) 6292.00
(iv)
6760.00
(iv) 260.00
Semi skilled
(i) 8008.00
520.00
(i)
8528.00
(i) 328.00
(ii) 7852.00
(ii)
8372.00
(ii) 322.00
(iii) 7046.00
(iii)
7566.00
(iii) 291.00
(iv) 6942.00
(iv)
7462.00
(iv) 287.00
Skilled
(i) 8814.00
572.00
(i)
9386.00
(i) 361.00
(ii) 8632.00
(ii)
9204.00
(ii) 354.00
(iii) 7774.00
(iii)
8346.00
(iii) 321.00
(iv) 7644.00
(iv)
8216.00
(iv) 316.00
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6759
The employees recruited on or after 1st May, 2010 in part-time:scale wages shall be at minimum of one-third scale
wages.
157. Scales of pay for clerical staff and subordinate staff, settled under 9th bipartite settlement, are reproduced below:
(a) In supersession of Clause 4 of Bipartite Settlement dated 2nd June, 2005, with effect from 1st November, 2007 the
scales of pay shall be as under:—
Clerical Staff
6200
400
7400
500
8900
600
11300
700
16200
1300
17500
800
18300 (20 years)
3
3
4
7
1
1
Suborinate Staff
5500
200
6300
250
7550
300
8750
350
9800
400
11000
(20 years)
4
5
4
3
3
(b) With effect from lst May, 2010 the scales of pay shall be as under:
Clerical Staff
7200
400
8400
500
9900
600
12300
700
17200
1300
18500
800
19300 (20 years)
3
3
4
7
1
1
Subordinate Staff
5850
200
6650
250
7900
300
9100
350
10150
400
11350 (20 years)
4
5
4
3
3
158. Deposit collectors perform clerical duties, since
they collect deposits from the account holders, issue
receipts to them and account for the money so collected to
the banks. Though deposit collectors are not part-time
employees, but assuming them to be so, then they would
get 1/3 of scale wages of the clerical staff, besides an
amount equivalent to the other benefits paid to such
employees. Their basic fall back wages would be Rs.2400.00
per month, besides other allowances admissible as per rules.
On that standard, fall back wages packet of the deposit
collectors shall be approximately Rs.5000.00 per month.
159. As emerge out of award Ex. WW1/3, deposit
collectors get fall back wages of Rs.750.00 on a collection
of Rs.7500.00 per month. On collection over and above
Rs.7500.00 per month, they get incentive remuneration of
2%. Assuming that Rs.3 lac per month is collected by a
deposit collector, his fall back wages and incentive
remuneration would be Rs.6600.00 [Rs.750.00 (fall back
wages) plus Rs.5850.00(incentive remuneration)]. Thus, it
is obvious that a deposit collector is getting less than the
minimum wages, notified from time to time and even less
than a deemed part time clerical staff.
160. Deposit collectors argue that fall back wage fixed
by the Industrial Tribunal, Hyderabad, was based on All
India Consumer Price Index at 500 points (base 1960=100
points). According to them, All India Consumer Price Index
had scaled too high and while fixing their fall back wages,
it should be linked with consumer price index, prevalent as
on date. This contention has been negatived by and on
behalf of the banks. It has been argued on behalf of the
banks that the fall back wages, fixed by Industrial Tribunal,
Hyderabad, had no linkage with All India Consumer Price
Index.
161. In order to appreciate submissions of the
respective parties, the Tribunal is under an obligation to
scan the award Ex.WW1/3. When I went through the award
Ex.WW1/3, it came to light that the main thrust of the
Tribunal has been as to whether the deposit collectors
were commission agents or employees of the banks. The
Tribunal steered through the arguments of the parties and
concluded that the deposit collectors were really employees
of the banks. This conclusion of the Tribunal was approved
by High Court of Andhra Pradesh and reaffirmed by the
Apex Court. However, they were treated a class in
themselves, which was not eligible for grant of scale pay
and other benefits. The Tribunal passed the award,
directing the banks to absorb the deposit collectors in their
employment. This command of the Tribunal was turned
down by the High Court and the Apex Court. Thus, it is
evident that relief of regularization, granted in favour of
deposit collectors by the Industrial Tribunal, Hyderabad,
was drift away on judicial review.
162. The Tribunal noted alternative relief claimed by
the Federation, as under:
(i) Fall back wages of Rs.750.00 linked with
minimum deposit of Rs.7500.00 per month and
attendance of not less than one hour at the
branch each day for accounting and remittance
purposes.
6760
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
(ii) Incentive remuneration @5% for collections
over and above Rs.7500.00 per month.
(iii) Conveyance allowance of minimum of Rs.50.00
and Rs.100.00 for deposit of Rs.10,000.00 and
Rs.30,000.00, Rs.150.00 for deposit of in excess
of Rs.30,000.00 upto Rs.50,000.00 per month.
(iv) Paid weekly holiday and paid national festival
holidays. Annual leave of one month of every
11 months of service, sick leave of one month
per year.
(v) Retirement benefits, provident fund at 10%,
contributory Gratuity of 15 days each year of
service and pension as per bipartite settlement
to clerical staff.
(vi) Medical and hospitalization as per bipartite
settlement to the clerical staff.
(vii) Risk insurance for one lac for death and
proportionate loss or bodily injury.
163. While dealing with the above alternative reliefs,
the Tribunal projected its thoughts in following words:
"... I feel that they should be paid a fall back wages of
Rs.750.00 per month , linked with minimum collection
of Rs.7500.00 per month and they should be paid
incentive remuneration at 2% for collection over and
above Rs.7500.00 per month and they should also be
paid uniform conveyance allowance of Rs.50 per
month for deposits of less than Rs.10,000,.00 and
Rs.100 per month for deposits of more than
Rs.10,000.00 or upto or above Rs.30,000.00 per
month."
164. In respect of the other demands, then fixation of
fall back wages and incentive remuneration, the Tribunal
ruled as follows:
"The deposit collectors or agents are not entitled to
weekly holidays, national and festival holidays,
annual leave and sick leave as claimed by them. They
were virtually enjoying those things by virtue of the
bank not functioning on weekly holidays and paid
national and festival holidays. They were also
entitled to enjoy leave according to their own choice
after intimating the bank. As regards the retirement
benefit, I feel that they cannot claim any provident
fund or pension but they should be paid gratuity of
15 days commission for each year of service rendered.
They are not entitled to medical and hospitalization
charges and risk insurance as regular employees.
They would be entitled to such benefits only after
they are regularly absorbed in the banks service."
165. Except the above treatment to alternative reliefs
of the Federation, the Tribunal nowhere linked relief of fall
back wages and incentive remuneration to All India
Consumer Price Index. As detailed above, the Tribunal had
not linked fall back wages and incentive remuneration to
be paid to the deposit collectors to All India Consumer
Price Index. When High Court of Andhra Pradesh exercised
powers of judicial review, none of the parties raised the
issue to the effect that fall back wages and incentive
remuneration were linked to All India Consumer Price Index.
Therefore, there was no occasion for the High Court to
consider as to whether fall back wages and incentive
remuneration were linked with All India Consumer Price
Index or not. The Apex Court too was not invited to delve
the issue that fall back wages and incentive remuneration,
awarded in favour of the deposit
collectors,
were
linked to All India Consumer Price Index. In the reference
order, the appropriate Government tried to project that the
fall back wages and incentive remuneration, granted in
favour of the deposit collectors, have linkage with All India
Consumer Price Index. However, the mist created therein in
the reference order melts away when award dated 22.12.1988
and findings of the Andhra Pradesh High Court and the
Apex Court, while making judicial review, are noted.
Resultantly, it is concluded that fall back wages and
incentive remuneration awarded to the deposit collectors,
have no linkage with All India Consumer Price Index.
166. As noted above, a deposit collector is paid fall
back wages of Rs.750.00 on a collection of Rs.7500.00 per
month, besides incentive remuneration of 2% on collection
over and above Rs.7500.00 per month. In case a deposit
collector collects a sum of Rs.3 lacs per month, he gets
only a sum of Rs.6600.00(Rs.750.00 as fall back wages plus
Rs.5850.00 as incentive remuneration). Collection of a sum
of Rs.3 lacs per month is moderate amount but fall back
wages and incentive remuneration, which would come in
the hands of a deposit collector would be less than minimum
rates of wages, notified for a matriculate clerk. Evidently,
fall back wages and incentive remuneration are not part of
wage structure in technical sense, but nomenclature of fall
back wages and incentive remuneration, given to wage
packet of a deposit collector, would not denude this
Tribunal of its obligation to fix a pay packet co-relative to
minimum wages, notified from time to time. Therefore, the
Tribunal would proceed ahead to devise a wage structure
in the form of fall back wage and incentive remuneration
for the deposit collectors, which should not be less than
the minimum wages, so notified from time to time.
167. It is well established that an employer has the
right to organize or reorganize his business in any fashion
he likes for the purpose of convenience or better
administration for achieving economy, productivity or
profitability, subject, however, to the limitation that in doing
so he does not contravene any regulatory or other law and
acts bonafide. If an employer thus remaining within the
four corners of law and acting bonafide organizes or re-
organizes his business, an industrial adjudicator will have
no jurisdiction to interfere with his policy. However, an
¹Hkkx II—[k.M 3(ii)º
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6761
industrial adjudication may involve the extension of an
existing agreement or the making of a new one or in general
creation of new obligations or modifications of old ones,
by laying down new industrial policy for industrial peace,
which ordinarily a civil court cannot do. In Bombay Labour
Union case [1966(1) LLJ 417], the Apex Court ruled:
"It is too late in the day now to stress the absolute
freedom of an employer to impose any condition
which he likes on labour. It is always open to industrial
adjudication to consider the conditions of
employment of labour and to vary them if it is found
necessary, unless the employer can justify an
extraordinary condition **** by reasons, which carry
conviction."
168. The terms and conditions of a contract between
the employer and an employee can be interfered with by a
tribunal only when it is found necessary in the interest of
social justice or exigencies of the situation. The tribunal
cannot indiscriminately interfere with the contracts. In other
words, the jurisdiction of the tribunal is hedged in by the
requirements of social justice. Reference can be made to
the precedent in Orissa Cement Ltd. [1960(2) LLJ 91]. While
discharging this duty, the Tribunal should not loose sight
of the interest of the industry. Any settlement of a dispute
ignoring the interest of the industry is likely to have far
reaching and detrimental effect on the workmen itself.
Reference can be made to the precedent in Assam Chah
Karamchari Sangha [1956(1) LLJ 157].
169. An industry cannot be compelled to run its
venture in losses. Formulae, devised for fixation of minimum
wages for the deposit collectors in subsequent sections,
would highlight that their fall back wages and incentive
remuneration have been linked with a moderate amount of
collection, per different areas where deposit collectors
operate, which they are required to collect. It has been so
done with a view to maintain interest of the banks in the
schemes. Efforts to fix fall back wages within the range of
fair wage would have persuaded the Tribunal to fix minima
of collection amount at some higher level, which would
have been a little bit difficult to achieve. Therefore, efforts
to evolve rates of fall back wages and incentive
remuneration at rates sufficiently higher than the minimum
wages were not made since achievement of that standard
of collection would have been a dream for a deposit collector
to achieve. Without a target for collection, fixation of wage
structure for the deposit collectors, adequate to cover
normal needs of an average employee, would have
constrained the banks to close the schemes.
170. When an industrial adjudicator is called upon to
devise a wage structure for industrial employees, he is
under an obligation to carefully examine financial capacity
of the employer. In a bid to project non-viability of small
deposit schemes, the banks came out with arguments that
these schemes led them to losses. Shri K. Ganeshan
attempted to prove cost benefit analysis of small deposit
schemes prepared by Indian Bank, Tamil Nadu Mercantile
Bank Ltd., Punjab National Bank, Vijaya Bank, Andhra Bank
and UCO Bank. In the same manner, Shri Neeraj Gupta
brought cost benefit analysis of Punjab National Bank over
the record to reaffirm that the scheme is non-remunerative.
S/Shri K.S. Satheesh Kumar, T.N.S. Murali, Kushal Pal, M.L.
Makkad, C.M. Duggal, Ajit Kumar Srivastava, Sunil
Prakash, Arun Kumar Tyagi, Sudarshan D Sheth, Joginder
Pal Bhagat, Anil Kumar V., R. Venkatesh and P. Venugopal
attempt to prove cost benefit analysis in respect of South
Indian Bank, Vijaya Bank, Central Bank of India, State Bank
of Bikaner and Jaipur, Indian Bank, Federal Bank, Canara
Bank, Union Bank of India, Syndicate Bank, Karnataka Bank
Ltd., UCO Bank, State Bank of Travancore, State Bank of
Mysore and State Bank of Hyderabad respectively to
establish that small deposit schemes are not remunerative
at all. When facts unfolded by these witnesses were purified
on anvil of cross examination, the witnesses admitted that
cost benefit analysis were not certified by auditors of the
bank. Out of facts admitted by them, it came over the record
that some one got these documents prepared with a view
to project that the schemes were not remunerative. However,
no efforts were made to get these documents certified from
the auditors, who put their hands on statements of profit
and loss accounts of the banks. It is emerging over the
record that these documents are not a result of genuine
exercise made by and on behalf of the banks to project
economic viability of the schemes.
171. The witnesses, examined on behalf of the
Association as well as the banks, made candid admission
that the banks are earning profits from last many years.
Now efforts would be made to ascertain as to whether the
schemes are non- remunerative. In order to ascertain profit
or loss of banking business, one has to take into account
as to what is the base rate determined by a particular bank
which projects cost of the bank per Rs.100.00, available for
advances to be made to public at large. In assessing its
base rate, a bank takes into account the interest rate on
saving bank accounts, current accounts, salary paid to its
employees, rent of buildings, maintenance expenses, soft
loans granted to employees, depreciation cost of assets,
cost of upgradation of technology, cost of non performing
assets, loans on Government schemes, education loans,
interest paid on term deposits and miscellaneous expenses.
The bank had to keep money out of its total funds towards
'cash reserve ratio and 'statutory liquidity ratio'. As on date,
cash reserve ratio is 6.7% and statutory liquidity ratio is
approximately 24.5%. Thus, as a whole, a bank had to keep
about 30% of its total funds towards C.R,R and S.L.R. and
only 70% of its funds can be given in advances to run
banking business.
172. As on date, base rate of State Bank of India,
Syndicate Bank, Punjab National Bank, Canara Bank, Dena
Bank, Karnataka Bank Ltd., Indian Overseas Bank,
6762
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
Andhra Bank, Bank of India, Union Bank, State Bank of
Mysore and UCO Bank are 9.8%, 10.5%, 10.25%, 9.95%,
10.25%, 10.85%, 10.25%, 10.25%, 10.25%, 10.25%, 10.15%
and 10.20% respectively. From above figures, it can be said
that mean base rate of the banks may be taken at 10%.
While coming to the above base rate, we had taken into
account salary component paid to the employees, besides
2% commission paid to the deposit collectors. On an
average, bank spends 3% to 4% on salaries paid to its
employees. Component of salary paid to employees and
commission paid to the deposit collectors, if deducted then
base rate of the banks come to 5%. A bank loads 4% to 5%
as risk profile on its base rate and then grants advances to
the general public. If these facts are gauged with these
standards then bank advances money to the public at 14%
to 15% per annum, while its base rate on money collected
by the deposit collectors would come to 5% only. Thus,
out of Rs.100.00 collected per month by a deposit collector,
the bank advances 70% to the general public, keeping 30%
towards C.R.R. and S.L.R. Out of Rs.70.00 so advanced per
month, the bank earns Rs.63.70 in a year while it pays a
commission of Rs,13.00 to a deposit collector and spends
Rs.32.50 in maintenance of its infrastructure as referred
above. Thus, banks earn a sum of Rs.18.20 in a year on
Rs.100.00 collected per month by the deposit collectors,
besides interest on the amount kept under S.L.R., for many
a times the banks deposit Government securities, which
securities earn interest. Thus, it emerges over the record
that small deposit schemes have been wrongly termed as
non-remunerative by the banks. While preparing cost
benefit analysis, proved by the aforesaid witnesses, above
factors were not taken into account. Therefore, those
documents are found to be non-genuine, besides the fact
that the same were not authenticated by the auditors of the
banks.
173. One may advance arguments that when these
schemes are remunerative, what led various banks to close
down such schemes. As highlighted by the witnesses,
examined on behalf of the Association as well as the banks,
pigmy deposit scheme was started by Syndicate Bank in
1927 in southern parts of the country. The scheme was
primarily aimed at inculcating habit of saving and banking
among people with limited means and saving capacity.
Persons of lower and middle income group, small traders,
businessmen, artisans, self-employed persons and
housewives etc. were brought within the reach of the
scheme. Syndicate bank grew a giant out of the funds
collected by the deposit collectors. The scheme attracted
other banks too, where it was initiated when those banks
were having small number of its branches in semi-urban
and rural areas of the country. With the expansion of the
banking industry, branches of the bank increased manifold,
with opening of branches in semi-urban and rural segments.
Computerization and use of latest technology made the
banks to reach out to the public without assistance of their
employees or the deposit collectors. When banking
business expanded, such schemes became secondary and
the person sitting at the helm of affairs in banking industry
took steps to cut such schemes to size. In some of the
banks, the scheme has been closed but such a decision, a
policy decision, was taken on other consideration, besides
economic factors. The schemes were initiated by the banks
through its policy decisions and could be closed after taking
a policy decision in that regard. The Apex Court affirmed
the decision of State Bank of India in respect of closure of
its scheme, vide its order dated 28.02.2008 passed on transfer
case(civil) No.79 of 2005 titled as A.P. Bank Deposit
Collector Association vs. State Bank of India. Thus, it is
clear that the banks are free to close its scheme if it is not
economically viable. But, in case banks opt to continue
with the scheme, they cannot be allowed to pay fall back
wages and incentive remuneration which are less than the
minimum wages notified from time to time. An industry has
to pay minimum wages to its employees. As referred above,
the deposit collectors are workmen, a class in themselves,
who had a right to receive minimum wage in the form of fall
back wages and incentive remuneration.
174. For fixation of rates of wages, an industrial
adjudicator has to scan financial capacity of the industry
to pay such rates of wages. The capacity of the industry to
pay means, one of the following things:
(a)
the financial capacity of all the industries in
the country to pay;
(b)
the financial capacity of a particular industry
as a whole to pay;
(c)
the financial capacity of an employer to pay;
or
(d)
financial capacity of a particular unit of
establishment (marginal, representative or
average) to pay.
175. Financial capacity of all the industries in the
whole country to pay would project an enigma for an
industrial adjudicator to measure capacity of each of the
units of the industry. He would gauge on an industry-cum-
region basis after taking a fair cross section of that industry.
In a given case, it may be even permissible to divide the
industry into appropriate classes and then deal with the
capacity of the industry to pay class-wise, ruled the Apex
Court in Express Newspaper (P) Ltd.(1961(1) LLJ 339).
However, in the case under reference, all the banks, where
small deposit schemes are being run, were summoned to
present facts before the Tribunal. In their depositions,
witnesses referred above, have testified that the banks are
earning profits from the last many years. The Tribunal has
been supplied with a document known as charter of
demands, served by National Organization of Bank
Workers on the Association for signing of 10th Bipartite
Settlement. In the said charter of demands, historical
comparison of productivity of banking industry have been
¹Hkkx II—[k.M 3(ii)º
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6763
presented. The comparison of productivity presents financial capacity of banking industry as a whole. For convenience,
the said comparison, made by the aforesaid National Organization of Bank Workers, is reproduced thus:
As on
Deposits
Advances
Business
Business
Total
AICPI
PEB
PEB
Rs Crore
Rs Crore
Rs Crore
at 1960
Staff
avg
at
prices
1960=
1960
100
prices
19/07/69
4469
3196
7665
4380
188536
175
4.07
2.32
31/12/79
29554
19333
48887
13968
475840
350
10.27
2.94
31/12/82
52507
36503
89010
18739
646016
475
13.78
2.90
31/12/83
61557
41842
103399
19436
692676
532
14.93
2.81
31/03/92
233753
143036
376789
34920
863909
1079
43.61
4.04
31/03/93
263254
153880
417134
35172
871846
1186
47.84
4.03
31/03/98
531840
259729
791569
43927
874000
1802
90.57
5.03
31/03/99
737281
354071
1091352
53081
873569
2056
124.93
6.08
31/03/00
859462
414989
1274451
60423
797331
2109
159.84
7.58
31/03/01
968623
480118
1448741
66160
757020
2190
191.37
8.74
31/03/02
1079394
549351
1628745
71304
755437
2284
215.60
9.44
31/03/03
1079167
548436
1627603
68530
757251
2375
214.94
9.05
31/03/04
1229463
633036
1862499
75507
752627
2467
247.47
10.03
31/03/05
1435853
854671
2290524
89434
748711
2561
305.93
11.95
31/03/06
2002528
1367770
3370298
126036
700100
2674
481.40
18.00
31/03/07
1994199
1440147
3434346
120367
728878
2853
471.18
16.51
31/03/08
2453867
1797505
4251372
140303
714793
3030
594.77
19.63
31/03/09
3112748
2260156
5372904
162522
717761
3306
748.56
22.64
31/03/10
3524352
2562817
6087169
163858
760475
3715
800.44
21.55
31/03/11
4191963
3147335
7339298
178878
773694
4103
948.60
23.12
31/03/12
4791251
3697154
8488405
190869
794042
4447
1069.01
24.04
176. Comparison of pay scales, granted in favour of award staff of banking industry as a whole, would show upward
revision of pay packet in favour of such employees. Chart below mentioned would make the position explicit about financial
capacity of banking industry, as a whole.
Bipartite
ll
III
I
V
VI
VII
VIII
IX Rise through BPS
From
Jan-70
Sep-78
Jul-83
Nov-87
Nov-92
Nov-97
Nov-02
Nov-07
III BPS to II BPS to
CPI
100
200
332
600
1148
1684
2288
2836
IX BPS
IXBPS
Sign.
Oct-70
Aug-79
Sep-84
Apr-89
Feb-95
Mar-00
Jun-05
Apr-10
Officer
Scale (I to VII)
From
Apr-77
Feb-84
Nov-87
Nov-92
Apr-98
Nov-02
Nov-07
CPI
200
332
600
1148
1684
2288
2836
1418%
2836%
Sign
Jul-79
Sep-84
Apr-89
Feb-95
Dec-00
Jun-05
Apr-10
I-III Start
700
1175
2100
4250
7100
10000
14500
2071%
I-III St 11
1150
1825
3300
6670
10500
14880
20900
1817%
I-III End
2200
3250
5200
10200
15760
23520
35100
1595%
IV-VII Start
2000
3050
4780
8970
13900
20480
30600
1530%
IV-VII St 11
3000
4100
6100
11750
18080
27300
42000
1400%
IV-VII End
3500
4600
7000
14000
21300
32600
52000
1486%
Clerk Start
170
325
520
900
1820
3020
4410
6200
1908%
3647%
6764
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
Clerk St 11
325
620
990
1810
3620
5720
8440
12000
1935%
3692%
Clerk End
550
1160
1850
3220
6560
10880
16570
23900
2060%
4345%
SS Start
116
245
430
815
1665
2750
4060
5500
2245%
4741%
SS St 11
151
330
580
1120
2285
3650
5460
7850
2379%
5199%
SS End
200
495
850
1670
3610
5850
9180
13800
2788%
6900%
Above Scales at 1960 prices
I-III Start
350
354
350
370
422
437
511
146%
I-III St 11
575
550
550
581
624
650
737
128%
I-Ill End
1100
979
867
889
936
1028
1238
113%
IV-VII Start
1000
919
797
781
825
895
1079
108%
IV-VII St 11
1500
1235
1017
1024
1074
1193
1481
99%
IV-VII End
1750
1386
1167
1220
1265
1425
1834
105%
Clerk Start
170
163
157
150
159
179
193
219
135%
129%
Clerk St 11
325
310
298
302
315
340
369
423
136%
130%
Clerk End
550
580
557
537
571
646
724
843
145%
153%
SS Start
116
123
130
136
145
163
177
194
158%
167%
SS St 11
151
165
175
187
199
217
239
277
168%
183%
SS End
200
248
256
278
314
347
401
487
197%
243%
GM end to SS start
14.29
10.70
8.59
8.41
7.75
8.03
9.45
Bipartite
ll
III
I
V
VI
VII
VIIII
X Rise through BPS
175. Expansion of banking business has gone
manifold, as emerge out of the table below:
Rs. In crores
YEAR
DEPOSITS
ADVANCES
TOTAL
(Rs.)
(Rs.)
BUSINESS
(Rs.)
31.03.2007
19,35,000
13,87,000
33,22,000
31.03.2008
23,80,000
17,15,000
40,95,000
31.03.2009
30,00,000
21,56,000
51,56,000
31.03.2010
35,24,000
25,63,000
60,87,000
31.03.2011
41,93,000
31,38,000
73,31,000
31.03.2012
47,90,000
36,97,000
84,87,000
178. Business of the banks has increased and
increase in profit per employee basis has been depicted in
the following table:
YEAR
BUSINESS PER
PROFIT PER
EMPLOYEE
EMPLOYEE
31.03.2008
594 LACS
3.7 LACS
31.03.2009
734 LACS
4.7 LACS
31.032010
864 LACS
5.3 LACS
31.03.2011
1017 LACS
5.9 LACS
31.03.2012
1151 LACS
6.4 LACS
179. Number of branches of the banks have also
expanded. Swell in number of branches of the banks have
been portrayed in the table below:
YEAR
NO. OF BRANCHES IN PSBs
31.03.2007
49,573
31.03.2008
53,163
31.03.2009
55,720
31.03.2010
59,312
31.03.2011
63,160
31.03.2012
67,930
180. Profits earned by the banks are impressive. Table
below would show the profits earned by the banking
industry in the recent past:
YEAR
OPERATING PROFIT
NET PROFIT
31.03.2007
Rs.41,500 crore
Rs.19,680 crore
31.03.2008
Rs.48,520 crore
Rs.25,862 crore
31.03.2009
Rs.65,227 crore
Rs.33,514 crore
31.03.2010
Rs.74,220 crore
Rs.38,225 crore
31.03.2011
Rs.95,908 crore
Rs.43,250 crore
31.03.2012
Rs. 1,11,290 crore
Rs.47,483 crore
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6765
181. Operating profits of the banking industry have
increased by Rs.70790 crores while net profits have gone
up by Rs.27800 crores. Therefore, it has emerged over the
record that financial capacity of the banking industry as a
whole to pay higher fall back wages and incentive
remuneration have been brought over the record. Financial
capacity of a particular bank has also been substantiated
though the depositions of the witness produced by the
Association and the banks, who deposed that the banks
are earning profits from last many years. Therefore, it is
evident that not only the banking industry as a whole, but
the individual banks, where small deposit scheme is being
run, have financial capacity to pay higher fall back wages
and incentive remuneration to the deposit collectors,
engaged by them.
182. Now, for consideration of this Tribunal, the
question emerges as to what amount of fall back wages
should be paid to deposit collectors without any undue
restrain on financial resources of the banks? At the cost of
repetition, it is said that the fall back wages and incentive
remuneration paid to the deposit collectors, are too meager
even to meet standards of minimum wages, notified from
time to time. Minimum wages for clerical staff in schedule
employments, who are matriculates but not graduates have
been notified by Government of NCT of Delhi at Rs.9386.00
per month and for graduate and above, it has been notified
at Rs.10,218.00 per month. Delhi is 'A' area city. Therefore,
for 'A' area city, fall back wage for deposit collectors should
not be less than Rs.9386.00. It has been argued on behalf
of the banks that no age and qualification are prescribed
for a deposit collector. However, it is an admitted fact that
a deposit collector has to perform clerical jobs, besides
collection of money from the account holders and to deposit
it with the bank(s) on the next date. For performance of
such a job, a deposit collector should be a matriculate. No
evidence has been adduced by any of the banks that deposit
collectors, working with them, are non-matriculates. Under
these circumstances, the Tribunal has to fix fall back wages,
equivalent to the minimum wage received by a clerical staff
in schedule employment, who is a matriculate but not a
graduate.
183. With above standards in mind, the Tribunal
thinks it expedient to fix minima limit of collection, to which
a deposit collector should adhere in all circumstances. For
ascertaining that limit of collection, it is to be taken note of
as to what amount of money is being collected by the
deposit collector in a month. Shri Ponnusamy unfolds that
in the year 1978, he used to collect a sum of about Rs.3 lac
per month. As on date(he entered the witness box in May
2011), he is collecting a sum of Rs.12 lacs approximately in
a month. Shri Ashish Bilala declared that he is earning a
sum of Rs.12000.00 to Rs.13000.00 per month, as fall back
wages and incentive remuneration. He deposed in bold
words that he is collecting a sum of Rs.6,50,000.00 from the
account holders per month. According to Shri Ashok Kumar,
he collects a sum of Rs.1,50,000.00 to Rs.2 lac per month
from the account holders. Shri A.K. Shivanand Babu
deposed that he collects a sum of Rs.3,50,000.00 to
Rs.3,75,000.00 per month from the account holders. Shri
Ponnusamy operates in Chennai, which is 'A' area city while
all other witnesses except Shri Bilala operates in 'B' area
cities. Shri Bilala operates in 'C' area city. Facts detailed by
above witnesses, relating to quantum of collection made
by them, make me to conclude that a deposit collector in 'C'
area city would be able to collect atleast a sum of Rs.3 lacs
per month from the account holders. A deposit collector
from 'B' area city can collect a sum of Rs.4 lac, while a
deposit collector from 'A' area city would be able to collect
a sum of Rs.5 lac per month from the account holders.
Resultantly, a minima ceiling of collection of Rs.3 lac for 'C'
area city, Rs.4 lac for 'B' area city and Rs.5 lac per month for
'A' area city is to be fixed for the deposit collectors. On a
collection of Rs.3 lac per month, the bank is required to
retain roughly an amount of Rs.90,000.00 towards cash
reserve ratio and statutory liquidity ratio. A sum of
Rs.2,10,000.00 would be available with the bank for
investment through advances to the general public. On
this amount, the bank had to spend 5% as its cost. The
bank may advance that amount at an interest rate of 14%
per annum. When cost ratio of the bank is deducted, the
bank earns 9% interest approximately per annum on the
amount referred above. Cost ratio of the bank on the amount
kept for CRR and SLR would be neutralized by the earnings
of the bank on statutory liquidity ratio. Thus, an amount of
Rs.2,10,000.00 per month, so collected by the deposit
collector for a year, would fetch an earning of Rs.1,22,850.00
to the bank. Out of this earning, a sum of Rs.8000.00 per
month would be awarded as fall back wages to the deposit
collectors working in 'C' area cities. In a year, he will get
Rs.4000.00 as gratuity. Thus, in a 'C' area city, the bank had
to spend on fall back wages and gratuity, a sum of Rs.1 lac
out of the earning of Rs.1,22,850.00.
184. On collection over and above Rs. 3 lac, but upto
Rs.5 lac, a deposit collector would get an incentive
remuneration of 3% and on collection over and above
Rs.5 lac per month, he will get incentive remuneration of
2% only. Therefore, a deposit collector of 'B' area city who
had to collect a minima of Rs.4 lac per month, will get fall
back wages of Rs.8000.00 besides incentive remuneration
of Rs.3000.00 a month. His pay packet would come to
Rs.11000.00 in a month, besides a gratuity of Rs.4000.00 a
year.
185. A deposit collector in 'A area city shall collect a
sum of Rs.5 lac per month. His pay packet would be
Rs.8000.00 as fall back wages and Rs.6000.00 as incentive
remuneration, besides a gratuity of Rs.4000.00 in a year. If
deposit collectors of any area collects over and above
Rs.5 lac in a month, he will get incentive of 2% on that
amount. Thus, by collecting more than Rs.5 lacks in a month,
the deposit collectors may earn more. The amount, which
6766
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
will come to them towards fall back wages and incentive
remuneration, would be over and above the minimum
wages, so notified. By making that payment to the deposit
collectors, the banks would not be strained financially at
all. The fall back wages and incentive remuneration, as
referred above, can well be compared to the wages earned
by a deemed part time clerical staff, employed in the bank
and the minimum wages fixed for skilled clerical staff in
scheduled employments.
186. One may advance argument that fixation of
minima amount to be collected by the deposit collections
of 'C' area, "B" area and 'A' area city is a concept not
prevalent in the banking industry or any comparable
industry. However, that proposition is not factually correct.
The insurance industry employs development officers on
its role, who are paid wages and incentive on the basis of
their performance. Life Insurance Corporation of India
Development Officers (Revision of Certain Terms and
Conditions of Service) Rules, 1989 and General Insurance
(Rationalization of Pay Scales and Other Conditions of
Service of Development Staff) Amendment Scheme, 1987
provide an example in that regard. When these rules and
schemes are scanned, it emerges over the record that the
development officers, employed in insurance industry, are
paid wages and incentive in accordance with the
performance made by them. In case they fail to meet
required standard of collection, incentive paid to them is
deducted or stopped and decrements are made out of their
wages. When a development officer continues not to attain
the criteria fixed for him, his services are dispensed with.
Therefore, it is evident that minima of collection as fixed for
the deposit collectors for respective areas cannot be said
to be a new concept. Minima of Rs.3 lac in a month for 'C'
area, Rs.4 lac for 'B' area and Rs.5 lac for 'A' area is the
standard requirement of performance, expected of a deposit
collector to sustain himself in the industry. He can meet
that standard by collection of that amount in every month
or by way of collection of Rs.9 lac, Rs.12 lac and Rs.15 lac
respectively, as the case may be for area-wise, at the end of
the quarter ending 31st March, 30th June, 30th September
and 31st December every year. In case a deposit collector
is unable to collect the minima amount consecutively for
two quarters, he would be bade farewell by the bank, by
terminating his contract of service. An inefficient person
has no place in the industry. In case of failure of a deposit
collector to meet the required standards, he would not be
able to serve the bank, since his retention at the cost of
loss to the bank is unwarranted.
187. Conveyance allowance is being paid to the
deposit collectors at Rs.50.00 per month for deposit of less
than Rs.10,000.00 and at Rs.100.00 per month for deposits
of Rs.10,000.00 or above upto Rs.30,000.00 per month. This
quantum of conveyance allowance was demanded by the
Federation, when it filed its claim before the Industrial
Tribunal, Hyderabad, in the year 1981. The Industrial
Tribunal granted that relief in toto and fixed conveyance
allowance for the deposit collectors at the above rates.
Since 1981 till date, prices of petrol has rolled many a times.
It is a matter of common knowledge that the deposit
collectors had to reach persons of lower and middle income
group, small traders, businessman, artisans, self-employed
persons and housewives to collect money from them. A
green grocery vendor sitting in subzi mandi would like to
give money to a deposit collector in early hours of the day,
housewives would give their money during noon hours,
when they are free from daily chores, a small trader or
businessmen would give money in the evening, while
persons employed in business centres and courts etc. may
like to deposit their money during day hours. These facts
bring it to light that a deposit collector has to reach his
customer, according to the convenience of the latter. For
that purpose, possibility of going for collection twice or
thrice a day cannot be ruled out. One cannot dispute that
in 'C' area as well as 'B' area cities, the deposit collectors
may have to travel in a radius of 10 kms. daily. In 'A' area
cities, he may travel a little bit longer. One cannot be
oblivious of the fact that these days such bikes are in the
market which are fuel efficient. Manufacturers claim that
such bikes have fuel efficiency of running generally
60 kilometers per litre. A deposit collector in 'C' and 'B' area
cities may have to travel roughly 500 kms. in a month. For
'A' area city, a deposit collector may avail public transport
also. Conspectus of all these facts makes me to comment
that atleast 8 to 10 litres of petrol in a month is to be spent
by a deposit collector. Keeping all these facts in mind, I am
of the view that conveyance allowance of Rs.750.00 per
month at flat rate should be granted to all deposit collectors
of all areas.
188. On above standard, a deposit collector would
get a sum of Rs. 9000.00 in a year towards conveyance
allowance. Adding that amount to the cost incurred on a
deposit collector for collection of Rs. 3 lac, the bank had to
spend only a sum of Rs.96,000.00 on fall back wages +
Rs. 4000.00 on gratuity + Rs. 9000.00 as conveyance
allowance. In all, banks have to spend a sum of
Rs. 1,09,000.00 out of the earning of Rs. 1,22,850.00. This
arithmetic projects that by payment of that much of amount,
the bank would earn something on a collection of Rs.3 lac
per month by a deposit collector of 'C' area city. Earning of
the bank would be more on collection of deposit collectors
of 'B' area and 'A' area cities. When deposit collectors would
collect more than the minima prescribed for them, the income
of the bank would grow more. Arguments of the bank
relating to economic viability of the scheme would have an
answer from the above reasoning.
189. The Tribunal has power to give retrospective
effect to its award, as held by the Apex Court in New
Edgeson Woollen Mills (1969(2) LLJ 782) and Sarva Shramik
Sangh, Bombay (1993 Lab.I.C. 870). It is a well established
proposition of law that an industrial adjudicator can treat
¹Hkkx II—[k.M 3(ii)º
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6767
the date of demand and the date on which he award comes
into force as two extreme points to give effect to the award.
The date from which this award would be effective, should
be decided by the Tribunal on consideration of facts and
circumstances projected herein. As award Ex.WW1/3
highlights, fixation of fall back wages and incentive
remuneration was based on the circumstances prevalent in
the year 1981. The fall back wages and incentive
remuneration fixed by award dated 22.12.1988, remained
static till date. The present dispute was raised by the
Federation in the year 2003. After raising of the dispute
and during the course of adjudication a few of the banks
closed their small deposit schemes. In case this award is
not given any retrospective effect, then the deposit
collectors of the banks, who had closed the scheme, would
not be eligible to get any relief out of it. Therefore, I am of
the considered opinion that this Tribunal should give
retrospective effect to the award so that the deposit
collectors, whose case was projected before the Tribunal,
may also avail their rights so adjudicated herein. In view of
the above discussion, it is concluded that the demand of
the Federation/Union for enhancement of fall back wages
and incentive remuneration, besides conveyance allowance
is justified. The issue is answered, accordingly.
Relief
190. In view of the findings recorded on issue No.1,
it is ordered that deposit collectors operating in 'A' area, 'B'
area and 'C' area cities would collect atleast Rs.3 lac, Rs.4
lac and Rs.5 lac per month respectively. They can meet the
target every month or may collect a sum of Rs.9 lac, Rs.12
lac and Rs.15 lac respectively on 31st March, 30th June,
30th September and 31st December every year. On a
collection of Rs.3 lac, a deposit collector would get fall
back wages of Rs.8000.00 per month, besides conveyance
allowance of Rs.750.00 per month. He will also get gratuity
of Rs.4000.00 every year. On a collection of over and above
Rs.3 lac and upto Rs.5 lac, all deposit collectors, irrespective
of their areas of operation, will earn incentive remuneration
of 3%. Thus, a deposit collector of 'B' area and 'A' area city
would get Rs.3000.00 and Rs.6000.00 respectively per month
as incentive remuneration on minima limit of their collection.
On collection of over and above Rs.5 lac, a deposit collector
would get incentive remuneration of 2%. All deposit
collectors, irrespective of areas of their operation, would
get conveyance allowance at flat rate of Rs.750.00 per month.
191. In case of failure of a deposit collector to meet
minima standard of collection consecutively for two
quarters of a year, his contact of service would be snapped
by the bank without any further notice to him. For this
inefficiency, he will not be able to claim any right of being
heard from the bank.
192. The award will have retrospective operation from
19.07.2005, the date when the banks were summoned to
appear before the Tribunal. An award is, accordingly,
passed. It be sent to the appropriate Government for
publication.
Dated : 07.10.2013
Dr. R.K. YADAV, Presiding Officer
ubZ fnYyh] 20 uoEcj] 2013
dkñvkñ 2619.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj lh lh ,y ds
izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqca/k esa
fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k@Je
U;k;ky; uañ 2] /kuckn ds iapkV ¼lanHkZ la[;k 170 of 1999½ dks
izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 20@11@2013 dks izkIr gqvk
FkkA
[lañ ,y&20012@208@1998&vkbZ vkj ¼lh&I½]
,eñ dsñ flag] vuqHkkx vf/kdkjh
New Delhi, the 20th November, 2013
S.O. 2619.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 170/
1999) of the Cent.Govt.Indus.Tribunal-cum-Labour
Court No. 2, Dhanbad as shown in the Annexure, in the
industrial dispute between the management of M/s. CCL
and their workmen, received by the Central Government on
20/11/2013.
[No. L-20012/208/1998-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. 170 of 1999
PARTIES
: The Zonal Secretary,
United Coal Workers'
Union, Jarangdih Bazar,
Bokaro
Vs.
The Project Officer,
Dhori Colliery of M/s
CCL, PO:Dhori, Bokaro.
APPEARANCES :
On behalf of the workman/
: Mr. D. Mukherjee, Ld.
Union
Advocate
6768
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
On behalf of the Management : Mr. D.K. Verma, Ld.
Advocate
State : Jharkhand
Industry:
Coal
Dated, Dhanbad, the 1st Oct., 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/
208/98-IR(C-I) dt. 05.04.1999 & 19.07.1999.
SCHEDULE
"Whether the action of the Management of Dhori
Colliery of M/s Central Coalfields Limited, in not
regularizing the services of 145 workmen mentioned
in the list is legal and justified? If not, to what relief
the concerned workmen are entitled?
The case of sponsoring United Coal Workers Union
for 145 workers as per the list is that the workmen have
been continuously performing the job of wagon loading
and levelling, Shale Picking, Coal breaking, Track cleaning
etc. though permanent and prohibited under the direct
control and supervision of the management for the last 9 to
10 years, each of them by putting in more than 240 days
attendance in each calendar year. They have been rendering
their services with the tools supplied by the management
and producing goods for the benefits of colliery
management. Till then the management is paying the
workmen concerned the wages below the rates of NCWA
in the name of different intermediaries/which is a legal
camouflag to conceal the real issue, by not maintaining the
names of the workmen in the statutory Registers. Neither
the alleged intermediaries/contractors have any licence nor
the management has any Registration Certificate under the
Contract Labour (Regulation & Abolition) Act for engaging
the workmen in the said jobs. Despite several times
representations by the workmen and the Union for their
regularization, wages and other benefits as per the NCWA,
the management did not do so, just as its adamancy inthe
conciliation proceeding in the Industrial Dispute raised by
the Union before the A.L.C. (C), Hazaribagh resulted in the
reference for an adjudication. Though the Award passed
by the CGIT No. 1, Dhanbad, in Reference No. 37/1990 of
similar case of Jarangidih Colliery which was confirmed by
the Hon'ble High Court (Division Bench) in the C.W.JC No.
139/92(R) was already implemented. Thus the action of the
management in not regularizing the workmen is illegal and
unjustified.
3.In rejoinder under the signature of Mr. D. Mukherjee,
Ld. advocate it has been categorically denied all the
allegations of the O.P./Management, stating that the
management had made perfect paper arrangement of alleged
sham contract to camouflage the real issue.
4. Whereas the contra case of the O.P./Management
with specific denials is that neither any employer-employee
relationship exists between the management and the
workmen concerned nor the management engaged them
through selection or recruitment for any job at Dhori Colliery
or at any other colliery. They were neither p;aid any wages
nor controlled by the management. The Management of
M/s BCCL entered into a five years agreement with the
ESSEM Transport Contract on 29th December, 1989 for
loading of coals into wagons with the help of Pay-Loaders
and breaking lumpy Coals mechanically as and whenever
required. The same agreemet was subsequently renewed
year to year in view of the satisfactory performance of the
said contractor. As per the Notification dt. 21st June, 1988
of the Central Government under Sec. 10(1) of the contract
labour (R & A) Act, 1970, engagement of contractor labour
was prohibited on loading & unloading of coal into Railway
wagons by the Railways. The said contractor firm was
registered by the ex-servicemen with the concurrence of
the Central Government for their gainful employment in
carrying on the contractual jobs manually for operating
machines, and transport operations at different parts of
the country.
5. Further it is alleged by the O.P./Management that
the Public Sector Coal Companies undertook to assist ex-
servicemen organization in awarding a contract and
providing necessary loan/advances in procuring the
machineries for the Organization. The transport Contractor
was awarded a contract for loading coal into the wagons
with the help of pay-loaders at the Railway siding of Dhori
Colliery, for dumping of coal at the siding at different
units. The management had initially provided three pay-
loaders to the aforesaid contractor on higher purchase
basis, and the amount was realized from the contractor's
bills on instalments. The contractor engaged mostly its
ex-servicemen in the operations of the pay-loaders and
other Machineries related to breaking the lumpy Coals
and loading of coal into Railway wagons. The
Management quite unconcerned with any of the persons
a unaware of the number of days of attendance put by
some of them in different areas. As the contractor has not
been made a party to the Reference, the management can
not identify them under the contractor. The possibility of
engagement of a large number of 145 workmen by the
contractor for carrying on incidental jobs of loading coal
into wagons by the three pay-loaders and breaking the
lump coal with feeders breakers and other appliances is
absurdlity. The large number of job seekers under the
union appear to demand for their recruitment through
litigation. Their claim is liable to be summarily rejected.
They are not entitled to any relief.
¹Hkkx II—[k.M 3(ii)º
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6769
6. Categorically denying the allegations of the Union/
workmen, the O.P./management in its rejoinder has alleged
that the jobs of shale picking, wagon moving and truck
claiming are done by the workmen of the company. The
case of the workmen as in the Reference No. 37/90 is quite
different from the present case, to which the principle of
law is not applicable.
FINDING WITH REASONS
7. In the instant case, WWI Shain Bhuia, one of the
workmen for the Union and MWI Ajit Kumar Singh, the
Chief Manager (Pers), Dhori area, Bokaro for the
Management have been examined respectively.
According to the statement of WWI Shian (Shiwan)
Bhuia (workmen under Sl. No. 67 of the enclosed list) as
one workman for all ones, they have been continuously
performing the job of picking shales, cleaning Rly. tracks
and levelling the wagons on the Railway siding of Dhori
Colliery of CCL since 1996 till now with the tools supplied
by and under the supervision of the Management, they are
paid by the men of the Management for their jobs. As
contrasted with the aforesaid oral statement, he has proved
the photocopies of their salary sheets for Sept., Nov., and
Oct., 1992 as Ext. 1, 1/1 and 1/2 respectively, and the
photocopies of V.V. Statements for April to March 1993-94
to 1996-97 as Ext. 2 series respectively, and the photocopy
of the letter of Sri B.N. Singh, Personnel Manager of Dhori
Colliery for C.P.E./03/2000 for April to May, 12, 1999 as Ext.
W.2. His evident admission is that neigher they were
interviewed nor they had any appointment letter or any
document as proof of their job of shale picking or cleaning
of the Railway Tractk. Though the witness (WWI) is quite
unaware of whether the documents (Ext. 2 series) are the
payments sheets of Essem Contractor, he treats the same
for the management.
Whereas, the statement of MWI Ajit Kumar Singh,
the Chief Manager (Pers.) of Dhori Area, Bokaro, reveals
neither engagement of any of the total 145 workmen by the
management for shale picking, coal breaking, wagon
levelling and track cleaning etc., nor that of a contractor for
loading wagons, rather awarding by the management a
contract to the ESSEM Transport Contractor transportation
of coal and loading of coal through Pay Loader (a Machine)
and the said contractor is of the Ex-servicemen. The
Management witness has not seen the licence of the said
contractor or its registration of the Company. He (MWI)
also seems unaware of any document concerning the
engagement of the ESSEM Transportation Contractor for
transporting of coal.
8. Assailing the case of the O.P./Management, Mr. D.
Mukherjee, Learned Advocate for the workmen has to
submit that the pleading of the managemet about entering
into a agreement with ESSEM contractor for loading of
coal, and carrying on the job of shale picking by the
workmen of the company under Para 4 and 14 of its written
statement being unsubstantiated are not proof. But the
oral statement of MWI Ajit Kumar Singh, the Chief Manager
(Pers.) of Dhori Area as to awarding a contract to the ESSEM
contractor for loading of coal in the very first Para of his
deposition appears to be substaintiated as a crystal clear
proof which stands assertive in the face of the salary sheets
of only 26 workmen out of toal 44, 45 and 43 ones for the
year 1992 (Ext. 1 series) respectively as contrast with the
145 as per the list of the reference case just as all the
photocopies of VV Statements (2 Series) as proved on
behalf of the workmen, and each document proves the
relevant 26 workmen not all 145 ones, worked under the
said ESSEM Transporters & Contractors (P) Ltd. The
inclusion of Ex-Hav.B.R.(Balak Ram) Pal, H.N. Sahay,
Kulwant Singh and Ex. N.K. Baljit (Dalbir) Singh under
Sl.No. 2, 12, 10, 11 respectively in the list of the workmen
substantiates the case of the O.P./Management as proved
by the statement of the management witness (WWI) that
the aforesaid the Essem contractor (P) Ltd. was of Ex-
servicemen undoubtedly. The V.V. Statements for financial
years 1993-94, 1995-96 and 1996-97 by the said contractor
for alleged workmen in 110, 110 and 104 in numbers only
(Ext. 2/1-3 respectively) and for one and half month in the
year 1999 for 100 workmen prove the employment by the
said contractor as their employer who also co-contributed
their shares as the alleged workmen did as their member's
share toward the P.F. and F.P. under the mandatory provision
of Sec. 10D of the Coal Mines Provident Fund and Misc.
Provisions Act 1948 under signature of the said contractor
and the Personnel Manager of Dhori Colliery. But none of
the documents proves the workmen as the employees of
the O.P./Management in any way, as the wages were paid
by the contractor; hence, the contractor primefacie
discharged his liability. So far as the latter pleading about
the carrying on the job of shale picking etc. by the workmen
of the Company is concerned, it being unsubstantiated is
inadmissible.
9. Further Mr. Mukherjee, Ld. advocate for the
workmen has emphatically submitted that in the present
case that neither the intermediary/Contractor has any
licence nor the Management has its registration as required
under the mandatory provisions of section 12, 7 and 9 of
the Contract Labour (R & A Act 1970 in violation of which
the alleged contractor has now existence, hence has to be
kept out on the principle of lifting the veil which disclosed
early the employer-employee relationship as held in the
case of the Secretary, Haryana State Electricity Board Vs.
Suresh Others, 1999 (2) L.L.N. 612(SC) since the pleadings
are unsubstantiated on behalf of the workmen, the pleading
is not substitute for proof. Moreover the relationship of
the workmen with the aforesaid Essen Transporters &
6770
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
Contractors (P) Ltd. has been evasively admitted through
their own photocopies of their salary sheets and P.F. & F.P.
(Extt. W.1 and 2 series respectively), it again clearly
disproves any employer-employee relationship between
the workmen and the management, one of the vital factors
to be employee of the management. Hence, the aforesaid
ruling appears to be inapplicable to their case. Besides, the
decision of the Hon'ble Supreme Court in the case of Indian
Farmers Fertilizer Co-operative Ltd., Industrial Tribunal I,
Allahabad & Ors., 2002(2) I.L.N. 368 related to retrenchment
as cited by Mr. Mukherjee, Ld. Advocate for the workmen
similarly holds not good with the present case where there
is no case of direct or indirect employees of the principal
employer in view of admissions of the workmen about their
payment of wages by the Essem Contractor for their work
under it as evident from their proved photocopies of
documents (Extt. W.1 and 2 series). The aforesaid ruling
relates to the contention to appellant employer that the
workmen were not direct employers but contractors;
Tribunal on appreciation of the facts held the workmen not
contract labours, but direct employees, and should be
declared to be continuing in service, and the same was
upheld, taking into the account of nature of the employment
to be decided necessarily (Para 5). Where the Union/any
of the large number of the workmen has no proof of their
working as shale picking etc. in the colliery, so the ratio
decidendi of the Authority is distinct from the facts of the
case.
10. Further vociferous plea of Mr. Mukherjee, Ld.
Counsel for the workmen is that the Awards passed by the
CGIT No. 1, Dhanbad in similar situated, References Nos.
156/94 & 72/1995 (distinct from the reference No. 37/1990
referred in the pleading only) for regularization of the
workmen concerned with back wages where the
management had no plea of employer-employee relationship
between management and the workmen were confirmed
upto the Hon'ble Supreme Court in (D,B,)S.L.P.(Civil)/15253/
1999 as also in the Civil Appeal No. 8526/2002 following
the dismissal of another writ petition of management by
the Hon'ble Jharkhand High Court, were implemented by
the management after entering into the bipartite agreement
with workmen. But these instances as insisted by the
Learned Advocate for the workmen may not be absolute
criteria for an adjudication in the present reference, because
every ratio acts upon its own case. In the present case, the
workmen have been failure in proof of any camouflage
against the management as also contended by Mr. D.K.
Verma, Leanred Counsel for the O.P./Management.
Therefore, the plea of Mr. Mukherjee, Ld. Advocate for the
workmen based on the ruling 2002 (2)L.L.N. 368(SC),
Farmers Fertilizer Cooperative Ltd. Vs. Industrial Tribunal
(Supra) as dealt with in earlier Para appears to be
unpersuasive and unreasonable. A suo motto inference as
conceived by the Learned Counsel for the workmen may
not add any feather to the cap of their case of the term
"Camouflage".
11. Further it has been strenuously again argued by
Mr. Mukherjee, the Sr. Counsel for the workmen that the
decision of the Hon'ble Apex Court in Hussainabhai Vs.
Alath Factory, SCW Vol/(15) 112 mandates three factors
(i) For whom workers work, (ii) economic control and
(iii) Doctrine of lifting the veil-as true test to identify the
employer-the law laid down is till binding upon all; that the
ruling of the Hon'ble Apex Court in Secy. State of Karnataka
Vs. Umadevi, (2006)(3) SCC (L & S)753 does not apply to
the present case where as the case of the Official Liquidator
Vs. Dayanand (2009)(1)SCC(L & S)943 concerns with ''equal
pay for equal work", but not with the contractor workers or
regularization.
Further Mr. Mukherjee insistently has argued, urging
to go through the rulings referred below, that therein all,
the Hon'ble Supreme Court has held to stop exploitation of
the poor workmen by the management through alleged
contractor by paying them less wages and denying their
facilities since the Industrial Dispute Acts has been enacted
for protection and interest of the poor workmen:
(i) 1963(ii)LLJ447,Bqsti Sugar Mills Vs. Ram
Ujagar,
(ii) 1964(ii) LLJ 633, D.C. Dewan Mohuuiddin Sahib
& Another Vs. United Salt Workers' Union,
(iii) SCL(15)-Royal Talkies Vs. E.S.I.; and
(iv) F.L.R.1990 (60) 20-Shankar Mukherjee Vs.
Union of India.
Further highlighting the right of the workmen,
Mr. Mukherjee for the workmen submits that in the case of
G.M. O.N.G.C., and Shilcher Vs. O..G.C. Contractual Workers'
Union 2008 AIR SCW 3996, the Hon'ble Supreme Court has
held the case of Uma Devi. In applicable to the
regularization of contract workers, but contract workers
are entitled to regularization. Besides it is submitted on
behalf of the workmen that their Lordship held in the latest
case of Bhilwara Dugdh Upadak Sahakari Ltd., Binod Kr.
Sharma, 2011 L.L.R. 1079(SC) that in order to avoid their
liabilities under various labour statues the employers are very
often resorting to subterfuge by trying to show that their
employees are, in fact, the employees of the contractor; it
is high time that his subterfuge must come to an end'.
12. Where Mr. D.K. Verma, Learned Advocate for the
O.P./management has contended that in face of very evident
admission of the workmen as contractor workers how it
can be alleged/pleaded camouflage which is still unproved;
they have neither got any appointment nor have any paper
as proof of their alleged job of pick shale etc. under the
management. Further it has been argued by Mr. Verma, that
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6771
their documents have proved their status as the workers of
ESSEM Transport Contractor under whom they worked,
and were paid by the said contractor for their works
concerned and the contractor contributed their respective
shares of P.F. and F.P. for the period of their work under the
Coal Mines Family Pension Scheme. Mr. Verma has to submit
for the O.P./Management that the Hon'ble Apex Court in
case of Steel Authority of India Ltd. Vs. N.U. Water Front
Workers, Lab. I.C.2001 at page 3656 held that contract
workers are not entitled to regularization in the services of
principal employer just also held in the case of State of
Karnataka Vs. Uma Devi reported in (2006)(3)SCC)L&S)753
that such employees (contractual/casual) do not have
enforceable legal right to be permanently absorbed (Para
52), so none of the rulings cited on behalf of the workman
is applicable to the case.
13. On the perusal and consideration of the materials
available on the case record, and after hearing the argument
of the both learned counsels for the parties concerned, the
serenc reflection surfaces the failure of the Union
Representative to establish the crucial point at which point
of time a direct link was established between the both the
contract labourers and the Principal Employer as viewed
and held by the Hon'ble Apex Court in the case of R.K.
Panda Steel Authority of India Ltd., 1994 AIR SCW
2460(1994)55CC 304.
At the second factor of alleged continuous services,
the Union/the workmen have no proof of their actual
continuous working for 240 days/minimum period as
required under Sec. 25B(2)(a) of the Industrial Dispute Act.
In result, it is hereby responded, and accordingly.
ORDERED
That the Award be and the same as passed that the
action of the Management of Dhori colliery of M/s. Central
Coal Fields Ltd., in not regularizing the services of 145
workmen (Rajeshwar Singh & Ors.) as per the list enclosed,
is quite legal and justified. Therefore, the concerned
workmen are not entitled to any relief whatsoever.
KISHORI RAM, Presiding Officer
ANNEXURE-I
List of the Employees Engaged in Dhori Colliery Railway Siding by the Central Coalfields Limited Management
Sl.
C.M.P. F. No.
Name of the employee
Father's name
1
KGL8/1225
Rajeshwar Singh
Kameshwar Singh
2
KGL8/1223
Balak Ram Pal
Ram Charan Pal
3
KGL8/1227
Binod Kumar Singh
Shiv Bachan Singh
4
KGL8/1228
Firoz Khan
Abdul Zabr Khan
5
KGL8/1229
Brindaban Chakraborty
Nimal Chakraborty
6
KGL8/1247
Md. Zafar
N.D. Alln
7
KGL8/1238
Dilip Kumar Mahtha
Akul Chand Matha
8
KGL8/1231
Monaj Kumar Ojha
S.O. Ojha
9
KGL8/1232
Ramashankar Singh
Ramgohn Singh
10
KGL8/1233
Kulwant Singh
Gongn Singh
11
KGL8/1234
Dalbir Singh
Tara Singh
12
KGL8/1235
H.N. Sahay
B.M. Pd. Sahay
13
KGL8/1238
Binay Kumar Biswas
Bholanath Biswas
14
KGL8/1239
Jyoti Lal Mallah
Mahadeo Mallaha
15
KGL8/1244
Ashok Kr. Srivastava
A.P. Prasad
16
KGL8/1245
Md. Haidar Ali
Md. Islam
17
KGL8/1248
Kailash Yadav
Ganesh Yadav
18
KGL8/1249
Ashok Pandit
Sukhdeo Pandit
19
KGL8/1250
Fagulal Tudu
Sitaram Tudu
20
KGL8/1251
Bipin Kumar Singh
Kameshwar Singh
21
KGL8/1253
Sunil Singh
Ramadhin Singh
22
Dhiran Rawani
Bijay Rawani
6772
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
23
KGL8/1255
Durga Das Chakraborty
G.C. Chakraborty
24
KGL8/1367
Vidhyadhar Das
Phachal Das
25
KGL8/1257
Guchcnt Mandal
Nagendra Mandal
26
KGL8/1258
Sunil Kr. Mahtha
Nakul Chandra Mahato
27
KGL8/1259
Haradhan Roy
Kamal Kant Roy
28
KGL8/1261
Shankar Mahaliya
Puran Mahaliya
29
KGL8/1262
Ramasharan Singh
Jharkhandi Singh
30
KGL8/1263
Md. Kayum Ansari
Md. Johar Ali
31
KGL8/1264
Md. Siraj Khan
Md. Gafar Khan
32
KGL8/1265
Baljit Singh
Sawarup Singh
33
KGL8/1311
Ranjit Singh
Kishan Singh
34
KGL8/1337
Tikhan Bhuiyan
Beni Bhuiyan
35
KGL8/1314
Sunil Boren Patandi
K.B. Paitandi
36
KGL8/1388
Rakash Kumar Singh
Sisupal Singh
37
KGL8/1389
Ganga Bux Singh
Pittu Singh
38
KGL8/1390
Nirbhan Singh
Sarabjit Singh
39
KGL8/1391
Ram Pratap Singh
Sunder Singh
40
KGL8/1392
Kripa Shankar Singh
Kharatilal Singh
41
KGL8/1393
Baleshwar Yadav
Dev Lakhan Yadav
42
KGL8/1394
Udaibhan Singh
Shishupal Singh
43
KGL8/1395
Anurodh Singh
Dasrath Singh
44
KGL8/1396
Kailash Narayan Mishra
Baijnath Mishra
45
KGL8/1397
Ghanshyam Singh
Ramadhar Singh
46
KGL8/1315
Kuldip Singh
Lakhan Singh
47
KGL8/1380
Praveen Kumar Singh
Rajkumar Singh
48
KGL8/1385
Niwas Chandra Mahato
Gopal Chandra Mahato
49
KGL8/1316
Arun Kumar Gorai
Pana Gorai
50
KGL8/1313
Ishwar Bauri
Fakir Bauri
51
KGL8/1318
Mohan Thapa
Jang Bhadur Thapa
52
KGL8/1321
Gulab Chandra Bhuiya
Chhutu Bhuiyan
53
KGL8/1322
Gobardhan Bauri
Debu Bauri
54
KGL8/1323
Jamindar Bhuiyan
Bindeshar Bhuiyan
55
KGL8/1325
Chhotu Bauri
Sashi Bauri
56
KGL8/1326
Sgaunath Singh
Chhotalal Singh
57
KGL8/1327
Pairu Bhuiyan
Saru Bhuiyan
58
KGL8/1328
Ajit Bauri
S. Bauri
59
KGL8/1329
Manik Bauri
Shashi Bauri
60
KGL8/1330
Munna Munda
Shankar Munda
61
KGL8/1331
Dilip Das
Rama Ashish Das
62
KGL8/1332
Ramprit Munda
Fukhen Munda
63
KGL8/1333
Anand Bauri
S. Bauri
Sl.
C.M.P. F. No.
Name of the employee
Father's name
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6773
64
KGL8/1334
Gopal Bauri
C. Bauri
65
KGL8/1335
Ram Praveesh Gossain
Kunja Gossain
66
KGL8/1336
Ratun Bhuyan Kuzza
Kare Bhuyan
67
KGL8/1338
Shiwan Shuyan
Bani Bhuyan
68
KGL8/1339
Chandan Bauri
Sasthi Bauri
69
KGL8/1340
Dhaney Bauri
T.B. Thapa
70
KGL8/1341
Narayan Bauri
Nakul Bauri
71
KGL8/1342
Rajev Bauri
M. Bauri
72
KGL8/1343
Mahesh Pd. Gupta
R.B. Gupta
73
KGL8/1344
Krishna Bauri
Mana Bauri
74
KGL8/1345
Shiv Charan Bauri
Shiku Bauri
75
KGL8/1346
Rajkumar Sahani
Siblal Sahani
76
KGL8/1347
Ajay Kumar Ravidas
Kishori Mohan Ravidas
77
KGL8/1324
Rshssh Munda
K. Munda
78
KGL8/1319
Nand Kishor Bauri
Shripati Bauri
79
KGL8/1377
Samar Chakraborty
Sudhir Chakraborty
80
KGL8/1349
Shankar Bauri
Shri Ram Bauri
81
KGL8/1375
Sanjay Shuman
Karu Sharma
82
KGL8/1237
Debashish Sarkar
Sourindra Mohan
83
KGL8/1320
Binod Bhuiyan
Sukhlal Bhuiyan
84
Nand Kishor Singh
Kashi Pd. Singh
85
Ajit Pd. Gupta
Ram Bilan Prasad
86
Ayodhya Mahato
Atma Ram Mahato
87
Jaraam Pd. Nishad
Ram Pd. Nishad
88
Bashant Ram
Gautam Ram
89
Rajhiws Bhiyian
Raghu Bhuiyan
90
Lochan Mahato
Khalo Metha
91
Chitra Bhuiyan
Dukan Bhuiyan
92
Babu Chand Bhuiyan
Kishun Bhuiyan
93
Raghubeer Paswan
Aliyar Paswan
94
Radheshwar Bhuiyan
Khilash Bhuiyan
95
Sita Ram Nishad
Ram Pd. Nishad
96
Nimal Bauri
Serat Bauri
97
Md. Kamal
Niyamat Ali
98
Rohan Mahato
Nand Lal Mahato
99
Shyam Lal Oraon
Mali Oraon
100
Nunu Chand Mahato
Nand Lal Mahato
101
Jawahar Lal Yadav
Bhotha Yadav
102
Prasant Kr. Singh
Pras Nath Singh
103
Md. Fazil
Besharat Ali
104
Nandu Urawn
M. Urawan
Sl.
C.M.P. F. No.
Name of the employee
Father's name
6774
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
105
Rakho Hari Chakraborty
Prabhat Chakraborty
106
Shahid Anwar
Md. Rafique
107
Anand Prakash Vidyarthi
Late. M.P. Vidyarthi
108
Kalyan
Ganesh
109
Sukhchand
Kaur Singh
110
Kuldip
Rup Singh
111
Nirmal Mahato
Kameshwar Mahato
112
Rajendra Pd. Mahato
Rohan Mahato
113
Narayan Mahato
Bishwanath Mahato
114
Ram Lal Oraon
S. Oraon
115
Surendra Pd. Mahato
Rohan Mahato
116
Bajrangi Singh
Rjeshwar Singh
117
Niralal Mahato
Mohan Mahato
118
Kameshwar Mahato
Pati Mahato
119
N. Manoj Oraon
Shankar Oraon
120
Gupteshwar Pd. Yadav
T.P. Yadav
121
Mithilesh Kumar Sinha
R.K. Sinha
122
Ramduler Thakur
Prayag Thakur
123
Ramkumar Thakur
Prayag Thakur
124
Gyan Prakash
D.S. Prakashan
125
Kanchan Gopal Tiwari
Kanan Gopal Tiwari
126
Tripurari Rawani
Ram Chandra Rawani
127
Gopi Mahato
Ugan Mahato
128
Baijnath Gupta
Nageshwar Gupta
129
Suchit Kumar
Late Budhan Rawani
130
Rajendra Ram
Dhaneshwar Ram
131
Sheo Narayan
Murle Bhuiyan
132
Binod Sonar
Late Madhusudan Sonar
133
Rashid Hasan
Md. Rafique
134
Santosh Kumar
Mahanand Prasad
135
Md. Asgar
Md. Daud
136
Samit Kumar
Ajit Kumar Ghosh
137
Raj Kumar Rajak
Sanatan Rajak
138
Nakul Das
Jagmohan Das
139
Mantu Das
Mahadeo Das
140
Amod Kumar Pathak
141
Sunil Kumar
Awadesh Pd.
142
Ashok Mukhi
Late Hanoo Mukhi
143
Jugnu
Rameshwar
144
Rajesh Prasad
145
Chandra Shekhar Prasad
Sita Ram Rewani
Sl.
C.M.P. F. No.
Name of the employee
Father's name
¹Hkkx II—[k.M 3(ii)º
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6775
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vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsanzh; ljdkj vkS|ksfxd
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2012½ dks izdkf'kr djrh gS] tks dsanzh; ljdkj dks 25@11@2013 dks
izkIr gqvk FkkA
[lañ ,y&20012@67@2011&vkbZvkj ¼lh,e&I½]
,eñ dsñ flag] vuqHkkx vf/kdkjh
New Delhi, the 25th November, 2013
S.O. 2620.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 05/2012)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court No.
2, Dhanbad as shown in the Annexure, in the industrial
dispute between the management of Govindpur Area of
M/s. BCCL, PO: Sonardih and their workmen, received by
the Central Government on 25/11/2013.
[No. L-20012/67/2011-IR (CM-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. 5 OF 2012
PARTIES
: The vice President
Janata Mazdoor Sangh,
Vihar Building, Jharia
(Dhanbad)
Vs.
Gen.
Manager
Govindpur area of M/s.
BCCL, Sonardih, Dhanbad
APPEARANCES :
On behalf of the workman/ : Mr. K.N. Singh. Ld.
Union
Advocate
On behalf of the
: Mr. D.K. Verma, Ld.
Management
Advocate
State : Jharkhand
Industry:Coal
Dated, Dhanbad, the 24th Oct., 2013.
AWARD
The Government of India, Ministry of Labour, in
exercise of the powers conferred on them under Sec. 10(d)
of the I.D. Act., 1947 has referred the following dispute to
this Tribunal for adjudication vide their Order No. L-20012/
67/2011-IR(CM-I) dt. 20.12.2001.
SCHEDULE
"Whether the action of the management of Jogidih
Colliery. BCCL in not regularizing Sri Chhatrabali Das as
Store Keeper is fair & justified, to what relief the workman
concerned is entitled to?"
Neither any Representative for Janta Mazdoor Sangh,
Jharia, nor workman Chhatrabali Das appeard, but Mr. D.K.
Verma, the Ld. Advocate for the O.P./Management of
Govindpur Area of M/s. BCCL present.
On perusal of the case record, in course of pending
for the evidence of the management for which last chance
was given on 6.3.2013, it was brought to the notice of the
Court by producing attested copy of the death certificate
dt. 25.3.2013 of the workman Chhatrabali Das, according to
which he appears to have expired on 24.3.2013—as
produced on behalf of the Management.
Under these circumstances, Industrial Dispute in lack
of substitution of the workman by his any heir within time
abates; in result, the case is closed as no. I.D. existent and
accordingly an order is passed.
KISHORI RAM, Presiding Officer
ubZ fnYyh] 20 uoEcj] 2013
dkñvkñ 2621.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsanzh; ljdkj ch lh lh ,y izca/
kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqca/k esa
fufnZ"V vkS|ksfxd fookn esa dsanzh; ljdkj vkS|ksfxd vf/kdj.k@Je
U;k;ky; uañ 1] /kuckn ds iapkV ¼lanHkZ la[;k 27 dk 1992½ dks
izdkf'kr djrh gS] tks dsanzh; ljdkj dks 20@11@2013 dks izkIr gqvk
FkkA
[lañ ,y&20012@43@1991&vkbZvkj ¼lh&I½]
,eñ dsñ flag] vuqHkkx vf/kdkjh
New Delhi, the 20th November, 2013
S.O. 2621.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 27/1992)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court No. 1,
6776
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
Dhanbad as shown in the Annexure, in the industrial
dispute between the management of M/s. BCCL and their
workmen, received by the Central Government on 20/11/
2013.
[No. L-20012/43/1991-IR (C-I)]
M.K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL (NO. 1), AT DHANBAD
Reference: No. 27/1992
In the matter of reference U/s 10(1) (d) (2A) of I.D. Act,
1947
Parties :
Employer in relation to the management of
Bhulan Bararee Colliery of M/s. BCCL
And
Their workmen.
Present
: Shri R.K. Saran,
Presiding Officer
Appearances :
For the Employers
: Shri Sri U.N. Lal, Adv.
For the workman
: None
State: Jharkhand
Industry : Coal
Dated 31.10.2003
AWARD
By Order No. L-20012/43/91-IR(C-I) dated 26.3.92 the
Central Government in the Ministry of Labour has, in
exercise of the powers conferred by clause (d) of sub-
section (1) and sub-section (2A) of section 10 of the
Industrial Dispute Act, 1947 referred the following dispute
for adjudication to this Tribunal:
"Whether the action of the management of Bhulan
Bararee Colliery of M/s. BCCL, in not giving
employment to the dependent Shri Mritunjay Biswas,
son of late Sh. P.K. Biswas, Ex-Production-cum-Safety
Asstt. is justified? If not, to what relief the concerned
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
disputes between the parties have been resolved in the
meantime. Hence pass a No disputed Award is passed.
Communicate to the Ministry.
R.K. SARAN, Presiding Officer
ubZ fnYyh] 20 uoEcj] 2013
dkñvkñ 2622.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsanzh; ljdkj ch lh lh ,y izca/
kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqca/k esa
fufnZ"V vkS|ksfxd fookn esa dsanzh; ljdkj vkS|ksfxd vf/kdj.k@Je
U;k;ky; uañ 2] /kuckn ds iapkV ¼lanHkZ la[;k 22 dk 2000½ dks
izdkf'kr djrh gS] tks dsanzh; ljdkj dks 20@11@2013 dks izkIr gqvk
FkkA
[lañ ,y&20012@351@1999&vkbZvkj ¼lh&I½]
,eñ dsñ flag] vuqHkkx vf/kdkjh
New Delhi, the 20th November, 2013
S.O. 2622.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 22/2000)
of the Cent. Govt. Indus. 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
workmen, received by the Central Government on
20/11/2013.
[No. L-20012/351/1999-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 I.D. Act, 1947.
REFERENCE NO. 22 OF 2000
Parties
:
The Secretary, Bihar Colliery
Kamgar Union, Hirapur,
Dhanbad
Vs. General Manager, P.B. area
of M/s. BCCL, Kusunda,
Dhanbad.
APPEARANCES :
On behalf of the
:
Mr. D. Mukherjee, Ld.
workman/Union
Advocate
On behalf of the
:
Mr. D.K. Verma, Ld. Advocate
Management
State: Jharkhand
Industry : Coal
Dated, Dhanbad, the 7th Oct., 2013.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6777
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/
351/99-IR (C-I) dt. 28.01.2000.
SCHEDULE
"Whether the demand of the Union before the
management of Balihari Colliery under P. B. Area of M/s
BCCL for reinstatement of S/Sri Pradeep Orang & 35 others,
as per list enclosed, with full back wages, in the services of
the Company is proper and justified? If so, to what relief
the concerned workman are entitled and from what date?
2. The case of workman Pradeep Orang & 35 others
as per the list enclosed as sponsored by the Bihar Colliery
Kamgar Union, Hirapur, Dhanbad is that all the workmen
concerned had been doing the job of cutting stone dusting,
isolation stopping line packing, road cleaning, stone dust
spreding, sump cleaning etc. of prohibited but of permanent
nature of Balihari Colliery under the direct control and
supervision of the management since long by putting in
more than 190/240 days attendance in each year. They had
been rendering their services with all the implements
supplied by the management and producing goods for the
benefit of the management. But the management kept on
paying them their wages below the rates of NCWA through
different intermediaries which was nothing but a legal
camouflage, and all papers of management to hide the real
fact. At their repeated insistences for regularization and
payment of their wages as per the NCWA, the management
annoyedly and orally terminated their services from
February, 1996 in violation of Sec. 25F of the I.D. Act and
the principle of natural justice. At last the failure in
reconcillation in the industrial dispute raised by the Union
before the ALC(C), Dhanbad, resulted in reference for an
adjudication. The action of the Management in orally
terminating the workmen from their services was illegal,
vindictive, anti labour policy and unjustified. So the demand
of the Union for their regularization with full back wages is
proper and justified.
3. The Union in its rejoinder has categorically denied
all the allegations of the O.P./management, stating that the
workmen were legally the employee of the management.
The management had ever engaged the intermediaries/
contractor to produce the coal in the name of "outsourcing".
The Management is paying the workmen through Jan Vikas
Sharmik Sahayog Samiti, an unregistered one, with a view
to camouflage the real issue, as the unregistered Samiti can
not be a contractor. Majority of the workmen have been
appointed by M/s BCCL without any employment
exchange.
4. Whereas the contra case of the O.P./management
with specific denials is that neither employer-employee
relationship exists nor the workmen were employed and
terminated by the management, so the question of their
reinstatement does not arise at all. M/s BCCL is a
Government Company which never engaged any
intermediary for supply of the Labours. Neither the
workmen disclosed the name of the contractor under whom
they were working nor the Union supplied the documents/
details of the names etc. of the workmen to the management
on its demand in the conciliation proceeding before the
Conciliation Officer. The Union filed the case on imaginary
facts to provide employment to the job seekers through
litigation. The M/s BCCL being a Public Sector Undertaking
has to make appointment with reservation of SC/SDT
through Employment Exchange. It being a state under the
Article 12 of the Constitution of India cannot provide
employment to anybody in contravention of the Article 14,
16 and 19 of the Constitution.
5. The O.P./management in its rejoinder has
categorically denied the allegation of the Union, and stated
that the Union/workmen had not specified in which year
they had completed 190/240 days. The workmen were never
on the roll of the management. So the question of alleged
termination or payment of compensation u/s 25 of the I.D.
Act 1947 do not rise.
FINDING WITH REASONING
6. In the instant reference, WW1 Janardhan Paswan,
WW2 Umesh Singh (Sl Nos. 33 & 34 as per list respectively)
for the Union, and MWI Sushil Kumar Behra, Sr. Officer
(Pers.), P.B. area of the O.P./management have been
respectively examined.
The statement of WW1 Janardhan Paswan just as
his colleague Umesh Singh (WW2) for the first time
discloses the period of them workmen's working
underground of the Balihari Colliery from 1993 until their
stoppage from their work from 1996. They have neither any
appointment letter, a Pay-Slip, I.D. Card from the
management nor the forwarding of their names by the Local
Employment Exchange for the job. He (WW1) had produced
the eight photocopies of eight slips for the engagement of
their job under the signature of the Manager Sunil Singh,
Ray Saheb and D.N. Prasad as Extt. 1 series. Though
witness denied any organizational named Jan Vikas Shramik
Sahayog Samitee, partially admissible to have written their
names on the slips in their pen and used to get the
photocopies of their original slips submitted to the
management.
But it stands evident from the statement of WW2
Umesh Singh that they worked through the Jan Vikas
Shramik Sahayog Samittee, and its name seal figures on
the each of the eight Slips, though the witness (WW2)
appears to have pointed out Bihar Kamgar Union Co-
operative Society beyond the pleading. Both the workmen
witnesses claimed to have performed the job of line cleaning
and packing, Khaz cutting, stopping (Isolation) etc. by
going insides the mines.
6778
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
7. Whereas statement of MWI Sushil Kumar Behra,
Sr. Officer (Pers), P.B. Area affirms neither workmen Pradeep
Orang & 35 others as per the list are on the roll of the
Company/Balihari Colliery under the P.B. Area, nor there is
any document of their alleged termination, so their demand
for reinstatement in the company is unjustified. The entry
of all the names of the employees working in the Mine into
the Form B register of the Company just as Form C Register
maintained for them as per the Mines Act is an
acknowledged fact by the management witness, though
personally ignorant of employees of the company working
in the Mines during the period of 1993 to 1995, yet he
asserted to file the form C Register for the period.
8. Mr. D. Mukherjee, Ld. advocate for the union/
workmen treating the entry of all the names of the
employees working in the Mine into the Form B and C
register as the Mines Act as admission of the MW1 S.K.
Behra has submitted that the pleading of the management
has not been corrobrated by his oral evidence. Mr.
Mukherjee insists as usually in all his cases that the
pleading is no substitute for proof as held by the Hon'ble
Apex court in the case of Manager RBI, Bangalore Vs. S.
Mani, 2005 (105) FLR 1067 as also previously viewed by
the Hon'ble Allahabad High Court in the case of National
Insurance Company Ltd. Vs Jogendra Nath Verma & Ors.,
AIR 1982 (All), 385 But in the present reference, the
evidence of the workmen witnesses 1 & 2 about alleged
working period for the year 1993-96 as contrasted with
their vague pleading 'working since long' appears to be
untenable and baseless, whereas the specific fact of the
management that the workmen were never on the roll of the
management as deposed by the MWI being based on the
pleading stands legally admissible. Likewise the statement
of MWI about the entry of all the names of the employees
working in the Mines in the Form B and C Register is
nothing but assertion of the maintenance of the said
mandatory Register by the Management and in that
context, the employees working in the Mines mean those
employed by the Management only, so the said rulings
appear to be wide off the mark.
9. Besides, underlining Doctrine of lifting the veil as
the true test to discern the factual relationship of employer
and employees in the aspects of workmen's production of
goods & services, for whose business, and under whose
economic control over it as held in the case of Hussainbhai
vs. Nath factory, 1978 Lab.I.C. 1264=1978(4) SCC 257, Mr.
Mukherjee, the Learned Senior Counsel for the Union/
workmen has referred catena of Hon'ble Apex Court's
decision in the matter of regularization as under:
1996(i) LLJ 131, United Salt Works Ltd., V. their
workmen-where workmen originally appointed by
contractor called 'Mukdoma' were held as the employees
of the management;
1963(II)LLJ-477 SC (CB), M/s Basti Sugar Mills Vs.
Ram Ujjagar, where the 21 workmen of the factory were
stopped from duty, and the plea of the management was
that they were the employes of the contractor but they
were held as the employees of the management and
accordingly were directed for reinstatement with full back
wages; and
1994(II)LLJ-433, DC Dewan Mohiuddin Saheb Vs.
United Bidi Workers Union, wherein the contractor used
to supply Bidi leaves and tobaco to the workers following
the supply of the same by the Principal Employer to him
and after preparing Bidi at their homes, the workmen
similarly deposited the same through the contractor to the
Principal employer, the workers were held the employees
of the management;
Further plea of Mr. Mukherjee, Sr. Counsel for the
Union is that the management can not snap the real life
bond where the livelihood of the workmen substantially
depends on labour rendered to the produce goods and
services for the benefit and satisfaction of an enterprise,
the absence of direct relationship or the presence of dubious
intermediaries or make believe trapping of datachment from
the management. Many others simply quoted as in his
written argument as relied upon by Mr. Mukherjee are as
such:
1994 LLR 634, R.K. Pandey Vs. SAIL
SCW (10)-Royal Talkies
F.L.R. 1990-vol. 60 page 20, Shankar Mukherjee Vs.
Union of India.
1987 L.I.C. 619, catering Cleanness Service
1995 (2) C.L.R. 214, National Federation of Rly. Porters
M69 (19) FLR 385-Management of Pradeep Lamp
Works V. their workmen
2008 AIR SCW 3996, G.M. ONGC Vs. its workers
Union and
2011 LLR 1079-Vilwara Dugdh Union.
It is also submitted in behalf of the Mr. Mukherjee
that since the case of the Uma Devi, 2006 Lab.IC.3209 as a
days beign relied upon by the management that the
workmen are not entitled for regularization relates to the
Government employees, their employment was dehors Art.
309 of the Constitution, but the present case has no dispute
of employer-employee relationship. But in the present case,
such relationship has been attempted by implication.
10. On the other hand, the contention of Mr. D.K.
Verma, the Learned Advocate for the O.P./Management is
that it is an admitted fact that the workmen have neither
appointment nor interview letter nor pay slip nor Identity
Card from the management nor any proof of their continuous
working, rather they were employees of the Jan Vikas
Shramik Sahayog Sammiti Ltd., Further it has been
contended by Mr. Verma, that in view of their admitted
status as contractor workers, there stands not any case of
termination of them, because the provision of Sec. 25 F of
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6779
the Industrial Dispute Act., 1947 applies to the employee
appointed by the Management and that it can not 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 mater & servant is
created between the principal employer and the contract
labour as held in the case of Steel Authority of India Ltd.,
Vs. N.U. Water Front Workers (2001)LAB IC 3656(SC)(CB
of 5 Judges). Moreover, the alleged workmen in lack of any
proof of their continuous working are not entitled to
regularization or any relief.
11. On putting the case of the workmen to the Test of
Anvil, I find that and hold that the workmen were neither
employees of the management, so there was no employer
and employees relationship between them and that as per
the eight Slips of the workmen's engagement (Extt. 1 series),
out of total 36 workmen as per the list enclosed, the
workmen under Sl. Nos. 1 to 17, 21, 22, 24, 25 and 32 to 36 as
contract labour worked only for one to six days in the year
1994 intermittently. The name of Umesh Kr. Mahato & ten
other persons as named in the said slips are beyond the list
of the workmen. Every ratio of ruling acts upon its own
factum. The agreement of Mr. Mukherjee, Learned Sr.
Counsel for the Union/workmen seems untenable as
contrasted with that of Mr. Verma, Learned Advocate for
the O.P./Management.
In the result, it is, in the terms of the reference, hereby.
ORDERED
That the Award be and the same is passed that the
demand of the Union before the Balihari Colliery under P.B.
Area of M/o BCCL for re-instatement of S/Sri Pradeep Orang
and 35 others as per the list enclosed, with full back wages
in the service of the Company is quite unjustified and illegal.
Hence, the concerned workmen are not entitled to any relief
from the any date.
KISHORI RAM, Presiding Officer
List of the workmen as per Ministry's file No. L-20012/351/99.IR(C-1) As Annexure
Sl.No.
Name
Father's Name
Address
1.
Sri Pradeep Orang
Sri Kalua Orang
At Kachi Balihri (Orang Ptti),
PO: Kusunda, Distt. Dhanbad
2.
Sri Jitan Orang
Sri Lalu Orang
-do-
3.
Sri Gaya Ram Orang
Sri Mangal Orang
-do-
4.
Sri Joksen Orang
Sri Samar Orang
-do-
5.
Sri Charku Orang
Sri Nakul Orang
-do-
6.
Sri Vim Orang
Late Hari Ram Orang
-do-
7.
Sri Jitu Orang
Sri Gobardhan Orang
-do-
8.
Sri Madhu Orang
Sri Dugn Orang
-do-
9.
Sri Kamdeo Orang
Sri Jetu Orang
-do-
10.
Sri Durga Orang
Sri Prayag Orang
-do-
11.
Sri Naresh Orang
Sri Fagu Orang
-do-
12.
Sri Vim Soren Manjhi
Sri Fudan Manjhi
-do-
13.
Sri Mahenda Orang
Sri Bandhu Orang
-do-
14.
Sri Satya Naryan Orang
Sri Hari Orang
-do-
15.
Sri Rocket Orang
Sri Madhaw Orang
-do-
16.
Sri Birbal Orang
Sri Kudhu Orang
-do-
17.
Sri Suraj Orang
Sri Akalu Orang
-do-
18.
Sri Saheb Orang
Sri Asari Orang
-do-
19.
Sri Nidhram Orang
Sri Gopal Orang
-do-
20.
Sri Rajesh Orang
Sri Madhaw Orang
-do-
21.
Sri Kokil Mahato
Sri Jagtu Mahato
-do-
22.
Sri Girish Mahato
Sri Shankar Mahato
-do-
23.
Sri Yogendra Mahato
Sri Nunarik Mahto
-do-
6780
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
24.
Sri Jitu Pd. Mahato
Sri Kali Charan Mahato
-do-
25.
Sri Ram Nath Gope
Sri Guhi Gope
-do-
26.
Sri Suraj Kumar
Sri Vikhan Pd.
At South Balihari Colliery (Vishundhara)
PO : Kusunda, Dhanbad
27.
Sri Sarajug Prasad
Late Ramchandra Mahato
-do-
28
Sri Suresh Pd. Kushwaha
Sri R.L. Kushwaha
-do-
29.
Sri Jadish Singh
Late Bharat Singh
-do-
30.
Sri Beni Ram
Late Vikhai Das
-do-
31.
Sri Mritynjn Sarkar
Sri Sri B. M. Sarkar
At Balihari Colly, (Mevia), PO: Kusunda,
Dhanbad
32.
Sri Saroj Kumar
Sri R.L. Kushwaha
At South Balihari Colly (Vishundhara), PO:
Kusunda, Dhanbad.
33.
Sri Janardhan Paswan
Sri Mahadev Paswan
-do-
34.
Sri Umesh Singh
Sri A.N. Singh
-do-
35.
Sri Pramod Singh
Sri Harkit Singh
-do-
36.
Sri Rajesh Kumar
Sri Hardeo
-do-
Sl.No.
Name
Father's Name
Address
ubZ fnYyh] 20 uoEcj] 2013
dkñvkñ 2623.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ch lh lh ,y ds
izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqca/k esa
fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k@Je
U;k;ky; uañ 1] /kuckn ds iapkV ¼lanHkZ la[;k 07 of 2009½ dks
izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 20@11@2013 dks izkIr gqvk
FkkA
[lañ ,y&20012@21@2009&vkbZvkj ¼lh ,e&I)]
,eñ dsñ flag] vuqHkkx vf/kdkjh
New Delhi, the 20th November, 2013
S.O. 2623.—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 Cent. Govt. Indus. Tribunal-cum-Labour Court No.
1, Dhanbad as shown in the Annexure, in the industrial
dispute between the management of W.J. Area Moonidih
of M/s BCCL, and their workmen, received by the Central
Government on 20/11/2013.
[No. L-20012/21/2009-IR(CM-I)]
M. K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL NO. 1, DHANBAD
In the matter of reference U/S 10(1) (d)(2A) of I.D. Act,
1947
Ref. No. 07 of 2009
Employer in relation to the management of W.J.Area,
M/S BCCl
AND
Their workmen
APPEARANCES :
For the employers:— Sri D.K. Verma, Advocate
For the Workman:— Sri S.C. Gour, Rep.
State:— Jharkhand.
Industry:—Coal
Dated 30/10/2013
AWARD
By order No. L-20012/21/2009/IR (CM-I) dt. 13.02.2009
the Central Government in the Ministry of Labour has, in
exercise of power 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 Moonidih
Project, W.J. Area of M/S BCCL in denying promotion
as Assistant Foreman category "B" T&S to Shri
Upendra Nath Roy, Assistant Foreman Gr. "C" T&S
is justified and legal? (ii) To what relief is the workman
concerned entitled and from which date?"
2. This Case is received from the Ministry on
25.02.2009. During the pendency of the case Sponsoring
Union files a petition praying their in that the Union is not
contesting the reference. It is felt that the dispute between
parties is resolved. Hence "No dispute" award is passed
communicate.
R.K. SARAN, Presiding Officer
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6781
ubZ fnYyh] 20 uoEcj] 2013
dkñvkñ 2624.—vkS|ksfxd fookn vf/kfu;e] 1947
¼1947 dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ch lh
lh ,y ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/kdj.k@Je U;k;ky; uañ 1] /kuckn ds iapkV ¼lanHkZ la[;k 42 of
2004½ dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 20@11@2013
dks izkIr gqvk FkkA
[lañ ,y&20012@295@2003&vkbZvkj ¼lh&I)]
,eñdsñ flag] vuqHkkx vf/kdkjh
New Delhi, the 20th November, 2013
S.O. 2624.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 42/2004)
of the Cent. Govt. Indus. 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
workmen, received by the Central Government on
20/11/2013.
[No. L-20012/295/2003-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. 42 OF 2004
Employers in relation to the management of Bastacolla
Colliery M/S BCCL
AND
Their workman.
Present :
Sri Ranjan Kumar Saran,
Presiding Officer
Appearances :
For the Employers :
Sri U.N. Lall, Advocate
For the workman :
Sri D. Mukherjee,
Advocate
State : Jharkhand
Industry : Coal
Dated. 29/10/2013
AWARD
By Order No.L-20012/295/2003-IR (C-I), dt.
26/04/2004, 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 Bastacolla
Colliery under Bastacolla Area of M/s BCCL, P.O-
Jharia, Distt-Dhanbad in dismissing Sri Bhola Bhuia,
Miner Loader from the service w.e.f. 01.01.1999 is
proper and justified? if not, to what relief is the
workman concerned entitled?"
2. The case is receieved from the Ministry of Labour
on 14.05.2004. After receipt of the reference both parties
are noticed. The Sponsoring Union files their written
statement on 28.01.2005. The management also files their
written statement-cum-rejoinder on 29.04.2005. Thereafter
they submitted their documents.
3. The short point involved in the case is, the
workman for his gross negligence and misconduct, has
been dismissed by the management by invoking clause 28
of the standing order without conducting any enquiry
whatsoever.
4. The counsel appeared on behalf of the workman
submitted that clause 28 of standing order has already
been declared ultravires by the Apex Court and the same
has been accepted by many High Courts. One of such
decision has been reported in AIR 1996 SC 1065.
5. Therefore the dismissal order passed by the
management as per clause 28 of the standing orders can
not stand dismissal of the workman is illegal.
6. Considering the facts and circumstance of this
case, In the result, I hold that the action of the management
of Bastacolla Colliery under Bastacolla Area of M/s. BCCL,
P.O- Jharia, Distt-Dhanbad in dismissing Sri Bhola Bhuia,
Miner Loader from the service w.e.f. 01.01.1999 is not legal
and justified. Hence he be reinstated in service without
any back wages whatsoever within 30 days after publication
of the award.
This is my award.
R. K. SARAN, Presiding Officer
ubZ fnYyh] 20 uoEcj] 2013
dkñvkñ 2625.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ch lh lh ,y ds
izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqca/k esa
fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/kdj.k@Je U;k;ky; uañ 2] /kuckn ds iapkV ¼lanHkZ la[;k 11 of
2000½ dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 20@11@2013 dks
izkIr gqvk FkkA
[lañ ,y&20012@284@1999&vkbZvkj ¼lh&I)]
,eñdsñ flag] vuqHkkx vf/kdkjh
New Delhi, the 20th November, 2013
S.O. 2625.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 11/2000)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court No.
6782
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
2, Dhanbad as shown in the Annexure, in the industrial
dispute between the management of M/s BCCL, and their
workmen, received by the Central Government on
20/11/2013.
[No. L-20012/284/1999-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 I. D. Act, 1947.
REFERENCE No. 11. OF 2000
PARTIES
: Shri Hemali Choudhary, (Workman)
Vs. General Manager, CWS,
Barkhakana
of
M/s
CCL,
Hazaribagh,
APEARANCES :
On behalf of the
:
Mr. D. Mukherjee Ld. Advocate
Workman
On behalf of the
:
Mr. D.K. Verma, Ld. Advocate
Management
State:Jharkhand
Industry : Coal
Dated, Dhanbad, the 24th 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/
284/99(C-I) dt. 21.1.2000.
SCHEDULE
"Whether the action of the management of CWS,CCL,
Barkhakana in dismissing Shri Hemali Choudhary Cat. I
worker w.e.f. 25.9.98 from service is just, proper and legal?
If not, to what relief is the workman entitled?"
2. The case of workman Hemali Choudhary as stated
in his written statement is that he was originally appointed
as a permanent workman against permanent vacancy at
CWS, Barkhakana of M/s. CCL on 13.10.1995, after
sponsoring his name through the Employment Exchange
for it, and his performance and interview by the
management. But the anti labour management issued him a
false and frivolous charge sheet dt. 8.10.97 on the allegation
of securing employment by furnishing wrong information
under clauses 23(ii)(a), and 23 (ii)(r) of the Certified Standing
Order' of the Company. Emphatically denying the charges,
the workman replied to the chargesheet, submitting to the
management, that he had neither committed any fraud, theft
or dishonesty in respect of the Company's business and
properly, nor given any wrong information regarding his
name, date of birth, percentage, qualification and previous
experience at the time of employment. Though his reply
was satisfactory, yet the management with ulterior motive
to victimize him got held the irregular departmental enquiry
through a biased Enquiry Officer, who completed it formally
in utter violation of the principle of natural justice, as he
was not given any opportunity to cross the management
witness or to adduce evidence for his defence; besides, it
was held on the dictates of some interested higher officials
of the management to remove him from service. Despite
unproved charges, he was dismissed on the basis of
perverse finding of the Enquiry Officer. After seeing no
alternative, workman raised the Industrial Dispute before
ALCC, Hazaribagh but its failure in the conciliation resulted
in the reference for an adjudication. Thus the action of the
management in dismissing him from service w.e.f. 25.9.98
was neither legal nor justified, as the dismissal of the
workman was by an unauthorized person. Moreover, his
dismissal is harsh and disproportionated to the alleged
misconduct.
3. It is remarkable to note that no rejoinder filed by
the workman in this case.
4. Whereas the Opp./Management has contra pleased
case with categorical denials that workman Hemali
Choudhary son of Sri Kiru Choudhary fraudulently
managed to secure employment as Trainee Cat. I as per the
appointment letter dt. 13.10.1995 in the C.C.L. under its
Land Loser Scheme of the Piparwar Area, without approval
of the Competent Authority, by giving false information
regarding the relationship as nephew no a nominee with
the onwer of the Land bearing Khata No. 23, Plot Nos.
171,450,577 At village Karo, P.S. Kheredari, Distt: Hazaribagh
which was acquired by the CCL for mining operation. But
on subsequent enquiry, it was found that he was not the
nephew of the owner of the said Lands, rather against the
lands appointment as per the Appointment Letter dt.
21.9.1995 was already given in the C.C.L. to Muneshwar
Mahato son of Baldeo Mahato. Thus, he was chargesheeted
for his misconduct under clauses 23(ii)(b) and 23 (ii)(r) of
the Certified Standing Order of the Company. The workman
submitted his reply dt. 23.10.97. Sri A.K. Prasad, Chief
Engineer M/s C.C.L. Ranchi as the Enquiry Officer
appointed as per letter dt. 28.10.97 of the Management
fairly and properly conducted the domestic enquiry without
any prejudice and according to the principles of natural
justice. In the enquiry, Sri U.K. Tripathi, Sr. Vigilance Officer,
CCL, Ranchi as the Presenting Officer and the workman
concerned with his co-worker had participated, and the
workman was again given full opportunity for his defence,
as his co-worker had cross examined the managements
witness. At the enquiry, the Enquiry Officer submitted his
enquiry report to the management holding therein the
charges levelled against the workman to have been proved.
Thereafter Management issued the second Show Cause
notice to the workman, supplying the enquiry report to
him. The workman submitted his written representation to
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6783
the management. After duly considering the
representation of the workman, the management as per
order dt. 23rd Sept., 1998 dismissed the workman which
is legal and justified.
5. Further it is alleged by the Opp./Management that
since the workman had fraudulently got his employment
in M/s. CCL; he was punished with his dismissal after
holding domestic enquriy, and his punishment is legal and
justified. So he is not entitled to any relief.
The Opp./Management in its rejoinder has
categorically denied the allegation of the workman, and
stated that his reply/explanation was not satisfactory; the
Enquiry Officer had given full opportunity to the workman
for his defence.
FINDING WITH REASONS
6. In the reference on consideration of the materials/
evidence of MW1 Akhani Saileshwar Pd., for the Opp./
Management and WW1 Hemali Choudhary, the workman
for his own sake at the preliminary point about fairness of
the enquriy, the Tribunal as per its Order No. 29, dt.
16.5.2011 held the domestic enquiry as fair, proper and in
accordance with the principle of the natural justice.
Consequently, it came up for hearing the final
argument for adjudication. It has been submitted by Mr. D.
Mukherjee, the Ld. Counsel for the workman as per the
written argument.
It has been argued as per the written argument in
behalf of the workman that having all along protested his
appointment under the Land Looser Scheme, he has claimed
to have been appointed by the management through
written test and oral interview on sponsoring his name by
the Employment Exchange; but so far as his disqualification
in the examination as stated in his alleged confessional
statement is concerned, the management has failed to
prove any document to that effect. Out of the eight rulings
merely cited in his written argument, the workman filed
and relied upon 2009LLR 252 SC(DB), Roop Singh Negi
Vs. Punjab National Bank & Ors. The case relates to the
dismissal of the appellant by the Disciplinary Authority as
per an order. dt. 24.1.2011 without assigning any reason
and without considering the contentions raised by the
appellant, and overlooking the fact that he had been
acquitted by the criminal Court; the management witness
merely tendered the documents, and did not prove the
contents thereof, yet the appellant was dismissed against
the appellant after five years of the incident, so Their
Lordship was pleased to direct reinstatement with full back
wages, and held that departmental proceedings being a
quasi judicial proceedings, the charges levelled against
the delinquent Officer must be found to have been proved.
(Paras 17, 18 and 19). But in the present case the
management witnesses have proved the relevant
documents, explaing what they are, and the Enquiry Officer
concerned appeared to have considered all the relevant
facts/aspects as stated in his Enquiry Report (Ext. M. 6)
which is based on sound reasoning. So the ratio decendi
of the ruling being quite distinct from the facts of the case
holds not good with it,.
Further it has been argued in behalf of the workman
that the management witness (MW1 Akhouri Saileshwari
Prasad) has admitted as per the letter (dt. 13.10.95-Ext. M. 10)
under the signature of the G.M. (Pers. & Admn.) the
Appellant Authority, but he was dismissed by the G.M. of
Barkakana Area, and that the dismissal of the workman by
the G.M. (P & A), the Appellant Authority is illegal and
void abinitio. But this argument for the workman being self
contradicting and presumptive is untenable, so there is
not such admission of the MW in his evidence about the
dismissal of the workman.
On the other hand, the contention of Mr. D.K. Verma,
Ld. Advocate for the Management is that on the proof of
the charges under the Standing Order Clause 23 (ii) (1) and
(r) against the workman, his dismissal from his service by
the management for securing his employment in the C.C.L.
on false information was quite proper and just in view of
the gravity of his said misconduct.
7. On perusal and consideration of the materials, I
find the following facts:
(i) The workman had admitted that he has not any
relationship with the Land or the Land Owner
concerned, and he has received his appointment
letter dt. 13.10.1995 (Ext. M. 10). But he claims to
have been appointed on the basis of a written
test at St. Xaviers' College whereas his alleged
Admit Card (photocopy Ext. M5/11) unsigned by
the Invigilator and in lack of mention about the
CCL Guidelines as its enclosures (Ext. M5/13) for
his examination Centre at St. Xavier's College,
Ranchi (Purulia Road) stands out as his document
of his impeachable features.
(ii) Still the workman bases his claim on his aforesaid
Appointment Letter No. PD/MD/Apptt./Land
Loser/87-88/R-820 dt. 13.10.1995 (Ext. M. 10), which
reads as such:
"Sri Hemaili Choudhary S/o Khiru Choudhary,
relationship with the owner of the Land
acquired...."
Nephew......... Khata No. 23 Plot Nos. 371, 450,577.
Address: Village-Karo, P.S. & Circle Keredani,
Distt: Hazaribagh C/o SO (P), Piparwar.
In terms of the argeement between the
Management of CCL and the Land Owner of Village
Karo, Block Keredaro, Distt: Hazaribag ... Subject
to medical examination by the Medical Officer of
the Company about your physical fitness and the
6784
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
suitability for employment, you are hereby offered
appointment Trainee Cat. (ITI) on an initial pay.
Rs. 38.47 per day/ month in the pay scale of
Rs. 38.47-070-48.27 plus usual allowances as may
be admissible from time to time under National
Coal Wages Agreement..."
(iii) Whereas the appointment under the same plot of
Land under the aforesaid scheme Khata & Plots
No. of the same already offered to Muneshwar
Mahato who was a bonafide claimant, and
accordingly the appointment of aforesaid
Muneshwar had got approval of the Higher
Authority concerned for his lands as evident from
the Para 9 at page No. 21 of the Enquiry report
(Ext. M. 6).
(iv) The workman remained beneficiary of his
fraudulent employment under the Land Looser
Scheme since his appointment w.e.f. 13.10.1995
(Ext. M. 10) until his admitted suspension from
18.6.1997 during the period of one year and
8 months, he did not fairly raise the issue of his
employment based on his alleged unproved
written test. He nowhere neither pleaded no
brought fact of his success therein. All these facts
manifest his malafide intention in illegally
procuring his aforesaid employment under the
Land Looser Scheme on false information as
nephew of aforesaid Land Owner Baldeo Mahato.
(v) The reply of the workman dt. 13.8.1998 (Ext. M. 8)
to Show Cause Notice dt. 23rd July, 1998 (Ext. M. 7)
with the copy 21 page Enquiry Report issued by
the Management of the CCL refers not any new
thing except his earlier statement made in his reply
dt. 23.10.1997 (Ext. M. 3) to the charge sheet
(Ext. M. 1).
On reappreciation of the materials on the case record,
I find and hold that in view of the proved charges under
clause No. 23 (ii) (b) and (r) of the Standing Order of the
C.C.L. for fraud & dishonesty in connection with
Company's business or property, and for givng false
information at the time of employment, the order of dismissal
from service as per letter No. 898 (CR) dt. 23rd Sept., 1998
(Ext. M. 9) of the G.M., CWS, CCL, Barkakana for his
aforesaid misconduct appears to be legally quite justified.
Therefore, the workman deserves no relief whatsoever
under Sec. 11 A of the Industrial Dispute Act, 1947 in view
of the gravity of his such misconducts.
Therefore, it is hereby, in terms of the reference.
ORDERED
That the Award be and the same is passed that the
action of the management of CWS, CCL, Barkakana in
dismissing Shri Hemali Choudhary, Cat. 1 Worker w.e.f.
25.9.98 from service is quite just, proper and legal. He
deserves not any relief at all.
Let the copies one soft and one hard of the Award be
sent to the Ministry of Labour & Employment, Government
of India for information and publication of it in the Gazette
of India.
KISHORI RAM, Presiding Officer
ubZ fnYyh] 20 uoEcj] 2013
dkñvkñ 2626.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ch lh lh ,y ds
izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaè esa
fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèdj.k@Je
U;k;ky; uañ 1] èuckn ds iapkV ¼lanHkZ la[;k 122@1994½ dks
izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 20@11@2013 dks izkIr gqvk
FkkA
[lañ ,y&20012@215@1994&vkbZ vkj ¼lh&I½]
,eñ dsñ flag] vuqHkkx vfèdkjh
New Delhi, the 20th November, 2013
S.O. 2626.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref. 222/1994 of
the Cent. Govt. Indus. 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
workmen, received by the Central Government on
20/11/2013.
[No. L-20012/215/1994-IR(C-I)]
M.K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL
NO. 1, DHANBAD
Reference: No. 222/1994
In the matter of refrence U/S 10 (1) (d) (2A) of I.D.
Act, 1947.
Parties
:
Employer in relation to the management
of P.B. Area of M/s. BCCL
AND
Their workmen.
Present :
Sri R.K. Saran, Presiding Officer
Appearances:
For the Employers :
Shri Sri S.N. Ghosh, Adv.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6785
For the workman.
:
None.
State : Jharkhand
Industry: Coal
Date 30.10.2013.
AWARD
By order No. L 20012/215/94/IR (C-I) dated 31.8.94
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 dispute
for adjudication to this Tribunal:
"Whether the action of the management of Balihari
Colliery of M/S. BCCL, P.B. Area No. VII in
dismissing S/Shri Shankar Hari, Jugal Hari and
Jhariya Nayak from service w.e.f. 29.6.88 is
justified? In not, what relief are the workman
entitled to?"
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
disputes between the parties have been resolved in the
meantime. Hence pass a No disputed Award is passed.
Communicate to the Ministry.
R.K. SARAN, Presiding Officer
ubZ fnYyh] 20 uoEcj] 2013
dkñvkñ 2627.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ch lh lh ,y ds
izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaè esa
fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèdj.k@Je
U;k;ky; uañ 1] èuckn ds iapkV ¼lanHkZ la[;k 3@2008½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 20@11@2013 dks izkIr gqvk FkkA
[lañ ,y&20012@27@2007&vkbZ vkj ¼lh,e&I½]
,eñ dsñ flag] vuqHkkx vfèdkjh
New Delhi, the 20th November, 2013
S.O. 2627.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref. 3/2008 of the
Cent. Govt. Indus. Tribunal-cum-Labour Court, No. 1,
Dhanbad as shown in the Annexure, in the industrial
dispute between the management of Govindpur
Area-III of M/s. BCCL, and their workmen, received by the
Central Government on 20/11/2013.
[No. L-20012/27/2007-IR(CM-I)]
M.K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL
NO. 1, DHANBAD
Reference: No. 3/2008
In the matter of reference U/S 10 (1) (d) (2A) of I.D.
Act, 1947.
Parties
: Employer in relation to the management of
Kooridih Colliery Blick-IV of M/s. BCCL
AND
Their workmen.
Present :
Sri R.K. Saran, Presiding Officer
Appearances:
For the Employers :
Shri U.N. Lal, Adv.
For the workman.
:
None.
State : Jharkhand
Industry: Coal
Date 31.10.2013.
AWARD
By order No. L-20012/27/2007IR (CM-I) dated
18.2.2008 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 dispute
for adjudication to this Tribunal:
"Whether the demand of the Bhujan Mazdoor
Union from the Management of Kooridih colliery
Block-IV of M/s. BCCL to give Shri Shristy Rai,
Explosive carrier, fitment if basic pay of Rs. 306.64
per day in justified? Is so, to what relief is the
concerned workman entitled and from what date?"
2. After receipt of the reference both parties are
noticed. But appearing for certain dates, none appears
subsequently. Case remain pending Union secretary files a
petition stating that union is not interested to contest the
case. It is felt that the disputes between the parties have
been resolved in the meantime. Hence pass a No disputed
Award is passed. Communicate to the Ministry.
R.K. SARAN, Presiding Officer
ubZ fnYyh] 20 uoEcj] 2013
dkñvkñ 2628.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj fVLdks ds izcaèra=
ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaè esa fufnZ"V
6786
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèdj.k@Je U;k;ky;
uañ 2] èuckn ds iapkV ¼lanHkZ la[;k 26 of 2002½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 20-11-2013 dks izkIr gqvk FkkA
[lañ ,y&20012@10@2001&vkbZvkj ¼lh&I½]
,eñ dsñ flag] vuqHkkx vfèdkjh
New Delhi, the 20th November, 2013
S.O. 2628.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref. 26/2002 of
the Cent. Govt. Indus. Tribunal-cum-Labour Court No. 2,
Dhanbad as shown in the Annexure, in the industrial
dispute between the management of TISCO and their
workmen, received by the Central Government on
20.11.2013.
[No. L-20012/10/2001-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 2002.
PARTIES
: Vice President,
Mazdoor
Sangasthan
Samitte,
Katrasgarh, Dhanbad
Vs. G.M., (Collieries), Tata Iron & Steel
Co. Ltd. (TISCO), Jamadoba, Dhanbad
Appearances:
On behalf of the
:
Mr. S.N. Goswami,
Workman
Ld. Advocate
On behalf of
:
Mr. D.K. Verma, Ld. Advocate
the Management
State : Jharkhand
Industry : Coal
Dated, Dhanbad, the 25th October, 2013
AWARD
The Government of India, Ministry of Labour, in
exercise of the powers conferrred on then under Sec.
10(1)(d) of I.D. Act, 1947 has referred the following dispute
to this Tribunal for adjudication vide their Order No. L-
20012/10/2001-IR(C-I) dt. 19.03.2002.
SCHEDULE
"Whether the demand of Mazdoor Sangathan
Samittee from the management of Sijua Colliery of
M/s. TISCO, the benefit of employment scheme
to Sri Kamal Ram son of Shri Mukund Ram Kahar
after retirement of Sri Mukund Ram Kahar is legal
and justified? If so, what relief his dependent son
is entitled to?
2. The case of the workman as stated in the Written
statement by him that workman Mukund Ram working all
along as General Mazdoor since his appointment as
Mazdoor Cat. I from 13.07.1946 was a permanent employee
of Sijua Colliery of Tata Steel Company Ltd. (Tisco), who
after completion of his 41 years continuous service
superannuated on 13.07.1987. He was all along a member
of the CMPF A/c No. D/66085, w.e.f. 13.07.1946 till his
retirement. His dates of appointment and superannuation
have been upheld as also in the P.S. Appeal (10) 98 filed by
the Management dismissed against his Gratuity Case No.
36/8/91E 3. As per the provisions of the Company, out of
the names of maximum two dependent sons (1) Rajeshwar
Ram and (2) Kamal Ram as enrolled in the E.D.R. (Employee
Dependent Register) on the application, following the
completion of his 15 years continuous satisfactory service
and on the strength of his 30 years of service, one
employment was given to his first son, but even after the
completion of his 40 years service, his second choice for
second dependent son, who is legally entitled employment,
should have been given. At the several representations of
the workman to the management for employment of his
second dependent son on the strength of more than 40
years, but of no effect. At last, the dispute as per the Order
dt. 4.2.2002 of the Hon'ble High Court, Ranchi, in W.P.L.
No. 912/2002 has been referred for an adjudication. The
other employees have been given benefit of it. The demand
of the Union for it is bonafide and justified, whereas the
action of the management in not providing an employment
to Sri Kamal Ram, the second dependent son of the Ex-
workman unjustified amounting to breach of contract of
the service conditions and violations of natural justice.
3. Whereas the contra case of the O.P./Management
with categorical denials is that the present reference is not
maintainable in law and in facts, as the written statement
has been filed by the workman in the reference which was
raised by the union. Workman Mukund Ram was a retired
employee, so he was not a workman as defined U/S 25 of
the Industrial Tribunal Act, 1947. He had no locus standi to
file a written statement on behalf of the Union, who had no
locus standi to raise the I.D. in respect of any ex-serviceman.
The workman was superannuated from service of the
Company, w.e.f. 13.07.1987 after putting his 38 years 3
months service. His one dependent son Rajeshwar Ram
was employed on his service strength under the
employment procedure of the management and he is
working at Sijua Colliery of the Company. There is no
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6787
provision for providing an employment to the dependent
of a retired employee.
4. Categorically denying the allegations of the
workman, the O.P. /Management is its rejoinder has stated
that as per Service Sheet, the appointment date of the
workman is 11.4.1949, and he superannuated on 13.07.1987;
as such he rendered his service for 38 years and 03 months
only. Neither the workman's second dependent is entitled
to second employment nor can be claim it as a matter of
right. Besides the reduction of the workforce with the
mechanization of the Mining as result of technological
advancement, consequently introduction of Voluntary
Retirement Scheme, has reduced the scope of employment
in different schemes.
FINDING WITH REASONS
5. In the instant reference, WWI Kamal Ram son of
Late Workman Mukund Ram Kahar on his behalf, and MWI
Dinesh Kumar Sharma, Head Clerk of the G.M.'s Office,
Jamadoba for the O.P./Management have been examined
respectively.
Mr. S.N. Goswami, Ld. Advocate that WWI Kamal
Ram as the second dependent son of the Late workman
has fully established his name has been enrolled in the
E.D. Register in 1980 as per the Order of the management
(Ext. W. 1) after completion of 40 years continuous service
of his father worker according to his date of his appointment
13.6.1946 in place of 13.4.49 as upheld by the Controlling
Authority under P.G. Act (Payment of Gratuity Act) (Ext. W.
2), yet the management did not issue for his employment.
Whereas the contention of Mr. D.K. Verma, Ld.
Counsel for the O.P./Management is that the workman was
firstly appointed on 13.7.1946, but was discharged on
27.07.1946, thereafter he was again employed on 11.4.1949
and superannuated in the year 1987 on length of his
38 years of service, his dependent Rajeshwar Ram got an
employment and is still working in Sijua; as such the
employment procedure of the management (Ext. M. 2) does
not provide for employment of second dependent of the
retired employee based on his representations which were
accordingly regretted as the Management's Official letters
dated 5.11.1987, 10.03.1988 and 13.07.1988 (Ext. M. 3 series).
Further Mr. Verma submitted that earlier first son of the
workman was already employed in the company as per the
rules of it, and there was re-employment of the workman
since 1949 (Ext. M. 1, the Service Panel of workman Mukund
Ram Kahar), so the claim of the workman for the second
employment of his another dependent son is not justified.
6. On the perusal and consideration of the materials
as adduced by both the parties, I find that the workman
has no direct proof of his continuity of his service for 41
years as contrasted with his factual 38 years service since
his employment on 11.4.1949 as per his Service Record
(Ext. M. 1). The first employment of his son Rajeshwar Ram
in the Company on the strength of his 30 years as per rules
of the Company is beyond dispute. So far as the claim of
the workman Mukund Ram Kahar for earlier continuity of
service from 13.7.1946 to 10.04.1949 as dealt with in the
Order dt. 27.02.1998 (Ext. W. 2) which related to his earlier
gratuity for it is concerned. The Management as per its
three letters (Ext. M. 3 series) had clearly responded that as
per his Service Record, he was initially employed on
13.07.1946 and discharged on 20.07.1946; thereafter he was
re-employed on 11.04.1949 and superannuated on
13.07.1987; as such he had a break in service; moreover, Sri
Rajeshwar Ram one of his (workman's) sons has already
been employed and working on the strength of his service;
so he can not put the Order of the Controlling Authority in
Gratuity matter as a base for continuity of his earlier
breaking in service.
7. So far maintainability of the Industrial Dispute is
concerned, the O.P./Management has irrebutable statement
and proof that the workman has along filed his written
statement but not by the Union concerned. Hence, the I.D.
also appears to be unmaintainable in the eye of Law.
8. In result, it is, in the terms of the reference hereby.
ORDERED
That the Award be and the same is passed that the
demand of the Mazoor Santhan Sangathan from the
management of TISCO, Sijua Colliery for providing the
benefit of the Service Scheme to Sri Kamal Ram son of the
workman Mukund Ram Kahar after his superannuation is
unjust and illegal. Hence, the aforesaid dependent son of
the workman is not entitled to any relief.
KISHORI RAM, Presiding Officer
ubZ fnYyh] 20 uoEcj] 2013
dkñvkñ 2629.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj chlhlh,y ds
izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaè esa
fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèdj.k@Je
U;k;ky; uañ 1] èuckn ds iapkV ¼lanHkZ la[;k 20 of 1992½ dks
izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 20-11-2013 dks izkIr gqvk
FkkA
[lañ ,y&20012@213@1991&vkbZvkj ¼lh&I½]
,eñ dsñ flag] vuqHkkx vfèdkjh
New Delhi, the 20th November, 2013
S.O. 2629.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref. 20/1992 of
the Cent. Govt. Indus. Tribunal-cum-Labour Court No. 1,
Dhanbad as shown in the Annexure, in the industrial
6788
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
dispute between the management of M/s. BCCL and their
workmen, received by the Central Government on
20.11.2013.
[No. L-20012/213/1991-IR(C-I)]
M.K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL (No. 1), DHANBAD
Reference No. 20/1992
In the matter of reference U/S 10(1)(d) (2A) of I.D. Act,
1947
Parties : Employer in relation to the management of
Kankanee Colliery of M/s. BCCL
AND
Their Workmen
Present :
Sri R.K. SARAN,
Presiding Officer
Appearances:
For the Employers
:
None
For the Workman
:
None
State
:
Jharkhand
Industry
:
Coal
Dated 31.10.2013
AWARD
By order No. L-20012/213/1991-IR (C-I) dated 22.1.92,
the Central Government in the Ministry of Labour has, in
exercise of the powers conferred by clause (d) of sub-
section (1) of sub-section (2A) of section 10 of the Industrial
Disputes Act, 1947 referred the following dispute for
adjudication to this Tribunal:
"Whether the action of the management of
Kankanee Colliery of M/s. BCCL, in denying
employment to Sh. Nawal Kishor Singh son-in-
law of Smt. Renu Bala Sarkar under VRS is
justified? If not, to what relief he 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
disputes between the parties have been resolved in the
meantime. Hence pass a No disputed Award is passed.
Communicate to the Ministry.
R.K. SARAN, Presiding Officer
ubZ fnYyh] 25 uoEcj] 2013
dkñvkñ 2630.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ch lh lh ,y ds
izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaè esa
fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèdj.k@Je
U;k;ky; uañ 2] èuckn ds iapkV ¼lanHkZ la[;k 267@2001½ dks
izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 25@11@2013 dks izkIr gqvk
FkkA
[lañ ,y&20012@328@2001&vkbZvkj ¼lh&I½]
,eñ dsñ flag] vuqHkkx vfèdkjh
New Delhi, the 25th November, 2013
S.O. 2630.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 267/
2001) of the Cent.Govt.Indus.Tribunal-cum-Labour Court
No. 2, Dhanbad as shown in the Annexure, in the industrial
dispute between the management of BCCL and their
workmen, received by the Central Government on
25/11/2013.
[No. L-20012/328/2001-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. 267 of 2001
Parties
:
The Vice President, Mazdoor Sangthan
Samittee, Katras, Dhanbad
Vs.
General Manager, Katras Area of
M/s. BCCL, Dhanbad
Appearances:
On behalf of the
:
Mr. S.N. Goswami, Ld. Advocate
workman/Union
On behalf of the
:
Mr. D.K. Verma, Ld. Advocate
Management
State : Jharkhand
Industry : Coal
Dhanbad, dated the 22nd Oct., 2013
AWARD
The Government of India, Ministry of Labour in
exercise of the powers conferred on then 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/
328/2001-IR(C-I) dt. 21.9.2001.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6789
SCHEDULE
"Whether the demand of the Mazdoor Sangthan
Samittee for regularization of Sri Tezo Gope in
Clerical Grade-II from the management of Katras
Project of M/s. BCCL is justified? If so, to what
relief is the concerned workmen entitled and from
what date?”
2. Neither any representative for the Mazdoor
Sangthan Samittee nor workman Tezo Gope appeared but
Mr. D.K. Verma, the Learned Advocate for the O.P./
Management of Katras Area of M/s. BCCL present for
argument.
On perusal of the case record, I find that workman
Tezo Gope appears to have been rgularized in Clerk Gr.-III
with pay protection as per the Letter No. BCCL:GM
(P & IR); Secy.: 09/1523 dt. 28.02.2009 of the General
Manager (P & IR), Koyla Bhawan, Dhanbad. Besides it is
apparent from the record that neither the Union
Representative nor the workman appears to be interested
in this case at the eleventh hours for final adjudication.
Under such circumstances, the case is closed and
accordingly an Award of No Industrial Dispute is passed.
KISHORI RAM, Presiding Officer
ubZ fnYyh] 25 uoEcj] 2013
dkñvkñ 2631.—vkS|ksfxd fookn vfèfu;e] 1947
¼1947 dk 14½ dh èkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj b lh
,y ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqcaè esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèdj.k@Je U;k;ky; uañ 2] èuckn ds iapkV ¼lanHkZ la[;k
125@2003½ dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks
25@11@2013 dks izkIr gqvk FkkA
[lañ ,y&20012@156@2003&vkbZvkj ¼lh&I½]
,eñ dsñ flag] vuqHkkx vfèdkjh
New Delhi, the 25th November, 2013
S.O. 2631.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 125/
2003) of the Cent.Govt.Indus.Tribunal-cum-Labour Court
No. 2, Dhanbad as shown in the Annexure, in the industrial
dispute between the management of ECL and their workmen,
received by the Central Government on 25/11/2013.
[No. L-20012/156/2003-IR (C-I)]
M.K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL (NO. 2) AT DHANBAD
Present : Shri KISHORI RAM, Presiding Officer
In the matter of an Industrial Dispute under Section
10(1)(d) of the I.D. Act, 1947.
REFERENCE NO. 125 OF 2003.
PARTIES
:
Br. President, Bihar Colliery Kamgar
Union, Kusunda, Dhanbad Vs. G.M.,
Mugma Area of M/s. ECL, Dhanbad.
APPEARANCES:
On behalf of the
:
Mr. D.C. Mahato, Ld. Advocate
workman
On behalf of the
:
Mr. D.K. Verma, Ld. Advocate
Management
State : Jharkhand
Industry
: Coal
Dhanbad, dated the 28th Oct., 2013
AWARD
The Government of India, Ministry of Labour, in
exercise of the powers conferred on then 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/
156/2003-IR(C-I) dt. 10.11.2003.
SCHEDULE
"Whether the action of the management of
Chapapur Colliery under Mugma Area of M/s. ECL
in dismissing Sri Paddo Mahato w.e.f. 11.12.2002
is justified? If not, to what relief is the concerned
workman entitled?”
2. The case of the sponsoring Bihar Colliery Kamgar
Union, Kusunda for workman Paddo Mahato is that he
was a permanent employee of the ECL. He was issued a
charge sheet dt. 12.7./7.9.2001. He replied the charge sheet
on 11.10.2001, producing the Medical Certificate of Nirmala
Leprosy Hospital, Govindpur, Dhanbad and requested to
allow him to do so, and illegally stopped him from duty
w.e.f. 11.10.2001. During the course of the domestic enquiry
conducted in a single day on 28.09.2002 in English even
though, he was illiterate, and after completion of the enquiry,
the workman waited for two months for resumption of duty,
the management did not take any action in that regard,
resulting in his unreasoned sitting idle. He got raised the
I.D. by the Union before the ALC ©, Dhanbad on 18.12.2002
for payment of Subsistence Allowance for remaining idle,
though the I.D. ended in failure. Meanwhile, the workman
received the Dismissal Order through a Registered Post on
28.12.2002. He was dismissed during the concilation
proceeding so his dismissal was in violation of Sec. 33 of
the I.D. Act, 1947.
3. Further it is alleged in his behalf that no second
Show Cause Notice was served upon him. His justification
6790
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
for his absence on account of sufficient cause, i.e.,
treatment of his leprosy, w.e.f., 17.02.2001 to 20.09.2001 as
per the Medical Certificate was also unrecorded by the
Enquiry Officer in course of the Enquiry. He was not given
any opportunity in it. The domestic enquiry was illegally,
motivatedly conducted against the principle of natural
justice. There was no proof of the charges. The Enquiry
Officer had roled both as the Management Representative
and the E.O. in the enquiry. The dismissal order of the
workman was passed by the incompetent Authority. The
enquiry for its report bearing the signature of the
management Representative is violated. The workman was
not asked to take the help of his co-worker in the enquiry.
Thus; the action of the management in dismissing the
workman was most unjustified.
4. In rejoinder in Addl. One under the signature of an
Advocate on behalf of the workman, categorically all the
allegations of the management have been denied.
Irrespective of the repeations, it is stated that the charge
sheet and the enquiry proceeding ought to have been in
the language known to the illiterate workman. The
particulars of absentism concerning with the workman were
never brought forward during the enquiry, so his absentism
for the years 1999, 2000 and 2001 is beyond the present I.D.
The Dismissal Order devoids of its cause is unjustified,
hence illegal. Hence, the reinstatement of the workman with
full back wages, w.e.f., 11.10.2001 is also justified.
5. Whereas the contra pleaded case of the O.P./
management is that the workman was chargesheeted on
1.10.2001 for his admitted unauthorized absence from his
duty in violation of the Standing Order; the domestic enquiry
was fairly held in which he had participated on 28.09.2002
but he never raised an objection to it, rather after pleading
his guilt, he requested to let him join his duty, but thereafter,
he did not turn up in the enquiry on 10.12.2001 and 9.9.2002.
In case of willful absence of the workman from duty and
not any claim by him for subsistence allowance, there arises
no fact of a forced idleness upon him nor payment for
subsistence allowance. The workman failed to examine the
Doctor in order to show his long suffering from leprosy as
per his Medical Certificate in the enquiry. The enquiry
proceeding though recorded in English was yet explained
in Hindi to the workman, who neither produced any Medical
Certificate nor reported for his duty at the request of the
management even after his chargesheet. The previous
record of the workman's Attendance for 40,92, Nil and Nil
day in the years 1999, 2000 to 2002 respectively reveal his
uninterestedness with the employment. Besides, despite
many chargesheets having been issued to the workman,
he was allowed to join his duty after notes of warning. The
I.D. was initially raised for subsistence allowance, lateron,
converted into the demand for reinstatement on 6.3.2003;
and again extended to payment of back wages on 26.3.2003.
Further it is alleged as the relevant facts in the Addl.
Written statement on behalf of the O.P./management that
for unauthorized absence of the workman from duty, w.e.f.
17.2.2001, the charge sheet dt. 12.09.2001 issued by the
management was served upon him by the Regd. Post. His
reply to it received by the management on 11.10.2001 was
found unsatisfactory, so the management appointed the
Enquiry Officer to conduct the domestic enquiry in
accordance with the rules of natural justice. At the notice
of the enquiry, the enquiry was held in presence of the
workman; thereafter the Enquiry Officer after due and fair
enquiry, held the workman guilty of the charges. Then the
management dismissed the workman as per the dismissal
of the workman was legal and justified. It has urged to
allow the management to adduce evidence to prove the
charges in case of holding the enquiry as unfair.
FINDINGS WITH REASONS
7. In the instant case, after hearing the O.P./
Management and the workman at preliminary issue about
the domestic enquiry, the Tribunal as per Order No. 35
dt. 09.10.2013 held the domestic enquiry fair and proper
and in accordance with the principle of natural justice. At
the death of workman Paddo Mahato on 09.10.2000 during
the pendency of the case Smt. Pouria Mahato (54 years
old) has been substituted in his place as per the Order No.
24 dt. 10.05.2011 of the Tribunal.
8. Thereafter, the case came up directly at the point
of hearing the final arguments on merits. Mr. D.C. Mahato,
the Learned Counsel for the workman as per his written
argument submits that workman Paddo Mahato was a
permanent employee as the Driller (U.G.) at Chapapur
Colliery of the ECL; that the despite having fully justified
his absence from duty from 17.02.2001 due to his illness of
leprosy by the workman in his reply, and statement in the
enquiry the management without proof of the charge of
absentism or examination of witness illegally dismissed
the workman which was illegal and unjust in the nature of
his reasonable absence, as so second show cause was
issued to the workman.
Whereas Mr. D.K. Verma, Learned Counsel for the
O.P./Management has contended that since the workman
was a habitual absentee as per his previous service record,
so the dismissal of the workman was quite just and
proportionate to the nature of his absentism.
9. On perusal of the materials made available on the
case record, I find that the existence of the deceased
workman as a permanent employee of the management is
indisputable. The dismissal of the workman (deceased
now) for his absentism, which was properly justified by
him as evident from the Enquiry Proceeding and the Enquiry
Report (Ext. M. 5 & M. 6 respectively) appears to be too
harsh and disproportionate to the nature of the charge of
absentism and the same unproved. The dismissal of the
workman by the G.M., Appellant Authority also liable to be
set aside without show cause as held in the case of Kumaon
Mandal Vikash Bigam Ltd., Vs. Girja Shankar Pant, 2001
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6791
LIC11:AIR 2001 SC 24. Since the workman is no more; were
he alive, he would have deserved/been entitled to the relief
under Sec. 11 A of the I.D. Act, 1947-i.e., in reinstatement in
his service with full back wages.
In result, it, in the terms of the reference, hereby.
ORDER
That the action of the management of Chapapur
Colliery under Mugma Area of M/s. ECL in dismissing
Sri Paddo Mahato (now Dead) w.e.f. 11.12.2002 is/was
totally unjustified. Hence the workman, if he was alive,
would have been entitled to his re-instatement with full
back wages, but now his substituted widow Paddo Mahato
shall be entitled to all the financial benefits of her deceased
husband accordingly.
KISHORI RAM, Presiding Officer
ubZ fnYyh] 27 uoEcj] 2013
dkñvkñ 2632.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj eqacbZ iksVZ VªLV ds
izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqcaè esa
fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèdj.k @Je
U;k;ky; ua- 2] eqacbZ ds iapkV ¼dsñ lañ vkSñ vñ&2@4&2008½ dks
izdkf'kr djrh gS tks dsUnzh; ljdkj dks 27-11-2013 dks izkIr gqvk
FkkA
[lañ ,y&31011@8@2007&vkbZ vkj ¼ch&II)]
jfo dqekj] vuqHkkx vfèdkjh
New Delhi, the 27th November, 2013
S.O. 2632.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. CGIT-2/
4 of 2008) of the Cent. Govt. Indus. Tribunal-cum-Labour
Court No. 2, Mumbai as shown in the Annexure, in the
industrial dispute between the management of The
Chairman, Mumbai Port Trust and their workmen, received
by the Central Government on 27/11/2013.
[No. L-31011/8/2007-IR (B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL No. 2, MUMBAI
PRESENT
K.B. KATAKE
Presiding Officer
REFERENCE NO. CGIT-2/4 of 2008
EMPLOYERS IN RELATION TO THE MANAGEMENT
OF MUMBAI PORT TRUST
The Chairman
Mumbai Port Trust
Port Bhavan, S.V. Marg
Ballard Estate
Mumbai-400 001.
AND
THEIR WORKMEN
Shri Pramod Mankar
Nandini Co-op., Housing Society
34/A/003
Shivaji Nagar
Pokharan Road No. 1
Thane (W)
Appearances :
For the Employer
:
Mr. Umesh Nabar,
Advocate
For the Workman
:
Mr. J. H. Sawant,
Advocate.
Mumbai, dated the 2nd September, 2013
AWARD
The Government of India, Ministry of Labour &
Employment by its Order No. L-31011/8/2007-IR (B-II), dated
17.12.2007 in exercise of the powers conferred by clause
(d) of sub-section (1) and sub-section 2 (A) of Section 10
of the Industrial Disputes Act, 1947 have referred the
following industrial dispute to this Tribunal for
adjudication:
"Whether the action of the management of
Mumbai Port Trust in imposing the penalty of
reduction of pension of Shri Pramod Bhimrao
Mankar, Retired Assistant Shed Superintendent
Docks to the minimum pension of Rs. 1850 per
month plus the admissible periodic relief vide order
dated 31/01/2005 is legal and just? If not, to what
relief the concerned workman is entitled?”
2. On receipt of the reference, notices were issued to
both the parties. In response to the notice, second party
workman filed his statement of claim at Ex-7. According to
the second party he had completed 22 years of service for
the first party and he has been relieved from services by
first party by way of voluntary retirement w.e.f. 01/03/2001.
The workman was entitled to receive all the benefits
including pension, gratuity etc. He was entitled to get
pension @ 2,793 w.e.f. 01/03/2001 and Rs. 3,969 w.e.f.
01/08/2003. The workman was paid the pension at the said
rate belatedly. The Dy. Chairman of the first party by his
order dt. 31/01/2005 imposed penalty by way of disciplinary
action and reduced the pension of the workman to the
minimum @ Rs. 1,850 p.m. plus admission periodical relief.
6792
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
The said order of Dy. Chairman is illegal, unjustified. The
charge sheet was issued to the second party on the basis
of charges levelled against him in the criminal case wherein
the workman was acquitted by the court. The inquiry was
not fair and proper as joint inquiry was initiated against
the second party without any sanction of competent
authority. There was violation of principal of natural justice.
The findings of the Inquiry Officer are perverse. Thus no
penalty can be imposed upon the second party. The penalty
imposed was bad in law and not sustainable under the
regulation. Therefore second party has raised industrial
dispute. As the conciliation failed ALC (C) submitted his
report the Labour Ministry sent the reference to this
Tribunal. The workman therefore prays that the penalty of
reduction of his pension to the minimum by order of
Dy. Chairman be declared illegal, unjustified and the said
order be set aside and first party be directed to pay full
pension to the second party with arrears and interest
thereon @ 18% and the cost of the proceeding.
3. The first party resisted the statement of claim vide
its written statement at Ex-8. They have denied all the
allegations and contents of the second party in the
statement of claim. According to them the claim of the
second party is misconceived and not maintainable. The
second party had intentionally violated the rules of
discipline repeatedly. It amounts to total disregard in
performing his duties the workman was terminated for the
act of misconduct under regulation No.3 (1) (1A) (i), (vii)
(viii) (ix) & (xii) of the MbPT Employees (Conduct)
Regulations, 1976 for his act of removing two imported
white Land Cruiser Motor cars from imported containers
by break opening seal and replacing new cars with old and
junk cars in collusion and connivance with two others for
which he was also charged and tried under Indian Penal
Code. Domestic inquiry was initiated against him. The
workman was given reasonable and proper opportunity to
defend the charges levelled against him. The charges were
found proved. On the basis of report of Inquiry Officer and
findings therein the workman was held guilty. However
considering his past service record lesser punishment of
reduction of pension was imposed on the workman. The
second party workman had obtained voluntary retirement
on 01/03/2001 before the act of misconduct came into light.
The action of the first party is legal and justified. Therefore
the reference is not maintainable. They have denied all the
contents in statement of claim and prayed that the reference
be dismissed with cost.
4. The second party filed his rejoinder at Ex-9. He
denied the contents in the written statement and reiterated
that he was acquitted in the criminal case. Therefore the
punishment imposed by the first party is illegal and
unjustified.
5. Following are the re-casted issues for my
determination. I record my findings thereon for the reasons
to follow:
Sr.
Issues
Findings
No.
1.
Whether the inquiry is fair and proper?
No.
2.
If yes, whether the findings of the
No.
Inquiry Officer are perverse?
3.
If not, whether the punishment of
reduction of pension to the minimum
pension of Rs. 1850 p.m. is
As per order below.
proportionate to the proved
misconduct?
4.
What relief the worker is entitled to?
As per order below.
5.
What order?
As per order below.
REASONS
Issues Nos. 1 & 2:—
6. In the case at hand legality of the inquiry was
challenged on the following grounds: (1) The inquiry was
initiated against the workman after his retirement and no
such inquiry can be initiated against him after his retirement.
(2) Joint inquiry was conducted without any sanction of
the competent authority. (3) There was violation of
Principles of Natural Justice while conducting the inquiry.
(4) The punishment was not imposed by the competent
authority as prescribed under Bombay Port Trust Pension
Regulations. I would like to discuss these points
categorically.
7. In this respect the Ld. Adv. for the first party pointed
out that though the inquiry was initiated after retirement of
the workman,there is no total bar to initiate departmental
inquiry. Such a departmental inquiry can very well be
initiated with sanction of the Trustees as contemplated
under Rule 8 (b) (i) of Bombay Port Trust Pension
Regulations. The inquiry was initiated within four years
from the date of the alleged misconduct. Therefore inquiry
cannot be called illegal on this count. In this respect I
would like to point out the reply of the workman to the
charge sheet. It is at Ex-15. In para 3 of the reply it is
contended that ''In the memorandum under reply you have
stated that these disciplinary proceedings have been
initiated against me in pursuance to the sanction accorded
by the Board of trustees as per MbPT Pension Rules No. 7
(i) 8 b (i) & (ii).'' It indicates that the inquiry was initiated
with sanction of the Trustees and it was so communicated
to the workman. The argument therefore is devoid of merit
that no inquiry can be initiated against pensioner. So also
it cannot be said that inquiry was without sanction and on
these counts inquiry cannot be called illegal.
8. Next objection raised on behalf of the second party
is that the inquiry officer has violated the Principles of
Natural Justice. According to the workman he was not given
sufficient opportunity to cross examine some of the
witnesses and to defend himself. In this respect the Ld.
Adv. for the first party submitted that fair and sufficient
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6793
opportunity was given to the workman to defend himself.
He attended the proceedings. However on some dates
inspite of notice the wilfully remained absent. In the
circumstances Ld. Adv. for the first party rightly submitted
that, inspite of notice and knowledge of the date if the
workman wilfully remained absent before the inquiry officer,
it cannot be called violation of principles of natural justice.
9. The other objection to the inquiry proceedings
the Ld. Adv. for the second party pointed out that, the
Traffic Manager of Port Trust has passed the order and
withheld the part amount of pension of the workman as a
disciplinary authority. According to the Ld. Adv. the Traffic
Manager has no authority to impose the punishment as
the second party workman is retired employee of the first
party. The Ld. Adv. referred to Rule 8 of the aforesaid
Pension Rules. As per this Rule 8 ''The Trustee further
reserved the right of withholding of pension or any part of
it whether permanently or for a specific period and the
right of ordering the recovery from pension of the whole or
part of any pecuniary loss caused to the Trustee or in
departmental proceedings the pensioner is found guilty of
grave misconduct of negligence during the period of his
service including service rendered upon re employment
after retirement.'' It indicates that the power is with the
Trustees to withhold or withdraw the pension or any part
of it. In the circumstances the Ld. Adv. submitted that the
order passed by Traffic Manager withholding the part of
the pension of the workman, in the capacity of disciplinary
authority is void and illegal. In support of his argument the
Ld. Adv. resorted to Calcutta High Court ruling in Hirapada
Das V/s. Calcutta Port Trust & Ors. 2011 III CLR 792. In
that case pensionary benefits of the retired employee were
withdrawn by an order passed by Financial Advisor and
Chief Accounts Officer. The Hon'ble Court in that case
held that said officer was not competent to pass the said
order. It was exclusive jurisdiction to be exercised by the
Chairman. Therefore Hon'ble Court held that the impugned
order passed by Financial Advisor and Chief Accounts
Officer being without jurisdiction is a nullity.
10. In the case at hand as per Rule 8, only Trustees
can withhold the pension or part thereof and the order
passed by Traffic Manager withholding part of pension is
null and void.
11. Further more the Ld. Adv. for the second party
submitted that when the inquiry was initiated against the
workman he was retired and was entitled to get the amount
of his gratuity, pension and other retirement benefits.
However till the inquiry was concluded the second party
was not paid the gratuity, pension and other retirement
benefits. MW-1 Mr. T.V. Dangil has admitted the same in
his cross examination at Ex-24 that, when the inquiry was
concluded second party was not paid the amount of
gratuity, pension and other retirement benefits. It appears
that the said retirement benefits were with held by the first
party illegally. In the circumstances I come to the conclusion
that though the charges were explained to the workman
and witnesses were examined in his presence and he was
given opportunity to cross examine them and to lead his
evidence, however that is not sufficient to hold the inquiry
legal and proper. In the case at hand as the order of
withholding part of pension was not passed by the
competent authority, I hold that the inquiry is nor fair and
proper.
Issue No.2:—
12. In respect of findings of Inquiry officer the Ld.
Adv. for the second party mainly relied upon the fact of
acquittal of the workman in the criminal case filed against
him in respect of the same misconduct. In this respect I
would like to point out that the law on the point is well
settled that, the standard of proof in criminal trial is
altogether different than the standard of proof in
departmental inquiry. In criminal trial charges are required
to be proved beyond reasonable doubts whereas in
departmental inquiry, mere preponderance of probability
suffices the purpose. On the point Apex Court ruling can
be resorted to in Suresh Pathrela V/s. Orient Bank of
Commerce 2007 2 SCT 715 wherein Apex Court observed
that:
"It is well settled principle of law that the yardstick
and standard of proof in criminal case is different
from the disciplinary proceeding. While the
standard of proof in a criminal case is a proof
beyond all reasonable doubt, the proof in
departmental proceeding is preponderance of
probability."
13. In the light of the ratio laid down in the above
ruling it is quite clear that though a person is acquitted in a
criminal case, it has no effect on the departmental inquiry
and on the count of acquittal, findings of the Inquiry Officer
cannot be called perverse. Accordingly I decide this issue
no. 2 in the negative.
Issue No. 3 & 4:—
14. In the light of above discussions specially the
findings on issue no. 1 above, I come to the conclusion
that, the punishment of withholding part of pension
imposed upon the workman by Traffic Manager was
without jurisdiction. Thus the said order deserves to be
quashed and set aside. There is also no scope in allowing
the first party to lead their evidence and to prove the
charges as the inquiry is otherwise fair and proper. Issues
nos. 3 & 4 are decided accordingly. In this backdrop I allow
the reference and proceed to pass the following order:
ORDER
(i) The reference is allowed with no order as to cost.
(ii) The punishment of withholding part of pension
of the workman and reducing the pension to the
minimum is hereby set aside.
6794
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
(iii) The first party is directed to pay the arrears to the
workman with interest thereon @ 9% p.a. from
the date of the reference till the date of payment
of the amount.
Date: 02.09.2013
K.B. KATAKE, Presiding Officer
ubZ fnYyh] 28 uoEcj] 2013
dkñvkñ 2633.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ;wukbVsM cSad
vkWQ bafM;k ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds
chp vuqcaè esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèdj.k@Je U;k;ky;] ubZ fnYyh] 1 ds iapkV ¼120@2013½ dks
izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 28-11-2013 dks izkIr gqvk
FkkA
[lañ ,y&12012@52@2013&vkbZvkj ¼ch&II)]
jfo dqekj] vuqHkkx vfèdkjh
New Delhi, the 28th November, 2013
S.O. 2633.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 120/2013)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court No.
1, New Delhi as shown in the Annexure, in the industrial
dispute between the management of United Bank of India,
and their workmen, received by the Central Government on
28.11.2013.
[No. L-12012/52/2013-IR(B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
BEFORE DR. R.K. YADAV, PRESIDING OFFICER,
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL
NO. 1, KARKARDOOMA COURTS COMPLEX, DELHI
I.D. No. 120/2013
Shri Jitender Samaniya
S/o Sh. Chander Pal,
R/o D-89, Street No. 2,
Peramhans Vihar, Loni,
Ghaziabad, U.P.
...Workman
Versus
1. M/s. United Bank of India
Barakhamba Road, Canaught Place,
New Delhi-110001.
2. The Manager,
Pro-interactive Service Pvt. Ltd.,
31-32 Begampur Park, Shivalik,
Malaviya Nagar, New Delhi-110017.
...Management
AWARD
An Automated Teller Machine operator was
appointed by Pro-Interactive Services India Ltd.
(hereinafter referred to as the contractor). The ATM
operator, namely, Shri Jitender Samania was deputed to
work in East Delhi District, Delhi, where he was supposed
to attend to complaints relating to ATMs installed in that
area by United Bank of India (hereinafter referred to as the
principal employer). From September to December 2011,
some of the customers could not withdraw their desired
money from the ATMs, but the amounts were deducted
from their respective accounts. A sum of Rs. 82,200.00,
deducted from accounts of various customers but could
not be withdrawn from ATM in the period referred above,
was embezzled by the ATM Operator, in connivance with
his colleague, namely, Shri Vishnu Rana. The ATM operator
did not submit JP Log report, wherein details of entire
transactions were to be displayed, with a view to conceal
his misdeeds. When facts were enquired from him, he
confessed his guilt. Subsequently, he absconded from his
duties. A report at Police Station Mukherjee Nagar was
lodged against him and his associate. After a long gap of
time, the ATM operator raised a dispute before the
Conciliation Officer, claiming that the contractor had
terminated his services in an illegal manner. Since the claim
was contested by the contractor, conciliation proceedings
ended into a failure. The Conciliation Officer submitted his
failure report to the appropriate Government, who in turn
referred the dispute to this Tribunal for adjudication vide
order No. L-12012/52/2013-IR(B-II), New Delhi dated
13.08.2013, with following terms:
"Whether services of the workman, Shri Jitender
Samania, S/o Shri Chander Pal, while working as
ATM operator for United Bank of India have been
illegally and/or unjustifiably terminated by the
management of Pro-Interactive Service India Pvt.
Ltd.? If yes, what relief the workman is entitled to
and what directions are necessary in this
respect?"
2. Instead of filing claim statement, the claimant
appeared before the Tribunal along with Shri Naresh Kumar
Joshi, authorized representative of the contractor and
claimed to have settled his grievances with his employer.
His statement on oath was recorded, contents of which are
reproduced below:
"I have settled my grievances with M/s. Pro
Interactive Services Ltd. for a sum of Rs. 12,200.00,
paid to me before this Tribunal. Nothing remains
due to me from my aforesaid employer towards
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6795
wages, notice pay, retrenchment compensation,
leave encashment, bonus, gratuity etc. My dispute
stands subsided and it may be answered
accordingly. I give up my claim for reinstatement
in service of M/s Pro Interactive Services Ltd.
My dispute may be answered accordingly."
3. As deposed on oath by the claimant, he received a
sum of Rs. 12,200.00 from the contractor before the Tribunal
towards his dues for wages, notice pay, retrenchment
compensation, leave encashment, bonus and gratuity etc.
He had given up his claim for reinstatement in service of
the contractor. Thus, it is evident that the claimant has
settled his grievances and received a sum of Rs. 12,200.00
as full and final settlement of his claims against his employer,
the contractor. Since the dispute has been settled, the
claimant is not entitled to relief of reinstatement with
continuity and full back wages in the service of the
contractor. An award is, accordingly, passed. It be sent to
the appropriate Government for publication.
Dated: 30.09.2013
Dr. R.K. YADAV, Presiding Officer
ubZ fnYyh] 28 uoEcj] 2013
dkñvkñ 2634.—vkS|ksfxd fookn vfèfu;e 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj rwrhdksfju iksVZ
VªLV ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp
vuqcaè esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèdj.k@Je U;k;ky;] psUubZ ds iapkV ¼34@2013½ izdkf'kr djrh
gS tks dsUnzh; ljdkj dks 28-11-2013 dks izkIr gqvk FkkA
[lañ ,y&44011@2@2012&vkbZvkj ¼ch&II)]
jfo dqekj] vuqHkkx vfèdkjh
New Delhi, the 28th November, 2013
S.O. 2634.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 34/2013) of
the Cent. Govt. Indus. Tribunal-cum-Labour Court, Chennai
as shown in the Annexure, in the industrial dispute between
the management of Tuticorin Port Trust, and their workmen,
received by the Central Government on 28.11.2013.
[No. L-44011/2/2012-IR(B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
CHENNAI
Tuesday, the 8th October, 2013
Present :
K. P. PRASANNA KUMARI,
Presiding Officer
Industrial Dispute No. 34/2013
[In the matter of the dispute for adjudication under clause
(d) of sub-section (1) and sub-section 2(A) of Section 10 of
the Industrial Disputes Act, 1947 (14 of 1947), between the
Management of Tuticorin Port Trust and their workman]
BETWEEN
The Chief Secretary
:
1st Party/Petitioner Union
Tuticorin Port Employees Trade Union
F-Shed, Old Harbour (Zone-B)
Beach Road, Tuticorin-628001
AND
The Chairman
:
2nd Party/Respondent
V.O. Chidambaranar Port rust
Tuticorin-628004
Tuticorin
Appearance:
For the 1st Party/Petitioner Union
:
Absent
For the 1st Party/Respondent
:
M/s Anand, Abdul
and Vinodh
AWARD
The Central Government, Ministry of Labour &
Employment vide its Order No. L-44011/2/2012-IR (B-II)
dated 19.02.2013 referred the following Industrial Dispute
to this Tribunal for adjudication.
The schedule mentioned in that order is:
"Whether the action of the management of
Tuticorin Port Trust by way of issuing OM dated
29.11.2010 against Tuticorin Port Employees Trade
Union (INTUC) is justifiable or not? What relief
the Petitioner Union is entitled to?"
2. After receipt of the Industrial Dispute this Tribunal
has numbered it as ID 34/2013 and issued notice to both
sides. The Second Party has entered appearance and filed
Vakalat. Though the First Party has received notice, he has
not appeared so far. From the first date of appearance the
case was going on posted awaiting his appearance. But
the First Party has all along remained absent. In the
absence of the First Party and in the absence of any claim,
this Court is not in a position to proceed with the matter.
The case is only to be closed. Accordingly, the ID is closed.
3. The reference is answered against the First Party.
(Dictated to the P.A., transcribed and typed by him,
corrected and pronounced by me in the open court on this
day the 8th October, 2013).
K. P. PRASANNA KUMARI, Presiding Officer
6796
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
Witnessed Examined:
For the 1st Party/Petitioner
:
None
For the 2nd Party/Management
:
None
Documents Marked on both sides - Nil.
ubZ fnYyh] 28 uoEcj] 2013
dkñvkñ 2635.—vkS|ksfxd vfèfu;e 1947 ¼1947 dk
14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj rwrhdksjhu iksVZ VªLV
ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqcaè
esa vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèdj.k@Je
U;k;ky;] pSUubZ ds iapkV ¼06@2013½ izdkf'kr djrh gS tks dsUnzh;
ljdkj dks 27-11-2013 dks izkIr gqvk FkkA
[lañ ,y&44011@1@2012&vkbZ vkj ¼ch&II½]
jfo dqekj] vuqHkkx vfèdkjh
New Delhi, the 28th November, 2013
S.O. 2635.—In pursuance of Section 17 of the
Indusutrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 06/2013) of
the Cent.Govt. Indus.Tribunal-cum-Labour Court, Chennai
as shown in the Annexure, in the industrial dispute between
the management of Port Trust Tuticorin and their workmen,
received by the Central Government on 28/11/2013.
[No. L-44011/1/2012-IR(B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR
COURT, CHENNAI
Tuesday, the 1st October, 2013
Present: K.P. PRASANNA KUMARI,
Presiding Officer
Industrial Dispute No. 6/2013
[In the matter of the dispute for adjudication under
clause (d) of sub-section (1) and sub-section 2(A) of Section
10 of the Industrial Disputes Act, 1947 (14 of 1947), between
the Management V.D. Chidambaranar of Port Trust
Tuticorin and their workmen]
BETWEEN
The General Secretary
:
Petitioner/1st Party
Tutucorin Port Samata Workers Union
25/A, Emperor Street, Tuticorin.
AND
1. The Chairman
:
2nd Respondent/1st Party
V.O. Chidambaranar Port Trust
Tuticorin-628004
2. The Traffic Manager
: 2nd Respondent/2nd Party
Tuticorin Port Trust Cargo Handling Labour
Pool, Administrative Officer
Opp. Harbour Telephone Exchange, Tuticorin-4
Appearance:
For the 1st Party/Petitioner: Sri K.S. Narayanan & M.
Union
Jeyaprakash, Authorized
Representatives
For the 2nd Party/1st
:
Mr. Badri Natarajan,
& 2nd Management
Advocates
AWARD
The Central Government, Ministry of Labour &
Employment vide its Order No. L-44011/1/2012-IR (B-II)
dated 22.01.2013 referred the following Industrial Dispute
to this Tribunal for adjudication.
The schedule mentioned in that order is:
"Whether the action of the management of V.O.
Chidambaranar Port Trust, Tuticorin regarding not
allowing the Petitioner Union i.e. Tuticorin Port
Samata Workers union, even if it is not signatory
Union for settlement to raise the dispute for
implemention of Seca 12(3) Settlement on 12.12.1999
is justifiable or not? What relief the Petitioner Union
is entitled to?"
2. After the receipt of the Industrial Dispute this
Tribunal has numbered it as ID No. 6/2013 and issued
notices to both sides.
3. The First Party has entered appearance through
an authorized representative. The Second Party is
represented by their counsel.
4. Though letter of authorization is filed as early as
on 25.03.2013 the First Party has not filed the Claim
Statement so far. The First Party as well as its representative
have been continuously absent. Though the case was
posted for filing Claim Statement continuously, the
statement is not so far filed. The First Party seems to be not
interested in prosecuting the case. So the case is only to
be closed.
5. In the above circumstances, the ID is closed. The
reference is answered accordingly.
(Dictated to the P.A., transcribed and typed by him,
corrected and pronounced by me in the open court on this
day the 1st October, 2013)
K.P. PRASANNA KUMARI, Presiding Officer
Witnesses Examined:
For the 1st Party/Petitioner
:
None
For the 2nd Party/Management
:
None
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6797
Documents Marked:
On the petitioner's side
Ex.No.
Date
Description
N/A
On the Management's side
Ex. No.
Date
Description
N/A
ubZ fnYyh] 29 uoEcj] 2013
dkñvkñ 2636.—vkS|ksfxd fookn vfèfu;e 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj c®d vkWQ+ bafM;k
ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqcaè
esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèdj.k@Je
U;k;ky;] ukxiqj ds iapkV ¼22@2012½ dks izdkf'kr djrh gS rks
dsUnzh; ljdkj dks 29-11-2013 dks izkIr gqvk FkkA
[lañ ,y&12012@33@2012&vkbZ vkj ¼ch&II½]
jfo dqekj] vuqHkkx vfèdkjh
New Delhi, the 29th November, 2013
S.O. 2636.—In pursuance of Section 17 of the
Indusutrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 22/2012) of
the Cent.Govt. Indus.Tribunal-cum-Labour Court, Nagpur
as shown in the Annexure, in the industrial dispute between
the management of Bank of India and their workmen,
received by the Central Government on 29/11/2013.
[No. L-12012/33/2012-IR(B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
BEFORE SHRI J.P. CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No. CGIT/NGP/22/2012
Dated 01.10.2013
Party No. 1
:
The Regional Manager,
Bank of India, Head Office, Staff House,
C-5, G-Block, Bandra Kurla Complex,
Bandra (E), Mumbai.
:
The Branch Manager,
Bank of India, Sawargaon Branch,
Tah. Narkhed, Distt. Nagpur (MS).
Party No. 2
:
Shri Namdeo S/o. Champatrao Tambuskar,
C/o. Shri Namdeo Tendulkar, Ward No. 10
Thorane layout, Kalmeshwar,
Teh. Kalmeshwar, Distt. Nagpur (MS).
AWARD
(Dated: 1st 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 Bank of India and their workman Shri
Namdeo Tambuskar (as per list enclosed) for adjudication,
as per letter No. L-12012/33/2012-IR (B-II) dated 23.11.2012,
with the following schedule:—
"Whether the action of the management of Bank of
India through its Branch Manager, Sawargaon
Branch, Tq. Narkhed, Distt. Nagpur (MS) and General
Manager, Bank of India, Head Office, Star House,
Bandra (East), Mumbai (MS) in illegal terminating
the services of Sh. Namdeo S/o. Champatrao
Tambuskar, Peon is legal and justified? What extent,
the workman is entitled for relief?"
2. On receipt of the reference, the parties were noticed
to file their respective statement of claim and written
statement. In response to the notice the workman appeared
in person on 21.01.2013 and filed two applications, one for
adjournment to file the statement of claim and the other u/
s. 36(4) of the Industrial Disputes Act, 1947 no to allow the
management to engage advocate and the application u/s.
36(4) under I.D. Act was allowed on 01.04.2013 and the
case was posted to 14.05.2013 for filing of statement of
claim. On 14.05.2013, 04.07.2013, 19.08.2013 and 01.10.2013,
to which dates the reference was adjourned for filing
statement of claim due to the absence of the workman, the
workman neither appeared, nor filed any statement of claim
nor took any kind of step. As it appeared from the record
that the workman was not interested to proceed with the
case, the case was closed on 01.10.2013.
It is well settled that when a workman raises a dispute
challenging the validity of the termination of his services,
it is imperative for him to file written statement before the
Industrial Court setting out grounds on which the order is
challenged and he must also produce evidence to prove
his case. If the workman fails to appear or to file written
statement or to produce evidence, the dispute referred by
the Government cannot be answered in his favour and he
could not be entitled to any relief.
In this case also, the workman has failed to produce
any evidence in support of his claim and as such, the
reference cannot be answered in his favour and he is not
entitled to any relief. 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
6798
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
ubZ fnYyh] 29 uoEcj] 2013
dkñvkñ 2637.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ,yvkbZlh vkWQ
bafM;k ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp
vuqcaè esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèdj.k@Je U;k;ky;] tcyiqj ds iapkV ¼56@98½ dks izdkf'kr
djrh gS tks dsUnzh; ljdkj dks 29-11-2013 dks izkIr gqvk FkkA
[lañ ,y&17012@32@97&vkbZvkj¼ch&II)]
jfo dqekj] vuqHkkx vfèdkjh
New Delhi, the 29th November, 2013
S.O. 2637.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 56/98) of
the Cent. Govt. Indus. Tribunal-cum-labour Court, Jabalpur
as shown in the Annexure, in the industrial dispute between
the management of LIC of India and their workman, received
by the Central Government on 29.11.2013.
[No. L-17012/32/1997-IR(B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR
COURT, JABALPUR
No. CGIT/LC/R/56/98
PRESIDING OFFICER: SHRI R.B. PATLE
Shri Darshanlal Saral,
S/o. Shri Bhagguram Saral,
C/o R.C. Saral, Sadashiv Nagar,
Koteshwar Road,
Bahodapur,
Bhopal
.......Workman
Versus
Regional Manager,
LIC of India,
Central Zonal Office,
Jeevan Shikhu,
60-B, Hoshangabad Road,
Bhopal
........Management
AWARD
(Passed on this 9th day of October, 2013)
1. As per letter dated 12.03.1998 by the Government
of India Ministry of Labour, New Delhi, the reference is
received. The reference is made to this tribunal under
Section-10 of I.D. Act, 1947 as per Notification No. L-17012/
032/97/IR(B-II). The dispute under reference relates to:
"Whether the action of the management of Life
Insurance Corp. of India in terminating the services
of Shri Darshanlal Saral, S/o Bhagguram Saral w.e.f.
31.07.95 is legal and justified? If not, to what relief
the workman is entitled?"
2. After receiving reference, notices were issued to
the parties, 1st party workman filed statement of claim at
Page 11 to 15.Case of 1st party is that he was working as
daily wage employee in LIC, Gwalior Branch. He was paid
wages Rs. 15/- per day. He was working with devotion till
21.1.93 against vacant post. His services were discontinued
as per order of Sr. Divisional Manager, he was working as
Care Taker on consolidated salary of Rs. 700/- per month.
The Branch office was transferred to the building of
Regional Office. From 31.7.95, his services were orally
terminated. He had completed 240 days continuous service
during each of the year. He was not paid retrenchment
compensation, he was not served with notice, pay in lieu
of notice was not paid to him. His services are terminated
in violation of Section 25-F, H, N of I.D. Act. On such
grounds, he prays for reinstatement with consequential
benefits.
3. IInd party despite of notices issued to him, failed
to file Written Statement. IInd party is proceeded exparte
as per order dated 11.09.09. During pendency of the
reference, workman died. His LR Shrimati Baladevi, widow
of deceased workman is brought on record.
4. Considering pleadings on record, the points which
arise for my consideration and determination are as under.
My findings are recorded against each of them for the
reasons as below:—
(i) Whether the action of the
In Negative
management of Life Insurance
Corp. of India in terminating the
services of Shri Darshanlal
Saral, S/o Bhagguram Saral
w.e.f. 31.07.95 is legal?
(ii) If not, what relief the
As per final order.
workman is entitled to?"
REASONS
5. The LR-Shrimati Baladevi, widow of deceased
workman filed her affidavit of evidence directing most of
the facts pleaded in statement of claim by the deceased
that he was working with the IInd party on daily wages
from 19.07.89, he was paid Rs. 15/- per day from 22.1.93, her
husband was working as caretaker for both the offices and
was paid Rs. 700/- per month. The branch was shifted to
Divisional Office building from 25.11.93. That services of
her husband were terminated without notice from 31.07.95.
Her deceased husband had completed 240 days continuous
service, retrenchment compensation was not paid to him,
notice was not issued for termination of his service. The
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6799
evidence of Shrimati Baladevi, widow of deceased remained
unchallenged. IInd party management failed to cross-
examine the witness. I find no reason to discard her
evidence. Considering the evidence on record, it is clear
that termination of services of the deceased workman is
illegal. I therefore record my finding in Point No. 1 in
Negative.
6. Point No. 2—In view of my finding in Point No. 1
that termination of services of deceased workman is illegal,
question arises as to what relief the 1st party is entitled to?
The relief of reinstatement is not possible as the workman
has died during pendency of the reference proceeding.
Considering about 6 years length of service, compensation
Rs. 1 Lakh would be appropriate. Accordingly I hold and
record my finding in Point No. 2.
7. In the result, award is passed as under:—
(1) Action of the management of Life Insurance Corp. of
India in terminating the services of Shri Darshanlal
Saral, S/o Bhagguram Saral w.e.f. 31.07.95 is not legal.
(2) IInd party is directed to pay compensation Rs. 1 Lakh
to Shrimati Baladevi, LR of the deceased workman.
Amount as per above order shall be paid to workman
within 30 days. In case of default, amount shall carry
9% interest per annum from the date of award till its
realization.
R.B. PATLE, Presiding Officer
ubZ fnYyh] 29 uoEcj] 2013
dkñvkñ 2638.—vkS|ksfxd fookn vfèfu;e 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj bafM;u cSad ds
izcaèr= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqcaè esa
fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèdj.k@Je
U;k;ky; psUubZ ds iapkV ¼lanHkZ la- 13@2012½ dks izdkf'kr djrh gS
tks dsUnzh; ljdkj dks 29-11-2013 dks izkIr gqvk FkkA
[lañ ,y&12011@68@2011&vkbZ vkj ¼ch&II½]
jfo dqekj] vuqHkkx vfèdkjh
New Delhi, the 29th November, 2013
S.O. 2638.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 13/2012) of
the Cent. Govt. Indus. Tribunal-cum-Labour Court, Chennai
as shown in the Annexure, in the industrial dispute between
the management of Indian Bank and their workmen, received
by the Central Government on 29.11.2013.
[No. L-12011/68/2011-IR(B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR
COURT, CHENNAI
Wednesday, the 9th October, 2013
Present : K.P. PRASANNA KUMARI, Presiding Officer
Industrial Dispute No. 13/2012
[In the matter of the dispute for adjudication under
clause (d) of sub-section (1) and sub-section 2(A) of Section
10 of the Industiral Disputes Act, 1947 (14 of 1947), between
the Management of Indian Bank and their workmen]
BETWEEN
The General Secretary
:
1st Party/Petitioner Union
Indian Bank Employees
Association No.17,
Ameerjan street
Choolaimedu,
Chennai-600094
AND
The General Manager
:
2nd Party/Respondent
Indian Bank, Zonal Office
No. 395, Dr. Nanjappa Road
Coimbatore-641018
Appearance:
For the 1st Party/Petitioner
:
Sri G. Gopal, Authorized
Union
Representative
For the 2nd Party/Management :
M/s T.S. Gopalan & Co.
Advocates
AWARD
The Central Government, Ministry of Labour &
Employment vide its Order No. L-12011/68/2011-IR (B-II)
dated 15.03.2012 referred the following Industrial Dispute
to this Tribunal for adjudication.
The schedule mentioned in that order is:
"Whether the action of the Indian Bank management,
Coimbatore Zone against Sri P. Ganesan, Clerk/Shroff
of the Indian Bank, RS Puram Branch by way of
imposing punishment of "Be brought down to a lower
stage in the scale of pay by two stages" vide Order
dated 29.08.2009 is legal and justified? What relief
the workman concerned is entitled to?"
2. After the receipt of the Industrial Dispute this
Tribunal has numbered it as ID No. 13/2012 and issued
notices to both sides.
3. The First Party has filed the claim statement
contending as follows:
P. Ganesan, Clerk of the Second Party Bank is a
member of the First Party Association and was working in
6800
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
R.S. Puram Branch. While working in the said branch the
Second Party had charge sheeted Sri Ganesan alleging that
on 26.07.2008 and on 31.07.2008 he has made payment of
Rs. 7,000 and Rs. 500 respectively from the SB A/c of one
Mahendran through withdrawal Slip without ensuring that
pass book was furnished for the withdrawal, that he had
not obtained specific manual authorization on the face of
the withdrawal slip by the Branch Manager or the Addl.
Branch Manager for payment without production of Pass
Book and thus he had violated the guidelines of the Bank
and that he had not exercised proper care in verification of
the signature of the account holder and scrutiny as to the
correctness of the endorsements and proper identification
of the presenter. An enquiry was held and it was concluded
that the charge against Ganesan is proved. In fact Ganesan
has disproved the charges in the enquiry and has
established that he followed all the guidelines of the Bank.
Ganesan was imposed a punishment of bringing down to a
lower stage in the scale of pay by two stages. Though an
appeal was preferred by Ganesan the Appellate Authority
mechanically upheld the punishment imposed by the
Disciplinary Authority. In R.S. Puram branch of the Bank
single window operators were not provided with pass book
printers.
Had the printers been provided the Management
could have come to the conclusion whether the customer
has given the withdrawal slip alongwith the Pass Book and
payment was made with or without the Pass Book. There is
negligence on the part of the Management not to provide
printers and then place the blame on the staff. Ganesan did
not obtain authorization since withdrawal slips were
presented alongwith the Pass Book. The Respondent shall
be directed to withdraw the punishment imposed on
Ganesan and make good the monetary loss suffered by
him.
4. Respondent has filed counter statement
contending as follows:
An SB Account Holder can approach the bank with
Pass Book and withdraw money using withdrawal slip. If
an account holder comes without Pass Book for
withdrawing money the Branch Manager or Assistant
Branch Manager is to authorize on the face of the withdrawal
slip in writing. On 01.08.2008 Mahendran, an SB A/c holder
of the Bank had come to the Branch for withdrawing
Rs. 500/- using withdrawal slip. Sine he had no pass book
he was asked to get authorization of the Branch Manager.
It was found at time that there was no sufficient balance in
his account. He instead that there is balance of Rs. 7,500 in
his account. He informed that his Pass Book has been lost.
On verifying his statement of account he came to know
that Rs. 7,000 was withdrawn on 26.07.2008 and
Rs. 500 on 31.07.2008. He gave a written complaint to the
bank stating that he had not made the above withdrawals.
On perusal of the voucher it was found that Ganesan who
was the single window operator on these two days had
made the payments against the two withdrawal slips. The
signature on the withdrawal slips did not tally with the
specimen signature provided by the account holder. A show
cause notice was issued to Ganesan. He gave a reply
denying his involvement in the irregularities committed. A
domestic enquiry was conducted and it was found that
Ganesan is guilty of the charges made against him. Though
the charges proved are grave and warrant a deterrent
punishement leniency was shown and a lesser punishment
has been imposed on Ganesan. The allegation that action
has been initiated against Ganesan by way of victimization
is not correct. The findings of the Enquiry Officer cannot
be said to be perverse. So there is no scope for the Tribunal
to interfere with the findings. The petitioner is not entitled
to any relief.
5. The evidence in the case of consists of Ex. W1 to
Ex. W 17 marked on the side of the petitioner and Ex. M1 to
Ex. M4 marked on the side of the Respondent. No oral
evidence was adduced on either side.
6. The points for consideration are:
(i) Whether there was justification for the
Respondent in imposing punishment of bringing
down to a lower stage in the scale of pay by two
stages on the concerned worker?
(ii) What is the relief to which the petitioner is entitled
to?
The Points
7. There is no dispute regarding the facts of the case.
Ganesan who is a member of the petitioner association is
working as Clerk under the Respondent Bank. During the
relevant period he was working in R.S. Puram branch of the
Bank. One Mahendran who is a joint SB A/c holder of the
branch alongwith his mother approached the branch on
1.08.2008 to withdraw Rs. 500 from his account. He had no
Pass Book with him. Since he wanted to withdraw amount
using withdrawal slips without the Pass Book he was
directed to get authorization of the Branch Manager or the
Assistant Manager. It was then noticed that there is only
Rs. 500 left in the account of Mahendran. He insisted that
there should be a balance of Rs. 7,500 in the account. He
was asked to come to the Bank with the Pass Book. He
again approached the Bank and informed that he had lost
his Pass Book. On verification of his statement of account
that was furnished to him he noticed that Rs. 7,000 has
been withdrawn from his account on 26.07.2008 and another
Rs. 500 on 31.07.2008. He reported to the Bank that actually
he had not made these two withdrawals and made a written
complaint to the Bank to this effect.
8. Admittedly, on 26.07.2008 and 31.07.2008 Ganesan,
the concerned workman was the single window operator.
The two payments by withdrawal slips from the account of
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6801
Mahendran were made by Ganesan. A Show Cause Notice
was issued to Ganesan referring to the alleged irregularities
done by him. He gave a reply denying the allegations. This
was found unsatisfactory and a charge sheet was issued
against him as below:
(i) While working in R.S. Puram branch as single
window operator, on 26.07.2008 and on 31.07.2008
you have made of Rs. 7,000 and Rs. 500
respectively from the S.B. Account 431793055 of
Sri P. Mahendran through withdrawal slip. You
have failed to ensure making payment alongwith
the pass book.
(ii) You had not obtained specific manual
authorization on the face of the withdrawal slip
by BM/ABM for payment without production of
pass book. Thus you had violated HO guidelines.
(iii) You have not exercised proper care to verification
of signature of the account holder and scrutiny
as to the correctness of the endorsements and
proper identification of the presenter.
A domestic enquiry was conducted on the above charges
and Ganesan was found guilty of the charges. The
Disciplinary Authority imposed the punishment that he be
brought down to the lower stage in the scale of pay by two
stages. Though Ganesan approached the Appellate/
Authority, his appeal was dismissed and the punishment
imposed by the DA was confirmed. It is in respect of this
punishment, the petitioner association has raised an
Industrial Dispute. According to the petitioner, Ganesan
has been victimized. The stand of the petitioner is that the
presenter of the withdrawal slips has approached the Bank
with Pass Book. It is stated by the petitioner in the Claim
Statement that in R.S. Puram branch of the Bank, pass book
printer has not been furnished to the single window operator
and this has resulted in the confusion. According to the
petitioner the account holder has reported to the Bank
only subsequently that the Pass Book has been lost.
9. There is no case for the petitioner that the enquiry
was not conducted in fair and proper manner. Both sides
are relying upon the documents pertaining to the enquiry
also in support of their case.
10.It is pointed out by the Counsel for the Second
Party that it is not a case coming under Section-11A of the
ID Act and this Tribunal has no power to interfere with the
punishment imposed by the Disciplinary Authority, the
fairness of the enquiry having been admitted by the First
Party. In the decision in THE WORKMEN OF M/S.
FIRESTONE TYRE AND RUBBER CO. OF INDIA (PVT.)
LTD VS. THE MANAGEMENT OF FIRESTONE AND
OTHERS and other cases reported in 1973-1-SCC-813 the
Apex Court has referred to various decisions and
reiterated that prior to the introduction of Section-11 A of
the Act, when a proper enquiry has been held by an
employer and the finding misconduct is a plausible
conclusion flowing from the evidence adduced at the
enquiry, the Tribunal has no jurisdiction to sit in judgment
over the decision of the employer as an appellate authority,
in the normal case. It is further held that such interference
will be justified only when the findings arrived at in the
enquiry are perverse or the management is guilty of
victimization, unfair labour practice and malafides. Referring
to Section-11A of the Act it was held that after the
introduction of the Section the Tribunal is clothed with the
power to re-appraise the evidence in the domestic enquiry
and satisfy itself whether the evidence relied on by the
employer establishes the misconduct alleged against the
workman. However, Section-11A of the Act comes into
operation only in case of discharge or dismissal of the
workman. The present case is not one of discharge of
dismissal. So there is no question of re-appreciation of the
evidence of the enquiring authority. The position that the
Tribunal has no jurisdiction to sit in judgment over the
decision of the employer as an appellate authority still holds
good unless the finding arrived at in the enquiry are
perverse or the management is guilty of victimization or
unfair labour practice. In this respect the decision of the
Madras High Court in Zonal Manager, Bank of India,
Chennai Vs. General Secretary, Bank of India Staff Union,
Chennai and Another reported in 2011- 1-LLJ-529 relied
upon by the Second Party also is relevant. Here it was held
that being a case which was not of dismissal or discharge,
having found that the enquiry was fair and proper and the
charges was supported by sufficient evidence and the report
of the Enquiry Officer was not perverse, the Tribunal ought
not have gone into the question of proportionality of
punishment.
11.It is clear from the above legal pronouncements
that this Tribunal is not competent to consider the question
whether the finding arrived at by the enquiring authority is
proper unless it is perverse. In the present case, the finding
could not be said to be perverse at all. It is very much clear
on going through the report of enquiry that it was absolute
negligence on the part of Ganesan, the concerned workman
that caused loss to the account holder and caused
embarrassment to the Bank. The Enquiring Authority has
found that the signature of the account holder will be
available in the system and in the opening form. The
signature in the withdrawal slips were found very much
different from these. If only a verification was made the
amounts would not have been paid to the presenter of the
slips. In the absence of Pass Book, authorization on the
face of the withdrawal slips should, have been obtained.
The stand of the worker seems to be that the Pass Book
was brought by the presenter. Even if it is the case the
difference in the signature should have been noticed. It
was referring to all these aspects the enquiring authority
found the worker guilty of the charges. The finding could
not be said to be perverse at all. The punishment imposed
6802
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
by the Disciplinary Authority could not be said to be
disproportionate also. It is not a punishment shockingly
disproportionate to the guilt committed. So there is no
reason to interfere with the punishment imposed also. I
find that the petitioner is not entitled to any relief. Both
points are found against the petitioner.
12. The reference is answered accordingly.
(Dictated to the P.A., transcribed and typed by him,
corrected and pronounced by me in the open court on this
day the 9th October, 2013)
K.P. PRASANNA KUMARI, Presiding Officer
Witnesses Examined:
For the 1st Party/Petitioner Union
:
None
For the 2nd Party/Management
:
None
Documents Marked
On the petitioner's side
Ex.No.
Date
Description
Ex.W1
10.10.2008
Show
Cause
Notice
CO:CBE:VG:339 2008-09 issued
to Sri P. Ganesan by Circle Office,
Coimbatore
Ex.W2
01 11.2008
Reply letter by Sri P. Ganesan to
the above Show Cause Notice
Ex.W3
30.12.2008
Charge Sheet
CO:CBE:VG:473:2008-09 issued
to Sri P. Ganesan by Circle
Office, Coimbatore
Ex.W4
17.01.2009
Reply letter by Sri P. Ganesan to
the above Charge Sheet
Ex.W5
06.02.2009
24.02.2009
Enquiry
25.02.2009
Proceedings
23.03.2009
Ex. W6
-
Defence side documents DEX-1
to DEX-15
Ex.W7
-
Management side documents
MEX-1 to MEX-8
Ex.W8
-
Presenting Officer's report
Ex.W9
24.05.2009
Defence summing up
Ex.W10
28.05.2009
Enquiry Officer's findings
Ex.W11
27.06.2009
Comments of the CSE on EO
findings
Ex.W12
28.08.2009
Orders of the Disciplinary
Authority (DA)
Ex.W13
06.10.2009
Appeal
to
the
Appellate
Authority by the CSE against the
punishment imposed by the DA
Ex.W14
26.03.2010
Orders of the Appellate Authority
Ex.W15
07.12.2010
Letter IBEA/40/2010-13 raising
Industrial Dispute on the above
issued with ALC
Ex.W16
19.03.2011
Letter ZO:CBE:VG:936:2010-11
by Indian Bank Zonal Office,
Coimbatore
Ex.W17
16.04.2011
Rejoinder by the Petitioner Union
to ALC (Chennai) as reply to the
above letter dated 09.03.2011 of
the Management of Indian Bank,
Zonal Office, Coimbatore
On the Management side
Ex. M1
25.07 2009
Proposed orders of Disciplinary
Authority, Indian Bank, CO,
Coimbatore in respect of
disciplinary proceedings against P.
Ganesan.
Ex. M2
20.08.2009
Representation from P. Ganesan
to the Disciplinary Authority
Ex. M3
20.08.2009
Proceedings of Personal Hearing
Ex. M4
20.08.2009
Representation from P. Ganesan
to Disciplinary Authority in
respect of proposed punishment
— charge sheet dated 03.12.2008
ubZ fnYyh] 29 uoEcj] 2013
dkñvkñ 2639.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj iatkc us'kuy
cSad ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqcaè esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèdj.k@Je U;k;ky;] èuckn&2 ds iapkV ¼lanHkZ la- 268@1999½
dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 29-11-2013 dks izkIr
gqvk FkkA
[lañ ,y&12012@39@1999&vkbZ vkj ¼ch&II½]
jfo dqekj] vuqHkkx vfèdkjh
New Delhi, the 29th November, 2013
S.O. 2639.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947, (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 268/
1999) 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 Punjab
National Bank, and their workmen, received by the Central
Government on 29/11/2013.
[No. L-12012/39/1999-IR(B-II)]
RAVI KUMAR, Section Officer
Ex.No.
Date
Description
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6803
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. 268 of 1999
PARTIES
: Dy. General Secretary,
PNB employees' Union
(Bihar), Punjab National
Bank,
Shastri
Nagar,
Dhanbad, Vs. Regional
Manager, Punjab National
Bank, Regional Office,
Ranchi
APPEARANCES :
On behalf of the workman/ : Mr. D. Mukherjee,
Union
Ld. Advocate
On behalf of the
: Mr. O.P. Verma,
Management
Ld. Advocate
State
:
Jharkhand
Industry
:
Banking
Dated, Dhanbad, the 4th Oct., 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-12012/
39/99/IR(B-II) dt. 07/11/06/1999.
SCHEDULE
"Whether the action of the Management of the Punjab
Natioal Bank Telo Branch, Distt. Bokaro not to
regularize/absorb Sh. Phulchand Prajapati as a Peon
in sub-staff category w.e.f. 6.5.1990 with all benefits
is justified? If not, what relief the concerned workman
is entitled to?"
2. The case of sponsoring Punjab National Bank
Employees Union, Dhanbad for workman Phulchand
Prajapati is that the workman was initially appointed as a
part time sweeper on 01.09.1982 at Telo Branch of Punjab
National Bank; since then he has been regularly and
continuously working. He also stated to continuously work
as full-time peon/sub-staff against the permanent vacancy
following the transfer of Shri Kailash Ram, the only regular
and permanent peon/sub staff at Telo Branch to Daltenganj
Branch of Punjab National Bank on 06.05.1990. Further
pleaded that the workman started to work as full-time peon/
substaff since 5.5.90 continuous, by putting in more than
240 days attendance. He has been performing the job of
sorting, arranging, numbering tattling total number,
stitching the vouchers, stocking old records orderly, filling
letters independently, cash remittance, bringing statement
from Regional Office, movement of Ledgers and all others
works of Peon/Sub-staff. On his representation in view of
his work, the local management also recommended for
regularization of the workman, yet the anti-labour
management did not regularize him as Peon/Sub-staff. The
action of the management in not regularizing the workman
is vindictive, arbitarary, exploitive and illegal.
3. In the rejoinder under signature of Mr. D.
Mukherjee, the Ld. Advocate for the workman, specifically
denying the allegation of the O.P./ Management, it has
been pleaded that the alleged preliminary objection of the
O.P./Management and merits must be heard together as
per the settled law, and that any alleged circular, instruction
etc, can not supersede the law laid down by the Apex Court.
4. Whereas challenging the maintainability of the
industrial dispute on the grounds of its filling after five
year, the contra case of the O.P./Management is that the
settlement dt. 07.05.1984 between the Bank and PNB
Employees Federation Part Time Sweeper shall be eligible
for 1/3rd, 1/2, 3/4th full scale wages dependent upon the
number of hours and the area required to sweep in the
Bank. A Part Time Sweeper can only be eligible for getting
full scale of wages in case the sweeping area of the office
will be more than 5000 sq. feet. The Punjab National Bank
(PNB) is a Nationalized Bank as defined under the Banking
Acquisition and Transfer of Undertaking Act 1970, and a
State in view of Art. 12 of the Constitution of India. It has
to mandatorily follow the instructions of the Reserve Bank
of India in the matter of policy involving public interest. As
per the latest letter No. F. 1/1/97-SCT(B) dt. 4.8.98 of the
Ministry of Finance, Deptt. of Economic Affairs (Banking
Division) and the guidelines of the government, 25% of
the vacancies in the Peon's cadre are required to be reserved
filling up from the cadre of Sweepers, Farashes etc. who
have put in minimum 5 years of service with elementary
literacy and ability to read either English, Hindi or Regional
language. According to the government Guidelines, only
full time and full wages sweepers are to be considered for
absorption as Peon, appointment/conversion subject to
the principle for fulfilling length of service criteria as per
the Bank Circular Letter No. 22/99 dt. 24.9.99 following the
Government Letter dt. 4.8.1998. Therefore, the claim as
admitted by the Union for absorption of Shri Prajapati as
Peon working as part time sweeper with BO: Telo. Distt.
Bokaro allegedly to have performed the duties of peon
between the 1990-1993 in absence of permanent Peon is
beyond the aforesaid provision of the government policy.
Further it is alleged by the O.P./Management that
Shri Fulchand Prajapati kept on working as a Part Time
Sweeper at BO: Telo since 01.09.1982, initially at Rs. 60/-,
6804
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
then 1/3rd scale of wages as per the aforesaid conciliation
Settlement. Since the transfer of Shri Kailash Ram, only
one Peon/Daftry, w.e.f., 06.05.90 from the said Branch to
Daltengaj Branch on medical/compassionate ground, no
sub-staff could be posted till 13.10.1993 due to non-
availability of subordinate staff panel Sri Prajapati himself
willingly performed the job of Peon on few occasions, or
which he was also compensated by monetary benefits. But
his occasional working ended with posting of subordinate
staff Sri Tahleshwar Mahato at the Telo Branch on
13.10.1993.
5. Categorically denying the allegations of the
workman, the O.P./Management in its rejoinder has alleged
the workman to have been initially appointed as Part Time
Sweeper for a consolidated pay of Rs. 60 p.m..w.e.f.
01.09.83, subsequently revised to Rs.1000 p.m. w.e.f.
01.11.1984, and his wages enhanced to 1/3 scale of pay
w.e.f. 01.07.1989 for increase in the sweeping area. He is a
part-time sweeper was never required to put his wring /
signature on the document of the bank. The vacancy of
peon at BO: Telo was filled in on 13.10.93 with the posting
of Tahleshwar Mahato. Moreover, voluntary service of Shri
Prajapati on payments of monetary benefits for it creates
not any legal right for his regularization. Thus the action of
the Bank was ever neither vindictive nor anti-labour.
Finding with reasons
6. In this reference case,WWI Fulchand Prajapati-
the workman himself for the Union, and MWI Shushil Nirmal
Ekka, the Manager for the O.P./Management have been
examined.
WWI Fulchand Prajapati, the workman himself
appears to have put his claim for his regularization on the
sole ground that he was though initially engaged as part
time sweeper by the O.P./Management of Telo Branch of
Punjab National Bank, yet has been working as Peon against
the permanent post of Sri Kailash Ram following the latter's
transfer since 6.5.1990 at the Branch, by accordingly
working for more than 240 days in each calendar year as
per the photocopies of the original documents of the
managements as Extt.1 series (On waving formal proof).The
workman has denied to have worked as Peon out of his
own accord.
7. Whereas the statement of MWI Sushil Nirmal Ekka,
the then Branch Manager during 1989 to 1993 at the Telo
Branch reveals the fact that at the relevant time the workman
was a part-time sweeper for about 1200 Sq.feet area of that
Branch, but he (MWI) never authorized the workman to
work as a peon, in the Branch in the absence of a regular
peon, and the workman never discharged his duties as a
Peon rather he occasionally used to voluntarily render his
service as such, for which he was paid through vouchers
as recorded from Sl.No. 93 to 143 of the voucher Register in
original (Ext.M.1), the T.A. as per his T.A. Bills (Ext. M.2
series) and the (workman) had carried "Daks" on two
occasions as noted at pages 27 and 28 of the Dak Delivery
Register (Ext.M.3 & 3/1 respectively). The management
witness (MWI) in his cross examination affirms that during
his tenure the workman discharged certain duties of Peon
at Telo Branch, but not as a replacement of Kailash Ram,
denying his working as Peon from 1992-93 for more than
240 days in a year at the Branch.
8. In spite of more than ample opportunity neither of
the Learned Counsels/Representatives appeared for
arguments; at last it was reserved an order.
On perusal of the materials available on the case
record, I find that the claim of the workman for regularization
as Peon is baseless, because his Certificate dt 1.1.1991
(Ext.W1/2) issued by Shri Sushil Nirmal Ekka. (MWI) does
not justify his engagement by whomafter the transfer of Sri
Kailash Ram to B/O Daltenganj. Besides his photocopies
of the Voucher Register (Ext. WW1/3-14 series) and of his
T.A. Bills (Extt.1/15-56, all under the signatures of the
workman Fulchand Prajapati; and his two times Dak
Deliveries"(Ext.W.1-1/1) which are replicas of the
management's original documents — the Voucher Register
(Ext.M-1) bearing the payment through voucher from page
93 to 143, the T.A. Bills of the workman (Ext.-2 series), and
the Dak Delivery Register for two occasions of the workman
for Dak Delivering (Ext.M.3 & 3/1)). All these documents
prove that the workman though occasionally performed
the job of stitching vouchers, payment to parties concerned
as Peon during the period of 5th May,1990 to April, 1991 at
the Branch. The workman as Part Time sweeper appears to
have drawn his T.A.for his service utilized (Ext.M.2 series)
in the year 1992-93. But none of the documents proves the
fact that the workman has factually worked for more than
240 days in a period twelve calendar months preceding the
date with the present reference as required and defined
under Sections 25 B (a) (ii) of the Industrial Tribunal Act,
1947 for regularization.
In the circumstances, it is, therefore, responded and
accordingly hereby:
ORDER
That the Award be and the same is passed that the
action of the management of the Punjab National Bank,
Telo Branch, Distt. Bokaro not to regularize/absorb Shri
Phulchand Prajapati as a Peon in sub-staff category, w.e.f.
6.5.1990 with all benefits is quite justified.The workman
concerned is not entitled to any relief.
KISHORI RAM, Presiding Officer
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New Delhi, the 29th November, 2013
S.O. 2640.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 51/2011) of
the Cent.Govt.Indus.Tribunal-cum-Labour Court, Chennai
as shown in the Annexure, in the industrial dispute between
the management of Indian Bank and their workmen, received
by the Central Government on 29/11/2013.
[No. L-12011/71/2010-IR (B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR
COURT CHENNAI
Tuesday, the 8th October, 2013
Present: K.P. PRASANNA KUMARI, Presiding Officer
Industrial Dispute No. 51/2011
(In the matter of the dispute for adjudication under
clause (d) of sub-section (1) and sub-section 2(A) of Section
10 of the Industrial disputes Act, 1947 (14 of 1947), between
the Management of Indian Bank and their workman)
BETWEEN
The General Secretary
:
1st Party/Petitioner Union
Indian Bank Employees' Union
6, Moore Street, Mannady Corner
Chennai-600001
AND
The General Manager
:
2nd Party/Respondent
Indian Bank, Head Office
Rajaji Salai Chennai-600001
APPEARANCE :
For the 1st Party/Petitioner
: Sri Thomas J. Jeyaprabhakaran,
Union
Authorised Representative
For the 2nd Party/
: M/s T.S. Gopalan & Co.,
Management
Advocates
AWARD
The Central Government, Ministry of Labour &
Employment vide its Order No. L-12011/71/2010-IR (B-II)
dated 27.05.2011 referred the following Industrial Dispute
to this Tribunal for adjudication.
The schedule mentioned in that order is :
"Whether the action of the management of Indian
Bank, Chennai in denying 1/3rd Scale Wages to Smt.
Saroja Ammal a Part Time Sweeper and 25% of Water
Carrying Allowance w.e.f. 1977 is legal and justified?
What relief the workman is entitled to?"
2. After the receipt of the Industrial Dispute this
Tribunal has numbered it as ID 51/2011 and issued notice
to both sides. Both sides have entered appearance through
their counsel and have filed their claim and counter
statement respectively.
3. The case that is put forth in the Claim Statement is
this:
Saroja Ammal mentioned in the schedule of reference
was engaged as a Sweeper in Kolathur Branch of the
Second Party Bank in the year 1977. She was sweeping an
area of 1200 Sq.ft. working for about 2-1/2 hours a week.
Initially she was paid @ Rs. 15/- a month. This was enhanced
from time to time. The Second Party was requested to give
scale wages to Saroja Ammal. In spite of continuous
communication between the Kolathur Branch and the
Regional Office of the Respondent Bank the request of
Saroja Ammal was not met with favourably. The Second
Party Management had standardized the parameters in the
determination of wages for Part-Time Sweepers. It was
clarified that the wages payable to Part-Time Sweepers are
to be determined on twin parameters i.e, floor Space Area
to be cleaned in terms of Sq.ft. and total working hours per
week. The Management has been unjustly denying benefit
to Saroja Ammal. She is entitled to 1/3rd Scale Wages from
the date of initial engagement in the year 1977 and
1/2 Scale Wages from 02.11.1998, the date on which
Kolathur Branch was shifted to new premises and she was
attending additional work.
4. The Second Party has filed Counter Statement
contending as follows:
The Second Party being a nationalized bank has laid
down procedure and government procedure in the matter
of recruitment. In the case of Permanent Part- Time Sweepers
candidates sponsored by Employment Exchange has to be
considered. The engagement of Saroja Ammal was purely
casual in nature. Her name is not borne on the rolls of the
establishment. So she is not entitled to claim 1/3rd Scale
Wages. Saroja Ammal was engaged by the Branch Manager
without the sanction of the Regional Office. She is not
entitled to regularization. The requirement as to Permanent
Part Time Sweeper is governed by the terms of settlement
of 1993. At that time the First Party did not raise any dispute
concerning Saroja Ammal. It is not open to the First Party
to contend that Saroja Ammal is entitled to Scale Wages
and Water Carrying Allowance as if she has been
regularized as Permanent Part Time Sweeper. If such a
contention is accepted it will be against the terms of
reference. In the absence of reference to the effect whether
6806
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
Saroja Ammal is entitled for regularization as Permanent
Part Time Sweeper, the claim for Scale Wages is not
maintainable. The claim is to be rejected.
5. The First Party has filed a rejoinder mostly repeating
the case in the claim statement.
6. The evidence in the case consists of documents
marked as Ex.W1 to Ex.W37 and Ex.M1 to Ex.M13. No oral
evidence was adduced on either side.
7. The points for consideration are:
(i) Whether Saroja Ammal is entitled to 1/3rd Scale
Wages and Water Carrying Allowance from 1977?
(ii) If not, what if any is the relief to which Saroja
Ammal is entitled ?
Points (i) & (ii)
7. It is beyond dispute that Saroja Ammal had been
working as Sweeper in Kolathur branch of the Second Party
Bank for a long time. That she has been working in the
Bank from the year 1977 is not disputed by the Second
Party. The only dispute that is raised is that Saroja Ammal
was engaged as a casual worker by the then Manager of
the Kolathur Branch without permission from the
authorities, that the engagement in any case is casual in
nature and therefore she is not entitled to any of the relief
claimed in the Claim Statement. The case of the First Party
is that Saroja Ammal having been working with the Bank
from the year 1977, she is entitled to 1/3rd Scale Wages
from that year and 1/2 Scale Wages after the Bank has been
shifted to the new premises. It is claimed by the First Party
that on the basis of the very Bipartite Settlement arrived at
between the Bank and the employees she is entitled to the
relief. On the other hand it is contended by the Second
Party that the Bipartite Settlements is in respect of Part-
Time Permanent employees and not in respect of casual
labourers and therefore she is not entitled to any relief.
8. The authorized representative of the First Party
has referred to different documents showing the several
communications in the matter. In Ex.W12 the Branch
Manager has given the details of Saroja Ammal to the
Respondent. In this communication dated 22.07.1993 it is
stated that Saroja Ammal was initially engaged in 1977 and
that during that period engagement of Part Time Sweepers
was not through Employment Exchange. Ex.W14 is another
communication by the Branch Manager to the Regional
Office stating that she has been sweeping an area of 2100
Sq.ft. and was working for 9 hours a week. She was paid
Rs. 175 a month at that time. The First Party has raised the
issue during the structural meeting held in 1994 and the
Zonal Manager by letter dated 29.03.1995, the copy of the
minutes of which is marked as Ex.W15 has requested the
Branch Manager to send all the papers regarding the
engagement of Saroja Ammal. By letter dated 14.07.1995
the Branch Manager has furnished the Age Certificate of
Saroja Ammal. The Zonal Office later directed her to the
District Medical and Health Officer through the Branch
Manager to obtain Age Certificate. Ex.W18 dated 28.10.1995
is the letter from the Branch Manager to the Zonal Office
alongwith a representation by Saroja Ammal. In Ex.W19
the Manager has stated that Saroja Ammal is sweeping an
area of 2100 Sq.ft. By Ex.W20 letter more details were sought
from the Branch Manager. As requested from the Regional
Office, the Branch Manager has even calculated the amount
that would have been payable to Saroja Ammal in case she
was given 1/2 Scale Wages. The arrears that would have
been due in that case also is seen calculated. In spite of all
these communications, the request of Saroja Ammal to give
her scale wages was unanswered.
9. The Second Party has furnished the circulars of
the Bank and other documents to show that Saroja Ammal
being a casual worker is not entitled to Scale Wages. It
could be seen from Ex.M4 the communication from the
Zonal Office that the twin parameters in respect of payment
of wages to Sweepers is in respect of Permanent Part-Time
Sweepers only. Ex.M1, the circular of the Bank and Ex.M5,
the settlement itself would show this.
10. There seems to be no dispute that the engagement
of Saroja Ammal is only as a casual laboourer. She was
working only for a few hours. Her name was not in the rolls
of the Bank. She was being paid consolidated wages only.
So there is justification in the stand of the Second Party
that not being a Permanent Part-Time Sweeper the benefit
of the Bipartite Settlements is not available to the concerned
worker.
11. In spite of the above Saroja Ammal is entitled to
some relief regarding the wages drawn by her. She has
started to work from 1977. She is now drawing a consolidated
wages of Rs. 1,050 only.
12. The nature of the work done by Saroja Ammal
could be deciphered from the documents produced. From
Ex.W19 a letter written by the Manager to the Zonal Office,
it is seen that Saroja Ammal was sweeping a plinth area of
2100 Sq.ft, coming to a carpet area of 990 Sq.ft and she was
working for about 9 hours a week. By Ex.W23 dated
18.12.1998 the Branch Manager has again informed the
Zonal Office that the Branch has been shifted to a new
premises from November 1998 onwards, that the carpet
area of the premises is 1474 Sq.ft. All these communications
were for the purpose of giving scale wages to Saroja Ammal.
13. It is true that Saroja Ammal is only a casual worker.
But based on principles of natural justice she is entitled to
wages equal to that of permanent employees, though she
will not be entitled to other benefits to which the permanent
employees are entitled. It could be seen from the very
circular of the Second Party Bank and marked as Ex.W6
that this was accepted as criteria for paying wages to casual
workers also. The circular is regarding engagement of
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6807
persons during leave vacancies of sub-staffs. Under
Clause-4 of the circular the Respondent has stated that a
candidate shall not be engaged for more than 12 days in
any calendar month. In Clause-5 it is stated that the
employee is entitled to proportionate wages for all the
days of engagement and for that purpose the minimum
basic pay in Sub-Staff cadre with proportionate DA, HRA,
CCA, if any, should be taken into account. The only
restriction put is that the temporary sub-staff members
are not entitled for special allowance and other
performance allowance and they should not be taken into
account for calculating the wages. Even if this criteria is
adopted Saroja Ammal would be entitled to proportionate
wages to that of permanent Sub-Staff.
14. As already stated, since the branch has been
shifted to the new premises Saroja Ammal is sweeping
carpet area of 1474 Sq.ft. working about 12 hours a week.
As per the parameter provided by the Respondent Bank,
a Permanent Part-Time Sweeper sweeping an area between
1000-1750Sq. ft. working between 6 to 13 hours a week is
entitled to 1/3rd Scale Wages. If the criteria given by the
Bank is adopted she is entitled to amount equal to 1/3rd
Scale Wages for the work done. Though there is a claim
that the worker is entitled to 25% Water Carrying
Allowance also there is no material available as to whether
she was doing such work. In any case there is no claim
that after the bank was shifted to the new premises she
was required to carry water. So the benefit should be
confined to 1/3rd Scale Wages as stated above. The
dispute was raised by the petitioner as early as in May,
2005. So the concerned worker is entitled to the relief
from June, 2005.
15. Accordingly an order is passed as follows. The
second party shall pay the workers Saroja Ammal wages
equal to 1/3rd Scale Wages payable to Sub-Staff with effect
from June, 2005.
16. The reference is answered accordinly.
(Dictated to the P.A., transcribed and typed by him,
corrected and pronounced by me in the open court on this
day the 8th October, 2013)
K.P. PRASANNA KUMARI, Presiding Officer
Witnesses Examined:
For the 1st Party/Petitioner Union
:
None
For the 2nd Party/Management
:
None
Documents Marked:
ON the petitioner's side
Ex.No.
Date
Description
Ex.W1
31.05.2005
Letter from Indian Bank Employes
Union addressed to Asstt. Labour
Commissioner (Central, Chennai
Ex.W2
24.03.2006
Letter from HO: HRM Deptt.
Addressed to Assistant Labour
Commissioner, Chennai
Ex.W3
29.10.2007
Letter from Indian Bank
Employees, Union addressed to
Asstt. Labour Commissioner,
Chennai
Ex.W4
28.10.1980
Indian Bank, HO: Industrial
Relations Deptt. Circular No. 2/80
Ex.W5
19.11.1980
Letter from HO:Personnel
Department
addressed
to
Branches/ZonalRegional/Area
Offices
Ex.W6
04.03.1983
Letter from CO/Personnel Deptt.
addressed to all branches
Ex.W7
23.02.1989
Letter from CO/Personnel Deptt.
addressed to all Zonal Offices
Ex.W8
19.01.1994
Circular from Zonal Office, Madras
addressed to all branches in
Madras Zone
Ex.W9
16.02 1995
Letter from CO/Personnel Deptt.
Addressed to all Zonal Offices
Ex.W10
30.09.1978
Letter from Gol, Ministry of
Finance addressed to CMD of all
nationalized banks
Ex.W11
30.11.1978
Annexure submitted by the branch
to Regional Office, Villipuram
Ex.W12
06.01.1993
Letter from PV Kalathur branch to
Zonal Office.
Ex.W13
22.07.1993
Letter from PV Kalathur branch to
Zonal Office.
Ex.W14
15.10.1994
letter from PV Kalathur branch to
Regional Office, Kancheepuram
Ex.W15
29.03.1995
Letter from Zonal Office, Vellore
to PV Kalathur branch
Ex.W16
14.07.1995
Letter from PV Kalathur branch to
Zonal Office, Vellore
Ex.W17
24.07.1995
Letter from Zonal Office, Vellore
to PV Kalathur branch
Ex.W18
28.10.1995
Letter from PV Kalathur branch to
Zonal Office, Vellore
Ex.W19
29.01.1996
Letter from PV Kalathur branch to
Zonal Office, Vellore
Ex.W20
05.02.1996
Letter from Zonal Office, Vellore
to PV Kalathur branch
Ex.W21
31.01.1997
Letter from PV Kalathur branch to
Zonal Office, Vellore
6808
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
Ex.W22
13.05.1997
Letter from PV Kalathur branch to
Regional Office, Kancheepuram
Ex.W23
18.12.1998
Letter from PV Kalathur branch to
Zonal Office, Vellore
Ex.W24
04.10.2000
Letter from PV Kalathur to
Regional Office, Kancheepuram
Ex.W25
11.11.1993
Settlement dated 11.11.1993 under
ID Act between the Management
and the Union
Ex.W26
29.04.1993
Settlement dated 29.04.1993 under
ID Act between the Management
and the Union
Ex.W27
06.12.1993
Settlement dated 06.12.1993 under
ID Act between the Management
and the Union before Asstt.
Labour Commissioner
Ex.W28
06.12.1993
Settlement dated 06.12.1993 under
ID Act between the Management
and the Union before Asstt.
Labour Commissioner
Ex.W29
13.04.1993
Settlement dated 13.04.1993 under
ID Act between the Management
and the Union before Asstt.
Labour Commissioner
Ex.W30
25.05.1993
Settlement dated 25.05.1993 under
ID Act between the Management
and the Union before Asstt.
Labour Commissioner
Ex.W31
13.04.1993
Settlement dated 13.04.1993 under
ID Act between the Management
and the Union before Asstt.
Labour Commissioner
Ex.W32
21.03.1991
Settlement dated 21.03.1991 under
ID Act between the Management
and the Union before Assistant
Labour Commissioner
Ex.W33
08.06.1994
Settlement dated 08.06.1994 under
ID Act between the Manageemnt
and the Union before Asstt.
Labour Commissioner
Ex.W34
30.05.1994
Settlement dated 30.05.1994 under
ID Act between the Management
and the Union before Asstt.
Labour Commissioner
Ex.W35
30.05.1994
Settlement dated 30.05.1994 under
ID Act between the Management
and the Union before Asstt.
Labour Commissioner
Ex.W36
13.01.1994
Settlement dated 13.01.1994 under
ID Act between the Management
and the Union before Asstt.
Labour Commission
Ex.W37
23.08.1993
Settlement dated 23.08.1993 under
ID Act between the Management
and the Union before Asstt.
Labour Commissioner
On the Management's side
Ex.No.
Date
Description
Ex. M1
28.10.1980
Circular No. IRD/2/8—IR
Department of Respondent-Reg.
floor space/working hours per
week/wage per Month
Ex. M2
18.11.1980
Circular IRD 3/80—regarding part
time sweepers
Ex. M3
04.03.1983
Circular No. 24/83 of CO/
PERSONNEL DEPARTMENT of
Respondent Bank regarding
engagement of Sub-Staff during
leave vacancies
Ex.M4
23.02.1989
Bank's Circular regarding payment
of wages to permanent part time
sweepers
Ex.M5
28.07.1993
Settlement u/s 18(1) of ID Act in
the matter of filling up of part time
sweepers
Ex.M6
16.01.2006
Letter from Respondent to Union
&
enclosing extract of minutes of
Central Consultative Committee
Meeting for 09.12.2005 Award Staff
held on 09.12.2005.
Ex M7
16.02.1995
Circular—IRC—95 regarding part
time sweepers enclosing circular
IRD 2/80 dated 28.10.1980
Ex. M8
19.06.1995
Copy of letter from Ministry of
Labour, Government of India, New
Delhi—regarding engagement of
casual Sweepers
Ex.M9
02.06.2005
Copy of 8th Bipartite Settlement—
matter relating to Part Time
Employees.
Ex.M10
18.08.2008
Minutes of Central Consultative
Committee Meeting Union
Ex.M11
30.09.1978
Circular Notice—No. F/1/2/1/77/IR
from Government of India,
Ministry of Finance, New Delhi—
to all Nationalized Banks
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6809
Ex M12
16.08.1990
Circular Notice No. F/3/3/104/87-
IR from Government of India,
Minister of Finance, New Delhi
Ex. M13
26.10.1994
Circular by Indian Bank-No. 113/
94-95-Misc.-139
ubZ fnYyh] 29 uoEcj] 2013
dkñvkñ 2641.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947
dk 14½ fd èkjk 17 ds vuqlj.k esa dsanzh; ljdkj ukWFkZ lsaVªy jsyos ds
izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqcaè esa
fufnZ"V vkS|kSfxd fookn esa dsanzh; ljdkj vkS|ksfxd vfèdj.k]
dkuiqj ds iapkV ¼lanHkZ la[;k 07@2005½ dks izdkf'kr djrh gS] tks
dsanzh; ljdkj dks 29@11@2013 dks izkIr gqvk FkkA
[lañ ,y&41012@151@2004&vkbZ vkj ¼ch&I½]
lqefr ldykuh] vuqHkkx vfèdkjh
New Delhi, the 29th November, 2013
S.O. 2641.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 07/2005) of
the Cent. Govt.Indus.Tribunal-cum-Labour Court, Kanpur
as shown in the Annexure, in the industrial dispute
between the management of North Central Railway, and
their workmen, received by the Central Government on
29/11/2013.
[No. L-41012/151/2004-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE SRI RAM PARKASH, HJS, PRESIDING
OFFICER, CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, KANPUR
INDUSTRIAL DISPUTE NO. 07/2005.
Between :
Rajveer Singh Son of Ram Swarup,
Village Churhela Chanderpur
Post Barnhal Banganwa,
District Mainpuri U.P.
And
Divisional Railway Manager,
NCR, Allahabad.
AWARD
1. Central Government Mol, New Delhi vide
notification non L-41012/151/2004-IR B-1 dated 08.02.2005,
has referred the following dispute for adjudication to this
tribunal—
2. Whether the action of the management in refusing
to employ Sri Raj Veer Singh (Casual Labour) with effect
from 29.04.83 is legal and justified? If not to what relief
Sri Raj Veer Singh is entitled to?
3. Brief facts are that it has been alleged by the
claimant that he was engaged by the railway to perform
casual nature of work on open line. During the period in
question he continuously worked for more than 120 days
and he was given monthly rated casual labour by the
opposite party and he was being paid his wages at 1/30 of
scale wages. He worked up to the period 29.04.83 and
discharged his duties under various railways stations. He
had been given status of monthly rated casual labour; has
medical screening was also done by the railway doctors
who after examining the workman medically issued a
certificate vide MC No. 045258. The opposite party refused
to give employment to the workman, without any justified
cause and without issuing any notice or notice pay in lieu
thereof. Moreover the workman had rendered more than
240 of service. He was also entitled for the benefit of Section
25F of the ID Act.
4. It is alleged that several junior persons viz., Shadi
Lal, Ajab Singh and others as mentioned in Para 6 of the
claim Statement are still in the employment of the opposite
party the services of the workman were dispensed with at
such point of time while sufficient work was available with
the opposite party. In this way the O.P. has flouted the
provisions of Section 25G of the ID Act.
5. It is also stated that fresh hands were employed
by the opposite party ignoring the legitimate claim of the
workman.
6. Lastly it has been prayed that he be reinstated in
the services of the opposite party with full back wages and
all consequential benefits.
7. Opposite party has filed written statement allegine
that the claimant has not mentioned the date of engagement.
In reply to in respect of Para 4 of the claim statement wherein
the claimant has claimed that he was granted status of
monthly rated casual labour and he was also issued a
medical certificate, the aversions of this Para has not been
clearly denied by the opposite party. It is stated that the
entire claim of the claimant cannot be verified as he has not
mentioned the date of engagement. It is also stated that
the claim is highly belated therefore he is not entitled for
any relief and the claim of the workman is liable to be
rejected.
8. Claimant has filed his documentary as well as oral
evidence.
9. He has filed a certificate of railway which is paper
no. 13/4 and a medical certificate bearing no. 045258.
10. The claimant has adduced himself as w.w.1.
6810
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
11. Despite several opportunities opposite did not
file any document despite there was specific order of this
tribunal dated 12.05.08, wherein the then learned P.O. has
ordered that the opposite party has failed to file the original
documents photocopies of which as been filed and a legal
presumption shall be taken according to law.
12. I have considered the evidence of w.w.1 in the
light of the aforesaid documents. He has stated on oath
that he was engaged by the opposite party in the year 1976
as a casual labour. He was given salary on the pay sheet.
Initially he joined the duties at Etawah. He was also sent to
Phaphund Station Shikohabad, Tundla and Aligarh. After
working work for 120 days he was given temporary status.
After working for 735 days he was sent for medical
examination on 24/11/82. He continuously worked after
medical till 28.04.83.
13. He was medically examinted at Tundla. At the
time of termination he was not issued any notice or given
any compensation.
14. He has also stated on oath that persons like
Sri Girand Singh, Ajab Singh, Jagdish, Ram Parkas etc., are
still working in the same organization and he is out of
employment. He also stated that after his termination new
recruitments were also made in the year 1984.
15. I have examined the facts and circumstances of
the whole case. It is a fact that the opposite party despite
several opportunities did not adduced any oral or
documentary evidence in support of their pleadings. It is
also a fact that without evidence pleading do not take the
shape of prove.
16. On the other had workman has proved his case
by his evidence on oath before the Tribunal and he has
been thoroughly cross examined but the opposite party
did not deny employment of the workman as well as deny
the temporary status given to the workman after his medical
examination by the opposite party. They had not denied
the fact that the workman had not been medically examined.
There is no cross on this point. In the end they have put a
specific question that when there was a need of the services
of workman he was engaged and when there was no work
then he was removed. This question shows that the
opposite party has clearly accepted the engagement of the
workman. Now the question arises that a workman who
has put in his service from 1976 till 28.04.83 than a notice a
notice under section 25F of I.D. Act must have been issued
and retrenchment compensation ought to have been paid
to him by the management. But since compliance of section
25F of the Act have not been complied with by the opposite
party therefore, the tribunal is bound to arrive at a definite
finding that the management in the case of the workman
has breached the provisions of Section 25F of Industrial
Disputes Act, 1947.
17. I have considered the documents filed by the
workman which is paper no. 13/4, though it is photocopy
the original of which was summoned from the opposite
party but they failed. this document also bears the stamp
of the railway and the next document is medical certificate
vide no. 045258. This has been referred by w.w.1 in his
evidence and there is no cross on this document. When
the opposite party did not filed the original of this document
despite orders the evidentiary value can be considered in
favour of the workman coupled with his statement.
18. The workman has specifically stated that he was
engaged in 1976, though in the claim statement this period
was left blank. in this way if it is a typing mistake or
otherwise due to misunderstanding, his case is being
proved then he cannot be denied the benefit only on this
point that there was something blank regarding the period
of engagement.
19. Whereas, other pleading of the workman was
very specific and clear.
20. Therefore, the contention of the opposite party
on this point is neither sustainable nor acceptable.
21. There is one more contention of the opposite
party in the arguments that as the workman was serving
PQRS so they should also have been made a party.
22. I have considered this contention but do not
find any weight.
23. DRM, NCR, Allahabad and Asstt. Engineer, has
been made a party to the present case and I think that both
are liable to be sured.
24. Therefore considering all the facts and
circumstances of the case, I am of the view that the workman
has been able to prove his case and the disengagement of
the workman w.e.f. 29.04.83, without complying with the
provisions of Section 25F and 25G of Industrial Disputes
Act, 1947, is held to be a absolutely illegal and unjustified.
25. It is a fact that he was disengaged in the year
1983 and now it is year of 2013. It is also a fact that he has
raised his dispute for the first time before the Assistant
Labour Commissioner in the year 2004.
26. Therefore, in the given circumstances it would be
just and proper for both the parties if workman is awarded
in amount of compensation to the extent of Rs. 40.000/- in
lieu of reinstatement.
27. Accordingly the reference is answered in the
above terms.
RAM PARKASH, Presiding Officer
ubZ fnYyh] 29 uoEcj] 2013
dkñvkñ 2642.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj cjSyh dkjiksjs'ku
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6811
cSad fyfeVsM ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds
chp] vuqcaè esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèdj.k] dkuiqj ds iapkV ¼lanHkZ la[;k 205@97½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 29@11@2013 dks izkIr gqvk FkkA
[lañ ,y&12012@175@96&vkbZ vkj ¼ch½]
lqefr ldykuh] vuqHkkx vfèdkjh
New Delhi, the 29th November, 2013
S.O. 2642.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 205/97)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Kanpur as shown in the Annexure, in the industrial dispute
between the management of Bareilly Corporation Bank
Limited, and their workmen, received by the Central
Government on 29/11/2013.
[No. L-12012/175/96-IR (B)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE SRI RAM PARKASH, HJS. PRESIDING
OFFICER, CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, KANPUR
Industrial Dispute No. 205 of 97
Between
Sri Dinesh Kumar,
C/o Sri H. C. Ahuja,
C-14, New Agra,
Agra.
And
The Manager,
Bareilly Corporation Bank Limited,
Mahatama Gandhi Marg,
Agra.
AWARD
1. Central Government, Mol, New Delhi, vide
notification No. L-12012/175/96 (IR) (B), dated 08.09.97, has
referred the following dispute for adjudication to this
tribunal.
2. Whether the action of the Bareilly Corporation
Bank Limited Agra is justified to terminate the service of
Sri Dinesh Kumar workman with effect from 21.08.95? If not
he is entitled to what relief?
3. Brief facts are—
4. It is the case of the claimant that he was engaged
as a water boy on daily rate basis at Rs. 15 per day on
21.03.94 without issue of any appointment letter by the
erswhile Bareilly Corporation Bank, Mahatama Gandhi
Branch at Agra. He continuously worked till 19.08.95 with
full satisfaction to his superiors. It is stated that the claimant
with effect from 21.3.94 till his retrenchment had worked
continuously and prior to 21.3.94 he had also worked with
the erstwhile bank. It is also claimed by the workman that
besides performing the work of water boy he had also
worked as a full time peon in the erstwhile bank. Some time
he was used to work stitching of bundles of note, counting
of notes and preparing bundles of notes. During those
days the pay of a regular peon was Rs. 1500 per month.
The erstwhile bank used to pay his wages through
vouchers prepared in his name after obtaining his signature
on the vouchers. Despite the fact that although he was
given artificial breaks by the erstwhile bank yet he had
completed 240 days of continuous service during the period
21.03.94 to 13.05.95.
5. It may be pointed out that the date of termination
mentioned initially in the reference order as 13.05.95 was
subsequently modified as 21.08.95 by corrigendum issued
by Mol vide letter dated 21.01.99.
6. It is also alleged that during the period 13.5.95 to
18.08.95, his daily work wage was enhanced at Rs. 20 per
day and the said wages were prepared in the name of peon
Devendra Kumar and Daftary Ram Kumar but actual
payment was received by him.
7. Erstwhile bank has thus committed unfair labour
practice. The workman was prevented from performing his
duties by the erstwhile bank with effect from 21.08.95
without showing any reason which amounts to
retrenchment in the eye of law as provided under the
provisions of Industrial Disputes Act, 1947. He was also
not offered any compensation by the opposite party
(erstwhile bank).
8. The workman has also stated that after his
termination of service he is unemployed.
9. Therefore, it is claimed by the workman that
termination of his service is thus illegal and unjust and his
retrenchment is liable to be set aside. It is prayed by him
that he be reinstated in the service with full back wages
and all consequential benefits together with seniority.
10. Opposite party has filed written reply denying
the claim of the workman in its entirety. On the ground of
preliminary objection it has been stated by the opposite
party bank that the service of the workman were never
terminated with effect from13.05.95 or from any other date.
It is stated that in the bank premises one bore well was
provided by the land lord for drinking water which stopped
working in the March 1994. During those days municipal
tap water was highly pollute and was unfit for human
consumption. When after efforts the bore well could not
start working, hence Dinesh Kumar was engaged
temporarily as daily wager for bringing drinking water from
outside the premises of the branch. The engagement of
Mr. Dinesh Kumar was purely due to temporary increase of
work for a specific period and for specific job which was
6812
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
hardly of 2 to 3 hours in a day. It is completely denied by
the bank that the workman had ever worked in the bank
prior to 21.3.94. The engagement of the workman came to
an end automatically when the land lord installed second
bore well. Since the engagement of the workman was purely
temporary for specific job hence he was paid wages for
working days only.
11. Lastly it is stated by the opposite party that the
reference order is not valid therefore, the workman cannot
be held entitled for any relief.
12. Workman has also filed rejoinder in the case but
nothing new has been stated therein.
13. Workman vide list dated 23.3.98 has filed three
documents the relevancy of these documents will be
discussed at the time of recording findings.
14. The workman has also filed paper no. 45/1-3,
showing number of working days during the period 25.3.94
to 13.5.95 and the amount of wages received by him.
15. The opposite party bank vide paper no. 51/1 has
filed 38 payment vouchers. It is also mentioned in the
application that payment vouchers for dates 03.08.94,
09.08.94, 10.12.94, 04.3.95 and 18.03.95 is traceable through
which the workman has been made any payment. It is also
mentioned in the said application that during the period
from 13.03.95 to 19.08.95, no voucher is traceable in the
bank in the name of the workman. Vouchers filed by the
bank are photocopies.
16. Whereas workman has examined himself as
W.W.1, the opposite party examined Sri Anwar Ahmad Rizvi,
Senior Manager as M.W.1.
17. Heard the arguments at length and perused the
record carefully.
18. It has been argued by the AR of the opposite
party that the date of termination as claimed by the claimant
is stated to be 21.08-95, but there is no evidence to show
that the claimant had been working after 13.5.95. In this
way the claimant had worked not more than 158 days since
22.08.94 to 13.05.95 that also in broken periods.
19. It has been contended by the AR for the claimant
after 13.5.95 the claimant had worked but the vouchers
were prepared in the name of other persons like Ram Kumar
etc.
20. I have examined the evidence in this respect. It is
a fact that there is no voucher of payment in the name of
the claimant after 13.05.95 as has been admitted by the
claimant himself in the cross examination. In such
circumstances it is difficult to believe that the claimant had
been working after 13.5.95, but the vouchers were prepared
in the name of others and signed by those persons like
Ram Kumar Devender Kumar. When the vouchers are not
in the name of the claimant then it is difficult to say that the
work was being taken from the claimant. Moreover he had
not made any complaint in this behalf at that time or
thereafter.
21. It is also a fact he was not appointed as regular
employee he was not issued any appointment letter. He
was engaged as a water boy in the Bareilly Corporation
Bank Limited which was subsequently amalgamated with
Bank of Baroda. Though the claimant has filed the claim
petition against Bank of Baroda, whereas in the reference
the Bareilly Corporation Bank has been impleded. It is also
admitted fact that there is no sanctioned post of water boy,
whenever the regular sub staff is on leave in that
circumstances the bank engages the services of some
person on daily casual basis for bringing water etc.
22. I have seen the application paper no. 45/1-3 filed
by the claimant. It is details of the days as shown by the
claimant. It is not a summoning application. I have also
examined the documentary evidence filed by the claimant
vide list 21/1 and have also examined the vouchers of the
work done filed by the opposite party vide list 52/1. These
vouchers are paper no. 52/2-38. Opposite party has also
filed certain vouchers vide list 22/1 and these vouchers
paper no. 22/2-19. The AR of the opposite party prayed
that later on certain vouchers which were traced has also
been filed but they have not with held any vouchers after
13.05.95 till 21.08.95 in the name of the claimant.
23. The opposite party has contended that claimant
has not been able to show that he had worked continuously
for 240 days or more in a calendar year.
24. The opposite party has placed a reliance upon a
decision 2008 Lab IC 4210 SC Rani Nagar Palika versus
Babuji Ghabbaji Thakor and others. In this case the Hon'ble
Apex court held that the claim of workman of 240 days
continuous working, burden of proof lies on the workman.
25. Similarly they have placed reliance upon a
decision J.T. 2005 (11) S.C. 87 DGM Oil & Natural Gas
Corporation Limited versus Illas Abdul Rahman, wherein
the Hon'ble Apex Court held-services interrupted by broken
periods cannot be taken continuous employment for the
purpose of section 25F of the Act. Similarly in this case he
had worked at different places also.
26. Therefore, coming to the present case from the
examination of oral as well as documentary evidence, it
cannot be held that the date of termination is 21.08.95 and
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6813
it cannot be held that from the date of termination preceding
12 months he has completed 240 days or more continuously.
27. Accordingly it is held that workman is not entitled
to any relief in pursuant to the present reference.
28. Reference is answered accordingly in favour of
the management and against the workman.
Dt. 08/04/13
RAM PARKASH, Presiding Officer
ubZ fnYyh] 29 uoEcj] 2013
dkñvkñ 2643.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj baMlbaM c®d
fyfeVsM izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqcaè esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèdj.k@Je U;k;ky; ua- 1] paMhx<+ ds iapkV ¼lanHkZ la[;k
11@2003½ dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 29@11@2013
dks izkIr gqvk FkkA
[lañ ,y&12012@79@2012&vkbZvkj ¼ch&I½]
lqefr ldykuh] vuqHkkx vfèdkjh
New Delhi, the 29th November, 2013
S.O. 2643.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 11/2013)
of the Cent.Govt.Indus.Tribunal-cum-Labour Court No 1,
Chandigarh No 1 as shown in the Annexure, in the industrial
dispute between the management of Indusind Bank Limited,
I.B. Ltd. Registered Office, Human Resources, Indusind
Bank Ltd. and their workmen, received by the Central
Government on 29/11/2013.
[No. L- 12012/79/2012-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE SHRI SURENDRA PRAKASH SINGH,
PRESIDING OFFICER, CENTRAL GOVT.
INDUSTRIAL TRIBUNAL-CUM-LABOUR
COURT-I, CHANDIGARH
Case No. ID No. 11/2013
Deepankar Malik S/o of Shri Subhash Malik, resident
of House No. 49, New Bank Colony, Street No. 3,
Khanna-141401.
....Applicant
Versus
1. The Manager, Indusind Bank Limited, SCO 12-13,
Canal Colony near NRI Silk, Ludhiana (Punjab).
2. The Chairman/Managing Director, I.B. Ltd.,
Registered Office, 2401, Gen. Thimmayya Road,
Pune-411001.
3. Ruchi Dhawan Sharma, Human Resources,
Indusind Bank Ltd., 161/4 B, 6th Floor, Gulmohar
House, Yusaf Sarai, New Delhi - 110016.
....Respondents
Appearances:
For the workman
:
Workman is present.
For the management
:
Shri N.K. Zakhmi Advocate
along with
Shri Anurag Taneja, Manager
HR
AWARD
Passed on: — 12/11/2013
Central Govt. vide notification No. L-12012/79/2012-
IR(B-I) dated 21.3.2013 has referred the following dispute
to this Tribunal for adjudication:
"Whether the action of the management of the
Indusind Bank Ludhiana in terminating the
services of Shri Deepankar Malik w.e.f. 24.4.2012
is just and legal? If not, then to what relief the
workman is entitled and from which date?"
2. Case taken up today for hearing. Workman
Deepankar Malik and representative of the management
Shri N.K. Zakhmi placed on record settlement dated
6.11.2013. Workman also made statement that he is filling
the settlement dated 6.1.2013 arrived at between the
management of the Bank and the workman and he has
carefully understood the settlement which is also signed
by him and Shri Anurag Taneja Manager HR posted at
Chandigarh and also endorsed by representative of the
management and father of the workman. He also made a
statement that he is filling the same today and same may be
taken on record and in view of the settlement, he withdraw
the present reference. Shri Anurag Taneja Manager HR of
the management who is signatory to the settlement also
made a statement that he has been authorized by the Head
Office of his bank to sign the settlement dated 6.11.2013
and he signed the same on behalf of the management and
under directions of the Head Office.
3. In view of the above settlement the present
reference is disposed off, Central Govt. be informed. Hard
copy as well as soft copy be sent to the Central Govt. for
publication.
Chandigarh.
S.P. SINGH, Presiding Officer
6814
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
ubZ fnYyh] 29 uoEcj] 2013
dkñvkñ 2644.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa dsaUnzh; ljdkj mÙkj jsyos izcaè
ra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqcaè esa fufnZ"V
vkS|ksfxd fookn esa dsanzh; ljdkj vkS|ksfxd vfèdj.k@U;k;kky;]
y[kuÅ ds iapkV ¼lanHkZ la[;k 64@2001½ dks izdkf'kr djrh gS] tks
dsanzh; ljdkj dks 29-11-2013 dks izkIr gqvk FkkA
[lañ ,y&41011@4@2001&vkbZ vkj ¼ch&I½]
lqefr ldykuh] vuqHkkx vfèdkjh
New Delhi, the 29th November, 2013
S.O. 2644.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 64/2001)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Lucknow as shown in the Annexure, in the industrial
dispute between the management of Northern Railway, and
their workmen, received by the Central Government on
29-11-2013.
[No. L-41011/4/2001-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, LUCKNOW
Present:
Dr. Manju Nigam, Presiding Officer
I.D. No. 64/2001
Ref. No. L-41011/4/2001/IR (B-I) dated: 11.04.2001
BETWEEN
The Divisional Secretary
Railway Mazdoor Union
IInd, 50 - J, C.P.H. Colony, Charbagh,
Lucknow (U.P.) - 226 001.
(Espousing cause of 15 workmen)
AND
The Dy. Chief Engineer (Bridge)
Northern Railway Bridge Workshop,
Charbagh
Lucknow (U.P.) - 226 001.
AWARD
1. By order No. L-41011/4/2001/IR (B-I) dated:
11.04.2001 the Central Government in the Ministry of
Labour, New Delhi in exercise of powers conferred by clause
(d) of sub section (1) and sub section (2A) of Section 10 of
the Industrial Disputes Act, 1947 (14 of 1947) referred this
industrial dispute between the Divisional Secretary, Railway
Mazdoor Union, IInd, 50 - J, C.P.H. Colony, Charbagh,
Lucknow and the Dy. Chief Engineer (Bridge), Northern
Railway Bridge Workshop, Charbagh, Lucknow for
adjudication.
2. The reference under adjudication is:
"Whether the Demand for Regularization of 15
Workers (Mentioned in the List) by the
Management of Dy. Chief Engineer (Bridge),
Northern Railway, Lucknow is Justified? If yes,
what Relief Workmen are entitled?"
3. The case of the workmen's union, in brief, is that
the workman Shiv Dutt and 14 others were appointed under
the opposite party and were entitled for regularization after
completion of 180 days continuous service by giving them
temporary status and all other related benefits. It has been
alleged by the workmen's union that the management of
railways failed to regularize the services of the workmen on
the dates, the workmen completed 180 days continuous
services and also the management granted temporary status
to the workmen much after their due dates as shown against
their names in the column No. 7 of the list enclosed to the
reference order. Accordingly, the union has prayed that
the workmen be held entitled for regularization after
granting temporary status on completion of 180 days
continuous services as shown in column No. 6 of the list
enclosed with the reference order.
4. The management of the railways has disputed the
claim of the workmen's union by submitting its written
statement; wherein it has submitted that the all the
15 workmen were engaged by the management of railways
as daily rated casual labourer from time to time as per
requirement, with intermitted gap and were granted
temporary status when they had completed 120 days
continuous service. It is specifically mentioned by the
management that all the workmen were regularized and
absorbed by the management after screening test and
medical examination as per sanctioned strength and
approval of the competent authority. The management has
also submitted that the dispute raised by the workman is
stale one as the same has been raised after lapse of
30 years. The management has also disputed the dates
mentioned in column 5 and 6 of the list enclosed to the
reference order as the same are not supported with any
documentary evidence. The management of the railways
has submitted that the relief sought has already been given
to workmen concerned and accordingly no claim exists
against the management therefore, the claim of the
workmen's union may be rejected without any relief to the
workmen concerned.
5. The workman's union has filed its rejoinder; wherein
it has not brought any new fact apart from reiterating the
averments already made in its statement of claim.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6815
6. The parties have filed documentary evidence in
support of their respective claim. The workman's union
filed affidavit of the Shri S.N. Srivastava, Divisional
Secretary of the union whereas the management filed
affidavit of Shri D.C. Goyal, Executive Engineer, Bridge
Workshop in support of their stand. The management got
its witness cross-examined; whereas the workman union's
witness, the Divisional Secretary, during the cross-
examination was directed to file the list of witnesses whom
he wants to get examined vide order dated 17.06.2003; but
he failed to do so. The workman' union kept absenting
itself since 26.05.2011 and did not bother to forward its
argument, accordingly, keeping in view long pendency of
the case since 2001, heard arguments of the representative
of the management and reserved the file for award.
7. Heard representatives of the management and
scanned entire evidence on record.
8. The reference under adjudication is regarding
demand of 15 workmen for regularization and in this regard
admittedly the service of all the workmen, involved in the
dispute, have been regularized by the management of the
Railway. Now the workman's union has come up with the
statement of claim, before this Tribunal, that although the
management of the railway has regularized the services of
all the 15 workmen; but it has not regularized their services
from the date they completed mandatory period of 180 days
for grant of temporary status, which was much before the
actual date of grant of temporary status by the management.
In this regard the workman has relied on the column No. 06
of the list enclosed with the reference order. None of the
workmen were examined in spite of the direction to the
Divisional Secretary of the union to file the list of witnesses
vide order dated 17.06.2003. The union has also not adduced
any reliable documentary evidence which goes to show
the date of actual appointment/engagement of the workmen
and their working detail to ascertain the fact as to when
they completed the 120 days' mandatory working for grant
of temporary status to them.
9. Per contra the management of the railways has
come up with the case that the workmen concerned were
engaged to carryout casual nature of work as per
requirement from time to time and worked with railway with
intermittent gap. It is also the case of the management that
the workmen got temporary status after they completed
120 days continuous service; moreover the services of all
workmen were regularized after screening test and other
requirement as per Rules. The management has filed copy
of notice dated 29.10.2001 issued by Dy. Chief Engineer,
Bridge Workshop, Northern Railway, Lucknow to show
that all the 15 workmen have been regularized and four of
them have retired also.
10. Having gone through terms of reference and rival
pleadings of the parties it comes out that the workman
union's case revolves round the stand that the pleading
that the management granted the temporary status/
regularization much after the date the workmen completed
120 days of continuous service. One the contrary, the
management's case is that the terms of reference require
this Tribunal to adjudicate upon the demand of the workmen
for regularization; and since the management has already
regularized the services of the workmen, therefore, there
remains nothing to adjudicate upon by this Tribunal. It has
also contended that the terms of reference cannot be
stretched upon by this Tribunal.
11. Hon'ble Rajasthan High Court in the case of the
Management, M/s. Rambagh Palace Hotel Ltd. V. State of
Rajasthan 2000 (86) FLR 134 observed as under:
"It is settled law that the Industrial Tribunal can
only adjudicate the reference made to it by the
Government and cannot substitute its own
reference or terms of reference or even cannot go
beyond the terms of the reference. It is the function
of the Tribunal to answer the reference as is
referred to and once the reference has been made
on the demand made by the workers/union, it is
incumbent on the Labour Court or Industrial
Tribunal to decide the same..........."
In Tarsem Singh Vs. Judge, Labour Court & Others
2008 (116) FLR 346, it was held as under:
"8. The Labour Court cannot enlarge the scope of
reference nor can it deviate therefrom. It may be
observed that the Labour that the Labour Court
derives its jurisdiction from the reference made
by the appropriate government and, therefore, it
is bound to act within the four corners of the
reference.
Hon'ble Supreme Court, in the case of State Bank of
Bikaner and Jaipur Vs. Om Prakash Sharma 2006 (109) FLR
1203 laid bare the well settled proposition of law and, in the
context, categorically held as follows:
"In the instant case, the award of the Labour Court
suffers from an illegality, which appears on the
face of the record. The jurisdiction of the Labour
Court emanated from the order of the reference. It
could not have passed an order going beyond
the terms of reference. While passing the award,
if the Labour Court exceeds its jurisdication, the
award must be held to the suffering from a
jurisdictional error. It was capable of being
corrected by the High Court in exercise of its
power of judicial review. He High Court, therefore,
clearly fell in error in refusing to exercise its
jurisdiction. The award and the judgment of the
High
Court,
therefore,
cannot
be
sustained...................."
12. Since the reference has been made on the issue
regarding regularization, which includes demand for
6816
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
regularization of 15 workmen; whereas the union has prayed
that the workmen be held entitled for regularization after
granting termporary status on completion of 180 days
continues service from some back date. The management,
on the contrary, has contended that the workman has
already been regularized after grant of temporary status
when they coompleted 120 days continuous service and
this fact has not been denied by the workman's union,
therefore, nothing remains for this Tribunal to adjudicate
upon. In view of the observations of the Hon'ble Apex
Court as discussed above, it would not be appropriate for
this Tribunal to take up the matter of regularization of the
workmen from some back date, which is not referred to this
Tribunal for adjudication.
13. In view of the facts and circumstances of the
case and law pronounced by Hon'ble Apex Court, I am of
considered opinion that there left nothing to adjudicate
upon as the relief sought by the workman's union has
already been granted to the workmen whose cause has
been espoused under present reference.
14. The reference under adjudication is answered
accordingly.
15. Award as above.
Lucknow.
14th November, 2013
Dr. MANJU NIGAM, Presiding Officer
ubZ fnYyh] 29 uoEcj] 2013
dkñvkñ 2645.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947
dk 14½ fd èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj LVsV cSad vkWQ
bafM;k ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp
vuqcaè esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèdj.k@Je U;k;ky;] y[kuÅ ds iapkV ¼lanHkZ la[;k 35@2005½
dks izdkf'kr djrh gS] rks dsUnzh; ljdkj dks 29@11@2013 dks izkIr
gqvk FkkA
[lañ ,y&12012@298@2004&vkbZvkj¼ch&I½]
lqefr ldykuh] vuqHkkx vfèdkjh
New Delhi, the 29th November, 2013
S.O. 2645.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 35/2005)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Lucknow as shown in the Annexure, in the industrial
dispute between the management of State Bank of India,
Local Head Office, Naveen and their workmen, received by
the Central Government on 29/11/2013.
[No. L-12012/298/2004-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT,
LUCKNOW
PRESENT:
Dr. Manju Nigam, Presiding Officer
I.D. No. 35/2005
Ref. No. L-12012/298/2004-IR(B-I) dated: 26.06.2005
BETWEEN
Shri Rajendra Prasad Shukla, S/o Shri Sudhakar Shukla
H.No. L-1/177, Sector-B
Priyadarshini Colony, Sitapur Road
Lucknow.
AND
The Chief General Manager
State Bank of India, Local Head Office
Naveen Prashasnik Bhawan, Moti Mahal Marg,
Hazratganj, Lucknow
AWARD
1. By order No. L-12012/298/2004-IR(B-I) dated
26.06.2005 the Central Government in the Ministry of
Labour, New Delhi in exercise of powers conferred by
clause (d) of sub-section (1) and sub-section (2A) of Section
10 of the Industrial Disputes Act, 1947 (14 of 1947) referred
this industrial dispute between Shri Rajendera Prasad
Shukla, S/o Shri Sudhakar Shukla. H. No. L-1/177, Sector-
B, Priyadarshini Colony, Sitapur Road, Lucknow and the
Chief General Manager, State Bank of India, Local Head
Office, Naveen Prashasnik Bhawan, Moti Mahal Marg,
Hazratganj, Lucknow for adjudication.
2. The reference under adjudication is:
"Kya bank prabandhan, bhartiya state bank,
Lucknow dwara Shri Rajendera Prasad Shukla
putra Shri Sudharkar Shukla, Chaturth Shreni
Kamkaar, Gram Hirpur, Daakghar Houriya
(Sidhauli) Jila Sitapur se 22.8.2000 ko maukhik
aadesh dwara naukari se nikal diya jane ke baad
dinank nayayochit hai? Yadi nahi, to karmkaar kis
paritoshik ko pane ka adhikaari hai?"
3. The case of workman, Rajendra Prasad Shukla, in
brief, is that he was engaged by the bank, as fourth class
employee, for the first time in September, 1992 to December,
1992 and thereafter he was re-engaged in January, 1993
and worked as such continuously, without any break, up
to 21.08.2000 when his service was terminated by an oral
order. The workman has alleged that the management
terminated his services in violation to the provisions
contained in the Section 25 F of the I.D. Act, 1947 wihtout
taking into account the fact that he worked for more than
240 days in each 12 calendar months of each year.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6817
Accordingly, the workman has prayed that his termination
be set aside and he be reinstated with retrospective effect
with full back wages and other consequential benefits.
4. The management of the bank has disputed the
claim of the workman by filing its written statement wherein
it has stated that the workman was never been engaged
against any permanent post, as such there exist no
relationship of employer and employee between the bank
and the workman concerned; hence, there arise no question
of terminating his services at any point of time. The
management has also submitted that there are prescribed
norms for appointment in the Bank and the workman never
under gone through them; moreover, the service of the
workman were availed by the Bank, intermittently, for doing
casual nature of work as an when required by the Bank and
he was never engaged for 240 days as alleged by the
workman. The management has submitted that the workman
is actually a driver and works for one M/s. Universal Travel
Corporation which was engaged by the bank for
transporting cash etc. as well as for commuting its officer/
staff from time to time and the workman was paid for his
services by the said travelling agency. Accordingly, the
management has prayed that considering the facts and
circumstances of the case the claim of the workman is liable
to be rejected without any relief to him.
5. The workman has filed its rejoinder; wherein he
has not brought any new fact apart from reiterating the
averments already made by him in his statement of claim.
6. The parties have field documentary evidence in
support of their respective claim. The workman examined
himself whereas the management examined Shri Sunil Kumar
Yadav, Shri Vinod Kumar Baijal and Miss D. Munshi in
support of their stand. Parties availed opportunity to cross-
examine the witnesses of each other apart from forwarding
oral submissions.
7. Head representatives of the parties and scanned
entire evidence on record.
8. The authorized representative of the workman
has contended that in spite of the fact that the workman
worked for more than 240 days in a calendar year, his
services were terminated w.e.f. 22.08.2000; without any
notice or compensation, in violation of the provisions
contended in Section 25 F of the I.D. Act.
9. Per contra the authorized representative of the
bank has argued that the claim of the workman is not
maintainable in view of the fact that there existed no
relationship of remployer and employee between the Bank
and the workman as he was neither appointed against any
permanent post nor he was ever subjected to the prescribed
procedure for appointment in the Bank. Also, the workman
has failed to discharge the burden that lied upon him by
adducing any material documentary evidence to show that
he worked for 240 days in a calendar year.
10. I have given my thoughtful consideration to the
rival contentions of the representatives of the parties.
11. The workman in his statement on oath has stated
that he has been engaged by the management of the bank
as daily rated labour in the Gomti Nagar branch of the bank
in January, 1993 and from there he was transferred to the
Secretariat Branch on 31.07.93, where he worked up to
21.08.2000 regularly. He has dined that he used to drive taxi
of M/s. Travel Corporation. He also stated that he has no
certificate regarding appointment, transfer or termination
of his services. The workman has filed photocopy of as
many as three documents in support of his claim vide list
dated 11.05.2006 i.e. two letters dated 09.02.2000 and pass
book of State Bank of India, paper No. C-13 to C-15. He has
also filed photocopy of Secretariat Pass, paper No. 4/12 to
4/18 in support of his claim. But he has not filed any
documentary evidence regarding his working with the Bank
such as payment vocuhers, muster roll etc. nor has tried to
summon them from the management. But the document
filed by the workman i.e. photocopy of front page of pass
book of the workman goes to show that he has an account
in the State Bank of India but it does not go to show that he
is an employee of the Bank; likewise the photocopy of two
letters dated 09.02.2000, filed by the workman does not
show that he was an employee of the Bank and he worked
for alleged period.
12. In rebuttal, the management witnesses, Shri Sunil
Kumar Yadav, Shri Vinod Kumar Baijal has stated that the
workman used to come in the Bank as driver of Universal
Travel Corporation and the paper No. C-1/21 to C-103 are
receipts showing payment made to the workman through
travel agency. One of the witness Miss D. Munshi stated
that for entering into Secretariat Branch of the Bank no
'pass' is required. The management has filed photocopy of
the payment receipts in respect of Universal Travel
Corporation vide list dated 16.06.2006, paper No. C-1/21 to
C-103. There is no cross-examination over these receipts
from the management witnesses.
13. In the instant case, the workman come forward
with the case that he has been engaged as daily wage by
the bank management initially from September, 1992 to
December, 1992 and thereafter he was re-engaged in
January, 1993 and worked as such continuously, without
any break, up to 21.08.2000 when he service have been
terminated by an oral order in contravention to the
provisions of Section 25 F of the Industrial Disputes Act,
1947 as he worked for more than 240 days in each calendar
year. Apart from pleading he has not filed any substantive
document either payment voucher or attendance sheet or
muster roll to substantiate his version that he worked with
the management for alleged duration with the management;
even he has not tried to summon any of these from the
management.
6818
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
14. It is settled position of law that if a party
challenges the legality of order the burden lies upon him
to prove illegality of the order and if not evidence is
produced, the party invoking jurisidiction of the court must
fail. In the present case burden was on the workman to set
out the grounds to challenge the validity of the termination
order and to prove the termination order was illegal. It was
the case of the workman that he had worked for more than
240 days in a calendar year. This claim has been denied by
the management; therefore, it was for the workman to lead
evidence, documentary as well as oral, to show that he had
in fact worked for 240 days in the year preceding his alleged
termination. In (2002) 3 SCC 25 Range Forest Officer Vs
S.T. Hadimani Hon'ble Apex Court has observed as under:
"It was the case of the claimant that he had so
worked but this claim was denied by the appellant.
It was then for the claimant to lead evidence to
show that he had in fact worked for 240 days in
the year preceding his termination. Filling of an
affidavit is only his own statement in his favour
and that cannot be regarded as sufficient evidence
for any court or tribunal to come to the conslusion
that a workman had, in fact, worked for 240 days
or order or record of appointment or engagement
for that period was produced by the workman. On
this ground alone, the award is liable to be set
aside."
In Surenderanagar Panchayat and another v.
Jethabhai Pitamberbhai 2005 (107) FLR 1145 (SC) Hon'ble
Apex court came to the conclusion that where the workman
failed to prove that he had been in employment with the
employer for a period of 240 days uninterruptedly, he is not
entitled to protection in compliance of section 25-F of the
Industrial Disputes Act, 1947. It was held by the Hon'ble
Supreme Court that the scope of the enquiry before the
Labour Court was confined only to 12 months preceding
the date of termination to decide the question of the
continous service for the purposes of section 25-F of the
Industrial Disputes Act, 1947. Further, Hon'ble Apex Court
has observed as under:
"The claimant, apart his oral evidence has not
produced any proof in the form of receipt of salary
or wages for 240 days or record of his appointment
or engagement for that year to show that he has
worked with the employer for 240 days to get the
benefit under section 25-F of the Industrial
Disputes Act. It is now well settled that it is for
the claimant to lead evidence to show that he in
fact worked for 240 days in a year preceding his
termination."
15. Analyzing its earlier decisions on the aforesaid
point Hon'ble Apex Court has observed in 2006 (108) FLR
R.M. Yellatti & Asstt. Executive Engineer as follows:
"It is clear that the provisions of the evidence Act
in terms do not apply to the proceedings under
section 10 of the Industrial Disputes Act. However,
applying general principles and on reading the
aforestated judgments we find that this Court has
repeatedly taken the view that the burden of proof
is on the claimant to show that he had worked 240
days in a given year. This burden is discharged
only upon the workman stepping in the witness
box. This burden is discharged upon the workman
adducing cogent evidence, both oral and
documentary. In cases of termination of services
of daily wages earner, there will be no letter of
appointment or termination. There will also be no
receipt or proof of payment. Thus, in most cases,
the workman (claimant) can only call upon the
employer to produce before the Court the nominal
muster roll for the given period, the letter of
appointment or termination, if any, the wage
register, the attendance register etc. Drawing of
adverse inference ultimately would depend
thereafter on facts of each case. The above
decisions however make it clear that mere
affidavits or self serving statements made by the
claimant/workman will not suffice in the matter of
discharge of the burden placed by law on the
workman to prove that he had worked for 240
days in a given year. The above judgments further
lay down that mere non production of muster rolls
per se without any plea of suppression by the
claimant workman will not be the ground for the
tribunal to draw an adverse inference against the
management."
16. In the present case the workman has pleaded/
stated that he has worked continuously for more than 240
days, but has not produced any document either original
or photocopy in support of his oral evidence nor summoned
the documents from the management. The burden was on
the workman to show by the way of cogent evidence that
he actually worked for 240 days in the preceding 12 months
from the date of his alleged termination i.e. 22.08.2000; but
he failed to do so, as he could not bring this fact on record.
In view of denial of the management regarding his claim,
the workman has nothing to support his version, except
his own statement before this Tribunal, which does not
suffice the matter. Thus, the workman failed to prove
through cogent evidence that he is the person who actually
worked with the management of the Bank and his services
have been terminated in violation to the provisions
contained in Section 25 F of the I.D. Act, 1947.
17. Mere pleadings are no substitute for proof. Initial
burden of establishing the fact of continuous work for 240
days in a year preceding the date of alleged termination
was on the workman but he has failed to discharge the
above burden. There is no reliable material for recording
findings that the workman had worked for 240 days in the
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6819
preceding year from the date of his alleged termination and
the alleged unjust or illegal order of termination was passed
by the management.
18. Accordingly, the reference is adjudicated against
the workman Rajendra Prasad Shukla; and in my opinion
he is not entitled to any relief.
19. Award as above.
LUCKNOW.
12th November, 2013.
Dr. MANJU NIGAM, Presiding Officer
ubZ fnYyh] 29 uoEcj] 2013
dkñvkñ 2646.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k eas dsanzh; ljdkj e/; jsyos izcaè
ra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqcaè eas fufnZ"V
vkS|ksfxd fookn esa dsanzh; ljdkj vkS|ksfxd vfèdj.k@Je U;k;ky;
ua- 1] eqEcbZ ds iapkV ¼lanHkZ la[;k 12@2007½ dks izdkf'kr djrh
gS] tks dasnzh; ljdkj dks 29@11@2013 dks izkIr gqvk FkkA
[lañ ,y&41012@62@2006&vkbZ vkj ¼ch&I½]
lqefr ldykuh] vuqHkkx vfèdkjh
New Delhi, the 29th November, 2013
S.O. 2646.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 12/2007)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court No.
1, Mumbai as shown in the Annexure, in the industrial
dispute between the management of Central Railway, Near
New Reservation Centre, and their workmen, received by
the Central Government on 29/11/2013.
[No. L-41012/62/2006-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL No. 1, MUMBAI
PRESENT
JUSTICE G. S. SARRAF, Presiding Officer
REFERENCE No. CGIT-1/12 OF 2007
PARTIES:
Employers in relation to the management of
Central Railway
And
Their workman (Shantuben J. Solanki)
APPEARANCE
For the first party
:
Smt. Pooja Kulkarni, Adv.
For the workman
:
Shri Vasant J. Ambedkar, Adv.
State
:
Maharashtra
Mumbai, dated the 28th day of February, 2013
AWARD
1. This is a reference made by the Central Government
in exercise of its powers under clause (d) of sub-section (1)
and sub-section (2A) of Section 10 of the Industrial
Disputes Act, 1947. The terms of reference given in the
schedule are as follows:
Whether the action of the Central Railway is
justified in executing personnel services
(Sweepers) on contract basis against the
Permanent Vacancy? If not, whether the demand
of Smt. Shantuben J. Solanki is justified for
reinstatement in Central Railways on permanent
vacancy with full back wages w.e.f. 30.4.2005 and
continuity of service w.e.f. 1.1.1991? If so, what
are the relief, the workman Smt. Shantuben J.
Solanki is entitled to?
2. According to the statement of claim Shantuben J.
Solanki was initially employed by Executive Engineer
(Central) Central Railway, Near New Reservation Centre,
Jawahar Marg, Ghatkopar, Mumbai as a sweeper from Jan.
1991. The workman worked continuously for more than
240 days in every year from January 1991 to 1994. The
workman was transferred at Vashi Railway Station in 1995
and she worked at Vashi Railway Station from 1995 till her
oral termination on 30.4.2005. The workman was paid rupees
two thousand per month by the first party. The superiors
of the workman obtained her signatures on some forms
and letters as if she was a contractor/contract workman of
the first party. The paper arrangements made by the first
party to deny the workman her legitimate claim as a workman
were illegal. The workman was required to clean the premises
of the office of Executive Engineer as well as the office of
the Central Railway Station at Ghatkopar and after her
transfer at Vashi Railway Station. Sweeping was regular
nature of work which could not be given on contract basis.
The workman was on duty from 8.00 am to 6.00 pm and she
was required to do the work of peon also. After her
termination she tried to get alternative employment but
she could not get any. The workman has, therefore, prayed
that she be reinstated with full back wages and continuity
of service.
3. According to the written statement Engineering
(Construction) department is entrusted with the
6820
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
construction work of Central Railway. The office of the
said department was situated at Wadala and then at Vashi.
Since the work was project based the Railway
Administration did not depute a permanent sweeper to
clean the premises. Deputy Chief Engineer (Construction)
under the powers vested in him and after complying with
Rules and Regulations invited applications for performing
the said job on fixed term basis. The workman amongst
others responded and since the quotation submitted by
her was lowest her quotation was approved. The said
procedure continued at the end of every term from time to
time and every time new quotations were invited and since
her quotations used to be lowest the Competent Authority
approved the same. The workman fixed term expired on
27.4.2005 and the first party once again invited the
quotations from interested persons. The quotation of one
Sitabai was found to be lowest and hence the Competent
Authority approved to award the work to her. According
to the written statement the office of Chief Engineer (MTP)
situated at 7th floor, N.A. Building at Mumbai CST was
shifted and thereafter two permanent sweepers were
rendered surplus. The first party deputed one departmental
safaiwala to the office of Deputy Chief Engineer
(Construction) at Ghatkopar. Presently no fixed term
appointee is performing the work of sweeper. According
to the written statement the workman used to be appointed
only because her quotations used to be lowest. Her last
quotation was not approved because it was not lowest. It
is a case of non-renewal of fixed term contract between
the first party and the workman and as such there is no
termination of service of the workman. It has, therefore,
been prayed that the reference be rejected.
4. The workman has filed rejoinder wherein she has
reiterated her stand.
5. The workman has filed her affidavit and she has
been cross examined by learned counsel for the first party.
The first party has filed affidavit of Felicia Alorsius
Anthony and she has been cross examined by learned
counsel for the workman.
6. Heard Shri Amberkar learned counsel for the
workman and Smt. Pooja Kulkarni learned counsel for the
first party.
7. the question as per the schedule is that whether
the first party was justified in engaging the workman on
contract basis against permanent vacancy.
8. I have not been shown any law or rule whereby
the first party was prohibited to engage the workman to
do the job of sweeper on contract basis against the
permanent vacancy. It is thus clear that it was not illegal
for the first party to get the work of cleaning done on
contract basis.
9. No post was advertised. No names were called for
interview through Employment Exchange. None was
interviewed. The workman did not pass through any medical
test. No appointment letter was issued in faviour of the
workman. There is absolutely no evidence on the record to
establish a relation of employer-employee between the first
party and the workman. As a matter of fact the workman
responded to the invitation of quotations issued by the
first party and since her quotations were found to be lowest
in the years she worked there her quotations were
approved. When her quotations were not found to be
lowest then the workman was not allotted work.
10. It is thus clear that the demand made by the
workman is not at all justified.
11. The workman is not entitled to any relief.
Award is passed accordingly.
Justice G. S. SARRAF, Presiding Officer
ubZ fnYyh] 29 uoEcj] 2013
dkñvkñ 2647.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947
dk 14½ fd èkjk 17 ds vuqlj.k esa dsanzh; ljdkj d`".kk xzkeh.k cSad
ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqcaè
esa fufnZ"V vkS|ksfxd fookn esa dsanzh; ljdkj vkS|ksfxd vfèdj.k@Je
U;k;ky;] cSaxyksj ds iapkV ¼lanHkZ la[;k 8@2011½ dks izdkf'kr
djrh gS] tks dsanzh; ljdkj dks 29@11@2013 dks izkIr gqvk FkkA
[lañ ,y&12012@29@2010&vkbZ vkj ¼ch&I½]
lqefr ldykuh] vuqHkkx vfèdkjh
New Delhi, the 29th November, 2013
S.O. 2647.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 8/2011)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Bangalore as shown in the Annexure, in the industrial
dispute between the management of Krishna Grameena
Bank, Head Office, and their workmen, received by the
Central Government on 29/11/2013.
[No. L-12012/29/2010-IR (B-I)]
SUMATI SAKLANI, Section Officer
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6821
ANNEXURE
BEFORE THE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT, BANGALORE
DATED
:
4th APRIL 2013
PRESENT :
SHRI S.N. NAVALGUND, PRESIDING
OFFICER
C R No. 08/2011
I Party
II Party
Sh. Muzamil Pasha,
The Chairman,
S/o Sh. Shadul Pasha,
Krishna Grameena
Ex-Clerk-cum-Cashier,
Bank, Head
R/o Kanchawaram,
Office, P B No. 4,
Chincholi Tq,
Kusnoor Road,
Distt: Gulbarga.
Gulbarga-585 105.
Appearances :
I Party
:
Nil
II Party
:
Sh. B C Prabhakar
Àdvocate
AWARD
1. The Central Government by exercising the powers
conferred by Clause (d) of Sub-section (1) of Sub-section
2A of the Section 10 of the Industrial Disputes Act, 1947
has referred this dispute vide Order No. L-12012/29/2010-
IR(B-I) dated 01.04.2011 for adjudication on the following
schedule:
SCHEDULE
"whether the action of the management of Krishna
Grameena Bank, Gulbarga in terminating the
services of Shri Muzamil Pasha S/o Shri Shadul
Pasha, Ex-Clerk-cum-Cashier w.e.f. 26/6/2007, is
legal and justified? To what relief the workman is
entitled?"
2. On receipt of the reference registering it in C R 08/
2011 when notices were issued to both the sides, the II
Party appeared through Sh. B C Prabhakar, Advocate,
whereas, I party inspite of due service of notice through
RPAD did not appear and file his claim statement. Since the
I Party failed to put in his appearance and file the claim
statement when the II Party was called upon to file
statement substantiating the action taken against the I party
they filed their statement contending that the I Party who
was appointed on Compassionate Grounds vide Order of
appointment dated 25.07.2006 was posted to work at Jawargi
Branch for training from 26.07.2006 and was put on probation
for a period of one year in terms of Regulation under 8(iv)(a)
of Krishna Gramina Bank (Officers and Employees Service
Regulations, 2001) and then he was posted to its Hokrana
Branch where he reported on 08.01.2007 as a Cashier and
on 24.07.2007 when the Branch Manager on verification of
cash at the closure of the business hours found shortage
of Rs. 68,000.00 and asked the I party, he admitted having
used that amount for his personal difficulties and then
Branch Manager immediately informed the Area Manager
about the said shortage and also submitted his detailed
report in writing on 25.07.2007 and then as per the
instruction of the General Manager the Area Manager
visited the Branch at 09.00 a.m. on 25.07.2007 and verified
the cash and found shortage of Rs. 68,000.00 and the I
party who assured to make good within two days with
request to not to lodge a Police Complaint did not keep up
his promise the Appointing Authority terminated his
services w.e.f. 27.07.2007 invoking the provisions of
Regulations 9(ii) (a) of Krishna Gramina Bank (Officers and
Employees Service Regulations, 2001) and same was served
on the I Party workman with one month's salary of
Rs. 6353.20 paise through Bankers Cheque in lieu of one
month notice. The II party in order to substantiate its
contention in the counter statement while filing the affidavit
of P Shankar Rao, Chief Manager (Funds Department) in
its Head Office reiterating what is stated in the counter
statement examining him on oath got exhibited the certified
copies of application dated 08.07.2006 submitted by I party
for employment; order of appointment issued to I Party on
compassionate grounds dated 24.07.2006; letter of Branch
Manager dated 26.07.2006 intimating the joining of the duty
by the I Party; extract Krishna Grameena Bank (Officers &
Employees) Service Regulations, 2001 to show the
conditions applicable to the probationer; Transfer Order
pertaining to I Party from Jewargi to Hokrana Branch dated
03.01.2007; report of the Branch Manager, Hokarna Branch
dated 25.07.2007; report of the Area Manger dated
25.07.2007; letter of confession given by I party dated
25.07.2007; relevant extract of vault register dated
24.07.2007; termination order issued to I party dated
26.07.2007 as Ex M-1 to Ex M-10 respectively.
3. The learned advocate appearing for the II party in
his arguments submitted that the I party workman
appointed on Compassionate Ground and was on probation
having misappropriated a sum of Rs. 68,000.00 which was
in his custody as a Cashier and failed to make good the
same as undertaken by him invoking the provisions of
Regulations 9(ii) (a) of Krishna Gramina Bank (Officers and
Employees Service Regulations, 2001) having found him
not fit for the said post his services were terminated by
giving him one months salary in lieu of the notice and I
party having failed to file any counter statement and rebut
the evidence placed on record the reference is liable to be
rejected. In support of his arguments he cited the decision
reported in the case of V K Raj Industries vs. Labour Court
and others reported FJR 1981 Vol 59 Page 304 wherein it is
6822
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
held workmen challenging the order of termination of his
service burden being on him to file written statement and
prove illegality of the order, not entitled to any relief if he
does not appear and prove his case.
4. The documentary evidence produced on hehalf of
the II party since do indicate that the I party was issued
with an appointment order dated 24.07.2006 on
Compassionate Grounds and after training was posted to
work as Cashier at Hokrana Branch of the II party was
found with shortage of Rs. 68,000.00 when cash was verified
at the end of the business hours of 25.07.2007 by the Branch
Manager and on asking about the same he gave in writing
on 25.07.2007 having utilized the said amount for his
personal difficulties and that he would make it good with
further request not to make any Police Complaint. Therefore,
the II party did not commit any error in terminating his
services invoking the provisions of Regulation 9(ii) (a) of
Krishna Gramina Bank (Officers and Employees Service
Regulations, 2001) by giving one month's salary in lieu of
the notice. Under the circumstances, I find no necessity to
interfere in the Order of Termination of Service of I party
Workman by the II party. In the result, I pass the following
Order:
ORDER
The reference is rejected holding that the action of
the management of Krishna Grameena Bank, Gulbarga in
terminating the services of Shri Muzamil Pasha S/o Shri
Shadul Pasha, Ex-Clerk-cum-Cashier w.e.f. 27/07/2007, is
legal and justified and that I party is not entitled for any
relief.
(Dictated to UDC, transcribed by him, corrected and
signed by me on 4th April, 2013)
S.N. NAVALGUND, Presiding Officer
ubZ fnYyh] 29 uoEcj] 2013
dkñvkñ 2648.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj mÙkj jsyos ds
izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqcaè esa
fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèdj.k@Je
U;k;ky; ua- 2] paMhx<+ ds iapkV ¼lanHkZ la[;k 1078@2005½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 29@11@2013 dks izkIr gqvk FkkA
[lañ ,y&41012@166@2001&vkbZ vkj ¼ch&I)]
lqefr ldykuh] vuqHkkx vfèdkjh
New Delhi, the 29th November, 2013
S.O. 2648.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 1078/
2005) of the Cent.Govt.Indus.Tribunal-cum-Labour Court
No. 2, Chandigarh as shown in the Annexure, in the
industrial dispute between the management of Northern
Railway, and their workmen, received by the Central
Government on 29/11/2013.
[No. L-41012/166/2001 - IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
IN THE CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT-II,
CHANDIGARH
Present : Sri Kewal Krishan, Presiding Officer.
Case No. I.D. 1078/2005
Registered on 20.9.2005
Shri Ram Lubhaya, S/o Sh. Dharam Chand, R/o Village and
Post Office Bhangala, Tehsil: Mukerian, Distt Hosiharpur.
...Petitioner
Versus
The Divisional Railway Manager, Northern Railway,
Ferozepur.
...Respondent
APPEARANCES:
For the workman
:
Sh. Mandeep Kumar Advocate.
For the Management
:
Sh. N.K. Zakhmi Advocate.
AWARD
Passed on 23-9-13
Central Government vide Notification No. L-41012/
166/2001 [ IR(B-I)] Dated 9.5.2002, by exercising its powers
under Section 10 sub-section (1) Clause (d) and sub-
section (2-A) of the Industrial Disputes Act, 1947
(hereinafter referred to as 'Áct') has referred the following
Industrial dispute for adjudication to this Tribunal:—
"Whether the action of Divisional Railway
Manager, Northern Railway, Ferozepur in
terminating services of Sh. Ram Lubhaya S/o Sh.
Dharam Chand, Daily Rated Gangman working
under PWI, Mr. Mukerian, w.e.f. 3-6-1985 is
justified? If not, what relief the workman is
entitled.?"
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6823
On receiving the reference, notices were issued to
the workman as well as to the management.
The workman submitted statement of claim pleading
that he was appointed by the management vide letter No.
L-8 on 15.3.1984 as a Gangman and he served with the
management up to 13.6.1985 i.e. for a total period of 446
days. His services were terminated orally on 13.6.1985. He
applied for re-employment and was selected as a Gangman
by DPO at Ludhiana on 12.12.1986 but no appointment
letter was issued. His case was again considered and he
was selected on 13.3.1987 at Pathankot but again no
appointment letter was issued. It is further pleaded that as
per Standing Instructions issued vide letter No. 146 MED/
11 Staff/Loose/P-26 the vacancies of Sanitary /Safaiwala
were to be filled from the Casual Labourers and since the
workman was already registered as a casual labourer, he
was eligible for re-engagement and similarly situated casual
labourers namely Ramesh Lal, Ram Murti and Dharam
Chand were re-employed but he was denied the right to be
appointed.
That since the workman worked for 446 days, his
work was of regular nature which is still in existence. That
is services were terminated without complying with the
provisions of Section 25F, 25G and 25H of the Act as well
as he was not given an opportunity of any hearing before
terminating his services. That the order is illegal and prayed
that termination order be set aside and he be treated in
continuous service from the date of his termination with
all the consequntial benefits.
The management filed written reply pleading that
workman was engaged on daily rate basis as a Gangman
for the period in question an on completion of 120 days of
service, he was sent for medical examination. Since he
could not qualify the medical examination i.e. Bee-one he
was declared unfit and his services were dispensed with.
It is denied that petitioner is entitled to any employment
in view of the letter No. 146-Med/11/Staff/Loose/P28 dated
4.12.1996 as the instructions contained in the said letter
were withdrawn. It is denied that the persons similarly
placed as that of workman were employed.
In support of his case the workman appeared in the
witness-box and filed his affidavit. Workman was proceeded
against ex parte vide order dated 4.7.2011. Thereafter the
management has also examined its witness.
I have heard Sh. N.K. Zakhmi learned counsel for
the management and have gone through the record
carefully. It may be added that the services were terminated
on 13.6.1985 as per the case of the workman and the present
reference was moved only in the year 2002. Thus the
workman is guilty of latches and delay, and on this ground
alone he is not entitled to any relief.
It may be added that workman has pleaded that he
was selected as a Gangman on 12.12.1986, and again on
13.3.1987. But no such proceedings has been placed on
the file to establish the said facts. Again there is no
evidence on the file that he was entitled to get any
employment as a Sanitary/Safaiwala in view of the letter
dated 4.12.1986. In fact the workman did not claim any
relief on the basis of the said facts and the claim is only
that he worked with the management for 446 days and his
services were terminated without complying with the
provision of Section 25F as well as the persons junior to
him were retained by the management in violation of the
provisions of Section 25G. There is nothing on the file to
show that the persons who were junior to the workman
were retained in service by the managment and it cannot
be said that there is any violation of Section 25G of the
Act.
The workman has pleaded that appointment letter
dated L-8 dated 15.3.1984 was issued but he did not
produce the same showing its terms and conditions. It is
the specific case of the management that he was engaged
purely on daily rate basis. While appearing in the witness-
box the workman himself admit that he was working with
the management intermittently. Thus the workman was a
daily wager and the appointment of a daily wager comes to
an end when it is discontinued. In this respect reliance
may be placed on Secretary, State of Karnataka and Others
Vs. Umadevi and Others and observed that:—
"Unless the appointment is in terms of the relevant
rules and after a proper competition among
qualified persons, the same would not confer
any right on the appointee. If it is a contractual
appointment, the appointment comes to an end
at the end of the contract, if it were an
engagement or appointment on daily wages or
casual basis, the same would come to an end
when it is discontinued."
Again it was held by the Apex Court in Himanshu
Kumar Vidyarthi and other Vs. State of Bihar and others
that the discontinuance of the service of a daily wager is
not a retrenchment and observed in para 3 of the judgement
as follows—
6824
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
"Every department of the Government cannot be
treated to be "industry". When the appointment are
regulated by the statutory rules, the concept of
"índustry" to that extent stands excluded. Admittedly,
they were not appointed to the posts in accordance with
the rules but were engaged on the basis of need of the
work. They are temporary employees working on daily
wages. Under these circumstances, their disengagement
from service cannot be construed to be a retrenchment
under the Industrial Disputes Act. The concept of
'retrenchment' therefore, cannot be stretched to such an
extent as to cover these employees. The learned counsel
for the petitioners seeks to contend that in the High Court,
the petitioners did not contend that it is a case of
retrenchment but termination of their services is arbitrary.
Since they are only daily-wage employees and have nor
right to the posts, their disengagement is not arbitrary.
Again in Divisional Forest Officer, Rohtak Vs. Jagat
Singh and Another, it was observed in Para 4 of the
judgment as follows:—
It may be noticed that the definition of retrenchment
in Section 2(oo) of the Act is applicable to the provisions
contained in Chapter VA containing Sections 25F and 25H
of the Act. The termination of daily wager is not
retrenchment failing within Section 2(oo)(bb) of the Act.
Therefore, the workman who is a daily wager cannot be
reinstated as it does not amount to retrenchment within
the meaning of Sections 25F and 25G of the Act.
Thus the workman who was working on daily rate
basis cannot claim that he has been 'retrenched' from
service. There is no violation of Section 25F also.
Thus from the above going discussion, it is clear
that the workman is not entitled to any relief. The
reference is answered against the workman. Let hard and
soft copy of the award be sent to be Central Government
for further necessary action.
KEWAL KRISHAN, Presiding Officer
ubZ fnYyh 29 uoEcj] 2013
dkñvkñ 2649.—vkS|ksfxd fookn vf/kfu;e] 1947
¼1947 dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ;wukbVsM
osLVuZ cSad fyfeVsM ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa
ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/kdj.k dksYgkiqj ds iapkV ¼lanHkZ la[;k 3@2002½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 29@11@2013 dks izkIr gqvk FkkA
[lañ ,y&12012@176@2002&vkbZ vkj ¼ch&I)]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 29th November, 2013
S.O. 2649.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 3/2002)
of the Industrial Tribunal, Kolhapur as shown in the
Annexure, in the industrial dispute between the
management of The United Western Bank Ltd. and their
workmen, received by the Central Government on
29/11/2013.
[No. L-12012/176/2002-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE PRESIDING OFFICER, INDUSTRIAL
TRIBUNAL, KOLHAPUR
Reference (IT) No. 3 to 6 of 2002.
Reference (IT) No. 3 of 2002.
The United Western Bank Ltd.,
Raviwar Peth, Satara.
Thru. Its General Manager.
Industrial Development Bank of India,
WTC Complex, Cuff Parade, Mumbai.
...First Party
AND
Shri Ravindra Raghunath Ashtekar,
2804, A Ward, Sarnaik Wada,
Kolhapur.
...Second Party
Reference (IT) No. 4 of 2002.
The United Western Bank Ltd.,
Raviwar Peth, Satara.
Thru. Its General Manager.
Industrial Development Bank of India,
WTC Complex, Cuff Parade, Mumbai.
...First Party
AND
Shri Mahesh Prabhakar Bavadekar,
2931, A Ward, Mahadwar Road,
Kolhapur.
...Second Party
Reference (IT) No. 5 of 2002.
The United Western Bank Ltd.,
Raviwar Peth, Satara.
Thru. Its General Manager.
Industrial Development Bank of India,
WTC Complex, Cuff Parade, Mumbai.
...First Party
AND
Shri Mukund Ganesh Kulkarni,
2663, A Ward, Diwan Bol,
Kolhapur.
...Second Party
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6825
Reference (IT) No. 6 of 2002.
The United Western Bank Ltd.,
Raviwar Peth, Satara.
Thru. Its General Manager.
Industrial Development Bank of India,
WTC Complex, Cuff Parade, Mumbai.
...First Party
AND
Shri Prakash Baburao Pawar,
23/1, Lay out No. 3, Baba Jarag Nagar,
Kolhapur.
...Second Party
CORAM: SHRI K.R. PETHKAR, PRESIDING OFFICER
APPEARANCES: Shri S. R. Rane, advocate for the
First Party.
Shri D.N. Patil, advocate for the
Second Party workers.
: COMMON JUDGMENT :
(24.04.20313)
1. Central Government by orders dated 27.08.2002 in
exercise of powers conferred under claused(d) of Sub-
section(1) and Sub-section (2A) of Section 10 of Industrial
Disputes Act, 1947 referred these disputes between the
above named parties for adjudication to this Tribunal in
respect of the action of the management of First Party in
terminating/discontinuing the services of concerned
Second Party Workers.
The facts in brief are that,
2. The Second Party workers were serving with the
First Party since the dates mentioned as Pigmy Deposit
Collectors with clean and meritorious service recond. It
is alleged by the Second Party workers that their services
were terminated by the First Party without following
procedure laid down under the Industrial Disputes Act,
1947 w.e.f. 14.08.2996. Therefore, the Second Party
workers raised dispute before Assistant Commissioner of
Labour (Central) Pune, and after recording its failure, the
Central Government referred these four references for
adjudication.
3. The First Party workers alleged that being
appointed as Pigmy Deposit Collectors, there was
employee-employer relationship between the First
Party and the concerned Second Party workers. It is
alleged by the Second Party workers that the branch
manager of First Party illegally an improperly
terminated the services of the Second Party workers
w.e.f. 14.08.1996. The Second Party workers alleged
that they approached the concerned branch managers
time to time for reinstatement. They also alleged that
they were continuously ventilating their grievances.
As their requests were not considered by the First
Party, they sent demand notices u/s. 2-A of Industrial
Disputes Act, 1947 on 08.10.2001. The Second Party
workers submitted its statement of justification on
23.10.2001 along with request letter for intervention to
Conciliation Authority under the Industrial Disputes
Act, 1947.
4. The Second Party alleged that they had worked
for more than 240 days continuously in every year.
However, to deprive them from legal status and benefits,
First Party continued them on the bond as Pigmy
Deposit Collectors. The Second Party alleged that the
work performed by them is of perennial in nature. The
Second Party workers alleged that the First Party has not
paid wages on par with other employees nor given
benefits.
5. It is alleged that while terminating the services of
the Second Party workers the First Party has not followed
proper procedure under the Industrial Disputes Act, 1947.
As Pigmy Deposit Collectors they used to collect the
deposits from the customers and fill in various registers.
Lastly the Second Party workers alleged to allow the
reference holding the termination effected is illegal,
improper and bad in law. Therefore, the Second Party
prayed to declare the termination effected by First Party
w.e.f. 14.08.1996 as illegal and improper and bad in law with
a direction to reinstate the Second Party workers with full
back wages.
6. The First Party by its written statement vide Exh.
C-7 denied all the material allegations made against it by
the Second Party workers. It is contended by the First
Party that reference is misconceived, baseless and
untenable. The First Party alleged that the Second Party
workers are not workmen within the meaning of section
2(s) of Industrial Disputes Act, 1947. The First Party
disputed the relationship of employer and employee
between the parties.
7. The First Party submitted that the reference is at
belated stage and the approach of the of the Second Party
workers is casual and careless. The First Party alleged that
there is delay of 5 years and 2 months in raising dispute.
The First Party alleged that it is engaged in the business
of banking and Second Party workers were collecting
deposits on commission basis. The First Party was not
having control over the working hours of Second Party
workers. The Madhu Sanchay Deposit scheme became
unremunerative and uneconomical. Therefore the First
Party terminated the scheme w.e.f. 14.08.1996. This
termination of agreement is misinterpreted by the Second
Party workers as termination of their services Hence, in
this background, First Party prayed for rejection of
reference with costs.
8. In this background of facts, following issues
were framed at Exh. O-3 to which I record my findings as
under.
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[PART II—SEC. 3(ii)]
ISSUES
FINDINGS
1.
Whether the Second Party
proves that they were
In the affirmative.
workmen of First Party?
2.
Whether the Second Party
In the affirmative.
proves that they were
illegally terminated from
the services by First Party?
3.
Whether the Second Party is
Party in affirmative.
entitled for reliefs claimed in
the statement of claim?
3a. Whether the First Party
In the negative.
proves that there is
inordinate delay in
raising the dispute?
4.
What Award?
As per final order.
REASONS
9. The Second Party has examined Shri. Ravindra
Raghunath Ashtekar at Exh. U-11. The First Party has
examined its Assistant General Manager, Shri Anilkumar
Vilas Kadre at Exh. C-24. The parties are relying on the
documents which they have produced on record.
ISSUE No. 1
10. The learned advocate for the First Party has
submitted that Second Party workers have not pleaded
nature of duties performed by them. He has submitted that
the oral evidence which the Second Party workers have
led is without pleadings and the same cannot be
considered. He has submitted that the Second Party
workers were not under the control of the First Party. He
has submitted that the authority of Hon'ble Supreme Court
in Indian Banks Association is not helpful to the Second
Party workers as in para 4 of the said authority, the
Hon'ble Supreme Court has not laid down the law that
pigmy agent is a workman as per Industrial Disputes Act,
1947. He has submitted from the para 24 of the said
authority it can be seen that evidence had came before the
Tribunal that the deposit collectors are workmen within the
meaning of Industrial Disputes Act, 1947. He has submitted
that the Second Party workers were not workmen as the
working hours of the Second Party workers were not fixed
and they used to collect the pigmy deposits from the
customers as per their wish. He has submitted that they
used to decide as to from which pigmy account holder they
would first collect the Pigmy amount. He has submitted
that the Second Party workers used to collect pigmy
deposit from the pigmy account holders after banking
hours. He has submitted that Bank used to give
commission to the Second Party workers on the basis of
pigmy deposits which they have collected during the
concerned period. He has submitted that the commission
amount which the Second Party workers used to receive
in every month used to differ month to month because of
variance in collection of pigmy deposits by the Second
Party workers.
The learned advocate relied on unreported decision
of Hon'ble Karnataka High Court in case of Syndicate Bank
V/s. Vasanth Gururao Kusanur in Writ Petition No. 7057 of
2006. In the said authority, the Hon'ble Karnataka High
Court has followed the authority of Hon'ble Supreme
Court in Indian Bank's Association (Supra). Indirectly the
First Party is admitting that the Second Party workers are
workmen as per the provisions of Industrial Disputes Act,
1947.
In the authority of Indian Bank's Association
(Supra) the Hon'ble Apex Court observed that, "We also
accept the submission that the banks have no control over
the deposit collectors. Undoubtedly the deposit
collelctors are free to regulate their own hours of work, but
that is because of the nature of the work itself. It would
be impossible to fix working hours for such deposit
collectors because they have to go to various depositors.
This would have to be done at the convenience of the
depositors and at such times as required by the
depositors. If this is so, then no time can be fixed for such
work. However, there is control inasmuch as the deposit
collectors have to bring the collections and deposit the
same in the banks by the very next day. They have then
to fill in various forms, accounts, registers and passbooks.
They also have to do such other clerical work as the Bank
may direct. They are, therefore, accountable to the Bank
and under the control of the Bank.
We also see no force in the contention that Section
10 of the Banking Regulation Act prevents employment of
persons on commission basis. The proviso to section 10
makes it clear that commission can be paid to persons who
are not in regular employment undoubtedly, the deposit
collectors are not regular employees of the Bank. But they,
nevertheless, are workers within the meaning of the term
as defined in the Industrial Disputes Act. There is clearly
a relationship of master and servant between the deposit
collectors and the Bank concerned."
Moreover, in reference strict rules of The Civil
Procedure Code and Indian Evidence Act are not
applicable. In the Statement of claim the Second Party
workers have pleaded that they were appointed through
branch managers as pigmy deposit collectors and they
have worked under the kind control of the First Party as
well as kind control of the branch manager. They have
pleaded that their duty was to collect maximum deposits
from the pigmy account holders. In the examination in chief
at para 4 and 5, the second party workers have stated
nature of duties performed by them.
11. Learned Advocate for the first party has
submitted that the Second Party workers have entered into
agreements and as per the terms and conditions laid down
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6827
in the agreements, the Second Party workers were only
authorised to collect deposits under Madhu Sanchay
Scheme. He has submitted that as per the agreement, there
was relationship of principal and agent between the
parties. He further submitted that the Second Party
workers were appointed only to collect deposits under the
Madhu Sanchay Scheme. They were not having any
involvement in any other activities of the First Party. He
has submitted that Madhu sanchay Scheme became
unremunerative and uneconomical. He has submitted that
the First Party decided to terminate scheme and
accordingly the First Party terminated the scheme w.e.f.
14.08.1996. He has submitted that as a result of termination
of the scheme, the said agreement did not survive and
came to an end. He has submitted that the relationship of
Principal and Agent between First Party and Second Party
came to an end on 14.08.1996 as on the same day the
Madhu Sanchay Scheme came to an end.
In the Cross examination, the Second Party workers
at Exh. U-11 have admitted that when they started working
as pigmy agents, at that time, the Bank has entered into
an agreement/contract with them. They have further
admitted that as per the agreement they had worked till
13.08.1996 as pigmy agents. They also admitted that they
used to collect pigmy deposits under the Madhu Sanchay
Scheme and the Bank had closed the scheme on
14.08.1996. They have further admitted that except
working for Madhu Sanchay Scheme, they were not doing
any work of United Western Bank.
In the cross examination, at Exh. C-24, Shri Anilkumar
Kadre has admitted that like Madhu Sanchay Scheme at
that time there were many other schemes functioning in
the First Party. He was unable to state as to whether the
Second Party workers have demanded the work of
collection of deposits in other schemes from the First Party
on 14.08.1996, and the same was not given. The
admissions given by the Second Party workers are not
helpful to the First Party as the First Party has failed to
produce on record the original agreements or the copy of
the agreements which were executed between the parties.
It is not the case of the First Party that in the agreement
there is clause that if the Madhu Sanchay Scheme
automatically comes to an end, the agreement will also
automatically come to an end. The First Party has not
produced documentary evidence on record to show that
the Madhu Sanchay Scheme had became unremunerative
and uneconomical. It is not the case of the First Party that
due to the said scheme, the First Party has sustained loss.
It is not the case of the First Party that the customers of
the said scheme had reduced. Only on the basis of
admission given by Second Party workers one cannot
come to the conclusion that contract/agreement was only
for Madhu Sanchay Scheme. The important document i.e.
contract/agreement is not brought before the Tribunal for
the reason best known to the First Party. It is not the case
of the First Party that it has destroyed the contract/
agreement executed between the First Party and the
Second Party workers. The First Party has not given any
notice or order to Second Party workers on 14.08.1996 that
as per the agreement/contract, the relationship of principal
and agent between the parties have come to an end.
Considering the admissions given by the Assistant
General Manager of the First Party as at that time many
other schemes were functioning like Madhu Sanchay
Scheme, one cannot say that there was no work available
with the First Party after closure of the Madhu Sanchay
Scheme. The First Party being a banking Industry, it
cannot be said that there was no work available for pigmy
agents to collect deposits from the customers.
From the above discussion and as per the ratio laid
down by Hon'ble Supreme Court in Indian Bank's
Association (Supra), I come to the conclusion that the
Second Party workers are workers and there was
relationship of employer and employee between the
parties. Hence, I answer Issue No. 1 in the affirmative.
ISSUE NO. 3-A
12. The learned advocate for the First Party
submitted that Second Party workers were not at all
espousing the alleged cause of action which arose after
alleged termination of the Second Party workers. He has
submitted that the Second Party workers were waiting and
watching for the decision of Hon'ble Supreme Court in
Indian Bank's Association (Supra). He has submitted that
the Second Party workers were/are not permitted to enjoy
the fruits which came from the decision of Indian Bank's
Association (Supra). He has submitted that the Second
Party workers have not explained delay in raising their
disputes in the statement of claims. He submitted that
there is delay of five years and two onths in raising
disputes and same is not explained. He submitted that the
Second Party workers came to know about the decision of
Indian Bank's Association (Supra). and thereafter Second
Party workers raised the dispute before the First Party. He
has submitted that when the Second Party workers for the
first time had raised the dispute, at that time, dispute had
became stale and same was not in existence.
In support of his submissions. he has relied upon the
decision in case of Bhoop Singh V/s. Union of India
reported in 1993 I L.K.J.260 (S.C.) The Hon'ble Supreme
Court has observed that "It is expected of a Government
Servant who has a legitimate claim to approach the Court
for the relief within a reasonable period, assuming no fixed
prayer of limitation applies."
The Hon'ble Supreme Court further observed that,
"This is more so in service matters where vacancies
are required to be filled promptly. A person cannot
be permitted to challenge the termination of his
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[PART II—SEC. 3(ii)]
service after a period of twenty two years. without
any cogent explaination for the inordinate delay,
merely because other similarly dismissed had been
reinstated as a result of their earlier petitions being
allowed."
In that matter, the Delhi Armed Police participated in
a mass agitation on April 14, 1967. The services of the
agitating police constables were terminated on that
account without specifying that reason for the termination.
The dismissed constables who were not taken back in
service filed Writ Petitions in Delhi High Court in 1969 and
1970 which were allowed by Delhi High Court.
Subsequently, some other constables also filed Writ
Petitions in Delhi High Court which two were allowed.
Another set of similarly dismissed constables then filed
Writ Petitions in the Delhi High Court challenging the
termination of their services contending that their claim
was identical with that of the Petitioners in the Writ
Petitions filed in 1978. These Writ Petitions were
transferred to Central Adminstrative Tribunal which held
granted the same relief as was granted to the Petitioners
in the Writ Petitions filed in the High Court in 1978. The
Delhi Administration preferred appeals in Hon'ble Supreme
Court against the decision. Those appeals were dismissed.
The petitioner Bhoop Singh was terminated on
03.08.1967 and he had filed O.A. No. 753 of 1989 in the
Central Adminstrative Tribunal praying for reinstatement
in service and all consequential benefits on the ground
that his case is similar to that of the Police Constables who
had succeeded in the earlier rounds of litigaiton. The
Tribunal had rejected the Petitioner's application on the
ground that it is highly belated and there is no cogent
explanation for the inordinate delay of twenty two years
in filing the applicaiton on March 13, 1989 after
termination of the Petitioner's service in 1967.
In the matter before Hon'ble Supreme Court, the
Petitioner had knowledge that colleagues were reinstated
in the years 1969 and 1970. After Knowing fully well the
Petitioner had kept quiet for twenty two years. In that
matter, the Petitioner knew in the year 1969 as to what was
the remedy available to him. In the present matter the
Second Party workers had no knowledge that they come
under the definition of workman. After having knowledge
about their right they had raised dispute.
The Second Party workers are not Government
servants. The First Party is a Banking industry and
Second Party workers are workmen. The Second Party
workers have immediately raised dispute after 5 years
and 2 months. The reason behind the delay to raise the
dispute is that Second Party workers waited for the
decision of Hon'ble Supreme Court. The delay of 5
years and 2 months cannot be called as inordinate
delay. No Court has defined as to how to calculate and
how to consider reasonable period for raising a
dispute. The reasonable period depends upon case to
case.
Hence, with due respect to the Hon'ble Supreme
Court, the said authority is not helpful to First Party.
13. The learned advocate for the First Party has
relied upon the authority in case of S.S. rathore V/s. State
of Madhya Pradesh reported in 1990 I LAB.I.C. 398. In this
matter the Hon'ble Supreme Court observed that, "We are
also of the view that the cause of action shall be taken to
arise not from the date of the original adverse order but on
the date when the order of the higher authority where a
statutory remedy is provided entertaining the appeal or
representation is made and where no such order is made
though the remedy has been availed of a six months' period
from the date of preferring of the appeal or making of the
representation shall be taken to be the date when cause
of aciton shall be taken to have first arisen. We however,
make it clear that this principle may not be applicable when
the remedy availed of has not been provided by law.
Repeated unsuccessful representations not provided by
law are not governed by this principle"
The Hon'ble Supreme Court further observed that,
It is appropriate to notice the provision regarding limitation
under S. 21 of the Administrative Tribunals Act. Sub-
Section (1) has prescribed a period of one year for making
of the application and power of condonation of delay of
a total period of six months has been vested under sub-
section (3). The Civil Court's jurisdiction has been taken
away by the Act and, therefore, as far as Government
Servants are concerned. Article 58 may not be invocable
in view of the special limitation. Yet, suits outside the
purview of the Administrative Tribunals Act shall
continue to be governed by Article 58.
In the matter before Hon'ble Supreme Court the
plaintiff was a Government Servant of Madhya Pradesh
and he was dismissed from services by the Collector on
13.01.1966. He preferred an appeal to the Divisional
Commissioner and that appeal was dismissed on
31.08.1966. The order of dismissal of the appeal was
communicated to the plaintiff on 19.09.1966. The plaintiff
gave notice under Section 80 of the Code of Civil
Procedure on 17.06.1969 and filed his suit on 30th
September 1989, asking for a declaration that the order of
dismissal was inoperative and he continued to be in
service. The suit which was filed by the plaintiff was
dismissed in the Courts below on acceptance of the
defence plea that plaintiff had not filed suit within three
years from the date when the cause of action first arose,
as required under Art. 58 of the First Schedule of the
Limitation Act, 1963.
With due respect to the Hon'ble Supreme Court, the
said decision is not helpful to the first party as the
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6829
provisions of Limitation Act are not applicable to the
Reference under the Industrial Disputes Act, 1947.
Moreover the said ratio is laid down with respect to suits
outside the purview of the Administrative Tribunals Act
not with respect of Reference.
14. The learned advocate for the First Party has
relied upon the unreported authority of Hon'ble Karnataka
High Court in case of Syndicate Bank V/s. Vasanth
Gururao Kusanur in Writ Petition No. 7057 of 2006. While
deciding the Writ Petition the Hon'ble Karnataka High
Court has followed the ratio laid down by Hon'ble
Supreme Court in cases of
(i) 2000 SCC (L & S) 283 — Nedungadi Bank Ltd. Vs.
K.P. Madhavankutty and others.
(ii) (2006) 5 SCC 433 U.P. State Road Transport
Corporation Vs. Babu Ram.
(iii) 2007 AIR SCW 2882 — Dharappa Vs. Bijapur
Cooperative Milk Producers Societies Union Ltd.
In the matter before the Hon'ble Karnataka High
Court the Respondent was terminated on 26.08.1991 and
he has raised the dispute on 12.12.2001. The case of the
Bank was that by the time the Respondent had raised the
dispute, it had become stale and did not exist between the
parties.
(I) 2000 SCC (L & S) 283 — Nedungadi Bank Ltd.
Vs. K.P. Madhavankutty and others.
In the matter before Hon'ble Supreme Court the
Respondent had admitted that he had committed
misappropriation, expressed unconditional regret and
prayed the punishment of dismissal be not imposed on
him. The Respondent was dismissed from the services
from 11 August, 1972. He filed appeal before the Board of
Directors of Bank. His appeal was dismissed by order
dated 3.01.1973. He got whatever benefits were due to him
under the rules framed by the Bank. Then, after a period
of seven years he served a notice on the Bank contending
that he was discriminated as two other employees of the
Bank under same situation were reinstated in the service
of the Bank. The Respondent had started to raise the
dispute before appropriate forum. The Respondent moved
application before Assistant Commissioner of Labour of
the Central Government for the relief. The Assistant
Commissioner of Labour held that there was no scope for
formal proceeding. The Respondent filed Writ Petition. The
Hon'ble High Court directed the Assistant Commissioner
of Labour to submit its report u/s. 4(2) of the Act. The
same was sent to the Hon'ble High Court. The Central
Government declined to make reference u/s. 10 of the Act.
The Respondent again filed Writ Petition in Hon'ble High
Court, which was disposed of with a direction to the
Central Government to re-examine the matter against
which the Bank came before the Hon'ble Supreme Court.
(II) (2006) 5 SCC 433 U.P. State Road Transport
Corporation Vs. Babu Ram.
The Respondent and others were terminated from
the service in the year 1983. The Dy. Labour Commissioner
referred the dispute by its order dated 29.8.1998. The
Respondent had raised the claim after 15 years. The
Hon'ble Supreme Court had followed the ratio laid down
in Nedungadi Bank Ltd. (Supra).
(III) 2007 AIR SCW 2882 — Dharappa Vs. Bijapur
Cooperative Milk Producers Societies Union Ltd.
Section 10(4A) provides an alternative procedure to
seek redressal in regard to an order of termination, by
making an application directly to the Labour Court, within
six months from the date of communication of the order of
termination, without the intervention or assistance of an
employees union and without having to approach the
appropriate Government for making a reference. Such a
provision cannot be interpreted as reviving stale and
dead claims nor as enabling a workman to seek remedy
beyond six months from the date of communication, except
to the extent expressly provided for. The true and proper
interpretation of Section 10(4A) is that an individual
workman can apply to the Labour Court for adjudication
of the dispute relating to an order of discharge/dismissal/
retrenchment/termination within six months from the date
of communication to him, of such order of termination.
In that matter the appellant was terminated with
effect from 01.03.1980. He made an application under
Section 10(4A) of Industrial Disputes Act, 1947 on
04.10.1988 before Labour Court, Hubli for declaration that
his termination be declared as null and void. In Industrial
Disputes Act there is Karnataka Amendment to Section 10
by way of insertion of sub-section (4A) with effect from
07.04.1988. The said sub-section states that workman
should directly approach the Labour Court within six
months from the date of communication of the order.
With due respect to the Hon'ble Supreme Court and
Hon'ble Karnataka High Court the said authorities are not
helpful to First Party. The First Party has not challenged
the order of reference passed on 27.08.2002. The First
Party is now stopped from raising the contention that
Second Party workers were not diligent in taking action
when the alleged cause of action for the dispute arose
when the Second Party workers were allegedly terminated
on 29.8.1996. The First Party has not specifically pleaded
in its written statement that the dispute had become stale
and the same did not exist when the Second Party workers
have sent approach notice on 08.10.2001 to the First Party.
The First Party has not produced on record a copy of
reply to show that it had given reply to the approach
notice of the Second Party workers. Nor it is the case of
the First Party that it had given reply to the approach
notices of the Second Party workers. The Second Party
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[PART II—SEC. 3(ii)]
workers have not received any compensation amount
from the First Party. The First Party has not stated and
made clear in its written statement as to whether it had
given reply to the statement of justification before
Conciliation Authority. There is no material on record to
come to the conclusion that the First Party has stated
before the Conciliation Authority that the Second Party
workers were not diligent in espousing the alleged cause
of action and the dispute had became stale and same is
not existence. The Second Party workers have produced
on record the approach notice dated 08.11.2001, which
shows that they have raised dispute within a reasonable
time, after the decision of Hon'ble Supreme Court in Indian
Bank's Association (Supra). The provisions of Limitation
Act are not applicable to the present references which are
referred to this Tribunal under the provisions of the
Industrial Disputes Act, 1947. Delay in raising dispute and
dispute becoming stale or coming to an end are two
different issues to each other. Delay in raising dispute
means that dispute was in existence when it was raised.
The defence raised by First Party is devoid of merit as the
First Party has not proved as to what prejudice was
caused to it due to delay in raising dispute. The plea of
delay which is raised by First Party is required to be
proved by showing real prejudice caused to it and not by
real hypothetical. The Second Party workers were
terminated all of a sudden on one fine day morning without
giving any intimation to them. The Second Party workers
are the pigmy agents. Their income was not fixed. In these
circumstances whether it was expected from them to raise
their dispute immediately against the First Party or first
they should make arrangement for their family's survival.
15. In the decision of Hon'ble Supreme Court in case
of Ajaib Singh V/s. Sirhind Co.-Op. Marketing Cum
Processing Service Society Ltd. and Anr. reported in 1999
I CLR 1068, it is observed that the, Industrial Disputes Act,
1947—S.10—Limitation Act, 1983—Art. 137—
Applicability to Industrial Disputes Act, 1947—Appellant
was dismissed from service on 16.07.1974—He raised
demand on 08.12.1981—In consequent reference to
Labour Court, Respondent approached High Court mainly
on the ground of delay in clamining reference. Respondent
having succeeded in High Court on the ground that the
appellant had slept over for years in raising demand, this
appeal is filed—Supreme Court after taking into
consideration the objectives in enacting Industrial
Disputes Act, 1947, the case law and the fact that
Limitation Act is not made applicable to the Industrial
Disputes Act, 1947, held that relief under the Act cannot
be denied to the workman merely on the ground of delay
as Limitation Act is not applicable and in case delay is
established, the Labour Court or Tribunal can mould relief
as to back wages etc.
16. In the authority of Hon'ble Supreme Court in
case of Kuldeep Singh V.G.M. Instrument Design
Development and facilities Center and Anr. reported in
2011 I CLR 5, observed that though the law does not
prescribe any time limit for appropriate Government to
exercise its power u/s. 10 of Industrial Disputes Act, 1947,
the said power is to be exercised reasonably and in a
rationale manner.
From the above discussion, I come to the
conclusion that first Party has not proved that there is
inordinate delay on the part of Second Party workers to
raise dispute before the first party. The delay of 5 years and
2 months caused by Second Party workers to raise the
dispute is not an unreasonable delay. Moreover, in view
of the ratio laid down by Hon'ble Supreme Court in Ajaib
Singh V/s. Sirhind Co.-Op. Marketing-Cum-Processing
Service Society Ltd. and Anr. reported in 1999 I CLR 1068
and Kuldeep Singh V. G.M. Instrument Design
Development and facilities Center and Anr. reported in
2011 I CLR 5, the Tribunal cannot reject the relief in favour
of Second Party workers, if they prove illegal termination.
Hence, I answer Issue No. 3-A in the Negative.
ISSUE No. 2
17. Undisputedly, the Second Party workers started
to work as pigmy agents in Mahadwara Road Branch of
First Party from 12.12.1991 onwards till 14.08.1996. In the
evidence at Exh. U-11, the Second Party workers have
deposed that they have worked and rendered more than 240
days service in every year. The witness of First Party Shri
Anil Kumar Kadare in his cross examination at Exh. C-24 has
admitted that the record of collection of deposits and record
to be maintained by Second Party workers of deposits is
available in Mahadwar Branch of United Western Bank. He
further admitted that the Second Party workers used to work
on an average 26 days in a month and record of their
working is in Mahadwar Branch. He has also admitted that
from 1996 onwards the Second Party workers were working
with the First Party and on 14.08.1996 the Bank had stopped
to give work of Madhu Sanchay Scheme to Second Party
workers. In these circumstances, there was no difficulty for
the Bank to produce on record the documents in respect of
Second Party workers about collection of deposits and the
payment/commission which was made by the First Party to
the Second Party workers towards their collection and the
number of days they have worked. In the cross-examination,
the witness of First Party have avoided to give answers as
to whether the Bank had given any written notice to the
Second Party workers while stopping work of Second Party
workers. He has avoided to give answer whether the First
Party Bank had given compensation amount, notice pay in
lieu of notice after 14.08.1996. He has admitted that from
14.08.1996 except Madhu Sanchay Scheme other schemes
were in existence in the Bank. In the cross-examination
Second Party had given suggestion to the said witness that
the workers had demanded work of collection of deposit in
other scheme the same was not given.
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The statement of justification which is given by
the Second Party workers to the Assistant Commissioner
of Labour on 28.10.2001 at Exh. U. 18, which also states
that they have worked for more than 240 days in every
year. The Second Party workers were collecting pigmy
amount from the pigmy account holders till 13.08.1996.
From this fact inference can be drawn that the Second
Party workers have continuously worked for more than
240 days during a period of preceding 12 months from
13.08.1996. I do not see any reason to disbelieve the
evidence of the Second Party workers on the fact that
they had continously worked for more than 240 days
during a period of preceding 12 calendar months from
13.08.1996.
From the above evidence, it is clear that First Party
Bank had not followed the procedure prescribed under
25-F, G and H of the Industrial Disputes Act, 1947 nor it
followed due process of law while not allowing the
Second Party workers to work, which amounts to illegal
termination. Hence, I answer Issue No. 2 in the
affirmative.
ISSUE NO. 3
18. For the sake of arguments let us consider that
the First Party had retrenched the Second Party workers
as the Madhu sanchay scheme was closed and no work
of collection of deposits was available with the First Party.
In that case, it was necessary for the First Party to follow
the provisions of section 25-F, G and H of the Industrial
Disputes Act, 1947 at the time of retrenchment of Second
Party workers. On the contrary, the First Party neither in
its written statement alleged that it has retrenched the
Second Party workers nor in its evidence it has anywhere
stated that the Second Party workers were retrenched by
it by following procedure laid down in sections 25-F, 25-
G and 25-H of the Industrial Disputes Act, 1947. It is not
the case of the First Party that it has issued retrenchment
notice, or displayed seniority list etc. while putting an end
to the services of the First Party.
19. The Second Party workers have stated that they
had worked for more than 240 days continuously in every
year. They have stated that in every year they had
rendered more than 240 days continuous service.
Undisputedly, the First Party did not allow the Second
Party workers to work from 14.8.1996 onwards. Therefore,
it was obligatory on the part of the First Party to follow
due process of law while putting an end to the service of
the Second Party workers.
From the above discussion it has become
abundantly clear that the First Party had orally
terminated the Second Party workers on 14.8.1996
without following due process of law. The Second Party
workers had given the approach notice to First Party on
08.10.2001 and had given statement of justification to
the Assistant Commissioner of Labour of Central
Government on 23.10.2001. The Assistant Commissioner
of Labour had referred the reference to this Tribunal by
passing the order dated 27.8.2002. The Second Party
workers have not brought on record the amount of
commission which they used to receive from the First
Party. They have not brought on record any evidence
on the point as to whether they remained unemployed
after 14.08.1996. Both the parties have taken the
references very lightly. The age of the second Party
workers is above 58 years. It will not be proper to give
relief of reinstatement to the Second Party workers after
a period of 17 years. In these circumstances, it is
necessary to mould the relief of reinstatement and back
wages by way of giving compensation. Hence, I answer
Issue No. 3 accordingly and proceed to answer the
reference partly in affirmative.
AWARD
(I) Reference is answered partly in affirmative.
(II) Each of the Second Party worker in Reference (IT)
Nos. 3 to 6 of 2002 is entitled to an amount of
compensation of Rs. 50,000/- each in lieu of
reinstatement and back wages.
(III) Award be drawn accordingly.
(IV) Copy of Award be kept in Reference (IT) Nos. 4
to 6 of 2002.
Place: Kolhapur,
K.R. PETHKAR, Presiding Officer
Date: 24.04.2013
ubZ fnYyh] 29 uoEcj] 2013
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cSad fyfeVsM izca/k ra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds
chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/kdj.k dksYgkiqj ds iapkV lanHkZ la[;k 4@2002] dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 29@11@2013 dks izkIr gqvk FkkA
[lañ ,y&12012@178@2002&vkbZ vkj (ch&I)]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 29th November, 2013
S.O. 2650.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref. 4/2002 of the
Industrial Tribunal, Kolhapur as shown in the Annexure,
in the industrial dispute between the management of the
United Western Bank Ltd. and their workmen, received by
the Central Government on 29/11/2013.
[No. L-12012/178/2002-IR(B-I)]
SUMATI SAKLANI, Section Officer
6832
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
ANNEXURE
BEFORE THE PRESIDING OFFICER, INDUSTRIAL
TRIBUNAL, KOLHAPUR
Reference (IT) No. 3 to 6 of 2002.
Reference (IT) No. 3 of 2002.
The United Western Bank Ltd.,
Raviwar Peth, Satara.
Thru. Its General Manager.
Industrial Development Bank of India,
WTC Complex, Cuff Parade, Mumbai.
...First Party
AND
Shri Ravindra Ragunath Ashtekar,
2804, A Ward, Sarnaik Wada,
Kolhapur.
...Second Party
Reference (IT) No. 4 of 2002.
The United Western Bank Ltd.,
Raviwar Peth, Satara.
Thru. Its General Manager.
Industrial Development Bank of India,
WTC Complex, Cuff Parade, Mumbai.
...First Party
AND
Shri Mahesh Prabhakar Bavadekar,
2931, A Ward, Mahadwar road,
Kolhapur.
....Second Party
Reference (IT) No. 5 of 2002.
The United Western Bank Ltd.,
Raviwar Peth, Satara.
Thru. Its General Manager.
Industrial Development Bank of India,
WTC Complex, Cuff Parade, Mumbai.
...Frist Party
AND
Shri Mukund Ganesh Kulkarni,
2663, A Ward, Diwan Bol,
Kolhapur.
....Second Party
Reference (IT) No. 6 of 2002
The United Western Bank Ltd.,
Raviwar Peth, Satara.
Thru. Its General Manager.
Industrial Development Bank of India,
WTC Complex, Cuff Parade, Mumbai.
...First Party
AND
Shri Prakash Baburao Pawar,
23/1, Lay out No. 3, Baba Jarag Nagar,
Kolhapur.
....Second Party
CORAM: SHRI K.R. PETHKAR, PRESIDING OFFICER
Appearances
:
Shri S.R. Rane, Advocate for the First
Party.
Shri D.N. Patil, Advocate for the
Second Party workers.
COMMON JUDGEMENT
(24.02.2013)
1. Central Government by orders dated 27.08.2002 in
exercise of power conferred under clause (d) of Sub-
section (1) and Sub-section (2A) of Section 10 of
Industrial Disputes Act, 1947 referred these disputes
between the above named parties for adjudication to this
Tribunal in respect of the action of the management of
First Party in terminating/discontinuing the services of
concerned Second Party Workers.
The facts in brief are that,
2. The Second Party workers were serving with the
First Party since the dates mentioned as Pigmy Deposit
Collectors with clean and meritorious service record. It is
alleged by the Second Party workers that their services
were terminated by the First Party without following
procedure laid down under the Industrial Disputes Act,
1947 w.e.f. 14.08.1996. Therefore, the Second Party workers
raised dispute before Assistant Commissioner of Labour
(Central) Pune, and after recording its failure, the Central
Government referred these four reference for adjudication.
3. The First Party workers alleged that being
appointed as Pigmy Deposit Collectors, there was
employee-employer relationship between the First Party
and the concerned Second Party workers. It is alleged by
the Second Party workers that the branch manager of First
Party illegally an improperly terminated the services of the
Second Party workers w.e.f. 14.08.1996. The Second Party
workers alleged that they approached the concerned
branch managers time to time for reinstatement. They also
alleged that they were continuously ventilating their
grievances. As their requests were not considered by the
First Party, they sent demand notices u/s. 2-A of Industrial
Disputes Act, 1947 on 08.10.2001. The Second Party
workers submitted its statement of justification on
23.10.2001 along with request letter for intervention to
Conciliation Authority under the Industrial Disputes Act,
1947.
4. The Second Party alleged that they had worked
for more than 240 days continuously in every year.
However, to deprive them from legal status and benefits,
First Party continued them on the bond as Pigmy Deposit
Collectors. The Second Party alleged that the work
performed by them is of perennial in nature. The Second
Party workers alleged that the First Party has not paid
wages on par with other employees nor given benefits.
5. It is alleged that while terminating the services of
the Second Party workers the First Party has not followed
proper procedure under the Industrial Disputes Act, 1947.
As Pigmy Deposit Collectors they used to collect the
deposits from the customers and fill in various registers.
Lastly the Second Party workers alleged to allow the
reference holding the termination effected is illegal,
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6833
improper and bad in law. Therefore, the Second Party
prayed to declare the termination effected by First Party
w.e.f. 14.08.1996 as illegal and improper and bad in law with
a direction to reinstate the Second Party workers with full
back wages.
6. The First Party by its written statement vide Exh.
C-7 denied all the material allegations made against it by
the Second Party workers. It is contended by the First
Party that reference is misconceived, baseless and
untenable. The First Party alleged that the Second Party
workers are not workmen within the meaning of Section
2(s) of Industrial Disputes Act, 1947. The First Party
disputed the relationship of employer and employee
between the parties.
7. The First Party submitted that the reference is at
belated stage and the approach of the Second Party
workers is casual and careless. The First Party alleged that
there is delay of 5 years and 2 months in raising dispute.
The First Party alleged that it is engaged in the business
of banking and Second Party workers were collecting
deposits on commission basis. The First Party was not
having control over the working hours of Second Party
workers. The Madhu Sanchay Deposit scheme became
unremunerative and uneconomical. Therefore the First
Party terminated the scheme w.e.f. 14.08.1996. This
termination of agreement is misinterpreted by the Second
Party workers as termination of their services. Hence, in
this background, First Party prayed for rejection of
reference with costs.
8. In his background of facts, following issues were
framed at Exh. O-3 to which I record my findings as under.
ISSUES
FINDINGS
1.
Whether the Second Party
In the affirmative.
proves that they were
workmen of First Party?
2.
Whether the Second
In the affirmative.
Party proves that they
were illegally terminated
from the services by
First Party?
3.
Whether the Second Party
Partly in affirmative.
is entitled for reliefs claimed
in the statement of claim?
3(a) Wheter the First Party proves In the negative.
that there is inordinate delay
in raising the dispute?
4.
What Award?
As per final order.
REASONS
9. The Second Party has examined Shri Ravindra
Raghunath Ashtekar at Exh.U-11. The first party has
examined its Assistant General Manager, Shri. Anilkumar
Vilas Kadre at Exh.C-24. The parties are relying on the
documents which they have produced on record.
ISSUE NO. 1
10. The learned advocate for the first party has
submitted that Second Party workers have not pleaded
nature of duties performed by them. He has submitted that
the oral evidence which the Second Party workers have
led is without pleadings and the same cannot be
considered. He has submitted that the Second Party
workers were not under the control of the first party. He
has submitted that the authority of Hon'ble Supreme Court
in Indian Banks Association is not helpful to the Second
Party workers as in para 4 of the said authority, the
Hon'ble Supreme Court has not laid down the law that
pigmy agent is a workman as per Industrial Disputes Act,
1947. He has submitted from the para 24 of the said
authority it can be seen that evidence had came before the
Tribunal that the deposit collectors are workmen within the
meaning of Industrial Disputes Act, 1947. He has submitted
that the Second Party workers were not workmen as the
working hours of the Second Party workers were not fixed
and they used to collect the pigmy deposits from the
customers as per their wish. He has submitted that they
used to decide as to from which pigmy account holder they
would first collect the Pigmy amount. He has submitted
that the Second Party workers used to collect pigmy
deposit from the pigmy account holders after banking
hours. He has submitted that Bank used to give
commission to the Second Party workers on the basis of
pigmy deposits which they have collected during the
concerned period. He has submitted that the commission
amount which the Second Party workers used to receive
in every month used to differ month to month because of
variance in collection of pigmy deposits by the Second
Party workers.
The learned advocate relied on unreported decision
of Hon'ble Karnataka High Court in case of Syndicate Bank
V/s. Vasanth Gururao Kusanur in Writ Petition No. 7057 of
2006. In the said authority, the Hon'ble Karnataka High
Court has followed the authority of Hon'ble Supreme
Court in Indian Bank's Association (Supra). Indirectly the
First Party is admitting that the Second Party workers are
workmen as per the provisions of Industrial Disputes Act,
1947.
In the authority of Indian Bank's Association
(Supra) the Hon'ble Apex Court observed that, "We also
accept the submission that the banks have no control over
the deposit collectors. Undoubtedly the deposit collectors
are free to regulate their own hours of work, but that is
because of the nature of the work itself. It would be
impossible to fix working hours for such deposit collectors
because they have to go to various depositors. This
would have to be done at the convenience of the
6834
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
depositors and at such times as required by the
depositors. If this is so, then no time can be fixed for such
work. However, there is control in as much as the deposit
collectors have to bring the collections and deposit the
same in the banks by the very next day. They have then
to fill in various forms, accounts, registers and passbooks.
They also have to do such other clerical work as the Bank
may direct. They are, therefore, accountable to the Bank
and under the control of the Bank.
We also see no force in the contention that Section
10 of the Banking Regulation Act prevents employment of
persons on commission basis. The proviso to section 10
makes it clear that commission can be paid to persons who
are not in regular employment undoubtedly, the deposit
collectors are not regular employees of the Bank. But they,
nevertheless, are workers within the meaning of the term
as defined in the Industrial Disputes Act. There is clearly
a relationship of master and servant between the deposit
collectors and the Bank concerned."
Moreover, in reference strict rules of The Civil
Procedure Code and Indian Evidence Act are not
applicable. In the Statement of claim the Second Party
workers have pleaded that they were appointed through
branch managers as pigmy deposit collectors and they
have worked under the kind control of the First Party as
well as kind control of the branch manager. They have
pleaded that their duty was to collect maximum deposits
from the pigmy account holders. In the examination in chief
at para 4 and 5, the second party workers have stated
nature of duties performed by them.
11. Learned Advocate for the first party has
submitted that the Second Party workers have entered into
agreements and as per the terms and conditions laid down
in the agreements, the Second Party workers were only
authorised to collect deposits under Madhu Sanchay
Scheme. He has submitted that as per the agreement, there
was relationship of principal and agent between the
parties. He further submitted that the Second Party
workers were appointed only to collect deposits under the
Madhu Sanchay Scheme. They were not having any
involvement in any other activities of the First Party. He
has submitted that Madhu Sanchay Scheme became
unremunerative and uneconomical. He has submitted that
the First Party decided to terminate scheme and
accordingly the First Party terminated the scheme w.e.f.
14.08.1996. He has submitted that as a result of termination
of the scheme, the said agreement did not survive and
came to an end. He has submitted that the relationship of
Principal and Agent between First Party and Second Party
came to an end on 14.08.1996 as on the same day the
Madhu Sanchay Scheme came to an end.
In the Cross examination, the Second Party workers
at Exh.U-11 have admitted that when they started working
as pigmy agents, at that time, the Bank has entered into
an agreement/contract with them. They have further
admitted that as per the agreement they had worked till
13.08.1996 as pigmy deposits under the Madhu Sanchay
Scheme and the Bank had closed the scheme on
14.08.1996. They have further admitted that except
working for Madhu Sanchay Scheme, they were not doing
any work of United Western Bank.
In the cross examination, at Exh. C-24, Shri
Anilkumar Kadre has admitted that like Madhu Sanchay
Scheme at that time there were many other schemes
functioning in the First Party. He was unable to state as
to whether the Second Party workers have demanded the
work of collection of deposits in other schemes from the
First Party on 14.08.1996, and the same was not given.
The admissions given by the Second Party workers are
not helpful to the First Party as the First Party has failed
to produce on record the original agreements or the copy
of the agreements which were executed between the
parties. It is not the case of the First Party that in the
agreement there is clause that if the Madhu Sanchay
Scheme automatically comes to an end, the agreement
will also automatically come to an end. The First Party
has not produced documentary evidence on record to
show that the Madhu Sanchay Scheme had became
unremunerative and uneconomical. It is not the case of
the First Party that due to the said scheme, the First
Party has sustained loss. It is not the case of the First
Party that the customers of the said scheme had reduced.
Only on the basis of admission given by Second Party
workers are cannot come to the conclusion that contract/
agreement was only for Madhu Sanchay Scheme. The
important document i.e. contract/agreement is not
brought before the Tribunal for the reason best known
to the First Party. It is not the case of the First Party that
it has destroyed the contract/agreement executed
between the First Party and the Second Party workers.
The First Party has not given any notice or order to
Second Party workers on 14.08.1996 that as per the
agreement/contract, the relationship of principal and
agent between the parties have come to an end.
Considering the admissions given by the Assistant
General Manager of the First Party as at that time many
other schemes were functioning like Madhu Sanchay
Scheme, one cannot say that there was no work available
with the First Party after closure of the Madhu Sanchay
Scheme. The First Party being a banking Industry, it
cannot be said that there was no work available for
pigmy agents to collect deposits from the customers.
From the above discussion and as per the ratio
laid down by Hon'ble Supreme Court in Indian Bank's
Association (Supra), I come to the conclusion that
the Second Party workers are workers and there was
relationship of employer and employee between the
parties. Hence, I answer Issue No. 1 in the
affirmative.
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6835
ISSUE NO. 3-A
12. The learned advocate for the First Party
submitted that Second Party workers were not at all
espousing the alleged cause of action which arose after
alleged termination of the Second Party workers. He has
submitted that the Second Party workers were waiting and
watching for the decision of Hon'ble Supreme Court in
Indian Bank's Association (Supra). He has submitted that
the Second Party workers were/are not permitted to enjoy
the fruits which came from the decision of Indian Bank's
Association (Supra). He has submitted that the Second
Party workers have not explained delay in raising their
disputes in the statement of claims. He submitted that
there is delay of five years and two months in raising
disputes and same is not explained. He submitted that the
Second Party workers came to know about the decision of
Indian Bank's Association (Supra) and thereafter Second
Party workers raised the dispute before the First Party. He
has submitted that when the Second Party workers for the
fist time had raised the dispute, at that time, dispute had
became stale and same was not in existence.
In support of his submissions, he has relied upon the
decision is case of Bhoop Singh V/s. Union of India
reported in 1993 I.L.L.J. 260 (S.C.). The Hon'ble Supreme
Court has observed that "It is expected of a Government
servant who has a legitimate claim to approach the Court
for the relief within a reasonable period, assuming no fixed
prayer of limitation applies".
The Hon'ble Supreme Court further observed that,
"This is more so in service matters where vacancies are
required to be filled promptly. A person cannot be
permitted to challenge the termination of his service after
a period of twenty two years, without any cogent
explanation for the inordinate delay, merely because other
similarly dismissed had been reinstated as a result of their
earlier petitions being allowed."
In that matter, the Delhi Armed Police participated
in a mass agitation on April 14, 1967. The services of the
agitating police constables were terminated on that
account without specifying that reason for the
termination. The dismissed constables who were not
taken back in service filed Writ Petitions in Delhi High
Court in 1969 and 1970 which were allowed by Delhi High
Court. Subsequently, some other constables also filed
Writ Petitions in Delhi High Court which too were
allowed. Another set of similarly dismissed constables
then filed Writ Petitions in the Delhi High Court
challenging the termination of their services contending
that their claim was identical with that of the Petitioners
in the Writ Petitions filed in 1978. These Writ Petitions
were transferred to Central Administative Tribunal which
held granted the same relief as was granted to the
Petitions in the Writ Petitions filed in the High Court in
1978. The Delhi Administration preferred appeals in
Hon'ble Supreme Court against the decision. Those
appeals were dismissed.
The petitioner Bhoop Singh was terminated on
03.08.1967 and he had filed O.A. No. 753 of 1989 in the
Central Administrative Tribunal praying for reinstatement
in service and all consequential benefits on the ground
that his case is similar to that of the Police Constables who
had succeeded in the earlier rounds of litigation. The
tribunal had rejected the Petitioner's application on the
ground that it is highly belated and there is no cogent
explanation for the inordinate delay of twenty two years
in filing the application on March 13, 1989 after
termination of the Petitioner's service in 1967.
In the matter before Hon'ble Supreme Court, the
Petitioner had knowledge that colleagues were reinstated
in the years 1969 and 1970. After knowing fully well the
Petitioner had kept quiet for twenty two years. In that
matter, the Petitioner knew in the year 1969 as to what was
the remedy available to him. In the present matter the
Second Party workers had no knowledge that they come
under the definition of workman. After having knowledge
about right they had raised dispute.
The Second Party workers are not Government
servants. The First Party is a Banking industry and Second
Party workers are workmen. The Second Party workers
have immediately raised dispute after 5 years and 2
months. The reason behind the delay to raise the dispute
is that Second Party workers waited for the decision of
Hon'ble Supreme Court. The delay of 5 years and 2
months cannot be called as inordinate delay. No Court has
defined as to how to calculate and how to consider
reasonable period for raising a dispute. The reasonable
period depends upon case to case.
Hence, with due respect to the Hon'ble Supreme
Court, the said authority is not helpful to First Party.
13. The learned advocate for the First Party had
relied upon the authority in case of S.S. Rathore V/s.
State of Madhya Pradesh reported in 1990 I LAB.I.C. 398.
In this matter the Hon'ble Supreme Court observed that,
"We are also of the view that the cause of action shall
be taken to arise not from the date of the original adverse
order but on the date when the order of the higher
authority where a statutory remedy is provided
entertaining the appeal or representation is made and
where no such order is made though the remedy has
been availed of a six months'period from the date of
preferring of the appeal or making of the representation
shall be taken to be the date when cause of action shall
be taken to have first arisen. We however, make it clear
that this principle may not be applicable when the remedy
availed of has not been provided by law. Repeated
unsuccessful representations not provided by law are
not governed by this principle".
6836
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
The Hon'ble Supreme Court further observed that.
It is appropriate to notice the provision regarding limitation
under S.21 if the Administrative Tribunals Act. Sub-Section
(1) has prescribed a period of one year for making of the
application and power of condonation of delay of a total
period of six months has been vested under sub-section
(3). The Civil Court's jurisdiction has been taken away by
the Act and, therefore, as far as Government Servants are
concerned. Article 58 may not be invocable in view of the
special limitation. Yet, suits outside the purview of the
administrative Tribunals Act shall continue to be
governed by Article 58.
In the matter before Hon'ble Supreme Court the
plaintiff was a Government Servant of Madhya Pradesh
and he was dismissed from services by the Collector on
13.01.1966. He preferred an appeal to the Divisional
Commissioner and that appeal was dismissed on
31.08.1966. The order of dismissal of the appeal was
communicated to the plaintiff on 19.09.1966. The plaintiff
gave notice under Section 80 of the Code of Civil
Procedure on 17.06.1969 and filed this suit on
30th September, 1989, asking for a declaration that the
order of dismissal was inoperative and he continued to be
in service. The suit which was filed by the plaintiff was
dismissed in the Courts below on acceptance of the
defence plea that plaintiff had not filed suit within three
years from the date when the cause of action first arose,
as required under Art. 58 of the First Schedule of the
Limitation Act, 1963.
With due respect to the Hon'ble Supreme Court, the
said decision is not helpful to the first party as the
provisions of Limitation Act are not applicable to the
Reference under the Industrial Disputes Act, 1947.
Moreover the said ratio is laid down with respect to suits
outside the purview of the Administrative Tribunals Act
not with respect to Reference.
14. The learned advocate for the First Party had
relied upon the unreported authority of Hon'ble Karnataka
High Court in case of Syndicate Bank V/s. Vasanth
Gururao Kusanur in Writ petition No. 7057 of 2006. While
deciding the Writ Petition the Hon'ble Karnataka High
Court had followed the ratio laid down by Hon'ble
Supreme Court in cases of
(i) 2000 SCC (L& S) 293-Nedungadi Bank Ltd. Vs.
K.P. Madhavankutty and others.
(ii) (2006) 5 SCC 433 U.P. State Road Transport
Corporation Vs. Babu Ram.
(iii) 2007 AIR SCW 2882-Dharappa Vs. Bijapur
Cooperative Milk Propducers Societies Union
Ltd.
In the matter before the Hon'ble Karnataka High
Court the Respondent was terminated on 26.08.1991 and
he has raised the dispute on 12.12.2001. The case of the
Bank was that by the time the Respondent had raised the
dispute, it had become stale and did not exist between the
parties.
(I) 2000 SCC (L & S) 283-Nedungadi Bank Ltd. Vs. K.P.
Madhavankutty and others.
In the matter before Hon'ble Supreme Court the
Respondent had admitted that he had committed
misappropriation, expressed unconditional regret and
prayed the punishment of dismissal be not imposed on
him. The Respondent was dismissed from the services
from 11 August 1972. He filed appeal before the Board of
Directors of Bank. His appeal was dismissed by order
dated 3.01.1973. He got whatever benefits were due to him
under the rules framed by the Bank. Then, after a period
of seven years he served a notice on the Bank contending
that he was discriminated as two other employees of the
Bank under same situation were reinstated in the service
of the Bank. The Respondent had started to raise the
dispute before appropriate forum. The Respondent moved
application before Assistant Commissioner of Labour of
the Central Government for the relief. The Assistant
Commissioner of Labour held that there was no scope for
formal proceeding. The Respondent filed Writ Petition. The
Hon'ble High Court directed the Assistant Commissioner
of Labour to submit its report u/s. 4(2) of the Act. The
same was sent to the Hon'ble High Court. The Central
Government declined to make reference u/s. 10 of the Act.
The Respondent again filed Writ Petition in Hon'ble High
Court, which was disposed of with a direction to the
Central Government to re-examine the matter against which
the Bank came before the Hon'ble Supreme Court.
(II) (2006) 5 SCC 433 U.P. State Road Transport
Corporation Vs. Babu Ram.
The Respondent and others were terminated from
the service in the year 1983. The Dy. Labour Commissioner
referred the dispute by its order dated 29.8.1998. The
Respondent had raised the claim after 15 years. The
Hon'ble Supreme Court had followed the ratio laid down
in Nedungadi Bank Ltd. (Supra).
(III) 2007 AIR SCW 2882-Dharappa Vs. Bijapur
Cooperative Milk Producers Societies Union Ltd.
Section 10(4A) provides an alternative procedure to
seek redressal in regard to an order of termination, by
making an application directly to the Labour Court, within
six months from the date of communication of the order of
termination, without the intervention or assistance of an
employees union and without having to approach the
appropriate Government for making a reference. Such a
provision cannot be interpreted as reviving stale and
dead claims nor as enabling a workman to seek remedy
beyond six months from the date of communication, except
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6837
to the extent expressly provided for. The true and proper
interpretation of Section 10 (4A) is that an individual
workman can apply to the Labour Court for adjudication
of the dispute relating to an order of discharge/dismissal/
retrenchment/termination within six months from the date
of communication to him, of such order of termination.
In that matter the appellant was terminated with
effect from 01.03.1980. He made an application under
Section 10(4A) of Industrial Disputes Act, 1947 on
04.10.1988 before Labour Court, Hubli for declaration that
his termination be declared as null and void. In Industrial
Disputes Act there is Karnataka Amendment to Section 10
by way of insertion of Sub-Section (4A) with effect from
07.04.1988. The said sub-Section States that workman
should directly approach the Labour Court within six
months from the date of communication of the order.
With due respect to the Hon'ble Supreme Court and
Hon'ble Karnataka High Court the said authorities are not
helpful to First Party. The First Party has not challenged
the order of reference passed on 27.08.2002. The First
Party is now estopped from raising the contention that
Second Party workers were not diligent in taking action
when the alleged cause of action for the dispute arose
when the Second Party workers were allegedly terminated
on 29.8.1996. The First Party has not specifically pleaded
in its written statement that the dispute had become stale
and the same did not exist when the Second Party workers
have sent approach notice on 08.10.2001 to the First Party.
The First Party has not produced on record a copy of
reply to show that it had given reply to the approach
notice of the Second Party workers. Nor it is the case of
the First Party that it had given reply to the approach
notices of the Second Party workers. The Second Party
workers have not received any compensation amount
from the First Party. The First Party has not stated and
made clear in its written statement as to whether it had
given reply to the statement of justification before
Conciliation Authority. There is no material on record to
come to the conclusion that the First Party has stated
before the Conciliation Authority that the Second party
workers were not diligent in espousing the alleged cause
of action and the dispute had became stale and same is
not existence. The Second Party workers have produced
on record the approach notice dated 08.11.2001, which
shows that they have raised dispute within a reasonable
time, after the decision of Hon'ble Supreme Court in Indian
Bank's Association (Supra). The provisions of Limitation
Act are not applicable to the present reference which are
referred to this Tribunal under the provisions of the
Industrial Disputes Act, 1947. Delay in raising dispute and
dispute becoming stale or coming to an end are two
different issues to each other. Delay in raising dispute
means that dispute was in existance when it was raised.
The defence raised by First Party is devoid of merit as the
First Party has not proved as to what prejudice was
caused to it due to delay in raising dispute. The plea of
delay which is raised by First Party is required to be
proved by showing real prejudice caused to it and not by
real hypothetical. The Second Party workers were
terminated all of a sudden on one fine day morning without
giving any intimation to them. The Second Party workers
are the pigmy agents. Their income was not fixed. In these
circumstances whether it was expected from them to raise
theri dispute immediately against the First party or first
they should make arrangement for their family's survival.
15 In the decision of Hon'ble Supreme Court in case
of Ajaib Singh V/s. Sirhind Co.-Op. Marketing Cum
Processing Service Society Ltd. and Anr. reported in 1999
I CLR 1068, it is observed that the, Industrial Disputes Act,
1947-S.10- Limitation Act, 1983-Art. 137-Applicability to
Industrial Disputes Act, 1947-Appellant was dismissed
from service on 16.07.1974-He raised demand on
08.12.1981-In consequent reference to Labour Court,
Respondent approached High Court mainly on the ground
of delay in claiming reference.-Respondent having
succeeded in High Court on the ground that the appellant
had slept over for years in raising demand, this appeal is
filed-Supreme Court after taking into consideration the
objectives in enacting Industrial Disputes Act, 1947, the
case law and the fact that Limitation Act is not made
applicable to the Industrial Disputes Act, 1947, held that
relief under the Act cannot be denied to the workman
merely on the ground of delay as Limitation Act is not
applicable and in case delay is established, the Labour
Court or Tribunal can mould relief as to back wages etc.
16. In the authority of Hon'ble Supreme Court in case
of Kuldeep Singh V.G. Instrument Design Development and
facilities Center and Anr. reported in 2011 I CLR 5, observed
that though the law does not prescribe any time limit for
appropriate Government to exercise its power u/s. 10 of
Industrial Disputes Act, 1947, the said power is to be
exercised reasonably and in a rationale manner.
From the above discussion, I come to the
conclusion that first Party has not proved that there is
inordinate delay on the part of Second Party workers to
raise dispute before the first party. The delay of 5 years and
2 months caused by Second Party workers to raise the
dispute is not an unreasonable delay. Moreover, in view
of the ratio laid down by Hon'ble Supreme Court in Ajaib
Singh V/s. Sirhind Co.-Op. Marketing Cum Processing
Service Society Ltd. and Anr. reported in 1999 I CLR 1068
and Kuldeep Singh V. G.M. Instrument Design
Development and facilities Center and Anr. reported in
2011 I CLR 5, the Tribunal cannot reject the relief in favour
of Second Party workers, if they prove illegal termination.
Hence, I answer Issue No. 3-A in the Negative.
ISSUE No. 2
17. Undisputedly, the Second Party workers started
to work as pigmy agents in Mahadwara Road Branch of
6838
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
First Party from 12.12.1991 onwards till 14.08.1996. In the
evidence at Exh. U-11, the Second Party workers have
deposed that they have worked and rendered more than 240
days service in every year. The witness of First Party Shri
Anil kumar Kadare in his cross-examination at Exh.C-24 has
admitted that the record of collection of deposits and record
to be maintained by Second Party workers of deposits is
available in Mahadwar Branch of United Western Bank. He
further admitted that the Second Party workers used to work
on an average 26 days in a month and record of their
working is in Mahadwar Branch. He has also admitted that
from 1996 onwards the Second Party workers were working
with the First Party and on 14.08.1996 the Bank had stopped
to give work of Madhu Sanchay Scheme to Second Party
workers. In these circumstances, there was no difficulty for
the Bank of produce on record the documents in respect of
Second Party workers about collection of deposits and the
payment/commission which was made by the First Party to
the Second Party workers towards their collection and the
number of days they have worked. In the cross-examination,
the witness of First Party has avoided to give answers as
to whether the Bank had given any written notice to the
Second Party workers while stopping work of Second Party
workers. He has avoided to give answer whether the First
Party Bank had given compensation amount, notice pay in
lieu of notice after 14.08.1996. He has admitted that from
14.08.1996 except Madhu Sanchay Scheme other schemes
were in existence in the Bank. In the cross-examination
Second Party had given suggestion to the said witnes that
the workers had demanded work of collection of deposit in
other scheme the same was not given.
The statement of justification which is given by the
Second Party workers to the Assistant Commissioner of
Labour on 28.10.2001 at Exh.U.18, which also states that
they have worked for more than 240 days in every year.
The Second Party workers were collecting pigmy amount
from the pigmy account holders till 13.08.1996. From this
fact inference can be drawn that the Second Party workers
have continously worked for more than 240 days during
a period of preceding 12 months from 13.08.1996. I do not
see any reason to disbelieve the evidence of the Second
Party workers on the fact that they had continuously
worked for more than 240 days during a period of
preceding 12 calendar months from 13.08.1996
From the above evidence, it is clear that First Party
Bank had not followed the procedure prescribed under
25-F, G and H of the Industrial Disputes Act, 1947 nor it
followed due process of law while not allowing the Second
Party workers to work, which amounts to illegal
termination. Hence, I answer Issue No. 2 in the affirmative.
ISSUE NO. 3
18. For the sake of arguments let us consider that
the First Party had retrenched the Second Party workers
as the Madhu Sanchay scheme was closed and no work
of collection of deposits was available with the First Party.
In that case, it was necessary for the First Party to follow
the provisions of section 25-F, G and H of the Industrial
Disputes Act, 1947 at the time of retrenchment of Second
Party workers. On the contrary, the First Party neither in
its written statement alleged that it has retrenched the
Second Party workers nor in its evidence it has anywhere
stated that the Second Party workers were retrenched by
it by following procedure laid down in sections 25-F,
25-G and 25-H of the Industrial Disputes Act, 1947. It is not
the case of the First Party that it has issued retrenchment
notice, or displayed seniority list etc. while putting an end
to the services of the First Party.
19. The Second Party workers have stated that they
had worked for more than 240 days continuously in every
year. They have stated that in every year they had rendered
more than 240 days continuous service. Undisputedly, the
First Party did not allow the Second Party workers to work
from 14.8.1996 onwards. Therefore, it was obligatory on the
part of the First Party to follow due process of law while
putting an end to the service of the Second Party workers.
From the above discussion it has become
abundantly clear that the First Party had orally terminated
the Second Party workers on 14.8.1996 without following
due process of law. The Second Party workers had given
the approach notice to First Party on 08.10.2001 and had
given statement of justification to the Assistant
Commissioner of Labour of Central Government on
23.10.2001. The Assistant Commissioner of Labour had
referred the reference to this Tribunal by passing the order
dated 27.8.2002. The Second Party workers have not
brought on record the amount of commission which they
used to receive from the First Party. They have not brought
on record any evidence on the point as to whether they
remained unemployed after 14.08.1996. Both the parties
have taken the references very lightly. The age of the
second Party workers is above 58 years. It will not be
proper to give relief of reinstatement to the Second Party
workers after a period of 17 years. In these circumstances,
it is necessary to mould the relief of reinstatement and
back wages by way of giving compensation. Hence, I
answer Issue No. 3 accordingly and proceed to answer the
reference partly in affirmative.
AWARD
(I) Reference is answered partly in affirmative.
(II) Each of the Second Party worker in Reference (IT)
Nos. 3 to 6 of 2002 is entitled to an amount of
compensation of Rs. 50,000/- each in lieu of
reinstatement and back wages.
(III) Award be drawn accordingly.
(IV) Copy of Award be kept in Reference (IT) Nos. 4
to 6 of 2002.
Place: Kolhapur.
Date: 24.04.2013
K.R. PETHKAR, Presiding Officer
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6839
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New Delhi, the 29th November, 2013
S.O. 2651.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref. 5/2002 of the
Industrial Tribunal, Kolhapur as shown in the Annexure,
in the industrial dispute between the management of The
United Western Bank Ltd. and their workmen, received by
the Central Government on 29/11/2013.
[No. L-12012/179/2002-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE PRESIDING OFFICER, INDUSTRIAL
TRIBUNAL, KOLHAPUR
Reference (IT) No. 3 to 6 of 2002.
Reference (IT) No. 3 of 2002.
The United Western Bank Ltd.,
Raviwar Peth, Satara.
Thru. Its General Manager.
Industrial Development Bank of India,
WTC Complex, Cuff Parade, Mumbai
...First Party
And
Shri. Ravindra Raghunath Ashtekar,
2804, A Ward, Sarnaik Wada,
Kolhapur.
.... Second Party
Reference (IT) No. 4 of 2002.
The United Western Bank Ltd.,
Raviwar Peth, Satara.
Thru. Its General Manager.
Industrial Development Bank of India,
WTC Complex, Cuff Parade, Mumbai
...First Party
And
Shri Mahesh Prabhakar Bavadekar,
2931, A Ward, Mahadwar Road,
Kolhapur.
....Second Party
Reference (IT) No. 5 of 2002.
The United Western Bank Ltd.,
Raviwar Peth, Satara.
Thru. Its General Manager.
Industrial Development Bank of India,
WTC Complex, Cuff Parade, Mumbai
...First Party
And
Shri Mukund Ganesh Kulkarni
2663, A Ward, Diwan Bol
Kolhapur.
....Second Party
Reference (IT) No. 6 of 2002.
The United Western Bank Ltd.,
Raviwar Peth, Satara.
Thru. Its General Manager.
Industrial Development Bank of India,
WTC Complex, Cuff Parade, Mumbai
...First Party
And
Shri Prakash Baburao Pawar
23/1, Lay out No.3, Baba Jarag Nagar,
Kolhapur.
....Second Party
CORAM: SHRI K.R. PETHAKAR, Presiding Officer
APPEARANCES: Shri S.R. Rane, advocate for the First
Party.
Shri D.N. Patil, advocate for the
Second Party workers.
COMMON JUDGEMENT
(24.04.2013)
1. Central Government by order dated 27.08.2002 in
exercise of powers conferred under clause(d) of Sub-
section(1) and Sub-section (2A) of Section 10 of
Industrial Disputes Act, 1947 referred these disputes
between the above named parties for adjudication to this
Tribunal in respect of the action of the management of
First Party in terminating/discontinuing the services of
concerned Second Party Workers.
The facts in brief are that,
2. The Second Party workers were serving with the
First Party since the dates mentioned as Pigmy Deposit
Collectors with clean and meritorious service record. It is
alleged by the Second Party workers that their services
were terminated by the First Party without following
procedure laid down under the Industrial disputes Act,
1947 w.e.f. 14.08.1996. Therefore, the Second Party workers
raised dispute before Assistant Commissioner of
Labour(Central) Pune, and after recording its failure, the
Central Government referred these four references for
adjudication.
6840
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
3. The First Party workers alleged that being
appointed as Pigmy Deposit Collectors, there was
employee-employer relationship between the First Party
and the concerned Second Party workers. It is alleged by
the Second Party workers that the branch manager of First
Party illegally an improperly terminated the services of the
Second Party workers w.e.f. 14.08.1996. The Second Party
workers alleged that they approached the concerned
branch managers time to time for reinstatement. They also
alleged that they were continuously ventilating their
grievances. As their requests were not considered by the
First Party, they sent demand notices u/s.2-A of Industrial
Disputes Act, 1947 on 08.10. 2001. The Second Party
workers submitted its statement of justification on
23.10.2001 along with request letter for intervention to
Conciliation authority under the Industrial Disputes Act,
1947.
4. The Second Party alleged that they had worked
for more than 240 days continuously in every year.
However, to deprive them from legal status and benefits,
First Party continued them on the bond as Pigmy Deposit
Collectors. The Second Party alleged that the work
performed by them is of perennial in nauture. The Second
Party workers alleged that the First Party had not paid
wages on par with other employees nor given benefits.
5. It is alleged that while terminating the services of
the Second Party workers the First Party has not followed
proper procedure under the Industrial Disputes Act, 1947.
A Pigmy Deposit Collectors they used to collect the
deposits from the customers and fill in various registers.
Lastly the Second Party workers alleged to allow the
reference holding the termination effected is illegal,
improper and bad in law. Therefore, the Second Party
prayed to declare the termination effected by First Party
w.e.f. 14.08.1996 as illegal and improper and bad in law with
a direction to reinstate the Second Party workers with full
back wages.
6. The First Party by its written statement vide Exh.
C-7 denied all the material allegations made against it by
the Second Party workers. It is contended by the First
Party that reference is misconceived, baseless and
untenable. The First Party alleged that the Second Party
workers are not workmen within the meaning of section
2(s) of Industrial Disputes Act, 1947. The First Party
disputed the relationship of employer and employee
between the parties.
7. The First Party submitted that the reference is at
belated stage and the approach of the of the Second Party
workers is casual and careless. The First Party alleged that
there is delay of 5 years and 2 months in raising dispute.
The First Party alleged that it is engaged in the business
of banking and Second Party workers were collecting
deposits on commission basis. The First Party was not
having control over the working hours of Second Party
workers. The Madhu Sanchay Deposit scheme became
unremunerative and uneconomical. Therefore the First
Party terminated the scheme w.e.f. 14.08.1996. This
termination of agreement is misinterpreted by the Second
Party workers as termination of their services Hence, in
this background, First Party prayed for rejection of
reference with costs.
8. In this background of facts, following issues were
framed at Exh. O-3 to which I record my findings as under.
ISSUES
FINDINGS
1.
Whether the Second Party
In the affirmative.
proves that they were
workmen of First Party?
2.
Whether the Second Party
In the affirmative.
proves that they were
illegally terminated from
the services by First Party?
3.
Whether the Second Party
Partly in affirmative.
is entitled for reliefs claimed
in the statement of claim?
3 a.Whether the First Party proves
In the negative.
that there is inordinate delay
in raising the dispute?
4.
What Award?
As per final order.
REASONS
9. The Second Party has examined Shri Ravindra
Raghunath Ashtekar at Exh. U-11. The first party has
examined its Assistant General Manager, Shri Anilkumar
Vilas Kadre at Exh. C-24. The parties are relying on the
documents which they have produced on record.
ISSUE NO.1
10. The learned advocate for the first party has
submitted that Second Party workers have not pleaded
nature of duties performed by them. He has submitted that
the oral evidence which the Second Party workers have
led is without pleadings and the same cannot be
considered. He has submitted that the Second Party
workers were not under the control of the first party. He
has submitted that the authority of Hon'ble Supreme Court
in Indian Banks Association is not helpful to the Second
Party workers as in para 4 of the said authority, the
Hon'ble Supreme Court has not laid down the law that
pigmy agent is a workman as per Industrial Disputes Act,
¹Hkkx II—[k.M 3(ii)º
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6841
1947. He has submitted from the para 24 of the said
authority it can be seen that evidence had came before the
Tribunal that the deposit collectors are workmen within the
meaning of Industrial Disputes Act, 1947. He has submitted
that the Second Party workers were not workmen as the
working hours of the Second Party workers were not fixed
and they used to collect the pigmy deposits from the
customers as per their wish. He has submitted that they
used to decide as to from which pigmy account holder they
would first collect the Pigmy amount. He has submitted
that the Second Party workers used to collect pigmy
deposit from the pigmy account holders after banking
hours. He has submitted that bank used to give
commission to the Second Party workers on the basis of
pigmy deposits which they have collected during the
concerned period. He has submitted that the commission
amount which the Second Party workers used to receive
in every month used to differ month to month because of
variance in collection of pigmy deposits by the Second
Party workers.
The learned advocate relied on unreported decision
of Hon'ble Karnataka High Court in case of Syndicate
Bank V/s Vasanth Gururao Kusanur in Writ Petition No.
7057 of 2006. In the said authority, the Hon'ble Karnataka
High Court has followed the authority of Hon'ble Supreme
Court in Indian Bank's Association (Supra). Indirectly the
First Party is admitting that the Second Party workers are
workmen as per the provisions of Industrial Disputes Act,
1947.
In the authority of Indian Bank's Association
(Supra) the Hon'ble Apex Court observed that, "We also
accept the submission that the banks have not control
over the deposit collectors. Undoubtedly the deposit
collectors are free to regulate their own hours of work, but
that is because of the nature of the work itself. It would
be impossible to fix working hours for such deposit
collectors because they have to go to various depositors.
This would have to be done at the Convenience of the
depositors and at such times as required by the
depositors. If this is so, then not time can be fixed for such
work. However, there is control inasmuch as the deposit
collectors have to bring the collections and deposit the
same in the banks by the very next day. They have then
to fill in various forms, accounts, registers and passbooks.
They also have to do such other clerical work as the Bank
may direct. They are, therefore, accountable to the Bank
and under the control of the Bank.
We also see no force in the contention that Section
10 of the Banking Regulation Act prevents employment of
persons on commission basis. The proviso to section 10
makes it clear that commission can be paid to persons who
are not in regular employment undoubtedly, the deposit
collectors are not regular employees of the Bank. But they,
nevertheless, are workers within the meaning of the term
as defined in the Industrial Disputes Act. There is clearly
a relationship of master and servant between the deposit
collectors and the bank concerned."
Moreover, in reference strict rules of the Civil
Procedure Code and Indian Evidence Act are not
applicable. In the Statement of claim the Second Party
workers have pleaded that they were appointed through
branch managers as pigmy deposit collectors and they
have worked under the kind control of the First Party as
well as kind control of the branch manager. They have
pleaded that their duty was to collect maximum deposits
from the pigmy account holders. In the examination in chief
at para 4 and 5, the second party workers have stated
nature of duties performed by them.
11. Learned Advocate for the first party has
submitted that the Second Party workers have entered into
agreements and as per the terms and conditions laid down
in the agreements, the Second Party workers were only
authorized to collect deposits under Madhu Sanchay
Scheme. He has submitted that as per the agreement, there
was relationship of principal and agent between the
parties. He further submitted that the Second Party
workers were appointed only to collect deposits under the
Madhu Sanchay Scheme. They were no having any
involvement in any other activities of the First Party. He
has submitted that Madhu Sanchay Scheme became
unremunerative and uneconomical. He has submitted that
the First Party decided to terminate scheme and
accordingly the First Party terminated the scheme w.e.f.
14.08.1996. He has submitted that as a result of termination
of the scheme, the said agreement did not survive and
came to an end. He has submitted that the relationship of
Principal and Agent between First Party and Second Party
came to an end on 14.08.1996 as on the same day the
Madhu Sanchay Scheme came to an end.
In the Cross examination, the Second Party workers
at Exh. U-11 have admitted that when they started working
as pigmi agents, at that time, the Bank has entered into an
agreement/contract with them. They have further admitted
that as per the agreement they had worked till 13.08.1996
as pigmi agents. They also admitted that they used to
collect pigmi deposits under the Madhu Sanchay Scheme
and the Bank had closed the scheme on 14.08.1996. They
have further admitted that except working for Madhu
Sanchay Scheme, they were not doing any work of United
Western Bank.
6842
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
In the cross examination, at Exh. C-24, Shri,
Anilkumar Kadre has admitted that like Madhu Sanchay
Scheme at that time there were many other schemes
functioning in the First Party. He was unable to state as
to whether the Second Party workers have demanded the
work of collection of deposits in other schemes from the
First Party on 14.08.1996, and the same was not given. The
admissions given by the Second Party workers are not
helpful to the First Party as the First Party has failed to
produce on record the original agreements or the copy of
the agreements which were executed between the parties.
It is not the case of the First party that in the agreement
there is clause that if the Madhu Sanchay Scheme
automatically comes to an end, the agreement will also
automatically come to an end. The First Party has not
produced documentary evidence on record to show that
the Madhu Sanchay Scheme had became unremunerative
and uneconomical. It is not the case of the First Party that
due to the said scheme, the First Party has sustained loss.
It is not the case of the First Party that the Customers of
the said scheme had reduced. Only on the basis of
admission given by Second Party workers one cannot
come to the conclusion that contract/agreement was only
for Madhu Sanchay Scheme. The important document i.e.
contract/agreement is not brough before the Tribunal for
the reason best known to the First Party. It is not the case
of the First Party that is has destroyed the contract/
agreement executed between the First Party and the
Second Party workers. The First Party has not given any
notice or order to Second Party workers on 14.08.1996 that
as per the agreement/contract, the relationship of principal
and agent between the parties have come to an end.
Considering the admissions given by the Assistant
General Manager of the First Party as at that time many
other schemes were functioning like Madhu Sanchay
Scheme, one cannot say that there was no work available
with the First Party after closure of the Madhu Sanchay
Scheme. The First Party being a banking Industry, it
cannot be said that there was no work available for pigmy
agents to collect deposits from the customers.
From the above discussion and as per the ratio laid
down by Hon'ble Supreme Court in Indian Bank's
Association (Supra), I come to the conclusion that the
Second Party workers are workers and there was
relationship of employer and employee between the
parties. Hence, I answere Issue No.1 in the affirmative.
ISSUE No. 3-A
12. The learned advocate for the First Party
submitted that Second Party workers were not at all
espousing the alleged cause of action which arose after
alleged termination of the Second Party workers. He has
submitted that the Second Party workers were waiting and
watching for the decision of Hon'ble Supreme Court in
Indian Bank's Association (Supra). He has submitted that
the Second Party workers were/are not permitted to enjoy
the fruits which came from the decision of Indian Bank's
Association (Supra). He has submitted that the Second
Party workers have not explained delay in raising their
disputes in the statement of claims. He submitted that
there is delay of five years and two months in raising
disputes and same is not explained. He submitted that the
Second Party workers came to know about the decision on
Indian Bank's Association (Supra) and thereafter Second
Party workers raised the dispute before the First Party. He
has submitted that when the Second Party workers for the
first time had raised the dispute, at that time, dispute had
became stale and same was not in existence.
In support of his submissions, he has relied upon the
decision in case of Bhoop Singh V/s Union of India
reported in 1993 I L.L.J.260 (S.C.) The Hon'ble Supreme
Court has observed that It is expected of a Government
servant who has a legitimate claim to approach the Court
for the relief within a reasonable period, assuming no fixed
prayer of limitation applies.
The Hon'ble Supreme Court further observed that,
"This is more so in service matters where vacancies are
required to be filled promptly. A person cannot be
permitted to challenge the termination of his service after
a period of twenty two years, without any cogent
explanation for the inordinate delay, merely because other
similarly dismissed had been reinstated as a result of their
earlier petitions being allowed."
In that matter, the Delhi Armed Police participated in
a mass agitation on April 14, 1967. The services of the
agitating police constables were terminated on that
account without specifying that reason for the termination.
The dismissed constables who were not taken back
inservice filed Writ Petitions in Delhi High Court in 1969
and 1970 which were allowed by Delhi High Court.
Subsequently, some other constables also filed Writ
Petitions in Delhi High Court which too were allowed.
Another set of similarly dismissied constables then filed
Writ Petitions in the Delhi High Court challenging the
termination of their services contending that their claim
was identical with that of the Petitioners in the Writ
Petitions filed in 1978. These Writ Petitions were
transferred to Central Administrative Tribunal which held
granted the same relief as was granted to the Petitioners
in the Writ Petitions filed in the High Court in 1978. The
Delhi Administration preferred appeals in Hon'ble Supreme
Court against the decision. Those appeals were dismissed.
The petitioner Bhoop Singh was terminated on
03.08.1967 and he had filed O.A. No.753 of 1989 in the
Central Administrative Tribunal praying for reinstatement
¹Hkkx II—[k.M 3(ii)º
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6843
in service and all consequential benefits on the ground
that his case is similar to that of the Police Constables
who had succeeded in the earlier rounds of litigation. The
Tribunal had rejected the Petitioner's application on the
ground that it is highly belated and there is no cogent
explanation for the inordinate delay of twenty two years
in filing the application on March 13, 1989 after
termination of the Petitioner's service in 1967.
In the matter before Hon'ble Supreme Court, the
Petitioner had knowledge that colleagues were reinstated
in the year 1969 and 1970. After knowing fully well the
Petitioner had kept quiet for twenty two years. In that
matter, the Petitioner knew in the year 1969 as to what was
the remedy available to him. In the present matter the
Second Party workers had no knowledge that they come
under the definition of workman. After having knowledge
about their right they had raised dispute.
The Second Party workers are not Government
servants. The First Party is a Banking industry and Second
Party workers are workmen. The Second Party workers
have immediately raised dispute after 5 years and 2
months. The reason behind the delay to raise the dispute
is that Second Party workers waited for the decision of
Hon'ble Supremem Court. The delay of 5 years and 2
months cannot be called as inordinate delay. No Court has
defined as to how to calculate and how to consider
reasonable period for raising a dispute. The reasonable
period depends upon case to case.
Hence, with due respect to the Hon'ble Supreme
Court, the said authority is not helpful to First Party.
13. The learned advocate for the First Party has
relied upon the authority in case of S.S. Rathore V/s. State
of Madhya Pradesh reported in 1990 I LAB.I.C. 398. In this
matter the Hon'ble Supreme Court observed that, "We are
also of the view that the cause of action shall be taken to
arise not from the date of the original adverse order but on
the date when the order of the higher authority where a
statutory remedy is provided entertaining the appeal or
representation is made and where no such order is made
though the remedy has been availed of a six months' period
from the date of preferring of the appeal or making of the
representation shall be taken to be the date when cause
of action shall be taken to have first arisen. We however,
make it clear that this principle may not be applicable when
the remedy availed of has not been provided by law.
Repeated unsuccessful representations not provided by
law are not governed by this principle."
The Hon'ble Supreme Court further observed that,
It is appropriate to notice the provision regarding limitation
under S.21 of the Administrative Tribunals Act. Sub-
Section (1) has prescribed a period of one year for making
of the application and power of condonation of delay of
a total period of six months has been vested under sub-
section (3). The Civil Court's jurisdiction has been taken
away by the Act and, therefore, as far as Government
Servants are concerned. Article 58 may not be invocable
in view of the special limitation. Yet, suits outside the
purview of the Administrative Tribunals Act shall
continue to be governed by Article 58.
In the matter before Hon'ble Supreme Court the
plaintiff was a Government Servant of Madhya Pradesh
and he was dismissed from services by the Collector on
13.01.1966. He preferred an appeal to the Divisional
Commissioner and that appeal was dismissed on
31.08.1966. The order of dismissal of the appeal was
communicated to the plaintiff on 19.09.1966. The plaintiff
gave notice under Section 80 of the Code of Civil
Procedure on 17.06.1969 and filed his suit on 30th
September 1989, asking for a declaration that the order of
dismissal was inoperative and he continued to be in
service. The suit which was filed by the plaintiff was
dismissed in the Courts below on acceptance of the
defence plea that plaintiff had not filed suit within three
years from the date when the cause of action first arose,
as required under Art 58. of the First Schedule of the
Limitation Act, 1963.
With due respect to the Hon'ble Supreme Court, the
said decision is not helpful to the first party as the
provisions of Limitation Act are not applicable to the
Reference under the Industrial Disputes Act, 1947.
Moreover the said ratio is laid down with respect to suits
outside the purview of the Administrative Tribunals Act
not with respect to Reference.
14. The learned advocate for the First Party has
relied upon the unreported authority of Hon'ble Karnataka
High Court in case of Syndicate Bank V/s. Vasanth
Gururao Kusanur in Writ Petition No. 7057 of 2006. While
deciding the Writ Petition the Hon'ble Karnataka High
Court has followed the ratio laid down by Hon'ble
Supreme Court in cases of
(I) 2000 SCC (L & S) 283—Nedungadi Bank Ltd. Vs.
K.P. Madhavankutty and others.
(II) (2006) 5 SCC 433 U.P. State Road Transport
Corporation Vs. Babu Ram.
(III) 2007 AIR SCW 2882—Dharappa Vs. Bijapur
Cooperative Milk Producers Societies Union Ltd.
In the matter before the Hon'ble Karnataka High
Court the Respondent was terminated on 26.08.1991 and
he has raised the dispute on 12.12.2001. The case of the
Bank was that by the time the Respondent had raised the
dispute, it had become stale and did not exist between the
parties.
6844
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
(I) 2000 SCC (L & S) 283—Nedungadi Bank Ltd. Vs. K.P.
Madhavankutty and others.
In the matter before Hon'ble Supreme Court the
Respondent had admitted that he had committed
misappropriation, expressed unconditional regret and
prayed the punishment of dismissal be not imposed on
him. The Respondent was dismissed from the services
from 11 August, 1972. He filed appeal before the Board of
Directors of Bank. His appeal was dismissed by order
dated 3.01.1973. He got whatever benefits were due to him
under the rules framed by the Bank. Then, after a period
of seven years he served a notice on the Bank contending
that he was discriminated as two other employees of the
Bank under same situation were reinstated in the service
of the Bank. The Respondent had started to raise the
dispute before appropriate forum. The Respondent moved
application before Assistant Commissioner of Labour of
the Central Government for the relief. The Assistant
Commissioner of Labour held that there was no scope for
formal proceeding. The Respondent filed Writ Petition. The
Hon'ble High Court directed the Assistant Commissioner
of Labour to submit its report u/s. 4(2) of the Act. The
same was sent to the Hon'ble High Court. The Central
Government declined to make reference u/s. 10 of the Act.
The Respondent again filed Writ Petition in Hon'ble High
Court, which was disposed of with a direction to the
Central Government to re-examine the matter against
which the Bank came before the Hon'ble Supreme Court.
(II) (2006) 5 SCC 433 U.P. State Road Transport
Corporation Vs. Babu Ram.
The Respondent and others were terminated from
the service in the year 1983. The Dy. Labour Commissioner
referred the dispute by its order dated 29.8.1998. The
Respondent had raised the claim after 15 years. The
Hon'ble Supreme Court had followed the ratio laid down
in Nedungadi Bank Ltd. (Supra).
(III) 2007 AIR SCW 2882—Dharappa Vs. Bijapur
Cooperative Milk Producers Societies Union Ltd.
Section 10(4A) provides an alternative procedure to
seek redressal in regard to an order of termination, by
making an application directly to the Labour Court, within
six months from the date of communication of the order of
termination, without the intervention or assistance of an
employees union and without having to approach the
appropriate Government for making a reference. Such a
provision cannot be interpreted as reviving stale and
dead claims nor as enabling a workman to seek remedy
beyond six months from the date of communication except
to the extent expressly provided for. The true and proper
interpretation of Section 10(4A) is that an individual
workman can apply to the Labour Court for adjudication
of the dispute relating to an order of discharge/ dismissal/
retrenchment/ termination within six months from the date
of communication to him, of such order of termination.
In that matter the appellant was terminated with
effect from 01.03.1980. He made an application under
Section 10(4A) of Industrial Disputes Act, 1947 on
04.10.1988 before Labour Court, Hubli for declaration that
his termination be declared as null and void. In Industrial
Disputes Act there is Karnataka Amendment to Section 10
by way of insertion of Sub-Section (4A) with effect from
07.04.1988. The said sub-Section states that workman
should directly approach the Labour Court within six
months from the date of communication of the order.
With due respect to the Hon'ble Supreme Court and
Hon'ble Karnataka High Court the said authorities are not
helpful to First Party. The First Party has not challenged
the order of reference passed on 27.08.2002. The First
Party is now estopped from raising the contention that
Second Party workers were not diligent in taking action
when the alleged cause of action for the dispute arose
when the Second Party workers were allegedly terminated
on 29.08.1996. The First Party has not specifically pleaded
in its written statement that the dispute had become stale
and the same did not exist when the Second Party workers
have sent approach notice on 08.10.2001 to the First Party.
The First Party has not produced on record a copy of
reply to show that it had given reply to the approach
notice of the Second Party workers. Nor it is the case of
the First Party that it had given reply to the approach
notices of the Second Party workers. The Second Party
workers have not received any compensation amount
from the First Party. The First Party has not stated and
made clear in its written statement as to whether it had
given reply to the statement of justification before
Conciliation Authority. There is no material on record to
come to the conclusion that the First Party has stated
before the Conciliation Authority that the Second Party
workers were not diligent in espousing the alleged cause
of action and the dispute had became stale and same is
not existence. The Second Party workers have produced
on record the approach notice dated 08.11.2001, which
shows that they have raised dispute within a reasonable
time, after the decision of Hon'ble Supreme Court in Indian
Bank's Association (Supra). The provisions of Limitation
Act are not applicable to the present references which are
referred to this Tribunal under the provisions of the
Industrial Disputes Act, 1947. Delay in raising dispute and
dispute becoming stale or coming to an end are two
different issues to each other. Delay in raising dispute
means that dispute was in existence when it was
raised.The defence raised by First Party is devoid of merit
as the First Party has not proved as to what prejudice was
caused to it due to delay in raising dispute. The plea of
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6845
delay which is raised by First Party is required to be
proved by showing real prejudice caused to it and not by
real hypothetical. The Second Party workers were
terminated all of a sudden on one fine day morning without
giving any intimation to them. The Second Party workers
are the pigmy agents.Their income was not fixed. In these
circumstances whether it was expected from them to raise
their dispute immediately against the First Party or first
they should make arrangement for their family's survival.
15. In the decision of Hon'ble Supreme Court in case
of Ajiab Singh V/s. Sirhind C.-Op. Marketing Cum
Processing Service Society Ltd. and Anr. reported in
1999 I CLR 1068 It is observed that the, Industrial
Disputes Act, 1947-S. 10-Limitation Act, 1983-Art. 137-
Applicability to Industrial Disputes Act, 1947-Appellant
was dismissed from service on 16.07.1974-He raised
demand on 08.12.1981-In consequent reference to Labour
Court, Respondent approached High Court mainly on the
ground of delay in claiming reference-Respondent having
succeeded in High Court on the ground that the appellant
had slept over for years in raising demand, this appeal is
filed-Supreme Court after taking into consideration the
objectives in enacting Industrial Disputes Act, 1947, the
case law and the fact that Limitation Act is not made
applicable to the Industrial Disputes Act, 1947, held that
relief under the Act cannot be denied to the workman
merely on the ground of delay in Limitation Act is not
applicable and in case delay is established, the Labour
Court or Tribunal can mould relief as to back wages etc.
16. In the authority of Hon'ble Supreme Court in
case of Kuldeep Singh V.G. M. Instrument Design
Development and facilities Center and Anr. reported in
2011 I CLR 5, observed that though the law does not
prescribe any time limit for appropriate Government to
exercise its power u/s. 10 of Industrial Disputes Act, 1947,
the said power is to be exercised reasonably and in a
rationale manner.
From the above discussion, I come to the
conclusion that first Party has not proved that there is
inordinate delay on the part of Second Party workers to
raise dispute before the first party. The delay of 5 years and
2 months caused by Second Party workers to raise the
dispute is not an unreasonable delay. Moreover, in view
of the ratio laid down by Hon'ble Supreme Court in Ajaib
Singh V/s. Sirhind Co.-Op. Marketing Cum Processing
Service Society Ltd. and Anr. Reported in 1999 I CLR
1068 and Kuldeep Singh V. G.M. Instrument Design
Development and facilities Center and Anr. reported in
2011 I CLR 5, the Tribunal cannot reject the relief in favor
of Second Party workers, if they prove illegal termination.
Hence, I answer Issue No. 3-A in the Negative.
ISSUE NO. 2
17. Undisputedly, the Second Party workers started
to work as pigmy agents in Madhadwara Road Branch of
First Party from 12.12.1991 onwards till 14.08.1996. In the
evidence at Exh. U-11, the Second Party workers have
deposed that they have worked and rendered more than
240 days service in every year. The witness of First Party
Shri Anilkumar Kadare in his cross-examination at Exh. C-
24 has admitted that the record of collection of deposits
and record to be maintained by Second Party workers of
deposits is available in Mahadwar Branch of United
Western Bank. He further admitted that the Second Party
workers used to work on an average 26 days in a month
and record of their working is in Mahadwar branch. He has
also admitted that from 1996 onwards the Second Party
workers were working with the First Party and on
14.08.1996 the Bank had stopped to give work of Madhu
Sanchay Scheme to Second Party workers. In these
circumstances, there was no difficulty for the Bank to
produce on record the documents in respect of Second
Party workers about collection of deposits and the
payment/commission which was made by the First Party
to the Second Party workers towards their collection and
the number of days they have worked. In the cross-
examination, the witness of First Party has avoided to give
answers as to whether the Bank had given any written
notice to the Second Party workers while stopping work
of Second Party workers. He has avoided to give answer
whether the First Party Bank had given compensation
amount, notice pay in lieu of notice after 14.08.1996. He
has admitted that from 14.08.1996 except Madhu Sanchay
Scheme other schemes were in existence in the Bank. In
the cross-examination Second Party had given suggestion
to the said witness that the workers had demanded work
of collection of deposit in other scheme the same was not
given.
The statement of justification which is given by the
Second Party workers to the Assistant Commissioner of
Labour on 28.10.2001 at Exh. U. 18, which also states that
they have worked for more than 240 days in every year.
The Second Party workers were collecting pigmy amount
from the pigmy account holders till 13.08.1996. From this
fact inference can be drawn that the Second Party workers
have continuously worked for more than 240 days during
a period of preceding 12 months from 13.08.1996. I do not
see any reason to disbelieve the evidence of the Second
Party workers on the fact that they had continuously
worked for more than 240 days during a period of
preceding 12 calendar months from 13.08.1996.
From the above evidence, it is clear that First Party
Bank had not followed the procedure prescribed under
25-F, G and H of the Industrial Disputes Act, 1947 nor it
6846
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
followed due process of law while not allowing the
Second Party workers to work, which amounts to illegal
termination. Hence, I answer Issue No. 2 in the affirmative.
ISSUE NO. 3
18. For the sake of arguments let us consider that
the First Party had retrenched the Second Party workers
as the Madhu Sanchay scheme was closed and no work
of collection of desposits was available with the First
Party. In that case, it was necessary for the First Party to
follow the previsions of section 25-F, G and H of the
Industrial Disputes Act, 1947 at the time of retrenchment
of Second Party workers. On the contrary, the First Party
neither in its written statement alleged that it has
retrenched the Second Party workers nor in its evidence
it has anywhere stated that the Second Party workers were
retrenched by it by following procedure laid down in
sections 25-F, 25-G and 25-H of the Industrial Disputes
Act, 1947. It is not the case of the First Party that it has
issued retrenchment notice, or displayed seniority list etc.
while putting an end to the services of the First Party.
19. The Second Party workers have stated that they
had worked for more than 240 days continuously in every
year. They have stated that in every year they had
rendered more than 240 days continuous service.
Undisputedly, the First Party did not allow the Second
Party workers to work from 14.08.1996 onwards. Therefore,
it was obligatory on the part of the First Party to follow
due process of law while putting an end to the service of
the Second Party workers.
From the above discussion it has become
abundantly clear that the First Party had orally terminated
the Second Party workers on 14.08.1996 without
following due process of law. The Second Party workers
had given the approach notice to First Party on
08.10.2001 and had given statement of justification to the
Assistant Commissioner of Labour of Central
Government on 23.10.2001. The Assistant Commissioner
of Labour had referred the reference to this Tribunal by
passing the order dated 27.08.2002. The Second Party
workers have not brought on record the amount of
commission which they used to receive from the First
Party. They have not brought on record any evidence on
the point as to whether they remained unemployed after
14.08.1996. Both the parties have taken the references
very lightly. The age of the second Party workers is
above 58 years. It will not be proper to give relief of
reinstatement to the Second Party workers after a period
of 17 years. In these circumstances, it is necessary to
mould the relief of reinstatement and back wages by way
of giving compensation. Hence, I answer Issue No. 3
accordingly and proceed to answer the reference partly
in affirmative.
AWARD
(I) Reference is answered partly in affirmative.
(II) Each of the Second Party worker in Reference (IT)
Nos. 3 to 6 of 2002 is entitled to an amount of
compensation of Rs. 50,000/- each in liew of
reinstatement and back wages.
(III) Award be drawn accordingly.
(IV) Copy of Award be kept in Reference (IT) Nos. 4
to 6 of 2002
Place: Kolhapur.
Date: 24.04.2013
K.R. PETHKAR, Presiding Officer
ubZ fnYyh] 29 uoEcj] 2013
dkñvkñ 2652.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj LVsV cSad vkWQ
bafM;k ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/kdj.k] tcyiqj ds iapkV lanHkZ la[;k 243@97 dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 29@11@2013 dks izkIr gqvk FkkA
[lañ ,y&12012@159@96&vkbZ vkj ¼ch½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 29th November, 2013
S.O. 2652.— In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref. 243/97 of the
Cent. Govt. Indus. Tribunal-cum-Labour Court, Jabalpur
as shown in the Annexure, in the industrial dispute
between the management of State Bank of India, and their
workmen, received by the Central Government on 29/11/2013.
[No. L-12012/159/96-IR(B)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/243/97
PRESIDING OFFICER: SHRI R.B. PATLE
Dy. General Secretary,
SBI Staff Congress (INTUC),
5/235, Pragati Stage Bank Staff Colony,
Vikas Nagar,
Jabalpur
...Workman/Union
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6847
Versus
Dy. General Manager,
Zonal Office,
State Bank of India,
Marhatal,
Jabalpur
...Management
AWARD
(Passed on this 23rd day of October 2013)
1. As per letter dated 19-8-97 by the Government of
India, Ministry of Labour, New Delhi, the reference is
received. The reference is made of this Tribunal under
Section - 10 of I.D. Act, 1947 as per Notification No. L-
12012/159/96-IR(B). the dispute under reference relates to:
"Whether the action of the management of State
Bank of India, Umaria Branch in considering Shri
Chandrashekhar, Part time sweeper as willingly left
the job after issue of a notice dated 26-12-94 and
payment of wages at the rate of 1/3rd of the regular
wages althoug employed for more than 13 hours a
week is justified? If not, what relief the concerned
workman is entitled?"
2. After receiving reference, notices were issued to
the parties. Ist party General Secretary of the Union filed
statement of claim at page 3 to 7. The case of workman is
that Central Govt. has referred dispute for adjudication.
That workman Chandra Shekhar was working as Sweeper
in State Bank of India Umaria Branch from 5-6-92. He was
paid 1/3rd salary. From 17-3-94, he was given permanency
status. The post was vacant. The wife of workman
Chandrashekhar was suffering from heard disease. To look
after her treatment, he was remaining absent from duty. It
is also alleged that while working at Umaria, he was
insulted and abused by co-workers. He had reported to the
management through Union but no action was taken. He
submitted report to police but no action was taken. That
because of insulting treatment and illness of wife, the
workman remained absent from duties. He had requested
for transfer to Jabalput because of his illness and insulting
treatment at Umaria. His request was not considered.
Because of difficulties, workman remained absent from
duty, his services were discontinued without paying
retrenchment compensation, without holding enquiry.
That there are no rules of voluntary retirement of the
employee. On such ground, workman is praying for his
reinstatement with consequential benefits. he was alleged
that termination of his service is inviolation of Saction
25-F, G of I.D. Act.
3. IInd party management filed Written Statement at
Page 19 to 35. Preliaminary objection is raised by IInd party
that Statement of Claim is filed by Shri N.K. Patel claiming
General Secretary of State Bank of India Staff Congress,
Jabalpur. He is a dismissed employee of the Bank. He is
not competent to represent the employee. The workman
raised dispute claiming full salary and direction to the
management to take action against Shri Alok Kumar
Bannerjee. The conciliation proceedings resulted in failure.
The failure report was submitted to Appropriate
Government and dispute has been referred. The claim of
Ist party workman is false. That Ist party employee was
initially employed on daily wagers in SBI Jabalpur during
the period from 26-8-85 to 8-11-85 and 11-11-85 to 5-12-85.
He was given opportunity for selection for permanent
employment in the Bank. He was selected. He was
appointed on 1/3rd salary. He was posted at Umaria
branch as Sweeper. That Ist party employee accepted
terms and conditions of employment communicated to him
on 25-5-92. The work of workman was to clean the Bank
before commencement of working hours. His working
hours was from 7 AM to 9AM. He was confirmed as part
time sweeper vide order dated 5-12-92. He had submitted
application. The Branch Manager Umaria branch for his
transfer to Jabalpur on ground of illness and financial
conditions. He also alleged of insulting treatment by other
persons. His explanation was called on 6-12-94. Thereafter
Ist party workman submitted report to the Branch
Manager that Head clerk of the Bank Shri Alok Bannerjee
had misbehaved with him using filthy language. IInd
party submits that Ist party was making false allegations
in order to press his transfer to Jabalpur.
4. IInd party further submits that workman remained
absent without application and notice was issued to him
to join duty within 30 days. He had failed to join duty. Ist
party employee was playing tricks to pressurize IInd party
for his transfer to Jabalpur. The allegation of Ist party
about illegal termination of his service or violation of
Section 25-F of I.D. Act are denied. The contentions of Ist
workman are denied. On such ground, IInd party for
rejection of claim of workman.
5. Ist party Union filed rejoinder at Page 37, 38
reiterating his contentions in Statement of Claim. He
contended that he had joined in SBI as regular employee
on 30-6-92. His services were discontinued from 26-9-94.
His duty hours were from 7 to 10 AM but he was required
to work for whole day. He had submitted application for
his transfer to Jabalpur but it was considered by
management. That he was insulted in name of caste. Shri
Alok kumar Bannerjee was calling him Mehattar etc. Once
he was beaten closing the doors. Said incident was flashed
in newspaper. It was the reason, he was terminated from
service.
6. Considering pleadings on record, the points which
arise for my consideration and determination are as under.
My findings are recorded against each of them for the
reasons as below:—
(i)
Whether the action of the
In Affirmative
management of State Bank
of India, Umaria Branch in
6848
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
considering Shri Chandra-
shekhar, Part time sweeper
as willingly left the job after
issue of a notice dated
26-12-94 and payment of
wages at the rate of 1/3rd of
the regular wages although
employed for more than 13
hours a week is legal?
(ii)
If not, what relief the
Relif prayed by
workman is entitled to?''
workman is
rejected.
REASONS
7. Workman is challenging his discontinuation from
service in pursuance of notice dated 26-12-98 demanding
1/3rd wages to him. However his statement of claim is
silent about payment of 1/3rd wages. IInd party
management submits that initially Ist party employee was
working on daily wages in Jabalpur branch. He was
selected and appointed as part time sweeper at 1/3rd
salary.He was made permanent part time sweeper as per
order dated 5-12-92. Parties are in dispute about voluntary
retirement given to workman as per notice dated 26-12-94.
Workman and management have filed evidence on
affidavit. Various documents are produced by both the
parties.
8. Ist party workman Chandrashekhar in his affidavit
of evidence has stated that his services re terminated
without notice w.e.f. 26-12-94. That he is resident of
Jabalpur, ailing wife was residing at Jabalpur on ground of
illness of wife, he requested for transfer to Jabalpur but
was not considered by management. Because of illness of
wife, he could not regularly attend his duty. His absence
from duty was not deliberate. He also says he belongs to
SC and was being ill treated by case Hindus due to
concept of untouchability prevailing in the area. In his
cross-examination, he said that he was working as daily
wage employer during 26-8-85 to 8-11-85, 11-11-85 to
5-12-85. For regular appointment, he was called for
interview. He was selected as part time employee on 1/3rd
salary. His pleadings are silent about any grievance about
payment of 1/3rd salary.
9. Management filed affidavit of evidence of its
witness Shri M.L. Dewangan. Witness of the management
has stated that initially the Ist party was working on daily
wages in 1985. Thereafter he was appointed as part time
employee in 1/3rd salary. The terms and conditions of
employment were accepted by workman. Next he states
that on 11-6-94, workman requested for his transfer to
Jabalpur on ground of illness of his wife. He was
remaining absent from duty, his explanation was called.
The matter was reported to Asstt. General Manager. Ist
party workman had submitted false report against
Shri Alok Kumar Bannerjee about misbehavior and using
filthy language etc. The explanation is called from
Shri Alok Bannerjee. He denied the allegation. In his cross-
examination, management's witness says that he was not
working in the branch where Ist party workman was
working. From 21-7-08, he was working in Umaria branch.
Ist party was initially working on daily wages. Then he
was appointed as permanent employee. Workman was
terminated from service because of his absence from duty.
Except notice issued to him, no other action was taken in
the matter.
10. Various documents are produced by workman.
Exhibit W-1 is notice dated 25-5-95 calling upon the
workman to produce medical certificate about his illness
and the bills about purchasing medicine. If the documents
are not produced, he will be deemed voluntary retired after
one month. Exhibit W-2 is the letter of appointment of
workman at Umaria Branch dated 5-6-92. Exhibit W-3 is
letter of terms and conditions for appointment, his services
were transferable.The documents Exhibit W-5 is letter of
appointment as part time sweeper. Exhibit W--6 is letter of
permanent appointment on 1/3rd salary as permanent part
time sweeper. Exhibit W-7 is certificate issued by the
management regarding his appointment on 1/3rd salary,
basic Rs. 271.67 with DA and HRA. Exhibit W-8 is
nomination form filled by Ist party employee in presence
of witnesses. Exhibit W-9 is letter given by Ist party
employee for his transfer to Jabalpur on ground of
insulting treatment.
11. Management produced document Exhibit M-1 is
letter of terms and conditions for appointment. Exhibit
M-2 appears part of Exhibit M-1 itself. Exhibit M-3 is letter
of appointment as part time sweeper on 1/3rd salary of
workman. Exhibit M-4 is order of permanent appointment
of part time sweeper on 1/3rd salary of workman. Exhibit
M-5 is complaint submitted by employee regarding
insulting treatment. Exhibit M-6 is letter given by
management calling details of the insulting treatment.
Exhibit M-7 is copy of application submitted by workman
for his transfer to Jabalpur. Exhibit M-8 is copy of
complaint to management of SBI. Exhibit M-9 is letter
given by Asstt. General Manager rejecting request for his
transfer. Exhibit M-10 is the telegram sent by workman
informing management that he will resume duty after
recovery from illness. M-11 is notice given by management
for production of medical certificate, medical bills
regarding his illness. In case of default, it will be deemed
that he is voluntarily retired. M-12 is copy of complaint
submitted to management. M-13 is copy of memorandum.
M-14 is report submitted by Branch Manager regarding
absence of workman. Exhibit M-15 is letter sent by Branch
Manager dated 30-6-94 recommending his transfer to other
place. Document Exhibit M-16, 17 are complaints
submitted by workman regarding insulting treatment to
him.
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6849
12. Notice Exhibit M-18 was issued to workman
asking his explanation for production of medical certificate
otherwise administrative action would be taken against
him. M-19 is report submitted by Branch Manager
regarding absence of workman. M-20 is explanation
submitted by Alok Kumar Bannerjee. M-18(A) was issued
to workman calling his explanation with 3 days. Exhibit
M-22 is postal is postal receipt. M-18(b) is notice issued
to workman on 21-11-94 asking him to resume duty within
30 days. His attention was pointed out that he was absent
from duty from 20-9-94. If he fails to resume his duty
within 30 days, it will be deemed that he is voluntary
retired. He would be paid one month's pay. Copy of
bipartite settlement is filed. Learned counsel for Ist party
pointed out my attention to para-17 of the settlement. The
relevant verbatim of said clause is reproduced.
"Voluntary Cessation of Employment by the employee.
The earlier provisions relating to the voluntary cessation
of employment by the employee in the earlier settlements
shall stand substituted by the following:
(a) When an employee absents himself from work for
a period of 90 or more consecutive days, without
submitting any application for leave or for its
extension or without any leave to this credit or
beyond the period of leave sanctioned originally
subsequently or when there is a satisfactory
evidence that he has taken to employment in
India or when the management is reasonably
satisfied that he has no intention of joining duties,
the management may at any time thereafter give a
notice to the employee at this last known address
calling upon him to report for duty within 30 days
of the date of the notice, stating interalia the
grounds for coming to the conclusion that the
employee has no intention of joining and
furnishing necessary evidence, where available.
Unless the employee reports for duty within 30
days of the notice or gives an explanation for his
absence within the said period of 30 days
satisfying the management that he has not taken
up another employment or avocation and that he
has no intention of not joining duties, the
employee will be deemed to have voluntarily
retired from the bank's service on the expiry of the
said notice. In the event of the employee
submitting a satisfactory reply, he shall be
permitted to report for duty thereafter within 30
days from the date of the expiry of the aforesaid
notice without prejudice to the bank's right to take
any action under the law or rules of service."
13. Despite of notice Exhibit M-18 (b) workman
failed to join duty. He had not produced medical
certificates or medical bills regarding his illness. Learned
counsel for IInd party Mr. Shroti relies on ratio held in—
"Case of Punjab and Sind Bank and others versus
Sakattar Singh reported in 2001(1) Supreme Court
Cases 214. Their Lordship of the Apex Court
considering unauthorised absence for 90 or more
consecutive days beyond sanctioned period of
leave. Under Clause 16 of IV Bipartite Settlement,
termination of service in such circumstances held is
not a punishment of misconduct, but only a
recognition of the realities of the situation and
doesnot result in violation of principles of natural
justice. Therefore no domestic enquiry is necessary.
Respondent proceeding on sanctioned leave for
three days begining 16-8-93 but remaining absent
unauthorisedly for continuous period of 190 days.
Appellant Bank issuing 3 letters to him directing
him to rejoin duty. Bank issuing notice under clause
16 dated 12-3-94 seeking explanation for
unauthorised absence. On 4-4-94 respondent
submitting joining report to Branch manager, who
not accepting the same, Bank passing order or
termination dated 18-4-94. Their Lordship upheld the
order holding that the High court erred in holding
that order of termination was a nullity because of
violation of rules of natural justice.
In case of Syndicate Bank versus General
Secretary, Syndicate Bank Staff Association and
another reported in 2000(5) Supreme court
Cases 65. Their Lordship dealing with departmental
enquiry requirement on facts held stood satisfied
even without holding a departmental enquiry. Bank
employee unauthorisedly absenting himself from
work for a period exceeding the prescribed limit of
90 days Bank in terms of Bipartite settlement
serving notice on him by registered post, requiring
him to submit his explanation and to join work
within the prescribed time limit of 30 days. The
notice further stating that otherwise he would be
deemed to have retired. Notice though sent on
correct address, received back with the
endorsement refused. In such circumstances the
Bank held rightly treated the employee to have
voluntarily retired from service. Hence termination
of his service without holding any departmental
enquiry held was not violative of principles of
natural justice."
In present case, ratio held in both cases squarely
applies. Ist party remains absent without application. Even
after notice, he did not submit medical bills, medical
certificate. He did not join even as per notice Exhibit
M-18 given to him. Case is fully covered under Clause 17
6850
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
of Bipartite Settlement reproduced above. Therefore I
record Point No. 1 in Affirmative.
14. In the result, award is passed as under:—
(1) Action of the management of State Bank of
India, Umaria Branch in considering
Shri Chandrashekhar, Part time sweeper as
willingly left the job after issue of a notice dated
26-12-94 and payment of wages at the rate of
1/3rd of the regular wages although employed for
more than 13 hours a week is proper.
(2) Relief prayed by workman is rejected.
R. B. PATLE, Presiding Officer
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New Delhi, the 29th November, 2013
S.O. 2653.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 6/2002)
of the Industrial Tribunal, Kolhapur as shown in the
Annexure, in the industrial dispute between the
management of The United Western Bank Ltd. and their
workmen, received by the Central Government on
29/11/2013.
[No. L-12012/177/2002-IR (B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE PRESIDING OFFICER, INUDSTRIAL
TRIBUNAL, KOLHAPUR
Reference (IT) No. 3 to 6 of 2002
Reference (IT) No. 3 of 2002
The United Western Bank Ltd.,
Raviwar Peth, Satara,
Thru. Its General Manager,
Industrial Development Bank of India,
WTC Complex, Cuff Parade, Mumbai.
...First Party
And
Shri Ravindra Raghunath Ashtekar,
2804, A Ward, Sarnaik Wada,
Kolhapur.
...Second Party
Reference (IT) No. 4 of 2002
The United Western Bank Ltd.,
Raviwar Peth, Satara,
Thru. Its General Manager,
Industrial Development Bank of India,
WTC Complex, Cuff Parade, Mumbai.
...First Party
And
Shri Mahesh Prabhakar Bavadekar,
2931, A Ward, Mahadwar Road,
Kolhapur.
...Second Party
Reference (IT) No. 5 of 2002
The United Western Bank Ltd.,
Raviwar Peth, Satara,
Thru. Its General Manager,
Industrial Development Bank of India,
WTC Complex, Cuff Parade, Mumbai.
...First Party
And
Shri. Mukund Ganesh Kulkarni
2663, A Ward, Diwan Bol,
Kolhapur.
...Second Party
Reference (IT) No. 6 of 2002
The United Western Bank Ltd.,
Raviwar Peth, Satara
Thru. Its General Manager,
Industrial Development Bank of India,
WTC Complex, Cuff Parade, Mumbai.
...First Party
And
Shri Prakash Baburao Pawar
23/1, Lay out No. 3, Baba Jarag Nagar,
Kolhapur.
...Second Party
CORAM: SHRI K.R. PETHKAR, PRESIDING OFFICER
Appearances: Shri S.R. Rane, advocate for the First Party.
Shri D.N. Patil, advocate for the Second
Party workers.
COMMON JUDGMENT
(24.04.2013)
1. Central Government by orders dated 27.08.2002 in
exercise of powers conferred under clause(d) of Sub-
section (1) and Sub-Section (2A) of Section 10 of
Industrial Disputes Act, 1947 referred these disputes
between the above named parties for adjudication to this
Tribunal in respect of the action of the management of
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6851
First Party in terminating/discontinuing the services of
concerned Second Party Workers.
The facts in brief are that,
2. The Second Party workers were serving with the
First Party since the dates mentioned as Pigmy Deposit
Collectors with clean and meritorious service record. It is
alleged by the Second Party workers that their services
were terminated by the First Party without following
procedure laid down under the Industrial Disputes Act,
1947 w.e.f. 14.08.1996. Therefore, the Second Party workers
raised dispute before Assistant Commissioner of Labour
(Central) Pune, and after recording its failure, the Central
Government referred these four references for adjudication.
3. The First Party workers alleged that being
appointed as Pigmy Deposit Collectors, there was
employee-employer relationship between the First Party
and the concerned Second Party workers. It is alleged by
the Second Party workers that the branch manager of First
Party illegally an improperly terminated the services of the
Second Party workers w.e.f. 14.08.1996. The Second Party
workers alleged that they approached the concerned
branch managers time to time for reinstatement. They also
alleged that they were continuously ventilating their
grievances. As their requests were not considered by the
First Party, they sent demand notices u/s. 2-A of Industrial
Disputes Act, 1947 on 08.10.2001. The Second Party
workers submitted its statement of justification on
23.10.2001 along with request letter for intervention to
Conciliation Authority under the Industrial Disputes Act,
1947.
4. The Second Party alleged that they had worked
for more than 240 days continuously in every year.
However, to deprive them from legal status and benefits,
First Party continued them on the bond as Pigmy Deposit
Collectors. The Second Party alleged that the work
performed by them is of perennial in nature. The Second
Party workers alleged that the First Party has not paid
wages on par with other employees nor given benefits.
5. It is alleged that while terminating the services of
the Second Party workers the First Party has not followed
proper procedure under the Industrial Disputes Act, 1947.
As Pigmy Deposit Collectors they used to collect the
deposits from the customers and fill in various registers.
Lastly the Second Party workers alleged to allow the
reference holding, the termination effected is illegal,
improper and bad in law. Therefore, the Second Party
prayed to declare the termination effected by First Party
w.e.f. 14.08.1996 as illegal and improper and bad in law with
a direction to reinstate the Second Party workers with full
back wages.
6. The First Party by its written statement vide Exh.
C-7 denied all the material allegations made against it by
the Second Party workers. It is contended by the First
Party that reference is misconceived, baseless and
untenable. The First Party alleged that the Second Party
workers are not workmen within the meaning of section
2(s) of Industrial Disputes Act, 1947. The First Party
disputed the relationship of employer and employee
between the parties.
7. The First Party submitted that the reference is at
belated stage and the approach of the of the Second Party
workers is casual and careless. The First Party alleged that
there is delay of 5 years and 2 months in raising dispute.
The First Party alleged that it is engaged in the business
of banking and Second Party workers were collecting
deposits on commission basis. The First Party was not
having control over the working hours of Second Party
workers. The Madhu Sanchay Deposit scheme became
unremunerative and uneconomical. Therefore the First
Party terminated the scheme w.e.f. 14.08.1996. This
termination of agreement is misinterpreted by the Second
Party workers as termination of their services. Hence, in
this background, First Party prayed for rejection of
reference with costs.
8. In this background of facts, following issues were
framed at Exh. 0-3 to which I record my findings as under.
ISSUES
FINDINGS
1.
Whether the Second Party
In the affirmative.
proves that they were
workmen of First Party ?
2.
Whether the Second Party
In the affirmative.
proves that they were
illegally terminated from the
services by First Party ?
3.
Whether the Second Party
is entitled for reliefs claimed
Partly in
in the statement of claim ?
affirmative.
3(a) Whether the First Party
In the negative.
proves that there is inordinate
delay in raising the dispute?
4.
What Award ?
As per final order.
REASONS
9. The Second Party has examined Shri. Ravindra
Raghunath Ashtekar at Exh. U-11. The First Party has
examined its Assistant General Manager, Shri Anil Kumar
Vilas Kadre at Exh. C-24. The parties are relying on the
documents which they have produced on record.
ISSUE No. 1
10. The learned advocate for the First Party has
submitted that Second Party workers have not pleaded
nature of duties performed by them. He has submitted that
the oral evidence which the Second Party workers have
led is without pleadings and the same cannot be
6852
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
considered. He has submitted that the Second Party
workers were not under the control of the First Party. He
has submitted that the authority of Hon'ble Supreme Court
in Indian Banks Association is not helpful to the Second
Party workers as in para 4 of the said authority, the
Hon'ble Supreme Court has not laid down the law that
pigmy agent is a workman as per Industrial Disputes Act,
1947. He has submitted from the para 24 of the said
authority it can be seen that evidence had came before the
Tribunal that the deposit collectors are workmen within the
meaning of Industrial Disputes Act, 1947. He has submitted
that the Second Party workers were not workmen as the
working hours of the Second Party workers were not fixed
and they used to collect the pigmy deposits from the
customers as per their wish. He has submitted that they
used to decide as to from which pigmy account holder they
would first collect the Pigmy amount. He has submitted
that the Second Party workers used to collect pigmy
deposit from the pigmy account holders after banking
hours. He has submitted that Bank used to give
commission to the Second Party workers on the basis of
pigmy deposits which they have collected during the
concerned period. He has submitted that the commission
amount which the Second Party workers used to receive
in every month used to differ month to month because of
variance in collection of pigmy deposits by the Second
Party workers.
The learned advocate relied on unreported decision
of Hon'ble Karnataka High Court in case of Syndicate Bank
V/s. Vasanth Gururao Kusanur in Writ Petition No. 7057 of
2006. In the said authority, the Hon'ble Karnataka High
Court has followed the authority of Hon'ble Supreme
Court in Indian Bank's Association (Supra). Indirectly the
First Party is admitting that the Second Party workers are
workmen as per the provisions of Industrial Disputes Act,
1947.
In the authority of Indian Bank's Association
(Supra) the Hon'ble Apex Court observed that, "We also
accept the submission that the banks have no control over
the deposit collectors. Undoubtedly the deposit collectors
are free to regulate their own hours of work, but that is
because of the nature of the work itself. It would be
impossible to fix working hours for such deposit collectors
because they have to go to various depositors. This
would have to be done at the convenience of the
depositors and at such times as required by the
depositors. If this is so, then no time can be fixed for such
work. However, there is control in as much as the deposit
collectors have to bring the collections and deposit the
same in the banks by the very next day. They have then
to fill in various forms, accounts, registers and passbooks.
They also have to do such other clerical work as the Bank
may direct. They are, therefore, accountable to the Bank
and under the control of the Bank.
We also see no force in the contention that Section
10 of the Banking Regulation Act prevents employment of
persons on commission basis. The proviso to section 10
makes it clear that commission can be paid to persons who
are not in regular employment undoubtedly, the deposit
collectors are not regular employees of the Bank. But they,
nevertheless, are workers within the meaning of the term
as defined in the Industrial Disputes Act. There is clearly
a relationship of master and servant between the deposit
collectors and the Bank concerned."
Moreover, in reference strict rules of the Civil
Procedure Code and Indian Evidence Act are not
applicable. In the Statement of claim the Second Party
workers have pleaded that they were appointed through
branch managers as pigmy deposit collectors and they
have worked under the kind control of the First Party as
well as kind control of the branch manager. They have
pleaded that their duty was to collect maximum deposit
from the pigmy account holders. In the examination in chief
at para 4 and 5, the Second Party workers have stated
nature of duties performed by them.
11. Learned Advocate for the First Party has
submitted that the Second Party workers have entered into
agreements and as per the terms and conditions laid down
in the agreements, the Second Party workers were only
authorised to colelct deposit under Madhu Sanchay
Scheme. He has submitted that as per the agreement, there
was relationship of principal and agent between the
parties. He further submitted that the Second Party
workers were appointed only to collect deposits under the
Madhu Sanchay Scheme. They were not having any
involvement in any other activities of the First Party. He
has submitted that Madhu Sanchay Scheme became
unremunerative and uneconomical. He has submitted that
the First Party decided to terminate scheme and
accordingly the First Party terminated the scheme w.e.f.
14.08.1996. He has submitted that as a result of termination
of the scheme, the said agreement did not survive and
came to an end. He has submitted that the relationship of
Principal and Agent between First Party and Second Party
came to an end on 14.08.1996 as on the same day the
Madhu Sanchay Scheme came to an end.
In the Cross examination, the Second Party workers
at Exh. U-11 have admitted that when they started working
as pigmy agents, at that time, the Bank has entered into
an agreement/contract with them. They have further
admitted that as per the agreement they had worked till
13.08.1996 as pigmy agents. They also admitted that they
used to collect pigmi deposits under the Madhu Sanchay
Scheme and the Bank had closed the scheme on
14.08.1996. They have further admitted that except
working for Madhu Sanchay Scheme, they were not doing
any work of United Western Bank.
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6853
In the cross examination at Exh. C-24, Shri Anil
Kumar Kadre has admitted that like Madhu Sanchay
Scheme at that time there were many other schemes
functioning in the First Party. He was unable to state as
to whether the Second Party workers have demanded the
work of collection of deposits in other schemes from the
First Party on 14.08.1996, and the same was not given. The
admissions given by the Second Party workers are not
helpful to the First Party as the First Party has failed to
produce on record the original agreements or the copy of
the agreements which were executed between the parties.
It is not the case of the First Party that in the agreement
there is clause that if the Madhu Sanchay Scheme
automatically comes to an end, the agreement will also
automatically come to an end. The First Party has not
produced documentary evidence on record to show that
the Madhu Sanchay Scheme had became unremunerative
and uneconomical. It is not the case of the First Party that
due to the said scheme, the First Party has sustained loss.
It is not the case of the First Party that the customers of
the said scheme had reduced. Only on the basis of
admission given by Second Party wokers one cannot
come to the conclusion that contract/agreement was only
for Madhu Sanchay Scheme. The important document i.e.
contract/agreement is not brought before the Tribunal for
the reason best known to the First Party. It is not the case
of the First Party that it has destroyed the contract/
agreement executed between the First Party and the
Second Party wokers The First Party has not given any
notice or order to Second Party workers on 14.08.1996 that
as per the agreement/contract, the relationship of principal
and agent between the parties have come to an end.
Considering the admissions given by the Assistant
General Manager of the first Party as at that time many
other schemes were functioning like Madhu Sanchay
Scheme, one cannot say that there was no work available
with the First Party after closure of the Madhu Sanchay
Scheme. The First Party being a Banking Industry, it
cannot be said that there was no work available for pigmy
agents to collect deposits from the customers.
From the above discussion and as per the ratio laid
down by Hon'ble Supreme Court in Indian Bank's
Association (Supra), I come to the conclusion that the
Second Party workers are workers and there was
relationship of employer and employee between the
parties. Hence, I answer Issue No. 1 in the affirmative.
ISSUE No. 3-A
12. The learned advocate for the First Party
submitted that Second Party workers were not at all
espousing the alleged cause of action which arose after
alleged termination of the Second Party workers. He has
submitted that the Second Party workers were waiting and
watching for the decision of Hon'ble Supreme Court in
Indian Bank's Association (Supra). He has submitted that
the Second Party workers were/are not permitted to enjoy
the fruits which came from the decision of Indian Bank's
Association (Supra). He has submitted that the Second
Party workers have not explained delay in raising their
disputes in the statement of claims. He submitted that
there is delay of five years and two months in raising
disputes and same is not explained. He submitted that the
Second Party workers came to know about the decision of
Indian Bank's Association (Supra) and thereafter Second
Party workers raised the dispute before the First Party. He
has submitted that when the Second Party workers for the
first time has raised the dispute, at that time, dispute had
became stale and same was not in existence.
In support of his submissions, he has ralied upon the
decision in case of Bhoop Sing V/s. Union of India
reported in 1993 I L.L.J 260 (S.C.) The Hon'ble Supreme
Court has observed that "It is expected of a Government
servant who has a legitimate claim to approach the Court
for the relief within a reasonable period, assuming no fixed
prayer of limitation applies.
The Hon'ble Supreme Court further observed that,
"This is more so in service matters where vacancies are
required to be filled promptly. A person cannot be
permitted to challenge the termination of his service after
a period of twenty two years, without any cogent
explanation for the inordinate delay, merely because other
similarly dismissed had been reinstated as a result of their
earlier petitions being allowed."
In that matter, the Delhi Armed Police participated in
a mass agitation on April 14, 1967. The services of the
agitating police constables were terminated on that
account without specifying that reason for the termination.
The dismissed constables who were not taken back in
service filed Writ Petitions in Delhi High Court in 1969 and
1970 which were allowed by Delhi High Court.
Subsequently, some other constables also filed Writ
Petitions in Delhi High Court which too were allowed.
Another set of similarly dismissed constables then filed
Writ Petitions in the Delhi High Court challenging the
termination of their services contending that their claim
was identical with that of the Petitioners in the Writ
Petitions filed in 1978. These Write Petitions were
transferred to Central Administrative Tribunal which held
granted the same relief as was granted to the Petitioners
in the Writ Petitions filed in the High Court in 1978. The
Delhi Administration preferred appeals in Hon'ble Supreme
Court against the decision. Those appeals were dismissed.
The petitioner Bhoop Singh was terminated on
03.08.1967 and he had filed O.A. No. 753 of 1989 in the
Central Administrative Tribunal praying for reinstatement
in service and all consequential benefits on the ground
that his case is similar to that of the Police Constables who
had succeeded in the earlier rounds of litigation. The
Tribunal had rejected the Petitioner's application on the
ground that it is highly belated and there is no cogent
6854
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
explanation for the inordinate delay of twenty two years
in filing the application on March 13, 1989 after
termination of the Petitioner's service in 1967.
In the matter before Hon'ble Supreme Court, the
Petitioner had knowledge that colleagues were reinstated
in the years 1969 and 1970. After knowing fully well the
Petitioner had kept quiet for twenty two years. In that
matter, the Petitioner knew in the year 1969 as to what was
the remedy available to him. In the present matter the
Second Party workers had no knowledge that they come
under the definition of workman. After having knowledge
about their right they had raised dispute.
The Second Party workers are not Government
servants. The First Party is a Banking industry and Second
Party workers are workmen. The Second Party workers
have immediately raised dispute after 5 years and 2
months. The reason behind the delay to raise the dispute
is that Second Party workers waited for the discision of
Hon'ble Supreme Court. The delay of 5 years and 2
months cannot be called as inordinate delay. No Court has
defined as to how to calculate and how to consider
reasonable period for raising a dispute. The reasonable
period depends upon case to case.
Hence, with due respect to the Hon'ble Supreme
Court, the said authority is not helpful to First Party.
13. The learned advocate for the First Party has
relied upon the authority in case of S.S. Rathore V/s. State
of Madhya Pradesh reported in 1990 I LAB.I.C. 398. In
this matter the Hon'ble Supreme Court observed that, "We
are also of the view that the cause of action shall be taken
to arise not from the date of the original adverse order but
on the date when the order of the higher authority where
a statutory remedy is provided entertaining the appeal or
representation is made and where no such order is made
though the remedy has been availed of a six months' period
from the date of preferring of the appeal or making of the
representation shall be taken to be the date when cause
of action shall be taken to have first arisen. We however,
make it clear that this principle may not be applicable when
the remedy availed of has not been provided by law.
Repeated unsuccessful representations not provided by
law are not governed by this principle".
The Hon'ble Supreme Court further observed that,
It is appropriate to notice the provision regarding limitation
under S. 21 of the Administrative Tribunal Act. Sub-
Section (1) has prescribed a period of one year for making
of the application and power of condonation of delay of
a total period of six months has been vested under sub-
section (3). The Civil Court's jurisdiction has been taken
away by the Act and, therefore, as far as Government
Servants are concerned. Article 58 may not be invocable
in view of the special limitation. Yet, suits outside the
purview of the Administrative Tribunal Act shall continue
to be governed by Article 58.
In the matter before Hon'ble Supreme Court the
plaintiff was a Government Servant of Madhya Pradesh
and he was dismissed from services by the Collector on
13.01.1966. He preferred an appeal to the Divisional
Commissioner and that appeal was dismissed on
31.08.1966. The order of dismissal of the appeal was
communicated to the plaintiff on 19.09.1966. The plaintiff
gave notice under Section 80 of the Code of Civil
Procedure on 17.06.1969 and filed his suit on
30th September, 1989, asking for a declaration that the
order of dismissal was inoperative and he continued to be
in service. The Suit which was filed by the plaintiff was
dismissed in the Court below on acceptance of the
defence plea that plaintiff had not filed suit within three
years from the date when the cause of action first arose,
as required under Art. 58 of the First Schedule of the
Limitation Act, 1963.
With due respect to the Hon'ble Supreme Court, the
said decision is not helpful to the first party as the
provisions of Limitation Act are not applicable to the
Reference under the Industrial Disputes Act, 1947.
Moreover the said ratio is laid down with respect to suits
outside the purview of the Administrative Tribunals Act
not with respect to Reference.
14. The learned advocate for the First Party has
relied upon the unreported authority of Hon'ble Karnataka
High Court in case of Syndicate Bank V/s. Vasanth
Gururao Kusanur in Writ Petition No. 7057 of 2006.
While deciding the Writ Petition the Hon'ble Karnataka
High Court has followed the ratio laid down by Hon'ble
Supreme Court in case of
(I) 2000 SCC (L & S) 283—Nedungadi Bank Ltd. Vs.
K.P. Madhavankutty and others.
(II) (2006) 5 SCC 433 U.P. State Road Transport
Corporation Vs. Babu Ram.
(III) 2007 AIR SCW 2882 - Dharappa Vs. Bijapur
Cooperative Milk Producers Societies Union Ltd.
In the matter before the Hon'ble Karnataka High
Court the Respondent was terminated on 26.08.1991 and
he has raised the dispute on 12.12.2001. The case of the
Bank was that by the time the Respondent had raised the
dispute, it had become stale and did not exist between the
parties.
(I) 2000 SCC (L & S) 283 — Nedungadi Bank Ltd. Vs.
K.P. Madhavankutty and others.
In the matter before Hon'ble Supreme Court the
Respondent had admitted that he had committed
misappropriation, expressed unconditional regret and
prayed the punishment of dismissal be not imposed on
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6855
him. The Respondent was dismissed from the services
from 11 August, 1972. He filed appeal before the Board of
Directors of Bank. His appeal was dismissed by order
dated 3.10.1973. He got whatever benefits were due to him
under the rules framed by the Bank. Then, after a period
of seven years he served a notice on the Bank contending
that he was discriminated as two other employees of the
Bank under same situation were reinstated in the service
of the Bank. The Respondent had started to raise the
dispute before appropriate forum. The Respondent moved
application before Assistant Commissioner of Labour of
the Central Government for the relief. The Assistant
Commissioner of Labour held that there was no scope for
formal proceeding. The Respondent filed Writ Petition. The
Hon'ble High Court directed the Assistant Commissioner
of Labour to submit its report u/s. 4(2) of the Act. The
same was sent to the Hon'ble High Court. The Central
Government declined to make reference u/s. 10 of the Act.
The Respondent again filed Writ Petition in Hon'ble High
Court, which was disposed of with a direction to the
Central Government to reexamine the matter against which
the Bank came before the Hon'ble Supreme Court.
(II) (2006) 5 SCC 433 U.P. State Road Transport
Corporation Vs. Babu Ram.
The Respondent and others were terminated from
the service in the year 1983. The Dy. Labour Commissioner
referred the dispute by its order dated 29.8.1998. The
Respondent had raised the claim after 15 years. The
Hon'ble Supreme Court had followed the ratio laid down
in Nedungadi bank Ltd. (Supra).
(III) 2007 AIR SCW 2882 — Dharappa Vs. Bijapur
Cooperative Milk Producers Societies Union Ltd.
Section 10(4A) provides an alternative procedure to
seek redressal in regard to an order of termination, by
making an application directly to the Labour Court, within
six months from the date of communication of the order of
termination, without the intervention or assistance of an
employees union and without having to approach the
appropriate Government for making a reference. Such a
provision cannot be interpreted as reviving stale and
dead claims nor as enabling a workman to seek remedy
beyond six months from the date of communication, except
to the extent expressly provided for. The true and proper
interpretation of Section 10(4A) is that an individual
workman can apply to the Labour Court for adjudication
of the dispute relating to an order of discharge/dismissal/
retrenchment/termination within six months from the date
of communication to him, of such order of termination.
In that matter the appellant was terminated with
effect from 01.03.1980. He made an application under
Section 10(4A) of Industrial Disputes Act, 1947 on
04.10.1988 before Labour Court, Hubli for declaration that
his termination be declared as null and void. In Industrial
Disputes Act there is Karnataka Amendment to Section 10
by way of insertion of sub-section (4A) with effect from
07.04.1988. The said sub-section states that workman
should directly approach the Labour Court within six
months from the date of communication of the order.
With due respect to the Hon'ble Supreme Court and
Hon'ble Karnataka High Court the said authorities are not
helpful to First Party. The First Party has not challenged
the order of reference passed on 27.08.2002. The First
Party is now estopped from raising the contention that
Second Party workers were not diligent in taking action
when the alleged cause of action for the dispute arose
when the Second Party workers were allegedly terminated
on 29.8.1996. The First Party has not specifically pleaded
in its written statement that the dispute had become stale
and the same did not exist when the Second Party workers
have sent approach notice on 08.10.2001 to the First Party.
The First Party has not produced on record a copy of
reply to show that it had given reply to the approach
notice of the Second Party workers. Nor it is the case of
the First Party that it had given reply to the approach
notices of the Second Party workers. The Second Party
workers have not received any compensation amount
from the First Party. The First Party has not stated and
made clear in its written statement as to whether it had
given reply to the statement of justification before
Conciliation Authority. There is no material on record to
come to the conclusion that the First Party has stated
before the Conciliation Authority that the Second Party
workers were not diligent in espousing the alleged cause
of action and the dispute had become stale and same is
not existence. The Second Party workers have produced
on record the approach notice dated 08.11.2001, which
shows that they have raised dispute within a reasonable
time, after the decision of Hon'ble Supreme Court in Indian
Bank's Association (Supra). The provisions of Limitation
Act are not applicable to the present references which are
referred to this Tribunal under the provisions of the
Industrial Disputes Act, 1947. Delay in raising dispute and
dispute becoming stale or coming to an end are two
different issues to each other. Delay in raising dispute
means that dispute was in existence it was raised. The
defence raised by First Party is devoid of merit as the First
Party has not proved as to what prejudice was caused to
it due to delay in raising dispute. The plea of delay which
is raised by First Party is required to be proved by
showing real prejudice caused to it and not by real
hypothetical. The Second Party workers were terminated
all of a sudden on one fine day morning without giving
any intimation to them. The Second Party workers are the
pigmy agents. Their income was not fixed. In these
circumstances whether it was expected from them to raise
their dispute immediately against the First Party or first
they should make arrangement for their family's survival.
6856
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
15. In the decision of Hon'ble Supreme Court in case
of Ajaib Singh V/s. Sirhind Co.-Op. Marketing Cum
Processing Service Society Ltd. and Anr. reported in
1999 I CLR 1068, it is observed that the, Industrial
Disputes Act, 1947 - S. 10 - Limitation Act, 1983 - Art. 137
- Applicability to Industrial Disputes Act, 1947 - Appellant
was dismissed from service on 16.07.1974 - He raised
demand on 08.12.1981 - In consequent reference to
Labour Court, Respondent approached High Court mainly
on the ground of delay in claiming reference - Respondent
having succeeded in High Court on the ground that the
appellant had slept over for years in raising demand, this
appeal is filed - Supreme Court after taking into
consideration the objectives in enacting Industrial
Disputes Act, 1947, the case law and the fact that
Limitation Act is not made applicable to the Industrial
Disputes Act, 1947, held that relief under the Act cannot
be denied to the workman merely on the ground of delay
as Limitation Act is not applicable and in case delay is
established, the Labour Court or Tribunal can mould relief
as to back wages etc.
16. In the authority of Hon'ble Supreme Court in
case of Kuldeep Singh V. G.M. Instrument Design
Development and facilities Center and Anr. reported in
2011 I CLR 5, observed that though the law does not
prescribe any time limit for appropriate Government to
exercise its power u/s. 10 of Industrial Disputes Act, 1947,
the said power is to be exercised reasonably and in a
rationale manner.
From the above discussion, I come to the
conclusion that first Party has not proved that there is
inordinate delay on the part of Second Party workers to
raise dispute before the first party. The delay of 5 years and
2 months caused by Second Party workers to raise the
dispute is not an unreasonable delay. Moreover, in view
of the ratio laid down by Hon'ble Supreme Court in Ajaib
Singh V/s. Sirhind Co.-Op. Marketing Cum Processing
Service Society Ltd. and Anr. reported in 1999 I CLR
1068 and Kuldeep Singh V. G.M. Instrument Design
Development and facilities Center and Anr. reported in
2011 I CLR 5, the Tribunal cannot reject the relief in favour
of Second Party workers, if they prove illegal termination.
Hence, I answer Issue No. 3-A in the Negative.
Issue No. 2
17. Undisputedly, the Second Party workers started
to work as pigmy agents in Mahadwara Road Branch of
First Party from 12.12.1991 onwards till 14.08.1996. In the
evidence at Exh. U-11, the Second Party workers have
deposed that they have worked and rendered more than
240 days service in every year. The witness of First Party
Shri Anilkumar Kadare in his cross-examination at Exh.
C-24 has admitted that the record of collection of deposits
and record to be maintained by Second Party workers of
deposits is available in Mahadwar Branch of United
Western Bank. He further admitted that the Second Party
workers used to work on an average 26 days in a month
and record of their working is in Mahadwar Branch. He has
also admitted that from 1996 onwards the Second Party
workers were working with the First Party and on
14.08.1996 the Bank had stopped to give work of Madhu
Sanchay Scheme to Second Party workers. In these
circumstances, there was no difficulty for the Bank to
produce on record the documents in respect of Second
Party workers about collection of deposits and the
payment/commission which was made by the First Party
to the Second Party workers towards their collection and
the number of days they have worked. In the cross-
examination, the witness of First Party has avoided to give
answers as to whether the Bank had given any written
notice to the Second Party workers while stopping work
of Second Party workers. he has avoided to give answer
whether the First Party Bank had given compensation
amount, notice pay in lieu of notice after 14.08.1996. He
has admitted that from 14.08.1996 except Madhu Sanchay
Scheme other schemes were in existence in the Bank. In
the cross-examination Second Party had given suggestion
to the said witness that the workers had demanded work
of collection of deposit in other scheme the same was
not given.
The statement of justification which is given by the
Second Party workers to the Assistant Commissioner of
Labour on 28.10.2001 at Exh. U. 18, which also states that
they have worked for more than 240 days in every year.
The Second Party workers were collecting pigmy amount
from the pigmy account holders till 13.08.1996. From this
fact inference can be drawn that the Second Party workers
have continuously worked for more than 240 days during
a period of preceding 12 months from 13.08.1996. I do not
see any reason to disbelieve the evidence of the Second
Party workers on the fact that they had continuously
worked for more than 240 days during a period of
preceding 12 calendar months from 13.08.1996.
From the above evidence, it is clear that First Party
Bank had not followed the procedure prescribed under
25-F, G and H of the Industrial Disputes Act, 1947 nor it
followed due process of law while not allowing the Second
Party workers to work, which amounts to illegal
termination. Hence, I answer Issue No. 2 in the affirmative.
Issue No. 3
18. For the sake of arguments let us consider that
the First Party had retrenched the Second Party workers
as the Madhu sanchay scheme was closed and no work
of collection of deposits was available with the First Party.
In that case, it was necessary for the First Party follow the
provisions of section 25-F, G and H of the Industrial
Disputes Act, 1947 at the time of retrenchment of Second
Party workers. On the contrary, the First Party neither in
its written statement alleged that it has retrenched the
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6857
Second Party workers nor in its evidence it has anywhere
stated that the Second Party workers were retrenched by
it by following procedure laid down in sections 25-F,
25-G and 25-H of the Industrial Disputes Act, 1947. It is not
the case of the First Party that it has issued retrenchment
notice, or displayed seniority list etc. while putting an end
to the services of the First Party.
19. The Second Party workers have stated that they
had worked for more than 240 days continuously in every
year. They have stated that in every year they had
rendered more than 240 days continuous service.
Undisputedly, the First Party did not allow the Second
Party workers to work from 14.8.1996 onwards. Therefore,
it was obligatory on the party of the First Party to follow
due process of law while putting an end to the service of
the Second Party workers.
From the above discussion it has become
abudantly clear that the First Party had orally
terminated the Second Party workers on 14.8.1996
without following due process of law. The Second Party
workers had given the approach notice to First Party on
08.10.2001 and had given statement of justification to
the Assistant Commissioner of Labour of Central
Government on 23.10.2001. The Assistant Commissioner
of Labour had referred the reference to this Tribunal by
passing the order dated 27.8.2002. The Second Party
workers have not brought on record the amount of
commission which they used to receive from the First
Party. They have not brought on record any evidence
on the point as to whether they remained unemployed
after 14.08.1996. Both the parties have taken the
references very lightly. The age of the Second Party
workers is above 58 years. It will not be proper to give
relief of reinstatement to the Second Party workers after
a period of 17 years. In these circumstances, it is
necessary to mould the relief of reinstatement and back
wages by way of giving compensation. Hence, I answer
Issue No. 3 accordingly and proceed to answer the
reference partly in affirmative.
AWARD
(I) Reference is answered partly in affirmative.
(II) Each of the Second Party worker in Reference (IT)
Nos. 3 to 6 of 2002 is entitled to an amount of
compensation of Rs. 50,000/- each in lieu of
reinstatement and back wages.
(III) Award be drawn accordingly.
(IV) Copy of Award be kept in Reference (IT) Nos. 4
to 6 of 2002.
Place: Kolhapur.
Date: 24.04.2013.
K.R. PETHKAR, Presiding Officer
ubZ fnYyh] 29 uoEcj] 2013
dkñvkñ 2654.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj LVsV cSad vkWQ
bankSj ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp
vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsanzh; ljdkj vkS|ksfxd
vf/kdj.k] tcyiqj ds iapkV ¼lanHkZ la[;k 218@98½ dks izdkf'kr
djrh gS] tks dsanzh; ljdkj dks 29@11@2013 dks izkIr gqvk FkkA
[la[;k ,y&12012@59@98&vkbZ vkj ¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 29th November, 2013
S.O. 2654.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 218/98)
of the Cent.Govt.Indus.Tribunal-cum-Labour Court,
Jabalpur as shown in the Annexure, in the industrial
dispute between the management of State Bank of Indore,
and their workmen, received by the Central Government
on 29/11/2013.
[No. L-12012/59/98-IR (B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/218/98
PRESIDING OFFICER: SHRI R.B. PATLE
General Secretary,
Daily Wages Bank Employees Association,
9, Sanwer Road,
Ujjain
....Workman/Union
Versus
Managing Director,
State Bank of Indore,
State Bank of India (after merger),
Head Office, 5, Y.N. Road,
Indore
....Management
AWARD
Passed on this 24th day of October 2013
1. As per letter dated 23-9-1998 by the Government
of India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section-10 of I.D. Act, 1947 as per Notification No.
L-12012/59/98-IR(B-I). The dispute under reference relates
to:
"Whether the action of management of Managing
Director, State Bank of Indore (State Bank of India
6858
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
after merger) in terminating the services of
Shri Kamal Kishore Sharma w.e.f. 15-7-97 not
regularizing him is justified? If not, to what relief the
workman is entitled for?"
2. After receiving reference, notices were issued to
the parties. Statement of claim is submitted by Daily Wage
Bank Employees union on behalf of the Ist party workman
rather it doesnot bear signature of the workman. The case
of Ist party workman is that he was engaged on 1-6-92 on
daily wages by Branch Manager of Nalkheda Branch of
State Bank of Indore. That he was required to work from
8 AM to 10 AM, 10.30 AM to 6 PM. He was working with
devotion. He was paid wages for 6 days in a week. He
was required to work more than 8 hours a day. His services
were discontinued from 15-7-97 without notice. He was not
paid retrenchment compensation. Other employees were
engaged after termination of his services. He was not
called for employment. He had completed 240 days
continuous service during each of the year. He is covered
as workman under Section 25 B of I.D. Act. His services
are terminated in violation of Section 25-F, G, H of I.D. Act.
para 507, 524 of Sastry Award, Section 33 of I.D. Act. On
such ground, he prays for his reinstatement with
consequential benefits.
3. IInd party filed Written Statement at page 9/1 to
9/7, IInd party submits that the statement of claim filed by
Shri Ram Nagwanshi is not legal. Though claim is filed by
Union authorizing Secretary for filing statement of claim.
The Union of Ujjain district is not competent to raise
dispute of the Ist party workman working at Nalkheda,
Distt Shajapur. That order or reference is not sent to the
State Bank of Indore. General manager of State bank of
Indore is implemented as party. The matter suffers from
misjoinder of parties.
4. IInd party denied that Ist party workman was
working on daily wages from 1-6-92. It is denied that he
was working udner Branch Manager. It is denied that
workman was required to work more than 8 hours or his
services are discontinued without notice. Violation of
Section 25-F, G & H, 33 of I.D. Act is denied. It is denied
that his services are discontinued in violation of Section
33 of I.D. Act. That any employee in Bank cannot be
appointed without following selection process. Workman
was paid wages for his working days. He is not covered
as workman under Section 25 (B) of I.D. Act. IInd party
prayed for rejection of claim of workman.
5. Ist party Union filed rejoinder at Page 13, 14
reiterating its contention that workman completed 240
days continuous service during 1992 to 1997. The
workman was paid bonus from 1992 to 1997. He was also
paid amount of gratuity. That he was working against
vacant post.
6. Considering pleadings on record, the points which
arise for my consideration and determination are as under.
My findings are recorded against each of them for the
reasons as below:—
(i) Whether the action of
In affirmative
management of Managing
Director, State Bank of
Indore (State Bank of
India after merger) in
terminating the services of
Shri Kamal Kishore
Sharma w.e.f. 15-7-97 not
regularizing him is legal?
(ii) If not, what relief the
Relief prayed by
workman is entitled to?"
workman is rejected.
REASONS
7. As per terms of reference, legality of termination
of service of workman is challenged. However statement
of claim is signed only by Secretary of Union. It doesnot
bear signature of Ist party workman. The contentions of
Ist party workman are denied in Written Statement filed
by the management. Workman filed affidavit of his
evidence contending that he was working on daily wages
from June 1992. he was working continuously for more
than 240 days. During each of the year, he was paid
bonus. His services are terminated without notice from
15-7-97. Workman declined to appear for his cross-
examination as per ordersheet dated 19-4-2011. The
management filed affidavit of evidence of Shri Subhash
Panchal supporting contention of the management.
However in his cross-examination, management's witness
says during relevant period he was not working in the
Branch. That he tried to get information from the Branch
Manager but he couldnot met them. That he has not
seen the document submitted alongwith statement of
claim. That from information received from Sujal Meena
he has stated about working times of the workman in
Para-6. The management's witness has no personal
knowledge neither, he has produced any documents. He
received information about the matter. In his further
cross-examination, he says that as Ist party workman was
not employee of the Bank, he was not served with
notice, retrenchment compensation was not paid.
8. As workman has not appeared for his cross-
examination in ordersheet dated 19-4-2011, it was
observed that his evidence will not be looked into. Thus
the claim of Ist party workman is not supported by
evidence. Documents Exhibit W-1 is isued by General
Manager Operations. That temporary employees engaged
on daily wages paid weekly or monetary wages creates
problems such appointment should be avoided. Said
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6859
document doesnot support claim of workman that he was
working for more than that he was working for more than
240 days preceding his termination. As such the
workman is not covered under Section 25(b) of I.D. Act.
Therefore he is not entitled to protection under Section
25-F of I.D. Act. There is no evidence to hold that
termination of services of workman is violative of Section
25-F. Learned counsel for IInd party Mr. Shroti relies on
ratio held in
"Case of ONGC Ltd. and another versus Shyamal
Chandra Bhowmik reported in 2006(1) Supreme
Court Caes 337. Their Lordship held requirement of
240 days continuous service, onus to prove the
same lies on workman. It is held that question only
when evidence is led."
In case of R.M. Yellatti versus Asstt. Executive
Engineer reported in 2006(1) Supreme Court cases 106.
Their Lordship held requirement of 240 days continuous
service burden of proof lies on workman. It is for workman
to adduce cogent evidence, both oral and documentary.
Mere affidavits or self serving statements made by
workman will not suffice. Evidence Act not applicable to
proceedings under Section 10 of I.D. Act.
Considering ratio in both the cases and evidence
discussed above, termination of services of Ist party
workman cannot be said illegal. Therefore I record my
finding in Point No. 1 in Affirmative.
9. In the result, award is passed as under:—
(1) Action of management of Managing Director,
State Bank of Indore (State Bank of India after
merger) in terminating the services of Shri Kamal
Kishor Sharma w.e.f. 15-7-97 not regularizing him is
proper.
(2) Relief prayed by workman is rejected.
R.B. PATLE, Presiding Officer
ubZ fnYyh] 29 uoEcj] 2013
dkñvkñ 2655.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsanzh; ljdkj LVsV cSad vkWQ
bafM;k ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp
vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsanzh; ljdkj vkS|ksfxd
vf/kdj.k] tcyiqj ds iapkV ¼lanHkZ la[;k 133@2003½ dks izdkf'kr
djrh gS] tks dsanzh; ljdkj dks 29@11@2013 dks izkIr gqvk FkkA
[lañ ,y&12012@49@2003&vkbZvkj¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 29th November, 2013
S.O. 2655.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 133/03)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Jabalpur as shown in the Annexure, in the industrial
dispute between the management of State Bank of India,
and their workmen, received by the Central Government
on 29/11/2013.
[No. L-12012/49/2003-IR (B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
No. CGIT/LC/R/133/03
PRESIDING OFFICER: SHRI R.B. PATLE
Shri Ravindra Jagnnath Mede,
S/o Shri Jagannath Mede,
Tehsil Burhanpur,
Distt. Khandwa (MP)
...Workman
Versus
Asstt. General Manager,
State Bank of India, Region-II,
Zonal Office,
Hamidia Road,
Bhopal
...Management
AWARD
Passed on this 11th day of October, 2013
1. As per letter dated 8-8-2003 by the Government
of India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section-10 of I.D. Act, 1947 as per Notification No.
L-12012/49/2003-IR(B-I). The dispute under reference
relates to:
"Whether the action of the management of Asstt.
General Manager, State Bank of India, Region-II,
Bhopal in terminating the services of Shri Ravindra
Jagannath Mede S/o Shri Jagannath Mede w.e.f.
11-12-98 is justified? If not, to what relief the
workman is entitled for?"
2. After receiving reference, notices were issued to
the parties. Ist party workman filed statement of claim at
Page 2/1 to 2/5. Case of workman is that he was appointed
by IInd party from 29-9-99 on daily wages as dak
messenger. That he worked honestly with satisfaction of
his employer. He was not served with chargesheet, any
kind of punishment was not imposed against him. Without
justification, IInd party terminated his services from
11-12-88. That the termination of services is arbitrary, he
had completed 240 days preceding his termination. That
after his termination, IInd party appointed Ram Singh
Raikwar, Raju Bimbarkar who were working on daily
6860
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
wages like him. That IInd party shown favour making their
appointment. Though he was continuously working till
10-12-2009, his services were terminated illegally. Ist party
submits that four other employees working in the branches
are regularized. IInd party be directed to produce record
about those employees. According to Ist party, termination
of his services is in violation of principles of natural
justice. That Section 25-F(b) is not complied. He was not
paid notice pay. He was not provided the re-employment,
junior employees are retained in service, as such
termination of service is illegal. On such grounds, Ist party
prays for his reinstatement with consequential benefits.
3. IInd party filed Written Statement at Page 9/1 to
9/9. Claim of workman is denied. IInd party submits that
workman was employed purely as daily rated contractual
employee for performing duties of Hammal. That the details
of his working days are shown as in 1991—66 days, in
1992—223 days, in 1993—245 days, in 1994—268 days, in
1995—277 days, in 1996—271 days, in 1997—250 days and
in 1998—237 days. That Ist party employee was engaged
on permanent basis as per exigency, notice is not required
for termination of his service. In para-3 of the Written
Statement, IInd party contents that the employee had not
worked for 240 days during calendar year non-
engagement. The wages of Ist party were shattered prior
to his engagement. He was not in continuous service. His
discontinuation is covered under Section 2(oo)(bb) of I.D.
Act. His discontinuation does not amount to retrenchment
in violation of Section 25-F of I.D. Act. The engagement
of Hammal does not constitute service of the Bank. His
services were contractual. He had not continuously
worked for 240 days provided under Section 25-F of I.D.
Act. However the Ist party was paid wages for notice
period and retrenchment compensation Rs. 6075/- on
11-12-98. That as per provisions in various agreements,
the employees were given chance for permanent
employment Ist party workman was not found eligible as
per the provisions in the agreement. As per the settlement
interview of the discontinued employees were conducted
and panel of selected candidates were prepared. The
service of workman were discontinued. He was paid notice
pay and retrenchment compensation amount. On such
ground, IInd party submits that claim of workman be
dismissed.
4. Considering pleadings on record, the points which
arise for my consideration and determination are as under.
My findings are recorded against each of them for the
reasons as below:—
(i) Whether the action of the
In affirmative
management of Asstt. General
Manager, State Bank of India,
Region-II,
Bhopal
in
terminating the services of Shri
Ravindra Jagannath Mede S/o
Shri Jagannath Mede w.e.f.
11-12-98 is legal?
(ii) If not, what relief the
Relief claimed by
workman is entitled to?"
workman is
rejected.
REASONS
5. Workman is challenging the termination from
service for violation of Section 25-F, G of I.D. Act. All the
allegation of workman are denied. The pleading in para 1
& 3 of Written Statement are inconsistent. In para-1,
working days are shown more than 240 days whereas in
Para-3, IInd party pleads that workman was not working
for 240 days during any of the year.
6. Affidavit of evidence is filed by workman stating
that he was continuously working with IInd party from
29-9-91 to 10-12-98. He was working for more than 240
days during all the years. That his services were
terminated illegally. After he is terminated, other employees
were appointed. The other employees are also regularized.
Workman did not remain present for his cross-examination.
The evidence of workman was closed on 22-10-2010 as
workman not remained present for cross-examination, his
evidence cannot be relied in support of his claim.
Management filed affidavit of witness Shri Surendra Shah
covering most of the contentions of management. That
the workman was paid notice pay and compensation
amount Rs. 6075/-. However, copy of notice is not
produced. Management witness was not cross-examined
on behalf of workman. His evidence remained
unchallenged. As stated above, workman not made
available for his cross-examination, his evidence cannot
be relied. Considering above aspects no illegality in
termination of Ist party can be established. For above
reasons, I record my finding in Point No. 1 in Affirmative.
7. In the result, award is passed as under:—
(1) Action of the management of Asstt. General
Manager, State Bank of India, Region-II, Bhopal
in terminating the services of Shri Ravindra
Jagannath Mede S/o Shri Jagannath Mede w.e.f.
11-12-98 is legal.
(2) Relief prayed by workman is rejected.
R.B. PATLE, Presiding Officer
ubZ fnYyh] 29 uoEcj] 2013
dkñvkñ 2656.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj LVsV cSad vkWQ
bafM;k ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp
vuqcaè esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6861
vfèdj.k] tcyiqj ds iapkV lanHkZ la[;k 153@2001 dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 29@11@2013 dks izkIr gqvk FkkA
[lañ ,y&12012@100@2001&vkbZ vkj ¼ch&I)]
lqefr ldykuh] vuqHkkx vfèdkjh
New Delhi, the 29th November, 2013
S.O. 2656.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref. No. 153/2001
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Jabalpur as shown in the Annexure, in the industrial
dispute between the management of The Branch Manager,
State Bank of India, Ridge and their workmen received by
the Central Government on 29/11/2013.
[No. L-12012/100/2001-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
No. CGIT/LC/R/153/2001
Presiding Officer: Shri R.B. Patle
Shri N.K. Patel,
Dy. Secretary,
State Bank of India Staff Congress (INTUC)
5/235, Pragati State Bank Staff Colony,
Vikas Nagar,
Jabalpur
...Workman/Union
Versus
Chief Manager,
State Bank of India,
Ranjhi Branch,
Jabalpur (MP)
...Management
AWARD
(Passed on this 21st day of October 2013)
1. As per letter dated 24-9-2001 by the Government
of India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section-10 of I.D. Act, 1947 as per Notification No.
L-12012/100/2001/IR(B-I). The dispute under reference
relates to:
"Whether the action of the management of State
Bank of India, Ranjhi Branch Jabalpur (MP) in
terminating the services of Shri Keshav Prasad
Yadav, S/o Shri Hira Lal Yadav w.e.f. 18-12-1998 orally
while he has worked as temporary worker from
November 1993 to 17-12-1998 is justified? If not,
what relief he is entitled to?"
2. After receiving reference, notices were issued to
the parties, Ist party workman despite of notice failed to
appear. Statement of claim is filed by workman. Reference
is proceeded exparte against workman on 14-3-2011.
3. IInd party filed exparte Written Statement. IInd
party has pleaded that Ist party workman was not working
as temporary employee at any time during 1993 to 1998.
Workman has not produced any documents. His claim is
not supported by the rules or regulations to cover claim
of workman.
4. Considering pleadings on record, the points which
arise for my consideration and determination are as under.
My findings are recorded against each of them for the
reasons as below:—
(i) Whether the action of the
In Affirmative.
management of State Bank
of India, Ranjhi Branch
Jabalpur
(MP)
in
terminating the services
of Shri Keshav Prasad
Yadav, S/o Shri Hira Lal
Yadav w.e.f. 18-12-1998
orally while he has
worked as temporary
worker from November
1993 to 17-12-1998 is
justified?
(ii) If not, what relief the
Relief prayed by
workman is entitled to?"
workman is rejected.
REASONS
5. As stated above, workman has not participated in
reference proceeding. He has not filed statement of claim.
The reference is proceeded exparte against workman. The
IInd party denied claim of workman filing Written
Statement. The affidavit of management's witness
Shri Sanjay Shrivastava is filed. The witness of the
management has stated that workman Shri Keshav Prasad
Yadav did not work in State Bank of India during the
period 1993 to 1998.
6. Considering unchallenged evidence of
management's witness, I find no reason to disbelieve his
evidence. His claim of workman is not substantiated by
oral or documentary evidence. I record my finding in Point
No. 1 in Affirmative.
7. In the result, award is passed as under:—
1. Action of the management of State Bank of India,
Ranjhi Branch Jabalpur (MP) in terminating the
services of Shri Keshav Prasad Yadav, s/o Shri
Hira Lal Yadav w.e.f. 18-12-1998 orally while he
has worked as temporary worker from November
1993 to 17-12-1998 is legal.
2. Relief prayed by workman is rejected.
R.B. PATLE, Presiding Officer
6862
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
ubZ fnYyh] 29 uoEcj] 2013
dkñvkñ 2657.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj LVsV cSad vkWQ
bankSj ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/kdj.k] tcyiqj ds iapkV lanHkZ la[;k 65@2007 dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 29@11@2013 dks izkIr gqvk FkkA
[lañ ,y&12012@28@2007&vkbZvkj ¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 29th November, 2013
S.O. 2657.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref. No. 65/2007
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Jabalpur as shown in the Annexure, in the industrial dispute
between the management of State Bank of Indore, Zonal
Office, and their workmen, received by the Central
Government on 29/11/2013.
[No. L-12012/28/2007-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/65/2007
Presiding Officer : Sh. R.B. Patle
Shri Ishwarlal Chandrakar,
Block 4/R, Road No. 20, Sector-6,
Bhilai, Distt. Durg (CG),
Durg (CG)
.......Workman
Versus
The Asstt. General Manager (V),
State Bank of Indore,
(State Bank of India - after merger) Zonal Office,
National Highway, Telebandha,
Raipur (CG)
........Management
AWARD
(Passed on this 24th day of October, 2013)
1. As per letter dated 25.6.2007 by the Government of
India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section-10 of I.D. Act, 1947 as per Notification No. L-12012/
28/2007-IR (B-I). The dispute under reference relates to:
"Whether the action of the management of State Bank
of Indore in terminating the services of
Shri Ishwarlal Chandrakar w.e.f. 25.5.2006 is legal and
justified? If not, to what relief the workman concerned
is entitled?"
2. After receiving reference, notices were issued to
the parties. Ist party workman submitted statement of claim
at Page 2/1 to 2/4. Case of Ist workman is that he was
engaged on daily wages Rs. 60/- by Branch Manager
Shri A.M. Saxena on 26.6.1998. That his wages were
increased from Rs. 60 to 80, 90, 100. He was paid wages
deleting wages for Sunday. He was continuously working
more than 240 days till termination of his services from
25.5.2006. That his services were terminated without notice.
He was not paid retrenchment compensation. Termination
of his service is in violation of Section 25-F, G. H of I.D. Act.
On such grounds, he prays for reinstatement with back
wages.
3. IInd party filed Written Statement at Page 8/1 to
8/10. IInd party submits that State Bank of Indore is Banking
company under State Bank of India Act, 1959. The Bank
carries its place as per directions of RBI. There are
recruitment rules for Class III and IV employees. Branch
Manager has no power to appoint messenger, security
guard. Ist party is trying to get back door entry in service
of the Bank. Daily wage employee/sweeper are required to
do their work before working hours of the Bank. He is
required to work for two hours per day. Ist party workman
was not appointed following recruitment procedure. There
is no reason to regularization of his services. He cannot be
absorbed as peon. That Ist party workman never worked
as peon. It is denied that Ist party workman was working
for more than 240 days during the period 1998 to 2006.
Violation of Section 25-G, F of I.D. Act is denied. It is
submitted that workman is not covered under Section 25(B)
of I.D. Act. On such grounds IInd party prays for rejection
of the claim of workman.
4. Workman filed rejoinder at page 9/1 to 9/2. He has
contented that his services are terminated without notice.
Retrenchment compensation was not paid. He was required
to work more than 8 hours per day. His services are
terminated in violation of Section 33 of I.D. Act, he was
paid bonus as per directions of ALC.
5. Considering pleadings on record, the points which
arise for my consideration and determination are as under.
My findings are recorded against each of them for the
reasons as below:—
(i)
Whether the action of the
In Negative
management of State Bank
of Indore in terminating the
services of Shri Ishwarlal
Chandrakar w.e.f 25.5.2006
is legal?
(ii)
If not, what relief the
As per final order
workman is entitled to?"
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6863
REASONS
6. Workman is challenging termination for his services
for violation of Section 25-F, G, H of I.D. Act. The material
contentions of workman are denied. Workman filed affidavit
of his evidence stating that he was working as peon from
26.6.1998 till 25.5.2006. His services were terminated without
notice. Retrenchment compensation was not paid to him.
He was working for more than 240 days during each of the
year. He was paid bonus Rs. 15,566/-. His services were
terminated in violation of Section 25-F, G, 33 of I.D. Act. In
his cross-examination, workman says he was working in
Bhilai Nagar branch. He was working under M. Saxena and
other Managers. He was working on daily wages.
Appointment letter was not given to him. He was not
interviewed before his appointment. He has stated in his
affidavit of evidence that he was continuously working for
more than 240 days during all years is not challenged.
7. Management filed affidavit of evidence of
Shri G.S.N. Murthy. Management's witness has denied that
workman was engaged by Branch Manager, SBI, Bhilai. He
also denied that the workman was working for more than
240 days during 1998 to 2006. The affidvait of witness is in
the shape of denial of the contentions of the workman.
Management's witness in his cross-examination says that
he was not working in Bhilai. That the witness has no
knolwedge of the working of the workman. One post of
Messenger cum Farrash was sanctioned for Bhilai branch.
He was unable to tell who was working on said post. He
claims ignorance whether principles of last come first go
was followed. He claims ignorance about payment of
retrenchment compensation, bonus amount as per order of
the ALC. The witness of the management has claimed
ignorance of all the material aspect asked in his cross-
examination. Considering unchallenged evidence of the
workman that he had worked for more than 240 days during
1998 to 2006 whereas the evidence of management's witness
claims ignorance whether he was working in the Bank during
the relevant period. The evidence of management' witness
cannot be relief in preference of the evidence of the
workman. During pendency of the reference, State Bank of
Indore merged in State Bank of India. The application filed
for amendment has been allowed. The documents produced
on record Exhibit W-1 re issued by Asstt. General Manager
admitting the Ist party workman was working on daily
wages in the Bank. He was paid his wages for all the working
days. Thus the evidence of workman is corroborated by
document Exhibit W-1. Document Exhibit W-2 & W-3 are
letter issued by ALC for payment of bonus to the workman.
As per Exhibit W-4, Asstt. General Manager informed ALC
that the matter of payment of bonus was taken up by higher
authorities. Letter Exhibit W-5 shows that after receiving
necessary administrative clearance from higher authorities.
Instructions were issued to the concerend branches to
pay bonus. Document Exhibit W-5 shows name of Ist party
workman at Sl. No. 1. From those documents it is clear that
workman was working in Bank as daily wager, he was paid
bonus. Thus the cliam of Ist party workman that he was
working for more than 240 days during 1998 to 2006 finds
corroboration from those documents.
8. The services of workman are discontinued without
notice, he was not paid retrenchment compensation. It
amount to illegal retrenchment. Provisions of Section 25-F,
of I.D. Act are violated. Therefore, I record my finding in
Point No. 1 in Negative.
9. Point No. 2 - In view of my finding in Point No. 1
that termination of workman from service is illegal, question
arises as to what relief the workman is entitled for. Workman
was not appointed following recruitment rules. His name
was sponsored through Employment Exchange. He was
not subjected to interview. His appointment was not
against sanctioned post. He was working in daily wages
for about 7 years. Considering the spam of working on
daily wages, the workman cannot be absorbed in service.
Reinstatement with back wages cannot be granted to him.
Rather the reasonable compensation would be appropriate.
Considering the length of service, compensation Rs. 75,000
would be reasonable. Accordingly I record my finding in
Point No. 2.
10. In the result, award is passed as under :—
(1) Action of the management of State Bank of
Indore in terminating the services of
Shri Ishwarlal Chandrakar w.e.f. 25.5.2006 is
proper.
(2) IInd party is directed to pay compensation
Rs. 75,000/- to the workman.
Amount as per above order shall be paid to workman
within 30 days. In case of default, amount shall carry 9%
interest per annum from the date of award till its realization.
R.B. PATLE, Presiding Officer
ubZ fnYyh] 29 uoEcj] 2013
dkñvkñ 2658.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj mÙkj jsyos ds
izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqaca/k esa
fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k]
paMhx<+ ds iapkV ¼lanHkZ la[;k 1015@2005½ dks izdkf'kr djrh gS]
tks dsUnzh; ljdkj dks 29@11@2013 dks izkIr gqvk FkkA
[lañ ,y&41012@117@2003&vkbZ vkj ¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 29th November, 2013
S.O. 2658.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 1015/
2005) of the Cent.Govt.Indus.Tribunal-cum-Labour Court
No. 2, Chandigarh as shown in the Annexure, in the
industrial dispute between the management of Northern
6864
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
Railway, The Sr. D.P.O., D.R.M. office, Northern Railway,
Northern Railway, Hanuman Junction, and their workmen,
received by the Central Government on 29/11/2013.
[No. L-41012/117/2003-IR (B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
IN THE CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT-II, CHANDIGARH
Present : Sri Kewal Krishan, Presiding Officer
Case No. I.D. 1015/2005
Registered on 17.9.2005
Shri Nasib Singh S/o Sh. Dhanna Ram, R/o Village
Salarian Kalan, Tehsil, Mukerian, Distt. Hoshiarpur
... Petitioner
Versus
1. The Divisional Railway Manager, Northern Railway,
Ferozepur
2. The General Manager, Northern Railways, Baroda
House, New Delhi
... Respondents
APPEARANCES
For the workman
:
Sh. Manohar Dadwal.
For the Management
:
Sh. N.K. Zakhmi Advocate.
AWARD
(Passed on 23.9.2013)
Central Government vide Notification No. L-41012/
117/2003-IR(B-I) Dated 26.4.2005, by exercising its powers
under Section 10, sub-section (1) Clause (d) and sub-section
(2-A) of the Industrial Disputes Act, 1947 (hereinafter
referred to as 'Act') has referred the following Industrial
dispute for adjudication to this Tribunal:—
"Whether the action of the management of Northern
Railway represented through Divisional Railways,
Ferozepur, in terminating the services of
Sh. Nasib Singh, Gangman w.e.f. 13/10/1983 not
complying with the provisions of Section 25F, 25G
and 25H of the ID Act, 1947 was just, legal and fair?
If not, what relief the workman is entitled to and from
which date?"
On receiving the reference, notices were issued to
the workman as well as to the management.
The workman appeared and submitted statement of
claim pleading that he was appointed as a Gangman on
16.1.1981 and in pursuance of the appointment letter he
joined the service. He worked from 16.1.1981 to 13.10.1983
i.e. for period 399 days when his services were terminated
without serving any notice on him and in violation of
Section 25F of the Act.
It is further pleaded that his name was entered in the
casual labourer register and in view of the instructions
contained in the letter dated 14.2.1996, his name was to be
considered for employment as Sanitary/Safaiwala, but he
was not considered and the persons who were similarly
situated as the workman namely Dharam Chand and Khazan
Chand were appointed. That the persons junior to the
workman were retained in service and thus the management
contravened the provisions of Section 25G. Since he is
entitled to be employed, he filed a civil suit which was
dismissed on technical ground on 11.12.2001. That the
management discontinued his services which is illegal and
he is entitled to be reinstated in service with all the
consequential benefits.
Management filed written reply pleading that the
workman was employed as a casual labourer against the
temporary arrangement for a specific period and he worked
intermittently and his employment stood abolished when
the work was completed. It is further pleaded that the
workman himself left the job and did not report for duty.
That his name was not entered in the casual labourer
register and no person junior to him was appointed. That
Dharam Chand and Khazan Chand worked for 1011 days
and 1391 days whereas workman worked for 399 days and
he was not entitled to any relief. No person junior to
workman was appointed.
The workman appeared in the witness-box and filed
his affidavit reiterating his case as stated in the claim
petition.
Workman was proceeded ex-parte vide order dated
4.7.2011.
Thereafter the management also examined its witness.
I have heard Sh. N.K. Zakhmi counsel for the
management and have gone through the record carefully.
It is the case of the workman himself that his services
were terminated in the year 1983. He made the reference
only in the year 2005 i.e. after a delay of more than 20 years
and this fact alone is sufficient to decline him the relief.
According to the workman he joined his duty in
pursuance of the appointment letter dated 16.1.1981 but he
did not place on record said letter showing its terms and
conditions. It is a definite case of the management that he
was engaged on temporary basis against the specific work
and his services came to an end on completion of work. In
view of the specific stand taken by management, the
workman was required to place on record his appointment
letter and in its absence, the plea of the management has to
be taken as correct that he was a casual labourer and
appointed for a specific work. The appointment of casual
labourer comes to an end when discontinued and in this
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6865
respect reliance may be place on Secretary, State of
Karnataka and Others Vs. Umadevi and Others and
observed that—
"Unless the appointment is in terms of the relevant
rules and after a proper competition among qualified
persons, the same would not confer any right on the
appointee. If it is a contractual appointment, the
appointment comes to an end at the end of the
contract, if it were an engagement or appointment on
daily wages or casual basis, the same would come to
an end when it is discontinued."
Again it was held by the Apex Court in Himanshu
Kumar Vidyarthi and others Vs. State of Bihar and others
that the discontinuance of the serivce of a daily wager is
not a retrenchment and observed in para 3 of the judgement
as follows—
"Every department of the Government cannot be
treated to be "industry". When the appointments
are regulated by the statutory rules, the concept of
"industry" to that extent stands excluded. Admittedly,
they were not appointed to the posts in accordance
with the rules but were engaged on the basis of need
of the work. They are temporary employees working
on daily wages. Under these circumstances, their
disengagement from service cannot be construed to
be a retrenchment under the Industrial Disputes Act.
The concept of 'retrenchment' therefore, cannot be
stretched to such an extent as to cover these
employees. The learned counsel for the petitioners
seeks to contend that in the High Court, the
petitioners did not contend that it is a case of
retrenchment but termination of their services is
arbitrary. Since they are only daily-wage employees
and have nor right to the posts, their disengagement
is not arbitrary.
Again in Divisional Forest Officer, Rohtak Vs.
Jagat Singh and Another, it was observed in Para 4 of the
judgment as follows—
It may be noticed that the definition of retrenchment
in Section 2(oo) of the Act is applicable to the
provisions contained in Chapter VA containing
Sections 25F and 25H of the Act. The termination of
daily wager is not retrenchment failing within Section
2(oo)(bb) of the Act. Therefore, the workman who is
a daily wager cannot be reinstated as it does not
amount to retrenchment within the meaning of
Sections 25F and 25G of the Act.
Thus the workman was working on casual basis and
it cannot held that he was retrenched from service and
there is no violation of Section 25F.
Again there is nothing in the file that any person
junior to the workman was employed by management and
as such there is no contravention of Section 25G of the
Act.
Therefore it is held that the workman is not entitled
to any relief and the reference is answered against him. Let
hard and soft copy of the award be sent to the Central
Government for further necessary action.
KEWAL KRISHAN, Presiding Officer
ubZ fnYyh] 29 uoEcj] 2013
dkñvkñ 2659.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj izxfr xzkeh.k cSad
ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k
esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k]
cSaxykSj ds iapkV ¼lanHkZ la[;k 127@2011½ dks izdkf'kr djrh gS] tks
dsUnzh; ljdkj dks 29@11@2013 dks izkIr gqvk FkkA
[lañ ,y&12012@53@2007&vkbZ vkj ¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 29th November, 2013
S.O. 2659.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 127/
2007) of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Bangalore as shown in the Annexure, in the industrial
dispute between the management of Pragathi Grameen Bank,
and their workmen, received by the Central Government on
29/11/2013.
[No. L-12012/53/2007-IR (B-I)]
SUMATI SAKLANI, Section Officer
ANNEXRURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
BANGALORE
Dated:
14th October, 2013
Present :
Shri S.N. Navalgund,
Presiding Officer
C.R. No. 127/2007
I Party
II Party
Sh. R. Murali Krishna (1279),
The Chairman,
C/o Sanjeev Kumar D. No. 202,
Pragathi Grameen Bank,
2nd Floor, Dove Next Apts,
Head Office, P. B. No. 55.
Marathahalli Extension.
Gandhinagar,
Bangalore
Bellary—583 103.
APPEARANCES :
I Party:
None
II Party:
Shri K. V. Krishna Murthy,
Advocate
6866
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
1. The Central Government vide order No. L-12012/
53/2007-IR(B-I) dated 03.09.2007 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:
SCHEDULE
"Whether the action of the management of Pragathi
Grameena Bank, Ho: Gandhi Nagar, Ballary in
imposing the penalty of dismissal from services of
Sri R Murali Krishna, is legal and justified? If not, to
what relief he is entitled to?"
2. On receipt of the reference while registering it in
C R 127/2007 when notices were issued to both the sides,
the II Party entered into appearance through K. V. Krishna
Murthy, advocate, whereas I Party in spite of service of
notice failed to appear and file claim statement, the II party
was then called upon to file counter statement. The learned
advocate appearing for the II Party filed his counter
statement and also by examining the Enquiry Officer as
MW 1 got exhibited Ex. M1 Ex. M-6 the detailed description
of which are narrated in the annexure.
3. It is borne out from the records that the II Party
while I party was serving at its Siddaragadda Branch as
Cleark-cum-Cashier issued Charge Sheet alleging that when
Smt. Jaganmatha handed Rs. 30,000.00 on 15.05.2004 for
being credited in her SB Account No. 1733 through SB Pay
in slip while receiving the said amount he made entry in her
pass book but failed to account same in the books of the
bank and also destroyed the challan which was prepared
by him only and later on 17.05.2004 he went to the house of
the account holder and scribbled the entry made by him in
the pass book informing that he would return the amount
tendered by her within a week and later on 20.05.2004 gave
her Rs. 600.00 as interest assuring that he would return
amount but failed to do so and gave a small chit
acknowledging the said amount and secondly taken loan
from bank customers Smt. B. Gangamma. W/o Dayananada,
R/o Bellary Rs. 20,000 on 02.04.2003, Rs. 20,000,
Rs. 15,000 and Rs. 10,000 on 12.06.2003, 16.09.2003 and
26.9.2003 respectively from Sri S.K. Pampanagoud S/o
Basappa R/p Siddaragadda by executing promissory notes;
Rs. 20,000 and Rs. 10,000 on 12.06.2003 and 26.09.2003 from
Sri Virupanna S/o Sanna Veeranna R/o Siddaragadda;
borrowed Rs. 50,000 from Sri M Nageshappa S/o
Hanumanthappa R/o Siddaragadda on 21.05.2004 and thirdly
borrowed amounts from Sri Sannakka Siddappa S/o
Basappa R/o Siddaragadda a sum of Rs. 30,000; from
Sri Malganda Siddabasappa S/o Sanna Siddappa R/o
Siddaragadda sum of Rs. 40,000; from Sri V. Vasu
Ramakrishna S/o V Sathyanarayan R/o Balajinagar Camp a
sum of Rs. 11,500; from Sri P Mallikarjuna S/o
P Siddabasappa R/o Siddaragadda a sum of Rs. 40,000 and
Rs. 80,000 on 03.08.2000 and 03.12.2002 respectively
assuring to repay within 15 days; from Sri Virupaxagouda
S/o Basavanagouda R/o Siddaragadda a sum of Rs. 50,000
each on 05.07.2003 and 04.072003 which acts of borrowing
money from persons having official dealing with the Bank
amounted to misuse of his official position and betrayal of
the trust and confidence reposed in him as an employee of
the Bank by the customers and are detrimental to the
interest of the Bank and its customers by which he brought
disrepute to the Bank.
4. Being not satisfied with his reply the Disciplinary
Authority ordered for Domestic Enquiry by appointing
Sh. Ananda Naik as Enquiry Officer and Sh. I M
Ravindranath as Presiding Officer. The Enquiry Officer after
holding preliminary hearing examined nine witnesses on
behalf of the management and exhibited Pass Book of SB
A/c. No. 1733 pertaining to Smt. Jaganmatha; Pay in Slip in
respect of Loan A/c. No. VSL 4/04 dated 15.05.2004; letter
of Smt. Jaganmatha to the Investigating Officer dated
04.06.2004; letter of Sh. M Nageshappa to the Investigating
Officer dated 03.07.2004; letter addressed by
Sh. Nageshappa to the General Manager, T G Bank, H O
Office, Bellary dated 22.09.2004 along with copy of the
Promissory Note for Rs. 50,000; letter addressed by
Sh. Nageshappa addressed to Sh S B Manohar, Senior
Manager, T G Bank, Bellary dated 28.08.2004; lettere
addressed by Sh. Nageshappa addressed to Senior
Manager, I R Cell, T G Bank, Bellary dated 19.07.2004; letter
addressed by Smt. B Gangamma to the Investigating Officer
dated 07.06.2004 alongwith promissory note; Promisory
note executed by I Party towards Smt. B Gangamma on
02.04.2003; letter addressed by Smt. G Shailaja, Clerk to the
Investigation Officer dated 04.06.2004; letter of
Sh. Yerriswamy to the Investigation Officer dated
08.07.2004; Investigation Proceedings of Sh. K N Kamath,
Investigating Officer submitted to the The General Manager
vide his letter dated 01.07.2004; letter addressed by the
Investigating Officer to the General Manager, IR Cell, T G
Bank, Bellary dated 07.06.2004; Investigating Report
submitted by the Investigating Officer dated 03.07.2004;
receipt issued by the Investigating Officer towards S K
Pampanna for having received the original promissoy note
dated 10.06.2004; receipt issued by the Investigating Officer
towards Aravind Virupanna for having received the original
promissory note dated 10.06.2004; receipt issued by the
Investigating Officer towards Nageshappa for having
received the original promissory note dated 03.07.2004;
letter addressed by Sh. K Narayan Kamath, Investigating
Officer to the General Manager, IR Cell, Bellary dated
04.06.2004; ledger sheet in respect of SB A/c No. 1733 of
Smt. Jaganmatha; copy of the promissory note executed
by the CSE to S K Pampanna for Rs. 15000.00; copy of the
promissory note executed by the CSE to Sh. Aravind
Virupanna for sum of Rs. 20,000.00; copy of the promissory
note executed by the CSE to Sh. Virupanna for sum of
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6867
Rs. 10.000.00; letter of the I party addressed to the The
General Manager, T G Bank, Bellary dated 05.10.2004; letter
of the I party addressed to the General Manager, T G Bank,
Staff Section, Bellary dated 23.10.2004; letter addressed by
the I Party to the Chairman, T G Bank, Staff Section, Bellary
dated 25.02.2005; letter of the I party to the Chairman, T G
Bank, Bellary dated 27.01.2005; letter addressed by the
General Manager to the I Party why action should not be
taken against the complaints received against him dated
24.08.2004; letter of the Manager, T G Bank, Siddaragadda
Branch to the Investigating Officer dated 04.06.2004 and
letter addressed by the Manager, Siddaragadda Branch,
Bellary to the Staff Section, T G Bank, Bellary dated
01.06.2004 along with complaint of Smt. Jaganmatha as MEx
1 to MEx 29 after receiving written brief submitted his
enquiry finding to the effect that Change No. 1 being fully
proved, Charge No. 2 being partially proved i.e., the CSE
has borrowed Rs. 20,000.00 from Smt. Gangamma, Rs.
15,000.00 from Sri S.K. Pompanna, Rs. 30,000.00 from Sri
Virupanna, Rs. 50,000.00 from Shri Nageshappa, the
customers of the bank and the change of borrowing Rs.
20,000.00 and Rs. 10,000.00 by the CSE from Sri S K
Pompanna Gowd has not been proved and in respect of
Charge No. 3 has been proved partially i.e. the CSE has
borrowed money from Sri Sannakki Siddappa Rs. 30,000.00
from Sri Virupaksha Gowda Rs. 1.00 lakh the customer of
the branch and the charge of borrowing of Rs. 40,000.00
from Sri Malgonala Siddabasappa, Rs. 11500.00 from Sri V.
Vasu Ramakrishna and Rs. 40,000.00 and Rs. 80,000.00 from
Sri P Mallikarjun is not proved being partially proved. Then
the Disciplinary Authority after affording him personal
hearing imposed the impugned punishment and on the
appeal the same came to be upheld.
5. Since the enquiry file discloses after affording all
required opportunities Enquiry Officer having concluded
the enquiry and submitted his enquiry report in the absence
of any grievance put forward by the I party being denied of
any opportunity, I have no reason to say that I party was
denied of any fair and proper opportunity to defend himself
in the enquiry. Since the Enquiry Officer after recording the
evidence of nine witnesses and exhibiting 29 documents
on considering the same held charge No. 1 being proved
and charge No. 2 and 3 partially proved he has applied his
mind and arrived at that finding. In the absence of the I
party demonstrating the finding being perverse for no
reason, I have no reason to say that the same is perverse or
the punishment imposed by the Disciplinary Authority
being disproportionate to the misconduct proved. In the
words the I party raising the dispute having failed to file
his claim statement did not make out any case to say that
the impugned action by the management being not legal
and justified. Hence, I have no reason to interfere in the
Domestic Enquiry conducted by the II Party against the I
Party or finding of the Enquiry Officer or punishment
imposed by the Disciplinary Authority and upheld by the
Appellate Authority. In the result, I pass the following :
ORDER
The reference is Rejected holding that the action of
the Management of Pragathi Grameena Bank. HO:
Gandhi Nagar, Bellary in imposing the penalty of
dismissal from services of Sri R Murali Krishna, is
legal and justified.
(Dictated to UDC transcribed by him, corrected and
signed by me on 14th October, 2013).
S. N. NAVALGUND, Presiding Officer
ubZ fnYyh] 29 uoEcj] 2013
dkñvkñ 2660.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj cM+ksnk mÙkj izns'k
xzkeh.k cSad ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds
chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/kdj.k] dkuiqj ds iapkV ¼lanHkZ la[;k 19@2011½ dks izdkf'kr
djrh gS] tks dsanzh; ljdkj dks 29@11@2013 dks izkIr gqvk FkkA
[lañ ,y&22012@20@2010&vkbZ vkj ¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 29th November, 2013
S.O. 2660.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 19/2011)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Kanpur as shown in the Annexure, in the industrial dispute
between the management of Baroda Uttar Pradesh Gramin
Bank and their workmen, received by the Central
Government on 29/11/2013.
[No. L-12012/20/2010-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE SRI RAM PARKASH, HJS, PRESIDING
OFFICER, CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, KANPUR
Industrial Dispute No. 19/2011
Between
Rakesh Kumar Bhartiya,
Son of Sri Laloo, C/o Sri R M Shukla,
Flat No. 705, Shastri Nagar, Kanpur
And
The Regional Manager,
Baroda Uttar Pradesh Gramin Bank,
Regional Office,
3D Tashkand Marg,
Allahabad
6868
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
AWARD
1. Central Government MoL, New Delhi, vide
notification No. L-12012/20/2010-IR(B-1) dated
4.4.11 has referred the following dispute for
adjudication—
2. Whether the action of the management of Baroda
Uttar Pradesh Gramin Bank Allahabad in removing
Sri Rakesh Kumar Bhartiya son of Sri Laloo from
service vide their order dated 13.01.2009 is legal
and justified? To what relief is the workman
entitled?
3. Brief facts are—
4. This is a case where the workman has filed the
claim statement making a prayer that the order of
removal dated 13.01.2009 along with the order of
appeal passed against the workman by the
opposite party be held illegal and unjust.
5. Opposite party has filed the written statement
refuting the aversions of the claimant.
6. After exchange of pleadings several opportunities
were given to the claimant to produce oral as well
as documentary evidence, but the claimant did
not produce any oral documentary evidence. Even
he did not appear at the time of arguments.
7. Opposite party remained present throughout and
argued the case.
8. Opposite party has relied upon a decision 1981
(29) FLR V K Raj Industries Versus Labour Court,
Allahabad High Court, wherein the Hon'ble High
Court held—burden to prove order of termination
to be illegal-workman not appearing nor producing
evidence before Labour Court—Labour Court had
no jurisdiction to hold order illegal.
9. Therefore, considering all the facts and
circumstances of the case, I am also of the view
that initial burden lies on the workman to prove
his case. As he has miserably failed to produce
any evidence therefore, reference is decided
against the workman and in favour of the
management.
10. Reference is answered accordingly.
RAM PARKASH, Presiding Officer
ubZ fnYyh] 29 uoEcj] 2013
dkñvkñ 2661.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj fjtoZ cSad vkWQ
bafM;k ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp
vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/kdj.k] eqEcbZ ds iapkV ¼lanHkZ la[;k 2@46@2013½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 29@11@2013 dks izkIr gqvk FkkA
[lañ ,y&12012@96@2011&vkbZ vkj ¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 29th November, 2013
S.O. 2661.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 2/46) of
2013 of the Cent. Govt. Indus. Tribunal-cum-Labour Court
No. 2, Mumbai as shown in the Annexure, in the industrial
dispute between the management of Reserve Bank of India,
and their workmen, received by the Central Government on
29/11/2013.
[No. L-12012/96/2011-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL NO. 2, MUMBAI
PRESENT: K.B. KATAKE, Presiding Officer
REFERENCE NO. CGIT-2/46 OF 2013
Employers in relation to the mamagement of Reserve
Bank of India
The General Manager
Reserve Bank of India
Fort, Mumbai.
AND
Their Workmen
Shri Ramesh Babaji Mhadlekar
Maintenance Quarters No. 2
RBI Staff Quarters
Behind Maratha Mandir
Mumbai Central
Mumbai-400 008.
APPEARANCES:
FOR THE EMPLOYER
:
Mr. K.P.S. Kapoor,
Representative.
FOR THE WORKMEN
:
Mr. P.G. Uparkar,
Representative.
Mumbai, dated the 30th September, 2013.
AWARD PART-I
The Government of India, Ministry of Labour &
Employment by its order No. L-12012/96/2011-IR (B-I), dated
08.12.2011 (Transferred vide order dated 18/07/2013) in
exercise of the powers conferred by clause (d) of sub-
section (1) and sub-section 2(A) of Section 10 of the
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6869
Industrial Disputes Act, 1947 have referred the following
industrial dispute to this Tribunal for adjudication:
"Whether the action of the management of Reserve
Bank of India, Mumbai in dismissing Shri Ramesh
Babaji Mhadlekar, Driver from services of the Bank
vide their order No. 77/338 dated 31/01/2011 is legal
and justified? To what relief the workman is entitled?"
2. After receipt of the reference, notices were issued
to both the parties. In response to the notice, second party
workman filed his statement of claim at Ex-3. According to
the workman he was employee of first party since July 1991
as a Driver. He has driving license to drive light motor
vehicle. On the basis of the said license he was appointed
as a Driver. He was confirmed in the service on 17/01/1994.
He was driving light motor vehicle for about 22 years of his
service. On 9/12/2009 the workman was transferred to the
Issue Department, Fort Mumbai to drive a bullion van which
falls in the category of heavy motor vehicle. The workman
appraised his inability to drive bullion van as he was holding
light motor vehicle license and was appointed on the basis
of said license. The management neither replied his letter
nor made any clarification in the matter and kept silent.
Under the law he was not supposed to drive heavy motor
vehicle as he was holding driving license to drive light
motor vehicle only. Therefore refusal to obey the order of
his superior to drive heavy vehicle does not amount to
misconduct.
3. As the workman refused to drive heavy motor
vehicle the first party bank initiated disciplinary
proceedings against him under Regulation 32 of Reserve
Bank of India (Staff) Regulation, 1948. The said Regulation
is not approved by appropriate Government. The workman
had replied the show cause notice vide his letter
dt. 12/03/2010 alongwith certificate issued by the competent
authority RTO certifying that the license issued to the
workman at the time of recruitment was to drive light motor
vehicle only. The management did not accept his
representation and issued a charge sheet dated 28/04/2010.
He also replied the charge sheet. The inquiry officer
completed the inquiry in two sittings of few hours i.e. on
16/7/2010 & 11/8/2010. The proceedings were conducted
in English and partly in broken confused Hindi language.
No official translator was provided by the management.
The defence representative of the workman raised objection
and requested to hold the proceeding in Marathi. His
request was turned down by the Inquiry officer though he
was well aware that the workman as well as his defence
representative belonged to Class-IV category and were
not versed with English language and could not understand
the confused broken Hindi mixed with English words used
by IO and PO during the course of inquiry. The workman
has demanded copies of all the relevant documents on the
basis of which disciplinary proceeding was initiated. The
same were denied. The witnesses who made complaint were
not summoned. Therefore opportunity to cross examine
those witnesses was denied. There was gross violation of
the Principles on Natural Justice. The minutes of the inquiry
proceedings were in English. The workman and his defence
representative had signed the minutes without
understanding the contents therein. The DR had expressed
his protest about the same. The Hindi translation of the
documents were supplied after a time gap of more than two
months and do not bear signature thereon. The inquiry
officer did not take into account the report of RTO stating
that workman could drive only light motor vehicle and his
license was only for the same. The report of the inquiry
officer was unfair. The findings of the IO are preverse. He
held the workman guilty. On the basis of the report his
services were terminated.
4. The workman preferred appeal. However appellate
authority dismissed his appeal. Thereafter the workman
raised industrial dispute before ALC (C). As conciliation
failed, as per the report of ALC (C), the Labour Ministry
has sent the reference to this Tribunal. The workman prays
that as the inquiry is not fair and proper and the findings of
the IO are perverse, the order of dismissal from service be
set aside and he be reinstated in the service with full back
wages.
5. The first party resisted the claim statement vide its
written statement at Ex-4. According to them the workman
was appointed in the service of the Bank since 31/07/1991.
At the time of appointment he had produced copy of driving
license dt. 7/9/1987. On 9/12/2009 he was posted to issue
department. Next day the workman submitted a letter
addressed to Regional Director, RBI stating that he had
been posted to Issue Department and he was holding license
for light motor vehicle and in Issue Deptt. he was required
to drive heavy motor vehicle which is an offence under the
law. In Issue Department he was required to drive bullion
van for carrying remittances. He reported Issue Department
on 18/12/2009. In his letter he has stated that he shall not
drive heavy motor vehicle as it would be breach of law of
the land. As per the appointment letter dated 31/07/1991 he
was required to drive bank's fleet of automobiles cars, vans
bullion vans etc. Driving of bullion van which is heavy
motor vehicle is essential part of drivers' duties in the Bank.
As the workman refused to drive bullion van of the bank in
Issue Department, a show cause notice dt. 25/02/2010 was
issued to him. The workman replied the notice. His
explanation was found not satisfactory. Therefore he was
issued charge-sheet dt. 28/04/2010 for having committed
breach of Regulation 32 of RBI (Staff) Regulations, 1948 by
failing to comply with and obey the order or direction issued
by his superior as he refused to drive bullion van failing to
abide by the office discipline. The workman replied the
charge-sheet. His reply was found not satisfactory.
Therefore domestic inquiry was initiated against the
employee. The inquiry officer conducted the inquiry by
following the principles of natural justice and full
6870
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
opportunity was given to the workman to defend himself.
The IO has completed the inquiry in two sittings. He found
that workman as per his appointment order was required to
drive the vehicles of the Bank including the bullion van
and the workman refused to drive the bullion van. The IO
held him guilty for the misconduct failing to comply with
and obey the orders and directions issued by the superior.
The copy of the report was sent to the workman with show-
cause notice. After considering his reply the competent
authority held the workman guilty for the misconduct and
imposed punishment of termination of his services. The
appeal of the workman was heard on merit by Appellate
Authority and the same was also dismissed. The inquiry
was fair and proper and the findings of the IO are not
perverse. Therefore the first party prays that the reference
be rejected with cost.
6. My Ld. Predecessor has framed the preliminary
issues for my determination. I record my findings thereon
for the reasons to follow:
Sr.
Issues
Findings
No.
1. Whether the inquiry held
Yes
against workman is fair and
proper?
2. Whether the findings given by
No
the Inquiry Officer are
perverse?
REASONS
Issue No. 1:—
7. In respect of inquiry the workman has not disputed
that as he refused to drive bullion van show cause notice
was issued to him. He replied the notice. As his reply was
not satisfactory the disciplinary authority issued charge
sheet to him. They appointed inquiry officer. The workman
has not disputed the fact that the IO has explained the
charge to him. It is also not disputed that the IO has
examined the witnesses in presence of the workman and
his defence representative. The defence representative of
the workman cross examined the witnesss. The workman
has also admitted that he received copies of all the
documents produced in the inquiry proceedings. The
second party workman also admitted that he was given
opportunity to examine himself and lead his evidence. The
fact is also not disputed that after completion of hearing
the 10 has submitted his report. The copy thereof was sent
to the workman with show cause notice. Workman
submitted his reply and thereafter the disciplinary authority
has passed the order of dismissal of services of the
workman. In short the 10 has followed the procedure for
conducting the inquiry as contemplated by Hon'ble Apex
Court and has complied all the points laid down by the
Apex Court in Sur Enamel and Stamping Works Ltd. V/s.
Their Workmen 1963 ll LLJ 367.
8. In the case at hand the only objection raised on
behalf of the workman is that the inquiry proceeding was
recorded in English and when he demanded translated
copies of the inquiry proceedings, they supplied him Hindi
translated copies and they were supplied at late stage. In
this respect I would like to point out that the workman has
not contended anything in his affidavit at Ex-6 that the IO
has violated the principles of natural justice. On the other
hand witness on behalf of the Bank Shri A.N. Kulkarni has
stated in his affidavit at Ex-7 that IO has appointed a
translator who explained everything to the workman in
Marathi. This witness has also stated in his cross that
translator was provided to the workman during the inquiry.
He also denied that translated inquiry proceedings were
made available late to the workman. It was vaguely put in
his cross examination that the principles of natural justice
while conducting inquiry was not followed. However
workman does not say anything about the same in his own
affidavit at Ex-6. It shows that through translator everything
was explained to the workman in Marathi and the IO has
prepared inquiry proceedings in English. Furthermore it is
also clear that Hindi translated copies were also supplied
to the workman on his demand. In the circumstances it
cannot be said that there is violation of principles of natural
justice. On the point Bombay High Court ruling can be
resorted to in National Organic Chemicals Ltd. & Ors. V/s.
Pandit Ladaku Patil 2008 III CLR 716 wherein the inquiry
was conducted in Marathi and the evidence was recorded
in English. The Hon'ble Court held that, the inquiry cannot
be quashed for following such a procedure of recording
evidence in English.
9. In short the objection raised on behalf of the
second party workman is found devoid of merit that there
was violation of principles of natural justice. On the other
hand in the light of facts, circumstances and evidence on
record conclusion can be arrived at that the IO has
conducted the inquiry after following the principles of
natural justice. Thus I hold that inquiry was fair and proper.
Accordingly I decide this issue no.1 in the affirmative.
Issue no. 2:—
10. In this respect the fact is not disputed that the
workman was transferred by the first party to Issue
Department wherein he was directed to drive bullion van
which comes in the category of heavy motor vehicle.
According to the workman he was possessing license to
drive only light motor vehicle. Therefore as per the Motor
Vehicle Rules he was not authorized to drive heavy motor
vehicles. Therefore giving direction to drive heavy motor
vehicle cannot be obeyed and he was not under obligation
to obey the said direction. Therefore according to him he
has not committed any misconduct. According to him it is
not open for the employer to fish out some conduct as
misconduct and punish the workman even though alleged
misconduct would not be comprehended in any of the
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6871
enumerated misconducts. In this respect it is contended
on behalf of the first party that in the appointment letter it
is mentioned that workman was appointed to drive the
vehicles of the first party. It includes light motor vehicle
and heavy motor vehicle as well. According to them at the
time of recruitment the second party workman had produced
the driving license indicating that he was authorized to
drive transport vehicles w.e.f. 07/09/1987. His license was
renewed on 06/08/1989 till 06/08/1992. In this respect the
workman has denied that any such license was issued to
him. According to him his driving license was only for
driving light motor vehicles therefore when he was asked
to drive bullion van he had written a letter that as he had no
license to drive heavy motor vehicle he was unable to drive
the bullion van. The fact is also not disputed that the
second party has attended the staff driving course.
However according to him as his license was for light motor
vehicle, he did the course of light motor vehicle only. The
workman has produced on record his driving license. It
shows that it was for light motor vehicle and was renewed
upto 06/08/1992. In the circumstances the Ld. adv. for the
second party submitted that as workman was holding
driving license to drive light motor vehicle he was not
authorized to drive bullion van which comes in the category
of heavy motor vehicle. Therefore according to the Ld.
adv. for workman driving heavy motor vehicle by the
workman would amount to offence under Motor Vehicle
Act. Therefore it is submitted that even the higher authority
cannot ask or direct the workman to drive heavy motor
vehicle. Therefore the Ld. adv. submitted that the workman
has rightly pointed out the fact to the higher authority and
written letter to that effect. The workman has also admitted
the said fact in his cross examination that he had written
the letters M-1 & M-2. In his letter dt. 22/12/2009 it is
mentioned that he has never refused to do his duty on
light motor vehicle for which he is holding license and he
reiterate his stand that he would not drive heavy vehicle
and breach laws of land.
11. The fact is not disputed that the workman has
refused to drive bullion van which comes in the category
of heavy motor vehicle. According to workman as his
license is only for light motor vehicle he has refused to
drive heavy motor vehicle. Therefore according to him even
his superior cannot direct him to commit an act which
amount to an offence. Therefore he has written two letters
to his higher authorities and brought these facts to their
notice and had refused to drive the heavy motor vehicle.
Therefore according to the Ld. adv. for the second party
workman has not committed any misconduct, on the other
hand he has obeyed the law of the land. In this respect I
would like to point out that when workman was posted to
the Issue Department and was directed to drive bullion
van, instead of outrightly refusing to drive the heavy vehicle
he could have sought time of fifteen days or one month to
obtain license to drive heavy motor vehicle. A person who
is driving light motor vehicle for more than 20 years can
easily get the driving license to drive heavy motor vehicle.
Instead of seeking time to obtain necessary license the
workman has outrightly refused to drive the bullion van by
saying that it comes in the category of heavy vehicle and
his license is to drive light motor vehicle only. No doubt it
amount to disobedience and refusal to obey the order of
superior. The workman ought not have clung over the
technicality creating hardship to the employer and others
in the department. He could have sought few days' time to
obtain necessary license and the problem could have been
sorted out. Instead of that the workman has outrightly
refused to drive the bullion van. In the circumstances I
hold that the inquiry officer has rightly held him guilty for
the alleged charge of misconduct. In this respect further I
would like to point out that the conclusion arrived at by
the inquiry officer is based on the evidence on record and
admitted facts. This Tribunal is not sitting as appellate
court. Therefore though some other inference can be drawn,
the same is not permitted. The law on the point is laid down
by Hon'ble Supreme Court in US State Road Transport
Corporation & Ors V/s. Musais Ram & Ors. 1999 (83) FLR
226 (SC) wherein on the point Hon'ble Court observed that;
"The Court does not sit in appeal over the findings
of the Inquiry Officer. If the findings are based on
uncontroverted material placed before the IO, it
cannot be said that these findings are perverse."
12. In the light of above ruling and discussion herein
above, I come to the conclusion that findings of the Inquiry
Officer are not perverse. Accordingly I decide this issue
No. 2 in the negative and proceed to pass the following
order:
ORDER
(i) The inquiry is held fair and proper.
(ii) Findings of the Inquiry Officer are not perverse.
(iii) The parties are directed to argue/lead evidence
on the point of quantum of punishment.
Date: 30.09.2013
Sd/-
K. B. KATAKE, Presiding Officer,
CGIT-2, Mumbai.
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL NO. 2, MUMBAI
PRESENT
K. B . KATAKE, Presiding Officer
REFERENCE No. CGIT-2/46 of 2013
EMPLOYERS IN RELATION TO THE
MANAGEMENT OF RESERVE BANK OF INDIA
The General Manager
Reserve Bank of India,
Fort, Mumbai.
6872
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
AND
Their Workmen
Shri Ramesh Babaji Mhadlekar
Maintenance Quarters No.2
RBI Staff Quarters
Behind Maratha Mandir,
Mumbai Central,
Mumbai 400 008.
APPEARANCES:
FOR THE EMPLOYER
:
Mr. K.P.S. Kapoor,
Representative.
FOR THE WORKMEN
:
Mr. P.G. Uparkar,
Representative.
Mumbai, dated the 24th October, 2013
AWARD PART-II
The Government of India, Ministry of Labour &
Employment by its Order No.L-12012/96/2011-IR (B-I), dated
08.12.2011 (Transferred vide order dated 18/07/2013) in
exercise of the powers conferred by clause (d) of sub-
section (1) and sub-section 2 (A) of Section 10 of the
Industrial Disputes Act, 1947 have referred the following
industrial dispute to this Tribunal for adjudication:
"Whether the action of the management of
Reserve Bank of India, Mumbai in dismissing
Shri Ramesh Babaji Mhadlekar, Driver from
services of the Bank vide their order
No.77/338 dated 31/01/2011 is legal and
justified? To what relief the workman is entitled"
2. In the Part-I award the inquiry was held fair and
proper and the findings of the Inquiry Officer were found
not perverse. Now the following remaining issues are for
my determination in this Part-II Award. I record my findings
thereon for the reasons to follow.
Sr. Issues
Findings
No.
3.
Whether the punishment awarded to
the workman is disproportionate to
the charges proved against him?
Yes
4.
What relief the workman is entitled
Compulsory
to?
retirement
with all
retirement
benefits.
REASONS
Issue nos.3 & 4 :
3. In this case the workman was found guilty for
refusal to perform his duty as a Driver as he refused to
drive bullion van. Therefore he was held guilty for the
misconduct of failing to comply with and obey the orders
and directions issued by his superior. In this respect the
Ld. Adv. for the second party submitted that the workman
was asked to drive heavy motor vehicle. The fact is not
disputed that bullion van comes in the category of heavy
motor vehicle. Driving such a vehicle is an offence as
workman was holding license to drive light motor vehicle.
In this respect it was submitted on behalf of the first party
that, at the time of recruitment their requirement was to
recruit a driver having license to drive all types of vehicle.
In the case at hand fact is not disputed that the workman
was not having driving license to drive heavy motor
vehicles. Therefore he was not supposed to drive bullion
van.
4. On the point issue both the advocates have
submitted lengthy arguments and have referred number of
rulings. Instead of entering into the controversy I would
like to point out that when the workman was asked to drive
bullion van which comes in the category of heavy vehicle,
instead of outrightly refusing to drive the same, he could
have sought for time to obtain the necessary license to
drive heavy moto vehicle. He could have brought the fact
to the notice of his superior and could have sought for
time of 15 days or a month to obtain the necessary license
to drive heavy motor vehicle. No doubt it amount to an
offence to drive heavy motor vehicle without license to
that effect. The workman instead of seeking time to obtain
necessary license he has shown his adamant nature and
straight away refused to drive the vehicle. Therefore
departmental inquiry was initiated against him. There ought
to have some understanding and common sense with the
workman while dealing with the superior officers.
5. In this respect the Ld. Adv. for the second party
has submitted that illegal order of the superior need not be
obeyed by the employee. The Ld. Adv. has not produced
the full citation. He produced only one page wherein it is
observed that;
"A protest or disobedience against illegal order
may not be termed as misconduct in every case.
In an appropriate case it may be termed as
revolting to one's sense of justice."
6. No doubt, had he not in possession of any license
his refusal to drive a vehicle could have been justified. In
the circumstances it is clear that, though workman was
adamant, his incidental refusal to drive the heavy vehicle
to the certain extent could have been justified for want of
license to drive heavy motor vehicle. Had the workman
been a peon or a clerk without any driving license, his
straight away refusal to drive the vehicle though directed
by his superior, could have been justified. However in the
case at hand, as he was recruited as a driver, instead of
straight away refusing to drive, he ought to have sought
for time of few days to obtain the license to drive heavy
motor vehicle. Instead of seeking time to obtain necessary
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6873
license, he has out rightly refused to drive the van. In the
circumstances he was rightly held guilty and said finding
is therefore upheld. Though he was rightly held guilty, in
this backdrop I found that punishment of dismissal is
shockingly disproportionate because the workman had
assigned reason for not driving the heavy motor vehicle,
as his license was driving light motor vehicles only. In the
circumstances to meet the end of justice, I hold that though
the workman is guilty, instead of dismissal, compulsory
retirement with all retirement benefits would serve the
purpose. Thus I proceed to pass the following order:
ORDER
(i) Reference is partly allowed with no order as to
cost.
(ii) Punishment of dismissal imposed upon the
workman is hereby set aside instead of that, the
workman be retired compulsorily with all retirement
benefits.
Date: 24.10.2013
K. B. KATAKE, Presiding Officer
ubZ fnYyh] 29 uoEcj] 2013
dkñvkñ 2662.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj dukZVdk cSad
fyfeVsM ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp
vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/kdj.k] cSaxyksj ds iapkV ¼lanHkZ la[;k 27@2010½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 29@11@2013 dks izkIr gqvk FkkA
[lañ ,y&12012@27@2009&vkbZ vkj ¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 29th November, 2013
S.O. 2662.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 27/2010)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Bangalore as shown in the Annexure, in the industrial
dispute between the management of The Karnataka Bank
Ltd., and their workmen, received by the Central
Government on 29/11/2013.
[No. L-12012/27/2009-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
BANGALORE
Dated
:
11th November 2013
PRESENT :
SHRI S.N. NAVALGUND,
Presiding Officer
CR No. 27/2010
I Party
II Party
Sh. Sampath Kumar since
The Deputy General
deceased rep. by Smt. H.S
Manager, Karnataka Bank
Manjula & Sh. Madhu, No.
Limited, HR & IR
3284/A, 5th Cross, Sri
Department, HO:
Nanjundeswara Nilaya,
Mahaveera Circle,
Gayathri Nagar, Bangalore-21. Mangalore—2.
APPEARANCES:
I Party
:
Shri V.R. Prasanna,
Advocate
II Party
:
Shri Ramesh Upadhayay,
Advocate
AWARD
1. In this reference by the Central Government vide
Order No. L- 12012/27/2009-IR(DB-I) dated 02.07.2010 for
adjudication on the following:
SCHEDULE
"Whether the action of the management of the
Karnataka Bank in terminating the services of
Shri S Sampath Kumar w.e.f. 11.06.2008 is legal and
justified? If not what relief he is entitled to?"
after holding necessary enquiry the reference was
allowed by passing an Award on 06.02.2013 holding that
the Action of the Karnataka Bank Limited in terminating
the services of Sh. S. Sampath Kumar w.e.f. 11.06.2008 is
not legal and justified and that he is entitle for reinstatement
with full backwages, continuity of service and all other
consequential benefits that he would have received in the
absence of his impugned termination and the amount
received by him consequent to his impugned termination
is liable to be adjusted in the arrears of salary payable to
him and same was published in the gazette dated 23.03.2013.
When the same was assailed by the II Party/management
before the Hon'ble High Court of Karnataka in W.P. No.
33160/2013(L-TER) since it was brought to the notice that
before passing of Award the I Party workman was expired
leaving behind him Smt. H.S. Manjula and Sh. Madhu as
his wife and son respectively, the Hon'ble High Court by
order dated 30.09.3013 while confirming the Award as it
related to full backwages, reinstatement, continuity of
service remitted back the proceedings for an enquiry over
entitlement of persons claiming to be the legal
representatives of the deceased workman. After receiving
back the records from the Hon'ble High Court Sh. Prasanna
V.R. Advocate filed an application under Order 1 Rule 10
read with Order 22 Rule 3 of CPC to bring the wife Smt. H.S.
Manjula and a son Sh. Madhu of deceased I Party workman
as his legal representatives and as the learned advocate
appearing for the II Party also filed a Memo they are the
only legal representatives of the deceased I Party workman,
6874
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
they were allowed to be brought on record in place of the
deceased I Party workman. Since the II Party admits that I
Party workman died leaving behind him his wife Smt. H.S.
Manjula and a son. Sh. Madhu as his only legal
representatives they are both entitle for the amount that
would have been received by the deceased I Party workman.
Hence, I pass the following
ORDER
It is declared that Smt. H. S. Manjula the wife and
Sh. Madhu, son of the deceased I Party workman are entitle
for full backwages that was payable to the deceased
workman till the date of his death and other terminal benefits
consequent to his death.
S.N. NAVALGUND, Presiding Officer
ubZ fnYyh] 29 uoEcj] 2013
dkñvkñ 2663.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,pMh,Qlh
cSad fyfeVsM ds izca/k ra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds
chp] vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/kdj.k dkuiqj ds iapkV ¼lanHkZ la[;k 14@2012½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 29@11@2013 dks izkIr gqvk FkkA
[lañ ,y&12012@83@2011&vkbZ vkj ¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 29th November, 2013
S.O. 2663.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 14/2012)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Kanpur as shown in the Annexure, in the industrial dispute
between the management of the HDFC Bank Ltd., and their
workmen, received by the Central Government on 29/11/
2013.
[No. L-12012/83/2011-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE RAM PARKASH, PRESIDING OFFICER,
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT, KANPUR
Industrial Dispute No. 14 of 2012
Between-
Shri Bhupendra Kumar,
S/o Sri Ram Shankar,
12/400, Gwaltoli,
Kanpur.
AND
The Manager,
HDFC Bank Ltd.,
555 Subhash Chowk,
Auraiya,
District Auraiya
AWARD
1.
Central Government Mol, New Delhi, vide notification
No. L-12012/83/2011(IR(B-I) dated 10.02.2012, has
referred the following dispute for adjudication to this
tribunal.
2.
Whether the action of the management of HDFC Bank
Ltd in terminating the services of Sri Bhupendra
Kumar son of Sri Ram Shankar as claimed by him
w.e.f. 25,01.2010 is legal and justified ? To what relief
the workman is entitled?
3.
Brief facts are.
4.
It has been alleged by the claimant that he was
appointed as Deputy Manager Retail on 18.08.09 by
HDFC Bank at Gonda Branch U.P. His nature of duty
was of workman but the appointment has been
shown as Dy. Manager. After appointment he was
sent to Unnao instead of Gonda, therefore, the
management was adopting unfair labor practice. It
has further been alleged by the claimant that although
he was appointed for the retail work but he was forced
to marketing work of which he was not having any
experience. Due to the above reasons he got mentally
disturbed and due to the pressure of the management
he submitted hi resignation on 25.01.10 to the Deputy
Manager Human Resources Department Gurgaon.
Thereafter he sent a letter on 08.09.10 withdrawing
his resignation letter, by registered post. But when
he reached office he was not permitted to work and it
was said that his resignation letter has been accepted
and he was ceased to work under the management.
5.
It is said that he was not informed in wirting of his
acceptance of his resignation letter therefore the
action of the management is void and unjust.
Therefore he has prayed that he may be reinstated in
service with full back wages and all consequential
benefits.
6.
Notices were sent to the opposite party but they did
not appear or filed any reply.
7.
Heard and perused the whole file.
8.
Claimant has filed his affidavit as W.W.1 in support
of evidence. He has also filed documents paper No.
6/3 -6/18 vide list dated paper No. 6/2.
9.
I have examined each and every document.
10.
It is a principle of law that a person who wants some
relief from the court or the tribunal the initial burden
lies on his shoulder. He has to prove his case prima
facie even in the absence of the opposite party.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6875
11.
Claimant was appointed on 18.08.09 as Deputy
Manager as per his statement and documents. He
stated that when he was frequently transferred and
was under pressure to do marketing work also he got
mentally disturbed and submitted his resignation on
25.01.2010.
12.
There is no such paper from which it may be inferred
that this resignation letter was submitted by him
under the pressure of the management.
13.
The applicant thereafter kept on sleeping on several
months and one fine morning he awaked and
submitted an application claiming for the withdrawal
of the resignation letter. There is photocopy copy
paper no.6/12 in this respect. Though the workman
has not filed any receipt to the effect that he had
actually sent the letter before the management
withdrawing his resignation letter. He has filed certain
papers which he has received from the bank which is
paper no.6/13-17. From these documents it can be
safely inferred that the bank has stated that the
resignation of the workman has been accepted on
the same day i.e. 25.01.2010, but the workman was
required to serve the notice as per terms and condition
of the appointment offer, as the applicant has not
complied with terms of the appointment and moreover
according to the management there remains recovery
of huge amount against the workman.
14.
Therefore considering the all aspects and
circumstance case of the case it is found that the
applicant himself chose to submit his resignation
even without serving any notice. It was not expected
from him that he will not serve any notice or will not
enquire after submission of his resignation. He did
not care to go his office and to inquire in the matter.
One fine morning after the gap of more than 9 months
he submitted an application for withdrawing his
resignation as alleged by him. Whereas the
management has already accepted his resignation
on the same date i.e. 25.01.2010.
15.
I find that the management has not committed any
illegality in accepting his resignation letter. Therefore,
I find that there is no illegality in the action of the
management. Accordingly the workman is not
entitled for any relief pursuant to the present
reference order.
RAM PARKASH, Presiding Officer
ubZ fnYyh] 2 fnlEcj] 2013
dkñvkñ 2664.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj cSad vkWQ
cM+ksnk ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/kdj.k@Je U;k;ky;] ubZ fnYyh 2 ds iapkV ¼04@05½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 02@12@2013 dks izkIr gqvk FkkA
[lañ ,y&12012@207@2004&vkbZvkj ¼ch&II½]
jfo dqekj] vuqHkkx vf/kdkjh
New Delhi, the 2nd December, 2013
S.O. 2664.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 04/05)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court No 2,
New Delhi as shown in the Annexure, in the industrial
dispute between the management of Bank of Baroda and
their workmen, received by the Central Government on
02/12/2013.
[No. L-12012/207/2004-IR(B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT - II
DELHI
Present:- Shri Harbansh Kumar Saxena
ID No. 04/05
Sh. Virender
Versus
Bank of Baroda
AWARD
The Central Government in the Ministry of Labour
vide notification No L-12012/207/2004-IR(B-II) dated 5/1/
2005 referred the following industrial Dispute to this tribunal
for the adjudication :—
"Whether it is a fact that Shri Virender was engaged
as temporary Peon during the period Sept. 1992- Nov.
2000 by the management of bank of Baroda? If so,
whether the demand of the Bank of Baroda Employees
Union for his reinstatement w.e.f. 01.12.2000 and
regularization of his service is justified and legal and
what relief is the disputant concerned entitled to?"
Reference was received in this tribunal. Which was
register as I.D No. 4/05 and claimant was called upon to file
claim statement on 1-04-2005.
On 12/07/2005 Ministry of Labour issued
corrigendum as follows:—
"Whether it is a fact that Shri Virender was engaged
as temporary Peon during the period Sept. 1992- Nov.
2000 by the management of bank of Baroda? If so,
whether the action of the management in terminating
him from service is justified and whether the demand
6876
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
of the Bank of Baroda Employees Union for his
reinstatement w.e.f. 01.12.2000 and regularization of
his service is justified and legal and what relief is the
disputant concerned entitled to?"
After service of notice workman/claimant filed claim
statement on 5/10/2005. Wherein he stated as follows:—
1.
That the workman Shri Virender was engaged in
September 1992 by the management of Bank of
Baroda, Zonal Office Delhi and was employed at
Parliament Street Branch New Delhi. He continued
to work in the Bank as Peon and performed the duties
of regular peon.
2.
That there were number of other persons employed
as temporary employees in other branches of the
bank in Delhi as peons during that period. Hence an
Industrial Dispute was raised by the Union for
absorption of temporary employees vide its letter of
25-01-95. The management filed its reply dated
19-05-1995 before the Asstt. Labour commissioner
(Central). Meantime the bank made a requisition to
the Employment Exchange Delhi for filling up the
vacancies existing in branches in Delhi. Four names
were sponsored including the workman Shri Virender
by the Employment Exchange out of seven temporary
employees in March, 1996. The Management Bank
interviewed the candidates and recruited them except
the workman Shri Virender. Even after March 1996
Shri Virender, the Workman was continued to be
employed as temporary peon. Though the Bank not
selected the Workman for permanent employment
with ulterior motive, it still continued the employment
of workman as temporary from March 1996 till
30-11-2000. This shows oblique motive and unfair
labour practice. The non selection of Workman in
March 1996 for permanent employment was not for
bonafide purpose and to deny permanent
employment only, he was not selected at all. This
would amount to victimization also as the Union had
been raising the dispute of regularization of workman
in the past. Hence the workman was victimized as his
grievance was raised by way of Industrial Dispute
by the Union and the Federation.
3.
That again the All India Bank of Baroda Employees
Federation raised dispute as to the cases of temporary
employees in Bombay. This included the case of
Workman. During the conciliation Proceedings held
on 25-09-2000 the representative of the Bank
Management stated that the workman was continued
to be engaged as temporary peon and the matter has
been to the Govt. of India for permission to regularize
the services of temporary employees and the
Management would regularize the services of the
workman Shri Virender also. Hence the Union
withdrew the dispute.
4.
That the Workman continued to work as temporary
peon till 30-11- 2000 and on which date the Branch
Manager told the Workman not to come work from
1-12-2000. Hence the services of Workman Shri
Virender were retrenched on 1-12-2000 in gross
violation of Section 25-f of I.D Act. No notice or
notice pay in lieu of notice or retrenchment
compensation was given at the time of retrenchment.
Hence the retrenchment was void ab-initio.
5.
That the Management filed its reply dated 09/10 Aug.,
2000 to Regional Labour Commissioner (Central)
Mumbai admitting therein that the Workman was
employed and the case was forwarded to the Govt.
of India for permission for regularization. It was also
stated by the Management of the Bank during the
Conciliation Proceedings of 25-09- 2000 that it was
seeking permission from Govt. of India for
regularization of the Workman and other employees.
6.
That the Workman had continuously been working
in the Bank and had completed more than 240 days
of continuous service in the 12 calendar months
preceding the date of termination of services.
7.
That the action of the Bank in engaging/employing
and continued Sh. Virender as temporary peon and
extracting work of regular peon but paying less than
the scale wages prescribed under the Bipartite
Settlement and payable to the regular peon. Non
issuing of order of appointment and terminating the
services without a written order; not allowing to mark
attendance etc. would amount to unfair labour
practice.
8.
That no leave facilities were extended to the workman.
The workman was even asked to work on Sundays.
There was no paid weekly holiday given to the
workman. No other service benefits was given to the
workman. Under law the workman is entitled to regular
pay scales as applicable to other regular employees
as he has performed duties of regular nature
continuously.
9.
That the action of the Bank in keeping the workman
as temporary while extracting the permanent and
regular nature of duties continuously is unfair labour
practice. The non-payment of regular scale, paying a
meagre amount as wages, non-issuing of order of
appointment in violation of para 595 of Sastry Award,
violating the provisions of Bipartite Settlement,
denying the service benefits including leave facilities
etc. would amount to unfair labour practice.
10.
That the workman is entitled to the relief of
reinstatement with full back wages and other service
benefits as the termination being violative of Section
25-F of ID. Act.
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6877
11.
That under clauses 20.7 and 20.8 of the first Bipartite
Settlement temporary hands cannot be employed
beyond a period of three months. That too for limited
purposes of increase in work and the permanent
employee is on leave. The workman was not employed
for the above purposes. The workman was
continuously employed more than 240 days services
from 1992 to 30-11-2000. The prolonged continuous
service itself is a proof that the workman was
performing permanent nature of duties and existence
of permanent vacancy.
12.
That the provisions of Bipartite Settlement and that
of Sastry Award particularly para 495 and 520 have
been violated in employing continuing and
retrenching Shri Virender. The principles of 'Last come
first go' was not followed while retrenchment the
Workman. No Seniority List was maintained as
required Under Rule 76,77 &78 of the Central Rules,
ID Act. The Bank has committed unfair labour practice
and victimization.
13.
That the prolonged continuous employment clearly
establishes the fact that there was existence of
permanent vacancy and requirement. Therefore the
workman was employed continuously. Hence a right
has accrued to the Workman to remain in the
employment as permanent peon. Hence his services
after reinstatement needs to be regularized as the
retrenchment being void ab-initio.
On the ground mentioned in the claim statement
claimant prayed as follows:-
It is therefore prayed to this Hon'ble Tribunal that it
may please to pass Award holding that the workman is
entitled to reinstatement as the retrenchment/termination
is void ab-initio being in gross violation of Section 25-F of
the ID. Act and is entitled to all consequential benefits
including full back wages. It may further be ordered that
the workman is entitled to be regularized from March 1996
on which date other three workmen were made permanent
by regularization/absorption and also order to pay the
consequential benefits of such regularization from March
1996 onwards. Any further relief as may be found necessary
in the given facts and circumstances may also be ordered.
On 21/12/2006 written statement on behalf of Bank
of Baroda was filed.
On the basis of which Bank of Baroda prayed as
follows:—
In the fact & circumstances of the case mentioned
hereinabove and having regard to the provisions and
pronouncements of law it is now therefore prayed that the
Hon'ble Tribunal may kindly;
A)
hold and declare that the order of reference is bad in
law not in conformity with the mandate of law having
been made without application of mind not referring
real dispute.
B)
hold and declare that the Hon'ble Tribunal lacks
competence & jurisdiction to pass an award granting
regularization of the service of the workman
concerned who is not in employment of the O.P.
Bank;
C)
Forfeit union's right to file its plea or SOC and pass
award considering O.P.'s submissions and the
provisions and pronouncements of law which are
referred to above and may further be referred at any
stage, if necessary;
D)
hold and declare that the amending order of reference
is incompetent and ultra vires the Government's power
to amend reference already made;
E)
pass any other order or orders as the Hon'ble Tribunal
may deem fit and just in the facts and circumstances
of the case including costs of these proceeding to
the O.P.
F)
hold and declare that of discontinuing engagement
of the workman as daily wager is just and legal.
Claimant in reply to written statement filed his
rejoinder and virtually denied allegations of written
statement and clarified his case.
My Ld predecessors has not formulated any other
issue but tried to determine question of determination sent
to Tribunal for adjudication.
In support of his case workman Sh. Virender filed his
affidavit on 24/07/2007. He was cross-examined by Sh. T.C.
Gupta, A/R for the management on 11/12/2007.
Workman in support of his statement produced WW2
Sh. R.L Virmani on 08/01/2008. Sh. R.L. Virmani, WW2 was
cross-examined by Shri T.C. Gupta on 12/02/2008.
Management in support of his case produced no
evidence. His evidence was closed on 03/11/2008.
Written submission on behalf of workman were filed
on 24/11/2011. Which are as follows:—
That the workman was engaged in September 1992
by the management of Bank of Baroda, Zonal Office, New
Delhi and posted at Parliament Street Branch as a Peon and
he continued to work as temporary employee as several
posts of peons had existed in various branches of the Bank
and there were other temporary employees also employed
as peons against those vacancies. He worked in the Bank
from September 1992 to 30th November 2000 regularly on
temporary basis. As the Management was extracting work
of regular nature and continued to treat them as temporary
employees the Bank of Baroda Employees Union Delhi
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THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
raised an Industrial Dispute before the Regional Labour
Commissioner at New Delhi in January 1995 for
regularization of services of those employees. The
management filed the reply and that in the meantime the
Bank made a requisition to the Employment Exchange, New
Delhi for filling up the vacancies of peons existing in the
Branches. In response to Bank's requisition the
Employment Exchange sponsored the names of the
candidates which included the name of the Workman also.
He was interviewed by the management alongwith other
candidates in March 1996 but was not selected. However
the Bank management continued to engage the workman
on temporary basis even there after.
As large number of vacancies of peons and sweepers
were existing in various branches of the Bank in other parts
of the country. All India Bank of Baroda Employees
Federation with Head Quarters at Bombay raised an
Industrial Depute before the Regional Labour Commissioner
© Bombay for regularization of services of temporary
employees. This included the name of the workman also.
The management filed its reply before the Regional Labour
Commissioner © Bombay on 10.08.2000 in which it was
stipulated that the cases of temporary employees have
already been forwarded to the Govt. of India for permission
and the case of the workman would be considered along
with other temporary employees after the receipt of
permission of the Govt. A copy of the said letter is enclosed
and marked as annexure A. It is submitted that during the
conciliation proceedings held on 25.09.2000 at Bombay the
representative of the Management stated that the workman
was continued to be engaged on temporary basis and the
matter has been sent to the Government for permission to
regularize the services of the temporary employees and the
management would regularize the services of Sh. Virender
also. A copy of proceedings held on 25.09.2000 is enclosed
and marked as Annexure 'B'
In view of the assurance of the management, the
Union withdrew the case to pave the way for regularization
of services of temporary employees including the workman.
However, contrary to the assurances of the
management to regularize the service of the workman after
receipt of permission from Govt., the management terminated
the services of the workman w.e.f. 1.12.2000 and he
continues to be unemployed till date even after receipt of
permission from the Govt. It is submitted that the Govt.
accorded the permission to the Bank. The management
signed a tripartite agreement with All India Bank of Baroda
Employees Federation before the Regional Labour
Commission (C) Mumbai in March 2008 for Regularization
of the Services of the temporary employees. A copy of the
agreement is enclosed and marked as Annexure C. However
while the management has regularized the service of several
temporary employees, the Management has not honored
its assurance given before the Regional Labour
Commissioner Mumbai on 25.09.2000 to regularize the
services of the workman. The workman had worked for
more than 240 days in a calendar year. He worked in the
Bank from September 1992 to November 2000 regularly
when his services were terminated without any notice.
That the action of the management in terminating
the services without any notice is arbitrary, unjust, unfair
and harash. The Bank is a Public Sector bank and it is
unfair on the part a public sector bank to exploit the
workman by engaging them on temporary basis against
permanent vacancies and exploiting them by not making
full payment of salary as per rules and depriving the
workman of permanent employment.
On the basis of contents mentioned in aforesaid
paragraphs Workman Prayed that it may be pleased to direct
Bank to take back the employee in its services with
retrospective effect from 10.12.2000 with full back wages
and with other consequential benefits. This Hon'ble
Tribunal may further pass any other order/orders as the
tribunal may deem fit in the facts and circumstances of the
case.
In Reply written submission to workman management
filed written submission as follows:—
1.
In brief the case of the workman was that he was
engaged by the bank in September 1992 as a Peon on
temporary basis he further alleged that there were
number of other persons who were also employed
by the management on temporary basis in various
branches of the bank.
2.
It is further case of the workman that he worked with
the bank on temporary basis upto 30.11.2000 though
in March 1996 there were vacancies in the bank and
the management of the bank taken the interview of
the candidate for permanent recruitment and he was
also one of the candidate.
3.
That he was not appointed despite the facts that he
was interviewed however even after March 1996 he
continued in the services upto 30.11.2000 on a
temporary basis. On these allegation an industrial
dispute has been raised by the union and the
federation of the bank. It is further alleged that during
the conciliation proceeding held on 25.09.2000, the
representative of the bank management stated that
the workman was continued to be engaged as
temporary peon and the matter has been under
consideration to regularize the services of the
temporary employees after taking the permission
from the Govt. of India and such the conciliation
proceedings pending before the conciliation officer
was withdrawn by the Union of the Bank.
4.
That it is further case of the workman that his services
were terminated by the branch manager on
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6879
01/12/2000 in Gross Violation of section 25F of I.D
Act and even no notice or notice pay in lieu of notice
or retrenchment compensation was given at the time
of retrenchment by the management.
5.
It is the case of the workman the he had completed
more than 240 days of continues service in the 12
calendar months preceding the date of termination
of service. On these allegations the present case has
been filed by the workman in his individual capacity.
6.
The bank had filed their written statement and taken
the following preliminary objections:—
i. Without prejudice to the submissions dated
05.04.2006, 20.07.2006 and 24.08.2006 and
notwithstanding that the Hon'ble Tribunal
orders dated 20.7.2006 and 20.08.2006 are per
se arbitrary and violative of law, the opposite
party begs to further submit as under:—
ii. At the outset it is stated that the purported
corrigendum (dated 17.07.2006), issued by the
government nearly one and half year of the
making of original order of reference on
20.01.2005, is virtually a fraud on law and abuse
or misuse of power in as much as that by the
aforesaid purported corrigendum no clerical
or typographical error has been sought to be
corrected or rectified by the government in the
original terms of reference but, in the garb of
corrigendum the government has inserted and
added fresh additional material in the original
terms of reference which amount to super
cession thereof without any power to do so.
iii. Consequently the purported corrigendum is
ultra vires the government's power. In that view
of the mandate of law, this Hon'ble Tribunal
may not therefore validly undertake
adjudication of the amended reference dispute
disguised by the government as corrigendum.
iv. The Hon'ble Tribunal's assumptions that "the
instant reference dispute is an 'individual
dispute' (within the ambit & scope of Sec.2-A
of the ID Act) (briefly, the Act) sponsoring of
which by the union was not necessary in view
of amended sec. 2-A" are patently erroneous,
misplaced and fallacious on facts and law in as
much as that (i) on a bare perusal of the order
of reference it is explicit that the dispute referred
by the government for adjudication of this
Hon'ble Tribunal is not an 'individual dispute'
made at the instance of the workman within
the ambit & scope of sec.2- A of the act but is
a collective industrial dispute between the
union and the management of the Bank who
are arrayed as parties to the reference dispute
as envisaged u/s 2(k) of the act and this is so
because the dispute or difference as to
regularization could not have been raised and
referred for adjudication at the instance of the
workman u/s 2-A of the act unless and until
the same was espoused by the union or
substantial number of employees of the Bank
as is the instant case in which the parties to
the reference are the union (BOBEU) and the
Bank, also evidenced by the Tribunal
summoning the parties to the reference order.
The Tribunal's assumption that section 2-A of
the act has been amended is also misconceived
and erroneous, the section continues to be
the same in substance and content since its
insertion in the act in the year 1965.
v. That the union (BOBEU) which is a party to
the reference dispute, has neither filed it
pleading i.e. statement of claim as required of
it under rule 10-B of the Industrial Disputes
(Central) Rules, 1957, or in compliance of
government's directives contained neither in
the order of reference nor also by orders of
this Hon'ble Tribunal. Nor has the union
appointed its representative to appear on its
behalf; the entire proceedings held or would
be held will therefore invalid.
vi. The reference order is bad in law incapable of
adjudication as it has been belatedly made,
the subject matter of the dispute, if any, is of
antiquity and thus may prejudice the
management's interest.
vii. In view of the above contentions the Hon'ble
Tribunal is a forum non jurist to hold
adjudication of the terms of reference vide
invalid order of reference. Any proceedings if
any that may be held by the Hon'ble Tribunal
would be incompetent and unauthorized and
thus invalid and any award if made by the
tribunal would equally be incompetent,
unauthorized and invalid.
viii. The captioned union raised an industrial
dispute for absorption of 7 temporary
employees and Sh. Virender kumar was one of
them.
ix. The Employment Exchange sponsored the
names of seven persons including Virender for
recruitment of subordinate staff against indent
place by the Bank in March 1996. Accordingly,
he alongwith other sponsored candidates were
interviewed by the panel constituted for the
purpose. Sh. Virender kumar was not found fit
for the post of subordinate staff by the
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THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
interview panel, consequently his further
engagement was discontinued by the Branch
Manager.
x. In View of the fact situation mentioned above
the continued engagement of Virender by the
branch manager of Sansad Marg Branch of
the Bank did not amount to termination of his
services in any manner whatsoever because
he did not have an appointment in the Bank
capable of being continued in Law. It is
reiterated that stoppage of engagement of
Virender did not amount to termination of his
services as he did not have any appointment,
as has been erroneously assumed by the
Government, the stoppage of deployment of
Virender was not in infraction of any provision
of law, was neither unjustified not improper
nor designed but was bonafied. The Bank
herein being Government of India's
undertaking in the public sector and also a
‘‘State’’ under Article 12 of the constitution is
bound to obey the Constitutional mandate &
obligation under statutory provisions. In
replacing the workman Virender by a duly
selected appointee the management complied
with its statutory obligation.
xi. In the facts & circumstances stated above it is
abundantly held that the order of reference is
incompetent and invalid as the government
has made the same in the specified terms
without application of mind in that the terms
do not relate to the real subject matter i.e. the
nature of deployment or engagement of the
workman Virender —Did he hold any
appointment in the Bank.
xii. That the management's action/decision, not
continue to engage the workman Virender as a
duly wager on the posting of a duly appointed
person i.e. replacement of the workman
Virender by a duly appointment person,
Virender having failed to successfully complete
in the selection process, has the approval of
recent pronouncements of law by Hon'ble Delhi
High Court and Hon'ble Supreme Court some
of which are mentioned below:—
a.
Nagar Mahapalika (Now Municipal
Corporation)Vs. State of U.P. & Others
Jt. 2006 (5) SC 318; HELD; "appointment
made in violation of the statutory
provisions and contrary to article 14 and
16 being illegal, the termination of the
services of such persons cannot be
considered to be bad in law".
b.
Secretary, State of Karnataka & Others
Vs Uma Devi & Others 2004 (7) SCC 132;
HELD
"Public employment in a sovereign
socialist secular democratic republic has
to be set down by the Constitutional and
the law made there under. Out
constitutional scheme envisages
employment by the government and its
instrumentalities on the basis of a
procedure established in that behalf."
c.
Pankaj Gupta & Others Vs State of J&k,
2004 (8) SCC 353.
d.
State of Himachal Pradesh Vs Suresh
Kumar Verma, 1996 (1) SCR 972 HELD;
"a person appointed on daily wage basis
is not an appointee to a post according
to Rules.
e.
Ashwani Kumar Vs State of Bihar, 1996
Supp. (10) SCR 120;
f.
State of Uttar Pradesh Vs. U.P.
Madhyamik Shiksha Parishad Shramik
Sangh, 2004 Lab IC 879, All HC HELD;
"Daily wage casual workers engaged
according to exigencies of work in office
cannot claim regularization"
g.
R.B. Bhose & Others Vs. Chief Manager,
Bank of Baroda Special Civil Application
No. 642 of 1996 under Articles 14, 16, 226
&227 of the constitution Gujarat HC, date
31.07.1996 HELD;
h.
Delhi Development horticulture
Employees
Union
vs
Delhi
Administration; 1992 (A) SCC 99.
i.
State of Haryana Vs Piara Singh, 10/992
(4) SCC 118.
j.
Amreli Municipality Vs Gujrat Pradesh
Municipal Employees Union 2004 (107)
FJR 105 Guj. HC FB HELD;
"No person can be regularized if he has
entered service without following
selection process under title of daily rate
employee. Labour courts and Tribunals
have no jurisdiction to pass award
regularization of services of employees
without there being no post.
k.
State of U.P. Vs Neeraj Awasthi, 2006(1)
SCC 667; HELD;
"Regularization cannot be a mode of
appointment."
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6881
1.
Airport Authority of India Vs. Dharampal,
2006 III AD 701 Delhi HC function and
can only be ordered by competent
authority and not be court;
m.
Eagle fashions Vs. secretary labour
1999(81) FLR Delhi HC 887 DB.
xiii.
Before giving parawise reply to the statement
of claim, it would be expedient in the interest
of justice to bring on record the prevalent
factual and legal position for proper
adjudication of the controversy in issued and
to enable the court of appreciate the
controversy in its correct perspective.
xiv.
The appointment in any post in Bank is
governed by certain statutory rules and
regulations in force from time to time. Any
appointment in the subordinate cadre has to
be made by an authority competent to make
such appointment within sanctioned vacancies
and also subject to fulfillment of eligibility
criteria's for such appointment. In the normal
course, employment of persons in sub-staff
cadre in the bank can be done only through
employment exchange. If only, no suitable
candidate is available and a certificate is issued
by the Employment Exchange to this effect,
other sources of recruitment are to be
considered the statutory bodies an government
organizations should adhere to the rules and
that mere notification to the employment
exchange is just not enough but the vacancy
should also be filled by the candidates
sponsored by the employment exchange. It is
mandatory by the Bank to abide the aforesaid
directives of the Central Government.
xv.
There are catena of judgments pronounced
by various courts in this behalf that if the
genesis itself I infraction of the rules, if it is
violation of the provisions, claim of
regularization or reinstatement cannot be held
as valid and legal, Regularization cannot be
claimed as a matter of right. An illegal
appointment cannot be legalized by taking
recourse to regularization. What can be
regularized is an irregularity and not an illegality.
xvi.
It is settle legal preposition that any
appointment made against the rules, violate
the public policy and thus being void cannot
be enforced.
7.
It is further case of the management that the workman
Sh. Virender was never employed by the bank. He
was only engaged as a Daily Wager at its Parliament
Street Branch, New Delhi by the branch manager
from time to time accordingly to the need of the
branch.
8.
The employment in the Bank is the public
employment covered by Employment under the State
and the Constitution of India under Article-16
guarantees the equality for such employment.
Employment Exchange is the only agency where any
person seeking employment can register himself and
reference to employment exchange guarantees the
equality of opportunity of reemployment.
9.
The reservation policy of Government of India
framed in consonance with the Constitution of India
under no circumstances can either be ignored or
diluted by any constituent. In the recruitment
procedure particularly in a Government of India
Undertaking like Bank, is it mandatory for compliance
of the reservation criteria in respect of SC, ST, OBC,
Phy Handicapped and ex-serviceman as prescribed
by Government from time to time of recruitment. Non-
compliance of the same would amount to deprival of
the constitutional safeguards provided to weaker
sections of the society.
10.
It is submitted that the provisions of Industrial
Dispute Act cannot override the constitutional rights
of the persons who have been selected by the stop-
gap arrangement cannot be read so as to defeat the
constitutional rights as otherwise it would defeat
the right of equal opportunity envisaged under
Article 16 (1) of the constitution. It is, therefore,
submitted that's the so called protection under
chapter (9a) of the Industrial Disputes Act would
not operate under such circumstances and the
candidates under instances mentioned above could
claim no preferential or statutory rights over others
who are appointed after complying with the process
and selection.
11.
It is further submitted that for a post where there are
recruitment rules, the recruitment shall be in
accordance with the rules. It cannot be said that the
person who is engaged purely on temporary basis
as a stop-gap arrangement without following the
proper procedure would get the right to be appointed
permanently.
12.
If the person who has been engaged as a stop-gap
arrangement is made permanent merely on the
ground that he has worked in the past for some time,
then the entire rules could be easily be passed, by
interested person.
13.
If such demand is conceded, the above individual
who is to selected as per the rules would get the
benefit of being appointed to the post without due
eligibility or without facing any competition from
eligible candidates which could be unfair unjustified.
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THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
14. That the Union (BOBEU) raised an industrial
dispute and initiated conciliation proceedings in respect
of a workman service of the Bank. The Management of the
bank resisted the union's demand before the Regional
Labour Commissioner (C) New Delhi and Bombay. On the
failure of conciliation proceedings the Central Government
made an order of reference which is registered as I.D. Case
No. 4/2005 in this Tribunal. Copies of the Union's
Application/SOC field before the conciliation officer,
management's reply thereto and the Union's rejoinder etc.
are appended herewith as Annexure-1. Colly. That having
registered the reference as I.D. 4/2005, the Hon'ble Tribunal
issued notice of motion to the management of the bank
and the union above named being parties to the order of
reference and industrial dispute. Despite Government's
direction in the order of reference and this Hon'ble Tribunal
notice the opposite party union has not entered appearance
and filed by on Sh. Virender and is on the statement of
claim which is filed by one Sh. Virender and is on the file of
the Hon'ble Tribunal is incompetent and invalid and ought
not to have been taken on record by the Hon'ble Tribunal
much less directing the management to file its written
statement in reply thereto. It is further submitted that the
workman Virender cannot be deemed to be a party to the
reference because by virtue of the terms of reference neither
he could raise a dispute about his regularization nor could
the Government make the reference at his instant in that
behalf.
15. A long line of judicial dicta, since the Hon'ble
Supreme Court's decision in the case of Central Provinces
Transport Services Vs. Raghunath Gopal Patwardhan (1957
I LLJ 27 SC) had firmly established that in view of principle
and policy of collectively bargaining an individual dispute
could not per se be an industrial dispute but could of course
become one only if it was sponsored and espoused by a
trade union or a substantial number of workman of the
establishment as a collective dispute. Since this position
of law created hardships for whose individual workman
who were discharged, dismissed retrenched or whose
service were otherwise terminated and who could not find
support of a union or appreciable number of workman of
the establishment to espouse those workman's cause, the
Central Government, realizing the hardships of individual
workman amended the Ld. Act, 197 by engrafting definition
of Industrial Dispute in Section 2(K). Section 2-A has thus
done away with, though of course to a limited scope, the
requirement of espousal of the individual dispute for
converting the same into industrial dispute in four excepted
nature of case. Any other type of dispute e.g. promotion
etc. concerning an individual does not, however fall within
the contemplation of section 2-A and it will thus be
continued to be governed by the principle of law in
connection with conversion of individual dispute into an
industrial dispute by espousal.
16. In Ram Prasad Vishwakarma Vs. Industrial
Tribunal [1996 I I LLJ 504 (507)] SC, the Hon'ble Supreme
Court held that where individual dispute becomes an
industrial dispute by virtue of being sponsored and
espoused by a trade union or considerable number of co-
workers, individual workman is at no sage a party to
industrial dispute independently of the union. The principle
of law has therefore being that when an industrial dispute
is raised by a union or a group of workman in respect of the
grievance of an individual workman and reference is made
by the Government at the instance of the Union, the dispute
is not between the individual workman and the management
but is between the management and the workman of the
establishment. Following Hon'ble Supreme Court's
pronouncement of law in Ram Prasad Case (supra) two
different Division Benches of Patna High Court in the case
of Dr. Chandra Kala Jha Vs. Sone Vallet Portland Cement
Co. Ltd. 1962 II LLJ 375 and Eastern Manganese and Mineral
Ltd. Vs. Industrial Tribunal (1968 II LLJ 817) held that when
an industrial dispute is raised and espoused by a union or
a group of workman in respect of grievance of an individual
workman and the reference is made by the Government at
the instant of the union arrayed as a party dispute, the
dispute is not between the union and the management
because when an individual workman's cause is espoused
by a union or community of workman then in law the
workman concerned is not a party to the dispute
independently of the union which has espoused his cause.
A Division Bench of Orissa High Court has also held to the
same effect in the case of Kanai Chandra Ganguly Vs. CGIT
held to the same effect in the case of Kanai Chandra Ganguly
Vs. CGIT (1971 Lab. L.C. 569)
17. Further more, from the words, "notwithstanding
that no other workman nor any union of workman is a party
to the dispute" in section 2-A of the Act it is explicit that a
trade union or co-workman are not precluded from
sponsoring an individual dispute relating to discharged,
dismissal, retrenchment, etc. and converting it into a
collective industrial dispute as envisaged u/s 2(k) of the
act as has been done in the instant case. Thus after insertion
of section 2-A in the Act, an individual workman's dispute
may either ipso facto be deemed to be an industrial dispute
raised by the workman himself in respect of his termination
etc. or it may be espousal of his dispute by a trade union or
body of workmen, be also become and industrial dispute,
in which case the workman being not party to dispute
independently of the union which raised and sponsored
his cause. There is thus a pertinent distinction between
these two type of disputes, in the former him and his
employer while in the later, the dispute is between the union
of workman as body or a class and their employer. In other
words the first is case of an individual industrial dispute
fiat of legal fiction of sec 2-A while the later is collective
industrial dispute as defined u/s 2(k) of the Act. The
definition of industrial dispute u/s2(k) of the Act expressly
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6883
states that not disputes or differences of all sorts but only
those which bear upon relationship of employer and
workman are contemplated by virtue of the concept of
collective bargaining or community of interest because a
dispute touching the rights of an individual workman had
never been intended and held by the Government and the
law courts to be the subject of adjudication under the Act
till the insertion of Section 2-A at limited extent.
18. That the complainant to prove his case had filed
evidence and the evidence of Shri R.L. Virmani asserting
the allegation made in the statement of claim.
19. The complainant and his witness Shri R.L. Virmani
were cross-examined by the bank counsel. The Complainant
in his cross examination had admitted that his dispute was
raised by BOB Employee union with management of Bank
of Baroda Employee Union was arrayed as a party to the
dispute in the reference order and not him.
20. There were two references by the Government in
the present matter on 05.01.2005 and dated 12.07.2005 and
in both the references the terms of reference are different.
The reference dated 12.07.2005 was issued by the
Government at the instance of employee union as per his
case he had been impleaded as a party in the present case
after his application was allowed since no notice of the
present proceeding were received by him of the present
proceedings from the court, however there was no
application in the file to implead the petitioner as a party.
He had further stated that the Employee Union had orally
told him that they are not interested to contest his case. He
further admitted that he was engaged by the branch
manager at the instance of Shri R.L. Virmani General
Secretary of the Union. He had further admitted that he
was engaged as daily wager. He had further admitted that
in March, 1996, he was recruit on regular basis as a
sponsored candidate of employee Union. He had further
admitted that the sponsored candidate were interviewed
by the management of the bank and the bank had selected
only 6 or 7 candidates who were appointed and he was not
appointed and as such he approached the Union, who
raised his dispute about regularization of the service and
they never raised any dispute about regarding termination
of his services.
21. He had further admitted that he had never applied
for employment however he was interview. It is further
admitted case of the workman that he was never medically
examined. He even did not identify the signatures on the
documents exhibit WW-1/1 and WW-1/2 to WW-1/8. He
had further stated that the management never used to get
my signature at the time of disbursing wages to me.
22. So from the aforesaid cross-examination the
workman fails to prove any documents and even in the
present case he was not a party. The cross-examination of
Shri R.L. Virmani also conducted by the bank counsel which
is as under:—
"I was the General Secretary of Bank of Baroda
Employees Union upto Feb, 2005. When I was the General
Secretary of the Union, the Union raised the dispute about
the absorption of Shri Virender and others who were
working as temporary in different branches of the Bank in
Delhi.
It is correct that the dispute of absorption of the
workmen was initially raised by the union before the RLC
Delhi which was subsequently transferred to Bombay at
the instance of Management.
The Management has sought the transfer of the
dispute to RLC Bombay as large number of similar dispute
was pending consideration before the RLC Bombay.
It is correct that the Management had sent requisition
to the employment exchange Delhi for sponsoring eligible
persons for recruitment as peons and the employment
exchange had sponsored four candidates including the
workmen concerned Shri Virender for interview and
selection as a peon.
I state that the selection process though the workmen
Shri Virender was selected but no appointed.
I was orally told by the management that the workman
Shri Virender was selected and that his appointment letter
will be released later and in the mean time he will be allowed
to work in the Bank on the same post on which he was
working.
It is correct that out of temporary persons who were
sponsored by the employment exchange alongwith the
workman Shri Virender and were interviewed, three were
given appointment letter.
I do not have any documentary evidence to
substantiate my above contention that Shri Virender was
selected and the management has promised me to appoint
Shri Virender.
Order of reference was made by the government in
the first instance dated 05.01.2005.
It is correct that the union has not filed statement of
claim on the above reference as on receipt of reference
dated 05.01.2005 from the Government of India, I as the
General Secretary of the Union took up the matter with the
Government that reference was not correct as the services
of the workman Shri Virender were illegally terminated by
the management and therefore the reference should be
amended. The government issued corrigendum dated
12.07.2005 amending the terms of reference originally made.
Since, I was not the General Secretary of the Union
after 2005 therefore I cannot say whether the union filed
the statement of claim or not, however, the union continue
to exist and Mr. C. S., Dahia is the General Secretary of the
Union.
6884
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
It is correct that I am aware of the eligibility norms for
the recruitment of the sub-staff like peons of the Bank and
also the procedure of recruitment.
One of the eligibility norm for considering for
employment in the Bank is that he or she minimum 7th
pass, not less than 18 years of age, Normally of persons in
sub staff is done form out of those who are sponsored by
the employment exchange but some time when the persons
working as temporary for 90 days or more are also
considered for employment internally by virtue of terms of
first bi-parties settlement.
No application by Shri Virender for employment in
the Bank was given by him because he was already working
as a temporary and his name was sponsored by the
employment exchange to the Bank.
It is incorrect to suggest that Shri Virender was
working as a daily wager on ad-hoc basis.
It is incorrect that the services of Shri Virender Kumar
were dispensed with when one of the three regular
appointee were appointed.
Shri Virender worked from March, 1996 to November,
2000 whereas the regular appointees were appointed in
March/April, 1996.
There is no documentary evidence that Shri Virender
was issued any appointment letter appointing him as a
peon on temporary basis. He was orally appointed.
The branch manager had asked Virender to work as a
peon on the instruction of Zonal Head.
The Zonal Manager had personally told me that he
would instruction to the Branch Manager to engage
Virender.
I have not read the statement of claim filed by Shri
Virender but he has told me that he had filed his statement
of claim to his tribunal as the union not filed its statement
of claim."
23. From the above cross-examination of the
workman witness it is clearly established that workman
failed to prove his case and as such the present claim
petition is liable to be rejected out rightly with cost.
It is, therefore most respectfully prayed that the
present claim petition of the complainant be dismissed with
exemplary cost.
In the light of contentions and counter contentions
I perused the settled law of Hon'ble Supreme Court on the
point of reinstatement and grant of back wages which
shows that reinstatement is not a necessary consequence
wherever termination is held illegal. Depending upon the
facts of each case a suitable compensation can be awarded.
In Assistant Engineer, Rajasthan Dev. Corporation and Anr.
Vs. Gitam Singh (2013) II LLJ141 Hon'ble Supreme Court
has held that reinstatement of workman with continuity of
service and 25% back wages was not proper in the facts
and circumstances of the case and the compensation of
Rs. 50,000 (Rs. Fifty Thousand Only) shall meet the ends
of justice. In Jagbir Singh Vs. Haryana State Agriculture
Marketing Board and Anr. AIR 2009 Supreme Court 3004,
Hon'ble Supreme Court held thus "the award of
reinstatement with full back wages in a case where the
workman has completed 240 days of work in a year
preceding the date of termination particularly, daily wagers
has not been found to be proper by this Court and instead
compensation has been awarded." In catena of Judgments,
Hon'ble Supreme Court has taken a view that reinstatement
is not automatic, merely because the termination is illegal
on in contravention of S-25-F of the Industrial Dispute
Act. In Talwara Co-operative Credit and Service Society
Limited Vs. Sushil Kumar (2008) 9 SCC 486, Hon'ble Supreme
Court held thus," grant of relief of reinstatement, it is trite,
is not automatic. Grant of back wages is also not automatic."
Workman of the instance case was not appointed by
following due procedure and as per rules. He had rendered
service with the respondent as a casual worker, thus.
Compensation of Rs. 50,000 (Rs. Fifty thousand only) by
way of damages as compensation to the workman/claimant
by Management after expiry of period of limitation of
available remedy against Award. That will meet the ends of
Justice.
Thus reference is decided in favour of workman and
against Management.
Award is accordingly passed.
Dated: 31/10/2013
HARBANSH KUMAR SAXENA, Presiding Officer
ubZ fnYyh] 2 fnlEcj] 2013
dkñvkñ 2665.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj bykgkckn cSad
ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k
esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k@Je
U;k;ky; ua- 2] ubZ fnYyh ds iapkV ¼lanHkZ la- 149@98½ izdkf'kr
djrh gS tks dsUnzh; ljdkj dks 02-12-2013 dks izkIr gqvk FkkA
[lañ ,y&12012@268@1997&vkbZvkj ¼ch&II½]
jfo dqekj] vuqHkkx vf/kdkjh
New Delhi, the 2nd December, 2013
S.O. 2665.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 149/
1998) of the Cent. Govt. Indus. Tribunal-cum-Labour Court
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6885
No. 2, New Delhi as shown in the Annexure, in the industrial
dispute between the management of Allahabad Bank and
their workmen, received by the Central Government on
02/12/2013.
[No. L-12012/268/1997-IR (B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT, DELHI
PRESENT:-Shri Harbansh Kumar Saxena
I D No. 149/98
Sh. N.K. Tekriwal
Versus
Allahabad Bank
AWARD
The Central Government in the Ministry of Labour
vide notification No. L-12012/268/97 IR(B-II) dated 20/07/
1998. Referred the following Industrial Dispute to this
tribunal for the adjudication:—
"Whether the action of management of Allahabad
Bank in not including the name of Sh. N.K. Tekriwal in the
list of eligible candidates for the post of Computer Operator
passing the aptitude test conducted by the management
on 07.04.1996 is legal and justified. If not, to what relief the
said workman is entitles?"
On 31/08/1998 reference was received in this tribunal.
Which was register as I.D. No. 149/98 and claimant was
called upon to file claim statement with in fifteen days from
date of service of notice. Which was required to be
accompanied with relevant documents and list of witnesses.
On the Basis of Contents of Claim Statement filed on
22/12/98. He prayed as follows:—
Sh. Tekriwal has qualified in the aptitude test of
computer operator and deserve posting as computer
operator since 1996 with allowance and other benefits
applicable to computer operators as per rules/Precedence.
On the basis of contents of written statement filed
by Management on 4/12/2000. Management prayed as
follows:—
Sh. Tekriwal was not eligible for posting as computer
operator for a period of two years from the date of his inter
area transfer, effected at his own request, he was not posted
as Computer Operator for the period 16.7.96 to 15.07.98. It
is therefore prayed that the reference be decided in favour
of the Management and against the workman.
On the basis of contents of replication filed by
workman/claimant. He prayed as follows:—
The workman was eligible for posting of computer
operator and he was not under any bar for the said posting
as the said mutual transfer does not reflect any indication
in accordance with the memorandum settlement dated
22.04.98 and subsequent selection through aptitude test
on All India basis hence the denial of posting of computer
operator of the workman is deliberate illegal arbitrary
discriminatory and prejudicial and the management be
directed to give him the posting of computer operator with
retrospective effect with all benefits and the prayer of the
management is dismissed without any consideration with
cost.
On the basis of pleadings of parties my Ld.
predecessors on 9/10/2006 framed following issues:—
(1) As per terms of reference?
(2) To what relief the workman is entitled to?
After framing issues 6/12/2006 was fixed for evidence
of claimant. Since then case was fixed for evidence of
claimant upto 25/07/2013 but he adduce no evidence.
On 25/07/2013 Claimant/Workman through his
advocate express his desire to withdraw the ID on next
date that is 27/08/2013.
On 27/08/2013 workman not turn up nor moved
withdrawal application. Fixed 26/09/2013 for moving
withdrawal application.
On 26/09/2013 workman moved withdrawal
application which is not opposed by A/R of the
management.
Relevant contents of withdrawal application are as
follows:—
I am the claimant in the above Industrial Dispute
which is pending in the Hon'ble Tribunal. That I want to
withdraw this said dispute due to my present circumstances.
In view of the above it is prayed that the said dispute
may be closed as withdrawn and for the same I shall remain
oblige.
Your faithfully
Date 25.07.2013
(N.K. TEKRIWAL)
Through : R.S. Saini, Advocate
In these circumstances it appears that workman/
claimant is not interested in further proceeding of the case.
Due to which in this old ID is not adducing evidence in
support of his claim.
Due to his non-production of evidence in support of
his claim the tribunal has no option except to conclude the
proceeding. Moreover claimant/workman has expressed
his desire to withdraw the ID.
6886
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
In these circumstances it is fit case in which no
dispute award can be passed. Which is according passed.
Dated : 27/09/2013
HARBANSH KUMAR SAXENA, Presiding Officer
ubZ fnYyh] 3 fnlEcj] 2013
dkñvkñ 2666.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj LVsV cSad vkWQ
bafM;k ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp
vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/kdj.k] Hkqcus'oj ds iapkV ¼lanHkZ la[;k 3@2009½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 03-12-2013 dks izkIr gqvk FkkA
[lañ ,y&12012@66@2008&vkbZvkj ¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 3rd December, 2013
S.O. 2666.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 3/2009)
of the Industrial Tribunal, Bhubaneswar as shown in the
Annexure, in the industrial dispute between the
management of State Bank of India and their workmen,
received by the Central Government on 03/12/2013.
[No. L-12012/66/2008-IR (B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT, BHUBANESWAR
PRESENT:
Shri J. Srivastava,
Presiding Officer, C.G.I.T.-cum-Labour
Court, Bhubaneswar.
Industrial Dispute Case No. 3/2009
Date of Passing Award-20th May, 2013
Between :
1. The Chief General Manager,
State Bank of India, LHO,
Pt. J.N. Marg, Bhubaneswar (Orissa).
2. The Branch Manager, State Bank of India,
Tikabali, At./PO. Tikabali, Dist. Phulbani,
Orissa.
....1st Party-Management.
And
Their workman Shri Abhimanyu Behera,
At. Hatapada, P.O. Linepada, Dist. Kandhamal
....2nd Party-Workman.
Appearances:
Shri P.K. Mohanty
... For the 1st Party-
Authorized Representative
Management.
Shri Abhimanyu Behera
... For himself the 2nd
Party-Workman.
AWARD
The reference with regard to an industrial dispute
existing between the managment of State Bank of India
and their workman has been sent by the Government of
India in the Ministry of Labour under the provisions of
clause (d) of sub-section (1) and sub-section (2A) of
Section 10 of the Industrial Disputes Act, 1947 vide Letter
No. L-12012/66/2008-IR (B-I) dated 03.02.2009.
2. The dispute under reference has been mentioned
in the schedule of the letter of reference which is reproduced
below.
Whether the action of the management of Chief
General Manager, State Bank of India, Orissa Circle
in terminating services of Shri Abhimanyu Behera,
ex-temporary messenger w.e.f. 1993 without
complying provisions as required under the I.D. Act,
is legal and justified? To what relief is the concerned
workmen entitled?
3. The 2nd Party-workman has filed a brief statement
of claim mentioning that he had served as temporary
messenger at Tikabali Branch of State Bank of India for a
period of 65 days in the year 1988 and 1989 and as a daily
wage labour for a period of 176 days from 1990 to 1993. He
had also appeared in the interview for the post of messenger
and was selected. His name was enlisted in the panel, but
could not get appointment. He has therefore claimed Rs. 10
lakhs for maintenance of his family and livelihood.
4. The 1st Party-Management in its written statement
has stated that the claim of re-employment after lapse of
several years is a stale claim and therefore the reference in
this regard is vague in law and liable to be rejected. The
disputant workman had worked intermittently. He has not
worked continuously for 240 days. As per settlement
between the management of State Bank of India and All
India State Bank of India Staff Federation the disputant
workman was offered an opportunity for permanent
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6887
appointment. He appeared in the internview. His name was
empanelled in the wait list. The panel had expired on 1.4.1997.
Threfore he could not be appointed. Some of the wait-
listed candidates including the disputant workmen filed
applications before the Hon'ble High Court of Orissa for
regularization of their services which were dismissed on
15.5.1998. The said judgement was challenged before the
Hon'ble Supreme Court of India in S.L.P. No. 3038/99, but
the Hon'ble Supreme Court upheld the judgement of the
Orissa High Court. Now the same issue cannot be re-agitated
again. In pursuance of the order of the Hon'ble High Court
of Orissa the disputant workman along with ten other
workmen submitted a representation before the Chief
General Manager, State Bank of India who after affording a
personal hearing to them rejected their representations by
passing a reasoned order on 26.3.2007. Hence the disputant
workman has no right to claim appointment or re-
appointment after expiry of the panel nor any compensation.
There is no violation of any progvisions of the Industrial
Disputes Act.
5. On the pleadings of the parties following issues
are framed.
ISSUES
1. Whether the action of the Management of Chief
General Manager, State Bank of India, Orissa Circle,
in terminating services of Shri Abhimanyu Behera,
Ex-temporary Messenger w.e.f. 1993 without
complying provisions as requaired under the I.D.
Act is legal and justified?
2. Whether the disputant workman is entitled for
appointment on the ground stated in his statement
of claim?
3. To what relief the concerned workman is entitled?
6. The 2nd Party-workman Shri Abhumanyu Behera
has filed his own affidavit in evidence and relied upon for
documents marked as Ext.-1 to Ext.-4.
7. The 1st Party-Management has examined Shri
Narendra Nath Hembrum, Branch Manager of Tikabali
Branch of State Bank of India but he was not cross examined
by the 2nd Party-workman due to his absence. The 1st
Party-Management has filed certain documents in support
of his case, but has not exhibited any of those documents.
FINDINGS
Issue No. 1
8. The 2nd Party-workman has himself brought out a
case that he had worked for 65 days in the year 1988 and
1989 and for 176 days in the year from 1990 to 1993 as a
temporary messenger/daily wage labour. In his affidavit he
has stated the same thing, but has simply siad that there is
no document in support of the work done as daily wage
labour in the years 1990 to 1993 as all the documents were
set on fire.
9. The 1st Party-Management on the other hand has
stated that the disputant workman had not worked
continuously and uninterruptedly for 240 days. He had
worked intermittently as a daily wager. Even if the number
of days the disputant workman is stated to have worked
are summed up, the total comes to 241 days, but this runs
in several years from 1988 to 1993. Ext.-3 is the photostat
copy of Bank certificate which shows that the disputant
workmen had worked for 25 days in the year 1988 and for
40 days in the year 1989. There is no documentary proof
about the work said to have been rendered from the years
1990 to 1993 amounting to 176 days. The oral evidence of
the disputant workmen in this regard cannot be taken as
sufficient. The Management's witness Shri Narendra Nath
Hembrum has categorically stated in his evidence that Shri
Behera had not worked for 240 days continuously and
uninterruptedly. He has also denied that Shri Behear had
worked for 176 days in his Branch from 1992 to 1993. There
is neither any proof nor any allegation that the disputant
workman was ever terminated or retrenched from service
by the 1st Party-Management. Admittedly he was a
temporary messenger/daily wage worker. Therefore there
was no legal necessity to terminate his service. When his
services were not reuired he was not called upon to serve.
The mandatory provisions as those enshrined under
section 25-F or others of the Industrial Disputes Act are
not required to be complied with in the case of the 2nd
Party-workman. As such the action of the 1st Party-
Management is dispensing with the services of the 2nd
Party-workman is quite legal and justified. Issue No. 1 is
decided in favour of the 1st Party-Management.
ISSUE NO. 2
10. As the services of the 2nd Party-workman were
of temporary nature and he had not rendered 240 days
continuous and uninterrupted service under the 1st Party-
Management he is not entitled for continuance in service
or re-appointment on compassionate ground or on any
ground under law. As such the disputant workman is not
entitled for re-appointment. Therefore his issue is decided
against the 2nd Party-workman.
ISSUE NO. 3
11. From the conclusions derived under in Issues
No. 1 and 2 the disputant workman is not entitled to any
relief. His claim is rejected.
12. The reference is answered accordingly.
JITENDRA SRIVASTAVA, Presiding Officer
ubZ fnYyh] 3 fnlEcj] 2013
dkñvkñ 2667.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ fd /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj LVsV cSad vkWQ
bafM;k ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp
vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
6888
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
vfèdj.k] ukxiqj ds iapkV ¼lanHkZ la[;k 131@2003½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 03@12@2013 dks izkIr gqvk FkkA
[lañ ,y&12012@320@2002&vkbZ vkj ¼ch&I)]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 3rd December, 2013
S.O. 2667.—In pursuance of Section 17 of the
Industrial Disputes Act, 1949 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 131/
2003) of the Cent.Govt.Indus. Tribunal-cum-Labour Court,
Nagpur as shown in the Annexure, in the industrial dispute
between the management of State Bank of India, Zonal
Office, Shanker and their workmen, received by the Central
Government on 03/12/2013.
[No. L-12012/320/2002 - IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE SHRI J.P. CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No. CGIT/NGP/131/2003
Date: 18.09.2013.
Party No. 1
:
The Dy. General Manager,
State Bank of India, Zonal Office,
Shankar Nagar, Raipur (CG) 492001.
Versus
Party No. 2
:
Shri Kartik Ram Sahu, S/o. Late
Daulal Sahu, Yadav para, Raja Talab,
Raipur, Chhattisgarh - 492001.
AWARD
(Dated: 03rd August, 2011)
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 the State Bank of India and their workman,
Shri Kartik Ram Sahu, for adjudication, as per letter No. L-
12012/320/2002-IR(B-I) dated 07.05.2003, with the following
schedule.
"Whether the action of the Dy. General Manager,
State Bank of India, Raipur (CG) in terminating the
services of Shri Kartik Ram Sahu S/o. Late Daulal
Sahu, Ex-messenger, main branch, Raipur is justified?
If not, what relief is the workman entitled for?"
2. On receipt of the reference, notices were sent to
the parties for filing of their respective statement of claim
and written statement, in response to which, the workman,
Shri Kartik Ram Sahu ("the workman" in short) filed the
statement of claim and the management of the State Bank
of India, Raipur ("the party no. 1" in short) filed the written
statement.
The case of the workman is that he was appointed
temporarily in the post of messenger on daily wages basis
by party no. 1 and he worked from 24.01.1997 to 31.01.1998
continuously and the party no. 1 issued certificates from
time to time in that regard and in view of the Bi-partite
settlement dated 27.10.1988 entered between the Central
Office of the Bank and the All India State Bank of India
staff federation, he became a protected workman and he
was entitled for permanent absorption in the Bank and his
services were not liable to be terminated and the party
no. 1 conducted interview for all the protected workers in
1990 and the selected persons were wait listed for future
absorption in the Bank's service and he was also selected
in the said interview and his name was enlisted in the waiting
list alongwith others and as he was to be absorbed in future,
he was offered temporary appointment, but his services
were terminated abruptly w.e.f. 01.02.1998 without assigning
any reason and he had performed his duties for more than
240 days in a calendar year and got the status of a
permanent employee, as per the provisions of section 25-B
of the Act and in order to deprive him the benefits of regular
employment, he was continued with artificial breaks in
service and though posts were available, the party no. 1
did not absorb him and without any reason or show cause,
the party no. 1 discontinued his services w.e.f. 01.02.1998
and the action of the party no. 1 in terminating his services
amounts to retrenchment, but before the termination of his
services, neither one month's notice nor one month's wages
in lieu of notice, nor retrenchment compensation was given
to him and as such, the action to terminating of his services
is illegal, inoperative and invalid and as the mandatory
provisions of section 25-F of the Act were not complied
with, he is entitled for reinstatement in service with back
wages and the action of the party no. 1 in terminating his
services is arbitrary, capricious and unfair labour practice
and he made representation to the Bank repeatedly for
redressal of his grievancies, but without any result and the
party no, 1 made appointment of fresh condidaties in the
post of messenger, but he was not given employment, which
was violation of the mandatory provisions of section 25-H
of the Act. It is further pleaded by the workman that number
of writ petitions were filed by number of persons, who had
worked in different branches of the State Bank of India
claiming fresh appointment of reinstatement, before the
Hon'ble High Court of Madhya Pradesh at Jabalpur and
the Hon'ble High Court on 24.08.1999 disposed of all the
petitions by a common consent order and party no. 1 had
agreed before the Hon'ble High Court in the said writ
petition to follow the directions of the Hon'ble High Court
and as his claim is similar to the writ petitioners as mentioned
above, his claim is to be disposed of in the light of the
directions given by the Hon'ble High Court. The workman
has prayed for declaring the action of the party no. 1 to be
¹Hkkx II—[k.M 3(ii)º
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6889
illegal and unlawful and to reinstate him in service with
continuity and back wages.
3. The party no. 1 in its written statement has pleaded
inter-alia that the appointment of the workman was on
daily wages basis depending upon the exigency of the
work and for specific period and discontinuation of such
engagement did not amount of retrenchment in terms of
section 2 (oo) of the Act and various settlements were
entered into between the State Bank of India and Federation
of SBI unions and by virtue of such settlement and for any
other reason, the workman did not become a protected
worker and did not become entitle of permanent absorption
in the Bank. The further case of the party no. 1 is that the
workman had been enlisted in the waiting list for
absorption, but the said list lapsed on 31.03.1997, as per
the terms of the settlement dated 13.07.1996 and as such,
the persons, whose turn could not come by 31.03.1997
could not be considered for permanent absorption and in
1999, the workman had raised the dispute on the same
facts and circumstances, which are the subject matter of
the persent dispute and the Government of India by its
notification dated 20/24-01-2000, refused to refer the dispute,
observing that, ''The claim is frivolous as the disputant is
not covered the definition of 'Workman' and also cannot
claim immunity from the implications of the terms of the
agreements reached between the management and the
majority union. The matter has been judicially reviwed by
the Hon'ble Courts of the Hon'ble Supreme Court of India
is 1998 (SLP No. 11886-11888 of 1998 and the workman
again approached the same forum for the same relief and
once the matter has been finally decided by the Hon'ble
Supreme Court, in 1998 (SLP No. 11886-11888 of 1998),
nothing survives and the dispute is to be answered in its
favour and seventeen temporary workmen raised the
dispute before the ALC, Raipur, out of whom four being
satisfied with the Bank's reply, withdrew their claims and
five other workmen did not proceed against the Bank for
one reasons or the other and out of remaining eight
workmen, the case of the one workmen, Shri Kamal Soni
was rejected by the Government and dispute of the rest
seven workmen have been referred for adjudication for the
reasons known to the concerned authorities and as the
initial engagement of the workman was purely on temporary
basis and the purpose for which, the workman was engaged
was completed, the termination of his services was
inevitable and the mere fact of completion of 240 days of
work did not give the workman the status of permanent
employee within the meaning of section-25-B of the Act
and the workman was not given artificial breaks in service
and it did not adopt any unfair labour practice and the
services of the workman were not terminated on 01.02.1998
(wrongly mentioned as 05.02.1998 in the written statement)
and the workman was appointed temporarily for specific
period and for specific purpose and his services were
terminated as per the appointment order and now, no work
is available for him and inview of the appointment order,
there was no need to comply with the provisions of section
25-F of the Act and as such, its action cannot be said to be
illegal and no fresh candidates were appointed by it as
messenger and there was no violation of the provisions of
section 25-H of the Act and as such, the workman is not
entitled for any relief.
4. In the rejoinder, the workman has denied the
pleadings made by party no. 1 in the written statement and
has also reiterated the facts mentioned in the statement of
claim.
5. In support of their respective claims, the parties
have led oral evidence. The workman has examined himself
as a witness in support of his claims. In his examination-in-
chief, which is on affidavit, the workman has reiterated the
facts mentioned in the statement of claim. The workman
has proved the intimation from the bank for giving consent
for temporary appointment, the thirteen copies of his
temporary appointment orders and the lettter issued by
the Bank regarding his disengagement w.e.f. 31.01.1998 as
Exts. W-II to W-XV and the particulars of his service
prepared by the union as Ext. W-XVI. In his cross-
examination, the workman has admitted that in all his
temporary appointment orders, it had been mentioned that
his temporary appointment was due to be need of the Bank
and by such appointment, he would not be entitled for
permanent appointment. He has further admitted that Ext.
W-XVI was issued by the workmen union of the Bank and
he was not a member of the said union and in his affidavit,
he has not mentioned the name of the person, who was
newly appointed as a messenger and the date of such
appointment.
6. One Shri A.C.S. Rao, an officer of party no. 1 has
been examined as a witness on behalf of the party no. 1. He
has also reiterated the facts mentioned in the written
statement, in this evidence. In his cross-examination, this
witness has admitted that the contents of Annexure-15
filed by the workman are true and he has no knowledge
about the engagement of the workman in the bank, the
number of days he worked and the date from which, he was
not engaged in the bank and he has no personal knowledge
about this case.
7. At the time of argument, it was submitted by the
learned advocate for the workman that the workman worked
with the party no. 1 w.e.f. 24.01.1997 continuously without
any break up till 31.01.1998 and he had completed more
than 240 days of continuous work in preceding calendar
year of the date of his termination and as such, he had
acquired the status of a permanent employee and his
services was terminated w.e.f. 01.02.1998, without assigning
any reason and the mandatory provisions of section 25-F
of the Act were not complied with and the termination
amounts to retrenchement and due to non-compliance of
the provisions of section 25-F of the Act, such retrenchment
is illegal and as such, the workman is entitled for
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THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
reinstatment with continuity of service and full back wages
and after termination of the workman, the Bank made
appointment of fresh candidates in the post of messanger,
but did not give employment to the workman and thus
violated the provisions sections 25-G and 25-H of the Act
and Rule 77 of the Industrial Disputes (Central) Rules.
8. On the other hand, it was submitted by the learned
advocate for the party no. 1 that the workman was
appointed temporarily as a messenger looking to urgent
need of work and he was duly considered by the party
no. 1 for permanent absorption in the bank, as per the
settlements and as such, he was interviewed and was put
in the waiting list and as the waiting list lapsed on 31.03.1997,
he could not be absorbed on permanent basis and he has
no right for permanent absorption or re-appointment and
therefore, the workman is not entitled for any relief. It was
also submitted that as the engagement of the workman
was purely on casual and temporary basis intermittently,
due to administrative exigencies and need of work as
messenger and the initial entry of the workman in the Bank
being illegal and was not as per procedure for permanent
staff, his termination cannot be termed as retrenchment
and in view of the decisions of the Hon'ble Apex Courts,
even if, it is found that the workman had completed more
than 240 days of work, he is not entitled for regularization
or reinsttatement in service and as such, he is not entitled
for any relief. In support of the contentions, reliance was
placed by the learned advocate for the party no. 1 on the
decisions reported in AIR 1997 SC 3657 (Himanshu Kumar
Vidhyathi Vs. State of Bihar), AIR 1997 SC 3091 (Syndicate
Bank Vs. Shankar Paul), 2006 SCC (L&S) 163 (State of U.P.
Vs. Deshraj), 2006 SCC (L&S) 753 (Secretary State of
Karnataka Vs. Umadevi) 2007 SCC (L&S)-346 (Gangadhar
Pillai Vs. Seimens Ltd.), (2006) I SCC (L&S)-250 (UP State
Brassware Corp Vs. Uday Narayan Pandey) (1997) 2 SCC-1
Ashwini Kumar Vs. State of Bihar and many others.
Keeping in view the principles enunciated by the
Honb'ble Courts in the decisions, on which reliance has
been placed by the parties, now, the present case at hand
is to be decided.
9. The claim of the workman in this case is not based
on the waiting list prepared by the Bank. According to the
claim of the workman, he was appointed temporarily on
24.01.1997 and continued till 31.01.1998 and as he had
completed more that 240 days of continuous work in a
calendar year, the termination of his services without
following the mandatory provision of the section 25-F of
the Act is illegal and for that he is entitled for reinstatement
in service.
The party no. 1 has denied that claim of the workman.
10.Perused the record including the statement of
claim, written statement, oral and documentary evidence
adduced by parties and written notes of arguments. It is
the admitted case of the workman that he was appointed
temporarily. The documents filed by the workman show
that he was engaged as a temporary messenger and not on
permanent basis. There is nothing on record to show that
the workman was appointed by following due prcedure of
appointment applicable to the Bank. So, it is clear from the
evidence that the workman was working on casual basis as
a temporary messenger.
On perusal of the documents, Exts. W-II to W-XV,
filed by the workman, it is found that the appointment of
the workman was purely on temporary basis for a specific
period and he was being re-appointed on fresh basis from
time to time by issuance of specific orders. It is also found
from the documents that in the orders for temporary
appointment, specific condition has been mentioned that
the appointment of the workman was purely temporary in
nature due to exigency of work and need of the Bank and
the workman would not be entitled to claim permanent
employment and the workman accepting the condition
joined the temporary service and worked with party no. 1.
It is also found from the documents that the temporary
appointment was made by the Branch Manager of the Bank.
It is well settled by the Hon'ble Apex Court in a
number of decisions including the decision of the
constitutional Bench reported in AIR 2006 SC-1806
(Secretary State of Karnataka & Others Vs. Umadevi and
Others) that, ‘‘unless the appointment is in terms of the
relevant rules and after a proper competition among
qualified persons, the same would not confer any right on
the appointee. If it is a contractual appointment, the
appointment comes to an end at the end of the contract, if
it were an engagement or appointment on daily wages or
casual basis, the same would come to an end, when it is
discontinued. Similarly, a temporary employee could not
claim to be made permanent on the expiry of his term of
appointment, he is not entitled for reinstatement in service.''
The documents filed by the workman univocally
show that this appointment was coming to an end at the
end of the contract and after 31.01.1998, his contract was
not renewed and the same connot be said to be
retrenchment and as such, the workman has no right to
claim reinstatement in service.
Applying the principles enunciated by the Hon'ble
Apex Courts to the present case at hand, it is found that
the provisions of section 25-F are not applicable to this
case.
11. There is also no legal evidence on recored to
show that freshers were appointment as messengers by
the party no. 1, after the termination of the services of the
workman and the workman was not given employment and
as such, it cannot be held that there was violation of the
provisions of sections 25-G and 25-H of Act and Rule 77 of
the Rules. Hence, it is ordered:
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6891
O R D E R
The action of the Dy. General Manager, State of India,
Raipur (CG) in terminating the services of Shri Kartik Ram
Sahu, S/o, Late Daulal Sahu, Ex-messenger, Main Branch,
Raipur is justified. The workman is not entitled for any
relief.
J.P. CHAND, Presiding Officer
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[lañ ,y&12012@118@2008&vkbZvkj ¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 3rd December, 2013
S.O. 2668.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 78/2008) of
the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Bhubaneswar as shown in the Annexure, in the industrial
dispute between the management of State Bank of India,
and their workmen, received by the Central Government on
03/12/2013.
[No. L-12012/118/2008-IR (B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM- LABOUR COURT, BHUBANESWAR
Present:
Shri J. Srivastava,
Presiding Officer, C.G.I.T.-cum-Labour
Court, Bhubaneswar.
INDUSTRIAL DISPUTE CASE NO. 78/2008
Date of Passing Award-20th February, 2013
Between:
The Asstt. General Manager,
State Bank of India,
Bapujinagar Branch,
Distt. Khurda, Orissa,
Bhubaneswar, (Orissa)
.......1st Party-Management.
And
Their workman Sri Mukti Kanta Lenka,
Qr. No. VR-5/1, Kharvela Nagar, Unit-3,
Bhubaneswar. (Orissa)
2nd Party- Workman.
Appearances:
Shri Alok Das,
For the 1st Party-
Authorized Representative
Management.
None.
For the 2nd Party-
Workman.
AWARD
The Government of India in the Ministry of Labour
has referred the present dispute existing between the
employers in relation to the Management of State Bank of
India and their workman under clause (d) of sub-section
(1) and sub-section (2A) of Section 10 of the Industrial
Disputes Act, 1947 vide Letter No. L-12012/118.2008-IR
(B-I) dated 13.10.2008 to this Tribunal for adjudication to
the following effect:
"Whether the action of the management of State bank
of India, Bhubaneswar Main Branch in terminating
services of Sri Mukti Kanta Lenka w.e.f. 30.9.2004 is
fair, legal and justified? To what relief is the workman
concerned entitled"?
2. The 2nd Party-Workman has filed his statement of
claim alleging that he had joined his services as a
Messenger on 06.06.1988 after succeeding in interview. He
was assured to get permanent appointment order after one
year or on completion of 240 days' work in a calendar year,
but despite completion of serveral years of continuous
satisfactory service and putting in more than 240 days'
work in each year he was not regularized, instead terminated
and refused employment from 30.9.2004 by the 1st Party-
Management without any written communication or
payment of compensation. The 1st Party-—Management
in refusing eployment to him violated all principles of natural
justice and mandatory provisions of Section 25-F of the
Industrial Disputes Act, 1947. He therefore brought the
matter into the notice of the C.G.M. and C.D.O. of the State
Bank of India. L/H.O., Bhubaneswar. But on hearing nothing,
he raised an industrial duspute before the Regional Labour
Commissioner (Central) vide his letter dated 05.10.2007.
Conciliation proceedings were started, but they failed and
thereupoin a failure report was submitted to the Government
and the Government made the present reference. He is thus
entitled to get full back wages and reinstatement with
continuity of service with effect from 30.9.2004.
3. The 1st Party-Management in its reply through
written statement has stated that the present dispute is
misleading and misconceived in as much as the 2nd Party-
workman had already raised a similar dispute along with
124 other workers through the State Bank of India
Temporary 4th Grade Employees Union before the
Assistance Labour Commissioner (Central), Bhubaneswar
challenging their alleged termination of service by the 1st
6892
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
Party-Management. In the said dispute the failure report
was sent by the Asst. Labour Commissioner (Central),
Bhubaneswar to the ministry of Labour who in turn referred
the matter to this Tribunal for adjudication and the same is
pending before this Tribunal being I.D. Case No. 7/2007.
The name of the 2nd Party-workman is appearing at Sl. No.
21 in Annexure-A to the said reference. Thus, raising a
common dispute for same cause of action and again raising
individual dispute for same relief is nothing but an abuse
of the process of law and amounts to multiplicity of
litigation. The Asst. Labour Commissioner (Central) while
conciliating the individual disputes disregarded the
direction of the Deputy Chief Labour Commissioner
(Central) not to take any further action on the separate
disputes raised by the same workers for the same cause of
action. The allegation of the 2nd Party-workman that he
had joined the Bank on 06.06.1988 and he was discontinued
from service on 30.9.2004 is not correct. He was engaged
intermittently on temporary/daily wage basis due to
exigencies of work. When his servoces were no more
required he was not engaged further. It is further denied
that he was performing his duties with all sincerity and
honesty and to the best of satisfaction of the Authority.
The 2nd Party-workman has neither completed several
years of continuous service in the Bank nor he has
completed 240 days of continuous service in any calendar
year preceding the date of his alleged termination. In order
to give an opportunity for permanent absorption to the ex-
temporary employees/daily wagers in the Bank in view of
the various settlements entered into between the All India
State Bank of India Staff Federation and the Management
of the State bank of India all eligible persons were called
for interview. The 2nd Party-workman was also called for
interview in the year 1993. But he was not found successful
hence could not be appointed in the Bank. The Union or
the 2nd Party-workman has never challenged the
implementation of the settlement which has now gained
finality. It is further submitted that some of the wait-listed
condidates, who could not be absorbed in the Bank's service
due to expiry of the panel on 31st March, 1997, filed Writ
Petitions before the Hon'ble High Court of Orissa. But the
Hon'ble High Court of Orissa by a common order dated
15.5.1998 passed in O.J.C. No. 2787/1997 dismissed a batch
of Writ Petitions and upheld the action of the Management
of the bank. This order of the Hon'ble High Court was also
upheld by the Hon'ble Supreme Court of India in S.L.P. No.
CC-3082/1999. Hence the above matter has attained finality
and cannot be re-agitated. Since the services of Sri Lenka
had allegedly been terminated in December, 1998 his claim
has become stale by raising the dispute after ten years. it is
a settled principle of law that delay destroys the right to
remedy. Thus the present dispute is liable to be rejected on
the above grounds.
On the pleadings of the parties following issues were
framed:—
ISSUES
1. Whether the action of the Management of State
bank of India, Bhubaneswar main branch in terminating
services of Shri Mukti Kanta Lenka with effect from
30.9.2004 is fair, legal and justified?
2. Whether the present reference of the individual
workman during the pendency of the I.D. Case No. 7/2007
before this Tribunal on the same issue is legal and justified?
3. Whether the workman has worked for more than
240 days as enumerated in the Industrial Disputes Act?
4. To what relief is the workman concerned entitled?
5. The 2nd party-workman despite giving sufficient
opportunity did not adduce any evidence either oral or
documentary is support of his claim and willingly kept
himself out of the proceedings at the stage of evidence by
absenting himself or his union representative.
6. The 1st Party-Management has adduced the oral
evidence of Shri Abhay Kumar Das as M.W.-1 and filed
documents marked as Ext.-A to Ext.-J in refutation of the
claim of the 2nd Party-workman.
FINDINGS
ISSUE NO. 1
7. A specific plea has been raised by the 1st
Party,Management that a group of 125 employees
including the 2nd Party-workman had already raised a
similar dispute in I.D. case no. 7/2007 before this Tribunal
for the same relief which is pending for adjudication. The
dispute as referred to in I.D. Case No. 7/2007 is given below
for comparison with the dispute in the present case —
Whether the action of the Management of State bank
of India, Orissa Circle, Bhubaneswar in not considering
the case of 125 workmen whose details are in Annexure-A
for re-employment as per Section 25(H) of Industrial
Disputes Act, 1947 is legal and justified? If not, what relief
the workmen are entitled to?
8. The name of the 2nd Party-workman appears at
Sl. No. 21 in Annexure-A to the above reference. in both
the case the matter of disengagement or so called
retrenchment is involved to be considered in one or the
other way and the relief claimed is with regard to re-
employment. But challenge has been made more specifically
against the termination of service of the 2nd Party-workman
in the present case while in I.D. Case no. 7/2007 prayer has
been made with regard to consideration of the case of 125
workmen for re-employment as per Section 25-H of the
Industrial Disputes Act. 1947. in fact, in the latter case the
workmen have submitted or virtually surrendered to their
cessation of employment or alleged termination, whereas
in the present case they have challenged their termination
on facts and law. Virtually in the present case validity and
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6893
legality of the alleged termination has to be tested at the
alter of facts and legal propositions. Therefore it cannot be
said that the issues involved in both the cases are same.
This case can proceed despite pendency of I.d. Case no. 7/
2007 and the present reference by the individual workman
pending for adjudication is maintainable being legal and
justified. This issue is therefore decided in the affirmative
and against the 1st Party-Management.
ISSUE NO. 2
9. The onus to prove that the 2nd Party-workman
has completed one year or 240 days of continuous service
during a period of 12 calendar months preceding the date
of his alleged termination or disengagement from service
lies on him, but the 2nd Party-workman has not addeuced
any evidence either oral or documentary in support of his
contention. He has only alleged in his statement of claim
that he had joined the service on 06.06.1988 and worked till
30.9.2004 on temporary/casual/daily wage basis, but he
has not filed any certificate or reliable document showing
the break-up of year-wise service rendered by him under
the 1st party-Management during the above period. The
1st Party-Management, on the other hand, has alleged that
the 2nd Party-workman was engaged intermittently on
temporary/daily wage basis due to exigencies of work and
he had never completed 240 days continuous service in a
calendar year. M.W.-1 Shri Abhay Kumar Das in his
statement before the Court has stated that "The disputant
workman was working intermittently for few days in our
Branch on daily wage basis in exigencies...............He had
not completed 240 days of continuous and uninterrupted
service preceding the alleged date of the termination". He
has denied the allegation that the workman was
discontinued from service with effect from 30.9.2004, but
has stated that "In fact the workman left working in the
Branch since December, 1999". The 2nd Party-workman
has to disprove the evidence led by the 1st Party-
Management, but he has not come before the Court to give
evidence. A temporary or daily wage worker has not right
to claim reinstatement and particularly when such an
employee had not worked for 240 days continuously
during a period of 12 calendar months preceding the date
of his so-called termination. Thus he is not entitled to get
benefit of Section 25-F of the Industrial Disputes Act, 1947.
This issue is hereby decided against the 2nd Party-workman
for failing to prove that he had worked for 240 days
continuously during a period of 12 calendar months
preceding the date of his disengagement or alleged
termination from service.
ISSUE NO. 3
10. Since the 2nd Party-workman could not prove
that he had rendered 240 days continuous service under
the 1st Party-Management during a period of 12 calendar
months preceding the date of his disengagement or alleged
termination, he is not entitled for remployment even in case
of his alleged illegal and arbitrary termination. Moreover,
he was a temporary/casual/daily wage employee. His
services can be terminated at any time without assigning
any cause by the 1st Party-management. He has no legal
right to be retained in service for the extended period, if he
was appointed for a certain period or when no time is
epecified. The 2nd Party-workman has not filed any letter
of appointment or proof of having rendered service under
the 1st Party-management for a specified period agsinst a
regular post. The 1st Party-Management has further alleged
that in time of exigencies only the 2nd Party-workman was
employed. It means that with the end of exigencies his job
also came to an end. In view of the matter the action of the
management of State Bank of India, Bhubaneswar Main
Branch in terminating the services of Sri Mukti Kanta Lenka
with effect from 30.9.2004 his termination is fair, legal and
justified. This issue is accordingly decided in the affirmative
and against the 2nd Party-workman.
ISSUE NO. 4
11. In view of the findings recorded above under
Issues No. 2 and 3, the 2nd Party-workman is not entitled
to any relief whatsoever claimed.
12. Reference is answered accordingly.
JITENDRA SRIVASTAVA, Presiding Officer
ubZ fnYyh] 3 fnlEcj] 2013
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vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/kdj.k] Hkqcus'oj ds iapkV ¼lanHkZ la[;k 16@2008½ dh izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 03-12-2013 dks izkIr gqvk FkkA
[lañ ,y&12012@05@2008&vkbZ vkj ¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 3rd December, 2013
S.O. 2669.—In pursurance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 16/2008) of
the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Bhubaneswar as shown in the Annexure, in the industrial
dispute between the management of State Bank of India,
and their workmen, received by the Central Government on
03.12.2013.
[No. L-12012/05/2008-IR(B-I)]
SUMATI SAKLANI, Section Officer
6894
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT,
BHUBANESWAR
PRESENT:
Shri J. Srivastava,
Presiding Officer, C.G.I.T.-cum-Labour
Court, Bhubaneswar.
INDUSTRIAL DISPUTE CASE NO. 16/2008
Date of Passing Award-21the March, 2013
Between:
The Branch Manager,
State Bank of India,
ADB Branch, Salepur,
Dist. Cuttack.
....1st Party-Management.
(And)
Their workman Sri Dhruba Charan Khuntia,
Qr. No. VR-5/1, Kharvela Nagar, Unit-3,
Bhubaneswar. (ORISSA)
....2nd Party-Workman.
APPEARANCES:
Shri Alok Das,
...
For the 1st Party-
Authorized Representative
Management.
None.
...
For the 2nd Party-
Workman.
AWARD
The Government of India in the Minitry of Labour
has referred the present dispute existing between the
employers in relation to the Management of State Bank of
India and their workman under clause (d) of sub-section
(1) and sub-section (2A) of Section 10 of the Industrial
Disputes Act, 1947 vide Letter No. L-12012/05/2008-IR(B-
I), dated 07.04.2008 to this Tribunal for adjudication to the
following effect:
"Whether the action of the management of State Bank
of India in relation to their Salepur Branch, in
terminating the services of Sri Dhruba Charan Khuntia
w.e.f. 30.09.2004 without complying the provisious
of the I.D. Act, 1947 is legal and justified? If not,
what relief the workman is entitled to"?
2. The 2nd Party-Workman has filed his statement of
claim allegaing that he had joined his services as a
Messengar on 01.01.1987/20.3.1985 after succeeding in
interview. He was assured to get permanent appointment
order after one year or on completion of 240 days' work in
a calendar year, but despite completion of several years of
continous satisfactory service and putting in more than
240 days' work in each year he was not regularized, instead
terminated and refused employment from 30.9.2004 by the
1st Party-Management without any written communication
or payment of compensation. The 1st Party-Management
in refusing employment to him violated all principles of
natural justice and mandatory provisions of Section 25-F
of the Industrial Disputes Act, 1947. He therefore brought
the matter into the notice of the C.G.M. and C.D.O. of the
State Bank of India, L.H.O., Bhubaneswar. But on hearing
nothing, he raised an industrial dispute before the Regional
Labour Commissioner (Central) vide his leter dated
21.02.2005. Conciliation proceedings were started, but they
failed and thereupon a failure report was submitted to the
Government and the Government made the present
reference. He is thus entitled to get full back wages and
reinstatement with continuity of service with effect from
30.9.2004.
3. The 1st Party-Management in its reply through
written statement has stated that the present dispute is
misleading and misconceived in as much as the 2nd Party
workman had already raised a similar dispute along with
124 other workers through the State Bank of India
Temporay 4the Grade Employees Union before the
Assistant Labour Commissioner (Central), Bhubaneswar
challenging their alleged termination of service by the 1st
Party-Management. In the said dispute the failure report
was sent by the Asst. Labour Commissioner (Central),
Bhubaneswar to the Ministry of Labour who in turn referred
the matter to this Tribunal for adjudication and the same is
pending before this Tribunal being I.D. Case No, 7/2007.
The name of the 2nd Party-workman is appearing at Sl. No.
111 in Annexure-A to the said reference. Thus, raising a
common dispute for same cause of action and again raising
individual dispute for same relief is nothing but an abuse
of the process of law and amounts to multiplicity of
litigation. The Asst. Labour Commission (Central) while
conciliating the idividual disputes disregarded the direction
of the Deputy Chief Labour Commissioner (Central) not to
take any further action on the separate disputes raised by
the same workers for the same cause of action. The
allegation of the 2nd Party-workman that he had joined the
Bank on 01.01.1987 and he was discontinued from service
on 30.9.2004 is not correct. He was engaged in termittently
on temporary/daily wage basis due to exigencies of work.
When his services were no more required he was not
engaged further. It is further deined that he was performing
his duties with all sincerity and honesty and to the best of
satisfaction of the Authority. The 2nd Party-workman has
neither completed several years of continuous service in
the Bank nor he has completed 240 days of continuous
service in any calendar year preceding the date of his alleged
termination. In order to give an opportunity for permanent
absorption to the ex-termparary employees/daily wagers
in the Bank in view of the various settlements entered into
between the All India State Bank of India Staff Federation
and the Management of the State Bank of India all eligible
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6895
persons were called for interview. The 2nd Party-workman
was also called for interview in the year 1993. But he was
not found successful hence could not be appointed in the
Bank. The Union or the 2nd Party-workman has never
challenged the implementation of the settlement which has
now gained finality. It is further submitted that some of the
wait-listed candidates, who could not be absorbed in the
Bank's service due to expiry of the panel on 31st March,
1997, filed Writ Petitions before the Hon'ble High Court of
Orissa. But the Hon'ble High Court of Orissa by a common
order dated 15.5.1998 passed in O.J.C. No. 2787/1997
dismissed a batch of Writ Petitions and upheld the action
of the Management of the Bank. This order of the Hon'ble
High Court was also upheld by the Hon'ble Supreme Court
of India in S.L.P. No. CC-3082/1999. Hence the above matter
has attained finality and cannot be re-agitated. Since the
services of Sri Khuntia had allegedly been discontinued
much prior to the expiry of the panel his claim has become
stale by raising the dispute after sixteen years. It is a settled
principle of law that delay destroys the right to remedy.
Thus the present dispute is liable to be rejected on the
above grounds.
4. On the pleadings of the parties following issues
were framed:—
ISSUES
1. Whether the present reference of the individual
workman during the pendency of I.D. Case No. 7/2007
before this Tribunal on the same issue is legal and justified?
2. Whether the workman has worked for more than
240 days as enumerated under Section 25-F of the Industrial
Disputes Act?
3. Whether the action of the Management of State
Bank of India, in relation to their Salepur Branch in
terminating services of Shri Dhruba Charan Khuntia, w.e.f.
30.9.2004 is fair, legal and justified?
4. To what relief is the workman concerned entitled?
5. The 2nd Party-workman despite giving sufficient
opportunity did not adduce any evidence either oral or
documentary in support of his claim and willingly kept
himself out of the proceedings at the stage of evidence by
absenting himself or his Union representative.
6. The 1st Party-Management has adduced the oral
evidence of Shri Gagan Bihari Swain as M.W.-1 and filed
documents marked as Ext.-A to Ext.-J in refutation of the
claim of the 2nd Party-workman.
FINDINGS
ISSUE NO. 1
7. A specific plea has been raised by the 1st Party-
Management that a group of 125 employees including the
2nd Party-workman had already raised a similar dispute in
I.D. Case No. 7/2007 before this Tribunal for the same relief
which is pending for adjudication. The dispute as referred
to in I.D. Case No. 7/2007 is given below for comparison
with the dispute in the present case—
Whether the action of the Management of State Bank
of India, Orissa Circle, Bhubaneswar in not considering
the case of 125 workmen whose details are in Annexure-A
for re-employment as per Section 25(H) of Industrial
Disputes Act, 1947 is legal and justified? If not, what relief
the workmen are entitled to?
8. The name of the 2nd party-workman appears at Sl.
No. 111 in Annexure-A to the above reference. In both the
cases the matter of disengagement or so called
retrenchment is involved to be considered in one or the
other way and the relief claimed is with regard to re-
employment. But challenge has been made more specifically
against the termination of service of the 2nd Party-workman
in the present case while in I.D. Case No. 7/2007 prayer has
been made with regard to consideration of the case of 125
workmen for re-employment as per Section 25-H of the
Industrial Disputes Act, 1947. In fact, in the latter case the
workmen have submitted or virtually surrendered to their
cessation of employment or alleged termination, whereas
in the present case they have challenged their termination
on facts and law. Virtually in the present case validity and
legality of the alleged termination has to be tested at the
alter of facts and legal propositions. Therefore it cannot be
said that the issues involved in both cases are same. This
case can proceed despite pendency of I.D. Case
No. 7/2007 and the present reference by the individual
workman pending for adjudication is maintainable being
legal and justified. This issue is therefore decided in the
affirmative and against the 1st Party-Managment.
ISSUE NO. 2
9. The onus to prove that the 2nd Party-workman
has completed one year or 240 days of continuous service
during a period of 12 calendar months preceeding the date
of his alleged termination or disengagement from service
lies on him, but the 2nd Party-workman has not adduced
any evidence either oral or documentary in support of his
contention. He has only alleged in his statement of claim
that he had joined the service on 01.01.1987 and worked till
30.9.2004 on temporary/casual/daily wage basis, but he
has not filed any certificate or reliable document showing
the break-up of year-wise service rendered by him under
the 1st Party-Management during the above period. The
1st Party-Management, on the other hand, has alleged that
the 2nd Party-workman was engaged intermittently on
temporary/daily wage basis due to exigencies of work and
he had never completed 240 days continuous service in a
calendar year. M.W.-1 Shri Gagan Bihari Swain in his
statement before the Court has stated that "The disputant
was working intermittently for few days in our Branch on
daily wage basis in exigencies............ He had not completed
6896
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
240 days of continuous and uniterrupted service preceding
the alleged date of the termination". He has denied the
allegation that the workman was discontinued from service
with effect from 30.9.2004, but has stated that "In fact the
workman left working in the Branch since February, 1989".
The 2nd Party-workman has to disprove the evidence led
by the 1st Party-Management, but he has not come before
the Court to give evidence. A temporary or daily wage
worker has no right to claim reinstatement and particularly
when such an employee had not worked for 240 days
continuously during a period of 12 calendar months
preceding the date of his so-called termination. Thus he is
not entitled to get benefit of Section 25-F of the Industrial
Disputes Act, 1947. This issue is hereby decided against
the 2nd Party-workman for failing to prove that he had
worked for 240 days continuously during a period of 12
calendar months preceding the date of his disengagement
or alleged termination from service.
ISSUE NO. 3
10. Since the 2nd party-workman could not prove
that he had rendered 240 days continuous service under
the 1st Party-Management during a period of 12 calendar
months preceding the date of his disengagement or alleged
termination, he is not entitled for re-employment even in
case of his alleged illegal and arbitrary termination.
Moreover, he was a temporary/casual/daily wage
employee. His services can be terminated at any time
without assigning any cause by the 1st Party-Management.
He has no legal right to be retained in service for the
extended period, if he was appointed for a certain period or
when no time is specified. The 2nd Party-workman has not
filed any letter of appointment or proof of having rendered
service under the 1st Party-Management for a specified
period against a regular post. The 1st Party-Management
has further alleged that in time of exigencies only the 2nd
Party-workman was employed. It means that with the end
of exigencies his job also came to an end. In view of the
matter the action of the management of State Bank of India,
Bhubaneswar Main Branch in terminating the services of
Sri Dhruba Charan Khuntia with effect from 30.9.2004 his
termination is fair, legal and justified. This issue is
accordingly decided in the affirmative and against the 2nd
Party-workman.
ISSUE NO. 4
11. In view of the findings recorded above under
Issues No. 2 and 3, the 2nd Party-workman is not entitled
to any relief whatsoever claimed.
12. Reference is answered accordingly.
JITENDRA SRIVASTAVA, Presiding Officer
ubZ fnYyh] 3 fnlEcj] 2013
dkñvkñ 2670.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj LVsV cSad vkWQ
bafM;k ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp
vuqcaè esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèdj.k] Hkqcus'oj ds iapkV ¼lanHkZ la[;k 66@2008½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 03@12@2013 dks izkIr gqvk FkkA
[lañ ,y&12012@99@2008&vkbZ vkj ¼ch&I)]
lqefr ldykuh] vuqHkkx vfèdkjh
New Delhi, the 3rd December, 2013
S.O. 2670.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 66/2008)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Bhubaneswar as shown in the Annexure, in the industrial
dispute between the management of State Bank of India,
and their workmen, received by the Central Government on
03/12/2013.
[No. L-12012/99/2008-IR (B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT, BHUBANESWAR
Present:
Shri J. Srivastava,
Presiding Officer, C.G.I.T.-cum-Labour
Court, Bhubaneswar
INDUSTRIAL DISPUTE CASE NO. 66/2008
Date of Passing Award—15th March, 2013
Between:
The Asst. General Manager,
State Bank of India,
Bapujinagar Branch,
Dist. Khurda, Orissa
Bhubaneswar, (Orissa)
...1st Party-Management
(AND)
Their Workman Sri Gyan Bhusan Sahoo,
Qr. No.. VR-5/1, Kharvela Nagar, Unit-3,
Bhubaneswar, (Orissa)
...2nd Party-Workman
Appearances:
Shri Alok Das,
...
For the 1st Party-
Authorized Representative
Management
None
...
For the 2nd Party-
Workman
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6897
AWARD
The Government of India, Ministry of Labour has
referred the present dispute existing between the employers
in relation to the Management of State Bank of India and
their workman under clause (d) of sub-section (1) and sub-
section (2A) of Section 10 of the Industrial Disputes Act,
1947 vide Letter No. L-12012/99/2008-IR(B-I), dated
07.10.2008 to this Tribunal for adjudication to the following
effect:
"Whether the action of the management of State Bank
of India, Main Branch, Bhubaneswar in terminating
the services of Sri Gyan Bhusan Sahoo w.e.f. 30.9.2004
without complying the provisions of the I.D. Act,
1947, is legal and justified? To what relief is the
workman concerned entitled?"
2. The 2nd Party-Workman has filed his statement of
claim alleging that he had joined his services as Messenger
on 01.01.1991 after succeeding in interview. He was assured
to get permanent appointment order after one year or on
completion of 240 days work in a calendar year, but despite
completion of several years of continuous satisfactory
service and putting in more than 240 days' work in each
year he was not regularized, instead terminated and refused
employment from 30.9.2004 by the 1st Party-Management
without any written communication or payment of
compensation. The 1st Party-Management in refusing
employment to him violated all principles of natural justice
and mandatory provisions of Section 25-F of the Industrial
Disputes Act, 1947. He therefore brought the matter into
the notice of the C.G.M. C.D.O. of the State Bank of India,
L.H.O., Bhubaneswar.But on hearing nothing, he raised an
industrial dispute before the Regional Labour Commissioner
(Central) vide his letter dated 29.10.2007. Conciliation
proceedings were started, but they failed and thereupon a
failure report was submitted to the Government and the
Government made the present reference. He is thus entitled
to get full back wages and reinstatement with continuity of
service with effect from 30.9.2004.
3. The 1st Party-Management in its reply through
written statement has stated that the present dispute is
misleading and misconceived in as much as the 2nd Party-
workman had already raised a similar dispute along with
124 other workers through the State Bank of India
Temporary 4th Grade Employees Union before the
Assistant Labour Commissioner (Central), Bhubaneswar
challenging their alleged termination of service by the
1st Party-Management. In the said dispute the failure report
was sent by the Asst. Labour Commissioner (Central),
Bhubaneswar to the Ministry of Labour who in turn referred
the matter to this Tribunal for adjudication and the same is
pending before this Tribunal being I.D. Case No. 7/2007.
The name of the 2nd Party-workman is appearing at Sl. No.
123 in Annexure-A to the said reference. Thus, raising a
common dispute for same cause of action and again raising
individual dispute for same relief is nothing but an abuse
of the process of law and amounts to multiplicity of
litigation. The Asst. Labour Commissioner (Central) while
conciliating the individual disputes disregarded the
direction of the Deputy Chief Labour Commissioner
(Central) not to take any further action on the separate
disputes raised by the same workers for the same cause of
action. The allegation of the 2nd Party-workman that he
had joined the Bank on 01.01.1991 and he was discontinued
from service on 30.9.2004 is not correct. He was engaged
intermittently on temporary/daily wage basis but to
exigencies of work. When his services were no more required
he was not engaged further. It is further denied that he was
performing his duties with all sincerity and honesty and to
the best of satisfaction of the Authority. The 2nd Party-
workman has neighter completed several years of
continuous service in the Bank nor he has completed 240
days of continuous service in any calendar year preceding
the date of his alleged termination. In order to give an
opportunity for permanent absorption to the ex-termporary
employees/daily wagers in the Bank in view of the various
settlements entered into between the All India State Bank
of India Staff Federation and the Management of the State
Bank of India all eligible persons were called for interview.
The 2nd Party-workman was also called for interview in the
year 1993. But he was not found successful hence could
not be appointed in the Bank. The Union or the 2nd Party-
workman has never challenged the implementation of the
settlement which has now gained finality. It is further
submitted that some of the wait-listed candidates, who
could not be absorbed in the Bank's service due to expiry
of the panel on 31st March, 1997, filed Writ Petitions before
the Hon'ble High Court of Orissa. But the Hon'ble High
Court of Orissa by a common order dated 15.5.1998 passed
in O.J.C. No. 2787/1997 dismissed a batch of Writ Petitions
and upheld the action of the Management of the Bank.
This order of the Hon'ble High Court was also upheld by
the Hon'ble Supreme Court of India in S.L.P. No. CC - 3082/
1999. Hence the above matter has attained finality and
cannot be re-agitated. Since the services of Sri Behera had
allegedly been discontinued much prior to the expiry of the
panel his claim has become stale by raising the dispute
after ten years. It is a settled principle of law that delay
destroys the right to remedy. Thus the present dispute is
liable to be rejected on the above grounds.
4. On the pleadings of the parties following issues
were framed:—
ISSUES
1. Whether the present reference of the individual
workman during the pendency of the I.D. Case No. 7/2007
before this Tribunal on the same issue is legal and justified?
2. Whether the workman has worked for more than
240 days as required under Section 25-F of the Industrial
Disputes Act?
6898
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
3. Whether the action of the Management of State
Bank of India, Bhubaneswar Main Branch, Bhubaneswar,
in terminating services of Shri Gyana Bhusan Sahoo, w.e.f.
30.9.2004 is, fair, legal and justified?
4. To what relief is the workman concerned entitled?
5. The 2nd Party-workman despite giving sufficient
opportunity did not adduce any evidence either oral or
documentary in support of his claim and willingly kept
himself out of the proceedings at the stage of evidence by
absenting himself or his Union representative.
6. The 1st Party-Management has adduced the oral
evidence of Shri Abhay Kumar Das as M.W.-1 and filed
documents marked as Ext. -A to Ext.-J in refutation of the
claim of the 2nd Party-workman.
FINDINGS
ISSUE NO. 1
7. A specific plea has been raised by the 1st Party-
Management that a group of 125 employees including the
2nd Party-workman had already raised a similar dispute in
I.D. Case No. 7/2007 before this Tribunal for the same relief
which is pending for adjudication. The dispute as referred
to in I.D. Case No. 7/2007 is given below for comparison
with the dispute in the present case —
Whether the action of the Management of State Bank
of India, Orissa Circle, Bhubaneswar in not considering
the case of 125 workmen whose details are in Annexure-A
for re-employment as per Section 25(H) of Industrial
Disputes Act, 1947 is legal and justified? If not, what relief
the workmen are entitled to?
8. The name of the 2nd party-workman appears at Sl.
No. 123 in Annexure-A to the above reference. In both the
cases the matter of disengagement or so called
retrenchment is involved to be considered in one or the
other way and the relief claimed is with regard to re-
employment. But challenge has been made more specifically
against the termination of service of the 2nd Party-workman
in the present case while in I.D. Case No. 7/2007 prayer has
been made with regard to consideration of the case of 125
workmen for re-employment as per Section 25-H of the
Industrial Disputes Act, 1947. In fact, in the latter case the
workmen have submitted or virtually surrendered to their
cessation of employment or alleged termination, whereas
in the present case they have challenged their termination
on facts and law. Virtually in the present case validity and
legality of the alleged termination has to be tested at the
alter of facts and legal propositions. Therefore it cannot be
said that the issues involved in both the cases are same.
This case can proceed despite pendency of I.D. Case No.
7/2007 and the present reference by the individual workman
pending for adjudication is maintainable being legal and
justified. This issue is therefore decided in the affirmative
and against the 1st Party-Management.
ISSUE NO. 2
9. The onus to prove that the 2nd Party-workman
has completed one year or 240 days of continuous service
during a period of 12 calendar months preceding the date
of his alleged termination or disengagement from service
lies on him, but the 2nd Party-workman has not adduced
any evidence either oral or documentary in support of his
contention. He has only alleged in his statement of claim
that he had joined the service on 01.01.1991 and worked till
30.9.2004 on temporary/casual/daily wage basis, but he
has not filed any certificate or reliable document showing
the break-up of year-wise service rendered by him under
the 1st Party-Management during the above period. The
1st Party-Management, on the other hand, has alleged that
the 2nd Party-workman was engaged intermittently on
temporary/daily wage basis due to exigencies of work and
he had never completed 240 days continuous service in a
calendar year. M.W.-1 Shri Abhay Kumar Das in his
statement before the Court has stated that "The disputant
was working intermittently for few days in our Branch on
daily wage basis in exigencies..... He had not completed
240 days of continuous and uninterrupted service
preceding the alleged date of the termination". He has
denied the allegation that the workman was discontinued
from service with effect from 30.9.2004, but has stated that
"In fact the workman left working in the Branch since
August, 1991.". The 2nd Party-workman has to disprove
the evidence led by the 1st Party-Management, but he has
not come before the Court to give evidence. A temporary
or daily wage worker has no right to claim reinstatement
and particularly when such an employee had not worked
for 240 days continuously during a period of 12 calendar
months preceding the date of his so-called termination.
Thus he is not entitled to get benefit of Section 25-F of the
Industrial Disputes Act, 1947. This issue is hereby decided
against the 2nd Party-workman for failing to prove that he
had worked for 240 days continuously during a period of
12 calendar months preceding the date of his disengagement
or alleged termination from service.
ISSUE NO. 3
10. Since the 2nd Party-workman could not prove
that he had rendered 240 days continuous service under
the 1st Party-Management during a period of 12 calendar
months preceding the date of his disengagement or alleged
termination, he is not entitled for re-employment even in
case of his alleged illegal and arbitrary termination.
Moreover, he was a temporary/casual/daily wage
employee. His services can be terminated at any time
without assigning any cause by the 1st Party-Management.
He has no legal right to be retained in service for the
extended period, if he was appointed for a certain period or
when no time is specified. The 2nd Party-workman has not
filed any letter of appointment or proof of having rendered
service under the 1st Party-Management for a specified
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6899
period against a regular post. The 1st Party-Management
has further alleged that in time of exigencies only the 2nd
Party-workman was employed. It means that with the end
of exigencies his job also came to an end. In view of the
matter the action of the management of State Bank of India,
Bhubaneswar Main Branch in terminating the services of
Sri Gyana Bhusan Sahoo with effect from 30.9.2004 his
termination is fair, legal and justified. This issue is
accordingly decided in the affirmative and against the 2nd
Party-workman.
ISSUE NO. 4
11. In view of the findings recorded above under
Issues No. 2 and 3, the 2nd Party-workman is not entitled
to any relief whatsoever claimed.
12. Reference is answered accordingly.
JITENDRA SRIVASTAVA, Presiding Officer
ubZ fnYyh] 3 fnlEcj] 2013
dkñvkñ 2671.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k eas dsanzh; ljdkj LVsV c®d vkWQ
bafM;k ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp
vuqca/k eas fufnZ"V vkS|ksfxd fookn esa dsanzh; ljdkj vkS|ksfxd
vf/kdj.k] Hkqous'oj ds iapkV ¼lanHkZ la[;k 39@2007½ dks izdkf'kr
djrh gS] tks dasnzh; ljdkj dks 03@12@2013 dks izkIr gqvk FkkA
[lañ ,y&12012@143@2007&vkbZ vkj ¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 3rd December, 2013
S.O. 2671.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 39/2007)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Bhubaneswar as shown in the Annexure, in the industrial
dispute between the management of State Bank of India,
and their workmen, received by the Central Government on
03/12/2013.
[No. L-12012/143/2007-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT,
BHUBANESWAR
Present:
Shri J. Srivastava,
Presiding Officer, C.G.I.T.-cum-Labour Court,
Bhubaneswar.
INDUSTRIAL DISPUTE CASE NO. 39/2007
Date of Passing Award — 23rd September, 2013
Between:
1. The Chief General Manager,
State Bank of India, LHO,
III/1, Pt. Jawahar Lal Nehru Marg,
Bhubaneswar (Orissa)
2. The Chief Manager,
State Bank of India,
Forest Park Branch, Dist. Khurda,
Bhubaneswar (Orissa) - 751 009
...1st Party-Managements
(And)
Their Workman Shri Benudhar Bisoi,
At. Kumbharpada (Kusasahi),
Po. & Dist. Puri, Orissa
...2nd party Workman
Appearances:
Shri Alok Das,
...
For the 1st Party-
Auth. Representative
Management No. 1
and 2.
Shri Benudhar Bisoi
...
For Himself the
2nd Party Workman
AWARD
The Government of India in the Ministry of Labour
has referred an industrial dispute existing between the
employers in relation to the management of State Bank of
India, LHO, and their workman in exercise of the powers
conferred by clause (d) of sub-section (1) of sub-section
(2A) of Section 10 of the Industrial Disputes Act, 1947 vide
its letter No. L-12012/143/2007-IR (B-1), dated 13.11.2007 in
respect of the following matter:—
"Whether the action of the Management of State
Bank of India, Forest Park Branch, Bhubaneswar in
terminating the services of Shri Benudhar Bisoi,
casual/temporary workman, is legal and justified? If
not, to what relief the workman is entitled to?"
2. The 2nd Party-workman in his statement of claim
has alleged that he was originally engaged to work as a
temporary messenger from 3.4.1985 to 7.9.1985 on monthly
wages. Thereafter he was engaged from 8.9.1985 to
31.10.1985 on petty cash basis. Again he was engaged as a
canteen boy from 1.11.1985 to 5.11.1995 and thereafter
continued to work as temporary messenger for Sunday
trailer counter and even engaged for postal work, sweeping
etc. on daily wage basis. In the year 1990 an interview was
conducted for selection of messengers and in that interview
he was placed at Sl. No. 55 in the panel. But instead of
giving regular appointment from the panel another interview
was conducted in the year 1993 to enable persons not
selected in the year 1990. The 2nd Party-workman along
with other workers on the basis of interview conducted in
6900
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
the year 1990 was appointed as temporary messenger with
usual salary, D.A., HRA etc. But in a strange way, without
making the workman permanent some persons from the
panel of 1990 and some persons from the panel of 1993
were appointed as permanent sub-staff. The 2nd Party-
workman on 7.8.2006 received a letter from the Chief
Manager, State Bank of India, Forest Park Branch,
communicating his retrenchment with payment of
retrenchment compensation and one month's salary. Some
persons junior to him are still being retained by the Bank.
Therefore his retrenchment is illegal, arbitrary and bad in
law. The 2nd Party-workman has rendered 21 years of service
and he has several liabilities to discharge. Despite his
request and personal approach to the Chief Manager of
the Bank nothing has been done. Therefore, he raised the
dispute before the conciliation officer/Assistant Labour
Commissioner (Central), Bhubaneswar. On failure of the
conciliation, the matter was referred to this Tribunal for
adjudication. Although the Management has paid one
month's notice pay and retrenchment compensation to him
in compliance of Section 25-F of the Industrial Disputes
Act, yet the action taken by the Management cannot be
said to be legal in as much as two employees, namely,
Shri Pitabash Rout and R.N. Panigrahi, who are junior to
him, are continuing in service and have been given regular
appointment. Another two persons, namely, Shri Ambar
Nayak and Banabihari Behera of 1993 selection list have
also been appointed in the regular roll ignoring the case of
the workman who was in the 1990 selection list. The
principle of first come last go has not been followed. The
Management's action in retrenching the workman in
isolation retaining his juniors is not only arbitrary,
whimsical and bad in law but also inhuman. Therefore his
termination be held illegal and unjustified and direction be
issued for his reinstatement with back wages and
consequential service benefits.
3. The 1st Party-Management in its written statement
has stated that the disputant had worked at the Forest Park
Branch of the Management intermittently for few days prior
to the year 1987 on casual/daily wages basis. He along
with other similarly placed persons was given a chance of
permanent absorption in the Bank in view of the various
settlements entered into between the Bank and Staff
Federation. They were called for interview in the year 1990
and 1993. The persons who were found suitable in the
interview were placed in the panel of wait-listed candidates
in order of merit and their respective categories. The name
of the disputant was in the list of wait-listed candidates at
Sl. No. 103 in "C" Category. He was given temporary
appointment at Forest Park Branch in the year 1995. But till
the expiry of the panel i.e. on 31.3.1997, he could not be
absorbed permanently in the Bank, as his name was very
much low in the wait-listed candidates. After expiry of the
panel his temporary services came to an end. But due to
interim order dated 17.3.1997 passed in Misc. Case No.
3029/1997 arising out of O.J.C. No. 3763 of 1997 filed by the
disputant along with 12 others, his services could not be
terminated and he continued at the Forest Park Branch as a
surplus. The O.J.C. No. 3763 of 1997 was disposed of on
16.4.2002 in terms of the judgement passed in similar W.P.(C)
No. 2787/97 (Abhimanyu Mandal & Others -versus- State
Bank of India) which was affirmed by the Hon'ble Supreme
Court in S.L.P. vide order dated 16.7.1999. After dismissal
of the writ petition filed by the disputant his services
should have been discontinued due to oversight he
continued in the Branch and after detection of the same his
services were discontinued from 7.8.2006 after payment of
necessary retrenchment compensation and one month's
pay under the provisions of the Industrial Disputes Act,
1947. Therefore the termination of the disputant being legal
and justified cannot be a matter of industrial dispute and
does not call for any adjudication by the Tribunal. Some
temporary workers are still continuing at few branches of
the Bank by virtue of interim order passed by the Hon'ble
High Court of Orissa. Hence their continuance cannot be
equated with the disputant. It is not correct to say that the
persons who were appointed subsequently are still
continuing at the Branch. The cases of Ambar Naik and
Banabihari Behera are completely on different footing. The
name of Shri Ambar Naik was at Sl. No. 26 and that of
Shri Banabihari Behera was at Sl. No. 34 in the panel of
daily wagers in "C" category of 1993. Therefore they were
appointed in the Bank in due course when their turn came.
As the name of the disputant was at Sl. No. 103 in "C"
category he cannot equate his case with other two persons.
4. On the pleadings of the parties following issues
were framed.
ISSUES
(1) Whether the reference is maintainable?
(2) Whether the action of the management of State
Bank of India, Forest Park Branch, Bhubaneswar in
terminating the services of Shri Benudhar Bisoi, casual/
temporary workman is legal and justified?
(3) If not, to what relief the workman is entitled?
5. The 2nd Party-workman Shri Benudhar Bisoi has
filed his own sworn affidavit in evidence on which
opportunity to cross-examine was given to the 1st Party-
Management. No document has been filed by the 2nd
Party-workman in support of his claim.
6. The 1st Party-Management has examined
Shri Pradip Kumar Mishra, Branch Manager in evidence
and has relied on twelve documents marked as Ext.-A to K
and K/1.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6901
FINDINGS
ISSUE NO. 1
7. Since there is no specific pleading about the
maintainability of the reference or claim and only generalized
statement has been made in the written statement by the
1st Party-Management, as such this issue being based on
no pleading is decided against the 1st Party-Management
in the affirmative.
ISSUE NO. 2
8. The 2nd Party-workman has stated that he has
rendered 21 years of service at the Forest Park Branch of
State Bank of India, Bhubaneswar. But the 1st Party-
Management has alleged that Shri Bisoi had worked
intermittently in temporary capacity for few days at the
Branch prior to 1987. The 1st party-Management has not
disputed his further engagement as alleged by the 2nd
Party-workman in his statement of claim. It is an admitted
fact that he worked in a temporary capacity. According to
the 1st Party-Management the services rendered by the
2nd Party-workman as a canteen boy were not at the behest
of the Management. Canteen boys are engaged by the
Local Implementation Committee and as such they are not
employed by the Bank. However all these allegations do
not count much to the present dispute. The question is
whether the termination of the 2nd Party-workman is legal
and justified or not? There is no dispute that the 2nd Party-
workman was called for interview along with other similarly
placed workmen for interview in the year 1990 and 1993.
The name of the 2nd party-workman was so below in the
list that he could not be appointed in a permanent post.
The panel of wait listed candidates expired on 31.3.1997
and till that date his name could not reach to the point of
vacant post. The 2nd Party-workman has not placed any
documentary evidence to show that candidates below his
name were appointed in the permanent post by the 1st
Party-Management. The contention of the 1st Party-
Management is that the workmen who are still continuing
in the service were continued due to judicial orders. The
matter of appointment of the 2nd Party-workman and other
similarly placed workers had been finally settled by the
Hon'ble High Court of Orissa vide its order dated 15.5.1998
passed in O.J.C. No. 2787/97 in the case of Abhimanyu
Mandal versus State Bank of India and others which was
affirmed by the Hon'ble Supreme Court in S.L.P. On
finalization of the said matter the 2nd Party-workman was
discontinued from service by the 1st party-Management
by its letter dated 7.8.2006 making payment of one month's
notice pay and retrenchment compensation to him, which
fact has been admitted by the 2nd Party-workman. Therefore
the 1st Party-Management has complied with the provisions
of Section 25-F of the Industrial Disputes Act while
terminating the services of Shri Benudhar Bisoi. In this
background the action of the 1st Party-Management of
State Bank of India, Forest Park Branch, Bhubaneswar in
terminating the services of Shri Benudhar Bisoi, casual/
temporary workman is perfectly justified and in accordance
with law. Issue no. 2 is accordingly decided against the
2nd party-workman.
ISSUE NO. 3
9. Since the services of the 2nd Party-workman have
been terminated in accordance with due process of law
and the action of the 1st Party-Management in this regard
is justified the 2nd Party-workman is not entitled to any
relief.
10. The reference is answered accordingly.
JITENDRA SRIVASTAVA, Presiding Officer
ubZ fnYyh] 3 fnlEcj] 2013
dkñvkñ 2672.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj uhykpy xzkE;
cSad ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp
vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèdj.k] Hkqcus'oj ds iapkV ¼lanHkZ la[;k 17@2009½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 03@12@2013 dks izkIr gqvk FkkA
[lañ ,y&12012@187@2008&vkbZvkj ¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 3rd December, 2013
S.O. 2672.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 17/2009)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Bhubaneswar as shown in the Annexure, in the industrial
dispute between the management of Neelachal Gramya
Bank, and their workmen, received by the Central
Government on 03/12/2013.
[No. L-12012/187/2008-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, BHUBANESWAR
Present: Shri J. Srivastava,
Presiding Officer, C.G.I.T. cum-Labour
Court, Bhubaneswar.
INDUSTRIAL DISPUTE CASE No. 17/2009
Date of Passing Award-10th October, 2010
Between:
The Manager,
Neelachal Gramya Bank, Nilakantha Nagar,
Bhubaneswar
... Ist Party-Management
6902
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
(And)
Their Workman Shri Janmejaya Samantara,
S/o. Shri Kailash Ch. Samantara,
Vilage Dakhinanuagaon, P.S. Bindha,
Via. Pipilti, Dist. Puri
...2nd Party-Workman.
Appearances:
Shri Hemant Kr. Mishra
...
For the 1st Party-
Auth. Representative.
Management.
None.
...
For the 2nd Party-
Workman.
AWARD
The Government of India in the Ministry of Labour
has referred an industrial dispute existing between the
employees in relatlion to the management of Neelachal
Gramya Bank, Bhubaneswar and their workman in exercise
of the powers conferred by clause (d) and sub-section (1)
of sub-section (2A) of Section 10 of the Industrial Disputes
Act, 1947 vide letter No. L.-12012/187/2008-IR(B-I), dated
17.03.2009 in respect of the following matter:
"Whether the action of the management of Neelachal
Gramya Bank, Bhubaneswar in terminating the
services of their workman Shri Janmejaya Samantara
w.e.f. 05/03/2006, is legal and justified? If not, what
relief the workman concerned is entitled to?"
2. The 2nd Party-workman submitted his statement
of claim alleging that he was appointed as a Typist on daily
wage basis at the rate of Rs. 80/- per day by the 1st Party-
Management on 3.6.2003 and he resumed his duties on the
same date. During his tenure of service he was neither
issued any charge sheet for misconduct nor any enquiry
was initiated against him. The 1st Party-Management used
to take work from him from 10 A.M. to 5 P.M. on all working
days, but overtime wages and other statutory benefits such
as bonus, leave etc. were not provided to him. When he
repeatedly demanded these benefits, the management
verbally told him that his service is no more required and
he was not allowed to perform his work with effect from
5.3.2006 without any notice or retrenchment compensation.
He was also not paid his salary for the month of February
and March, 2006. He had worked with the 1st Party-
Management for more than 240 days continuously and
uninterruptedly within a period of tweleve calendar months
preceding the date of his termination. Therefore he is
entitled to the benefits of section 25-F of the Industrial
Disputes Act and for non-compliance of these provisions
his termination is void-ab-initio. The principle of "last come
first go" was also not followed and a fresh appointment
was given to an outside in violation of the provisions of
Section 25-H of the Industrial Disputes Act. Therefore his
termination be declared illegal and unjustified and he be
reinstated in service with full back wages and other
consequential benefits.
3. In its written statement the 1st Party-Management
has stated that the reference is not maintainable in as much
as the 2nd party-workman is not a workman at all. He was
never appointed as a Typist on daily wage basis. As he
was never appointed by the 1st Party-Management the
question of issuance of charge sheet or order of his
termination or payment of bonus, overtime or allowance of
leave etc. does not arise. The 2nd Party-workman has not
produced any receipt of salary or wages or proof of working
for 240 days in a year. As there is no "employer and
employee" relationship between the parties, the 2nd Party-
workman is not entitled to the benefits of any of the
provisions of the Industrial Disputes Act, 1947.
4. On the pleadings of the parties, following issues
were framed.
ISSUES
1. Whether the reference is maintainable?
2. Whether the disputant Shri J. Samantara is a
workman as defined under the definition of the I.D. Act,
1947?
3. Whether the action of the Management of
Neelachal Gramya Bank, Bhubaneswar in terminating the
services of the disputant Shri J. Samantara with effect from
5.3.2006 is legal and justified?
4. If not to what relief the disputant Shri J. Samantara
is entitled?
5. The 2nd Party-workman has not adduced any oral
or documentary evidence in support of his claim. He has
abstained himself from attending the court from 7.9.2011,
when he was called upon to produce his evidence.
Therefore the case was ordered to proceed ex-parte against
him on 1.3.2012.
6. The 1st Party-Management has adduced the
evidence through sworn affidavit of Shri Nrusingh Charan
Behera, Senior Manager, Personnel Administration Deptt.
FINDINGS
ISSUE No. 1 & 2
7. Since both the issues are based on same pleas and
are inter-dependant, they are taken up together.
8. The 1st Party-Management has denied relationship
of "employer and employee" between itself and the 2nd
Party-workman. Therefore for want of this relationship the
reference cannot be held to be maintainable. The burden to
prove these issues lies on the 2nd Party-workman, but he
failed to adduce any evidence to show that he was ever
appointed by the 1st Party-Management to work as a Typist
on daily wage basis or in any capacity. He has admitted in
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6903
his claim statement that he was not issued with any
appointment letter. But if no appointment letter was issued
to him he may adduce other evidence such as voucher or
receipt of payment of wages, certificate with regard to his
service under the 1st Party-Management. But no such
document has either been produced, nor the 2nd Party-
workman has dared to come to the witness box to depose
the facts averred in his statement of claim. The witness
Shri Nrusingh Charan Behera examined on behalf of the 1st
Party-Management has stated in his affidavit that he deals
with the staff related matters. There was never any person
named Shri Janmejaya Samantara in the pay roll of the Bank
and no salary, payment or engagement/termination order
was ever issued to him. He was never paid any salary.
There was no provision of engagement of any person on
daily wage basis in the Appointment and Promotion of
Officers and other Employees Rules, 1998.
9. In view of the evidence led by the 1st Party-
Management vis-a-vis no evidence adduced by the 2nd
party-workman it is to be held that the disputant
Shri Janmejaya Samantara was never appointed as a
workman by the 1st Party-Management and therefore he
does not come under the definition of a "workman" under
the Industrial Disputes Act, 1947. Accordingly no
relationship of "employer and employee" is proved
between the 1st Party-Management and the 2nd Party-
workman and in such a situation the reference is not
maintainable before this Tribunal/Labour Court. Both the
issues are decided in the negative and against the 2nd
Party-workman.
ISSUE No. 3
10. The 1st Party-Management has denied the
appointment of the 2nd Party-workman as Typist on daily
wage basis or in any other capacity. It has further denied
having terminated his service with effect from 5.3.2006. As
such no question arises for putting the so-called action of
the 1st Party-Management in terminating the services of
the disputant to test as to its legality or justification. This
issue does not arise at all in view of the failure of the 2nd
Party-workman to establish himself as workman and his
services being terminated by the 1st Party-Management.
Therefore this issue is decided accordingly.
ISSUE No. 4
11. As the disputant Shri Janmejaya Samantara has
failed to prove his case he is not entitled to any relief claimed
for.
12. Reference is answered accordingly.
JITENDRA SRIVASTAVA, Presiding Officer
ubZ fnYyh] 3 fnlEcj] 2013
dkñvkñ 2673.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj LVsV cSad vkWQ
bafM;k ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp
vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/kdj.k] gSnjkckn ds iapkV ¼lanHkZ la[;k 67@2002½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 03@12@2013 dks izkIr gqvk FkkA
[lañ ,y&12012@159@2000&vkbZ vkj ¼ch&I)]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 3rd December, 2013
S.O. 2673.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 67/2002)
of the Cent.Govt. Indus. Tribunal-cum-Labour Court,
Hyderabad as shown in the Annexure, in the industrial
dispute between the management of State Bank of India,
and their workmen, received by the Central Government on
03/12/2013.
[No. L-12012/159/2000-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT
AT HYDERABAD
Present : Smt. M. Vijaya Lakshmi,
Presiding Officer
Dated the 3rd day of July, 2013
INDUSTRIAL DISPUTE NO. 67/2002
(Old ID No. 112/2000 transferred from
Industrial Tribunal, Hyderabad)
Between:
Kum. V. Ganga Bhavani,
Sree Sai Enterprises,
Brundavan Complex, Shop No. 46,
Beaseant Road, Vijayawada-2
....Petitioner
AND
The Asst. General Manager,
State Bank of India,
Zonal Office, Region-II
Vijayawada-1.
.....Respondent
Appearances:
For the Petitioner
:
Shri K. Subhas Reddy, Advocate
For the Respondent
:
M/s. B.G. Ravindra Reddy &
B. V. Chandrasekhar, Advocates
AWARD
The Government of India, Ministry of Labour by its
order No. L-12012/159/2000-IR(B-I) dated 31.8.2000 referred
the following dispute under section 10(1) (d) of the I.D.
Act, 1947 for adjudication to the Industrial Tribunal-cum-
Labour Court, transferred to this Court in view of the
6904
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
Government of India, Ministry of Labour's order
No. H-11026/1/2001-IR (C-II) dated 18.10.2001 bearing I.D.
No. 112/2000 and renumbered in this Court as
I.D. No. 67/2002.
SCHEDULE
"Whether the action of the Manager, State Bank of
India, Vijayawada Zone in dismissing services of
Kum. V. Ganga Bhavani, Ex-Messenger w.e.f. 31.3.97
is justified? If not what relief the workman is entitled?"
The reference is numbered in this Tribunal as I.D.
No. 67/2002 and notice were issued to the parties
concerned.
2. The case stands posted for enquiry of Petitioner.
Petitioner called absent and there is no representation since
long time. As per the office record, notices issued time and
gain to the Petitioner as well as to her counsel, returned
unserved. Recent notice issued to the Petitioner's counsel
returned unserved as not claimed. Since long time neither
Petitioner nor her counsel are taking part in the proceeding.
In the circumstances, taking that Petitioner is not at all
interested in the proceedings, petition is dismissed.
Award passed accordingly. Transmit.
Typed to my dictation by Smt. P. Phani Gowri,
Personal Assistant and corrected by me on this the 3rd day
of July, 2013.
M. VIJAYA LAKSHMI, Presiding Officer
Appendix of evidence
Witnesses examined for
Witnesses examined for
the Petitioner
the Respondent
NIL
NIL
Documents marked for the Petitioner
NIL
Documents marked for the Respondent
NIL
ubZ fnYyh] 3 fnlEcj] 2013
dkñvkñ 2674.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ fd /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj LVsV cSad vkWQ
bafM;k ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp
vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/kdj.k] vgenkckn ds iapkV ¼lanHkZ la[;k 150@2012½ dks
izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 03@12@2013 dks izkIr gqvk
FkkA
[lañ ,y&12012@39@2012&vkbZ vkj ¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 3rd December, 2013
S.O. 2674.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 150/
2012) of the Cent.Govt.Indus. Tribunal-cum-Labour Court,
Ahmedabad (Gujarat) as shown in the Annexure, in the
industrial dispute between the management of State Bank
of India, and their workmen, received by the Central
Government on 03/12/2013.
[No. L-12012/39/2012 - IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
AHMEDABAD
PRESENT
Binay Kumar Sinha,
Presiding Officer, CGIT-cum-Labour Court,
Ahmedabad,
Dated 13th August, 2013
Reference: (CGITA) No. 150 of 2012
1. The Manager-Administration,
State Bank of India,
Near C.N. Vidhyalaya, Ambawadi,
Ahmedabad (Gujarat)
2. Regional Manager,
State Bank of India,
Near C.N. Vidhyalaya, Ambawadi,
Ahmedabad (Gujarat)
...First Party
AND
Their Workman
Shri Chandrakant Baldevdas Nayak
At & PO-Jadar, Taluk-Idar
Dist-Sabarkatha, Gujarat
...Second Party
For the First Party
:
Shir Bhargav M. Joshi,
Advocate
For the Second Party
:
Shir Kamlesh V. Vyas,
Advocate
AWARD
As per order No. L-12012/39/2012-IR(B-I)], New Delhi
dated 27.09.2012, the Central Government/Ministry of
Labour, under clause (d) of sub-section (1) and sub-section
(2A) of Section 10 of the I.D. Act, 1947 refered the dispute
for adjudication in terms of reference under the schedule:
SCHEDULE
"Whether the demand of Shri Chandrakant
Baldevdas Nayak for withdrawal of punishment of
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6905
stoppage of two increments by the management of
State Bank of India, Ahmedabad is legal and justified?
To what relief the workman is entitled?
2. Upon notice issued to the parties the 1st party
Ban through Vakalatnama (Ext. 6) in favour of Shri B.M.
Joshi, Advocate on 06.05.2013 and the 2nd party workman
also appeared executing Vakalatnama (Ext. 7) in favour of
Shri K.V. Vyas, Advocate on 13.08.2013 and the case was
running for filing pleading.
3. In the meantime a withdrawal pursis (Ext. 9) is filed
on 13.08.2013 by the workman Chandrakant containing
signature of his lawyer and the 1st party's lawyer noting
down on objection on Ext. 9. The withdrawal pursis was
moved and pressed which contains voluntary withdrawal
of this reference case without having any pressure and so
the withdrawal pursis is fit to be allowed.
4. The dispute apears to have been settled and so
the workman preferred to file withdrawal pursis which is
allowed.
5. Now there remains no dispute between the parties
as per withdrawal pursis (Ext. 9). So, there is no need to
adjudicate upon the terms of reference.
So, no dispute award is passed.
BINAY KUMAR SINHA, Presiding Officer
ubZ fnYyh] 3 fnlEcj] 2013
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lkSjk"Vª ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp
vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèdj.k] vgenkckn ds iapkV lanHkZ la[;k 30@2007] dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 03@12@2013 dks izkIr gqvk FkkA
[lañ ,y&12012@110@2006&vkbZ vkj ¼ch&I½]
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New Delhi, the 3rd December, 2013
S.O. 2675.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref. 30/2007 of
the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Ahmedabad as shown in the Annexure, in the industrial
dispute between the management of State Bank of
Saurashtra, and their workmen, received by the Central
Government on 03/12/2013.
[No. L-12012/110/2006-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
AHMEDABAD
PRESENT
Binay Kumar Sinha,
Presiding Officr, CGIT cum Labour Court,
Ahmedabad,
Dated 29th January, 2013
Reference: (CGITA) No. 30 of 2007
1. Managing Director,
State Bank of Saurastra,
(Now State Bank of India),
Head Office, N.B. Chauk,
Bhavnagar (Gujarat)
2. Deputy General Manager
(Personnel & H.R.D.)
State Bank of Saurastra,
(Now State Bank of India)
Head Office, N.B. Chawk,
Bhavnagar (Gujarat)
...First Party
And
Their Disputant
Through, the General Secretary,
Shramjivi Kalyan Sangh,
25/ Municipal Shopping Centre,
Near A.V. School Ground,
Cresent, Bhavnagar (Gujarat)
...Second Party
For the First Party
:
Ms. Meenaben Shah,
Advocate,
For the Second Party
:
Shri Amarish Patel Advocate
Shri Jogesh V. Joshi
(Union, General Secretary)
AWARD
The Central Government/Ministry of Labour, Shram
Shakti Bhavan, Rafi Marg, New Delhi, considering the
Industrial dispute exists between the employers in relation
to the management of State Bank of Saurastra (now State
Bank of India), Head office, and the disputant as per order
No. L-12012/110/2006 [IR (B-1)] dated 26.03.2007, in exercise
of power conferred by cl. (d) of sub-section (1) and sub-
section (2A) of Section 10 of the Industrial Dispute Act,
1947, referred the dispute for adjudication to this C.G.I.T.
cum Labour Court under the terms of schedule:
SCHEDULE
"Whether the action of the management of State Bank
of Saurastra, Bhavnagar for not giving opportunity
to Shri Ankit Ashok Andharia S/o Late Ashok B.
Andharia for his compassionate appointment as per
6906
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
the scheme of the Bank is legal and just? If not, what
relief the disputant is entitled to and to what extent?
2. The case of the 2nd party disputant namely Ankit
Ashok Andharia through the Union as per statement of
claim (Ext.-4) is that his father Late Ashok B. Andharia was
serving as clerk-cum-cashier with the 1st party Bank since
06.06.1983. His father was permanent employee of the Bank
and there was relationship of employer and employee in
between the Bank and his late father. His father died on
19.06.2002 due to disease of cancer leaving behind wife
Purnimaben, son Ankit and a daughter. Due to father's
untimely death his family financial condition was weak and
there was no earning member in the family. As per rules and
regulations and policy of the Bank, the dependant heirs of
the deceased employee is entitled to get the employment
on compassionate ground when the employee is entitled
to get the employment. Disputant Ankit was a minor at the
time of death of his father. Ashok and so widow of Ashok
namely Purnimaben applied to the Bank (1st party) for her
compassionate employment on 24.07.2002 within stipulated
time and that reply was received through Branch Manager,
Kumbharwada that there is no any possibility to give
appointment on compassionate ground. Deputy General
Manager (Personnel and HRD) also replied vide letter dated
31.01.2003 that it is the discretion of the Bank to consider
application on the basis of facts on the record. Her case is
not a fit case to be considered for compassionate
appointment. Then Purnimaben filed civil suit against the
decision of Bank vide suit No. 66/2003 in the court of Civil
Judge (J.D.), Bhavnagar. Purnimaben, subsequently
withdrew that suit on 09.09.2005. On 18.12.2003 Purnimaben
had submitted application on to the Bank (1st party) to
include his son Ankit for service in the Bank on
compassionate appointment. Also disputant Ankit
submitted application on 02.11.2004 before the Bank in
prescribed form for giving him employment. Date of birth
of Ankit is 06.06.1983 and he completed 18 years of age on
10.09.2005. Again the disputant Ankit submitted application
to Bank on 10.09.2005 to give him compassionate
appointment, after withdrawal of the Civil Suit No. 66/2003
by Purnimaben on 09.09.2005. But the Bank did not give
any reply to the application dated 10.09.2005 of the
disputant Ankit. Then Union for the disputant sought for
demand before the Bank on 29.10.2005 for giving Ankit
compassionate appointment, but no reply was given by
the Bank (1st party). Then dispute was raised before the
ALC (Central) and the Bank filed its reply on 15.02.2006
that the compassionate appointment in Banks are purely at
the discretion of competent authority of the Bank and legal
heirs cannot have any legal right for appointment in the
Bank. Then failure report of conciliation was sent to the
appropriate Government resulting in reference order by
the appropriate Government. On these grounds, prayer is
for directing the 1st party to give compassionate
appointment to the disputant Ankit Ashok Andharia as per
his educational qualification w.e.f. 10.09.2005 and for any
other relief to which the disputant is found entitled with
cost of the case.
3. As against this the case of the 1st party Bank is
that the statement of claim of the 2nd party disputant/
Union is misconceived and not maintainable. However
admitting para 1 and 2 of S/c, whereas para 3 of S/c is
matter of facts and no reply needed. The content of para 4
of S/c is denied with such contention that Ashok D.
Andharia had misappropriated huge Bank's fund which
are public money for his personal use and that had been
admitted by him in his letter dated 20.11.2001 marked as
Annexure-I. The contention is that there is no provision of
compassionate appointment in the 1st party Bank w.e.f.
02.02.2006 or thereafter para 5 of S/c is also denied. Further
case is that the widow Purnimaben of deceased employee
Ashok was financially sound to support her family members
even after death of Ashok. On the contrary, the basic
purpose of the compassionate appointment is to get
financial support for the survival of her family members by
way of getting herself employed in Bank immediately within
a reasonable time after demise of her husband was not
necessitated in her case. So there was no pious intention
of Purnimaben widow of late Ashok in applying for
compassionate appointment in the Bank. Para 6 of S/c is
also denied. Further contention is that there is no clarity of
date of birth of the disputant 2nd party as per statement of
claim and that the need of financial support of family
members of late Ashok by way of compassionate
appointment in the Bank for their livelihood is not
substantiated with reference to para 7 of the S/c because
different family members of Late Ashok had applied one
after another for compassionate appointment. The present
claim of the 2nd party disputant Ankit as per his application
dated 10.09.2005 is more than three years after his father's
death. That also defeats the basic purpose of
compassionate appointment due to delayed request as per
decision of the Hon'ble Supreme Court. Further case is that
it is discretion of the 1st party Bank to consider any
compassionate appointment examining the circumstances
with reference to the letter dated 19.02.2002 as per Annexure-
2 of Ministry of Finance, Department of Economic Affairs
(Banking Division), Government of India addressed to all
public sector Banks and Financial Institutions. Further case
is that the wording "discretion" has been properly
interpreted by the 1st party Bank is the present case, the
Bank has suffered a huge loss in lacs of rupees due to
some misdeeds of late Ashok D. Andharia, the father of
disputant Ankit by siphoning Bank's fund viz public money
for his personal use which had been admitted by Ashok D.
Andharia. The loss sustained by Bank has not been made
good by deceased Ashok nor any of his family member nor
by any other relatives of him. So the financial position of
the family members of Late Ashok was not in crisis with
utilisation of such huge funds. The Bank deal with the
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6907
public money and it is duty of the Bank for safe custody/
utilisation of such money. As such it requires the
trustworthy employers to deal with such money.
Considering above misdeeds of late Ashok D. Andharia,
the reliability of the 2nd party disputant in dealing such
public money is doubtful, as such nature is inherited by a
person genetically or from the circumstances where it
brought up. So appointment of the disputant Ankit in the
Bank may be detrimental to the interest of the Bank. On
these scores prayer is made to dismiss the reference under
section 10 of the I.D. Act and that the disputant (the 2nd
party) is not entitled to the relief as prayed for.
4. In view of the pleadings of the parties the following
issues are taken for discussion and for determination in
this case.
ISSUES
(i) Whether the reference is maintainable?
(ii) Has the disputant/2nd party got valid cause of
action to raise dispute in this case?
(iii) Whether the disputant Ankit Ashok Andharia is
entitled for his compassionate appointment with effect from
10.09.2005 in the service of the 1st party Bank and for claim
of arrears of pay from 10.09.2005 and for any other benefits?
(iv) Whether the action of the management of Bank
of Saurastra (now State Bank of India) Bhavnagar for not
giving oppurtunity to Shri Ankit Ashok Andharia for his
compassionate appointment as per scheme of Bank is legal
and justified?
(v) What orders are to be passed?
5. Issues No III:— The 2nd party and the 1st party
both have adduced oral and documentary evidence in
support of respective case. The disputant 2nd party filed
his affidavit in lieu of examination in chief vide Ext. 37 and
he was cross examined by the lawyer of the 1st party. The
1st party examined in the court two M. witness No. 1 is shri
Jaidev Jaintilal Pathak, Dy. Manager, S.B.I. Branch,
Ahmedabad and was cross examined by the 2nd party's
lawyer. His oral deposition is vide Ext. 44. The 1st party
also examined another witness namely Laxman Rai, Asst.
General Manager at Ext.-48.
6. The 2nd party disputant has submitted following
documents which have been taken is documentary
evidence. Ext. 13 is copy of appointment letter of deceased
employer Ashok dated 23.05.1983 by the Bank. Ext.-14 is
death certificate of diseased ashok dated 19.06.2002 during
the course of employment. Ext.-15 is birth certificate of
disputant Ankit Ashok Andharia, showing birth date
16.08.1987 in municipal record. Ext.-16 is birth certificate as
per municipal record of Pujaben d/o decease Ashok
showing birth date 18.06.1991 Ext.-17 is copy of disability
certificate of Pujaben showing deaf and dumb by birth
Ext.-18 is copy of mark sheet of disputant Ankit of S.S.C.
exam. March-April 2002 Ext.-19 is copy of policy framed by
the bank for appointment on compassionate ground dated
12.04.1999. Ext. 20 is copy of order dated 07.06.2005 issued
by Bank appointing Bhartiben G. Mandani is clerical cadre
on compassionate ground. Ext. 21 is copy of the application
and form to the Bank by purnimaben widow of diseased
employee Ashok dated 24.07.2002 for inclusion in service
on compassionate ground received by the Bank with
endorsement. Ext. 22 is letter addressed to Purnimaben by
Kumbharwada Branch of the Bank dated nill as Sl. N.
KUMB/SL/1010. Ext. 23 is letter written by the Dy. General
Manager (personnel and H.R.D) to Advocate of Purnimaben
dated 31.01.2003 Ext. 24 is copy of application dated
18.12.2003 of Purnimaben to include her son Ankit in service
on compassionate ground received by the Bank with
endorsement there to Ext. 25 is copy of application of Ankit
(disputant) dated 02.11.2004 addressed to the Managing
Director for including him in service on compassionate
ground received by the Bank. Ext. 26 is certified copy of
the application dated 09.09.2005 of Purnimaben widow of
Ashok filed in civil suit No. 66/2003 in the court of Civil
Judge (J.D) praying for withdrawal of the Civil Suit filed
against the Bank. Ext. 27 is the copy of application of
disputant Ankit dated 10.09.2005 to the Deputy General
Manager to include him in service on compassionate
ground, received by the Bank. Ext. 28 is the copy of the
demand letter of the 2nd party Union dated 29.10.2005 sent
to the Bank. Ext. 29 is two registry receipt of the post of
demand letter. Ext. 30 is two Acknowledgement receipts of
the demand letter received by M.D.S.B.S. and Deputy
General Manager, Bhavnagar. Ext. 31 is written reply dated
15.02.2006 before the conciliation officer. Ext. 32 is original
letter dated 11.06.2005 of the Bank for seizing/forfeiting the
amount of provident fund of Rs. 3,96,805/- in the loan a/c
sent to purnimaben widow of Ashok Andharia. Ext. 33 is
copy of order passed by controlling authority payment of
gratuity Act central in application No. 22/2004 of
Purnimaben filed against Bank, Bhavnagar. Ext. 34 is certified
copy of the order of Criminal Court dated 05.08.2004 in
criminal case No. 181/2002 filed by the Kumbharwada branch
of Bank against Ashok Andharia (deceased employee)
dropping the case against deceased Ashok. Ext. 35 is
certified copy of order of the C.J.M. dated 27.08.2004 in
criminal case No. 3963/2002 as to dropping of the criminal
proceeding against Ashok on the ground of death. Ext. 36
is certified copy of the charge sheet arising out of F.I.R.
No. 139/03 dated 08.10.2003 submitted in criminal trial No.
3962 of 2005.
7. On behalf of the 1st party (Bank) Anexure-I is zerox
copy of written admission dated 20.11.2001 made by
Ashokbhai Andharia before the Branch Manager, State
Bank of India, Kumbharwada, Branch, Bhavnagar.
Annexure-II is copy of circular dated New Delhi 19th
February, 2002 of Government of India/Ministry of Finance/
Department of Economic Affairs (Banking Division) on the
6908
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
subject of scheme for appointment of dependants of
deceased employees on compassionate grounds. These
two Annexure are attached with the w.s. of the 1st party
vide Ext. 6. Ext 10/1 is the circular no. PER/55/2005-2006
dated 02.02.2006 of State Bank of Saurastra H.O., Bhavnagar
on the new scheme for payment of ex-gratia Lumpsum
amount in lieu of appointment on compassionate grounds.
Ext. 43/1 to 43/8 are documents of the 1st party filed on
28.04.2011 with list Ext. 43 and its copy received by the 2nd
party union. These are copy of Panchnama dated 29.11.2001,
copy of letter written by A-Division Police station,
Bhavnagar to Manager, Kumbharwada Branch, State Bank
of Saurastra dated 28.11.2001, copy of letter written by
A.G.M. to the Manager S.B.S. Kumbharwada dated
26.11.2001, copy of letter written to police Inspector, A-
Division, Policy Station, Bhavnagar by Shri J.J. Pathak,
Branch Manager to the Manager, S.B.S. Kumbharwada
dated 26.11.2001, copy of the admission given by Ashok
Andharia to the Manager, State Bank of Saurastra,
Kumbharwada branch, Bhavnagar dated 23.11.2001, copy
of admission given by Ashok (the workman dated
20.11.2001, copy of the F.I.R. lodged against Ashok
Andharia by the Bank and copy of chargesheet issued by
the C-Division, Police Dept. in F.I.R. 137/2003 lodged by
Mr. L.B. Vania, Manager of Krishnanagar branch. The 1st
party has also produced copy of the complaint given by
the L.B. Vania, Branch Manager to A-Division, Bhavnagar
Police sub Inspector along with relevant papers in
pursuance of fraud committed by Mr. Ashok Andharia.
8. Shri Amirsh Patel, Advocate for the 2nd party has
argued that deceased Ashok D. Andharia was appointed
in clerical cadre the 1st party Bank on 23.05.1983 and he
continued work when he died on 19.06.2002. It has been
further argued that though the management of Bank put
him under suspension prior to his death but no domestic
enquiry had been initiated against Ashok and though
criminal cases were lodged against Ashok by branch
Manager, Kumbharwda branch and Branch Manager,
Krishnanagar Branch with allegation of fraud and
misappropriation of huge amount of money of Bank by him
during his tenure of working in Krishnanagar and
Kumbharwada branch but those case against him was
dropped due to his death on 19.06.2002 and so the criminal
charges of misappropriation was not proved against Ashok.
It has been further argued that the Management of Bank
could not impute and proved the allegation of misconduct
under domestic enquiry as no any departmental enquiry
was proceeding against him and so it cannot be proved
that Ashok Andharia had defalcated huge amount of public
money held in the Bank. Further, advancing arguments Mr.
Patel submitted that firstly, there was no impediment before
the Bank management in refusing the application of Ashok's
widow, Purnimaben, When she presented herself for
compassionated appointment vide Ext. 21 dated 24.07.2002
and that reply of Bank vide Ext. 22 & 23 is showing in
different, partial and bias attitude adopted against the family
of the deceased Ashok Andharia. It has been further argued
that though the widow Purnimaben filed Civil Suit against
the Bank authority for getting relief for her compassionate
appointment but she withdrew the Civil Suit on 09.09.2005
and then vide Ext. 27 the disputant had filed application for
his compassionate appointment on 10.09.2005 where he
attained majority on 16.08.2005 according to his date of
birth 16.08.1987 as per Ext. 15 and so if Bank refused
compassionate appointment of widow Purnimaben then
Bank ought to have considered application of disputant
Ankit vide Ext. 27 by no reply was given to his application
and the Bank authority sat tight over the matter adopting
in different attitude. Further, argued that the old scheme of
compassionate appointment as per Ext. 19 was applicable
in the case of disputant Ankit and the new scheme of 2006
is not applicable as to giving compensation instead of
compassionate appointment. Mr. Patel in his argument tried
to convince through Ext. 20 that under the old scheme the
Bank authority had issued appointment order 07.06.2005
to on Bhartiben G. Mandani in clerical cadre. It had been
argued that under clause 6 (c) which deals with method of
appointment can be extended up to 4 years for appointment
of minor on compassionate ground and even up to 6 years
and so the Bank cannot go beyond the old scheme of
compassionate appointment which was prevailing but the
1st party Bank by not appointing the disputant Ankit as
per Ext. 27 has violated the scheme of compassionate
appointment prevailing in the year 2005 by not giving
appointment to him without assigning any reason and even
by not replying to the disputant through the Union in
making demand in right perspective. In support of the
argument so advanced the 2nd party has cited the following
case laws:—
(1) Gujarat State Road Transport Corporations
Kalubhai H. Valand on point that demand of compassionate
appointment in an Industrial Dispute 2(K) of the I.D.A.
(2) Jaishankar Prasad Sharma vs. State of Madhya
Pradesh 1994 II LLN 258 Madhya Pradesh High Court on
interpretation of word "discretion".
(3) Surinder Sinh Vs. State of Haryana 1996 Lab.
I.C. 1375 Punjab, Haryana High Court on the point that
change in policy/scheme of compassionate appointment
shall have no retrospective effect when the application
was pending for consideration under previous policy/
scheme.
(4) Tarun Chakravarti Vs. State of West Bengal 1996
(1) C.L.R. 136 Kolkata High Court in this case petitioner's
father employee of Board died on 11.03.1992 and the
petitioner applied for appointment on compassionate
ground on 28.12.1992 on the basis of scheme existing on
the date of death of his father but prayer rejected on the
ground that by a circular dated 30.04.1992 the old scheme
was replaced by a new scheme of one time financial benefit
in view of employment as this new scheme brought into
force with retrospective effect from 01.04.1990. It was held
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6909
that petitioner's right under old scheme cannot be taken
away.
(5) Prasant Kumar Ray Vs. United Bank of India 2002
Lab I.C. 2887 Jharkhand High Court which is one the point
that son of deceased employee entitled for compassionate
appointment under original scheme and that revision of
scheme subsequently shall have no retrospective effect.
(6) K. Apsara Vs. Andhra Pradesh Road Transport
Corporation 1998 (1) CLR. 1130 Andhra Pradesh High Court.
On the point of prescribed under administrative instruction
regarding applying for compassionate appointment cannot
be treated on par with statutory limitation and that widow's
request turned down on ground that her husband died
when he was placed under suspension pending
departmental enquiry.
(7) Vijaya Bank Vs. Jayamma 2003 Lab I.C. 3226
Karnataka High Court—Employer Bank seeking approval
of Central Govt. stating financial position of family of
diseased employee approval not granted on technical
ground that disciplinary proceedings were pending against
diseased employee direction of single Judge directing to
make appointment not invalid.
(8) Durgesh Kumar Tiwari Vs. State Bank of India
2004 Lab I.C. 2846 Allahabad High Court. On the point as
to denied of compassionate appointment without indigent
circumstances cannot hold good.
(9) Smt. Padma Pathak Vs. Punjab National Bank,
2004 Lab I.C. 3694 Allahabad High Court. Authorities are
bound to apply liberally the object of beneficial legislation
on compassionate appointment and not to reject taking
vindicate the attitude that the petition had on self-required
residential home of the value of two lacs.
(10) P. Ravi vs. Chief Engineer, Madras-2002 (4) LLN
1132 Madras High Court-second request for compassionate
appoint shall be treated as on the renewal of request made
earlier within the period of three years.
(11) Shantilal K. Solanki Vs. Union of India, 2002 (3)
2417 Gujarat High Court-Delay of three years in making
application after attaining majority rejected by central
Administrative Tribunal on the ground of delay-delay can
be condoned.
(12) Pravichandra Jeram Sindhal Vs. Gujarat State
Road Transport Corporation 1993 (2) G.L.R. 1663—such
humanistic appointment on compassionate ground should
never be taken as merely shown to some beggar. It is a
right to bread to the family and under the pretext of technical
ties or some rules should not be denied.
(13) Gujarat State Road Transport Corporation Vs.
Workman of G.S.R.T.C.-2005 (3) G.L.H. 116 object of
compassionate appointment is to mitigate the hardship of
the bread earner.
(14) Smt. Sushma Gosain & others Vs. Union of India
and others-1983 (47) F.L.R. 42 S.C.—There should not be
any delay in compassionate appointment, keeping such
care pending for years not proper-supernumerary post
showed be created to accommodate the applicant.
(15) Smt. Phoolwati Vs. Union of India AIR 1991 S.C.
469—Appointment of compassionate ground should not
be delayed.
(16) On the other hand Miss Meenaben Shah learned
lawyer for the 1st party argued that as per Ext. 10/1 in the
new circular dated 02.02.2006 of State Bank Saurastra, H.O.,
Bhavnagar introduced new scheme for payment of ex-gratia
lumpsum amount in lieu of appointment on compassionate
ground by which the old scheme of giving appointment on
compassionate ground to the ward of employee, died in
harness has been superseded and so the disputant/union's
demand for appointment on compassionate ground is quite
unwarranted and improper. It has been also submitted that
if it is taken for the sake of argument that the old scheme as
per Ext.-19 upon which the 2nd party has relied that the old
scheme shall be applicable in the case of the disputant,
even then as per para-6 (C) (method of appointment) the
application requesting for appointment of ward who was
minor must be received by the Bank within a year of the
death of the employee then such case can be considered
by the Managing Director of the Bank within his
discretionary powers. Further arguments of the 1st party is
that the application of Ankit (present disputant) Ext.-25 is
dated 02.11.2004 for his compassionate appointment was
filed much beyond stipulated period of one year and the
application of Purnimaben dated 18.12.2003 was also filed
beyond the period of one year from the death of the
deceased employee Ashok and the application of Ankit
dated 10.09.2002 (Ext.-27) was filed after more than three
years which was not entertainable as per provision to para
6(c). It has been further argued by Ms. Meenaben learned
counsel that the widow Purnimaben for herself requested
by filing application dated 24.07.2002 (Ext.-21) for her
compassionate appointment which was rejected by the
Bank and though Purnimaben challenged the rejection order
communicated (Ext.-22 and 23) by filling Civil Suit No. 66/
2003 but preferred not to contest and withdraw the suit by
filing withdrawal application on 09.09.2005 and order of
Bank as to rejection of her application for compassionate
appointment remained unchallenged. It has been further
aruged that Ashok Andharia while service in Bank has
misappropriated huge Bank money and he clearly admitted
in his self-statement dated 20.11.2001 (Annexure-I) to w.s.
Ext.-6 that he misappropriate the amount at different
branches. He was suspended and criminal case was also
filed but before starting disciplinary proceeding in
departmental enquiry he died on 19.06.2002 and
consequently criminal cases as per criminal Justice system
was dropped against deceased who died). But still his
admission dated 20.11.2001 and 23.11.2001 regarding
6910
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
misappropriating public money held in the Banks are
available to show the shrewed and evil character of the
deceased employee Ashok. It has been further argued that
the case laws cited on behalf of the 2nd party are not
applicable in this case for providing relief to the disputant.
In support of argument the 1st party has relief upon the
following case laws:—
(1) State of J&K and others vs. Sajid Ahmed Mir
2006 (110) FLR 883 Supreme Court where it has been held
by their Lordship—father of the applicant died in 1987—
application given in 1991—claim rejected in 1996
challenging the order of rejection has rightly been rejected
by the single Judge on the ground of delay and laches.
(2) Divisional Controller G.S.R.T.C. vs. General
Secretary, Kheda Vibhag S.T. Karmachari Mandal (2011(3))
LLN 257 Guj. Respondent's application for compassionate
appointment filed 2 years and 6 months after attaining
majority which was rejected by the petitioner. It has been
held that benefit of such compassionate appointment could
not be availed of any point and same has to be regulated as
per policy formulated by employer—once time limit for
making an application for compassionate appointment had
expired, it could not be extended without there being any
provision in scheme.
(3) Gujarat State Road Transport Corporation vs.
Legal heirs of Noormohmed Ibrahim Patel oral Judgement
dated 01.08.2005 in S.C.A. No. 4688 of 2005. On point of
time limit, application of compassionate appointment if
expired cannot be entertained and the discretion showed
exercise only by Bank. Accordingly, when application is
filed within time summing up argument, it has been
submitted by Ms. Meenaben Shah, Advocate that the
disputant the 2nd party is not entitled to get any relief in
this reference and the reference is fit to be rejected.
10. Now coming to examine Ext.-19 scheme for
appointment on compassionate ground for dependents of
deceased employer (updated up to November 1998) para/
section 6(b) says that request for appointment under the
scheme should be received by the Bank at the earliest and
in any case not later than one year from the date of death of
the employee... para/section 6(c) clearly says that in case
the dependant is a minor or does not possess suitable
minimum educational qualification his/her case can be
considered within four years of the death of the employee
to enable him/her to so qualify in terms of age avail/or
acquire minimum educational qualifications, provided such
a request is received by the Bank within a year of the death
of the employee. Such cases can be considered by the
Managing Director of the Bank within his discretionary
powers. There is also provision to cl. (c)(1)—In case, the
dependent to be offered appointment is a minor, the offer
of appointment may be kept open beyond a period of 4
years upto maximum period of six years from the date of
death of the employee, subject to the condition that such
requests are received by the Bank within a year from the
date of death of the employee. So it is manifestly clear that
in any case either for an adult ward or for a minor request
must be received by the Bank within a year of the death of
the employee. The first request for Ankit (disputant) was
made by his mother Purnimaben widow of deceased
employee Ashok on 18.12.2003 (Ext.-24) after one and half
year of death. Admittedly, Ashok died on 19.06.2002, so as
per para 6(c) request through application ought to have
been made by 18.06.2003. The second request by Ankit
himself who is said to be minor was made on 02.11.2004
(Ext.-25) after about two and five months of death of his
father Ashok. As per date of birth of Ankit vide Ext. 15
being 16.08.1987, he was about 17 years of age still a minor
so minor is not supposed to file request application for his
compassionate appointment. It was upon Purnimaben, the
widow to make first request with the Bank Authority for
her minor son Ankit within one year positively. But
Purnimaben intentionally did not make such request for
Ankit (disputant) rather she herself put her candidature
making request for inclusion in service by filing application
and filling requisite form to the Bank vide Ext.-21 on
24.07.2002. Her request was rejected by the Bank Authority
on 31.03.2003 vide Ext.-23, the communication made to her
Advocate and also to her vide Ext.-22. Even her minor son
Ankit within one year of death of Ashok upto 18.06.2003
rather she herself challenged the order of rejection of Bank
Authority by filling Civil Suit 66/2003 in court of Civil Judge
(J.D.), Bhavnagar and these case remained pending upto
09.09.2005 before Civil Judge (J.D.), Bhavnagar. Though
she had sought for the relief of setting aside the order of
Bank dated 31.01.2003 and for direction to give her
compassionate appointmnet by excluding the scope of filing
request application for her minor son Ankit within one year
of stipulated period as per clause C of para/section 6 of the
compassionate appointmnet rules. In such view of the
matter, there remains no sanctity for the disputant Ankit to
file application dated 10.09.2005 to Deputy General
Manager to include him a service on compassiinate ground.
His such application apparently submitted much beyond
the period of one year as per section 6 (c) & proviso (1) so
the Bank Authority has had no obligation to entertain such
request application of disputant and if the bank authority
did not reply to the disputant about fate of his application
dated 10.09.2005 that will not give any impetus to the
disputant to make dispute through the Union raising
demand for compasionate appointment and cannot also
invoke as to extension of period up to 4 years or even up to
6 years in case of request made by minor because of proviso
that request must be made for minor within one year from
the death of the employee. So the dispute raised by the
Union by challenging the action of the Bank management
in not giving compassionate appointment to Ankit Ashok
Andharia is itself devoid of merit. Had it been the situation
that on rejection of request application of widow
Purnimaben by the Bank Authority vide Ext. 22 and 23, if
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6911
the dispute would have been raised through the Union
challenging the rejection order and seeking relief for her
compasionate appointment, the matter might have been
quite different because her request application vide Ext.-21
had been submitted within one year as per Para 6(b) of the
Scheme 1999. Whereas she for herself remained fighting
out litigation against Bank in Civil Suit No. 66/2003 up to
09.09.2005, without any judgement in the Civil Suit rather
opted to withdraw the suit unconditionally vidfe Ext. 26.
So once the order of Bank authority dated 31.01.2003 (Ext.-
22 & 23) became final and unchallenged without raising
industrial dispute against that rejection order on without
persuing the litigation in civil Suit No. 66 of 2003, the
subsequent dispute vide Ext. 27 application dated
10.09.2005 and the demand letter of the Union dated
29.10.2005 vide Ext.-28 have no legs to stand.
11. More so, the date of birth of the disputant Ankit
as mentioned at Para-VII of the statement of claim being
06.06.1983 go to discard the date of birth of Ankit being
16.08.1987 as per Ext. 15. If Ankit's date of birth is taken as
06.06.1983 as per statement of claim para-VII then he attained
majority (18 years) on 05.06.2001. That means during lifetime
of employee Ashok D. Andharia and when Ashok died on
19.08.2002 then also Ankit's application dated 02.11.2004
vide Ext. 25 was submitted much beyond one year, so, the
oral evidence of Ankit by way of affidavit Ext.-37 is fit to be
discarded for laying claim for his compassionate
appointment. On the other hand the oral evidence of two
management witnesses vide Ext. 44 and 45 are worthy of
credence who fully stood the test of cross examination by
the 2nd party. Whereas the 2nd party has gained nothing
to discredit their testomony.
12. In view of the discussion made above, I find and
hold that the disputant Ankit Ashok Andharia is not entitled
for his compassionate appointment with effect from
10.09.2005 or from any future date since his claim is devoid
of any merit. As such claim for arrears of pay from 10.09.2005
and for any other relief are proved to be futile attempt and
so are redundant. This issue No (iii) is decided against the
2nd party.
13. ISSUE NO. (iv):—As per findings given to issue
No(iii) in the foregoings, I further find and hold that the
action of the management of Bank of Saurasra, Bhavnagar,
for not giving opportunity to Shri Ankit Ashok Andharia
for his compassionate appointment on his application dated
10.09.2005 is legal and justified. This issue is accordingly
answered in favour of the management of Bank of Saurastra
(the 1st Party).
14. ISSUE NO. (i) & (ii):—In view of the findings to
issue No (iii) and (iv) in the foregoing, I further find and
hold that the reference is not maintainable and the
disputant/2nd party has no valid cause of action raise the
Industrial dispute.
15. ISSUE NO. (v):—This reference is devoid of merit
and so, it is rejected/dismissed on contest by the 1st party
(Bank). However no order as to cost.
This is my award.
BINAY KUMAR SINHA, Presiding Officer
ubZ fnYyh] 3 fnlEcj] 2013
dkñvkñ 2676.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj if'pe jsyos ds
izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqaca/k esa
fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k]
vgenkckn ds iapkV lanHkZ la[;k 1230@2004] dks izdkf'kr djrh
gS] tks dsUnzh; ljdkj dks 03@12@2013 dks izkIr gqvk FkkA
[lañ ,y&41012@117@2000&vkbZ vkj ¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 3rd December, 2013
S.O. 2676.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref. No. 1230/
2004 of the Cent.Govt.Indus.Tribunal-cum-Labour Court,
AHMEDABAD (GUJARAT) as shown in the Annexure, in
the industrial dispute between the management of Western
Railway, Divisional Office, Kothi Compound and their
workmen, received by the Central Government on
03/12/2013.
[No. L-41012/117/2000-IR (B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
AHMEDABAD
PRESENT :
Binay Kumar Sinha,
Presiding Officer, CGIT-Cum-Labour Court,
Ahmedabad, Dated 31st January, 2013
Reference (C.G.I.T.A.) No. 1230 of 2004
Reference (I.T.C.) No. 21 of 2003 (old)
1. Divisional Railway Manager,
Western Railway, Divisional Office,
Kothi Compound,
Rajkot-360001
6912
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
2. Senior Commercial Inspector,
Western Railway, Divisional Office,
Kothi Compound,
Rajkot-360001
...First Party
And
Their Workman,
Shri C.H. Jadeja
Through the branch Secretary,
Gujarat Rajya Ardh Sahkari Audhyogik Karmachari Sangh,
215, Amardeep Complex, 2
Rajjputpara, Rajkot-360001
...Second Party
For the First Party:
Shri Janak R. Pandya, Advocate
(holding Power but absent)
For the Second Party:
Shri R.C. Pathak, Advocate
Shri V.D. Mehta, Advocate
AWARD
The government of India/Ministry of Labour, Shram
Shakti Bhavan, Rafi Marg, New Delhi by its order No. L-
41012/117/2000-I.R.(B-1) dated 15/07/2003 in exercise of
powers conferred by cl.(d) of subsection (1) of section 10
of the I.D. Act, 1947 referred the dispute between the
management of western Railway, Rajkot and their workmen
for adjudication to Industrial Tribunal, Rajkot as per terms
of reference under the schedule:
SCHEDULE
"Whether the action of the management of DRM,
Western Railway, Rajkot in terminating the services
of Shri C.H. Jadeja w.e.f. 06.04.1986 is justified? If
not, what relief the applicant is entitled?"
2. Parties were noticed to appear and to file respective
pleadings. The 2nd party appeared and submitted statement
of claim (Ext.-4) on 06.05.2004. His case is that he (C.H.
Jadeja) was engaged as waterman in hot weather section
from 21.02.1980 under wankaner Rly station (W.R.) and
Lakhamachi Rly Station and was allowed works up to 1986.
Thereafter, his service was dispensed with without any
written order, without following the provision of section 25
F, G, H of the I.D. Act. He was given employment during hot
weather every year from 1980 to 1986 and he completed
more than 360 days. He was paid the salary as per rules by
the 1st party. He was entitled for regularisation in service,
his name was enrolled in the seniority list, but 1st party
regularised the services of Juniors to him who had
completed less number of working days examples by
mentioning names of some juniors to him is shown at para
5 of the statement of claim.
(i) Rameshbhai working under P.W.I. Dwarika joined
service on 22.12.1983.
(ii) Balabhai Chakubhai working under P.W.I., Rajkot,
joined service on 23.03.1982.
(iii) Manikram Malan worked only for about 4 months
from 14.04.1983, under chief permanent Inspector, Rajkot
have been regularised as cleaner in Ahmedabad depots.
Similarly, other juniors—Dhirubhai Ramjibhai,
Ramzan Abdul are also continuing and have been
regularised by the 1st Party.
Further, case is that he (C.H. Jadeja) requested on
many occasions to the officers of the 1st party verbally
and also in writing to consider his case and to reemploy
him but all efforts proved of no avail. He is unemployed
since his termination. So prayer is made for treating
termination of the 2nd party (workman) illegal and the 1st
party be directed to reinstate him on his original post or on
equivalent post with continuity of service with full back
wages and cost of litigation.
3. It is not out of place to mention that in spite of
repeated notice and reminders to the 1st party for
appearance and for filing written statement to the S/c of
the 2nd party, the 1st party did not appear. On the other
hand, the 2nd party submitted documents as per list Ext-7
on 24.07.2009. The 2nd party also submitted affidavit (Ext-
8) of workman C.H. Jadeja on 24.07.2009. The 2nd party
was filing pursis to close the right of the 1st party to file
w/s. and to cross examine the workman (the 2nd party)
then a vakilpatra (ext-10) was filed by the 1st party on
11.01.2010 executing it in favour of Shri Janak R. Pandya,
Advocate. But, thereafter neither the 1st party nor its lawyer
attended the court in this case where reference was pending
in the Industrial Tribunal, Rajkot. The case, thereafter,
received in this C.G.I.T.-cum-Labour Court on transfer. From
this tribunal also fresh notices were issued to the parties.
The second party appeared in this Court/tribunal and filed
pursis Ext.-16 to the effect that 2nd party (workman) is
facing starvation due to unemployment. And he is waiting
for justice since long. Also praying to close the stage of
filing w.s. and cross examination of workman (the 2nd party)
on his affidavit deposition in lieu of examination in chief. It
was also prayed for fixing the matter for final hearing in
camp at Rajkot. Even on 26.04.2011, 21.07.2011 and
19.04.2012, the 1st party or its lawyer did not attend this
case at Rajkot camp. So all stage of the 1st party was closed.
The 2nd party submitted written argument vide Ext.-17 and
lawyer of the second party made oral argument and then
the matter was kept reserve for award.
4. The points for determination is whether the 2nd
party workman C.H. Jadeja is entitled to the relief as claimed
as per statement of claim coupled with supporting oral and
documentary evidence?
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6913
FINDINGS
5. Ext-17 is service card of C.H. Jadeja as casual
labour that go to shows his initial appointment on
21/02/1980. That also go to show his nature of assignment
as M.B. under I.O. (c) II Western Railway KMBL. Ext-18 is
service card showing period of employment from
02/04/1982 to 06/04/1986 as hot weather waterman duly
signed with stamp of station supt. Wankaner Rly station,
W.R. Ext-19 is application of C.H. Jadeja for grant of T.S.
(Temporary status) mentioning details of work as hot
weather waterman from 21/02/1980 to 06/04/1986 containing
also signature and stamp of station master Wankaner and
Lakhamanchi Rly. station. Ext-20 is order of DRM (E) Rajkot
refusing to grant temporary status (T.S) to Shri C.H. Jadeja
on the ground that he has not completed 120 days after
1985 as in terms of instruction vide Rly board letter No. E/
NG.11/83/C.L/117 dated 25/01/1985, temporary status can
be granted if total working days are minimum 120 days in
between two spells. Ext-21 is order of DRM (E) Rajkot on
the subject of engagement of substitute old face, its copy
sent to Shri C.H. Jadeja asking him to contact (M)/TT for
his engagement as substitute. Ext-22 is letter dated
07/07/1992 of commercial Inspector, W.R. Rajkot to
C.H. Jadeja that as per DRM (E) Rajkot letter No. ET 891/2
vol. VI dated 21/07/1989 you are shown at SL No. 174 at
LMC data in which your date of appointment is shown
02/04/1982 as such I am not in a position to engage you
anywhere on my beat as you have not worked prior to
14/07/1981. As against this, it is manifestly clear that initial
appointment of C.H. Jadeja is 21/02/1980 as per Ext-17.
Ext-23 is Advocate's notice on behalf of C.H. Jadeja to the
Sr. Commercial Inspector an Divisional Rly. Manager, W.R,
Rajkot for grant of T.S. to Shri C.H. Jadeja, with all
consequential benefits. Ext-24 is A.D. of this notice duly
received by the 1st parties. Ext-25 is application of
C.H. Jadeja dated 21/07/1993. Ext-26 is its A.D. in token of
receipt of application. Ext-27 is another letter of C.H. Jadeja
dated 16/06/1992 to DRM (E), Rajkot, on subject of
engagement of substitute old face. Ext-29 is copy of order
(oral order) dated 26/02/2002 of Hon'ble Gujarat High Court
in S.C.A 1549 to 2001 (C.H. Jadeja vs Union Bank of India)
wherein observation/direction was made by the Hon'ble
court to the appropriate Government to pass order on
reconsideration of Industrial Dispute within two months
from the date of receipt of such review application of the
petitioner (C.H. Jadeja).
6. It was argued by the learned lawyer of the 2nd
party that Ext-20 the letter of the 1st party dated 25/02/1992
is not in the true spirit rather it is admitted position that
C.H. Jadeja or the similar situated workman are entitled for
the benefits of T.S. etc. after completing the services of 120
days and that in the said letter the management has given
a wrong cut-off date regarding completion of 120 days
after 1985 and so such letter of the 1st party informing to
the 2nd party (C.H. Jadeja) is not legal and proper and also
not supported by any documents. More so, the 1st party
by not contesting this reference case has failed to prove
authensity of Ext-20. On behalf of the 2nd party case law of
Indrapal Yadav vs. Union of India [1985(2) SCC 648] has
been cited in support that the benefit of T.S. are required to
be granted from 1981 onwards. Similar direction is also
given by the Hon'ble Apex court in the case of Ramkumar
& others vs Union of India [1988 (1) SCC 306 S.C.].
7. It appears from perusal of Ext-21 and 22 that
management of the 1st parties are itself in confusion by
not negativing the decision and directing Shri C.H. Jadeja
(S.P.) to contact C.M.I./T.I for engagement on one hand
and on the other hand vide ext-22 informing to Shri C.H.
Jadeja that he has not worked prior to 14/07/1981 whereas
it is proved that Shri C.H. Jadeja was working as hot weather
waterman from 21/02/1980 as per Ext-17. More so, the oral
evidence of Shri C.H. Jadeja vide Ext-8 has remained intact
and unchallenged since the 1st parties failed to avail
opportunities of cross-examining him.
8. From scrutinising the oral and documentary
evidence coupled with the two case laws cited on behalf of
the 2nd party I find and hold that the service of Shri C.H.
Jadeja(S.P.) was illegally terminated by the 1st party. If the
services of Shri C.H. Jadeja would not have been terminated
then he must have received the benefit of temporary status
(T.S) and pay scales etc. The 2nd party has given the name
of junior employees those who have been regularised and
the benefit of T.S. and pay scale were granted to them.
Such pleading taken in the statement of claim has also
been substantiated in the oral evidence of Shri C.H. Jadeja
vide Ext-8 and that has remained unchallenged. More so,
the management of the 1st party are under obligation to
maintain live register to provide re-employment to the
retrenched workman but no such opportunity of re-
employment was provided to the 2nd party (C.H. Jadeja)
so, I further find and hold that the said action of the 1st
party is obviously in violation of section 25H of the I.D.
Act. More so, the 1st parties have flouted the provisions
of section 25(F)(G) of the I.D. Act, 1947 and has also violated
the principles of "last come first Go". So I find and hold
that the action of the management of DRM, Western
Railway, Rajkot in termination the services of Shri C.H.
Jadeja w.e.f. 06/04/1986 is illegal, improper and unjustified.
I, further, find and hold that Shri C.H. Jadeja (2nd party) is
entitled for his reinstatement on his original post of Hot
weather waterman or equivalent post with continuity of
service and for granting of temporary status (T.S). The 2nd
party is also allowed back wages 50% with interest 9%
from the dated 06/05/2004 when the 2nd party appeared on
notice and filed statement of claim (Ext-4).
9. The reference is allowed with cost of Rs. 1000.
The 1st party are directed to reinstate the workman
6914
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
Shri C.H. Jadeja on his original or equivalent post and for
granting him continuing in service and to pay 50% of back
wages for Hot weather waterman with 9% interest w.e.f.
06/05/2004 with two months of this award on publication.
This is my award.
BINAY KUMAR SINHA, Presiding Officer
ubZ fnYyh] 3 fnlEcj] 2013
dkñvkñ 2677.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ,pñMhñ,Qñlhñ
cSad fyfeVsM ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds
chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/kdj.k] vgenkckn ds iapkV ¼lanHkZ la[;k 111@2012½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 03-12-2013 dks izkIr gqvk FkkA
[lañ ,y&12011@22@2012&vkbZvkj ¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 3rd December, 2013
S.O. 2677.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 111 of
2012) of the Cent. Govt. Indus. Tribunal-com-Labour Court,
Ahmedabad (Gujarat) as shown in the Annexure, in the
industrial dispute between the management of HDFC Bank
Ltd., Down Domestic Services, and their workmen, received
by the Central Government on 03/12/2013.
[No. L-12011/22/2012-IR (B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM- LABOUR COURT,
AHMEDABAD
PRESENT:
Shri Binay Kumar Sinha,
Presiding Officer, C.G.I.T.-cum-Labour Court,
Ahmedabad,
Dated 8th March, 2013
Reference: (CGIT A) No. 111 of 2012
1.
The Manager,
HDFC Bank Ltd.,
Shilp-2, Ground Floor,
Near Ashram Road,
Ahmedabad (Gujarat)
2.
The Manager,
Dawn Domestic Services,
D-12, Plot No.-88,
Mohada Char Bunglow,
Andheri (West)
Mumbai
............First Party
And
Their workman
Through
The General Secretary,
Nav Jagrut Labour Union,
18, Manjur Khan's Chawk,
Ramnagar, Bhilwada, Amraiwadi,
Ahmedabad (Gujarat)
............Second Party
AWARD
The Government of India/Ministry of Labour,
New Delhi, by its order No. L-12011/22/2012-IR (B-I)
considering that industrial dispute exist between the
employers in relation to the management of HDFC Bank
under section 10 sub-section 1(d) and 2(A) of the Industrial
Dispute Act, 1947 to this Tribunal (CGIT-cum-Labour Court,
Ahmedabad) or adjudication under the terms of reference
mentioned under the Schedule:
SCHEDULE
"Whether the demand of the union Nav Jagrut
Labour Union for reinstating S/Shri Vinod Kumar K.
Pandav, Surpal Shankarbhai Pandav, Virendra Kumar
Gangadhar Sharma and Manish Kumar Shankar
Pandav on their original post by the management of
HDFC Bank Ltd. Down Domestic Services with back
wages etc. from the date of their termination i.e.
05.01.2011, is legal and justified? To what relief the
workmen are entitled?"
2. After registering the case, notice were issued to
the parties for filing statement of claim and written
statement. On 31.01.2012, the 1st party No. 2 representative
and Union's representative appeared in the case and were
directed to submit respective pleadings.
3. On 08.03.2013, the 1st party No. 2 representative
Shri Pankaj Rai and the 2nd party (Union) representative
Shri M.R. Rajput appeared and filed memorandum of
settlement (ext-5) containing the signature of four workman
and also signature of Shri M.R. Rajput, Union General
Secretary and Shri Pankaj Rai, proprietor/representative of
the 1st party No. 2 (Dawn Domestic Service). The
memorandum of settlement is moved jointly praying therein
to dispose of the reference in terms of settlement heard
both side. Perused the record and the joint pursis
(memorandum of settlement vide Ext-5).
4. It has been conceded by the four workman that
they have been deployed by that immediate employer-
Dawn Domestic Services (the 1st party no. 2) as guards in
the Bank premises of the 1st party No. 2 (HDFC Bank Ltd.)
and due to misconception they have through the Union
have demanded for reinstatement in the service of the
principal employer (HDFC Bank Ltd.), but actually they are
workman of the 1st party No. 2 Dawn Domestic Service
and they are not workmen of the HDFC Bank Ltd. and there
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6915
is no relationship of employer and employee in between
HDFC Bank Ltd. and them and that they had been deployed
by the 1st party No. 2 to do duty at HDFC Bank Ltd. (the
1st party No. 1) and that now under settlement 1st party
No. 2 had paid to them their all claims of retaining in service
of 1st party No. 2, payment of gratuity and arrears of wages
bonus etc. The 1st Party No. 2 also accepted that the four
workmen are his employees and all their dues have been
paid.
5. Now their is no dispute of the 2nd party Union/
four workman against the principal employer (1st party
No. 1 HDFC Bank Ltd.) and the dispute of those four
workmen/Union with the 1st party No. 2 Dawn Domestic
Service have been settled as per ext-5. As such following
award is passed:
ORDER
The demand of Union and four workmen against
HDFC Bank Ltd. (1st party No. 1) is rejected. These four
workmen are the employees of the 1st party No. 2 (Dawn
Domestic Services) and their demand have been meted out
by the memorandum of settlement ext-5. So there remain no
disputes for adjudication under the terms of reference. So
the reference is rejected/disposed of accordingly.
This is my award.
BINAY KUMAR SINHA, Presiding Officer
ubZ fnYyh] 3 fnlEcj] 2013
dkñvkñ 2678.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj LVsV cSad vkWQ
lkSjk"Vª ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp
vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/
kdj.k vgenkckn ds iapkV lanHkZ la[;k 1155@2004] dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 03@12@2013 dks izkIr gqvk FkkA
[la- ,y&12012@104@2000&vkbZvkj ¼ch&I)]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 3rd December, 2013
S.O. 2678.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref. No. 1155/
2004 of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Ahmedabad (Gujarat) as shown in the Annexure, in the
industrial dispute between the management of State Bank
of Saurashtra, Zonal Office, P.B. No. 7, State Bank of
Saurashtra, Upleta Branch, Upleta, and their workmen,
received by the Central Government on 03/12/2013
[No. L-12012/104/2000-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
AHMEDABAD
PRESENT:
Binay Kumar Sinha,
Presiding Officer, CGIT-cum-Labour Court,
Ahmedabad, Dated 6th September, 2013
Reference: (CGITA) No-1155 of 2004
Reference (I.T.C.) No 8 of 2000 (old)
1.
Regional Manager,
State Bank of Saurastra (Now State Bank of India)
P.B. No. 7
Swami Vivekananda Road, Rajkot (Gujarat-360002)
2.
The Branch Manager,
State Bank of Saurastra (Now State Bank of India)
Upleta Branch, Upleta,
Rajkot (Gujarat)
...First Party
And their Workman
Shri G.P. Jadeja
C/o Saurastra Kutch Majdoor Sangh,
317, Panchnath Commercial Centre,
Harihar Chowk,
Rajkot, (Gujarat)
...Second Party
For the 1st Party
: Shri B.B. Gogia, Advocate
Shri Anand Gogia, Advocate
For the 2nd Party
: Shri G.R. Thakar, Advocate
AWARD
The Central Government/Ministry of Labour,
New Delhi by its order No. L-12012/104/2000/IR(B-1) dated
30.05.2000 under Cl. (d) of sub section (1) and sub section
2(A) of section 10 of the I.D. Act, 1947 referred the dispute
to Industrial Tribunal, Rajkot (Gujarat) for adjudication as
to terms of reference as per the Schedule:
SCHEDULE
"Whether the action of the Regional Manager, Zonal
Office, State Bank of Saurastra, Rajkot in removing
the service of Shri G.P. Jadeja, Chwkidar,w.e.f.
23.12.1996 is just valid and legal? If not, what benefits
the workman is entitled and the what directions are
necessary in the matter?"
2. The case of the 2nd party (workman) as per
statement of claim (Ext. 4) is that he was serving since
many years in Upleta Branch of the bank as Watchman and
was being paid monthly salary of Rs. 4200 and earlier he
had not received any memo, warning nor any fine was
imposed on him. But he being low grade employee was
spited and a false and imaginary allegation was made
against him regarding drunkenness during duty and leaving
duty place and quarrelling etc. and he was suspended on
6916
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
16.01.1993. Thereafter false chargesheet was served and
fake departmental enquiry was conducted and criminal case
was filed against him by Upleta police under section 66(1)
(B) and 85(1) (B) of Bombay prohibition Act in Upleta
criminal court in which he was exonerated. But during
departmental enquiry against him judgment of criminal court
was not considered and departmental enquiry was
conducted against the principles of natural justice and with
a view to remove him from the service, the enquiry officer
submitted false and arbitrary report against him. On the
basis of the findings of the enquiry officer a second show
cause notice was issued to him by the Disciplinary
Authority and he gave a detailed reply to the Disciplinary
Authroty on 23.06.1996. But his reply was not considered
properly and punishment order dated 23.12.1996 was
passed as to removal from the service with benefits of
retirement. Against this he preferred departmental appeal
before Appellate Authority. But his appeal was not
considered and was rejected upholding the punishment
order. His removal from the service w.e.f. 23.12.1996 of the
Disciplinary Authority of the Bank is illegal and having
colour of unfair labour practice. No notice was given nor
notice pay was paid, nor unemployment compensation or
any other amount was paid, provisions of section 9 (A) not
followed the provisions of rule 81 of I.D Act rule was
breached and provision of section 25(G) and 25(H) were
violated. Since after removal from the services he (workman)
could not get service elsewhere and he remained
unemployed. On these scores prayer is made to set aside
the punishment order dated 23.12.1996 and for reinstatement
in service on his original post of watchman with back wages
and consequential benefits and also to award cost of
Rs. 2500 from the 1st party bank of him.
3. As against this the case of the 1st Party bank as
per Ext. 6 is that the reference is not maintainable, the
workman has no valid cause of action to raise dispute
para 1 to 10 of statement of claim Statement of claim not
correct and it has been denied that the workman had along
continuous and faithful service. The case of the 1st Party
further is that the workman was working a Chowkidar having
very important and sensational duty to perform for the
working of the bank wherein not only cash of the bank
remains in lakh of rupees, but also customer come and go
daily in large number with their cash amounts. He was
appointed as Chowkidar in 1975 as stated with S/c. he was
charge sheeted for the allegation of leaving duty place
along with weapon at about 01:48 hours in a drunken
condition, using filthy languages and abuses when he was
arrested by Upleta police in drunken condition. A
departmental enquiry was held against the charge sheet
issued and the workman admitted to the charges during
proper departmental enquiry and the E.O. submitted his
findings holding the charges proved against the workman
and then 2nd show cause punishment notice was given to
the workman and full opportunity to defend himself and
then the punishment with the order of removal from services
with all the retiral benefit was passed. Charges proved was
of serious nature and so taking in to account his service
tenure lenient view was taken in awarding punishment also
considering para 19(1) of bipartite settlement and also as
per settled legal position by the Hon'ble Supreme Court,
there is no bar of departmental enquiry in case of criminal
prosecution pending or even in case of acquittal in criminal
trial. The workman was given opportunity of show cause
notice served upon him and after such opportunity granted
and considering the record and circumstances the
punishsment was decided and imposed and the
departmental appeal preferred by the workman was also
rejected after careful consideration. So in these
circumstances the workman can have no grievances. It has
been denied that the workman was entitled to notice or
notice pay or retrenchment compensation. It is also denied
that there is any violation of sec 9(A), 25 (G) and 25(H) of
the I.D. Act or regarding not following seniority list or
violating rule 81. It is also denied that the workman remained
unemployed or has not been earning or is unemployed. On
these contentions prayer is made to reject the reference
since the workman is not entitled to get any relief.
4. It may be pertinent to mention that the pleadings
as well as evidences documentary and oral and even written
arguments were submitted before Industrial Tribunal, Rajkot
who was in session of this case before this case record
received back before this C.G.I.T.-cum-Labour Court on
20.01.2011 on transfer of the cases by the order of the
Ministry of Labour, New Delhi.
5. In view of pleadings and rival contention of the
parties, the following issues are taken up for
determination:—
ISSUES
(i)
Whether the reference is maintainable?
(ii)
Has the delinquent workman G.P. Jadeja valid
cause of action?
(iii)
Whether valid and proper departmental enquiry
was held against the delinquent workman?
(iv)
Whether the order of punishment dated
23.12.1996 is shockingly disproportionate to
the gravity of the misconduct under the charge
sheet?
(v)
Whether the action of the 1st party bank is
justified in imposing the punishment of
removal w.e.f. 23.12.1996 with all retail benefits?
(vi)
Whether the 2nd Party (delinquent workman)
is entitled for the relief as claimed?
FINDINGS
6. ISSUE NO. iii: The learned counsel on behalf of
the 2nd Party even after filing pursis at Ext. 8 dated
05.03.2004 as to admitting the propriety of the departmental
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6917
enquiry held against him, again argued before this Tribunal
and also submitted written arguments to the effect that
principles of natural Justice was not followed opportunity
not given even he was acquitted of the accusation under
section 66(1) (B), 5(1) (3) of Bombay Prohibition Act filed
by Upleta police in criminal case trial by Judicial Magistrate
and so findings of the inquiry officer vide Ext. 13 is
perversed. But such argument advanced by Shri G.R.
Thakkar, Advocate learned counsel for the workman does
not appear to be convincing in view of the argument of the
learned counsel for the 1st Party Bank Shri B.B. Gogia,
Advocate that the workman after filing pursis at Ext. 8 and
also deposing in oral evidence at Ext. 9 only challenging as
to quantum of punishment imposed upon him to be harsh
and not as to validity or otherwise of the enquiry held
against him. The pursis at Ext. 8 not challenging the validity
of enquiry is as follows as per English translation from
Gujarati ..... "I do not challenge the enquiry proceedings
held against me in this matter but findings given are not
proper and just. The punishment imposed upon workman
as mention in the chargesheet excessive and harsh and so
making prayer for lessor punishment invoking the power
under section 11 A of the I.D. Act. From enquiry
proceedings, Ext. 13 it appears that enquiry proceedings
were commenced on 13.02.1996 (Tuesday) in connection
with chargesheet vide No. RMR, DCP 268 dated 15.09.1995.
The workman, Jadeja accepted to have received the
chargesheet which was read over fully explained to him.
Prior to that Bank asked the delinquent Jadeja to give reply
to chargesheet within 15 days and giving one more
extension of 15 days at his request, but the delinquent did
not reply and requested for extension of one month time to
give reply which was not granted and the departmental
enquiry started on 13.02.1996 and at first instance the
delinquent was asked to engage his defence representative
and he (delinquent) nominated Shri R.A. Shah as his
defence representative who was deputy general secretary
of the Bank Union. Consent of Shri R.A. Shah was obtained
and enquiry started. The delinquent accepted and admitted
orally the charges levelled against him. Thereafter, he, the
delinquent also presented the letter dated 13.02.1996
admitting all the charges in writing, expressing his sorrow
by admitting mistake committed by him and requesting for
kindless by bank by considering age and other
circumstances. This admission letter was shown to Shri
Patel, the presenting officer who stated to have no objection
as it was unconditional and the P.O. consented to take it on
record and there after the said letter of the delinquent was
taken record of the enquiry. In this way the delinquent
admitted the charges levelled against him in the chargesheet
dated 15.09.1995, voluntarily and without any pressure in
presence of his defence representative and the presenting
officer Shri O.P. Patel and defence representative Shri R.A.
Shah did not make any further submission and enquiry
proceeding were declared as completed on 13.02.1996 and
16:40 hours. In the inquiry proceedings M-11/15 (Ext. 13) it
was stated by the defence representative that the
delinquent wants to admit all the charges and submitted
the letter dated 13.02.1996 in presence of the P.O. Shri Patel
and defence representative admitting that he (dlinquent)
admits all the charges levelled against him in the
chargesheet dated 15.09.1995. The presenting officer has
no objection to this and therefore it was taken on the record
and was admited in the proceedings. So, it is evident that
there was no need for proceeding further in the enquiry by
calling the presenting officer to produce witness. More so,
neither the delinquent nor his defence representative was
eager for insisting on to produce management witness. So
the enquiry was conlcuded in accordance with rule
following the principle of natural Justice. The enquiry
proceedings with report were submitted to the Disciplinary
autority and second show cause notice was issued with
copy of enquiry report to the delinquent and the delinquent
made representation and thereafter considering all the
circumstances punishment order was imposed. Ext. 14 is
finding of the E.O. Ex. 15 is the second show cause
(punishment) notice and Exit. 17 is final punishment order
dated 23.12.1996. So it is evident that principles of natural
Justice was observed at every stage and even before
passing of the final punishment order dated 23.12.1996.
7. So as per discussion and consideration made
above this issue is decided in favour of the 1st Party Bank
that a valid and proper department enquiry was held against
the 2nd Party workman G.P. Jadeja in connection with
chargesheet dated 15.09.1995 at Ext. 12.
8. ISSUE NO.iv: As per charge sheet dated
15.09.1995 allegation against delinquent G.P. Jadeja is as
follows—You have committed misconduct of serious nature
as under during your duty as armed guard in Upleta Branch
of the bank. Therefore, I Regional Manager Region R-1
levy charges on you as under—
Charge 1
On dated 14.11.1993 duirng your duty is early
morning 01:45 hour in the state of intoxication of consuming
liquor, uttering abuse leaving your post on duty
unauthorisedly coming out of bank with arms of the bank
were uttering abuse in public. In the meantime police of
Upleta Police station had arrested you in intoxicated state
as mention above under prohibition Act.
Thus during duty as guard, showing gross
negligence to your duty consuming intoxicating liquor,
uttering abuses in public, with arms and live cartridges
given to you for protection of properties of bank you have
committed criminal conduct of grievous nature among
general public. Police had arrested you for the same. Thus
as you did not do your duty as guard as per prevalent rules
of the bank and by going out of the bank from your place
of duty in intoxicated state unauthorisedly on public road
and uttering obscenities, you were arrested by the police,
which has caused heavy injury to reputation of the bank
6918
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
and you have committed misconduct of grievous nature.
Thus, you have committed offence as per clause 19.5(c),
19.5 (j), 19.7(c) of bipartite settlement.
9. It has been argued on behalf of the 2nd Party
workman that when the workman G.P. Jadeja had been
acquitted of the accusation under Bombay prohibition Act
as per judgment of Criminal court dated 11.01.1996 in criminal
case no 156/94 as per Ext. 47 then even if the delinquent
workman admitted to the charge sheet dated 15.09.1995
during departmental enquiry on 13.02.1996 in writing, there
was no justification in awarding such punishment of
dismissal from the service which has caused economical
death, rather lenient view ought to have been taken such
as giving warning, censured or even with holding of
increment with or without cumulating effect. It has been
further argued relying upon the case laws (1) 2001(1) GLH
(U.J) 15 (Kadabhai J. Suthar Vs. Divisional Controller
(2) 2001 (89) FLR 434 Allahabad H.C. (Sadevsingh Vs. D.B.
Patel and another (3) 1985 G.L.H. (U.J) 27 (Kalusingh
Dhulding Vs. D.B. Patel) & others (4) 2006 (2) GLH.64 (F.B)
Gujarat State Road Transport Corporation Vs.D.V. Chavan
and (5) 2007 (3) GLH 392 Surat Muncipal Corp. Vs.
Rameshbhai D. Vaghela.
10.On the other hand discarding the above arguments
of the 2nd Party workman, it has been argued by Shri B.B.
Gogia, Advocate for the 1st Party that the punishment
imposed upon the workman G.P. Jadeja is lenient one since
having the serious misconduct of the workman under the
proved chargesheet instead of dismissal without notice,
he was awarded punishment of removal from the service
with retrial benefits and pension, though the workman was
holding a sensational post of armguard and cannot be
expected to leave the duty place unauthorisedly and create
a risk as to loss, loot of property of the Bank in the early
hour at above 01.40 a.m. He advanced argument that the
workman being armed guard in intoxicated position came
out of duty place with gun and cartridges provided to him
to protect the bank property and by his such serious
misconduct bad elements might have overpowered him
and might have found access inside bank for loot, damage
of Bank's property and that he was arrested by Upleta
police in intoxicated condition on road outside his duty
place. He argued that according to bipartite settlement para
19.1 and also according to the settled legal position of the
Hon'ble Apex Court, there is no bar of departmental inquiry
in a case of criminal prosecution pending or even in case
of acquittal of the workman. He argued that before imposing
punishment, the delinquent was given opportunities of
show cause notice served upon him and after such
opportunities the punishment was decided and imposed
and the departmental appeal preferred by the delinquent
was also rejected. He summing up argument submitted
that the punishment imposed upon the delinquent by order
dated 23.12.1996 is not at all harsh and severe that go to
shock the Judicial conscience of this tribunal for invoking
the power u/s 11-A of the I.D. Act either to set aside the
punishment order or to modify alter the same. On behalf of
the 1st Party Bank case laws (1) A.I.R., 2011 S.C. 1931 (State
Bank of Bikaner and Jaipur Vs. Nemichand Nalwaye
(2) 1997 Law suit (S.C.) 1089 Union of India Vs. SG.
Ganyatham and (3) 2007 (4) GLR 3237 (M.K. Bharlala Vs.
Bank of India) have been relied upon.
11. After careful consideration of the all the facts and
cirumstances and the material on the record and also taking
in view of the case laws cited on behalf of the parties. I am
of the considered view that there is no any ground to invoke
Jurisdiction and to exercise power u/s 11-A of the I.D. Act,
1947 either to set aside or to alter/modify the punishment
order dated 23.12.1996 imposed upon the delinquent by
the Disciplinary authority. More so, the order of
punishment. So awarded does not appear to be
disproportionate to the gravity of misconduct proved in
the departmental enquiry. The proof of charges under
criminal trial demands strict proof beyond all reasonable
doubts whereas the charge of misconduct in departmental
enquiry only requires to be proved spontaneously and no
requirement as to proof beyond all reasonable doubts.
12. This issue is decided against the 2nd Party
workman.
13. Issue No. V: In view of the finding to Issue No. iii
and iv in the foregoings, I find that the action of the 1st
party bank is justified in imposing the order of removal
w.e.f. 23.12.1994 with all retrial benefits. The issue is
answered in favour of the 1st Party.
14. Issue No. i, ii, and vi : In view of the findings
above, I further find and hold that the reference has got no
merit, and is not maintainable since the 2nd Party workman
has no valid cause of action to raise the dispute.
So, the reference is dismissed. No order as to cost.
BINAY KUMAR SINHA, Presiding Officer
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lkSjk"Vª ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp
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[lañ ,y&12012@194@93&vkbZ vkj ¼ch&I½ ]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 3rd December, 2013
S.O. 2679.—In pursuance of Section 17 of the
Industrial Act, 1947 (14 of 1947), the Central Government
hereby publishes the Award (Ref. No. 956/2004) of the
Central Govt. Indus. Tribunal-cum-Labour Court,
Ahmedabad as shown in the Annexure, in the industrial
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6919
dispute between the management of State Bank of
Saurashtra, and their workmen, received by the Central
Government on 03/12/2013.
[No. L-12012/194/93-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
AHMEDABAD
PRESENT :
Binay Kumar Sinha, Presiding Officer,
CGIT-cum-Labour Court, Ahmedabad,
Dated: 22/08/2013
Reference: (CGITA) No-956 of 2004
Reference ITC No: 1/94 (Old)
Zonal Manager,
State Bank of Saurastra (Now S.B.I.)
Zonal Office, Rajkot (Gujarat)
...First Party (Management)
And
Their Workman
Hasmukh A. Rawal
Near Factory of Dept.
Ganjibara, Bhavnagar Road,
Rajkot
At present
Hasmik A. Rawal
C/o Suresh A. Rawal
Opp. Marketing yard,
Sant Kabir Road,
Bhagirath Society,Street No. 10
Opp-Khodiyar floor Mills, Rajkot
...Second Party (Workman)
For the 1st Party: Shri B.B. Gogia, Advocate
For the 2nd Party: Shri Mahendra M Vadia,
Advocate
AWARD
The Government of India/Ministry of Labour, New
Delhi under the provision of clause (d) of sub-section (1)
of section 10 of the I.D. Act 1947, by order No-L-12012/194/
93-I.R. (B-I) dated 15-12-1993 referred the dispute for
adjudication to Industrial Tribunal, Rajkot by formulating
the terms of reference as per schedule:
SCHEDULE
"Whether the action of the management of State Bank
Saurastra, Zonal Office, Rajkot, in terminating the
services of Shri H.A. Rawal w.e.f. 26-08-1992 is legal
and justified. If not, to what relief the workman is
entitled?"
2. Both parties appeared and filed pleadings-
statement of claim at Ext.-4 by the workman (2nd Party) and
the written statement at Ext. 9 by the Bank (1st Party). It
may be pertinent to mention that the pleadings as well as
evidence documentary and oral and even written argument
were submitted before Industrial Tribunal, Rajkot and the
Industrial Tribunal (Central) Ahmedabad since the state
Industrial Tribunal remained for major period in session of
this case before the case record received back before the
C.G.I.T.-cum-Labour Court on 20-01.2011 on transfer of the
case by the order of the Ministry of Labour, New Delhi.
3. As per statement of claim, it is the case of the
workman that he was engaged as peon from 17-04-1989 in
the Gymkhana Branch of the Bank and was allowed to
continue up to 25.08.1992. It is also the case of the workman
that he was orally terminated by the Bank without
compliance of the provision of section 25F of the I.D.
Act, 1947, whereas juniors were continued at that time of
his termination and also many recruitments were made and
that there is violation of section 25(G) and (H) and (N) of
the I.D. Act, 1947.On this score relief has been sought for
his reinstatement with full back wages and cost of the
litigation.
4. As against this case of the Bank (1st Party) as per
w/s is that the workman H.A. Rawal was only doing casual
nature of work such as cleaning the water tank and shifting
of record as and when required and that for these works he
was submitting bills and the bank was paying on voucher,.
There was no relationship of master and servant between
Bank and H.A. Rawal. The reference of master and servant
between bank and H.A. Rawal. The reference is not
maintainable and the said H.A. Rawal is not entitled to any
relief and the reference is fit to be rejected. The Bank has
denied paras of the statement of claim and has also denied
that he (H.A. Rawal) was recruited a peon in the Gymkhana
branch of Bank.
5. The Bank (1st Party) adduced documentary
evidence by producing its documents at Ext. 10 and market
Exts. 13 to 75. Whereas the claimant H.A. Rawal produced
two documents as per list Ext. 5 (1) statement showing
details of working in Gymkhana branch (mark-1) and copy
of representation dated 28-08-1992 (mark-2) and only mark-
2 was taken in Ext. As 76 without prejudice on noting down
endorsement by lawyer of the 1st Party. The document
mark-1 was self-made statement of H.A. Rawal so was not
taken in documentary evidence. The claimant H.A. Rawal
deposed in oral evidence and was cross examined by Bank's
lawyer at Ext. 77. The Bank's witness Natwarlal deposed
oral evidence at Ext. 79 and was corss examined by the
claimant's lawyer.
6. In view of pleading and rival contention of the
parties the following issues are taken up for determination:
ISSUES
(i) Whether the reference is maintainable?
6920
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
(ii) Has the claimant H.A. Rawal valid cause of
action?
(iii) Has the claimant (H.A. Rawal) works for 240
days as causal worker in the Gymkhana branch
of Bank in calendar year preceding his alleged
termination w.e.f. 26-08-1992?
(iv) Is the relationship of master and servant exist
between Bank (1st party) and the claimant (2nd
party)?
(v) Whether claimant (H.A. Rawal) is entitled to
any relief in this case?
(vi) What orders are to be passed?
FINDINGS
7. ISSUE No (iii) and (iv): The claimant H.A. Rawal
in his oral evidence (Ext. 77) during cross examination has
admitted that recruitment order or any appointment letter
was not given to him by the Bank. He also admits that he is
not aware about any juniors or recruitment of new face. He
also admitted that he was putting bills for the work done
by him in the Bank (1st party) the Bank used to pay him on
vouchers. He admitted the vouchers Ext. 13 to 75. On
perusal of voucher it is evident that four vouchers Ext. 13
to 16 are for the year 1989, 21 vouchers are for the year 1990
(vide Ex. 17 to 36), 27 vouchers Ext. 37 to 63 are for the year
1991 and 12 vouchers Ext. 64 to 75 are for the year 1992 up
to 21.07.1992. The claimant has not challenged that any
other vouchers have been withheld by the 1st party (Bank).
From perusal of voucher, it is obvious that vouchers for
any calendar year do not show that the claimant as daily
worker completed 240 days of work. So is the picture for
the calendar year preceding alleged termination that from
August 91 to August 92, the claimant was paid through
vouchers for his casual work of water tank cleaning as and
when required by Bank and on submitting bills by the
claimant H.A. Rawal. He never completed 240 days of work
as casual worker. The self-made statement of works by the
claimant H.A. Rawal (mark-1) has got no evidentiary value
since this statement of works has not been admitted by the
1st party Bank. This does not also contained the seal and
signature of any Bank's officer of Gymkhana branch. This
unauthenticated statement is well discarded by the
documentary evidence of 1st party Bank Ext. 13 to 75. In
such view of the matter such evidence of H.A. Rawal at
Ext. 77 is meaningless that the 1st party used to mark his
attendance on the other hand the documentary evidence
Ext. 13 to 75 coupled with evidence of Bank witness (Ext.
79) the claimant worker H.A. Rawal was engaged for
cleaning water tank and for filling water as and when
required and it is not true the claimant Rawal has put in
more than 240 days of works with the 1st party Bank by
doing continuous work on daily basis and that the
concerned worker claimant Hasmukh was not employed as
a peon.
8. The 1st party Bank has relied upon case law of (1)
Magarson Vs. State of U.P. & others-2002 III CLR 470-
Allahabad High court. (2) State of UP & another Vs. Ram
Krishna and another-1999 LAB, I.C. 3555 S.C. and
(3) Secretary, State of Karnataka & others Vs. Umadevi and
others SCP (3) 9103-9105 2005 to support that when the
workman was never appointed on regular vacancy and
was terminated by oral order, he has no right to claim
continuance and that the claimant as daily worker cannot
claim for appointment on regular basis through back door
entry.
9. On the other hand, the case law cited on behalf of
the 2nd party (H.A. Rawal) (1) Ram Krishan Gurjar Vs. State
of Rajasthan 2006 LAB I.C.56 (2) T.A. Benny Vs. Rajasthan
Co-Operative Dairy Federation Ltd. 1991 460 11 C Raj are
not applicable to support the claimant's case.
10. From consideration of the evidences discussed
above and also in view of the case laws relied upon by the
1st party Bank I find that the claimant H.A. Rawal has also
failed to prove the violation of the provision of section
25(G), 25(H) of the I.D. Act, 1947 since he is not aware
about any Juniors of fresh recruitment ignoring him.
Similarly the claimant has also failed to prove that the 1st
party Bank has violated the provision of section 25 F of the
ID. Act. More so the provision of section 25 (N) is not
attracted in the instant case. The 2nd party claimant Shri
H.A. Rawal has failed to prove that he completed 240 days
of works in the Gymkhana Branch of bank at Rajkot
preceding his alleged oral termination w.e.f. 26.8.1992. The
claimants has also failed to prove relationship of master
and servant between bank and him because he was
submitting bills for work done and was paid by bank
through vouchers (Ext. 13 to 75) So, Issue No. (iii) and
(iv) are decided against the 2nd party.
11. ISSUE No. (v) : In view of findings in the
foregoings while deciding issued No. (iii) & (iv), I further
find and hold that the 2nd party (Claimant H.A. Rawal) is
not entitled to any relief if in this case.
12. ISSUE NO. (i), (ii) and (vi): This reference is
devoid of any merit and is not maintainable and the 2nd
party has no valid cause of action to raise industrial
dispute.
This reference is dismissed on contest by the 1st
party. However, no order as to cost.
This is my award.
BINAY KUMAR SINHA, Presiding Officer
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New Delhi, the 3rd December, 2013
S.O. 2680.—.In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 83/2004)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Ahmedabad as shown in the Annexure, in the industrial
dispute between the management of State Bank of India,
and their workmen, received by the Central Government on
03/12/2013.
[No. L-12012/259/97-IR (B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
AHMEDABAD
PRESENT :
Binay Kumar Sinha, Presiding Officer,
CGIT-cum-Labour Court,
Ahmedabad, Dated 15th October, 2013
Reference: (C.G.I.T.A.) No. 83 of 2004
Reference: (I.T.C.) 38 of 1998 (Old)
The Manager, State Bank of India,
Astodia Road Branch, Astodia,
Ahmedabad-380001
...First Party
And Their Workman
Shri Habibkhan Sandalkhan Pathan
House No. 682/6, Ghadeyali Manzil,
Behind Mirzapur Police Chouki,
Mirzapur, Ahmedabad-380001
...Second Party
For the First Party:
Mrs. Meenaben Shah,
Advocate
For the Second Party: Shri Arish L. Saiyad, Advocate
AWARD
The Central Government/Ministry of Labour vide
order No. L-12012/259/97-IR(B-I) dated 05.06.1998 under
cause (d) sub-section (1) and sub-section (2A) of Section
10 of the Industrial Dispute Act, 1947, referred the dispute
for adjudication to the Industrial Tribunal, Ahmedabad
under terms of reference in the Schedule:—
SCHEDULE
"Whether the action of the management of State Bank
of India, Astodia Road Branch, Ahmedabad is
justified in terminating the services of Shri Habibkhan
Sandalkhan Pathan vide order dated 22.04.1995? If
not, what relief the workan concerned is entitled to?"
2. The case of the workman(2nd party) as per
statement of claim (Ext.4) is that he joined in the srvice of
the 1st party as peon since 1982 and was performing duty
from 11.00 a.m. to 5.00 p.m. and was getting Rs. 600 per
month salary and benefits of other allowance. He was doing
duty honestly and deligently and his service record was
blotless. The officer of Bank, Astodia branch were taking
from him overtime works without paying overtime allowance
and when he was demanding. O.T. he was being threatened
to be implicated in false misconduct cases and by holding
enquiry he would be punished. The Bank officers were
taking personal works from him applying force and threats
and they also got several papers in his hand writing and
signatures and also got obtained from him several
vouchers and printed form filled and also obtained his
signatures of several plain papers and the officer committed
cheating and fraud against him. The officers also hatched
up conspiracy for victimising him and issued show cause
to him and also issued false chargesheet to him and against
the principle of natural Justice departmental enquiry was
conducted against him and on false assurance also got his
acceptance letter to the chargesheet obtained which is in
typed English language and got his signature in Gujarati
language obtained on acceptance letter and false enquiry
report was submitted. He was suspended illegally and
subsequently on basis of false enquiry report, he was
terminated from the services on 22.04.1995. He was not
given opportunity to defend in departmental enquiry and
all unfair labour practice was adopted by the 1st Party. His
termination order is got up under conspiracy against him
by the management of the 1st Party and so his termination
from service is illegal and unjustified and has caused his
economic death. On these scores, prayer is to set aside his
termination order dated 22.04.1995 and to reinstate him with
back wages and consequential benefits and continuity in
service and also to grant any other relief to which he is
found entitled.
3. As against this, the contention of the Bank (1st
Party) as per written statement (Ext. 7) is that the contents
of statement of claim are not true and are denied, and the
reference is not maintainable and deserves to be rejected.
The case of the 1st Party is that Shri Habibkhan was working
as messenger at Astodia Road Branch of S.B.I. He had
made unsuccessful attempt to defraud the Bank by
fraudulently altering current. Account credit voucher of
M/s. Capital Consultancy on 30.06.1994 with a view to
crediting the amount to his own account. He confessed in
writing to his having made an attempt to defraud the Bank.
Such action of Habibkhan is a case of gross misconduct
under para 521(4) (j) of the Shastri Award read with para
18.20 of the Desai Award and the modification agreed upon
6922
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
in the 4th bipartite settlement between State Bank of India
and all India SBI staff Federation which are applicable to
award employees. Para 521(4)(j) of the Shastri Award reads
as follows:
"Doing any act prejudicial to the interest of the Bank
or gross negligence or negligence involving or likely
to involve the Bank in serious loss."
Against the workman Habibkhan an internal
investigation was carried out for attempted fraud and
a prima facie case was found and chargesheet dated
06.10.1994 was served on him and a domestic enquiry
was conducted and the workman admitted the
chargesheet, then second show cause notice was
given and thereafter the D.A. (Disciplinary
Authority) imposed punishment of discharge from
the services vide order dated 22.04.1995. The
delinquent workman preferred appeal before
appellate authority and the appeal was also rejected
considering his submission. The enquiry was
conducted in a free and fair manner and principles of
natural Justice was observed. It has been denied
that the Bank was taking overtime work from him
rather from him no other works apart from mesengerial
duty was taken during office hours. No personal
works from him was taken by the Bank's officers.
The 1st party has denied the allegation at Para 1 to 7
of the S/c. Alternative plea has also been taken that
if the Tribunal during course of hearing comes to the
conclusion that the inquiry conducted by the Bank
was not in accordance with laid down principles of
natural Justice and the enquiry vitiates then the 1st
party Bank be given opportunities to conduct fresh
enquiry before this Tribunal to justify its action taken
against the delinquent workman for the misconduct
under the chargesheet. On these scores prayer is
that the 2nd party workman is not entitled to any
relief and the reference is fit to the dismissed.
4. It may not be out of place to mention that during
hearing of this case the 2nd Party admitted legality of
departmental inquiry and passed pursis before this Tribunal
to that extent. The workman (2nd party) in his affidavit
(Ext. 16) stated that in his presence domestic enquiry was
held agaist hia against the chargesheet issued on him and
he has nothing to say as to legality and validity of domestic
inquiry but punishment of discharge from the service is
too harsh and so he is challenging the order of punishment
and that he remained unemployed after dismissal. Then
vide Ext. 34, the 2nd Party submit closing pursis. In such
view of the matter the 1st Party (Bank) has passed a pursis
(Ext. 35) that the workman has not challenged legality of
departmental inquiry conducted against him nor the
workman have led any oral evidence on that point. So, the
1st party Bank does not desire to lead oral evidence on
point of legality of inquiry and may be treated as closed.
5. In view of the rival contention of the parties the
following issues are taken up for consideration and
adjudication in this case:
ISSUES
(i)
Is the reference maintabiable?
(ii)
Has the delinquent workman Shri H.S. Pathan
valid cause of action?
(iii)
Whether the punishment imposed by the
Disciplinary Authority of the 1st party against
the delinquent is shockingly disproportionate
to the gravity of misconduct under the
chargesheet?
(iv)
Whether the 2nd Party (delinquent workman)
is entitled to any relief?
FINDINGS
6. Issue No. iii :— I have gone through the
documents of enquiry file produced by the 1st party under
list Ext. 8. Those have been marked Ext. 18 to 33. Ext. 18 is
copy of letter of the delinquent H.S. Pathan to A.G.M. of
the Bank. Ext. 19 is suspension order dated 04.07.1994 of
the workman. Ext. 20 is copy of chargesheet dated
06.10.1994 issued on the workman. Ext. 21 is copy of letter
addressed to the workman dated 08.11.1994. Ext. 22 is copy
of written explanation given by the workman to the
chargesheet admitting his mistake and seeking aplogy. Ext.
23 is copy of enquiry proceedings. Ext. 24 is copy of attested
instrument (Cash Vouchers) dated 27.06.1994 of the amount
of Rs. 1,52,557.50 for credit of the funds to the accounts of
M/s Capital Consultancy upon which the workman is
alleged to have tempered and attempted to have credit that
amount in his account running in the branch of Bank. Ext.
25 is copy of letter from presenting officer to the inquiry
officer to the effect that he (P.O.) was present at the time of
inquriy held at conference hall Z.O. The charge sheeted
employee also was present and he (C.S.) has confessed
and accepted the charges levelled against him and therefore
he (P.O.) does not have to present anything. Ext. 26 is copy
of 2nd show cause notice dated 25.03.1995 issued to the
delinquent workman by the Disciplinary Authority. Ext. 27
is copy of reply to 2nd show cause notice by the delinquent
workman to the Disciplinary Authority dated 18.04.1995
containing signatures of the delinquent workman
Habibkhan, his defence representative Shri A.H. Rawal and
the Disciplnary Authority (AGM. II). The delinquent and
his D.R. during hearing submitted to the D.A. that
¹Hkkx II—[k.M 3(ii)º
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6923
delinquent was passing through extreme financial hardship
and his action of having altered the credit voucher at
Astodia Road Branch had occurred at the time when he
was not in proper frame of mind and was going through on
the family front. Ext. 29 is copy of written acceptance of
charge by the delinquent workman Habibkhan dated
10.04.1995 appolising for the misconduct to the G.M. State
Bank of India, Astodia Road Branch. Ext. 30 is the copy of
punishment order dated 22.04.1995 as to discharge from
the Bank's service forthwith. Ext. 31 is copy of the Appeal
dated 18.05.1995 to the Deputy General Manager (Appellate
Authority) S.B.I., Ahmedabad, Zonal Office. Ext. 32 is copy
of the application given by the delinquent workman to
Chief Deputy General Manager dated 07.06.1995 upon this
there is noting of D.G.M. and Appellate Authority regarding
oral submission of Shri Habibkhan Pathan that he appeared
on 07.06.1995 at 2.40 p.m. and submitted that his mother
was suffering from cancer and his father was suffering
from paralysis. His brother had expired. He was therefore
under economic crisis. He lost his mental balance and
credited the voucher in his favour. Looking to his large
family, he should be given lighter punishment. Ext. 33 is
copy of order dated 08.06.1995 passed by the Appellate
Authority rejecting the mercy appeal of the delinquent
workman Habibkhan Pathan.
7. Shri Arish A. Saiyad, Learned Advocate for the
2nd party argued that the delinquent Habibkhan Pathan
had admitted his misconduct in his acceptance letter vide
Ext. 18 and agian the delinquent accepted his misconduct
in reply to 2nd show cause notice (Ext. 26) vide Ext. 27
seeking apology. It has been further argued that the past
record of Habibkhan Pathan was clean and blotless and he
was performing his duty of messenger delinquently and
honestly but due to disturb state of mind due to death of
elder brother and parents suffering from cancer and
paralysis and he having extreme financial crisis attempted
to alter the account number and payees name in the case/
credit voucher in his favour is a current account credit
voucher of a customer on 30.06.1994 but it was detected on
the same day and the delinquent could not have been able
to credit the amount in his current account for wrongful
gain and thus the S.B.I branch, Astodia road had not
suffered and monetary loss which can be said to be actually
an act prejudicial to the interest of the Bank, or such gross
negligence or negligence to cause Bank in serious loss.
Summing up his argument Shri Saiyad submitted that the
punishment of discharge forthwith vide Ext. 30 of the 2nd
party is disproportionate to the gravity of misconduct and
so the Tribunal can exercise the power u/s A of the I.D. Act,
1947 in altering/modifying the punishment so imposed to
be in lighter punishment so that the 2nd party may not face
economic death of him as well as of his family members. In
support of arguments on behalf of the 2nd Party five case
laws have been relied upon: (1.) Roop Singh Negi Vs. Punjab
National Bank and other 2009 (120) FLR 610 S.C. In this
given case law appellant peon was dismissed from service
for misconduct relating to stealing draft book, fraud/
embezzlement. He was discharged in criminal case for same
allegation and the inference drawn in disciplinary enquiry
by the enquiry officer by relying upon the confession made
by the appellant there was no reason as to why the order of
discharge passed by the criminal court on basis of self-
same evidence should not have been taken into
consideration. (2.) Natverbhai S. Makwana Vs. Union Bank
of India (1984 GLH 791). In departmental Enquiry admission
of guilt should not be regarded as sufficient proof of
misconduct rather proof of faults constituting misconduct
is necessary (3) Jashir Singh Vs. Punjab and Sind Bank and
others [2007 (112)] FLR 911 S.C. In this given case law the
appellant peon was dismissed from service allegation was
he had forged signature of a depositor and had frauduntely
withdraw Rs. 25,000 Criminal case and departmental
proceeding both were initiated against him by the Bank.
He (peon) was acquitted in criminal case charge proved in
departmental proceeding. Bank also filed suit for recovery
of the said amount in the civil court from the peon which
was dismissed and the Judgment became final. On that
facts it was held by the Hon'ble Apex Court that appellant
was treated very unfairly and unreasonably and so
impugned order of dismissal was set-aside and the appellant
peon was ordered to be reinstated. (4.) T.K. Rabari Vs. Guj
Sheep & wool Development Corp. Ltd. [2003(1) GLH 75].
The facts of the case law is based on removal from service
on the ground of unauthorised absenteeism from the
service. This case law does not appear to be a befitting
case law in the instant case. (5.) Mavji C. Lakum Vs. Central
Bank of India [2008 (199) LFR 96 S.C.] is on the point of
invoking jurisdiction by the Labour Court/Tribunal u/s 11A
of the I.D. Act for exercising discretion.
8. On the other hand, Ms. Meenaben Shah, Learned
Advocate for the 1st party argued in support of punishment
of discharge imposed on the 2nd party Habibkhan Pathan
pointing towards his misdeed that being a peon/messenger,
he attempted to defraud the Bank by alteration of his name
with current A/c number in the current payment vouchers
of the customer of the Bank and that the 2nd Party did not
examine any witness in defence rather admitted his misdeed/
misbehaviour thrice before the management of Bank. In
support of her such arguments Ms. Meenaben Shah,
Advocate has relied upon seven case laws (1) Akhilesh
Kumar Sindhu Vs. State Bank of Jharkhand and others (2008
(116) FLR 404 S.C. wherein it has been held that if the
6924
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
charges leveled against the petitioner are proved, serious
in nature superior court not to interfere with the quantum
of punishment ordinarily. (2) Uttarpradesh State Road
Transport Coorporation Vs. Vindokumar (2008 SCC (L&S) -
1 where in dealing with section 11-A of the I.D. Act, 1947
their Lordship have held that when the workman concerned
has not challenged the legality and fairness of departmental
inquiry but challenged only conclusion of inquiry officer
and quantum of punishment inflicted by the management,
the labour Court could not proved. (3) Case of Pravin Bhatia
and Union of Indian & others (2003) (121) FLR 391 under
which the Hon'ble court has discussed the power of the
Labour Court/Tribunal to interference in the quantum of
punishment when relevant factors are not considered by
the management. (4) The case of P.K. Thankachand &
Thalanadu services Co-operative Bank & another [1994 (1)
LLN - 411, Kerala High Court] where in their Lordship held
that the employees when admitted misconduct on his part
before the enquiry proceeding; enquiry officer is not bound
to record the evidence to the charges and he can made
report merely on the basis of admission. (5) The Case of
Dilip Sagar Vs. Deputy General Manager, Sindicate Bank
association and another (2005 LLR 218 Gujarat High Court)
it was held that bank being a financial institution cannot
afford to continue the dishonest employee; his dismissal
from services after affording reasonable opportunity of
hearing, no interference required in quantum of punishment.
(6) The case of Damoh Panna, Sugar Rural Regional Bank,
and others and Munnalal Jain [2005 (1) LLN 662 SC] the
Bank employee cannot act beyond once authority it is
breach discipline of and it is misconduct. (7) The case of
Delhi transport Corporation Vs. Jayprakash (2012) Vol-III
CLR-331 Delhi High Court) once misconduct was proved
to have being committed by workman it was not within the
power of Labour Court to hold that no punishment deserved
to be given to delinquent workman and that the Tribunal or
Labour Court cannot exercise its discretion u/s 11-A of I.D.
Act.
9. After careful consideration of the material on the
record and the arguments advanced by both sides
supported with the case laws as discussed above, I am of
the considered view that though the delinquent workman
Habibkhan Pathan has admitted his misdeed/misconduct
of attempting to hold the voucher payment in the current
account of the customer by replacing name and current
account but the concern workman could not succeed in
getting amount transferred in his account on the same date
30.06.1994. So virtually the bank has not been put to financial
loss and the concern customer has no in grievances with
the concern bank that his case voucher of Rs. 152557.50/-
was not credited to its account of M/s. Capital Consultancy.
More so, no complaint or even written grievance of the
M/s. Capital Consultancy was made to the Astodia Road
Branch of SBI. So, this cannot be taken to wrongful gain to
delinquent actually that the concern workman Habibkhan,
working as peon/messenger had done such act which has
caused serious prejudice to the interest of the bank or it
was the case of gross negligence. Rather the case of the
workman was attempted effort by altering in his name so it
was negligence and misconduct on part of workman but
cannot be said to be the gross negligence on his part. The
bank was not put in financial loss due to such negligence
on part of the 2nd party workman. The materials on the
record through three stage written admission of the 2nd
party reveals that he was in disturbed stage of mind on
30.06.1994 due to death of his elder brother and mother
suffering from cancer and father suffering from paralysis
and he was in financial crisis and that situation had tempted
him to alter the account payees name in the cash voucher
in his favour in the current account of bank's customer
M/s. Capital Consultancy. This situation had been written
by the conern workman in the preliminary enquiry and
before the enquiry officer on explaining to charge Ext. 20
and also in reply to the 2nd show cause notice Ext. 27
attached with written admission Ext. 29 before the
disciplinary Authority and also before the Appellate
Authority vide Ext. 18, 29 and 32. So, the misconduct in the
chargesheet was not serious which have attracted for
inflicting punishment of discharge forthwith from the service
of the bank. Neither disciplinary authority in its order dated
22.04.1995 (Ext. 30) nor the Appellate Authority in its order
dated 08.06.1995 (Ext. 33) had taken into consideration the
materials on the record in right perspective in the written
admission of the misconduct of the workman regarding the
extenuating circumstances. More so in written admission
of the workman H.S. Pathan dated 07.06.1995 Ext. 32 there
is also endorsement/noting of Depute General Manager
and Appellate Authority dated 07.06.1995 regarding the
reason of such misconduct by the workman H.S. Pathan
but it was not taken in the consideration at all and the
Appellate Authority simply ditto the punishment of
discharge imposed by the Disciplinary Authority vide Ext.
30. I am of the considered view that this is not case of such
gross negligence for imposing punishment of dismissal/
discharge since it was an attempted alternation of credit
voucher of customer by the 2nd party workman. So
awarding of other major punishment like stoppage of
increment have to be considered by the Disciplinary
Authority of the management of the bank rather to
discharge from the service of Bank forthwith. The
punishment so imposed upon the 2nd party workman very
much shocks judicial conscience of this Tribunal that
punishment awarded is certainly disproportionate to the
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % fnlEcj 14] 2013@vxzgk;.k 23] 1935
6925
gravity of the misconduct under the charge sheet. In such
view of the matter, the case law relied upon on behalf of
the 2nd party are applicable in the instant case. The case
laws (1) 2009 (120) FLR 610 SC, (2) 1984 GLH 791 (3) 2007
(112) FLR 916 SC and (4) 2008 191 FLR 91 SC (Supra) are
applicable in the instant case. So this Tribunal by invoking
the power u/s 11A of the I.D. Act, 1947, find it a fit case in
exercising discretion in modifying the punishment imposed
by the disciplinary authority of the bank. This issue is
accordingly decided against management of bank 1st
Party)
10. Issue No. I and II: In view of the findings, given in
the foregoings to Issue No. III, I futher find and hold that
the reference is maintainable and the deliquent workman
Shri H.S. Pathan has valid cause of action.
11. Issue No. IV: Since the punishment of discharge
from the service of the bank imposed on the deliquent
workman in shockingly disproportionate to the gravity of
misconduct of the deliquent so by exercising powers u/s
11(A) of the I.D. Act, 1947, this Tribunal has found
reasonable ground to make interference in punishment order
dated 22.04.2005. As such the order passed by the
Disciplinary authority dated 22.04.1995 and confirm by
appellate authority dated 08.06.1996 vide Ext. 30 and 33 are
set-aside. The punishment is altered/modified by the
punishment order of withholding of three incriments with
future effects of the deliquents workman and the 2nd party
workman Shri H.S. Pathan is directed to be reinstated with
continuity in service without any back wages.
This reference case is accordingly allowed in part
No order as to any cost. The management of 1st party
directed to implement the Award within one month of the
receipt copy of the Award.
BINAY KUMAR SINHA, Presiding Officer
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New Delhi the 3rd December, 2013
S.O. 2681.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 186/2004)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Ahmedabad as shown in the Annexure, in the industrial
dispute between the management of Western Railway, and
their workmen, received by the Central Government on
03.12.2013.
[No. L-41012/44/98-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
AHMEDABAD
PRESENT:
Binay Kumar Sinha,Presiding Officer
CGIT-cum-Labour Court,
Ahmedabad
Dated 5th September, 2013
Reference: (CGITA) No. 186 of 2004
Reference (I.T.C.) No. 95 1999 (old)
The Divisional Railway Manager,
Western Railway, Bhavnagar Division,
Bhavnagar, Gujarat
and
Their Workman
Shri Premji Bhyamji
Through Paschim Railway Karamchari Parishad
(P.R.K.P.) E-209, Sarottam Nagar,
Behind New Railway Colony,
Sabarmati, Ahmedabad
For the 1st Party:
Shri H.B. Shah, Advocate
For the 2nd Party: Shri R.S.Sisodia, General
Secretary, P.R.K.P.
AWARD
The Central Government/Ministry of Labour by its
order No. L-41812/44/98/IR(B-1), New Delhi dated
17.03.1999 under Cl. (d) of sub-section (1) and sub-section
2(A) of section 10 of the I.D. Act, 1947, refered the dispute
for adjudication to Industrial Tribunal, Ahmedabad (Gujarat)
under the terms of reference as per schedule:
SCHEDULE
"Whether the demand of Paschim Railway
Karmachari Parishad for the Re-engagement of
Shri Premaji Shyamji ex. casual substitute along with
other casual substitute Shri Rahim Noorabhai and
Shri Kalu Ali is legal and justified? If yes then, to
what relief the concerned workman is entitled to and
from what date."
2. The case of the Union (P.R.K.P) as per statement
of claim (Ext. 6) is that Premaji Shyamji was serving as
6926
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
substitute Railway employee under Fitter in charge, Botad,
a Railway Establishment of Western Railway, Bhavnagar
Division under D.R.M., Bhavnagar Para, since 1981. As per
Railway Board order a register is to be maintained for casual
labour so that as and when vacancy arises permanent
posting can be made. A list of casual worker was prepared
after taking their interview on 22.04.1981. The name of
Premaji was at serial No. 15 in the list who was engaged on
09.06.1980. In that list the names of Rahim M. and Kalu Ali
were at Sl. No. 16 and 17, Premaji Shyamji was making
contact with supervisor for permanent post but no reply
given. In the month of September, 1995 he came to know
that Rahim M. and Kalu Ali were posted as permanent
Railway employee even though his (Premaji) name was
above in the list. Then Premaji gave several applications to
Railway Administration and other concern authority for
not giving him employment but no proper reply was given.
Then dispute was raised before conciliation officer and
conciliation failed and then matter referred for adjudication.
The demand is made that as per Railway Rules and
regulation that senior person in the list should be given
priority for permanent job where as in the case two Juniors
Rahim M. and Kalu Ali were given permanent job and
discarding Premaji indiscriminately. On these scores relief
has been sought for by the Union P.R.K.P. that Premaji
Shyamji be givne permanent post from the date his Junior
Rahim and Kalu were given permanent post and Premaji be
paid regular salary from that date with arrears of payment
and all other consequential benefits with interest and cost
and also for any other relief to which Premaji Shyamji is
found entitled.
3. The stands as taken by the first party as per written
statement (Ext. 12) are that the dispute referred for
adjudication is not maintainable. Status of the concerned
worker Premaji Shyamji at the relevant time was that he
worked as casual labour and right to claim permanent post
to casual labour arises only on the basis of inclusion of
name in live register prepared as per the directive of Hon'ble
Supreme Court. But the name of Premaji Shyamji is not in
the live register. For inclusion of the name the 2nd party
workman and other casual Labourers approachal before
CAT, Ahmedabad bench and also before Hon'ble Gujarat
High Court but the application were rejected. The 1st party
have denied averment of para 1,2,3,4,5,6,7,8,9, 10 of the
statement of claim but admitted to para 9 of S/c. it is further
case of the 1st party that workman Premji and other 5
workman filed O.A. No. 127/90 before CAT Ahmedabad
bench regarding no inclusion of their names in the
Supplementary live register of ex. Casual labourer and it
was directed by Hon'ble CAT by oral order that the 2nd
party (Premji) and otehr applicants to submit the performa
as per circular dated 03.01.1994 to be submitted within 40
days to the welfare Inspector, Bhavnagar and on the receipt
of the application as per perform the Rly dept. shall scrutinize
the claim and to take decision to include or non-include the
names in supplementary live register. But the 2nd party
could not submit the application within time granted and
by filing M.A. No. 355/95 before CAT, Ahmedabad sought
extension of time and by order dated 21.06.1995 time was
extended to submit application for inclusion of their names
in supplementary live register and after verifying the
records, the competent authority took the decision and it
was communicated to the 2nd party workman Premaji
Shyamji. As against this contempt petition No. 45/96 in
O.A. No. 127/90 was filed by Premji and it was requested to
submit documentary evidence if he has worked more than
14 days before 14.07.1981 under FIC, Botad and the said
contempt petition No. 45/96 was decided accordingly.
Premaji Shyamji submitted that he had worked under FIC,
Botad from 09.06.1980 to 08.07.1980 as cooli. But on
verification by the 1st party (W. Railway) the records and
register maintained by unit FIC, Botad but it was found
that he (Premji) has not worked for the period as claimed by
him and so reply was given to Premji that his name is not to
be considered for inclusion in the supplementary live
register. Further case is that the workman Premji had not
complied with the circular issued by the western Railway
for inclusion of names in live register and the workman has
made submission after 19 year and so he dispute raised is
not maintainable for delay, latches. The claim of the 2nd
part Premjee for permanent post arises only in case of the
name included in live register. On these grounds it has
been submitted that the 2nd party workman is not entitled
to reliefs as prayed and the reference is fit to be rejected.
4. In view of the pleadings and rival contention of
the parties the following points are to be decided:—
POINTS
(i)
Whether the reference is maintainable?
(ii)
Whether the Union (P.R.K.P., Ahmedabad) has
valid cause of action to raise dispute for the
concern workman Shri Premaji Shyamji
(iii)
Whether the demand of P.R.K.P for the re-
engagement of Shri Premji Shyamji ex-casual
substitute from the date 04.09.1995 from which
date Shri Rahim Noorbhai and Shri Kalu Ali
were re engaged as substitute gangman in the
scale Rs. 775-1025 (RP) is legal and justified?
(iv)
Whether the union P.R.K.P is entitled for the
relief for concerned workman Premji Shyamji
as demanded?
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6927
FINDINGS
5. POINTS NO. iii and iv:— The 2nd party (P.R.K.P.)
submitted three documents as per list at Ext 13- (1) zerox
copy of statement of inter viewed employees by FIC, Boatad
on 22.04.1971 in which name of concern workman Premji
Shyamjee in list is at 15, whereas names of reengaged ex
casual worker Rahim Noor Mohamed and Kallu Ali are at
Sl. No. 16 & 17 respectively. The date of initial engagement
of Premji Shyamjee as well as of Rahim Noor Mohamed and
Kalu Ali are identical 09.06.1980. The date of birth of Premji
is 05.12.1958 qualification middle pass. The date of birth of
Rahim and Kalu are 12.05.1959 and 27.09.1961 respectively
and both also middle pass. The period of work of premjee
is credited to 30 days whereas period of work of Rahim and
Kalu are only credited to 21 days and 19 days. There is no
any remarks regarding Premjee that he is under age or over
age as in the case of some others mentioned in remarks
column against list A and B. Ext. 13/2 and 13/3 are two
appointment letters to Shri Kalu Ali and Rahim Noor
Mohamed issued by D.R.M.'s office Bhavnagar para dated
04.09.1995 as to their reengagement from supplementary
live Register as submitute gangman scale 775-1025 (R.P.).
The 2nd party Union (P.R.K.P) further submitted three
documents as per list at Ext. 16 Ext. 16/1 is zerox copy of
record of service as casual labour of Shri Premji Shyamji (5
pages) that go to show that he worked as casual labour/
substitute from 09.06.1980 to 08.07.1980 at FIC, Botad, date
of birth 05.12.19978 standard VIIth pass age 22 years and
nature of work. Engaged as subtitute khalasi and worked
as box boy. Ext 16/2 is zerox copy of certificate issued by
FIC Botad. Ext 16/3 is zerox copy of order passed in O.A.
No. 127/90 dated 15.03.1995 disposed of with direction to
respondant (Western Railway) to scrutinise the claims of
applicant and to take decision as to inclusion or non-
inclusion of name in the supplementary live register. There
is also D.R.M.'s office bhavnagar para W. Rly letter dated
19.12.1995 addressed to the concern workman Premji
Shyamjee regarding non-inclusion of name in the
supplementary live register as he worked less than 14 days
which is with reference to order dated 15.03.1995 in OA No.
447/90. It has been informed by the 1st party (W.R, D.R.M.'s
office Bhavnagar para) that as per our record your name is
not available in the unit register of FIC Botad where you
claimed to have worked and that only names of those
persons were included in the task force and worked for
more than 14 days before 1981. But the document at Ext.
13/1 and 16/1 and 16/2 sufficiently go to prove that the
concern workman Premaji Shyamji had worked for 30 days
at FIC Botad and his initial appointment was on 09.06.1980
and worked as substitute up to 08.07.1984. That means
much before the cut off period of 1981, he (Premji Shyamji)
had completed more than 14 days of work for inclusion of
his name in supplementary live register. Further for
substantiating the claim of concern workman Premji Shyamji
the Union of PRRKP as per Ext. 17 and 19 and 21 demanded
production of three doucmetns by the 1st party (1) Copy
of muster role of FIC Botad for the period of 09.06.1980 to
08.07.1980 (2) Copy of medical certificate issued to Premji
Shyamji by CMS, Bhavnagar certificate no. 87873 on
01.12.1981 and (3) Screening held on 22.06.1992 to
25.06.1992. There by a pursis Ext. 26 the 2nd party demanded
production of 3rd document-copy of screening held on
22.06.1992 to 25.06.1992 since 1st party produced only two
documents out of three, again by a pursis Ext. 27 demanded
production of 3rd document copy of screening held from
22.06.1992 to 25.06.1992.
6. The concern workman Premji Shyamji deposed in
oral evidence vide Ext. 28 and stated that Rahim and Kalu
were also engaged with him who were Junior to him serial
No then Rly dept. removed them with others with assurance
to call when there will be requirement. He deposed that
railway administration got his medical test done. Kalu and
Raheem Junior to him were appointed on 04.09.1995 but he
was not taken. Then he made representation on which Rly
administration replied that you have worked for less than
14 days where as he had worked for 30 days vide para 5 he
deposed that he is unemployed for the last 5 years vide
para 8 of cross he deposed that Rly administration had no
demanded paper prior to date 14.07.1981 in support of him
claim. He stated as suggestion of 1st party's lawyer that
you did not raise dispute for 14 years to which he replied it
is not true. Thus nothing could have been gained to
discredit testimony of the concern workmen Premji Shyamji.
7. The 1st party through a list Ext. 29 submitted 6
documents. 29/1 is copy of order of Hon'ble CAT in OA
127/90. 29/2 is copy of order in C.A. 89/95 in OA 127/90
dated 13.03.1996. 29/3 is copy of order of CAT in C.A. 45/95
in O.A. 127/90. Ext. 29/4 is copy of railway letter to concern
workman Premji Shyamji dated 19.12.1995. The copy of
which also filed by union vide list Ext. 16. Ext. M29/5 is
letter dated 05.08.1997 to Divisional Secretary W.R.E.U BVP.
On the subject of non-inclusion of name in supplementary
live register of ex casual labour/substitutes with reference
to Hon'ble CAT directive n C.A. No. 45/96 in O.A. 127/90.
From this letter of Rly administration, it is obvious that the
case of the concern workman Premji Shyamji was not
considered carefully where as he had completed 30 days of
work 09.06.1980 to 08.07.1980 at CIF Boted as per Ext. 16/1
and 16/2.
8. The 1st party (W.Rly) also examined a witness
Sunil Puradar, Asst. Divi personal Officer D.R.M. Office
Bhavnagar W. Railway vide Ext. 31. During cross by shri
R.S. Sisodia president P.R.K.P. he stated vide para 25 that
Premjee Shyamjee was engage as casual labour in open
line on 09.06.1980 and it is also true that he worked up to
08.07.1980 and thereafter he was disengaged. He admitted
on showing Ext. 13/1 list that a Sl. No. 15 there is name of
6928
THE GAZETTE OF INDIA : DECEMBER 14, 2013/AGRAHAYANA 23, 1935
[PART II—SEC. 3(ii)]
Premaji Shyamji and at Sl. No. 16 and 17 there are names of
Rahim Noor and Kalu and at Ext. 17 there is name of Bhupat
Kanji. The management witness also admitted with list
Ext. 15 there is service card of Premaji Shyamji as extra
labour. He admitted that in the list Ext. 13 there are appointed
letter of Kalu and Rahim Noor dated 04.09.1995. This
witness also admitted that at Sl.No. 68 and 69 there are
names of Kalu and Rahim Noor respectively at Ext. 33/3 in
this supplementary live register. At Sl. No. 70 there is name
of Bhupat Kanji. Also admitting that in the muster roll Ext.
33/7 there is name of Premajee Shymji in attedance. As per
Ext. 33/8 on 01.12.1981 medical fitness test was held of
Premaji Shyamji and that in Ext 33/9 name of Premaji is at Sl.
No. 50 showing work for 28 days. Ext. 33/9 is copy of casual
labour of Engg Dept. attended or RIC, Boted dated
27.03.1992 vide para 27 the management witness further
admitted that Annexure A is only list of casual labour
engaged in project. The name of Kalu Ali, Rahim Noor and
Premaji Shyamjee are casual labour of open line and that
scheme of Annexure A is not enforceable on Kalu. Rahim
Noor and Premajee Shyamji vide para 28 he conceded and
admitted that till 31.03.1987 application have to be
submitted only by project labours vide para 29 he admitted
further it is true that Kalu Ali worked only for 19 days and
Rahim Noormohamad for 21 days and Premaji Shyamji
worked for 30 days and their names are at Annexure B
(reference to Ext 13/1). On behalf of the 1st party list of
casual labour on the basis of initial engagement has been
submitted containing name of 369 persons. But there is no
mention of name of Premaji Shyamji though he worked for
30 days and initial engagement on 09.06.1980. The
management witness admitted that as per list all 369 casual
labour have been appointed and that though there is no
name mention of Kalu Ali in the list but he was also
appointed as per second list which has not been produced
by him. He also admitted that the person at Sl.No. 368 were
initially engaged on 01.10.1981 and 29.06.1983 respectively.
He admitted that Kalu Ali and Rahim Noor Mohamed were
appointed on 04.09.1995 and they are working permanently.
However, the management witness tried to escape from
answering by saying he cannot say that the Railway
administration deliberately did not issue appointment letter
to Premaji Shyamji (volunteer) this is a matter of authority
level he can't utter by going against Railway administration.
9. On consideration of the evidence and material
discussed above I find that Premji Shyamni was deserving
to be appointed as that of Rahim Noor Mohamed and Kalu
Ali on 04.09.1995 since all the three were initially engaged
in open line at FIC Boted on 09.06.1980 and among them
Premji Shyamji had worked for 30 days where as Rahim and
Kalu had worked for only 21 and 19 days respectively. But
inspsite of the directive of the Hon'ble CAT in O.A. 127/90
and C.A. No. 45/96 the case of Premaji Shyamji was not
considered in right perspective by the Railway
Administration of Bhavnagar D.R.M's office and against
the record it was wrongly informed to the workmen that he
has worked less than 14 days where as actually he had
worked for 30 days and so there was all justification for
inclusion of name of concern workman Premaji Shyamji in
supplementary live register at serial above Rahim Noor
Mohamed and Kalu Ali. The case laws cited by Shri H.B.
Shah, Advocate for the 1st party 2010 1 SCC L&S 295, 2009
2 SCC 745, 2008 1 SCC(L&S) 743, 2009 2 SCC (L&S) 259,
2007 2 SCC (L&S) 258 and 2009 1 SCC (L&S) 358 are not
applicable in the instant case to discredit the demand of
Union for the genuine cause of the concern workman Premaji
Shyamaji.
10.So the point No. iii and iv are answered
accordingly that the demand of P.R.K.P. for the
reengagement of Shri Premaji Shyamji ex casual labour/
substitute from date Shri Rahim Noormohamad and Shri
Kalu Ali were reengaged as substitute gangman in the scale
Rs. 775-1025 (R.P.) is legal and justified and that the Union
(P.R.K.P.) is entitled for the relief for concerned workman
Shri Premaji Shyamji as demanded.
11. POINT NO. i and ii— In view of findings to point
No iii and iv in the foregoings, I further find and hold that
the reference is not barred by delay and latches rather is
maintainable and the Union (P.R.K.P.) having valid cause
of action to raise dispute for the concern workman Premji
Shyamji. So the reference is allowed on contest with cost
of Rs. 5000/- to be paid to the concern workman Premaji
Shyamji. The 1st party is directed to give permenant post
to Premaji Shyamaji w.e.f. 04.09.1995 at par with his Junior
Rahim Noor Mohamed and Kalu Ali by entering his name
live register and to pay arrears to pay to Premaji Shyamaji
from 04.09.1995 and on ward. Claim of interest on arrears of
pay is disallowed to the 2nd party. The 1st party is directed
to comply within two months of publication of this award.
This is my Award.
BINAY KUMAR SINHA, 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.