foÙk ea=ky;
¼jktLo foHkkx½
¼dsUnzh; izR;{k dj cksMZ½
ubZ fnYyh] 26 fnlEcj] 2013
dkñvkñ 89.—loZlk/kkj.k dh tkudkjh ds fy, ,rn~}kjk
;g vf/klwfpr fd;k tkrk gS fd dsUnz ljdkj }kjk vk;dj fu;ekoyh]
1962 ¼mDr fu;ekoyh½ ds fu;e 5x vkSj 5?k ds lkFk ifBr vk;dj
vf/kfu;e] 1961 ¼mDr vf/kfu;e½ dh /kkjk 35 dh mi&/kkjk ¼1½
ds [kaM ¼iii½ ds iz;kstukFkZ lyhe vyh lsaVj QkWj vkWfuZFkkWykWth ,aM
uspqjy fgLVªh] dks;Ecrwj ¼iSu&,,bZVh,l 2380 ,e½ dks dj&
fuèkZj.k o"kZ 2013&2014 ls fuEufyf[kr 'krks± ds v/khu ^oSKkfud
vuqlaèku laLFkk* dk;Zdykiksa dh Js.kh esa vuqeksfnr fd;k x;k gS]
uker%—
¼i½ vuqeksfnr ^oSKkfud vuqla/kku laLFkk* dk eq[; mís'; oSKkfud
vuqla/kku djuk gksxk(
¼ii½ vuqeksfnr laxBu oSKkfud vuqla/kku Lo;a djsxk(
¼iii½ vuqeksfnr laxBu oSKkfud vuqla/kku ds fy, bldks izkIr
jkf'k ds laca/k esa vyx [kkrk cgh j[ksxk] ftlesa vuqla/kku
djus ds fy, iz;qDr jkf'k n'kkZbZ xbZ gks] mDr vf/kfu;e dh
/kkjk 288 dh mi&/kkjk ¼2½ ds Li"Vhdj.k esa ;Fkk ifjHkkf"kr
fdlh ys[kkdkj ls vius [kkrk&cgh dh ys[kk&ijh{kk djk,xk
vkSj mDr vf/kfu;e dh /kkjk 139 dh mi&/kkjk ¼1½ ds varxZr
vk; dh fooj.kh izLrqr djus dh fu;r frfFk rd ,sls ys[kkdkj
}kjk fof/kor lR;kfir ,oa gLrk{kfjr ys[kk ijh{kk fjiksVZ bl
ekeys esa {ks=kf/kdkj j[kus okys vk;dj vk;qDr vFkok vk;dj
funs'kd dks izLrqr djsxk(
¼iv½ vuqeksfnr laxBu izkIr nku vkSj lkekftd foKku esa
vuqla/kku ds fy, iz;qDr jkf'k dk vyx fooj.k j[ksxk vkSj
mi;qZDr ys[kk&ijh{kk fjiksVZ ds lkFk ys[kk&ijh{kd }kjk
fof/kor lR;kfir ,sls fooj.k dh izfrfyfi izLrqr djsxkA
2- dsanz ljdkj ;g vuqeksnu okil ys ysxh ;fn vuqeksfnr
laxBu%—
¼d½ iSjkxzkQ 1 ds mi&iSjkxzkQ ¼iii½ esa mfYyf[kr vyx ys[kk&
cgh j[kus esa vlQy jgrk gS( vFkok
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- 2]
ubZ fnYyh, tuojh 5] 2014—tuojh 11] 2014] 'kfuokj@ikS"k 15—ikS"k 21] 1935
No. 2]
NEW DELHI, JANUARY 5, 2014—JANUARY 11, 2014, SATURDAY/PAUSA 15—PAUSA 21, 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)
5460 GI/2013
(159)
160
THE GAZETTE OF INDIA : JANUARY 11, 2014/PAUSA 21, 1935
[PART II—SEC. 3(ii)]
¼[k½ iSjkxzkQ 1 ds mi&iSjkxzkQ ¼iii½ esa mfYyf[kr viuh
ys[kk&ijh{kk fjiksVZ izLrqr djus esa vlQy jgrk gS(
vFkok
¼x½ iSjkxzkQ 1 ds mi&iSjkxzkQ ¼iv½ esa mfYyf[kr lkekftd foKku
vFkok lkaf[;dh; vuqla/kku esa vuqla/kku ds fy, izkIr ,oa
iz;qDr nku dk viuk fooj.k izLrqr djus esa vlQy jgrk gS(
vFkok
¼?k½ viuk vuqla/kku dk;Z djuk can djrk gS vFkok blds
vuqla/kku dk;Z dks lgh ugha ik;k tkrk gS( vFkok
¼³½ mDr fu;ekoyh ds fu;e 5x vkSj 5?k ds lkFk ifBr mDr
vf/kfu;e dh /kkjk 35 dh mi&/kkjk ¼1½ ds [kaM ¼iii½ ds
izko/kkuksa ds vuqlkj ugha pyrk gS vkSj mudk ikyu ugha djrk
gSA
[vf/klwpuk lañ 97@2013@Qkñlañ 203@44@2012&vkñdñfuñ&II]
_pk jLrksxh] voj lfpo ¼vkñdñfuñ&II½
MINISTRY OF FINANCE
(Department of Revenue)
(CENTRAL BOARD OF DIRECT TAXES)
New Delhi, the 26th December, 2013
S.O. 89.—It is hereby notified for general information
that the organization Salim Ali Centre for Ornithology and
Natural History, Coimbatore (PAN AAETS2380M) has been
approved by the Central Government for the purpose of
clause (iii) of sub-section (1) of section 35 of the Income-
tax Act, 1961 (said Act), read with Rules 5C and 5D of the
Income-tax Rules, 1962 (said Rules), from Assessment year
2013-2014 onwards in the category of 'Scientific Research
Association' activities subject to the following conditions,
namely:—
(i) the sole objective of the approved 'Scientific
Research Association' shall be undertake scientific
research;
(ii) the approved organization shall carry out scientific
research by itself;
(iii) The approved organization shall maintain separate
books of accounts in respect of the sums received
by it for scientific research, reflect therein the amounts
used for carrying out research, get such books
audited by an accountant as defined in the
explanation to sub-section (2) of section 288 of the
said Act and furnish the report of such audit duly
signed and verified by such accountant to the
Commissioner of Income-tax or the Director of
Income-tax having jurisdiction over the case, by the
due date of furnishing the return of income under
sub-section (1) of section 139 of the said Act;
(iv) The approved organization shall maintain a separate
statement of donations received and amounts
applied for research in social science and a copy of
such statement duly certified by the auditor shall
accompany the report of audit referred to above.
2. The Central Government shall withdraw the
approval if the approved organization:—
(a) fails to maintain separate books of accounts referred
to in sub-paragraph (iii) of paragraph 1; or
(b) fails to furnish its audit report referred to in sub-
paragraph (iii) of paragraph 1; or
(c) fails to furnish its statement of the donations received
and sums applied for research in social science or
statistical research referred to in sub-paragraph (iv)
of paragraph1; or
(d) ceases to carry on its research activities or its
research activities are not found to be genuine; or
(e) ceases to conform to and comply with the provisions
of clause (iii) of sub-section (1) of section 35 of the
said Act read with rules 5C and 5D of the said rules.
[Notification No. 97/2013/F.No.203/44/2012/ITA-II]
RICHA RASTOGI, Under Secy. (ITA-II)
fons'k ea=ky;
¼lhihoh izHkkx½
ubZ fnYyh] 6 tuojh] 2014
dkñvkñ 90.—jktuf;d vkSj dkalyh; vkWfQlj ¼'kiFk
vkSj Qhl½ ds vf/kfu;e] 1948 dh /kkjk 2 ds [kaM ¼d½ ds vuqlj.k
esa dsanz ljdkj ,rn~}kjk Jh v'kksd dqekj] lgk;d dks 6 tuojh]
2014 ls Hkkjr ds dksalqykokl] gsjkr] lgk;d dksalqyj
vf/kdkjh ds drZO;ksa dk ikyu djus ds fy, izkf/kd`r djrh gSA
[lañ Vhñ 4330@01@2014]
vkjñdsñ ijbafn;k] mi lfpo ¼dksalqyj½
MINISTRY OF EXTERNAL AFFAIRS
(CPV DIVISION)
New Delhi, the 6th January, 2014
S.O. 90.—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 Ashok Kumar, Assistant, in Consulate
General of India, Herat to perform the duties of Assistant
Consular Officer with effect from 6th January, 2014.
[No. T. 4330/01/2014]
R. K. PERINDIA, Dy. Secy. (Consular)
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 11] 2014@ikS"k 21] 1935
161
fo|qr ea=ky;
ubZ fnYyh] 24 fnlEcj] 2013
dkñvkñ 91.—lkoZtfud ifjlj ¼vizkf/kd`r
vf/kHkksfx;ksa dh csn[kyh½ vf/kfu;e] 1971 ¼1971 dk 40½] dh
/kkjk&3 }kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq, dsaæh; ljdkj ,rn}kjk
fo|qr ea=ky; ds fnukad 8 tqykbZ] 1993 ds ,lñvksñ la[;k 1590] esa
Hkkjr ljdkj dh vf/klwpuk esa fuEufyf[kr vfrfjDr la'kks/ku djrh
gS] vFkkZr~%—
2- mi;qZDr vf/klwpuk esa] dkye ¼1½ vkSj ¼2½ ds varxZr
izfof"V;ksa ds fy, Øe la[;k 3 ds lkeus rkfydk esa fuEufyf[kr
izfof"V;ksa dks izfrLFkkfir fd;k tk,xk] vFkkZr~%—
¼1½
¼2½
3-
^^Jh lqchj dqekj eq[kthZ]
us'kuy FkeZy ikWoj dkjiksjs'ku fyfeVsM]
ofj"B izca/kd ¼ekuo lalk/ku½]
¼,uVhihlh fyfeVsM½ vkSj blds
,uVhihlh fyfeVsM] rkypsj
rkypsj FkeZy ikWoj LVs'ku]
rki fo|qr dsaæ
iksLV vkWfQl&nhif'k[kk] ftyk&vaxqy]
vksfM'kk
vksfM'kk&759147 ds iz'kklfud
fu;a=.kk/khu fy, x, vFkok iV~Vs ij
fy, x, lacaf/kr lHkh ifjljA**
[Qkñ lañ 8@6@1992&Vh,pñ I ihVh&XV]
thñ lkbZ izlkn] la;qDr lfpo
fVIi.kh% eq[; vf/klwpuk Hkkjr ljdkj ds fnukad 8 tqykbZ]
1993 ds ,lñvksñ 1590] ds ek/;e ls Hkkjr ds jkti= esa izdkf'kr
dh xbZ Fkh vkSj fnukad 1 tqykbZ] 2011 ds ,lñvksñ lañ 1814 ds
ek/;e ls fiNyk la'kks/ku fd;k x;k FkkA
MINISTRY OF POWER
New Delhi, the 24th December, 2013
S.O. 91.—In exercise of the powers conferred by
section 3 of the Public Premises (Eviction
of Unauthorised Occupants) Act, 1971, (40 of 1971) the
Central Government hereby makes the following further
amendments in the notification of the Government of India,
in the Ministry of Power number S.O. 1590, dated 8th July,
1993, namely:—
2. In the said notification, in the table, against serial
number 3, for the entries under column (1) and (2), the
following entries shall be substituted, namely:—
(1)
(2)
3. "Shri Subir Kumar
All premises belonging to or
Mukherjee, Senior
taken on lease by
Manager (Human
National Thermal Power
Resources), NTPC
Corporation Limited
Limited, Talcher
(NTPC Limited) and under
Thermal Power Station.
the Administrative
Odisha
Control of its Talcher
Thermal Power Station,
Post Office: Deepshikha,
District: Angul, Odisha.
759147."
[F. No. 8/6/1992-TH.-I Pt. XV]
G. SAI PRASAD, Jt. Secy.
Note : The principal notification was published in
the Gazette of India vide number S.O. 1590, dated the 8th
July, 1993 and last amended vide number S.O. 1814, dated
the 1st July, 2011.
oL= ea=ky;
ubZ fnYyh] 23 fnlEcj] 2013
dkñvkñ 92.—dsUæh; ljdkj] la?k ds 'kkldh; iz;kstuksa ds
fy, jktHkk"kk fu;e] 1976 ds fu;e 10 ds mifu;e 4 ds vuqlj.k
esa] oL= ea=ky; ds varxZr vkus okys fuEufyf[kr dk;kZy; dks
ftlesa 80% ls vf/kd deZpkfj;ksa us fganh dk dk;Zlk/kd Kku izkIr
dj fy;k gS] vf/klwfpr djrh gS%—
1- foi.ku ,oa lsok foLrkj dsaæ] fodkl vk;qDr ¼gLrf'kYi½
dk;kZy;] 106@III, , izFke ry] Vksad QkVd iqfy;k]
ekuflagiqjk] Vksad jksM] t;iqj&302018 ¼jktLFkku½A
2- foi.ku ,oa lsok foLrkj dsaæ] fodkl vk;qDr ¼gLrf'kYi½
dk;kZy;] 65 fou; uxj] lsDVj&4] Xokfy;j&474012
¼e/; izns'k½A
3- dkyhu cqukbZ izf'k{k.k ,oa lsok dsaæ] fodkl vk;qDr
¼gLrf'kYi½ dk;kZy;] bZñ,lñvkbZñ dkyksuh] vEcsMdj
iFk] csyh jksM] iVuk&800014 ¼fcgkj½A
4- foi.ku ,oa lsok foLrkj dsaæ] fodkl vk;qDr ¼gLrf'kYi½
dk;kZy;] ty/kkjh dkyksuh] e/kqcuh&847221 ¼fcgkj½A
5- foi.ku ,oa lsok foLrkj dsaæ] fodkl vk;qDr ¼gLrf'kYi½
dk;kZy;] LVsV cSad vkWQ bafM;k tlhMhg cktkj 'kk[kk ds
Åij] tlhMhg] nso?kj&814142 ¼>kj[k.M½A
6- foi.ku ,oa lsok foLrkj dsaæ] fodkl vk;qDr ¼gLrf'kYi½
dk;kZy;] IykV uañ 39] oq/k uxj] Hkqous'oj&751006
¼mM+hlk½A
7- foi.ku ,oa lsok foLrkj dsaæ] fodkl vk;qDr ¼gLrf'kYi½
dk;kZy;] txUukFk eafnj dkyksuh] izFke ysu] cq)jktk]
lEHkyiqj&768004 ¼mM+hlk½A
8- foi.ku ,oa lsok foLrkj dsaæ] fodkl vk;qDr ¼gLrf'kYi½
dk;kZy;] jktk jke eksgu jk; jksM] gkfdeikM+k]
flyhxqM+h&734401 ¼iñ caxky½A
[Qkñ lañ bZ&11016@1@2011&fgUnh]
lqthr xqykVh] la;qDr lfpo
162
THE GAZETTE OF INDIA : JANUARY 11, 2014/PAUSA 21, 1935
[PART II—SEC. 3(ii)]
MINISTRY OF TEXTILES
New Delhi, 23rd December, 2013
S.O. 92.—In pursuance of sub-rule (4) of Rule 10 of
the Official Languages (use for the official purpose of the
Union) Rules, 1976, the Central Government, hereby notifies
the following offices of the Ministry of Textiles, more than
80% staff whereof have acquired working knowledge of
Hindi:
1. Marketing & Service Extension Centre, Office of DC
(Handicrafts), 106/II, Ist floor, Tonk Road Over bridge,
Mansinghpura, Tonk Road, Jaipur-302018 (Rajasthan).
2. Marketing & Service Extension Centre, Office of DC
(Handicrafts), 65, Vinay Nagar, Sector-4, Gwalior-
474012 (M.P.).
3. Carpet Weaving Training-cum-Service Centre, E.S.I.
Colony, Ambedkar Path, Bailey Road, Patna-800014
(Bihar).
4. Marketing & Service Extension Centre, Office of DC
(Handicrafts), Jaladhari Colony, Madhubani-847211
(Bihar).
5. Marketing & Service Extension Centre, Office of DC
(Handicrafts), Above the State Bank of India Jasidih
Bazar Branch, Jasidih, Deoghar-814142 (Jharkhand).
6. Marketing & Service Extension Centre, Office of DC
(Handicrafts), Plot No. 39, Budhanagar,
Bhubneshwar-751006 (Orissa).
7. Marketing & Service Extension Centre, Office of DC
(Handicrafts), Jagannath Mandir Colony, 1st Lane,
Budharaja, Sambalpur-768004 (Orissa).
8. Marketing & Service Extension Centre, Office of DC
(Handicrafts), Raja Ram Mohan Roy Road,
Hakimpara Siliguri-734401 (W. Bengal).
[F. No. E-11016/1/2011-Hindi]
SUJIT GULATI, Jt. Secy.
miHkksDrk ekeys] [kk| vkSj lkoZtfud forj.k ea=ky;
¼miHkksDrk ekeys foHkkx½
¼Hkkjrh; ekud C;wjks½
ubZ fnYyh] 2 fnlEcj] 2013
dkñvkñ 93.—Hkkjrh; ekud C;wjks ¼izek.ku½ fofu;e] 1988 ds fofu;e 6 ds mi&fofu;e ¼3½ ds vuqlj.k esa Hkkjrh; ekud C;wjks
,rn~}kjk uhps vuqlwph esa fn, x, mRiknksa dh eqgjkadu 'kqYd vf/klwfpr djrk gS%
vuqlwph
Hkkjrh;
Hkkx
vuq
o"kZ
mRikn
bdkbZ
U;wure eqgjkadu 'kqYd
bdkbZ nj LySc esa
'ks"k
izpkyu frfFk
ekud
cM+s iSekus
NksVs iSekus
LySc 1
bdkb;ka
la[;k
ij
ij
¼#-½
6046
&
&
1982 d`f"k mi;ksx ds fy,
,d ehñ #ñ 35000 #ñ 30000
#- 2-00
&
&
02-12-2013
ftIle
Vu
[lañ lh,eMh&2@th&18]
ihñ dsñ xEHkhj] oSKkfud ^th* ,oa iz/kku ¼izek.ku½
MINISTRY OF CONSUMER AFFAIRS, FOOD AND PUBLIC DISTRIBUTION
(Department of Consumer Affairs)
(BUREAU OF INDIAN STANDARDS)
New Delhi, the 2nd December, 2013
S.O. 93.—In pursuance of sub-regulation (3) of regulation 6 of the Bureau of Indian Standards (Certification)
Regulations 1988, the Bureau of Indian Standards, hereby notifies the Marking fee for the products given in the schedule:
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 11] 2014@ikS"k 21] 1935
163
Je ,oa jkstxkj ea=ky;
ubZ fnYyh] 19 fnlEcj] 2013
dkñvkñ 94.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj xq.k dSfjt
QSDVªh] tcyiqj 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 ¼lanHkZ la[;k 129@88½ dks
izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 18@12@2013 dks izkIr gqvk
FkkA
[lañ ,y&14012@6@84&vkbZvkj ¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
MINISTRY OF LABOUR AND EMPLOYMENT
New Delhi, the 19th December, 2013
S.O. 94.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 129/88)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Jabalpur as shown in the Annexure, in the Industrial
Dispute between the management of Gun Carriage Factory,
Jabalpur and their workmen, received by the Central
Government on 18/12/2013.
[No. L-14012/6/84-IR(DU)]
P. K. VENUGOPAL, Section Officer.
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
No. CGIT/LC/R/129/88
Presiding Officer: SHRI R.B. PATLE
The President,
GCF Mazdoor Sangh,
C/o Swapana Tailor, 743/3,
East Ghamapur,
Jabalpur.
...Workman/Union
Versus
General Manager,
Gun Carriage Factory,
Jabalpur.
...Management
AWARD
(Passed on this 9th day of October 2013)
1. As per letter dated Nil 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-14012/6/84-D. II(B).
The dispute under reference relates to:
"Whether the action of the management of Gun
Carriage Factory, Jabalpur (MP) in not giving equal
scale of pay i.e. 380-560 to "A" Grade workmen listed
below compared to their counterparts i.e. Jig Borers
and Tool and Gauge Fitters "A" and also equalizing
them with "B" Grade Jig Borers and Tool and Gauge
Fitters is justified? If not, to what relief the workmen
affected are entitled to?"
2. After receiving reference, notices were issued to
the parties. Ist party Union filed statement of claim at Page
4/1 to 4/4. The case of Ist Party Union is that all the workmen
connected with the reference are matriculate. They appeared
before different Ordnance Factory Board for written test
and interview and medical examination for getting
themselves enrolled as Apprentices Trainees. After passing
written test and interview, they were enrolled as trainees to
undergo National Trade Apprentice Course which was
conducted by the labour Ministry. The course was for a
duration of 3 to 4 years known as National Trade apprentice
course.
3. On completion of said course, the individual
workmen were again put to written test, psychological test,
medical examination and interview and after passing such
examinations, those workmen were enrolled as skilled
craftsmen and further course was conducted by the
Director General of Ordnance Factories. This training was
for a period of 2½ years under the Director General of
Ordnance Factories which is under the Ministry of Defence
Production. This is a special training course in various
trades.
4. After completing above training and course, the
applicants were appointed as Skilled Craftsmen "A" grade
in the pay scale Rs. 320-400. They were appointed around
March 1980. On 16.10.81, pay scale of Rs. 320-400 was
revised to Rs. 330-480. Adoption of this revised scale was
SCHEDULE
IS No. Part
Sec.
Year
Product
Units
Minimum Marking Fee
Unit Rate Units in
Remai-
Effective
Large Scale
Small Scale Slab 1
Slab 1
ning
Date
6046
-
-
1982 Gypsum for
1 M.T.
Rs. 35000
Rs. 30000
Rs. 2.00 All
-
02.12.2013
Agriculture Use
[No. CMD-II/G-18]
P. K. GAMBHIR, Scientist 'G' & Chief (Certification)
164
THE GAZETTE OF INDIA : JANUARY 11, 2014/PAUSA 21, 1935
[PART II—SEC. 3(ii)]
by way of furnishing option. By order dated 7.2.84, the
General Manager GCF Jabalpur issued circular for
implementation of new pay scale of Rs. 380-560. Said pay
scale relates to people working in Jig Borers category only.
In the organization under Defence Ministry particularly in
Gun Carriage Factory, there are 15 classifications of trade.
These classifications have been done by an expert
classification committee. That pay scale 330-480 of Jig
Borers has not been revised by the Expert Classification
Committee to Rs. 380-560. That pay scales of other
categories and trades were not revised. Revision of pay
scale of Jig borers only was neither based on any special
qualification/training nor is there any special reason for
giving the aforesaid revision only to Jig Borers. This
classification is arbitrary and without any rational basis.
The persons who are appointed as Jig Borers are initially
trained as Turners. After getting said training for 3 years,
they get specialization for 2½ years in Jig Borers Job
whereas in other trade the persons have to undergo training
of 5½ years to 6 years. That being so, knowledge-wise also
the workmen concerned in this dispute who are doing job
in other trades are superior to Jig Borers. They are not
given revision of pay scales.
5. There is anamoly that the person who is a failure in
skilled craftsman training course is allowed to appear for
one more chance and even if they fail, they are given the
designation of B Grade Craftsman, B Grader's work is inferior
to that of A Grade Craftsman but the expert Classification
Committee again gave them the same pay scale as that of A
Grade Craftsman. Persons who fail as skilled craftsman
trainee also gets B Grade whereas those who pass get A
Grade. The workmen connected with the reference are
superior to Jig Borers by qualification, experience and
technical ability and their pay scale cannot be less than the
scale of Jig Borers. The upgradation of the pay scale of Jig
Borer, Tool Setter etc. is not the outcome of any
recommendations of the ECC or any other Expert committee.
The Union submits that the workmen connected with
present reference are holding higher qualification,
knowledge are discriminated. Union prays for pay fixation
similar to Jig borers.
6. IInd party management filed Written Statement at
Page 6/1 to 6/5. Claim of Union/Association is opposed.
IInd party submits that the dispute is not referable as GCF
is not industry under I.D. Act, the employees are covered
by CCS Rules claimed under Article 309 to 312 and are civil
servants. That Industrial Standing Orders Act does not
apply to GCF as the factory is engaged in soverign functions
of the State. That arms, ammunitions, equipments etc. are
manufactured in IInd party as such it comes under soverign
functions as the supply is meant for defence of the country
only. The dispute connected with workmen in respect of
wages revised for Jig borers. It is submitted that the
workman concerned in the dispute are skilled workmen
(Craftsman-"A"). The circumstances under which the pay
scales were revised and basis for revising the pay scale is
reasonable. The act of the management is not arbitrary.
7. IInd party submits that there is classification of
jobs-unskilled, semiskilled, skilled workers "B" grade,
skilled workers "A" grade and Highly skilled workers and
in 3rd Pay Commission, different pay scales were provided
for each of the categories. The commission also
recommended that expert bodies should be set up for job
evaluation of the workers. Based on said recommendation,
the jobs in the Ordnance factories was on the basis of
point scores respectively upto 205, 206 to 250, 251 to 328,
329 to 388 and 389 and above. The dispute connecting the
workmen relates to workman carrying pay scales Rs. 320-
400 to 330-480 as the point scores of the workmen was
between the 329 to 388. The revision based on the points
was accepted by the workmen. The points scores were not
disputed by the workmen of the present dispute. There is
no question of accepting or disputing new scales. The
government issued order dated 16-10-81. It came to the
notice of the deptt. and various federations of the
employees that a large number of trades which had
obtained point scores for fitment in the scale of pay scales
were not sanctioned the appropriate scales of pay. The
Government therefore looked into the cases and setup
anamoly committee on the basis of recommendations and
review made by the said committee, Govt. issued
corrigendum of their original sanction letter dated 16-10-81
which was later superseded by Ministry of Defence letter
dated 11-5-83 and 17-10-83. Pay scales of Jib Borers A, B
and C were revised from 320-400, 260-350, 210-290 to 380-
560, 330-480 and 260-400 respectively. The points scores
of the workmen involved of different trades is given in the
Para-5 of the Written Statement. IInd party denies
allegations of the claim of Union/Association for similar
pay scale like revised to Jig Borer is also denied. IInd party
prays for rejection of claim of workman.
8. Ist party filed rejoinder at page 8/1 to 8/3 denying
material contentions of IInd party in Written Statement
and reiterated its contention in Statement of Claim. That
CAT in TA. No. 14/88 on 11-1-91 allowed benefits to the
employees, notional seniority have been granted to the
employees who donot get direct benefits of the ECC
Committee's Report. That similarly situated persons
appointed should get similar benefits. On such ground, Ist
party prays for similarly of pay scales revised to Jig borers.
9. 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 Gun Carriage Factory,
Jabalpur (MP) in not giving equal
scale of pay i.e. 380-560 to "A" Grade
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 11] 2014@ikS"k 21] 1935
165
workmen listed below compared to
their counterparts i.e. Jig Borers and
Tool and Gauge Fitters "A" and also
equalizing them with "B" Grade Jig
Borers and Tool and Gauge Fitters is
legal?
(ii) If not, what relief the workman is
Relief prayed
entitled to?"
by Union is
rejected.
REASONS
10. From pleading discussed above, it is clear that
Union is claiming revised pay scale of Rs. 380-560 allowed
to Jig borer as per order dated 2-3-94. The claim of the
Union is denied by management. Identical affidavit of
evidence are filed by Shri Chandra Dayal Mishra. Unusual
method of filing evidence is noticed that statement of
witnesses is submitted separately and affidavit stating the
contents of the statement of witness is correct is separately
filed. The affidavit of witnesses Shri Chandra Dayal Mishra,
Hari Shankar Verma, Yogesh Kumar Sharma, Kamlesh Rai
Choudhary, Ramashankar Singh, A.K. Chatterjee are
identical. That their pay scale was identical to jig borer.
The expert classification committee was constituted for
evaluating job contents of different categories, trades of
employees. ECC Committee submitted report which was
made available from 16-10-81. The ECC recommended
identical pay scales for trade as well as of Jib Borer Rs. 330-
480. Prior to 16-10-81 and by the E.C.C., his pay scale was
kept at par with that of Jib Borer. That the management
enhanced pay scale of Jig Borer to 380-560 in 1984 without
recommendations of any expert committee. Said action of
the management is arbitrary, not justified. The applicant's
trend was not considered at par with jig borer is 1984. All
the witnesses claim to be entitled to parity with jig borer
and Tool Guage fitter (A).
11. Shri Chandra Dayal Mishra in his cross-
examination says that in 1984, he was working as A Grade.
At that time work of Miller and jig borer were different. In
IIIrd and IVth Pay Commission, there was anamoly
committee. The Union did not submit memorandum to
anamoly committee claiming parity of pay scales with jig
borers. He agrees that Anamoly Committee includes
technical expert. Hari Shankar Verma in his cross-
examination says in 1984, he was holding grinder special
grade post. That the employee working as grinder cannot
be transferred to Jig borer. The work of both the post are
different. Shri Yogesh Kumar Sharma was not cross-
examined. Shri Kamlesh Choudhary in his cross-
examination says in 1982 he was working in highly skilled
grade II in pay scale Rs. 330-480. Same pay scale was given
to jig borers. That rules for recruitment for both the posts
are same. Those rules are called SR rules. In 1981, pay
scales were revised on recommendations of Expert
Classification Committee. Thereafter anamoly committee
was constituted. He did not remember its date. On
recommendations of both the committee, pay scales were
revised. He knows about expert committee. The
management Ramashankar Singh in his cross-examination
says that he was working in chargeman Grade-II in 1984.
He was working as Turner A grade in highly skilled
Grade II. He has completed training of turner. He denies the
work of Jig borer is difficult. Therefore they were given
promotion in 1984. That the management turned turner as
jig borer. In 1984, they had approached ALC for pay scale
of jig borer. That work of turner and jig borer are different.
Shri A.K. Chatterjee in his cross-examination says in 1988,
he was working as Highly Skilled Grade I. That the work of
jig borer and his work are different.
12. The evidence of all those witnesses clearly shows
that the work of the employees connected with the reference
is different from the work of jig borer. The management has
not adduced any evidence. Written notes of argument are
submitted by both parties consistent with their respective
contents in the pleadings.
13. Counsel for Union relies on ratio held in case
of—
"Shri Y. Jaganmohan Reddy and others versus
Secretary, Ministry of Home Affairs, reported in
1993(23) Administrative Tribunal Cases 42. The ratio
held in the case that parity if established must be
observed from that date."
The claim of Union claiming parity of pay scales to
jig borers is not supported by cogent evidence. The
evidence discussed above doesnot show that the work of
employees connected with reference were not performing
similar work therefore the principle in above cited case
cannot be applied to case at hand.
14. Union further relies on ratio held in case of—
"Alvari Nornha Ferriera and another versus Union of
India and others reported in 1999(4) Supreme Court
Cases 408. Their Lordship dealing with parity in
Employment and pay scales of officers held nature
of judicial work is substantially the same though
pendency of cases may differ from court to court.
There was parity in pay scales between Judicial
officers of Union Territories of Delhi and Goa but
this parity disturbed in 1982 by granting better pay
scales to Delhi Judges. Held Goa Judges entitled to
restoration of parity."
Considering the evidence discussed above, there is
no policy in the work of employees connected with
the reference and jig borers. The ratio cannot be
applied in the present case. For the same reasons,
the judgment by CAT, Bangalore in Original
Application 1989/2000 decided on 3.1.2002 cannot
166
THE GAZETTE OF INDIA : JANUARY 11, 2014/PAUSA 21, 1935
[PART II—SEC. 3(ii)]
be beneficially applied to present matter. Principles
of equal pay for equal work cannot be applied to
present case as held by the Lordship in the matter of
teachers teaching in different educational institution
in case of State of Haryana and another versus
Ramchander and another reported in 1997 (5) Supreme
Court Cases 253.
15. Learned counsel for IInd party Shri P. Shankaran
relies on ratio held in—
"Case of State of Madhya Pradesh and others versus
Ramesh Chandra Bajpai reported in 2010 (1) Supreme
Court Cases (L&S) 287. Their Lordship of the apex
Court dealing with equal pay for equal work held it
can be invoked only when the employees are similarly
situated. Further held similarity in designation, or
nature on quantum of work is not determinative of
equality in the matter of pay scales. Court has to
consider factors like the source and mode of
recruitment, qualification, nature of work, value
thereof, experience, confidentiality, functional need
etc."
Ist party Union has not adduced evidence on any of
those points.
16. Reliance is also placed in ratio held in case of—
"Ramesh Singh versus Union of India and others
reported in 2008 AIR SCW 2221. Their Lordship
dealing with Pay Parity. Army personnel working in
General Reserve Engineering Force. Pay parity not
given by 4th and 5th Pay Commission. Their Lordship
held claim of Army personnel cannot be allowed.
The court has limited scope for interference with
recommendations of Pay Commission. Their Lordship
further held matter of expert bodies like pay
commission court normally would not substitute its
views for those of expert bodies."
17. As per evidence of the witnesses of Ist party,
there was Anamoly Committee. The expert Classification
committees and Anamoly Committee were appointed. The
Union did not submit their grievance to Committee claiming
parity between both the jobs. The Court cannot interfere
with the revision of pay scales allowed to jig borers on
recommendation of Expert Classification Committee. Claim
of employees connected with the reference were not subject
of scrutiny by anamoly committee therefore without
recommendation of such Expert Committee, the claim of Ist
party union for parity of pay scales as revised to the jig
borers cannot be allowed. For above reasons, I record my
finding in Point No. 1 in Affirmative.
18. In the result, award is passed as under:—
(1) Action of the management of Gun Carriage Factory,
Jabalpur (MP) in not giving equal scale of pay i.e.
380-560 to "A" Grade workmen listed below compared
to their counterparts i.e. Jig Borers and Tool and
Gauge Fitters "A" and also equalizing them with "B"
Grade Jig Borers and Tool and Gauge Fitters is legal.
(2) Relief prayed by Union is rejected.
R.B. PATLE, Presiding Officer.
ubZ fnYyh] 23 fnlEcj] 2013
dkñvkñ 95.—vkS|ksfxd fookn vf/kfu;e] 1947] ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUæh; ljdkj ;wdks cSad ds
izcaèu ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k esa
fufnZ"V vkS|ksfxd fookn esa dsUæh; ljdkj vkS|ksfxd vf/kdj.k@Je
U;k;ky;-II] p.Mhx<+ ds iapkV ¼lanHkZ la[;k 990/2005) dks izdkf'kr
djrh gS tks dsUæh; ljdkj dks 23-12-2013 dks izkIr gqvk FkkA
[lañ ,y&12011@44@2000&vkbZ vkj ¼ch&II½]
jfo dqekj] vuqHkkx vf/kdkjh
New Delhi, the 23rd December, 2013
S.O. 95.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 990/
2005) of the Central Government Industrial Tribunal-cum-
Labour Court-II, Chandigarh as shown in the Annexure in
the Industrial Dispute between the management of UCO
Bank and their workman, received by the Central
Government on 23.12.2013.
[No. L-12011/44/2000-IR(B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
IN THE CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT-II,
CHANDIGARH
PRESENT: SRI KEWAL KRISHAN, Presiding Officer
Case No. I.D. No. 990/2005
Registered on 16.9.2005
The General Secretary, UCO Bank Empls. Union (Regd),
Central Office, UCO Bank, G.T. Road, Jalandhar City.
........Petitioner
Versus
UCO Bank, The Manager, UCO Bank, Branch Office,
Industrial Area, Patiala
........Respondent
APPEARANCES:
For the workman :
Ex parte.
For the Management :
Sh. N. K. Zakhmi, Advocate
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 11] 2014@ikS"k 21] 1935
167
AWARD
(Passed on 5.11.2013)
Central Government vide Notification No. L-12011/
44/2000/IR(B-II) Dated 12.6.2000, 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 the Tribunal:—
"Whether the action of the management of UCO Bank
is not releasing the increment to Sh. H.S. Khalsa is
just and legal? If not, what relief the concerned
workman is entitled to and from which date?"
In response to the notice the workman appeared and
filed statement of claim pleading that he was working as
Clerk with the respondent-management. He was served a
charge-sheet dated 12.9.1995 and thereafter an Inquiry
Officer was appointed who recorded the findings against
him and the disciplinary authority imposed the penalty as
follow:—
"Charge Proved/not proved
Punishment
1.
Proved
One future increment of
Sh. H.S. Khalse is
stopped with immediate
effect.
2.
Not proved
Exonerated
3.
Proved
One future increment of
Sh. H.S. Khalse is
stopped with immediate
effect.
4.
Proved
One future increment of
Sh. H.S. Khalse is
stopped with immediate
effect.
5.
Proved
One future increment of
Sh. H.S. Khalse is
stopped with immediate
effect.
The punishment awarded in respect of charge No. 1,
3, 4 and 5 will run concurrently."
That the inquiry proceedings are illegal. Accordingly
the punishment awarded is also illegal. That no punishment
is to be awarded to him, and as such, the order dated
21.5.1997 be set aside and he be granted all the benefits.
Respondent-management filed reply pleading that
workman with mala fide intention converted the FDR of
his uncle of Rs. 78,000/- into small denomination by
opening an account No. 2778 in his name and in the name
of Jit Kaur and Bahadur Singh on 6.8.1993. He also withdrew
a sum of Rs. 10100/- from the said account without any
authority which amounted to misconduct and accordingly
he was charged and after conducting regular inquiry,
charges were proved against him and the penalty imposed
is legal and valid.
The inquiry was held to be fair vide order dated
30.9.2010.
The workman was proceeded ex parte vide order
dated 24.8.2010.
I have heard Mr. N.K. Zakhmi counsel for the
management on the question whether the punishment
awarded is proper?
As reproduced above, four charges were proved
against the workman and the punishment awarded was
stoppage of one future increment with "immediate effect"
on each account and was further ordered that the
punishment awarded shall run concurrently. Now, according
to the workman the stoppage of increment was without
cumulative effect and the increment should have been
released in the next year. But the bank intimated vide letter
dated 3.10.1999 that stoppage of increment was with
cumulative effect and this contention of the bank is wrong.
It is settled law and the rules are also clear that when
punishment of stoppage of increment is to be awarded, it is
to be awarded with or without "cumulative effect", but in
the punishment order no such wording has been used and
only the word "immediate effect" has been used. The words
"immediate effect" cannot be construed that the increment
was stopped with ‘‘cumulative effect’’. Since the
punishment has not been awarded as per rules and therefore
the same is liable to be set aside and ordered accordingly.
However, the management is given an opportunity
to pass proper punishment as per rules at its discretion
within four months on receipt of the copy of the award
after publication; failing which the management is to release
the increment of the workman with all the benefits thereon.
Let hard and soft copy of the award be sent to the Central
Government for further necessary action.
KEWAL KRISHAN, Presiding Officer
ubZ fnYyh] 23 fnlEcj] 2013
dkñvkñ 96.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj iatkc us'kuy
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;] p.Mhx<+ ds iapkV ¼55@2004½ dks izdkf'kr
djrh gS tks dsUnzh; ljdkj dks 23-12-2013 izkIr gqvk FkkA
[lañ ,y&12012@167@2004&vkbZ vkj ¼ch&II½]
jfo dqekj] vuqHkkx vf/kdkjh
168
THE GAZETTE OF INDIA : JANUARY 11, 2014/PAUSA 21, 1935
[PART II—SEC. 3(ii)]
New Delhi, the 23rd December, 2013
S.O. 96.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref. 55/2004 of
the Cent. Govt. Indus. Tribunal-cum-Labour Court-II,
Chandigarh 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
23.12.2013.
[No. L-12012/167/2004-IR(B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
IN THE CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL- CUM-LABOUR COURT-II,
CHANDIGARH
PRESENT: SRI KEWAL KRISHAN, Presiding Officer
Case No. I.D. No. 55/2004
Registered on 17.1.2005
Sh. Govind Sharma, S/o Sh. Roshan Lal Sharma R/o Ram
Devan Chowk, Bhattu Kalan, Tehsil Bhattu, Fetehabad.
...Petitioner
Versus
The Manager, Punjab National Bank, Bhattu Kalan, Branch
(Anaj Mandi), Bhattu Mandi, Fatehabad.
... Respondents
APPEARANCES:
For the Workman :
Ex-parte
For the Management :
Sh. Arvind Rajotia
AWARD
(Passed on 13.11.2013)
Central Government vide Notification No. L-12012/
167/2004 -IR(B-II) dated 21.12.2004, 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 Shri Govind Sharma S/o Sh. Roshan Lal
Sharma was employed as a Peon-cum-Daftri during
the period from 2.1.2001 to 16.4.2002 by the
management of Punjab National Bank? If so, whether
the action of the management in terminating him from
service w.e.f. 16.4.2002 is just and legal? If not, what
relief the workman is entitled to?"
In response to the notice the workman appeared and
filed statement of claim pleading that he was appointed by
the management as Peon-cum-Daftri on 2.1.2001 on a
consolidated salary of Rs. 800/- per month. He used to
work from 10 am to 5 pm and was carrying the books of the
bank from one place to another and used to fill up the water
in the pitcher, serve water to the customers and used to
serve tea to the staff. His services were terminated on
16.4.2002 without following the provisions of the Act and
even the persons junior to him were retained by the
management. Since his services were terminated against
the provisions of the Act, he is entitled to be reinstated in
service with all the benefits.
The management filed written statement pleading that
the workman was never appointed as Peon-cum-Daftri and
he never worked for the management. He was only allowed
to sell tea and snacks and on that account payment was
made to him. That there was no relationship of 'employer
and employee between the parties and as such there is no
‘industrial dispute' and the petitioner is not a 'workman' as
defined in the Act.
Workman was proceeding ex parte vide order dated
26.10.2000 and did not lead any evidence.
On the other hand management examined Sh. Krishan
Lal Sharma who filed his affidavit reiterating the case as
stated in the written statement.
I have heard Sh. Arvind Rajotia learned counsel for
the management.
It is the case of the workman that he was appointed
as Peon-cum-Daftri on 2.1.2001 on a consolidated salary of
Rs. 800/- per month but he did not lead any evidence to
prove the said fact and to prove that he ever performed the
duties of Peon-cum-daftari with the respondent
management. In the absence of any evidence, it cannot be
said that he was an employee of the management and as
such there is no relationship of employer and employee
between the parties and it cannot be said that he was
employed from 2.1.2001 to 16.4.2002 and his services were
terminated. Thus the workman is not entitled to any relief.
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] 23 fnlEcj] 2013
dkñvkñ 97.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj fnYyh esVªks jsy
dkiksZjs'ku 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 ,oa Je U;k;ky;&1] fnYyh ds iapkV ¼lanHkZ la[;k
80@2013½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 23-12-2013
dks izkIr gqvk FkkA
[lañ tSM&13025@8@2001&vkj lh ¼lh&2½vkbZ vkj ¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 11] 2014@ikS"k 21] 1935
169
New Delhi, the 23rd December, 2013
S.O. 97.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 80/2013)
of the Central Government Industrial Tribunal/Labour
Court-1, Delhi as shown in the Annexure, in the industrial
dispute between the employers in relation to the
management of DMRC and their workman, which was
received by the Central Government on 23/12/2013.
[No. Z-13025/8/2001-RC(C-2)-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE DR. R.K. YADAV PRESIDING OFFICER
CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT NO.1, DELHI
I.D. No. 80/2013
Shri Nur Alam
S/o Mohd. Yakub Ali,
R/o Shavad J-387,
J.J. Colony, Delhi-81.
...Workman
Versus
1.
M/S Shashi Lift Shift Corpn.
C-21, Achriya Niketan,
Near ICICI Bank,
Delhi.
2.
M/s Delhi Metro Rail Corp. Ltd.
Metro Bhawan Fire Brigade Lane,
Barakhamba Road, New Delhi
...Management
AWARD
Delhi Metro Rail Corporation (in short the
Corporation) awarded contract in favour of M/s Shashi
Lift Shift Corporation (in short the contractor) to carry out
certain jobs, mentioned in the contract agreement.
Contractor availed serivces of Shri Nur Alam as a mechanic
to discharge its contractual obligations. Shri Nur Alam was
working with the contractor since January, 2005. The
contract employee raised a demand for leave encashment,
ESI, provident fund, bonus etc. His demand allegedly
annoyed the contractor, who dispensed with the services
of Shri Nur Alam on 10.05.2011. Shri Nur Alam raised a
demand for reinstatement in service, which demand was
not conceded to by the contractor. He approached the
Delhi Pradesh General Mazdoor Kalyan Morcha (in short
the union) for redressal of his grievance. The union raised
a dispute before the Conciliation Officer. The Conciliation
Officer entered into conciliation proceedings. When 45 days
expired after moving of application before the Conciliation
Officer, Shri Nur Alam raised a direct dispute before this
Tribunal under sub-section (2) of Section 2A of the
Industrial Disputes Act, 1947 (in short the Act). Since the
dispute was raised within the period of limitation, as
enacted by sub-section (3) of Section 2A of the Act, it was
registered an industrial dispute.
2. Claim statement was filed by Shri Nur Alam
pleading therein that he was serving the contactor since
January 2005 as a mechanic. He served his employer
diligently and honestly. He gave no chance of complaint to
his employer. Since benefits, such as leave encashment,
ESI, provident fund, bonus etc. were not provided, he made
a demand in that regard. The contractor felt annoyed and
terminated his services in an illegal manner on 10.05.2011.
His wages for 10 days were withheld. One months' notice
or pay in lieu there of was not given to him. Retrenchment
compensation was also not paid to him. Termination of his
services by the contractor was not in consonance with
labour laws. He claims reinstatement in service with
continuity and full back wages.
3. Claim was demurred by the Corporation, pleading
therein that there was no relationship of employer and
employee between the parties. Claimant was never engaged
by the Corporation for any job. His wages were never paid
by the Corporation. His services were neither availed nor
controlled by the Corporation. As such, Corporation was
not in a position to terminate his services. Claimant was an
employee of the contractor. His claim deserves dismissal,
hence it may be dismissed.
4. The contractor opted not to file written statement.
On the other hand, Shri Shashi Poddar, proprietor of the
contractor firm, entered into a settlement with the claimant.
He made statement on oath, contents of which are
reproduced below:
"I offer a sum of Rs. 55,000.00 to the claimant towards
the claim of his back wages, leave encashment,
earned leave provident fund and other benefits, which
were admissible to him from 10.05.2011 till date. A
sum of Rs. 10,000.00 has been paid to the claimant
outside the court premises and a cheque No. 155378
drawn for a sum of Rs. 45,000.00 on Mayur Vihar
branch of Bank of India is tendered to the claimant
towards his above benefits. Beside the payment of
Rs. 55,000.00, the management would reinstate the
claimant in its services from 15.09.2013. With the
above offer, which has been accepted by the
claimant, nothing remains to be adjudicated in the
dispute."
5. The claimant accepted the terms of settlement
offered to him by his employer. He also made statement on
oath, which is reproduced thus:
"I have heard the statement made by Shri Shashi
Poddar. I accept a sum of Rs. 55,000.00 towards my
170
THE GAZETTE OF INDIA : JANUARY 11, 2014/PAUSA 21, 1935
[PART II—SEC. 3(ii)]
wages, leave encashment, earned leaves, provident
fund, retrenchment compensation, notice pay and
other benefits available to me from M/s Shashi Lift
Shift Corporation from 10.05.2011 till date. A sum of
Rs. 10,000.00 in cash has been paid to me outside the
court premises. Cheque No. 155378 drawn for a sum
of Rs. 45,000.00 on Mayur Vihar branch of Bank of
India has been handed over to me by Shri Poddar. I
will join services of M/s. Shashi Lift Shift Corporation
from 15.09.2013. On the terms of the above
settlement, nothing remains to be adjudicated in the
dispute, which was raised by me under sub-section
(2) of Section 2A of the Industrial Disputes Act, 1947.
The said dispute may be answered as settled, in view
of the above facts."
6. In view of the facts that parties have entered into
a settlement, Shri Shashi Poddar paid a sum of Rs. 10,000.00
in cash outside the court room and cheque No. 155378
drawn for Rs. 45,000.00 on Mayur Vihar branch of Bank of
India, towards balance amount settled between the parties,
has been given to the claimant to fulfile terms of the
settlement, besides offer of job in favour of the claimant on
the same post with effect from 15.09.2013, terms of the
settlement have been accepted and acted upon by the
claimant, nothing remains to be adjudicated. However, this
Tribunal thinks it expedient to command Shri Shashi Poddar
to keep sufficient amount in the bank so that the cheque
would be honoured when presented for encashment and
not to back out from the offer of engaging the claimant
with effect from 15.09.2013. An award is, accordingly,
passed. It be sent to the appropriate Government for
publication.
Dated : 4.9.2013
DR. R.K. YADAV, Presiding Officer
ubZ fnYyh] 23 fnlEcj] 2013
dkñvkñ 98.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj laHkkxh; vfèdkjh
VsfyxzkQ 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 ,oa Je U;k;ky;] tcyiqj ds iapkV ¼lanHkZ la[;k CGIT/
LC/R/220/93) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks
23@12@2013 dks izkIr gqvk FkkA
[lañ ,y&40012@132@92&vkbZ vkj ¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 23rd December, 2013
S.O. 98.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. CGIT/
LC/R/220/93) of the Central Government Industrial Tribunal/
Labour Court, Jabalpur now as shown in the Annexure in
the Industrial Dispute between the employers in relation to
the management of Divisional Officer, Telegraphs and their
workman, which was received by the Central Government
on 23/12/13.
[No. L-40012/132/92-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR
COURT, JABALPUR
No. CGIT/LC/R/220/93
PRESIDING OFFICER: SHRI R.B. PATLE
Shri Brij Lal Kori,
S/o Shri Chhotelal Kori,
C/o Shri Anil Pandey Advocate,
Telephone Complex,
Jabalpur
... Workman
Versus
Divisional Officer,
Telegraphs, Sagar
... Management
AWARD
(Passed on this 1st day of November, 2013)
1. As per letter dated 12-10-93 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-40012/
132/92/-IR(DU). The dispute under reference relates to:
"Whether the action of the management of Sub
Divisional Officer, Telegraph, Sagar (MP) in
terminating the services of Shri Brij Lal Kori, Ex-casual
labour w.e.f. 17-7-90 is legal and justified? If not,
what relief the concerned workman is entitled to?"
2. After receiving reference, notices were issued to
the parties. Ist party workman filed statement of claim at
Page 3/1 to 3/3. The case of the workman is that he was
offered job of a casual labour by Sub Divisional Officer,
Telegrph Department, Sagar in September 1981 and was
allowed to continue till July 1990. The period of his working
is shown 766 days from 1981 to 1987, 289 days from 1987 to
1988, 231 days in the year 1989 and 180 days from January
1990 to July 1990. That Department of Personnel and
Training has vide letter dated 21-3-88 and 7-6-88 laid down
certain instructions and conditions for regularization of
casual workers in Central Govt. Offices who were recruited
before 7-6-88. Said authority vide letter dated 8-4-91 advised
to all authorities for relaxation of Employment Exchange
procedure and upper age limit for such regularization. In a
similar manner, the Govt. of India Deptt. of
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 11] 2014@ikS"k 21] 1935
171
Telecommunications, STN Section issued instructions to
all the Heads of Administrative Officers including Telecom
Department. To follow such regularization of services of
casual workers in Group D posts in relaxation of
Employment Exchange Procedure and upper age limit. In
similar manner, Govt. of India, Department of Telecom issued
instructions to all heads of all Administrative officers
including Telecom Deptt. to follow such regularization of
services of casual workers in Group D post. That in
consonance with said circulars, SDO(Tel) Saugor notice
dated 22-1-99 demanded requisite documents i.e. Caste
Certificate, School Certificate etc. from the Ist party
workman. He has submitted documents to IInd party on
6-4-90.
3. However his services were retrenched vide notice
dated 29-1-90 from 28-2-90 for completion of construction
work. That his services were terminated without notice, no
retrenchment compensation was given. The provisions of
Section 25-F of I.D. Act are violated. On such grounds, he
prays for his reinstatement with back wages and
regularization.
4. IInd party file Written Statement at Page 5/1 to 5/2.
IInd party submits that workman were engaged from time
to time as and when required. Ist party was engaged in
1981 and till last date on which his services were engaged
had not put in continuous service of 240 days continous
service required under Section 25 N of I.D. Act. That
workman was given continuous break of 28 months from
June 1983 to September 1985. That the services of casual
labours in the department of post and Telegraph, Telecom
are governed by circulars issued from time to time. In
pursuance of judgments of Hon'ble Supreme Court,
workman not being covered by the circulars issued by the
Government. Therefore he is not entitled to regularization
of his services. As he had not completed 240 days
continuous service, he is not covered as workman under
Section 25-B of I.D. Act. there is no question of violation of
Section 25-F of I.D. Act. On such ground, IInd party prays
for rejection of claim of workman.
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 Sub Divisional
Officer, Telegraph, Saugor (MP)
in terminating the services of
Shri Brij Lal Kori, Ex-casual
labour w.e.f. 17.7.90 is legal?
(ii) If not, what relief the
Relief prayed by
workman is entitled to?"
workman is
rejected.
REASONS
6. Though workman is challeging termination of his
services in violation of Section 25-F of I.D. Act. That he
was not served with notice. Retrenchment compensation
was not paid to him. Above allegation of workman are
denied. The workman has failed to participate in the
reference proceeding. He has not adduced any evidence in
support of his claim. The evidence of workman was closed
on 29-09-2010.
7. Management filed affidavit of evidence of witness
Shri R.G. Gohe covering most of the contentions of
IInd party that the workman had not completed 240 days
continuous service during any of the year. That break of
28 months was given in his service. The details of the
casual labours granted regularization of temporary status
in 1989 are stated in his affidavit. The witness is not fulfilling
those conditions. The evidence of workman remained
unchallenged. I donot find reason to disbelieve evidence
of management's witness. As claim of workman is not
supported by any evidence, 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 Sub Divisional Officer,
Telegraph, Saugor (MP) in terminating the services
of Shri Brij Lal Kori, Ex-casual labour w.e.f. 17-7-90 is
proper.
(2) Relief prayed by workman is rejected.
R. B. PATLE, Presiding Officer
ubZ fnYyh] 23 fnlEcj] 2013
dkñvkñ 99.—vkS|ksfxd fookn vf/kfu;e] 1947] ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUæh; ljdkj Hkkjr lapkj fuxe
fyfeVsM ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp
vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUæh; ljdkj vkS|ksfxd
vfèdj.k ,oa Je U;k;ky;] tcyiqj ds iapkV ¼lanHkZ la[;k CGIT/
LC/R/23/2003) dks izdkf'kr djrh gS tks dsUæh; ljdkj dks
23@12@2013 dks izkIr gqvk FkkA
[lañ ,y&40012@166@2002&vkbZ vkj ¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 23rd December, 2013
S.O. 99.—In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government hereby
publishes the award (Ref. No. CGIT/LC/R/23/2003) of the
Central Government Industrial Tribunal/Labour Court,
Jabalpur now as shown in the Annexure in the Industrial
Dispute between the employers in relation to the management
of BSNL and their workman, which was received by the Central
Government on 23/12/13.
[No. L-40012/166/2002-IR(DU)]
P. K. VENUGOPAL, Section Officer
172
THE GAZETTE OF INDIA : JANUARY 11, 2014/PAUSA 21, 1935
[PART II—SEC. 3(ii)]
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-
LABOUR COURT, JABALPUR
No. CGIT/LC/R/23/2003
Presiding Officer : SHRI R.B. PATLE
Shri Dhanji Yadav,
S/o Shri Rampat Yadav,
R/o Gandhi Colony,
Shujalpur Mandi,
PO Shajulpur.
...Workman
Versus
The Telecom District Manager,
BSNL, Office of TDM,
Shajapur.
...Management
AWARD
(Passed on this 30th day of October, 2013)
1. As per letter dated 9-1-2003 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-40012/
166/2002-IR(DU). The dispute under reference relates to:
"Whether the action of the management of Telecom
District Manager, Shajapur in terminating the services
of Shri Dhanji Yadav S/o Shri Rampal Yadav w.e.f.
1-10-96 is justified? If not, to what relief the workmen
is entitled to?"
2. After receiving reference, notices were issued to
the parties. Workman submitted Statement of Claim at Page
5/3 to 5/6. Case of workman is that he was appointed as
labour. He was working under Sub Division Engineer,
Shajapur from January, 1992. During 1992 to 93, he was
working at Tilawat Exchange. Said exchange was opened
on 21-11-92. He was working in said exchange till 6-8-93.
During the period 7-8-93 to 16-3-95, he was working as
casual labour at Arniya kala. During period 1-4-95 to
1-10-96, he was working under SDO Sujalpur. That as per
directions Hon'ble apex Court, the scheme for regularization
of casual employees was declared. Ist party workman was
entitled to regularization as he was working in IInd party
prior to 30-3-85. That he has worked for more than
240 days. He was not regularized. His services were
discontinued without notice in violation of Section 25-F of
I.D. Act. On such ground, he prays for his reinstatement
with consequential benefits. He also prays for regularization
in service.
3. IInd party filed Written Statement at Page 8/1 to 8/2.
The claim of workman is totally denied. It is denied that
workman was appointed as labour in the Division since
January 1992. That since workman has not worked in
Division, there is no question of regularization of services.
There was no question of terminating his services. It is
denied that the workman had worked more than 240 days
in a calendar year. The termination of services without
notice is denied. There was no question of terminating his
service as workman did not work in the Division. On such
ground, IInd party prays for rejection of claim.
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 Telecom District
Manager,
Shajapur
in
terminating the services of Shri
Dhanji Yadav S/o Shri Rampal
Yadav w.e.f. 1-10-96 is legal?
(ii) If not, what relief the workman is
Relief prayed by
entitled to?''
workman
is
rejected.
REASONS
5. Though workman is challenging his termination of
service claiming that he was appointed as labour since
January 1992 and he worked till 1996. He is entitled for
regularizing as per scheme framed for regularization casual
employees. That he had completed 240 days continuous
service during each of the year. All those contentions of
management are denied by management. Workman did not
adduce evidence in support of his claim. The evidence of
workman is closed. On 9-10-2010, management filed affidavit
of witnesses Bhagchand Joshi. Workman failed to cross-
examine the witness. The witness of the management has
stated that as per record available in office, TDE Shajapur,
workman was never engaged by management. His claim
for regularization is the department is baseless, prevaluous.
Workman is not eligible for regularization. The evidence
remained unchallenged. I donot find reason to discard his
evidence. As workman has not adduced any evidence in
support of his claim, the termination of his services without
notice is not established. Therefore I record my finding in
Point No. 1 in Affirmative.
6. In the result, award is passed as under:—
(1) Action of the management of Telecom District
Manager, Shajapur in terminating the services of Shri
Dhanji Yadav S/o Shri Rampal Yadav w.e.f. 1-10-96 is
proper.
(2) Relief prayed by workman is rejected.
R.B. PATLE, Presiding Officer
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 11] 2014@ikS"k 21] 1935
173
ubZ fnYyh] 24 fnlEcj] 2013
dkñvkñ 100.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj lhñihñMCY;wñMhñ
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 ,oa Je U;k;ky;] tcyiqj ds iapkV ¼lanHkZ la[;k CGIT/
LC/R/70/92½ dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks
24@12@2013 dks izkIr gqvk FkkA
[lañ ,y&42012@168@91&Mh&2 ¼ch½&vkbZ vkj ¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 24th December, 2013
S.O. 100.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. CGIT/
LC/R/70/92) of the Central Government Industrial Tribunal/
Labour Court, Jabalpur now as shown in the Annexure, in
the Industrial Dispute between the employers in relation to
the management of CPWD and their workman, which was
received by the Central Government on 24/12/2013.
[No. L-42012/168/91-D-2(B)-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
No. CGIT/LC/R/70/92
Presiding Officer : SHRI R.B. PATLE
Miss Madhu Adhikari,
D/o Shri Bachhan Singh Adhikari,
Resident of Nobaled Diagnosit Sector,
37/1-Nilgiri Apartment,
South Tukoganj,
Indore (MP)
...Workman
Versus
Union of India through Secretary,
Department of Central Public
Works Department,
New Delhi.
Superintending Engineer,
Central Public Works Department,
Bhopal/Nagpur.
Executive Engineer (Civil),
Central Division, Central Public
Works Department, Indore
...Management
AWARD
(Passed on this 14th day of August, 2013)
1. As per letter dated 31-3-92 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-42012/
168/91-D-2(B). The dispute under reference relates to:
"Whether the action of the Executive Engineer, Civil
Central Division Indore in terminating the services
of Miss Madhu Adhikari, Clerk/typist w.e.f. 24-11-89
is justified? If not, what relief he is entitled to?"
2. After receiving reference, notices were issued to
the parties. Workman filed Statement of claim at Page 2/1 to
2/8. Case of Ist party workman is that she was initially
appointed as clerk cum typist on daily wages on 17-3-86.
She continued to work till January 1987. Her services were
terminated. Said employment was in Electrical division of
Executive Engineer, CPWD, Indore. Regular appointee
joined in Electrical division. Therefore her services were
shifted to civil division. She was appointed on 2-3-87 as
clerk-cum-typist on daily wages Rs. 20.25 per day. That her
appointment was against clear vacancy. She was continued
till 24-9-88 till her services were terminated.
3. Again she was engaged by respondents on
contract basis as on monthly salary Rs. 755. The
appointment order was issued on 27-9-88. Her services
were terminated without notice from 27-9-89. Ist party
submits that she had challenged order of her termination
before filing original application 244/89 before CAT,
Jabalpur. Order of statusquo was passed in the matter. As
per judgment and order dated 11-2-91, the CAT, Jabalpur
declined to interfere in the matter for the reasons that she
was not holding regular civil post but purely engaged on
daily wages. Thereafter she had approached for conciliation
proceeding and dispute has been referred after failure report
was submitted. The Ist party workman submits that her
services are terminated in violation of Section 25-F though
she had completed 240 days continuous service without
issuing notice or paying retrenchment compensation . She
was illegally terminated. On such grounds, workman prays
for her reinstatement with consequential benefits.
4. IInd party filed Written Statement at Page 9/1 to 9/5.
IInd party submits that workman was purely working on
daily wages in electrical division. The certificate was not
issued from Electrical division. Rather the experience
certificate made have been issued for her better prospects.
It is reiterated that the workman was working as daily wage
typist as per order dated 2-3-87 on temporary basis. It was
condition in the order that her services would be terminated
without giving any reason or notice, she would not be
entitled to seniority, absorption in the deptt. That the
workman was engaged on contract basis as per order dated
174
THE GAZETTE OF INDIA : JANUARY 11, 2014/PAUSA 21, 1935
[PART II—SEC. 3(ii)]
27-9-88. The rates of typing charges were Ist page Rs. 2.50,
other copies 50 paise, statement size Rs. 5.50 and other
copies Re. 1, cutting the stencil Rs. 4/- each stensil. That
she was working on daily wages on contract basis.
Workman was not holding regular post. Her services could
be terminated without assigning reason. Violation of
Section 25-F is denied. IInd party reiterates as workman
was appointed on daily wages contract basis, she is not
entitled to notice, termination of her services is not legal.
IInd party prayed for rejection of her 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 Negative
Executive Engineer, Civil
Central Division Indore in
terminating the services of
Miss Madhu ADhikari, Clerk/
typist w.e.f. 24-11-89 is legal?
(ii) If not, what relief the workman is
As per final
entitled to?
order.
REASONS
6. Ist party workman is challenging termination of
her services being in violation of Section 25-F, his services
are terminated without notice, no retrenchment
compensation is paid. IInd party denies the allegation of
workman. It is submitted that workman was working on
daily wages/contractual basis. Her services is not entitled
to notice. Workman filed affidavit of her Evidence stating
that she was appointed in CPWD Electrical Division, Indore
on17-3-86, she continued to work till January 87 i.e. for
more than 10 months. That she was again appointed in
CPWD Indore from 2-3-87 to 24-9-88. Thereafter she was
workin in the CPWD Indore. That she was appointed on
monthly salary Rs., 755/-. Thereafter she was working on
contract basis till 24-11-89. Her services were terminated
without notice. In her cross-examination, workman says
that she had appeared for execution for Staff Selection
Board twice but she failed. Candidate selected by SSC was
appointed in her place. Her rest of the evidence is not
challenged in her cross-examination. Thus the evidence of
workman that she was continuously working for more than
240 days remained unchallenged.
7. The management's witness P.R.Patil filed affidavit
of his evidence. The witness of the management has stated
that the post of LDC is filled as per rules by Govt. of India,
70% post are filled by direct recruitment, 5% by
departmental qualifying exam by Group D, 5% by seniority
cum fitness basis by Group D staff, 20% vacancy are filled
from LDC belonging to Central Secretariat Clerical services.
That services of the workman were purely temporary subject
to appointment of selected candidates. Provisions of
Section 25-F were not required to be followed. Evidence of
management's witness remained unchallenged. He was not
cross-examined. The evidence of workman remained
unchallenged that she has completed 240 days continuous
service, her services were terminated without notice or
paying retrenchment compensation. The evidence of
management's witness on above point is silent. Thus it is
clear that services of workman are terminated in violation
of Section 25-F of I.D. Act and as such illegal. For above
reasons, I record my finding in Point No. 1 in Negative.
8. Point No. 2- in view of my finding on point No. 1,
termination of services of workman is illegal being in
violation of Seciton 25-F quesiton a rises to what relief the
workman is entitled? From evidence in cross-examination
of workman, it is clear that she failed in Staff Selection
Board, therefore she is not entitled for reinstatement. For
violation of Seciton 25-F, her services are terminated
without paying retrenchment compensation therefore
reasonable compensation would be appropriate in the
matter. In my considered view, considering length of service
rendered in the establishment of IInd party, compensation
Rs. 60,000/- would be proper and reasonable. Accordingly
I held and record my finding on Point No. 2.
9. In the result, award is passed as under:—
(1) The action of the Executive Engineer, Civil Central
Division Indore in terminating the services of
Miss Madhu Adhikari, Clerk/typist w.e.f. 24-11-89 is
illegal.
(2) IInd party is directed to pay compensation
Rs. 60,000/- to 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] 24 fnlEcj] 2013
dkñvkñ 101.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj nwjlapkj izf'k{k.k
dsanz 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 ,oa Je U;k;ky;] tcyiqj ds iapkV ¼lanHkZ la[;k CGIT/
LC/R/23/89½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks
24@12@2013 dks izkIr gqvk FkkA
[lañ ,y&40011@13@87&Mh&2¼ch½&vkbZvkj ¼Mh ;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 11] 2014@ikS"k 21] 1935
175
New Delhi, the 24th December, 2013
S.O. 101.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. CGIT/
LC/R/23/89) of the Central Government Industrial Tribunal/
Labour Court, Jabalpur now as shown in the Annexure, in
the Industrial Dispute between the employers in relation to
the management of telecom Training Centre, Jabalpur and
their workman, which was received by the Central
Government on 24/12/2013.
[No. L-40011/13/87-D-2(B)-IR (DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
No. CGIT/LC/R/23/89
Presiding Officer : SHRI R.B. PATLE
Shri Shyamanand & other Chowkidar,
Telecom Training Centre,
Ridge Road
Jabalpur
...Workman
Versus
General Manager,
Telecom Training Centre,
Ridge Road,
Jabalpur (MP)
...Management
AWARD
(Passed on this 12th day of September, 2013)
1. As per letter dated 18-1-85 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-40011/
13/87-D-2(B). The dispute under reference relates to:
"Whether the action of the management of Telecom
Training Centre, Jabalpur in taking 12 hours duties
from Shri Shyamanand and other watchmen since
1965 is justified? If not, to what other relief the
workmen are entitled to and from what date?"
2. After receiving reference, notices were issued to
the parties. Ist party workman submitted Statement of claim
at Page 2/1 to 2/6. The case of Ist party workmen No. 1 to
8 is that they were working as chowkidar/watchman in
Telecom Training Centre, Ridge Road, Jabalpur. Most of
the chowkidars were grown old. Many of the chowkidars
retired from service. That chowkidars were required to work
8 hours per day or 48 hours in a week in earlier part of their
service. Since 1965 onwards, they were compelled to render
service for 12 hours per day of 72 hours per week. The
work for 4 hours is extracted in excess/prescribed hours.
The claim is for wages for extra duty hours. They rendered
to time office order dated 18-3-72 prescribing 8 hours duty
per day. That the excess duty has caused mental as well as
physical effort on account of alertness in duty. That DGP
issued necessary instructions to various heads of circle to
fix duty hours of chowkidars. On 18-6-83, Director General
of Post, New Delhi issued circulars laying down following
clarifications—
(a) Chowkidars employed to keep a general watch over
the buildings at night which are locked and secured
may be given 12 hours duty
(b) In offices, which are open all the 24 hours, and where
there is a need to check public staff or stores/hostels/
duties of chowkidars should be 8 hours
(c) In store depots/dumps, where the chowkidars not
only look after the custody of stores but also help in
checking stores taken in/out during the working
hours may be allotted 8 hours of duty.
On such grounds, workman submits that 12 hours
extracted from them is in excess of 8 hours duty
prescribed. They prayed for payment of arrears for
excess 4 hours duty performed by them.
3. IInd party filed written statement at Page 3/1 to 3/4
Claim of applicants are denied. That duty hours of
chowkidars and night guards is kept 12 hours per day.
Chowkidar Shri Achchhulal and 13 others raised similar
dispute in Case No. CGIT/LC/C/517/1980 which was rejected
on 30-6-84. Miscellaneous Petition No. 3022/1985 was
dismissed on 20-4-86. Thereafter workmen applied for
reference under Section 10 of I.D.Act. The dispute is to the
working hours of chowkidars of deptt. Having finally settled.
The chowkidars who worked donot entail sustained mental
or physical strain and those whose work required constant
physical and mental strain. The duties are fixed 12 hours
per day respectively. That the contention of workmen is
that they should not be asked to work more than 8 hours.
There is no dispute, matter is finally adjudicated in GCM
that adjudication is not required.
4. Workmen filed rejoinder at Page 5/1 to 5/3
reiterating their contentions. The management of IInd party
filed rejoinder at Page 4.
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 Telecom
Training Centre, Jabalpur in
taking 12 hours duties from
Shri Shyamanand and other
watchmen since 1965 is legal?
176
THE GAZETTE OF INDIA : JANUARY 11, 2014/PAUSA 21, 1935
[PART II—SEC. 3(ii)]
(ii) If not, what relief the workmen
Relief prayed by
are entitled to?"
workman are
rejected.
REASONS
6. In support of their claim, workman filed affidavit of
Devnath Singh, Vinod Kumar Dagor, Buddular, Roshan
Singh and Manohar Singh but they were not cross-
examined on their affidavits. Management filed affidavit of
Shri S.P. Tiwari alongwith application for dismissal of the
claim. Thereafter parties remained absent. No further
evidence is adduced in the matter. Copy of Judgment in
C/517/1980 is produced on record. The claim of the
watchman Achchulal and 13 and others under Section
33(C)(2) was rejected observing that the claim may be
decided in Reference under Section-10 of I.D. Act. A copy
of judgement by CAT, Jabalpur in Application No. 31& 72/
2009 in respect of six watchman is produced on record. The
reading of judgment shows that W.P.No. 1615 & 1616/2003
filed by six chowkidars of Training Institute Jabalpur were
transferred to CAT, Jabalpur. The facts stated by the
applicants were that the respondents were making them to
work 12 hours a day requiring physical and mental alertness.
That the action of the respondent was violative of 51,54 of
Factories. Act Their contention that they were made to
work beyond 8 hours a day Para 3 of the judgment refers to
circular dated 18-6-83 issued by Deptt. of Telecom is states
that Chowkidar employed to keep a general watch over
buildings at night should ordinarily be given 12 hours of
duty. Hon'ble CAT held that the petitioners have failed to
substantiate their plea that they have not been employed
to keep general watch for building and cannot be allowed
for 8 hours duty.
7. Order passed in 517/80 was challenged in
Miscellaneous petition 3022/85. Said petition was
dismissed confirming that the grievance could be decided
in reference under Section 10 of I.D. Act.
8. Management filed affidavit of evidence of
Shri V.K. Nath. His evidence remained unchallenged. The
applicants have failed to adduce evidence that they were
performing duties requiring physical and mental alertness
and they are entitled for duty 8 hours per day. In absence
of such evidence, claim of the applicants cannot be
accepted. For above reasons, I record my finding in Point
No. 1 in Negative.
9. In the result, award is passed as under:—
(1) Action of the management of Telecom Training
Centre, Jabalpur in taking 12 hours duties from
Shri Shyamanand and other watchmen since 1965 is
legal.
(2) Relief prayed by workmen are rejected.
R. B. PATLE , Presiding Officer
ubZ fnYyh] 24 fnlEcj] 2013
dkñvkñ 102.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj egkizca/kd] xzs
vkbju QkmaMªh] tcyiqj 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 ,oa Je U;k;ky;] tcyiqj ds iapkV
¼lanHkZ la[;k CGIT/LC/R/145/95) dks izdkf'kr djrh gS tks dsUnzh;
ljdkj dks 24@12@2013 dks izkIr gqvk FkkA
[lañ ,y&14012@19@94&vkbZvkj ¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 24th December, 2013
S.O. 102.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. CGIT/
LC/R/145/95) of the Central Government Industrial Tribunal/
Labour Court, Jabalpur now as shown in the Annxure in
the Industrial Dispute between the employers in relation to
the management of General Manager, Grey Iron Foundry,
Jabalpur and their workman, which was received by the
Central Government on 24.12.2013.
[No. L-14012/19/94-IR(DU)]
P.K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
No. CGIT/LC/R/145/95
Presiding Officer: Shri R.B. Patle
Shri K.R. Denial,
S/o Late Shri M.D. Denial
Through Shri B. Disalva Advocate,
18, South Civil Lines,
Jabalpur
....Workman
Versus
General Manager,
Grey Iron Foundry,
Jabalpur
.....Management
AWARD
(Passsed on this 13th day of November 2013)
1. As per letter dated 4.8.95 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-14012/19/94-IR(DU). The dispute under reference
relates to:
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 11] 2014@ikS"k 21] 1935
177
"Whether the action of the management of Grey Iron
Foundry, Jabalpur (MP) in imposing punishment of
compulsory retirement w.e.f. 8.2.94 to the workman
Shri Shri K.R. Denial, S/o Late Shri M.D. Denial,
Ticket No. 2967/578/PM-2 is legal and 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 5/1 to 5/2. The case of workman is that he was working
as Electrician in IInd party. He was served with chargesheet
on 4.3.91 for allegation that he committed gross misconduct
consuming alcohol. He have been habitually conducting
misconduct. The charges were denied by him, enquiry was
conducted. The enquiry Officer held charges were proved
against him. Punishment of compulsory retirement was
imposed on 8.2.94. During pendency of said disciplinary
proceeding, workman was served with another chargesheet
on 6.8.91. Charges against him was of misbehaviour with
Medical Officer of VFJ Hospital. Said charge was denied
by him. Workman was under suspension. He was compelled
by Enquiry Officer to accept charges assuring that minor
punishment would be imposed. The workman accepted
charges. As a result, punishment of compulsory retirement
was imposed against him on 8.2.94.
3. Workman submits that the findings of Enguiry
Officer are perverse. Enquiry Officer did not apply his mind.
He had not committed any misconduct, he was not allowed
opportunity for his defence. The second enquiry and order
of punishments are infructuous. On such ground, workman
prays for his reinstatement with consequential benefits.
4. IInd party filed Written Statement at Page 6/1 to
6/2. IInd party contends that after issuing chargesheet, the
enquiry was conducted as per CCS and Appeal Rules 1965.
Full opportunity for defence was given to workman.
Principles of natural justice were followed. Workman was
given opportunity but he did not cross-examine witnesses.
IInd party denied that the workman was given promise of
minor punishment for admitting charge. He denied that the
charge was admitted under any promise or pressure. The
punishment doesnot suffer from illegality. The punishment
of compulsory retirement was imposed against the workman.
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 Grey Iron
Foundry, Jabalpur (MP) in
imposing punishment of
compulsory retirement w.e.f.
8.2.94 to the workman Shri Shri
K.R. Denial, S/o Late Shri M.D.
Denial, Ticket No. 2967/578/PM-
2 is legal?
(ii) If not, what relief the
Relief prayed by
workman is entitled to?
workman
is rejected.
REASONS
6. As legality of enquriy was disputed by Ist party
workman, my predecessor has decided preliminary issue
on 11.05.2012. The enquiry conducted against workman is
found legal and proper. Other question arises as to (1)
whether the findings of the Enquiry Officer are perverse &
(2) whether the punishment of compulsory retirement of
workman is proper and legal.
7. Workman has not adduced evidence on other
issues. In view of the enquiry conducted against workman
is found legal, the record of the enquiry proceeding needs
to be scrutinized. As per document Exhibit M-1, the charges
against Ist party workman attending duties under influence
of liquor. Earlier punishments were imposed in workman
for consuming liquor on duty, one increment was withheld.
On 26.02.1985, for consumption of liquor, he was suspended
on 13.7.87, for misuse of gate pass, punishment of reduction
of pay by two stages without cumulative effect was imposed
on 3.8.89. Exhibit M-2 is the memorandum. Exhibit M-3 is
order of appointment order. Exhibit M-4 is notice of enquiry.
In Exhibit M-5, workman has admitted charge. In his cross-
examination, workman has stated that he had not
complained to the higher authorities about his admission
obtained on promise for imposing minor punishment. The
workman has admitted the charge before Enquiry Officer.
Consuming liquor and attending duty in drunken condition
is certainly serious misconduct. The punishment cannot
be said excessive as charges were admitted by the workman.
It cannot be said that findings of Enquiry Officer are
perverse. The punishment of compulsory retirement is
imposed after holding enquiry, no illegality is committed
by IInd party therefore 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 Grey Iron Foundry,
Jabalpur (MP) in imposing punishment of
compulsory retirement w.e.f. 8.2.94 to the workman
Shri Shri K.R. Denial, S/o Late Shri M.D. Denial,
Ticket No. 2967/578/PM-2 is proper.
(2) Relief prayed by workman is rejected.
R.B. PATLE , Presiding Officer
ubZ fnYyh] 24 fnlEcj] 2013
dkñvkñ 103.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj Mkd?kj]
foykliqj 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 ,oa Je U;k;ky;] tcyiqj ds iapkV
178
THE GAZETTE OF INDIA : JANUARY 11, 2014/PAUSA 21, 1935
[PART II—SEC. 3(ii)]
¼lanHkZ la[;k CGIT/LC/R/103/99) dks izdkf'kr djrh gS tks dsUnzh;
ljdkj dks 24@12@2013 dks izkIr gqvk FkkA
[lañ ,y&40012@91@97&vkbZvkj ¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 24th December, 2013
S.O. 103.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. CGIT/
LC/R/103/99) of the Central Government Industrial Tribunal/
Labour Court, Jabalpur now as shown in the Annexure in
the Industrial Dispute between the employers in relation to
the management of Post Office, Bilaspur and their workman,
which was received by the Central Government on
24.12.2013.
[No. L-40012/91/97-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
No. CGIT/LC/R/103/99
Presiding Officer: Shri R.B. Patle
Shri Ramadhar Patel,
Ex. E.D.- Mail Peon,
Vill. & PO Pathariya,
Distt. Bilaspur (MP)
....Workman
Versus
Superintendent of Post Office,
Deptt. of Postal, Head Post Office,
Bilaspur (MP)
The Sub Divisional Inspector (Dak),
Sub Divisional Office,
Mungeli,
Distt. Bilaspur (MP)
...Management
AWARD
(Passed on this 11th day of November 2013)
1. As per letter dated 9.3.99 by the Government of
India, Ministry of labour, New Delhi, the reference is
received. The referrence is made to this Tribunal under
Section -10 of I.D. Act, 1947 as per Notification No. L-
40012/91/97-IR(DU). The dispute under reference relates
to:
"Whether the action of the management of
Department of Posts, at Post Office, Bilaspur in
terminating the services of Shri Ramadhar Patel, Ex.
E.D. Mail Peon of Sub-Post Office, Mungeli is legal
and justified? If not, to what relief the workman is
entitled?"
2. After receiving reference, notices were issued to
the parties. Workman submitted statement of claim at Page
3. The case of workman is that he was working is Patharia
Sub Post Office for 310 days during the period 23.4.94 to
5.8.96. He had produced documents Medical Certificate,
Character Certificate. His name was enrolled in Employment
Exchange. As such fulfilling eligibility for appointment as
ED Mail Peon. There were no complaints against him. That
amount of Rs. 10/- was deducted from his salary towards
family benefit. He was repeatedly asked to submit
application for its withdrawal. At the time of discontinuing
his services, he was advised by the Inspector not to
complaint to anybody. Therefor he was waiting for two
months for his absorption at some other place. That his
services are illegally terminated and junior person is
appointed in his place.
3. IInd party filed Written Statement at Page 5/1 to
5/3. IInd party submits that Sub Post Office, Patharia was
opened from 5.6.76. The establishment was consisting of
one S.P.M, one E.D. Mail Peon and one E.D. Mail Carrier.
That one Shri Mahetru was working as ED Mail peon
Patharia w.e.f. 5.7.76. He was put off on 20.1.94. In order to
manage extra work of ED Mail Peon, workman was
temporarily engaged in place of Mahetru from 23.4.94. That
workman was informed that he was temporarily engaged in
place of Shri Mahetru and can be removed without prior
information. That Mahetru was reinstated from 2.8.96. Thus
temporary arrangement was discontinued. Workman was
discontinued from work. That workman was purely engaged
on temporary basis and staff gap arrangement with
understanding that his services would be terminated at
any time. On such ground, IInd party prays for rejection of
the claim.
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 belows:—
(i)
Whether the action of the
In Negative
management of Department of
Posts, at Post Office, Bilaspur
in terminating the services of
Shri Ramadhar Patel, Ex. E.D.
Mail Peon of Sub-Post Office,
Mungeli is justified?
(ii) If not, what relief of the
As per final order.
workman is entitled to?
REASONS
5. Workman is challenging termination of his services
as E.D. Peon for violation of Section 25-F of I.D. Act, that
he was working continuously for 310 days during 23.4.94
to 5.8.96. IInd party submits that workman was engaged on
termporary basis as services of Shri Mahetru ED Mail Peon
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 11] 2014@ikS"k 21] 1935
179
were put off on 20-1-1994. Ist party workman was engaged
on temporary basis, he cannot claim regularization. The
written statement filed by IInd party is silent about
completion of 240 days continous service by workman
preceding discontinuation of the workman. The workman
has not adduced evidence. His evidence is closed on
6.7.07. Management did not adduce any evidence. From
pleading on record, it is clear that workman had completed
360 days continous service prior to his termination,
workman was temporarily employed. However he had
completed 240 days continuous service, therefore
workman is covered under Section 25-F of I.D. Act. He is
entitled to protection of Section 25-F of I.D. Act. The
pleadings of IInd party are silent about giving notice of
termination or payment of retrenchment compensation to
workman. Pleadings in Written Statement itself are clear
that services of workman are terminated in violation of
Section 25-F of I.D. Act.
6. Learned counsel for IInd party Shri P. Namdeo
was unable to explain at time of argument about compliance
of Section 25-F of I.D.Act when workman was working
with IInd party from 20.1.94 to 5.8.96. For reasons discussed
above, it is clear that services of Ist party workman are
illegally terminated in violation of Section 25-F. Therefore I
record my finding on Point No. 1 in Negative.
7. Point No. 2—In view of my finding in Point No. 1
that services of workman are terminated in violation of
Section 25-F of I.D. Act, question arises to what relief the
workman is entitled. Workman has not adduced evidence.
IInd party also not adduced any evidence. It is not known
whether workman is employed some where. Workman was
working with IInd party for 300 days prior to his termination,
he was not paid retrenchment compensation, no notice
was paid to him, termination of service is in violation of
Section 25-F of I.D. Act. Workman is not entitled to
reinstatement. The reasonable compensation would be
appropriate. Considering the facts and circumstances,
compensation Rs. 20,000/- would be proper. Accordingly I
record my finding in Point No. 2.
8. In the result, award is passed as under:—
(1) Action of the management of Department of Posts,
at Post Office, Bilaspur in terminating the services
of Shri Ramadhar Patel, Ex. E.D. Mail Peon of Sub-
Post Office, Mungeli is illegal. For violation of
Section 25-F of I.D. Act.
(2) IInd party is directed to pay compensation
Rs. 20,000/- be paid within 30 days from the date of
award.
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] 24 fnlEcj] 2013
dkñvkñ 104.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj egkizcaèd]
chñ,lñ,uñ,yñ ds izca/kr= 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 ,oa Je U;k;ky;] tcyiqj ds iapkV ¼lanHkZ la[;k CGIT/
LC/R/148/2001) dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks
24&12&2013 dks izkIr gqvk FkkA
[lañ ,y&40012@172@2001&vkbZvkj ¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 24th December, 2013
S.O. 104.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. CGIT/
LC/R/148/2001) of the Central Government Industrial
Tribunal/Labour Court, Jabalpur now as shown in the
Annexure in the Industrial Dispute between the employers
in relation to the management of General Manager, BSNL
and their workman, which was received by the Central
Government on 24-12-2013.
[No. L-40012/172/2001-IR(DU)]
P.K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/148/2001
PRESIDING OFFICER: SHRI R.B. PATLE
Shri Bhoopnarayan Pandey,
Ex-worker of Telephone Exchange,
Vill. Shakti Nagar Telephone Exchange,
P.O. Sakti, Distt. Janjgir,
Champa (Chhattisgarh)
....Workman
Versus
General Manager,
BSNL, Telephone Exchange,
Bilaspur (Chhattisgarh).
....Management
AWARD
(Passed on this 6th day of August, 2013)
1. As per letter dated 10.9.2001 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-40012/
172/2001-IR (DU). The dispute under reference relates to:
" Whether the demand of Shri Bhoopnarayan Pandey
for reinstatement as Guard in Telephone Deptt. w.e.f.
180
THE GAZETTE OF INDIA : JANUARY 11, 2014/PAUSA 21, 1935
[PART II—SEC. 3(ii)]
December 2000 with full back wages, etc. at par with
regular employees is justified? If so, to what relief he
is entitled?"
2. Ist party workman is claiming for reinstatement in
service as Guard from management in the dispute under
reference. Even after issuing notices, the workman did not
participate in the proceeding, no statement of claim is filed.
Ist Party is proceeded exparte on 27.03.2006.
3. IInd party management also not filed Written
Statement. From conduct of the parties, it is clear that the
parties are not pursuing or participating in the dispute.
4. In the result, award is passed as under:—
"Reference is disposed off as No. Dispute
Award."
R. B. PATLE, Presiding Officer
ubZ fnYyh] 24 fnlEcj] 2013
dkñvkñ 105.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj funs'kd] dsUnzh;
QkeZ e'khujh ,oa izf'k{k.k laLFkku 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 ,oa Je U;k;ky;] tcyiqj ds
iapkV ¼lanHkZ la[;k CGIT/LC/R/151/97) dks izdkf'kr djrh gS tks
dsUnzh; ljdkj dks 24@12@2013 dks izkIr gqvk FkkA
[lañ ,y&42012@Nil@96&vkbZvkj ¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 24th December, 2013
S.O. 105.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. CGIT/
LC/R/151/97) of the Central Government Industrial Tribunal/
Labour Court, Jabalpur now as shown in the Annexure in
the Industrial Dispute between the employers in relation to
the management of the Director, Central Farm Machinery
Training & Training Institute and their workman, which
was received by the Central Government on 24/12/2013.
[No. L-42012/Nil/96-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/151/97
PRESIDING OFFICER: SHRI R.B. PATLE
Smt. Chote Bai,
W/o Kalsuram
Behind Rly station,
Godi Mohalla,
Budni, Distt. Sehore (MP)
...Workman
Versus
The Director,
Central Farm Machinery Training
and Testing Institute, Tractor Nagar,
P.O. Budni, Distt. Sehore (MP)
... Management
AWARD
(Passed on this 2nd day of August, 2013)
1. As per letter dated 30.5.97 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-42012/
Nil/96-IR(DU). The dispute under reference relates to:
"Whether the action of the management of Central
Farm Machinery Training and Test Institute, Budni
in terminating the services of Smt. Chote Bai W/o
Kalsuram is legal and justified? If not, to what relief
the workman is entitled?"
2. After receiving rererence, notices were issued to
the parties. Ist party workman field Statement of claim at
Page 5. The case of Ist party workman is that she was
employed by the IInd party on daily wage casual labour in
1987. Since his initial engagement, she was continuously
working the IInd party till 1994. That she had worked for
240 days during each of the calendar year and even 12
months preceding his retrenchment form service. Though
the workman continuous rendered service, she was not
regularized, permanent status was not given to him with
ulterior motive. The management of IInd party adopted
pick and choose policy. That the management had
regularized services of 24 employees out of which three
were over aged namely Shri Gulab, Shivlal and Narmada
Prasad. Their services were regularized. That IInd party
deliberately discontinued her services to accommodate
those workman. Discontinuation of workman from service
is illegal. Provisions of Section 25-F, G & H of I.D. Act were
not complied. On such grounds, workman prays for
reinstatement with consequential benefits.
3. IInd party management even after receiving notice
failed to appear. IInd party was proceeded exparte as per
order dated 15.6.07.
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
management of Central Farm
Machinery Training and Test
Institute, Budni in terminating
the services of Smt. Chote Bai
W/o Kalsuram is legal?
In Negative.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 11] 2014@ikS"k 21] 1935
181
(ii) If not, what relief the
As per final order.
workman is entitled to?"
REASONS
5. Ist party workman is challenging termination of
services. The workman has filed affidavit of her evidence.
The workman has stated that she was engaged by IInd
party on daily wages in 1987 after holding interview. That
she worked for more than 240 days during each of the year
1987 to 1994. Her services were not regularized as per the
Regularisation Scheme for casual labours of Govt. of India.
That other overaged employees Gulab, Shivlal and Narmada
Prasad and junior employees Hiralal, Ashok Kumar and
Suresh were regularized from July 1994. The services of Ist
party workman were illegally terminated. The evidence of
workman remained unchallenged. IIand party has not
participated in the reference proceeding. IInd party is
proceeded exparte. Considering unchallenged evidence
of workman, I donot find reason to discard his evidence.
From evidence on record, it is established that the services
of workman are terminated in violation of Section 25-F of
I.D. Act as such illegal. For above reasons, I record my
finding in Point No. 1 in Negative.
6. Point No. 2—question arises as to what relief the
workman is entitled? Whether the workman is entitled for
reinstatement with back wages? The unchallenged
evidence of workman shows he is out of employment from
1994 for about 19 years. Is party workman was working as
daily wage employee. His reinstatement would not be
justified. Considered the period of his working from 1987
to 1994, in my considered view, compensation Rs. 60,000/-
would he proper. Accordingly I hold and record my finding
on Point No. 2.
7. In the result, award is passed as under:—
(1) Action of the management of Central Farm Machinery
Training and Test Institute, Budni in terminating the
services of Smt. Chote Bai W/o Kalsuram is illegal.
(2) IInd party is directed to pay compensation
Rs. 60,000 to 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] 26 fnlEcj] 2013
dkñvkñ 106.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj Hkkjrh; thou
chek fuxe ds izca/kr= 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;] p.Mhx<+ ds iapkV ¼681/2005) dks izdkf'kr
djrh gS tks dsUnzh; ljdkj dks 26-12-2013 dks izkIr gqvk FkkA
[lañ ,y&17012@11@2002&vkbZvkj ¼ch&II½]
jfo dqekj] vuqHkkx vf/kdkjh
New Delhi, the 26th December, 2013
S.O. 106.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 681/
2005) of the Central Government Industrial Tribunal-Cum-
Labour Court-II, Chandigarh as shown in the Annexure, in
the Industrial Dispute between the management of LIC of
India and their workmen, received by the Central
Government on 26.12.2013.
[No. L-17012/11/2002-IR(B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
IN THE CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT-II,
CHANDIGARH
PRESENT: SHRI KEWAL KRISHAN, Presiding Officer
Case No. I.D. No. 681/2005
Registered on 25.8.2005
Sh. Moti Chand,
C/o Sh. R.K. Sharma, H.No. 510,
Sector 15A, Chandigarh.
...Petitioner
Versus
The Senior Divisional Manager,
LIC of India,
Jeevan Prakash Building Sector 17B,
Chandigarh.
...Respondents
APPEARANCES:
For the workman
Sh. Ravi Kant Sharma Adv.
For the Management
Sh. P.K. Longia Adv.
AWARD
Passed on 8.11.2013
Central Government vide Notification No. L-17012/
11/2002 -IR(B-II) dated 11.10.2002, 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 'Act') has referred the following Industrial
dispute for adjudication to this Tribunal:—
"Whether the action of the management of LIC of
India in terminating the services of Sh. Moti Chand,
Ex-Caretaker w.e.f. 7.8.2001 without following the
provisions of Industrial Disputes Act, 1947 is legal
and just? If not, what relief the concerned workman
is entitled and from which date?"
182
THE GAZETTE OF INDIA : JANUARY 11, 2014/PAUSA 21, 1935
[PART II—SEC. 3(ii)]
In response to the notice, the workman appeared
and submitted statement of claim pleading that he is a
graduate and joined as 'Care-taker' with the respondent
management vide appointment letter dated 12.6.1989. He
was initially posted at LIC Guest House in House No. 59,
Sector 8, Chandigarh and after a period of 10 years, he was
transferred to LIC Guest House at house No. 326, Sector
15D, Chandigarh on 28.5.1999. He continued to work as
care-taker in the Guest House from 1999 to 7.8.2001 without
any break in service. He was initially appointed on
consolidated salary of Rs. 700 per month which was later
on enhanced to Rs. 2000 per month in 1999. The said salary
is much less than the salary payable for the post of care-
taker. He was not given any increment for the period he
served with the respondent. In order to show that workman
was working on contract, the respondent management
issued a fresh appointment letter dated 1.6.2000 which is a
camouflage to circumvent the law.
It is pleaded that in order to adjust Mr. Sanjay, a
person known to Senior Divisional Manager, LIC,
Chandigarh, the workman was issued a show cause notice
dated 31.5.2000 to get rid of him. He was transferred to
Sector 15D, Guest House and in his place Surinder Singh
Rana was appointed as Care-taker in Sector 8, Guest House
and said Surinder Singh is close to Senior Divisional
Manager. Now in order to accommodate Mr. Sanjay, a
brother of Surinder Kumar, said show cause notice was
issued to him on 31.5.2000 and ultimately his services were
terminated. That termination of his services are illegal and
he is entitled to be taken back in service with full wages.
The respondent management filed written reply
denying the relationship of employer and employee and
pleaded that the petitioner was simply a contractor to whom
contract of attending the LIC Guest House, Sector 8,
Chandigarh was given initially for a period of 12 months on
monthly payment of Rs. 700 vide letter dated 12.6.1989. His
contract was extended from time to time and he was granted
contract of Guest House, Sector 15, Chandigarh. The
contract was lastly extended on 1.6.2000 for a period of 12
months on payment of Rs. 2000 per month. He was not
granted further extension of contract after the expiry of the
period of contract which expired on 31.5.2001. That the
petitioner was given contract from time to time which is as
follow:-
From 12.6.1989 to 30.6.1990
Rs. 700/-
From 1.7.1990 to 31.7.1991
Rs. 850/-
From 1.8.1991 to 30.11.1992
Rs. 900/-
From 1.12.1992 to 31.12.1993
Rs. 1100/-
From 1.1.1994 to 31.10.1995
Rs. 1200/-
From 1.11.1995 to 31.3.1997
Rs. 1400/-
From 1.4.1997 to 30.11.1998
Rs. 1600/-
From 1.12.1998 to 31.5.2001
Rs. 2000/-
That the petitioner is not an employee of the LIC, it is
further pleaded that the inspection of the Guest House
was conducted by a Committee on 27.5.2000 and various
irregularities committed by the petitioner were found and
consequently a show cause notice was issued to him on
31.5.2000 and after obtaining the reply, he was warned to
be careful in future. Wife and children of the petitioner
were found sleeping in the Guest House, besides other
irregularities. His explanation was sought and finding the
same not satisfactory, his contract was not extended from
31.5.2001. That Surinder Singh Rana and Sanjay were
granted contracts on the basis of their merit.
In the rejoinder workman pleaded that he was
appointed vide letter dated 12.6.1989 and by mentioning
the word 'contract', the management cannot change the
nomenclature of the letter which in fact is an appointment
letter. The basic pay of the care-taker was Rs. 3120-35 along
with other allowances but he was paid much less. That he
is an employee of the management.
Parties led their evidence. In support of its case, the
workman appeared in the witness box and filed his affidavit
reiterating the case as set out in the claim statement. He
also examined Z.S. Dhankar who filed his affidavit and
deposed that workman was initially given work of care-
taker on daily wage basis which were paid at the end of
every month. He further deposed about the functioning of
the care-taker and the Guest House.
On the other hand the management examined Smt.
Manju Jain who filed her affidavit reiterating the case as
said out in the written statement. I have heard learned
counsel for the parties and perused the file.
It was vehemently contended by the learned cousel
for the workman that the workman was appointed as care-
taker in the Guest House of the management where he
joined on 12.6.1989 and his services were arbitrarily
terminated on 31.5.2000 which is illegal. He further
contended that the workman was paid at DC rates and
even he was transferred from Sector 8, Guest House; to
Sector 15D Guest House and even his casual leave was
sanctioned by the Department and these facts prove that
he was an employee of the management.
It was further contended that the management had
intentionally used the word 'contract' in the appointment
letter dated 12.6.1989 Exhibit W1 to change the nomenclature
of the appointment letter and in fact the said letter is an
appointment letter and since the workman continuously
worked for the management, his services cannot be
terminated without complying the provisions of the Act.
On the other hand it was contended by the learned
cousel for the management that the petitioner was given
only contract for attending the Guest House of the
management situated at Chandigarh vide letter dated
12.6.1989 and the said contract was renewed from time to
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 11] 2014@ikS"k 21] 1935
183
time and lastly the contract was issued on 1.6.2000 i.e.
Exhibit W2 and argued at length that during the inspection
of the Guest House on 27.5.2000 various irregularities were
found regarding which show cause notice was served on
the workman who filed reply and finding the same not
satisfactory his contract was not extended from 31.5.2001
and since he was not an employee of the management, the
present reference is not maintainable.
I have considered the respective contentions.
The main question which needs determination in the
present proceedings is whether there is any relationship of
an employer and employee between the management and
the workman. It is admitted that the workman was given
work for attending the LIC Guest House, Chandigarh vide
letter dated 12.6.1989 Exhibit W1. Now according to the
workman, this is an appointment letter. But perusal of the
said letter shows that the management only awarded to
him the contract for attending the Guest House for a period
of 12 months on consolidated amount of Rs. 700 per month
and it was further mentioned that he would attend the Guest
House at all times and was to make arrangements to depute
some other dependable person to attend the Guest House
in his absence. He applied for leaves as is evident from the
documents M2 to M15 and every time he deputed some
other person in his place to do the duty. Thus, the workman
deputed some other person in his place to attend the work
of the Guest House when he proceeded on leave and in the
circumstances, if his leave was sanctioned by the
management the same do not prove that the workman was
appointed as care-taker of the Guest House. It is not
disputed there are certain rules and regulations for
appointing a care-taker in the Guest House and there is no
evidence on the file that the same were ever followed while
making any appointment of the workman as care-taker in
the Guest House. A bare perusal of the letter dated 12.6.1989
Exhibit W1 and dated 1.6.2000 i.e. M22 leaves no doubt
that there was only a contract to attend the Guest House
on a consolidated pay which varied from time to time and it
cannot be said that he was paid salary at DC rates argued
by the learned counsel. Again there is nothing on the file
that he was appointed as a daily wager.
It may also be added that he was not employed at
any point of time even on contract basis and he was simply
given a contract from time to time for attending the Guest
House. When he was not employed by the management, it
cannot be said that there is any relationship of employer
and employee between the parties, simply on account of
the fact that he was paid certain amount at the end of the
month or his leave was sanctioned. Since he was given
contract to look after the Guest House in Section 15,
Chandigarh, it cannot be said that he was transferred from
Guest House situated in Sector 8, Chandigarh.
Though, as stated above, a lengthy argument was
raised that the contract was not renewed after finding
irregularities in the work of the workman, the same is not
required to be gone into as this Court is only to see whether
there is any relationship of employer and employee between
the parties which is not established on the file.
Since no relationship of employer and employee is
proved on the file between the parties it cannot be said
that his services were terminated by the management w.e.f.
7.8.2001 and he 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] 26 fnlEcj] 2013
dkñvkñ 107.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj cSad vkQ 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
Je U;k;ky; p.Mhx<+ ds iapkV ¼41@2004½ izdkf'kr djrh gS tks
dsUnzh; ljdkj dks 26-12-2013 dks izkIr gqvk FkkA
[lañ ,y&12012@64@2004&vkbZvkj ¼ch&II)]
jfo dqekj] vuqHkkx vf/kdkjh
New Delhi, the 26th December, 2013
S.O. 107.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 41/2004)
of the Central Government Industrial Tribunal-Cum- Labour
Court-II, Chandigarh 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 26.12.2013.
[No. L-12012/64/2004-IR(B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
IN THE CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT-II,
CHANDIGARH
PRESENT : SRI KEWAL KRISHAN, Presiding Officer
Case No. I.D. 41/2004
Registered on 7.12.2004
Shri Brij Raj Singh, S/o Sh. Balwant Singh, R/o Village
Khanpur, Post Office Gole Gujral, Tehsil and District Jammu,
Jammu.
...Petitioner
Versus
The General Manager, Bank of India, Head Office, Express
Towers, Nariman Point, Mumbai.
...Respondent
APPEARANCES:
For the workman
None
For the Management
Sh. Rajan Lohan Advocate.
184
THE GAZETTE OF INDIA : JANUARY 11, 2014/PAUSA 21, 1935
[PART II—SEC. 3(ii)]
AWARD
(Passed on 22-10-2013)
Central Government vide Notification No. L-12012/
64/2004-IR(B-II) dated 28.6.2004, 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 Bank of
India, Satwari Branch, Jammu in terminating the
services of Sh. Brij Raj Singh, Sub-Staff S/o
Sh. Balwant Singh w.e.f. 16.8.2002 was just, fair and
legal? If not, what relief he is entitled to and from
which date?"
Ón receiving the reference notice was issued to the
workman as well as to the management.
The workman submitted statement of claim pleading
that considering satisfactory his work and conduct, he
was sent by the management to appear in a clerical
examination at Amritsar to be held on 3.10.1993 from 2 P.M.
to 4 P.M. and reached back Jammu on 4.10.1993. Due to
exertion, he fell sick and was admitted in Government
Medical College Hospital, Jammu on 5.10.1993. On being
checked by Dr. Dinesh Gupta, workman was found having
acute Iridocyclitia right eye and was advised treatment
and rest for two weeks vide MRD No. 666 dated 5.10.1993.
He sent an application by registered post along with medical
certificate for medical leave for 15 days. But instead of
sanctioning the leave, the management informed him vide
letter dated 22.11.1993 that no leave was due towards him
and his absence is being treated as unauthorized absence.
He was further directed to produce medical certificate.
Thereafter he approached respondent No. 3 number of times
to join his duties but was not allowed. He was again served
with the letter dated 5.1.1994 whereby asked to join his
duties failing which his services were to be terminated as
per Clause 17 of the Bipartite Settlement. He sent reply to
the said letter mentioning therein all the facts and requested
to allow him to join his duty vide his letter dated 31.1.1994.
That he remained under mental stress and torture and was
confined to bed due to the acts and threats of the
management. That his services were terminated by the
management dated 8.2.1994.
He filed Writ Petition No. 514 of 1995 titled Brij Raj
Singh Vs. Bank of India which was allowed by the Hon'ble
High Court vide order dated 13.5.1999 and he was ordered
to be reinstated. He joined his duty on 15.5.1999, but the
management challenged the said judgement by filing Letters
Patent Appeal (SW) No. 220 of 1999 titled as Bank of India
Vs. Brij Raj Singh and the same was allowed on the ground
that there were disputed questions as to the fact whether
workman was gainfully employed or whether he made any
effort to join his duty. His services were again discontinued
vide dated 16.8.2002.
He remained in the service of the bank for more than
three years and his services were terminated without
conducting any inquiry and as such he be treated in service.
The management filed written reply pleading that
workman was awarded punishment of stoppage of three
annual increments for misappropriating funds of the bank.
That the workman appllied for 15 days' sick leave from
5.10.1993 but did not bother to join duty till 22.11.1993. He
was advised to join the duty vide letter dated 22.11.1993
and when he failed, he was asked to join the duty vide
order dated 5.1.1994 within 30 days and he failed to comply
with the same and in terms of Clause 17 of Bipartite
Settlement dated 10.4.1989 his services were terminated
vide order dated 8.2.1994 which is legal and valid.
It is further pleaded that during the period of
reinstatement from 14.5.1999 to 16.8.2002 in consequence
of the decision of the Hon'ble High Court the workman
remained absent from the following period:—
Sl. No.
Months
Number
of days
1.
03 Feb. to 09 April, 2000
66
2.
12 April to 16 April, 2000
04
3.
24 April to 13 October, 2000
173
4.
15 October to 16 October, 2000
02
5.
19 October to 28 November, 2000
41
6.
30 November 2000 to 31 May, 2002
539
825
and accordingly he was awarded punishment.
That the services of the workman have been rightly
terminated.
In support of his case workman appeared in the
witness-box and filed his affidavit reiterating his case as
stated in the claim petition. He also filed documents
Annexure P1 to P11. He examined Navdeep Singh who
filed his affidavit deposting that Brij Raj Singh approached
the bank in October, 1993 to join his duties but the Manager
did not allow him to do so. He also examined M.K. Dhar
who is a Registrar of Medical College, Jammu and placed
on record photocopy of Medical report dated 5.10.1993.
On the other hand, management examined Paramjit
Singh Walia who filed his affidavit reiterating the case of
the management as stated in the written statement.
Parties filed written arguments.
My learned predecessor reserved the case for orders
and later on, on 5.7.2013, found that orders of the Bank and
Hon'ble High Court are not legible and ordered to issue
notice to the parties.
Workman appeared on 30.8.2013. On that day notice
was ordered to be issued to management and its counsel
by registered post. The counsel of the management
appeared later on and noted the next date i.e. 22.10.2013.
Notice was also issued to the management for 22.10.2013
i.e. for today, but none appeared on behalf of the
management and the management was proceeded against
ex parte vide separate order of today.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 11] 2014@ikS"k 21] 1935
185
I have heared the workman and perused the file as
well as the written arguments submitted by the parties
earlier. The workman submitted that he fell sick on 5.10.1993
and he applied for medical leave for 15 days on the
recommendation of Dr. Dinesh Gupta who issued the
certificate Annexure P2 and thereafter he was not allowed
to join the duty by the Branch Manager and his services
were illegally terminated vide order dated 8.2.1994. He
successfully challenged the said order before the Hon'ble
High Court of Jammu and Kashmir by filing a Writ Petition
No. 514/95 which was allowed vide order dated 13.5.1999.
However the Letters Patent Appeal (SW) No. 220 of 1999
was filed by the bank which was allowed by the Hon'ble
High Court as is evident from the Annexure P 10 on the
ground that there was disputed question whether the
workman ever tried to join his duty and whether he remained
gainfully employed during the period he was out of service,
according to workman he made several efforts to join his
duties and was not employed any where and therefore the
order of termination dated 8.2.1994 and dated 30.5.2002 are
not legal and valid. I have considered the submissions
made by the workman. It is disputed that there is Bipartite
Settlement dated 10.4.1989 between the workmen and the
management and Clause 17 reads as follows:—
"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 his credit or beyond
period of leave sanctioned orginally or when there is
an satisfactory evidence that the has taken an
employment in India or when the management is
reasonably satisified that he has no extension of
joining duties, the management may at any time
thereafter give a notice to the employee at his last
known address calling upon him to report for duty
within 30 days of the date of notice, stating
inter alia the grounds for coming to the conclusion
that the employee has no intention of joining duties
and furnishing necessary evidence, where available.
Unless the employee reports for duty within 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."
This Clause has been held to be legal and valid by
the Division Bench in the case of the present workman
itself in LPA No. 220/1999. Thus an employee who absent
himself for period of 90 days or more, the management can
terminate his services after giving him a notice calling him
to report within 30 days of the date of notice. Now, the case
of the workman himself is that he fell sick and he applied
for 15 days' leave as per letter dated 5.10.1993 Annexure P3 on
the file. It is further pleaded by the workman that thereafter
he approached the Branch Manager to join his duties time
and again but was not allowed to join the duties. It may be
added that the Branch Manager vide letter dated 22.11.1993.
Annexure P4 informed him that on leave was due to him
and he may send the medical certificate and otherwise
resume the duty immediately. Thus the Branch Manager
asked him to join the duties vide letter dated 22.11.1993. In
the circumstances it cannot be said that he was not allowed
to join the duties by the management on the expiry of 15
days' time from 5.10.1993. Again the management issued a
noticed dated 5.1.1994 Annexure P5, serving notice on him
to join duties within 30 days failing which the action was to
be taken again him under Clause 17 of the Bipartite
Settlement. But instead of joining the duties, he wrote a
letter dated 31.1.1994 and himself placed on file its copy
Annexure P 6 mentioning therein some excuses and praying
that his services be not terminated. This very letter dated
31.1.1994 further falsifies the case of the workman that he
ever tried to join his duty and even did not bother to attend
the duty even after service notice dated 5.1.1994. In view
of the Clause 17 of the Bipartite Settlement as reproduced
above, the management was competent to terminate his
services who passed the order dated 8.2.1994 Annexure
P7 which is legal and valid and in the circumstances, it
cannot be said that the absence of the workman was not
willful.
Thus it is clear the management rightly passed the
order dated 8.2.1994 as well as 16.8.2002 and 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 the Central Government for further necessary
action.
KEWAL KRISHAN, Presiding Officer
ubZ fnYyh] 26 fnlEcj] 2103
dkñvkñ 108.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj vk;qDr] fnYyh
uxj fuxe 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 ,oa Je U;k;ky; lañµ1 ds iapkV ¼lanHkZ la[;k 203@2012½
dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 26@12@2013 dks izkIr
gqvk FkkA
¼lañ ,y&42012@75@2012&vkbZvkj¼Mh;w½
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 26th December, 2013
S.O. 108.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
186
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[PART II—SEC. 3(ii)]
Government hereby publishes the award (Ref. No. 203/
2012) of the Central Government Industrial Tribunal/Labour
Court No. 1, New Delhi now as shown in the Annexure in
the Industrial Dispute between the employers in relation to
the management of the Commissioner, MCD and their
workman, which was received by the Central Government
on 26/12/13.
[No. L-42012/75/2012-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE DR. R.K. YADAV, PRESIDING OFFICER,
CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL No. 1, DELHI
I.D. No. 203/2012
The General Secretary,
Nagar Nigam Karamchari Sangh,
Delhi Pradesh, P-2/624, Sultanpuri,
Delhi.
...Workman
Versus
The Commissioner,
Municipal Corporation of Delhi
Town Hall, Chandni Chowk,
Delhi-110006.
...Management
AWARD
One Shri Jai Kawar was working as safai karamchari
with Municipal Corporation of Delhi (hereinafter referred
to as the Corporation). He died in harness. His wife, namely,
Smt. Bala applied for employment on compassionate
grounds. Since no vacancy was available for her
appointment, her application for compassionate
appointment was declined. However, she was given
appointment on daily wage basis to help her on
humanitarian grounds. Pursuant to its policy of
regularization, the Corporation regularized services of
Smt. Bala vide order dated 21.05.2007 with effect from
01.04.2006. Smt. Bala accepted offer of the appointment on
regular basis and joined services of the Corporation.
Subsequently, she approached the Nagar Nigam Karamchari
Sangh (in short the Sangh) seeking regularization of her
services from initial date of her engagement on casual basis.
The Sangh raised an industrial dispute before the
Conciliation Officer. Since the Corporation contested the
claim, conciliation proceedings failed. One consideration
of failure report, submitted by the Conciliation officer, the
appropriate Government referred the dispute to this
Tribunal of adjudicaton, vide order No. L-42012/75/2012-
IR(DU), New Delhi dated 26.11.2012, with following terms
of reference:
"Whether action of the management of Municipal
Corporation of Delhi (MCD) in not granting
regular pay scale and post to Smt. Bala, w/o
late Shri Jai Kawar, 'Safai Karamchari' from the date,
she was appointed on compassionate grounds, i.e.
23.05.2002, against the permanent vacancy/post of
her deceased husband, late Shri Jai Kawar, is justified
of not? If not, what relief the workman, Smt. Bala, w/o
late Shri Jai Kawar is entitled to and from which date?"
2. In the reference order, the appropriate Government
commanded the parties to the dispute to file statement of
claim, complete with relevant documents, list of reliance
and witnesses with this Tribunal within 15 days of receipt
of the reference order and to forward a copy of such
statement of claim to the opposite parties involved in the
dispute. Despite directions, so, given, Smt. Bala opted not
to file her claim statement with the Tribunal.
3. Notice was sent to Smt. Bala by registered post on
27.12.2012, calling upon her to file claim statement before
the Tribunal on or before 17.01.2013. This notice was sent
to her through the union, located at P-2/624, Sultanpuri,
Delhi, the address provided by the appropriate Government
in order of reference. Neither the claimant nor the union
responded to the notice, so sent.
4. Since none came forward on behalf of the claimant
to file her claim statement, fresh notice was sent to her by
registered post on 22.01.2013 calling upon her to file claim
statement before the Tribunal on 11.02.2013. Notice was
again transmitted to the claimant by registered post on
12.02.2013 and 12.03.2013 asking her to file her claim
statement on or before 08.03.2013 and 09.04.2013
respectively, Lastly, notice dated 10.04.2013 was sent by
registered post commanding the claimant to file her claim
statement before the Tribunal on or before 24.05.2013.
Neither the postal articles, referred above, were received
back nor was it observed by the Tribunal that postal services
remained affected in the periode, referred above. Therefore,
every presumption lies in favour of the fact that the above
notices were served upon the claimant. Despite service of
these notices, claimant opted to abstain away from the
proceedings. No claim statement was filed on her behalf.
5. Since onus of the question referred for
adjudication was on the Corporation, it was called upon to
file its response to the reference order. In its response to
the reference order, Corporation projects that no notice of
demand was served on it prior to raising the dispute, hence
it has not acquired status of an industrial dispute.
Corporation further pleads that for want of espousal the
dispute has not acquired character of an industrial dispute.
Claimant is not entitled to get regularization in service of
the Corporation with effect from 23.05.2002, the date when
she was engaged as safai karamchari on casual basis. She
was not eligible to be appointed in the service of the
Corporation on compassionate grounds for want of vacant
post. Since there was no post available for her, she cannot
claim appointment on compassionate grounds as a matter
of right. However, she was given appointment on daily
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187
wage basis to accord her immediate help on humanitarian
grounds. In accordance with its policy, the Corporation
took steps for regularization of services of such casual
employees in a phased manner. The employees appointed
on humanitarian grounds form 01.04.2002 to 31.03.2003 were
regularized with effect from 01.04.2006. Since she was
engaged on 23.05.2002, claimant was regularized with effect
from 01.04.2006 vide office order dated 21.05.2007. She is
not entitled for regularization of her services with effect
from 23.05.2002. Reference order may be answered in its
favour, pleads the Corporation.
6. Arguments were heard at the bar. None came
forward on behalf of the claimant to advance arguments.
Shri Umesh Gupta, authorized representative, raised
submissions on behalf of the Corporation. I have given my
careful considerations to the arguments advanced at the
bar and cautiously perused the record. My finding on
issues involved in the controversy are as follows:
7. Corporation contests the dispute on the count
that no notice of demand was served on it prior to raising a
dispute before the Conciliation Officer. These facts also
remained uncontroverted. The object of the Industrial
Disputes Act, 1947 (in the short the Act) is to protect
workman against victimization by the employer and ensure
termination of industrial dispute in a peaceful manner. The
Act, however, does not provide for any set of social and
economic principles for adjustment of conflicting interests.
Such norms have been evolved and devised by industrial
adjudication, keeping in view the social and economic
conditions, the needs of the workmen, the requirement of
the industry, social justice, relative interests of the parties
and common good. There norms have given rights to the
industrial employees what may be called industrial rights,
as such rights may not be available at common law. Disputes
as to the conditions of employment can be resolved by
resorting to a technique known as collective bargaining.
This tool is resorted to between as employer or group or
employers and a bonafide labour union. Policy behind this
is to protect workmen as a class against unfair labour
practices. What imparts to the dispute of a workman the
character of an "industrial dispute" is that it affects the
right of the workmen as a class.
8. An industrial dispute comes into existence when
the employer and the workman are at variance and the
dispute/difference is connected with the employment or
non-employment, terms of employment or with conditions
of labour. In other words, dispute or difference arises when
a demand is made by the workman on the employer and it is
rejected by him and vice versa. In Sindhu Resettlement
Corporation Ltd. (1968(1) LLJ 834), the Apex Court has
held that mere demand, asking the appropriate Government
to refer a dispute for adjudication, without being raised by
the workmen with their employer, regarding such demand,
cannot become an industrial dispute. Hence, an industrial
dispute cannot be said to exist until and unless a demand
is made by the workman or workmen on the employer and
it has been rejected by him. In Fedders Lloyd Corporation
Pvt. Ltd. (170 Lab. I.C. 421), High Court of Delhi went a step
ahead and held that "....demand by the workman must be
raised first on the management and rejected by it, before an
industrial dispute can be said to arise and exist and that the
making of such a demand to the Conciliation Officer and
its communication by him to the management, who rejected
the demand, is not sufficient to constitute an industrial
dispute."
9. The above decision was followed by Orissa High
Court in Orissa Industries Pvt. Ltd. (1976 Lab. I.C. 285) and
Himachal Pradesh High Court in Village Paper Pvt. Ltd.
(1993 Lab. I.C. 99). However, the Apex Court in Bombay
Union of Journalists [1961 (2) LLJ 436] had ruled that an
industrial dispute must be in existence or apprehended on
the date of reference. If, therefore, a demand has been made
by the workman and it has been rejected by the employer
before the date of reference, whether direct or through the
Conciliation Officer, it would constitute an industrial dispute.
In Shambhunath Goyal [1978(1)LLJ484], the Apex Court
appreciated facts that the workman had not made a formal
demand for his reinstatement in service. However, he had
contested his dismissal before the Enquiry Officer and
claimed reinstatement. Against the findings of the Enquiry
Officer, he preferred an appeal to the Appellate Authority,
claiming reinstatement on the ground that his dismissal
was bad in law. Then again, he claimed reinstatement before
the Conciliation Officer in the course of conciliation
proceedings, which was contested by the employer.
Appreciating all these facts, the Apex court inferred that
there was impeccable evidence that the workman had
persistently demanded reinstatement, rejection of which
brought an industrial dispute into existence.
10. In New Delhi Tailor Mazdoor Union [1979 (39)
FLT 195], High Court of Delhi noted that Shambunath Goyal
had not overruled Sindhu Resettlement Pvt. Ltd. But it had
distinguished it on facts. It was also pointed out that
devision of three Judges bench in Sindhu Resettlement
Pvt. Ltd. could not have been overruled by two Judge
bench in Shambunath Goyal. The High Court concluded
that decision in Sindhu Resettlement Pvt. Ltd., in case of
any conflict between the two decisions, must prevail. The
High Court held that making of the demand by the workman
on the management was sine qua non for giving rise to an
industrial dispute.
11. The High Court of Madras in Management of
Needle Industries [1986 (1) LLJ 405], has held that dispute
or difference between management and the workman,
automatically arises when the workman is dismissed from
service. His dismissal per se creates a dispute or difference
between the management and the workman. The Court
further observed that "it is nowhere stipulated in the Act,
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[PART II—SEC. 3(ii)]
particular in section 2(k), that existence of the dispute as
such is not enough but then there should be a demand by
the workman on the management to give rise to an industrial
dispute". However, this decision appears to be inconsistent
with the ratio of decision in Bombay Union of
Journalists (supra) and Sindhu Resettlement (supra). No
doubt, for existence of an industrial dispute, there should
be a demand by workman and refusal to grant it by the
management. However, a demand should be raised, cannot
be a legal notion of fixity and rigidity. Grievances of the
workman and demand for its redressal must be
communicated to the management. Means and mechanism
of the communication adopted are not matters of much
significance, so long as demand is that of the workman and
it reaches the management. Reference can be made to the
precedent in Ram Krishna Mills Coimbatore Ltd. [1984(2)
LLJ 259].
12. The Act nowhere contemplates that the industrial
dispute can come into existence in any particular, specific
or prescribed manner nor there is any particular or prescribed
manner in which refusal should be communicated. For an
industrial dispute to come into existence, written claim is
not sine qua non. To read into the definition, requirement
of written demand for bringing an industrial dispute into
existence would tantamount to rewriting the section,
announced the Apex Court in Shambunath Goyal (supra).
In other words, oral demand and its rejection will as much
bring into existence an industrial dispute, as written one. If
facts and circumstances of the case show that the workman
had been making a demand, which the management had
been refusing to grant, it can be said that there was an
industrial dispute between the parties.
13. Since the claimant had not come forward to project
that demand notice was served on the Corporation, under
these circumstances, stand taken by the Corporation is to
be believed. The Corporation projects that no notice of
demand was served on it, before industrial dispute was
raised before the Conciliation Officer. Thus, it is emerging
over the record that it has not been established that demand
was raised on the Corporation, which was rejected by it
and as such, dispute has not acquired status of an industrial
dispute.
14. The Corporation for further argues that the
dispute has not acquired status of an industrial dispute for
want of espousal of the claim by the union or considerable
number of the workmen in its establishment. For an answer
to this proposition, definition of the term ‘industrial dispute’
is to be construed. Section 2(k) of the Industrial Disputes
Act, 1947 (in short 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 workman, 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;"
15. The definition of "industrial dispute" referred
above, can be divided into four parts, viz. (i) factum of
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".
16. The definition of "industrial dispute" is worded
in very wide terms and unless they are narrowed by the
meaning given to word "workman" it would seem to include
all "employers", all "employments" and all "workmen",
whatever the nature or scope of the employment may be.
Therefore, except in the case where there can be a dispute
between the employers and employers and workmen and
workmen, one of the parties to an industrial dispute must
be an employee or a class of employees. The first point,
therefore, to be noted, perhaps self evident, is that the
phrase "employer and workmen", the plural may include
singular on either side or any permutation of singular or
plural, the masculine including the feminine. In order,
therefore, to determine as to whether a controversy or
difference or a dispute is an ‘an industrial dispute’ or not, it
must first be determined whether the workman concerned
or workmen sponsoring his cause satisfy the conditions
of clause (s) of section 2 of the Act. Here in the case the
Corporation does not dispute status of the claimant to be
of a workman within the meaning of section 2(s) of the
Act.
17. The Apex Court put gloss on the definition of
"industrial dispute" in Dimakuchi Tea Estate [1985 (1) 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 (i) 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 workman raised a
dispute as against their employment, the person regarding
whose employment, non-employer, 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
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189
observations made by them Apex Court are to be 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."
18. 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 workman 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 workman. 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 any 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 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.
19. The expression "industrial disputes" 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
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".
20. 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].
21. 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
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[PART II—SEC. 3(ii)]
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".
22. 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
individual 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].
23. Here in the case, not even an iota of facts are
brought over the record to the effect that the union took
up the cause of the claimant as their own. It is also not
shown that the members of the union had shown their
collective will in favour of the cause of the claimant. Thus
it is evident that there is a complete vacuum of facts to the
effect that the union espoused the cause of the claimant.
Resultantly there is no material to conclude to the effect
that the dispute acquired status of a an industrial dispute.
The reference is liable to be answered against the claimant
on that score.
24. Now coming to facts, when the claimant moved
an application for appointment on compassionate grounds,
no vacancy was available for her. The Corporation can
offer 5% of the posts to such applicants. Since the case of
the claimant could not be considered for compassionate
appointment, for want of a vacant post, the Corporation
granted her appointment on daily wage basis on
humanitarian grounds. Thus, it is emerging over the record
that her appointment on daily wage basis was not against
the policy of compassionate appointment. The Corporation
granted appointment to the claimant on humanitarian
grounds, with a view to help her. When a regular post was
available for her, her case was considered for regularization.
Her services were regularized with effect from 01.04.2006,
vide office order dated 21.05.2007. Phased manner
regularization policy of the Corporation to regularize
services of casual employees, appointed on humanitarian
grounds, was adopted by the Corporation vide its resolution
No. 273 dated 27.06.1988. This policy of regularization of
such employees in a phased manner came to the rescue of
the claimant. Regularization of services with effect from
01.04.2006 cannot be held to be discriminatory or
unwarranted. Claimant could not project a case for
regularization of service with effect from 23.05.2002, since
no permanent post was lying vacant on that date. Therefore,
action of the Corporation for regularizing services of the
claimant with effect from 01.04.2006 is found to be justified
as well as legal.
25. Claimant has not come out with any case to
project that she is entitled to regularization of service from
23.05.2002. On the other hand, the Corporation could
establish that she was granted appointment on casual basis,
on humanitarian grounds on 23.05.2002. Her services were
regularized pursuant to policy approved vide resolution
No. 273 dated 27.06.1988. Thus, it is crystal clear that the
claimant is not entitled to regularization of her services
with effect from 23.05.2002. She is not entitled to any relief.
An award is passed in favour of the corporation. It be sent
to the appropriate Government for publication
DR. R. K. YADAV, Presiding Officer
Dated: 27.09.2013
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191
New Delhi, the 26th December, 2013
S.O. 109.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 176/
2012) of the Central Government Industrial Tribunal/Labour
Court No. 1, New Delhi now as shown in the Annexure in
the Industrial Dispute between the employers in relation to
the management of The Secretary, DDA and their workman,
which was received by the Central Government on
26.12.2013.
[No. L-42012/41/2012-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE DR. R.K. YADAV, PRESIDING OFFICER,
CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL NO. 1, DELHI
I.D. No. 176/2012
Smt. Rajo
W/o Late Shri Surjeet,
Nagar Nigam Karamchari Sangh,
Delhi Pradesh, P-2/624,
Sultanpuri, Delhi
...Workman
Versus
The Secretary,
Delhi Development Authority,
Vikas Sadan, I.N.A. Market,
New Delhi.
...Management
AWARD
On Shri Surjit Singh was working with Delhi
Development Authority (in short the Authority) as a casual
worker. He was converted into a work charged employee
on 01.08.1980. He expired on 13.07.1982. The Authority paid
a sum of Rs. 10,000.00 under the head 'Group Insurance
Scheme' to his widow, namely Smt. Rajo Devi. Despite her
request, the Authority opted not to grant family pension in
her favour. She approached the Nagar Nigam Karamchari
Sangh (in short the Sangh) for redressal of her grievance.
The Sangh raised a dispute before the Conciliation Officer,
who entered into conciliation proceedings. Since the
Authority contested the claim, conciliation proceedings
ended into a failure. On consideration of failure report
submitted by the Conciliation Officer, the appropriate
Government referred the dispute to this Tribunal for
adjudication, vide order No. L-42012/41/2012-IR(DU),
New Delhi dated 16.04.2012, with following terms:
"Whether action of the management of Delhi
Development Authority (DDA) in denying ex-gratia
family pension to Smt. Rajo Devi, wife of late
Shri Surjit Singh, ex-safai Karamchari as per laid down
policy and guidelines of Government of India with
effect from 01.01.1986 is justified or not? If not, what
relief the workman is entitled to and from which date."
2. Notice was sent to Smt. Rajo Devi by registered
post on 05.12.2012, calling upon her to file claim statement
before the Tribunal on or before 01.01.2013. This notice
was sent to her through the Sangh, at P-2/624, Sultanpuri,
Delhi, the address provided by the appropriate Government
in order of reference. Neither the claimant nor the Sangh
responded to the notice, so sent.
3. Since none came forward on behalf of the claimant
to file her claim statement, fresh notice was sent to her by
registered post on 03.01.2013 calling upon her to file claim
statement before the Tribunal on 24.01.2013. Notice was
also transmitted to the claimant by registered post on
28.01.2013 asking her to file her claim statement on or before
09.02.2013. Lastly, notice dated 22.02.2013 was sent by
registered post commanding the claimant to file her claim
statement before the Tribunal on or before 11.03.2013.
Neither postal articles, referred above, were received back
nor was it observed by the Tribunal that postal services
remained affected in the period, referred above. Therefore,
every presumption lies in favour of the fact that the above
notices were served upon the claimant. Despite service of
these notices, claimant opted to abstain away from the
proceedings. No claim statement was filed on her behalf.
4. Since onus of the question referred for adjudication
was there on the Authority, it was called upon to file its
response to the reference order. In its response the
Authority submitted that Shri Surjit Singh was not a
permanent exployee. He was converted to work charged
establishment as Safai Karamchari on 01.8.1980. He expired
on 13.07.1982. As per CCS (Pension) Rules 1972, family
pension is not applicable to a person who is employed on
casual and daily rate basis. Such person is entitled to benefit
of contributory provident fund. Since Shri Surjit Singh was
not appointed on work charged roll, his widow is not
entitled to family pension. A sum of Rs. 10,000.00 was paid
to Smt. Rajo Devi, widow of the deceased, under the head
'Group Insurance Scheme', which amount was received by
her. It has been claimed that the dispute raised by
Smt. Rajo Devi, merits dismissal.
5. Arguments are heard at the bar. None came forward
on behalf of the claimant to advance arguments.
Shri Deepak Kumar Dhingra, Authorized representative,
advanced arguments on behalf of the Authority. I have
given my careful consideration to the arguments advanced
at the bar and cautiously perused the record. My findings
on issues involved in the controversy are as follows:—
6. As reported by the Authority, Shri Surjit Singh
was working as Safai Karamchari on casual basis. He was
converted to work charged Safai karamchari on 01.08.1980.
He expired on 13.07.1982. The authority claims that he was
not a civil servant, hence his widow is not eligible for family
192
THE GAZETTE OF INDIA : JANUARY 11, 2014/PAUSA 21, 1935
[PART II—SEC. 3(ii)]
pension. In view of these facts, question for consideration
would be as to what was the status of Shri Surjit Singh,
who was working on work charged establishment of the
Authority. It is a matter of common knowledge that the
Authority had adopted rules contained in manual III,
applicable to Central Public Works Department. Work
charged establishment has been defined therein in the
manual as follows:—
"Broadly speaking, work charged establishment
means that establishment whose pay, allowances etc.
are directly chargeable to 'works'. Work charged staff
is employed on the actual execution of specific work,
sub-work of specific work etc. The cost of work
charged establishment should invariably be shown
as a separate sub head of the estimate for a work. In
other respects, work charged staff is comparable to
regular categories."
7. Posts in work charged establishment have been
classified into group 'C' or group 'D' vide office memorandum
No. 22/09/2002-EC X dated 20.05.2002 issued by the Director
General (CPWD), New Delhi relevant extract of the same
are reproduced thus:—
"For the purpose of grant of leave, membership of
trade union etc., the employee in work charged
establishment are regarded as industrial staff and
covered by labour laws as applicable to them.
Depending on the skill involved in the posts attached
to them, work charged posts have been categorized
as unskilled, semi-skilled, skilled, highly skilled and
skilled supervisory.
Fundamental Rules and Supplementary Rules are also
applicable to the work charged staff. Ministry of Law
have opined that work charged employees in
Central Public Works Department are civil servants
in terms of Article 311 of the Constitution.
8. The above provisions of the manual make it
apparent that a work charged employee is a civil servant.
Thus, it is crystal clear that Shri Surjit Singh was a civil
servant working on group 'D' post, on being converted to
work charged Safai Karamchari by the Authority on
01.04.1980. Claim put forward by the Authority that he was
a casual employee in August 1980 in unwarranted. As per
facts presented. Shri Surjit Singh expired on 13.07.1982.
Question for consideration would be as to whether
Smt. Rajo Devi is entitled to family pension? Family pension
is granted to the family of a Government service in the
event of his death while in service or after retirement. Family
Pension Scheme 1964 was introduced with effect from
01.01.1964. As per the Scheme, in the event of death of a
Government servant while in service or after retirement, his
family will get family pension if—
(i) In the case of death while in service—
(a) He has completed a minimum period of one year's
service; or
(b) He had been medically examined and found fit for
appointment in Government service when his death
occurred before completion of one years' service.
(ii) In case of death after retirement—
He was on the date of death in receipt of pension or
compassionate allowance.
9. Family pension is payable to the family of the
deceased Government servant/pensioner. In the scheme,
family has been defined to mean—
(i) Wife (whether marriage took place before or after
retirement) in the case of male government servant.
(ii) Husband whether marriage took place before or after
retirement) in the case of female Government service.
(iii) Unmarried son(s)/unmarried daughters (born before
or after retirement) who have not attained the age of
25 years.
(iv) Widowed daughters/divorced daughter (born before
or after retirement) without any age restriction.
(v) Parents who were wholly dependent on the
Government servant when he was alive, provided
that the deceased Government servant had left behind
neither the widow/widower nor an eligible son or
daughter or a widowed/divorced daughter and that
the earnings of the parents is not more than
Rs. 3500.00 per month.
Unmarried son(s) below the age of 25 years or married
daughter below the age of 25 years include such sons and
daughters adopted before or after retirement. Wife or
husband shall include respectively judicially separated wife
and husband.
10. From January, 2006, period for which family
pension is payable is as follows:—
(i) In the case of childless widow, for life or till her
independent income from all sources becomes equal
to Rs. 3500.00 per month or more, i.e. even after
remarriage.
(ii) In the case of widow with child(ren) or widower upto
to the date of death or remarriage, whichever is earlier.
(iii) In the case of unmarried son/unmarried daugthter,
untill he/she attains age of 25 years or upto to the
date of his/her marriage or till the date from which
her/his income becomes equal to Rs. 3500.00 or more
per month.
(iv) In the case of widow (including widowed/disabled)/
divorced daughter(s) (including disabled) for life up
to the date of her remarriage or till the date his/her
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 11] 2014@ikS"k 21] 1935
193
income becomes equal to Rs. 3500.00 or more per
month, or death, whichever is earlier. Such daughter
shall not be required to come back to her parental
home.
(v) In the case of wholly dependent parents (till his/her
death).
11. When facts of the present controversy are gauged
through provisions of the scheme referred above, it came
to light that Shri Surjit Singh rendered continuous service
of 1 year, 11 months and 13 days. Therefore, it is evident
that on the date of his death, he had completed more than
one years' continuous service. Smt. Rajo Devi, happens to
be his widow and falls within the definition of ‘family’,
given by the scheme for the purpose of family pension.
Resultantly, it is crystal clear that Smt. Rajo Devi was entitled
for family pension. The Authority opted not to undertake
any exercise to the effect that Smt. Rajo Devi had
independent income from all sources equal to Rs. 3500.00
or more. Therefore, it is evident that the Authority was not
at all justified when it denied family pension to Smt. Rajo
Devi. Action of the Authority in denying family pension to
Smt. Rajo Devi is voilative of the Family Pension Scheme,
1964.
12. It has not come over the record that Smt. Rajo
Devi had no income or her income from all independent
sources is less than Rs. 3500.00 per month. Therefore, the
Authority is supposed to undertake an exercise to ascertain
income of Smt. Rajo Devi and in case she does not have
any income or her income is less than Rs. 3500.00 per menth,
she is entitled to family pension. As per the scheme normal
rate of family pension will be @ 30% of pay of the deceased
employee, which shall not be less than Rs. 3500.00 per
month. Consequently, the Authority is commanded to
undertake the exercise to ascertain whether Smt. Rajo Devi
has independent income which is less than Rs. 3500.00 per
month from all sources and when facts are found to be in
affirmative, grant family pension to her. An award is,
accordingly, passed. It be sent to the appropriate
Government for publication.
Dated : 01.10.2013
DR. R.K. YADAV, Presiding Officer
ubZ fnYyh] 26 fnlEcj] 2013
dkñvkñ 110.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj egkizca/kd]
Hkkjrh; jk"Vªh; jktekxZ izkf/kdj.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 ,oa Je U;k;ky; lañ&1 iapkV
¼lanHkZ la[;k 324@2011½ dks izdkf'kr djrh gS] tks dsUnzh; ljdkj
dks 26@12@2013 dks izkIr gqvk FkkA
[lañ ,y&42012@67@2011&vkbZvkj ¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 26th December, 2013
S.O. 110.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the
Central Government hereby publishes the award
(Ref. No. 324/2011) of the Central Government Industrial
Tribunal/Labour Court No. 1, New Delhi now as shown in
the Annexure in the Industrial Dispute between the
employers in relation to the management of The Manager,
NHAI and their workman, which was received by the
Central Government on 26/12/2013.
[No. L-42012/67/2011-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE DR. R.K. YADAV, PRESIDING OFFICER,
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL
NO. 1, DELHI
I.D. No. 324/2011
Sh. Jagir Singh S/o Sh. Ranbir Singh,
R/o Vill. & Post-Paksama,
Rohtak-124001.
....Claimants
Versus
1.
The Manager,
National Highway Authority of India,
Plot No. 3, G-5-6, Sector 10,
Papankala, Dwarka,
New Delhi-110075.
2.
M/s. D.S. Construction Limited,
C-66, South Extension-II,
New Delhi.
...Managements
AWARD
Concession agreement, executed between National
Highway Authority of India (in short the Authority) and
M/s. D.S. Construction Ltd., which company is now known
as M/s. DSC Ltd. (in short the contractor), empowered the
contractor to collect toll tax at Delhi Gurgaon Expressway.
To carry out the work awarded to the contractor by the
Authority, former engaged its employees. In April 2010,
Shri Jagir Singh served a notice of demand on the contractor
as well as the Authority projecting therein that he was
employed as DG Operator by the Authority and working as
such for them at IFFCO Chowk, Gurgaon. He details that in
a clandestine manner, he was shown to be an employee of
the contractor. It was further asserted therein that his
services were dispensed with without any rhyme or reason
on 14.01.2008. He projects a claim for reinstatement in
service with continuity and full back wages. His demand
was not conceded to, either by the Authority or the
contractor. He raised an industrial dispute before the
Conciliation Officer. Since his claim was contested by the
194
THE GAZETTE OF INDIA : JANUARY 11, 2014/PAUSA 21, 1935
[PART II—SEC. 3(ii)]
Authority as well as the contractor, conciliation
proceedings ended in failure. On consideration of failure
report, submitted by the Conciliation Officer, the appropriate
Government referred the dispute to this Tribunal for
adjudication, vide order No. L-42012/67/2011-IR(DU), New
Delhi, dated 16.09.2011, with following terms:
"Whether there was any employer-employee
relationship between Shri Jagir Singh and
management of National Highway Authority of India,
Delhi? If so, whether workman has completed 240
days service in the consecutive 12 months period? If
yes, whether the action of the management of
National Highway Authority of India, Delhi, in
terminating the service of Shri Jagir Singh, ex-DG
Operator, with effect from 14.01.2008 is legal and
justified? What relief the workman is entitled to?"
2. Claim statement was filed by Shri Jagir Singh,
pleading therein that he was appointed by the Authority
for a permanent job about 20 years ago. He was appointed
as DG Operator. No appointment letter was issued in his
favour. At the time of his appointment, the Authority
obtained his signatures on certain printed as well as plain
papers, creating an impression for him that those
documents were required to complete service record. He
presents that the Authority may use those documents for
illegal designs.
3. Claimant asserts that wrong service record was
prepared by the Authority. Since he is ill educated, the
Authority took undue advantage of that fact, and
transferred his services under the contractor. The contractor
used to take 12 hours of work from him. Attendance card
and benefits towards PF etc., were not accorded to him.
The contractor also obtained his signatures on certain
printed as well as blank papers, who may also use those
documents for illegal designs. According to the claimant,
the Authority as well as the contractor carry out combined
business to collect toll tax on Gurgaon-Jaipur Expressway.
4. He was deputed to work at IFFCO Chowk, Gurgaon
to run a generator, pleads the claimant. He was carrying out
his duties efficiently. Suddenly, his services were dispensed
with on 14.01.2008. Neither any notice nor charge sheet was
served upon him. Retrenchment compensation was also not
paid to him. He served the Authority till termination of his
service. He approached the Authority many a times for
reinstatement of his service, but to no avail.
5. Since he is not well versed with law, he was forced
to cool his heels at his residence. Later on, the met with an
accident and remained confined to bed for many months.
When he came to know about his rights, he approached
the Conciliation Officer. He seeks reinstatement in service
of the Authority with continuity and full back wages.
6. Claim was demurred by the Authority, pleading
that no relationship of employers and employee ever existed
between the parties. Claimant files claim statement on
concocted and false facts. The Authority denied that the
claimant was ever employed or appointed by them, as
claimed. There was no occasion for the Authority to obtain
signatures of the claimant on some printed as well as blank
papers, as alleged by him. In view of above factual
proposition, there cannot be any question of using those
alleged documents for illegal designs. It has been denied
that service of the claimant was transferred under control
and supervision of the contractor. When he was not
appointed by the Authority, there was no occasion to issue
attendance card and grant him PF benefits etc. He was
never deputed to work at IFFCO Chowk, Gurgaon, to operate
generator. Since he was never employed by the Authority,
there was no occasion to dispense with his services on
14.01.2008, as claimed. It has been prayed that claim, being
false and frivolous, may be dismissed.
7. Counter was also filed by the contractor on the
same lines as detailed by the Authority, in its written
statement. It has been asserted that the claimant was never
appointed by the contractor. It is disputed that services of
the claimant were transferred under supervision and control
of the contractor by the Authority. It has further been
disputed that the contractor obtained signatures of the
claimant on some printed as well as blank documents, which
can be used for illegal purposes. Contractor projects that it
does not carry out joint business with the Authority.
8. Contractor presents that it collectes toll tax on
Delhi-Gurgaon Expressway and not at Gurgaon-Jaipur
Expressway. Toll tax is collected by it as part of concession
agreement executed between it and the Authority. Since
the claimant was never appointed, there was no occasion
to avail his services at IFFCO Chowk, Gurgaon. Claim put
forth by the claimant, to the effect that his services were
dispensed with on 14.01.2008, is false to his own
knowledge. His claim statement may be dismissed, pleads
the contractor.
9. On pleadings of the parties, following issues were
settled:
(1) Whether there was relationship of employer and
employee between the claimant and National
Highway Authority of India?
(2) Whether the claimant was put in the employment of
M/s. D.S. Construction Ltd. by National Highway
Authority of India? If yes, its effects.
(3) Whether the claimant has rendered continuous
service of 240 days in preceding 12 months from the
date of termination of his services?
(4) Whether termination of services of the claimant
amounts to retrenchment?
(5) As in terms of reference.
¹Hkkx II—[k.M 3(ii)º
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195
10. Case was listed for evidence of the parties serveral
times. From 10.05.2012 till 07.01.2013, the claimant opted
not to attend the proceedings. During that period, case
was adjourned six times for evidence of the claimant.
However, not even a single witness was brought forward
to testify facts in his favour. On 07.01.2013, Shri Ajmer
Singh authorized representative of the claimant, appeared
and sought adjournment to adduce evidence on behalf of
the claimant. Thereafter, case was again adjourned for six
times, but neither the claimant not his authorised
representative opted to attend the proceedings. Since none
came forward on behalf of the claimant, the Tribunal was
constrained to proceed with the matter under rule 22 of
Industrial Disputes (Central) Rules, 1957 and to close
evidence of the claimant.
11. Shri Pramod Kumar Kaushik, Manager, tendered
his affidavit dated 05.11.2012, as evidence on behalf of the
Authority. Shri Jorawar Singh filed his affidavit dated
08.10.2012 as evidence, on behalf of the contractor. No
other witness was brought forward either by the Authority
or the contractor.
12. Arguments were heard at the bar. Shri Arun Yadav,
authorized representative, advanced arguments on behalf
of the Authority. Shri Rajiv Kumar, authorised
representative, raised submissions on behalf of the
contractor. As projected above, none came forward on
behalf of the claimant to make his submissions. I have
given my careful considerations to the arguments advanced
at the bar and cautiously perused the record. My findings
on issues involved in the controversy are as follows:—
Issue No. 1
13. For answer to the proposition, question for
consideration would be as to how relationship of employer
and employee are created? For an answer to this
proposition, it is to be taken note of as to how a contract of
service is entered into . The relationship of employer and
employee is constituted by a contract, express or implied
between employer and employee. A contract of service is
one in which a person undertakes to serve another and to
obey his reasonable orders within the scope of the duty
undetaken. A contract of employment may be inferred from
the conduct which goes to show that such a contract was
intended although never expressed and when there has, in
fact, been employment of the kind usually perfomed by the
employees. Any such inference, however, is open to rebuttal
as by showing that the relation between the parties
concerned was on a charitable footing or the parties were
relations or partners or were directors of a limited company
which employed no staff. While the employee, at the time,
when his services were engaged, need not have known the
identity of his employer, there must have been some act or
contract by which the parties recognized one another as
master or servant.
14. Not to talk projecting evidence on above
parameters on creation of relationship of employer and
employee between the parties. Claimant opted not to
adduce any evidence. Onus was there on the claimant to
establish that relationship of employer and employee were
created between him and the Authority. To discharge that
onus, no evidence of any sort was produced by the
claimant. There had been complete vacuum of evidence
on the issue. On the other hand, Shri Kaushik swears in his
affidavit dated 05.11.2012 to the effect that the claimant
was never employed by the Authority in any manner. No
appointment letter, employment card and EPF card etc. was
issued. The Authority has no concern with the claimant. It
has also been affirmed by Shri Kaushik that the claimant
was never deputed to work as generator operator at IFFCO
Chowk, Gurgaon by the Authority.
15. Shri Jorawar Singh also asserts in his affidavit
dated 08.10.2012 that the claimant was never appointed by
the contractor. He denies that the Authority ever deputed
the claimant to work under supervision and control of the
contractor. There was no such arrangement between the
Authority and the contractor, under which the former may
depute its employees to work under control and supervision
of the latter. Claimant never worked for the contractor at
IFFCO Chowk, Gurgaon.
16. As projected above, there is no evidence at all
from the side of the claimant to establish that he was ever
appointed by the authority as generator operator. In the
same way, claimant has not been able to establish that he
ever worked as generator operator for the Authority or the
contractor. Claimant absolutely failed to establish that he
was ever employed by the Authority or the contractor to
render services as generator operator. Resultantly, it is
crystal clear that the claimant failed to discharge onus
resting on him. contra to it. Authority denies relationship
of employer and employee between the parties. It is
concluded that no relationship of employer and employee
has been established between the claimant and the
Authority. Issue is, therefore, answered in favour of the
Authority and against the claimant.
Issue No. 2
17. Since the claimant has not been able to establish
relationship of employer and employee between him and
the Authority, there was no situtation wherein evidence to
this effect may come on record that his services were put
under control an supervision of the contractor by the
Authority. Resultantly, it is absolutely clear that the claimant
could not discharge onus to establish that his services
were clandestinely put under the supervision and control
of the contractor by the Authority. Issue is, therefore,
answered in favour of the authority and the contractor and
against the claimant.
196
THE GAZETTE OF INDIA : JANUARY 11, 2014/PAUSA 21, 1935
[PART II—SEC. 3(ii)]
Issue No. 3, 4 and 5
18. As relationship of employer and employee was
not established between the Authority or the contractor
on the one hand and the claimant on the other, above issues
become superfluous. There is no occasion to adjudicate
these issue. In view of the findings recorded on Issue No.
1 & 2, it is announced that the claimant is not entitled to
any relied, much less the relief of reinstatement in service
of the Authority. His claim statement is brushed aside. An
award is passed in favour of the Authority and against the
claimant. It be sent to the appropriate Government for
publication.
Dated : 30.7.2013
DR. R.K. YADAV, Presiding Officer
ubZ fnYyh] 26 fnlEcj] 2013
dkñvkñ 111.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj Hkkjrh; daVsuj
dkWiksZjs'ku ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds
chp vuqcaè esa fu£n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèdj.k ,oa Je U;k;ky; lañ&1 ds iapkV ¼lanHkZ la[;k 34@2013½
dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 26@12@2013 dks izkIr
gqvk FkkA
[lañ ,y&42011@178@2012&vkbZvkj¼Mhñ;wñ½]
ihñ dsñ os.kqxksiky] vuqHkkx vfèdkjh
New Delhi, the 26th December, 2013
S.O. 111.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. no. 34/2013)
of the Central Government Industrial Tribunal and Labour
Court No. 1, New Delhi now as shown in the Annexure in
the Industrial Dispute between the employers in relation to
the management of M/s. Bhartiya container Corpn. Ltd.
and their workman, which was received by the Central
Government on 26/12/2013.
[No. L-42011/178/2012-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE DR. R.K. YADAV, PRESIDING OFFICER,
CENTRAL GOVT. INDUSTRIAL TRIBUNAL NO. 1
DELHI
I.D. No. 34/2013
Shri Bale Ram,
C/o General Secretary,
Indian Steel and Metal Workers Union,
1800/9, Govind Puri Extn., Kalkaji,
New Delhi-110019.
....Claimant
Versus
1.
M/s. Shogun Security Services,
222-H, Sainik Farms,
New Delhi-110062.
2.
M/s. Bhartiya Container Corpn. Ltd.
Domestic Container Depot, Okhla,
Phase II, New Delhi-110020.
.......Management
AWARD
A security guard working with M/s Shogun Security
Services (hereinafter referred to as the contractor) was sent
to perform his duties by the contractor at the premises of
M/s Bharat Container Corporation (hereinafter referred to
as the principal employer), at its Domestic Container Depot,
Okhla Phase II, New Delhi. While performing his duties at
the aforesaid Depot, the security guard committed lapses
in his duties. His super supervisor checked him and advised
him to remain off from duties for two days. He abused the
supervisor, besides criminally intimidating him. After two
days, the security guard met his supervisor near Sarita
Vihar Metro Station, New Delhi. He felt enraged and
assaulted his supervisor. As a result of the assault, he started
bleeding from his head. The supervisor lodged a report at
Police Station, Sarita Vihar, New Delhi. He also reported the
matter to the contractor. Taking stock of entire facts, the
contractor was of the view that since Okhla Depot as a
place of high value cargo, the security guard were not fit
for duties there. Services of the security guard was
terminated by the contractor on 05.09.2011. The security
guard felt aggrieved by that action and raised an industrial
dispute before the Conciliation Officer. During the course
of conciliation proceedings, wages and other dues of the
security guard were paid by the contractor. However, the
contractor resisted his claim for reinstatement in service,
which resulted into failure of conciliation proceedings. On
consideration of failure report, submitted by the
Conciliation Officer, the appropriate Government referred
the dispute to this Tribunal for adjudication, vide order
No. L-42011/178/2012-IR(DU), New Delhi dated 13.02.2013,
with following terms:
"Whether action of the management of M/s Shogun
Security Services in terminating employment of the
workman Shri Bale Ram S/o Shri Hari Lal, with effect
from 03.09.2011 is legal or justified? To what relief
the workman is entitled to?"
2. In the reference order, the appropriate Government
commanded the parties to the dispute to file statement of
claim, complete with relevant documents, list of reliance
and witnesses with this Tribunal within 15 days of receipt
of the reference order and to forward a copy of such
statement of claim to the opposite parties involved in the
dispute. Despite directions, so given, Shri Bale Ram opted
not to file his claim statement with the Tribunal.
¹Hkkx II—[k.M 3(ii)º
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197
3. Notice was sent to Shri Bale Ram by registered
post on 07.03.2013, calling upon him to file claim statement
before the Tribunal on or before 04.04.2013. This notice
was sent to him through the General Secretary, Indian Steel
and Metal Workers Union, 1800/9, Govindpuri Extension,
Kalkaji, New Delhi, the address provided by the appropriate
Government in order of reference. Neither the claimant nor
the union responded to the notice, so sent.
4. Since none came forward on behalf of the claimant
to file his claim statement, fresh notice was sent to him by
registered post on 05.04.2013 calling upon him to file claim
statement before the Tribunal on 02.05.2013. Notices were
again transmitted to the claimant by registered post on
07.05.2013 and 19.06.2013 asking him to file his claim
statement on or before 12.06.2013 and 22.07.2013
respectively. Lastly, notice dated 23.07.2013 was sent by
registered post commanding the claimant to file his claim
statement before the Tribunal on or before 29.08.2013.
Neither the postal articles, referred above, were received
back nor was it observed by the Tribunal that postal services
remained affected in the period, referred above. Therefore,
every presumption lies in favour of the fact that the above
notices were served upon the claimant. Despite service of
these notices, claimant opted to abstain away from the
proceedings. No claim statement was filed on her behalf.
5. When claim statement was not filed by the security
guard, contractor was called upon to file his response to
the reference order. The contractor filed his response before
the Tribunal pleading therein that the claimant was deputed
to work as security guard at Domestic Container Depot,
Okhla Phase II, New Delhi, which depot belonged to Bharat
Container Corporation Ltd. While performing his duties,
the security guard misbehaved with the security supervisor
on 02.09.2011. He did not attend to his duties for next two
days. On 05.09.2011, he assaulted the security supervisor,
Shri Jagroop Singh, who lodged a complaint against him,
alongwith his medical examination report. Considering the
fact that Shri Bale Ram was deputed at the aforesaid Depot,
which was place of high value cargo and mass of labour,
drivers and traders were to be dealt with, it was thought
expedient to dispense with the services of Shri Bale Ram.
Therefore, his services were terminated. He was called many
a times to collect his duties, but he did not turn up. As per
directions of the labour authorities, he turned up on
04.01.2012 and collected his dues, which were paid him
through cheque nos. 157060, 157106, 157350 and 157391,
all drawn on Bhikaji Cama Place branch of Corporation
Bank. Since his dues stood paid, he is not entitled to any
relief. Even otherwise contract agreement with the principal
employer expired on 31.08.2012 and as such, claimant
cannot be engaged on the post of security guard. Aforesaid
facts make it clear that there is no case for reinstatement in
service, pleads the contractor.
6. Contractor projects that the services of Shri Bale
Ram were dispensed with on 05.09.2011 by oral order when
a complaint was lodged against him by the supervisor.
Copy of the complaint, annexed with the response,
highlights that Shri Bale Ram assaulted his supervisor, to
whom he caused severe head injuries. Consequently, above
facts bring it to the light of the day that the security guard
committed misconduct, which made the contractor to
dispense with his services. Therefore, question needs to
be considered as to whether the contractor dispensed with
the services of the claimant as a cloak of discharge. For an
answer to this proposition, it would be expedient to have a
glance on the law in that regard. Expressions 'discharge'
and 'dismissals' have acquired definite connotations in the
industrial jurisprudence. The word 'dismiss' is understood
to mean termination of service of a workmen as a measure
of punishment for an act of misconduct. But the word
'discharge' is ambiguous, which is used to mean termination
of services of a workman as a punishment milder than
dismissal and also to mean termination of service in terms
of the contract of employment or discharge simpliciter.
Therefore, when an employer terminates service of a
workman for the reason that he was a temporary employee
and his services were no longer required, it is a case of
discharge simpliciter under the contract.
7. For adjudication of an industrial dispute, the
industrial adjudicator has to decide as to whether
discharge of an employee was discharge simpliciter or a
punishment of discharge has been dressed in the cloak of
discharge simpliciter by wording the order is innocuous
language. He has to decide as to whether the order based
upon loss of confidence is a disguise to cover up the
inability to establish the charges in an enquiry or whether
it is based on a bona fide suspicion created against the
employee making it impossible or fishy to keep the
employee is service. In Hindustan Steels [1970 (1) LLJ 228],
the Apex Court was confronted with a situation where the
employee was working as a fitter in a blast furnace, a vital
part of the company, where both efficiency and trust would
matter. He was said to join in an illegal strike and a criminal
case had been filed against him and there was an adverse
report of the police against him. The Apex Court observed
that discharge of the employee from service was not penal.
In Air India Corporation [1972 (1) LLJ 501], the employee
had misbehaved with an air hostess and due to this conduct
the management had lost confidence in him.The Apex Court
ruled that termination of his service under the regulation
by paying 30 days salary in lieu of notice was not penal.
8. In Binny Ltd. [1974 (3) SSC 152], the employee lost
confidence in the workmen as he availed special leave
without wages on false representation and failed to resume
duties when he was intimated that his sanctioned leave
was cancelled and he was ordered to join immediately. In
that case too, the Apex Court ruled that by his own
admission, the employee had acted in a manner by which
the employer could possibly have no confidence in him in
future. However, in L. Micheal [1975 (1) LLJ 262], loss of
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[PART II—SEC. 3(ii)]
confidence was alleged by the employer as a result of
appellant being a smuggler of inside information. However,
it was found that he was a permanent employee of proved
efficiency and was appreciatively given two merit
increments. The Apex Court ruled that it was open to an
employer who believes or suspects that his employee,
particularly one holding a position of confidence, has
betrayed that confidence to terminate his employment and
discharge him without any stigma attaching to the
discharge. The Court added that such belief and suspicion
of the employer should not be a mere whim or fancy. It
would be bona fide and reasonable. It must rest on some
tangible basis and the power has to be exercised by the
employer objectively in good faith which means honestly,
with due care and prudence.
9. In such cases, the Tribunal can go behind the
order to see its substance than the form. It is well established
law that the language in which the order of termination of
service is couched is not conclusive. It is open to the
Tribunal to lift the veil to see whether the forum is a mere
camouflage for an order of dismissal or vice versa. If the
Tribunal finds that the order of discharge simpliciter, but
its nature and character, in reality is a measure of
punishment of misconduct, it may set aside the order for
non-compliance of the procedure required to be followed
in a disciplinary action. In Jagdish Prasad (1986 Lab.I.C.
1377), service of a temporary employee was terminated on
the ground that he had concealed the fact of his removal
from service under the former employer on the charge of
conssuption at the time when he had applied for the post.
But the order of the employer purported to terminate the
service under the contract and no inquiry was held into the
matter before termination of the service. The Supreme Court
held that the order of termination was not an innocuous
order but was an order which on the face of it cast stigma
on the service career of the employee and was in fact an
order of dismissed on the charge of concealment of facts.
10. Now I would turn to the facts. Complaint dated
05.09.2011, made by the security supervisor, makes it
apparent that Shri Bale Ram assaulted him at a place near
Sarita Vihar Metro Station and as a result of which assault
he sustained serious injuries on his head. He got eight
stitches on his head. He lodged a report with PS Sarita
Vihar against Shri Bale Ram. These facts, coupled with the
misbehavior of Shri Bale Ram on 02.09.2011, made the
contractor to dispense with his services by an oral order.
Admittedly, above acts make it apparent that the contractor
dispensed with his services, when there was a complaint
against the security guard relating to commission of serious
misconduct. However, no written termination order was
issued. At this juncture, the contractor pleads that since
the Depot where Shri Bale Ram was serving was of high
value cargo where they were to deal with mass labour,
drivers and traders hence it was decided to dispense with
service of the claimant. The explanation offered by the
contractor makes it apparent that services of the claimant
were dispensed with when his employer felt that the claimant
would not come up to their expectation. These facts project
the state of mind of his employer, which existed when
order under reference was passed. The claimant has not
come forward to dispel these facts. Unassailed facts,
detailed by the contractor, are accepted as true. From those
facts, it emerge that the employer lost confidence in the
claimant and terminated his services. Resultantly, oral order
of termination of services of the claimant cannot be termed
as dismissal, owing to misconduct.
11. Facts and circumstances, detailed above, makes
me to comment that action of termination of services of the
claimant amounts to retrenchment within the meaning of
Section 2(oo) of the Industrial Disputes Act, 1947 (in short
the Act). When there is retrenchment of services of an
employee, to seek benefit under provisions of Section 25F
of the Act, he has to bring it over the record that he rendered
continuous service of more than 240 days, as contemplated
by Section 25B of the Act, in preceding 12 months from the
date of his retrenchment. Onus is there on the claimant to
establish that fact. Not to talk of discharge of onus, the
claimant opted not to file his claim statement. Evidently,
there is complete lace of facts to project that the claimant
rendered continuous service of 240 days in preceding 12
months from the date of his termination. Under these
circumstances, it cannot be said that the claimant was
entitled to protection of Section 25F of the Act.
12. As projected by the contractor, services of the
claimant were dispensed with when he lost confidence in
him. The employer took note of the proposition that the
security guard would not come up to their expectation,
when he was to work at high value cargo. Therefore, there
were ample reasons when the contractor dispensed with
the services of the claimant. In such a situation action of
the employer satisfied the rigors of Section 25-G of the Act,
where an employer can dispense with the service of an
employee, though not junior most, by recording reasons
therefore. It cannot be said that the procedure of
retrenchment as contained in Section 25-G of the Act was
violated.
13. No fact has been highlighted to show that after
some time other persons were engaged by the contractor
without according an opportunity of re-employment to the
security guard. Thus, there is hardly any scope for
application of provisions of Section 25H of the Act to the
present controversy. In view of all these facts, it is evident
that the security guard is not entitled to any relief.
14. Action of the contractor is found to be legal and
justified. An award is, accordingly, passed. It be sent to the
appropriate Government for publication.
DR. R.K. YADAV, Presiding Officer
Dated: 12.09.2013
¹Hkkx II—[k.M 3(ii)º
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199
ubZ fnYyh] 30 fnlEcj] 2013
dkñvkñ 112.—vkS|ksfxd fookn vf/kfu;e] 1947] ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUæh; 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 dsUæh; ljdkj vkS|ksfxd
vfèdj.k] eqEcbZ ds iapkV ¼lanHkZ la[;k 49@2009) dks izdkf'kr
djrh gS] tks dsUæh; ljdkj dks 30@12@2013 dks izkIr gqvk FkkA
[lañ ,y&12011/68/2008-vkbZ vkj ¼ch&1½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 30th December, 2013
S.O. 112.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 49/
2009) of the Central Government Industrial Tribunal-cum-
Labour Court No. 2, Mumbai No. 2 as shown in the
Annexure, in the industrial dispute between management
of State Bank of India, H-18, Block B, Madhuli Bldg., and
their workmen, which was received by the Central
Government on 30/12/13.
[No. L-12011/68/2008-IR(B-1)]
SUMATI SAKLANI , Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL NO. 2,
MUMBAI
PRESENT
K.B. KATAKE, Presiding Officer
REFERENCE NO. CGIT-2/49 OF 2009
EMPLOYERS IN RELATION TO THE
MANAGEMENT OF STATE BANK OF INDIA
The Dy. General Manager (I)
State Bank of India
H-18, Block-B, Madhuli Building
Dr. Annie Besant Road
Shivasagar Estate
Worli,
Mumbai-400 018.
AND
Their Workmen
The General Secretary
State Bank of India Staff Union (Mumbai Circle)
'Synergy' State Bank of India
Bandra Kurla Complex
Kurla (W),
Mumbai.
APPEARANCES:
For the Employer
:
Mr. M.G. Nadkarni
Advocate.
For the Workman
:
Mr. M.B. Anchan,
Advocate.
Mumbai, the 18th November, 2013.
AWARD PART-I
The Government of India, Ministry of Labour &
Employment by its Order No. L-12011/68/2008-IR (B-I), dated
20.05.2009 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 Dy. General Manager,
State Bank of India, Worli, Mumbai imposing
the punishment of removal from services with
superannuation benefit on Shri P.M. Sumara,
is legal and justified? If not, what relief the
workman is entitled to?"
2. After receipt of the reference, notices were sent to
both the parties. In response to the notice, second party
workman filed his statement of claim at Ex-7. According to
him, he was employed with the first party as Assistant
(Cash and Accounts) at Juhu Tara Branch Mumbai. There
was sanctioned over draft limit of Rs. 40,500 on 23.03.2001.
It was subsequently enhanced to Rs. 45,000 w.e.f.
22.04.2002 and to Rs. 53,500 from 29.07.2004 and the same
was further enhanced to Rs. 3 lakhs from 22.07.2005 by
Shri S.V. Ghadigaonkar, the Manager against N.S.Cs. Inspite
of having the benefit of Rs. 3 lakhs over draft facility the
workman was served with charge sheet dt. 2.3.2006 and
had to face inquiry. The Inquiry Officer held that charges
are proved and disciplinary authority imposed punishment
on the workman of removal from service. The workman
perferred appeal against the said decision of the
disciplinary authority and the same was rejected by the
appellate authority. Thereafter the union has raised
the industrial dispute. As conciliation failed as per the
report of ALC (C), Ministry of Labour sent the reference to
this Tribunal.
3. According to the workman the inquiry was not fair
and proper. It was held in violation of principles of natural
justice. The workman was not aware of the procedure of
the departmental proceeding. The IO did not ask the
workman to submit his defence reply to the charge sheet
and he was denied the opportunity to submit his reply to
the chargesheet. During the inquiry workman had called
the copies of preliminary inquiry report, copy of rules,
procedure for sanctioning, enhancing and sanctioning over
draft facility, reverse side of cheque produced as document
in the inquiry etc.
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[PART II—SEC. 3(ii)]
Neither Bank has produced those documents in the inquiry
proceedings nor copies thereof were supplied to the
workman. The workman has not availed the overdraft facility
over Rs. 3,00,000/- which was the limit. The charge against
the workman is baseless. Whatever excess money
according to Bank workman had withdrawn, the same
amount has been returned by the workman to the Bank on
7.2.2006 much before commencement of inquiry. Whatever
amount was withdrawn by the workman, the same was
approved by the passing officer. Therefore workman has
not committed any misconduct as alleged. He had
withdrawn the amount through cheques. The concerned
officer responsible for payments had scrutinised the
cheques and passed the payment. He has not exceeded
the limit of o/d. The workman was falsely implicated in the
matter. The inquiry was not fair and proper. The findings of
the IO were perverse. The findings of the appellate authority
are also perverse. Due to blot on his record the workman
could not get any other suitable job and he is unemployed.
The workman therefore prays that order of removing him
from service be set aside being unjust and illegal and he be
reinstated in the service with full back wages and continuity
of service.
4. The first party Bank resisted the statement of claim
vide its written statement at Ex-8. According to them, the
overdraft against NSCs account of the workman was
maintained in a proper manner prior to 22.7.2005. On
22.7.2005 due to some error in the system, the limits of all
the accounts got erased. Consequently the staff members
of the branch requested the manager Shri S.V. Ghadigaonkar
to restore the limits urgently so as to facilitate them to
operate the same. After confirming that the limits have
vanished from the system, Manager Ghadigaonkar asked
the staff members to write on a piece of paper their loan
account numbers and the limits to be restored. The workman
indicated the limit to be restored to him as Rs. 3,00,000
despite being fully aware that the drawing limit sanctioned
to him was only Rs. 53,500/-. The Br. Manager thereafter
restored the limits of all the staff members as indicated by
them on the slip of papers. The workman thereafter
knowingly withdrew amounts from his account on various
dates both in cash and by cheques. It was much beyond
the sanctioned limit to him. Infact said amount was
unauthorisedly over drawn and retained by him since
29.7.2005 and outstanding in the account as on
31.12.2005 was Rs. 2,86,773.98 ps.
5. In the circumstances the charge sheet was issued
to the workman dated 3.2.2006 and charge was framed
against him. It was spelt out to him with sufficient clarity in
the said charge sheet. Shri Deepak M. Chavan was
appointed as Inquiry Officer to conduct the inquiry.
Workman was advised to submit his written statement. He
was informed that he would be permitted to defend by
representative of a registered trade union of Bank employees
of which he was member. The IO has conducted the inquiry.
He followed the principles of natural justice. The workman
availed services of Tushar V. Musale as his defence
counsel. The IO submitted his report on the basis of oral
and documentary evidence adduced in the inquiry and
held that charge framed against the workman was proved.
Copy of the report was forwarded to the workman for his
information and for making his submissions thereon.
Workman submitted his comments on the inquiry report.
After careful perusal of the fact, circumstance, report and
the say of the workman the competent authority held him
guilty and passed the order of removal of the workman
from service. The inquiry was fair and proper. The findings
of the IO are not perverse. They denied all the contents in
the statement of claim and prayed that the reference be
rejected.
6. Following are the issues for my determination. I
record my findings thereon for the reasons to follow:
Sr.
Issues
Findings
No.
1.
Whether the inquiry and findings
Yes.
recorded therein are legal and
proper?
REASONS
Issue No. 1:—
7. In respect of the inquiry, two defects were pointed
out on behalf of the second party workman. (1) The IO did
not explain him the procedure of inquiry. (2) The
management did not supply him the copies of various
documents he had sought for. In this respect the Ld. Adv.
for the first party submitted that it is not necessary to
explain to the charge sheeted employee the procedure of
inquiry. The inquiry has to be conducted as per the rules
and after following the principles of natural justice. The
Ld. Adv. submitted that it is mandatory for the inquiry
officer to explain the charges levelled against the workman.
It is also mandatory to give sufficient opportunity to the
workman to defend himself by engaging a defence
repersentative. It is also mandatory to examine all the
witnesses in presence of the workman and his defence
representative. It is also mandatory to give an opportunity
to the charge sheeted workman to cross-examine all the
management witnesses. After conclusion of the inquiry
the copy of the inquiry report is also required to be sent to
the charge sheeted employee with show cause notice. The
Ld. Adv. submitted that the IO has complied with all the
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 11] 2014@ikS"k 21] 1935
201
stages of inquiry. He had explained the charges to the
workman. Workman was allowed to engage his defence
representative. The copies of all the documents produced
in the inquiry proceeding were supplied to the workman.
Management witnesses were examined in presence of the
workman and his defence representative. The defence
representative was allowed to cross examine the
management witnesses. The workman was also given an
opportunity to lead his evidence. After hearing the
arguments the IO prepared his report and submitted the
same to the management. Management sent the copy of
report with show cause notice to the workman and after
hearing him, the management passed the order of removal
of the workman from service. On the point of fair and proper
inquiry guidelines of Apex Court can be resorted to in Sur
Enamel and Stamping Works Ltd. V/s. Their Workmen (1963
II LLJ 367) wherein the Hon'ble Apex Court laid down the
following conditions for fair and proper domestic inquiry.
They are:
(1)
The employee proceeded against has been
informed clearly of the charges levelled against
him,
(2)
The witnesses are examined-ordinarily in the
presence of the employee in respect of the
charges,
(3)
The employee is given a fair opportunity to
cross examine witnesses,
(4)
He is given a fair opportunity to examine
witnesses including himself in his defence if
he so wishes on any relevant matter, and
(5)
The inquiry officer records his findings with
reasons for the same in his report.
As per the above guidelines the Inquiry Officer has
complied with all the points referred above.
8. The second objection raised on behalf of the
second party is that he has sought for copies of number of
documents from the management and they did not supply
him the copies of all those document which he had sought
for. Therefore according to him there was violation of
principles of natural justice. In this respect the Id. Adv. for
the first party submitted that the copies of documents which
were referred and relied in the inquiry proceeding were
given to the workman. He had sought for copies of number
of other documents which were neither produced in the
inquiry proceeding nor relied upon by the Inquiry Officer.
Therefore non-supply of copies of such documents does
not amount to violation of principles of natural justice. In
support of his argument the Id. Adv. for the first party
resorted to Apex Court ruling in State of UP and Ors V/s.
Ramesh Chandra Mangalik (2002) 3 SCC 443 wherein the
Hon'ble Court relied upon its earlier judgement in
Chandrama Tewari V/s. Union of India wherein the Hon'ble
Court observed that :
"The obligation to supply copies of documents is
confined only to material and relevant documents
which may have been relied upon in support of the
charges. If a document event though mentioned the
memo charges has no bearing on the memo charges
or if it is not relied upon or it may not be necessary
for cross examination of any witness, non-supply of
such a document will not cause any prejudice to the
delinquent.”
9. On the point the Ld. Adv. for the first party also
resorted another Apex Court ruling in Pandit D. Aher V/s.
State of Maharashtra (2007) 1 SCC 445 in para 10 of the
judgement the Hon'ble Court on the point observed that:
"A copy of document which has not been relied upon,
is not required to be supplied to a delinquent officer.
The documents which are required to be supplied
are only those where upon reliance has been placed
by the department."
In the case at hand the copies of relevant documents
were supplied to the workman. Furthermore the IO has
followed fair and proper procedure and had given fair and
proper opportunity to the workman. There was no violation
of principles of natural justice as has been alleged. Thus I
hold that the inquiry was fair and proper.
10. In respect of findings the Ld. Adv. for the first
party submitted that findings are based on the evidence
on record. He submitted that the inquiry officer has relied
upon the evidence led before him and arrived at the
conclusion that the workman was guilty for the misconduct
of withdrawing more amount of o/d than the limit prescribed
for. Therefore findings of the IO cannot be called perverse.
He further submitted that the charge is disciplinary inquiry
is not required to be proved beyond all doubts as it is
required in a criminal trial. In support of his argument the
Ld. Adv. for the first party resorted to Bombay High Court
ruling in Tata Infomedia Ltd. V/s. Tatapress Employees
Union & Anr. 2005 (3) Mh. L.J. 105 wherein the Hon'ble
Court observed that;
"Disciplinary inquiries are not governed by strict
rule of evidence contained in the Evidence Act. The
charge in a disciplinary inquiry has to be established
on a preponderance of probabilities and not by proof
beyond reasonable doubt that would govern a
criminal trial."
In the same judgement the Hon'ble Court further
observed that :
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THE GAZETTE OF INDIA : JANUARY 11, 2014/PAUSA 21, 1935
[PART II—SEC. 3(ii)]
"A finding which is based on no evidence is liable to
be interfered with because it is then susceptible to
the interference, arbitrariness and perversity."
The Hon'ble Court further observed that;
"Once a finding in a disciplinary inquiry is based on
some evidence, the sufficiency of evidence in proof
of the finding lies beyond the scope of scrutiny of
the reviewing court."
11. The Ld. Adv. for the first party submitted that in
domestic inquiry misconduct can be proved merely on
preponderance of probability and even hearsay evidence
and confessional statement also can be acted upon. In
support of his arguments the Ld. Adv. resorted to Apex
Court ruling in Workmen Balmadies Estate V/s.
Management Balmadies Estate & Ors. 2008 I CLR 794
wherein the Hon'ble Court held that, The Indian Evidence
Act, 1872 is not applicable to the proceeding in domestic
inquiry. The Hon'ble Court further observed that;
"In a domestic inquiry all materials which are logically
probative including hearsay evidence can be acted
upon provided it has reasonable nexus and
credibility."
In para 9 of the judgment the Hon'ble Court further
observed that;
"...confessional evidence and circumstantial
evidence, despite lack of any direct evidence was
sufficient to hold the delinquent guilty of misconduct
and to justify the order of termination that had been
passed."
12. In the light of rulings and above discussions I
come to the conclusion that, findings of IO are based on
the evidence on record. Therefore they cannot be called
perverse. As a result I hold that the inquiry and findings of
the IO are legal and proper. Accordingly I decide this
preliminary issue No. 1 in the affirmative. Thus I proceed to
pass the following order:
ORDER
(i)
The inquiry held against the workman and
findings of the IO are held legal and proper.
(ii)
Parties to lead evidence/arguments on the point
of quantum of punishment.
Date: 18th November, 2013
K.B. KATAKE, Presiding Officer
ubZ fnYyh] 30 fnlEcj] 2013
dkñvkñ 113.—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
vfèdj.k] eqEcbZ ds iapkV ¼lanHkZ la[;k 50@2007½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 30@12@2013 dks izkIr gqvk FkkA
[lañ ,y&12012@115@2007&vkbZvkj¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 30th December, 2013
S.O. 113.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 50/2007)
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 State Bank of India,
and their workmen, received by the Central Government on
30/12/2013.
[No. L-12012/115/2007-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-2/50 of 2007
EMPLOYERS IN RELATION TO THE MANAGEMENT
OF STATE BANK OF INDIA
The Chief General Manager
State Bank of India, Local Head Office
Synergy, Plot No. C-6, G Block
Bandra Kurla Complex PB No. 8123
Bandra (E)
Mumbai-400051
AND
THEIR WORKMEN
The Dy. General Secretary
State Bank of India Staff Union (Mumbai Circle)
Synergy, Plot No. C-6, G Block
Bandra Kurla Complex PB No. 8123
Bandra (E)
Mumbai-400051
APPEARANCES:
For the Employer
:
Mr. M.G. Nadkarni,
Advocate.
For the workmen
:
Mr. Abhay Kulkarni,
Advocate.
Mumbai, dated the 11th October 2013.
AWARD PART-I
The Government of India, Ministry of Labour &
Employment by its Order No. L-12012/115/2007-IR (B-I),
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dated 10.10.2007 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 State Bank
of India in dismissing Shri P.K. Prasad, Assistant
(Cash/Accounts) from the services vide order dated
24/06/2006 is legal, proper, justified and in
proportionate to the magnitude of misconduct? If
not, to what relief the concerned 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-8. According to
the workman he had served with the first party Bank for
about 13 years. His service was satisfactory and his service
record is clean and unblemished. In August, 2003 while the
workman was performing his duties at Jindal Extension
Counter, Vasind, his superior Mr. Phansekar purportedly
noticed certain discrepancies in the accounts of the Bank.
The workman denied to have any role to play in the said
discrepancies. The discrepancies are alleged to have been
based upon the complaint of one Mr. Gama Bind who is
illiterate customer of the Bank. The Bank was in need of a
scape goat to answer the irregularities and they selected
the workman to victimise him. Mr. Phansekar arranged to
write complaint in English against the workman and
obtained signature of Mr. Gama who does not understand
English. Mr. Phansekar in presence of the customers of the
Bank got letter of confession written from the workman.
The workman has retracted from the contents of the said
letter. He has also examined a customer in the inquiry
proceeding to established that the letter was obtained from
him under force and duress and under the fear of losing his
job. The workman has not committed any misconduct as
has been alleged. The Bank has also lodged FIR against
the workman to the Police. However no action was taken
by the Police. The charges levelled against the workman
are devoid of merit.
3. The disciplinary authority issued the charge sheet
dt 6/01/2004 and suspended the workman. Six months
thereafter they appointed Inquiry officer. The Inquiry Officer
was bias against the workman. The Inquiry was held in
gross violation of principles of natural justice. The attitude
of the IO was of complete non-co-operation towards the
workman and his defence representative. He used to grant
long adjournments to the Presenting Officer. However
refused to grant sufficient time to the workman whenever
he required time to take inspection of the documents relied
upon by the Presenting Officer. The IO behind the back of
the workman and his defence representative without
hearing them directed the Presenting Officer not to grant
inspection of relevant documents to the workman and his
defence representative. There was complete collusion
between the Bank and the IO. The workman was victimised.
He was denied the opportunity of inspection of original
documents. The inquiry report is prepared by the IO who
was bias. The inquiry was not fair and proper. The workman
has not committed any misconduct. Mr. Phansekar got
confession letter written from the workman under threat
and pressure. The report of the IO is based on the said
confessional letter of the workman. On the basis of the
inquiry report, the disciplinary authority of the Bank
dismissed the workman. The said action of the Bank is
wholly illegal, unjustified and perverse. The findings of
the IO are perverse. Therefore the workman has raised
industrial dispute. On the report of ALC, the Central
Labour Ministry has sent the reference to this Tribunal.
Workman therefore submitted that the action of the Bank
in dismissing the workman from service is wholly illegal
and unjustified. The findings of the IO are perverse.
Therefore he prays that the impugned order of dismissal
dt. 24/06/2006 passed by disciplinary authority and
confirmed by Appellate Authority be quashed and set
aside. He also prays for direction to the first party to
reinstate the workman with full back wages, continuity of
service and all other consequential benefits.
4. The first party resisted the statement of claim vide
its written statement at Ex-9. According to them when
workman was working as a Clerk at Jindal Extension Counter,
Shahpur Branch, it was found that he has committed fraud
during the period Jul-Aug 2003. He made fictitious and
false entries in the account of Mr. Parasnath Sharma, one
of the customers of the Bank. He also prepared fictitious
entries in the saving Bank A/c. No. 6/311 of Account holder
Mr. Gama Bind. He prepared fictitious bank credit voucher
for crediting Rs. 93,313 in the SB A/c of Mr. Gama Bind. On
5/8/2003 the workman posted a withdrawal slip of Rs. 50,000
in the SB Ac of Mr. Gama Bind and gave it to Mr. Phansekar
the passing officer for passing the said payment. As
withdrawal was not accompanied by the passbook of the
account holder, Mr. Phasekar called for the same and upon
its presentation passed for payment. Again on 8/8/2003
the workman posted a withdrawal slip of Rs. 53,000 in the
SB A/c of Mr. Gama Bind and gave it to Mr. Phansekar for
passing it. When Mr. Phansekar called for the account
holder, workman informed him that Mr. Gama Bind was
held up in Kalyan and he had requested him to collect the
payment. Mr. Phansekar refused to pass the withdrawal till
Mr. Gama Bind comes before him personally. On that day
Mr. Gama Bind did not turn up and Mr. Phansekar kept the
withdrawal form and the pass book in his custody and the
debit entry of Rs. 53,000 was cancelled in the ledger.
Workman informed Mr. Phansekar that Mr. Gama Bind
would personally come and collect the payment on the
next day. However he did not turn up to the extension
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counter even on the next day. On 9/8/2003 the workman
removed the withdrawal slip of Rs. 53,000/- from
Mr. Phansekar's drawer and destroyed it and stated that he
would obtain fresh withdrawal slip from Mr. Gama Bind on
11/8/2003. On 11/8/2003 Mr. Phansekar started making
inquiries about the transaction of withdrawal of Rs. 53,000.
The workman confessed that he had fraudulently credit
Rs. 93,313 in the S/B Account of Mr. Gama Bind and had
withdrawn Rs. 50,000 on 5/8/2003. The workman also
addressed a letter dt. 11/8/2003 to the Branch Manager,
Sahahpur Branch and he gave the details of the account of
his fraudulent acts and requested the Branch Manager to
excuse him the workman has given the said letter voluntarily
and without any pressure of any bank official. He had also
deposited an amount of Rs. 50,000 in the account of
Mr. Gama Bind on 14/8/2003.
5. As the workman had committed fraud he was placed
under suspension vide Bank memorandum dated 19/11/
2003. The Bank also lodged FIR against the workman at
Shahpur Police Station on 2/12/2003 and 23/1/2004. Charge-
sheet dated 6/11/2004 was issued to the workman. The
Bank appointed Inquiry Officer. The IO conducted the
inquiry. Mr. J.D. Shringarpure was defence representative
of the workman. The IO conducted the inquiry by following
the principles of natural justice. Adequate and sufficient
opportunity was given to the workman to defend himself.
The IO has explained the charges to the workman. The
workman was given full and sufficient opportunity to lead
his evidence. They denied that the IO was bias. They denied
that workman was not given time to inspect the original
record. After considering the evidence before him the IO
held the workman guilty of the charges levelled against
him. The IO sent his report to the disciplinary authority.
The disciplinary authority sent the copy of the report with
show cause notice to the workman. After giving hearing to
the workman the disciplinary authority considering the
serious nature of misconduct awarded the punishment of
dismissal from service to the workman. According to them
the action of the management is quite legal and proper. The
inquiry was legal and fair. Findings of the IO are based on
the evidence on record and they are not perverse. The
punishment is not shockingly disproportionate to the
proved misconduct. Therefore the first party prays that
the reference be rejected with cost.
6. Following are the preliminary issues for my
determination. I record my findings thereon for the reasons
to follow:
Sr. No.
Issues
Findings
1.
Whether the inquiry held against the
Yes.
workman is fair and proper?
2.
Whether findings of the inquiry officer
No.
are perverse?
REASONS
Issue No. 1:
7. In the case at hand the inquiry is challenged by
the workman. According to him the documents produced
by the Presenting Officer were not proved in the inquiry
proceeding by examining the relevant witnesses. According
to them the IO has exhibited those documents illegally
without proving them by any witnesses. Such unproved
documents cannot be used as evidence against the
workman and the IO has committed mistake in exhibiting
these documents and relying upon the same. Therefore
according to the second party the inquiry was not fair and
proper and the findings of the IO based on such documents
not sustainable. In support of his argument the Ld. Adv.
for the second party resorted to Gujarat High Court ruling
in Shantibai Ambalal Patel V/s. Dholka Nagarpalika 2003 III
CLR 1087 (Guj HC). In that case in the departmental inquiry
no witness was examined but simply documents were taken
on record and thereafter petitioner was asked if he wanted
to say anything. Thereafter IO gave his report which
culminated in order of dismissal. In the circumstances
Hon'ble Court observed that;
"Whatever the allegations made against the
petitioner are based on documents may be considered
but when the employee has denied the charge and
filed the reply denying the charge and explaining
defence, then it is burden upon the employer to prove
the misconduct against the petitioner by leading
proper evidence in departmental inquiry which gives
right to the employee to cross-examines such witness.
No one was examined on behalf of the respondent
Nagarpalika for proving the documents which is
relied by the respondent Nagarpalika for proving the
charge against the petitioner and therefore in the
absence of that evidence, the allegations which has
been found to be proved while considering the reply
against the petitioner is not proper procedure
adopted by the IO and it is contrary to the Principles
of Natural Justice."
8. In this respect the Ld. Adv. for the first party
submitted that the facts of the case at hand are different
than the case referred herein above. In the case at hand the
documents are the entries in the books of account in a
Bank and under Banking Evidence Act those entries can
be read in evidence. Furthermore the workman herein has
supported the entries in the books of account by his
confessional statement. In the circumstances the ratio laid
down in the above ruling is not attracted to the set of facts
of the present case. The Id. adv. for the first party further
submitted that the strict rules of Evidence Act are not
applicable in the departmental inquiry. In support of his
argument he resorted to Apex Court ruling in South Bengal
State Transport Corporation Vs. Sapan Kumar Mitra & Ors.
2006 LLJ 1087 (SC) wherein the Hon'ble Court observed
that;
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"It is well settled position now that the disciplinary
authority or the Inquiry Officer are not Courts and
therefore the strict procedure that are to be followed
in the Courts may not be strictly adhered to."
9. In short, the documents produced on record in
disciplinary proceeding being entries in the books of
accounts and ledger books in the Bank, they need not be
proved by examining witnesses. Furthermore these entries
and the documents on record can be read in evidence
without any other proof as the workman himself has
admitted the same in his confessional statement. Therefore
the argument on behalf of the workman is devoid of merit
that the documents produced in the departmental inquiry
were not proved by examining the witnesses.
10. The Ld. Adv. also cited another Apex Court ruling
in Workmen Balmadies Estate V/s. Management Balmadies
Estate & Ors. 2008 I CLR 794 wherein the Hon'ble Court
observed that;
"It is also fairly well settled that in a domestic inquiry
guilt may not be established beyond reasonable
doubt and the proof of misconduct would be
sufficient. In domestic inquiry all materials which are
logically probative including hearsay evidence can
be acted upon provided it has a reasonable nexus
and credibility."
In this judgement the Hon'ble Court has cited its
earlier ruling in J.D. Jain V/s. Management of State Bank of
India & Anr. 1982 I SCC 143 wherein the Hon'ble Court
observed that:
".........confessional evidence and circumstantial
evidence, despite lack of any direct evidence was
sufficient to hold the delinquent guilty of misconduct
and to justify the order of termination that had been
passed."
11. On the point the Ld. Adv. also relied upon
Allahabad High Court ruling in Yaar Mohd. V/s.
Commissioner Gonda & Ors. 2003 (97) (FLR) 674. In that
case during the course of domestic inquiry employee was
not supplied with copy of relevant documents. No
witnesses were examined to prove the charges leveled
against the employee. In the circumstances Hon'ble High
Court observed that;
"The inquiry was conducted by the inquiry officer in
clear disregard to the mandatory provisions of the
Government Servant Disciplinary Rules, 1999 and
the impugned removal order was passed by the
authorities in a hurriedly manner which is in violation
of the Principles of Natural Justice."
In the circumstances Hon'ble Court held that
impugned order of removal was passed in clear violation of
principles of natural justice. It is legally not sustainable.
12. In this respect the Ld. Adv. for the first party
pointed out that, in that case copies of the relevant
documents were not supplied to the workmen therein.
Therefore such documents cannot be used against the
workman. Furthermore no witness was examined to prove
the charges. However the facts in the case at hand are
altogether different. The copies of all the relevant
documents were given to the workman and the documents
produced on record were neither disputed nor challenged
by the workman. He has also not challenged the
genuineness of those documents. On the other hand the
entries in the register produced on record were admitted
by the workman in his confessional statement. In the
circumstances the Ld. Adv. for the first party rightly
submitted that, the ratio laid down in the above ruling is
not attracted to the set of facts of the case at hand. In this
respect the Ld. Adv. for the first party has resorted to
Calcutta High Court ruling in Workmen ABG Publication
Employees union V/s. Ananda Bazaar Patrika Ltd. & Ors.
199 (4) L.L.N. 934 wherein the Hon'ble Court observed that;
"In a case where document has been admitted in
evidence without any objection whatsoever, the party
at a later stage cannot question the admissibility of
the same unless the same was inherently inadmissible
in evidence."
13. The Ld. Adv. for the first party further submitted
that when genuineness of the document is not disputed or
the documents are admitted there is no need to lead oral
evidence to prove such documents. In support of his
argument the Ld. Adv. for the first party resorted to
Allahabd High Court ruling in Rajbabu Agnihotri V/s.
Labour Commissioner, U.P., Kanpur 2002 (4) S.C.T. 791
wherein the Hon'ble Court observed that;
"....... since in the present case genuineness of
document was not denied, there was no necessity to
prove documents by leading oral evidence by the
employer."
14. The same principle was laid down by Hon'ble
Bombay High Court in Vasant P. Patil V/s. IIT Powai, Mumbai
& Ors. 2006 I CLR 723 wherein the Hon'ble Court observed
tghat;
"It cannot be laid down as absolute preposition of
law that in every departmental proceedings employer
is required to lead oral evidence for establishing the
charges."
In this backdrop it is clear that, the rulings cited on
behalf of the second party are not helpful to him and it
cannot be said that there was violation of principle of
natural justice.
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15. In this respect the Ld. Adv. for the second party
submitted that the IO has not supplied the copy of inward
dak registered for the period July-September 2003.
According to the Ld. Adv. the defence representative had
asked for production of this document. The IO also asked
the Presenting Officer to make the register scroll available
for verification. However when defence representative
visited Shahpur Branch those documents were not made
available to him as IO sent a fax to the Presenting Officer
not to produce any document/register for perusal. The IO
has admitted that he directed the Presenting Officer not to
allow any inspection of the said register. According to him
these registers were not relevant. Therefore Ld. Adv.
submitted that as employee was not supplied with the
copies of the documents sought for by defence
representative, the inquiry report is in violation of Principles
of Natural Justice. In support of his argument the Ld. Adv.
referred to the above cited Allahabad High Court ruling in
the case of Yaar Mohd. (Supra). In this respect the Ld. Adv.
for the first party submitted that the documents which
neither produced on record nor used in the inquiry
proceeding, question of giving copies thereof or giving
inspection of such documents does not arise. Those
documents for which inspection was sought by the defence
representative were thus totally irrelevant as none of these
registers were used in the inquiry proceeding. Therefore
the ratio laid down in the above ruling is not attracted to
the set of facts of the present case. In support of his
argument the Ld. Adv. for the first party cited Apex Court
ruling in State of Tamil Nadu V/s. Thiru K.V. Perumal & Ors.
1996 LAB. I.C. 2069 wherein on the point of supply of
documents to the delinquent the Hon'ble Court observed
that;
"Their duty is only to supply relevant document and
not each and every document asked for by the
delinquent officer/employee."
As the register for which inspection was sought for
was neither relied upon the IO nor relevant. Therefore,
non-production of the documents does not affect the
credibility of inquiry proceeding.
16. The Id. adv. for the second party further argued
that non-examination of witnesses and non-production of
documents adversely affect the interest of the workman as
he could not get the chance to cross examine those
witnesses. In support of his argument Ld. Adv. resorted to
Apex Court ruling in State of Uttaranchal & Ors. V/s. Kharak
Singh 2008 III CLR 1062 wherein the inquiry was not
conducted on the basis of well-founded principle for
conducting domestic inquiry. In that case there was no
Presenting Officer. No witness was examined. Inquiry Officer
acted as investigator, prosecutor and also as judge and he
also recommended punishment to be imposed. In the
circumstances the Hon'ble Court held that the inquiry was
not fair and proper. In this respect the Ld. Adv. for the first
party submitted that in the case at hand the inquiry officer
has not acted as investigator. So also he has not acted as
Presenting Officer. Though no witnesses were examined
the IO relied upon the documents on record which were
admitted by the workman in his confessional statement.
The confessional statement can very well read in the
evidence. On the point Ld. Adv. for the first party resorted
to Division Bench ruling of Hon'ble Bombay High Court in
Dilip Jangannath Sarode & Ors. V/s. Maharshtra Public
Service Commission & Ors. 2008 (4) BOM C.R. 20 wherein
on the point of confessional statement of the delinquent in
para 55 of the judgement Hon'ble Court observed that;
"There have been several judgements of the Supreme
Court laying down the law by which this case is
covered, that a confession is admissible in
disciplinary proceedings and that the result of
disciplinary proceedings can be based only upon a
confession statement."
17. The Hon'ble Court referred to the following cases
of Hon'ble Apex Court:
(1) Kuldeep Singh Vs. State of Punjab & Ors. 1996
(10) SCC 659 (2) Commissioner of Police, New Delhi V/s.
Narendra Singh AIR 2006 SC 1800
18. In the circumstances it is clear that the ratio laid
down in the Apex Court ruling cited on behalf of the second
party is not attracted to the set of facts of the case at hand.
On the other hand it is clear that though no witness was
examined the inquiry officer has relied upon the
confessional statement of the workman supported by the
documents on record and the relevant entries in the register.
In this back drop I come to the conclusion that no fault can
be found out in the inquiry. It was conducted as per the
principles of natural justice and as per the procedure
prescribed therefor. Thus I hold that the inquiry was fair
and proper. Accordingly I decide this issue No. 1 in the
affirmative.
Issue No. 2:—
19. It was submitted on behalf of the union that the
findings of the inquiry officer are perverse. According to
him the documents relied upon were not proved by
examining witnesses and the inquiry officer committed
mistake in referring those unproved documents. It is further
submitted that the IO has also relied on the confessional
statement of the workman which he had retracted
subsequently. According to the workman his confession
was obtained under duress and threat. Therefore inquiry
officer made mistake in relying upon the confessional
statement. Therefore according to him the findings of the
IO are perverse.
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20. In this respect the Id. adv. for the first party
submitted that the documentary evidence on record,
genuineness thereof was not challenged by the workman
during the course of inquiry. On the other hand the contents
in the confessional statement of the workman are supported
by these documents. The confessional statement can very
well be used in the departmental proceeding. Law to that
effect is well settled as has been observed in the discussion
of issue No. 1 herein above. In the circumstances it cannot
be said that the findings of the IO are without any evidence
or base less. The Id. adv. for the first party in this respect
submitted that as findings of the inquiry officer about the
misconduct are based on the documentary evidence and
confessional statement of the workman, the Tribunal cannot
interfere therein. In support of his argument the Id. adv.
resorted to Bombay High Court ruling in Tata Informedia
Ltd. V/s. Tata Press Employees Union & Anr. Wherein on
the point of findings in the disciplinary inquiry the Hon'ble
Court has observed that:
"Once a findings in a disciplinary inquiry is based
on some evidence, the sufficiency of evidence in proof
of the findings lies beyond the scope of scrutiny of
the reviewing court. The findings must however be
supported by legal evidence."
21. In the case at hand the findings of the IO in
respect of guilt of the workman is supported by legal
evidence as has been discussed in issue No. 1 herein above.
The IO has relied upon the confessional statement of the
workman supported by documentary evidence on record.
Therefore findings of the IO cannot be called perverse.
Accordingly I decide this issue No. 2 in the negative. Thus
I proceed to pass the following order:
ORDER
(i) The inquiry is found to be fair and proper.
(ii) The findings of Inquiry Officer are not
perverse.
(iii) The parties are directed to argue/lead evidence
on the point of quantum of punsihment.
Date: 11.10.2013
K.B. KATAKE, Presiding Officer.
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New Delhi, the 30th December, 2013
S.O. 114.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby published the Award Ref. No. 136/2005
of the Cent. Govt. Indus. Tribunal-cum-Labour Court No.
2, Chandigarh No. II as shown in the Annexure, in the
Industrial Dispute between the management of State Bank
of India, Babunikitimal Branch, PO: and their workmen,
received by the Central Government on 30/12/2013.
[No. L-12012/282/2002-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. No. 136/2005
Registered on 20.7.2005
Sh. Kewal Krishan, S/o Sh. Mal Ram, R/o Daghore, PO:
Gurah Slathia, District Jammu (J&K)
....Petitioner
Versus
The Chief Manager, State Bank of India, Samba (J&K).
....Respondent
APPEARANCES :
For the workman
:
Sh. Arun Batra Adv.
For the Management
:
Sh. S.K. Gupta Adv.
AWARD
(Passed on 3.12.2013)
Central Government vide Notification No. L-12012/
282/2002 IR(B-I) Dated 10.2.2003, 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 State Bank
of India, Branch Office, Samba in terminating the
services of Sh. Kewal Krishan w.e.f. 21.8.2001 is just
and legal? If not, what relief the workman is entitled
to?"
In response to the notice, the workman appeared
and filed statement of claim pleading that he was appointed
on 1.5.1993 as Messenger after conducting an interview
by the then Manager Anil Kumar and a Field Officer T.K.
Ambardar. He was paid Rs. 500/- per month which was
enhanced to Rs. 700/-Per month. He was assigned the work
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[PART II—SEC. 3(ii)]
of maintaining the day book in the year 1994 and was allotted
the work of maintaining the schedule Nos. 4 and 5 of the
Branch and DD purchase which was done by him till 1997.
His salary was refixed at Rs. 1050/- per month in the year
1998. He was also assigned the work of Bank Transfer
Scroll which he maintained till his termination. It is further
pleaded that in the month of August, 2001, audit was done
and the Auditor specifically mentioned that petitioner was
working as regular employee of the bank and his work was
satisfactory. That he worked as a regular employee and
has done local collections from various banks and
acknowledged the receipt thereof. That termination of his
services is illegal and against the provisions of law. That
the order of termination be set aside and he be reinstated in
service with all consequential benefits.
Respondent bank filed written reply denying the
relationship and pleaded that the petitioner was Canteeen
Boy appointed by the Local Implementation Committee of
the Branch who paid him salary. He has made some entry in
the record to create evidence and his services were not
terminated by the bank.
In support of his case the petitioner appeared in the
witness box and filed his affidavit reiterating the case as
stated in the claim petition.
On the other hand the bank examined Mr. D.K. Kaul
who filed his affidavit reiterating the case as stated in the
written statement.
It was contended by the learned counsel for the
workman that petitioner joined the bank on 1.5.1993 and
continuously worked for more than seven years when his
services were arbitrarily terminated on 21.8.2001 and in
order to establish the appointment, the learned counsel
pointed out that the workman made entries in the bank
record as he used to maintained day book, Schedule No. 4
and 5 and Schedule 63 of the bank and thus he was regular
employee of the bank whose service have been terminated
arbitrarily and without complying with the provisions of
the Act and the order of termination dated 21.8.2001 is
liable to be set aside.
On the other hand it was argued by the learned
counsel for the bank that petitioner was never employed
by the bank and he simply worked as a Canteen Boy under
the Local Implementation Committee who used to pay salary
and there is no relationship of employer and employee
between the parties.
I have considered the respective contentions of the
learned counsels.
It is the specific case of the petitioner that he was
appointed as a Messenger on 1.5.1993 by conducting an
interview but he did not place on record any appointment
letter to establish that he was actually appointed as an
employee by the bank. Bank is a statutory body and is to
appoint the persons by following a certain procedure but it
is nowhere the case of the workman that he was appointed
after following any procedure or any appointment letter
was issued to him. Being so, it cannot be said that he was
an employee of the bank. If certain entries were made in the
bank record by him, the same do not ipso facto establish
that he was an employee of the bank, more particularly in
the absence of any appointment letter.
The learned counsel for the workman relied on Indian
Overseas Bank Vs. I.O.B Staff Canteen Workers' Union
and another 2000 LAB I.C. 1495 and submitted that even
canteen employees are the employees of the bank. I have
carefully persued the said authority in that case.
Considering the nature and extent of assistance, financial
and otherwise in kind, provided by the bank and the fact
that bank has under taken the obligation to provide canteen
services and canteen workers were listed under a Welfare
Fund Scheme of the bank and were eligible for periodical
medical checkup and were given the benefits of Provident
Fund Scheme and in the circumstances, the canteen workers
were held to be employees of the bank. But the present
case, it is nowhere the case of the workman that it was the
bank who was to provide canteen services to its employees
or the bank has given the facilities as provided in Indian
Overseas Bank case (supra). Rather the Hon'ble Apex Court
in State Bank of India specifically held that the employees
of the canteens which runs at various branches by the
Local Implementation Committee of SBI are not employees
of the bank.
Thus the petitioner cannot claim himself to be an
employee of the bank. When it is so, it cannot be said that
his services have been terminated by the bank and he is
not entitled to any relief. The reference is accordingly
answered against the workman. Let hard and soft copy of
the award be sent to the Central Government for further
necessary action.
KEWAL KRISHAN, Presiding Officer
ubZ fnYyh] 30 fnlEcj] 2013
dkñvkñ 115.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj LVsV cSad vkWQ
bafM;k izca/k ra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp
vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vf/kdj.k
paMhx<+ ds iapkV lanHkZ la[;k 669@2005 dks izdkf'kr djrh gS] tks
dsUnzh; ljdkj dks 30-12-2013 dks izkIr gqvk FkkA
[lañ ,y&12012@247@98&vkbZvkj¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 30th December, 2013
S.O. 115.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref. 669/2005 of
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 11] 2014@ikS"k 21] 1935
209
the Cent. Govt.Indus.Tribunal-cum-Labour Court No. 2,
Chandigarh 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
30.12.2013.
[No. L-12012/247/98-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. No. 669/2005
Registered on 25.8.2005
Sh. Dori Lal, House No. 707/39, Sector 26, Chandigarh.
...Petitioner
Versus
State Bank of India, The Assistant General Manager, State
Bank of India, Region IV, Zonal Office, Punjab Sector 17,
Chandigarh.
...Respondents
APPEARANCES :
For the workman
Sh. Karam Singh.
For the Management
Sh. D.V. Mehta.
AWARD
(Passed on 6.12.2013)
Central Government vide Notification No. L-12012/
247/98-IR(B-I) Dated 26.2.1999, 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 the State
Bank of India in terminating the services of Sh.Dori
Lal w.e.f. 15.9.97 is legal and justified? If not what
relief the concerned workman is entitled to and from
which date?"
In response to the notice, the workman appeared
and filed statement of claim pleading that he was appointed
by the Chief Manager, Circle Stationary Department, as
Canteen Boy to prepare and serve tea to the employees.
His services were also utilized for packing-cum-coolie.
Initially he was paid Rs. 300/- per month which were raised
to Rs. 750/- per month and was paid by the AGM Office,
Admn. Department by issuing cheques in the favour of
Local Implementation Committee who used to pay the
workman also by cheque. He was initially appointed on
30.4.1990 and was allowed to continue till 15th September,
1997. Though his services were utilized as Packer-cum-
Coolie in the Circle Stationary Department but he was not
paid for the said job.
It is further pleaded that space, utensils and fuel for
preparation of tea was provided by the bank and the cost
of the tea was fixed by the Chief Manager. That workman
used to collect the cost of the tea and used to pay to the
Secretary, Local Implementation Committee who used to
spend the same for the purchase of tea leaves, milk, sugar
etc. His services were terminated without complying with
the provisions of the Act which is illegal and he is entitled
to be reinstated in service with all the benefits.
The management filed written reply pleading that
the workman was employed by the Local Implementation
Committee who used to pay him and the workman was
never an employee of the respondent-management. He was
never appointed as Canteen Boy by the management. That
the canteen activities at the Branch were managed by the
Local Implementation Committee and funds are provided
from the Staff Welfare Fund each year/month. That the
Chief Manager was an ex officio President of the Committee.
That the workman used to collect money for serving tea
etc. to the staff. Since the workman was not an employee of
the bank, there was no violation of the provisions of the
Act.
Parties led their evidence.
In suport of its case, the workman examined Babu
Ram, Vinod Gupta and Mr. Antony.
Sh. Dori Lal workman filed his affidavit reiterating
the case as set out in the claim statement.
Babu Ram has deposed in his affidavit that he used
to carry stationary and found the workman in the premises
of the respondent bank doing the work of coolie and packing
of stationary. To that effect is also the deposition made by
Sh. Vinod Gupta.
Mr. Antony is an employee of the respondent and
produced the copy of the cheques Exhibit WW3/1 to 39
and further deposed that papers at page No. 57, 58 and 59
are copies of the bills approved for payment by the bank.
That the workman was working in the bank for packing and
serving tea to the staff.
On the other hand, respondent has examined Sh.
R.K. Bhandari and Satyawan who filed their respective
affidavits deposing on the lines of the stand taken by the
respondents in the written statement.
It was argued by the learned counsel for the workman
that the workman was appointed by the Chief Manager,
Circle Stationary Department as Canteen Boy and he used
to get his salary through cheques and even payment for
210
THE GAZETTE OF INDIA : JANUARY 11, 2014/PAUSA 21, 1935
[PART II—SEC. 3(ii)]
fuel for preparing tea was also made to him and since he
worked from 30.4.1990 to 15.9.1997, it is proved that he was
an employee of the bank. He has further carried me through
the statements of the witnesses and submitted that the
same also prove that the workman continuously worked
with the respondent management as Coolie-cum-Packer
and thus it be held that he was an employee of the bank
and his services have been terminated illegally.
It may be added that the respodent-bank is a statutory
body and have its Rules and Regulations for giving
appointment to persons. Nothing has been placed on the
file to show that any procedure was followed for employing
the workman as employee of the bank. There is nothing to
suggest that Chief Manager was the competent authority
to make appointment of the workman as a Canteen Boy.
The cheques the copies of which are Exhibit WW3/
1 to 39 show that the same were issued by the Local
Implementation Committee and not by the bank. The papers
at page No. 57, 58 and 59 show that some amount was
recommended to be paid on account of fuel charges to the
workman but the same do not ipso facto establish that he
was an employee of the bank.
The statement of workman, Vinod Gupta and Antony
do not establish the workman was employed by the bank
at any point of time as much as no appointment letter has
been placed on the file.
It is the case of the workman himself that he was
employed as Canteen Boy and the respondent bank has
taken the stand that he was employed by the Local
Implementation Committee and the same gets established
from the photocopies of the cheques, discussed above,
which were issued by the said Committee showing that it
was the Local Implementation Committee who engaged
the services of the workman. It is nowhere the case of the
workman that it was the duty of the bank to provide canteen
services to its employees and the employees of the canteen
are governed by the Rules and Regulations of the bank.
The Hon'ble Apex Court in State Bank of India and others
Vs. State Bank of India Canteen Employees' Union (Bengal
Circle) and Others and observed in para 41 of the judgment
as follows:—
"That employees the canteens which are run at
various branches by the Local Implementation
Committees as per the welfare scheme framed by the
SBI would not become employees of the Bank as the
Bank is not having any statutory or contractual
obligation or obligation arising under the Award to
run such canteens. Hence, it is not necessary to
decide the second question that fresh petition for
the same cause was not maintainable in view of the
order dated 14.10.1985 passed by this Court in Civil
Appeal No. 840 of 1977."
Thus, the workman is not an employee of the bank. It
cannot be said that his services have been terminated by
the respondent bank and he is not entitled to any relief.
The reference is accordingly answered against the
workman. Let hard and soft copy of the award be sent to
the Central Government for further necessary action.
KEWAL KRISHAN, Presiding Officer
ubZ fnYyh] 30 fnlEcj] 2013
dkñvkñ 116.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ fd /kkjk 17 ds vuqlj.k esa dsaæh; ljdkj LVsV cSad vkWQ
gSnjkckn izca/k ra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp
vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsaæh; ljdkj vkS|ksfxd vf/
kdj.k gSnjkckn ds iapkV lanHkZ la[;k 10@2007 dks izdkf'kr djrh
gS] tks dsaæh; ljdkj dks 30-12-2013 dks izkIr gqvk FkkA
[lañ ,y&12012@98@2006&vkbZ vkj ¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 30th December, 2013
S.O. 116.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref. 10/2007 of
the Central Government Industrial Tribunal-cum-Labour
Court, Hyderabad as shown in the Annexure, in the
Industrial dispute between the management of State Bank
of Hyderabad, and their workmen, received by the Central
Government on 30.12.2013.
[No. L-12012/98/2006-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 31st day of October, 2013
INDUSTRIAL DISPUTE NO. 10/2007
Between:
Sri J. Vijaya Raju,
R/o H.No. 4-1-168, Ramnagar,
Kothagudem-507101.
.....Petitioner
AND
The Deputy General Manager,
State Bank of Hyderabad,
Gunfoundry, Hyderabad-500 001.
.....Respondent
Appearances:
For the Petitioner:
M/s. A. Sarojana, K. Vasudeva
Reddy & S. Srinivas, Advocates
For the Respondent: Sri P.A.V. Bala Prasad, Advocate
¹Hkkx II—[k.M 3(ii)º
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211
AWARD
The Government of India, Ministry of Labour by its
order No. L-12012/98/2006-IR(B.I) dated 29.12.2006 referred
the following dispute under section 10(1)(d) of the I.D.
Act, 1947 for adjudication to this Tribunal between the
management of State Bank of Hyderabad and their workman.
The reference is,
SCHEDULE
"Whether the action of the management of State Bank
of Hyderabad, Hyderabad (A.P.) in terminating the
services of Sh. J. Vijaya Raju, Casual Worker w.e.f.
20.10.2005 without following the provisions of
Section 25-F of the Industrial Disputes Act, 1947 is
proper and justified? If not, to what relief the workman
concerned is entitled?"
The reference is numbered in this Tribunal as I.D.
No. 10/2007 and notices were issued to the parties
concerned.
2. Petitioner filed claim statement. Respondent has
not filed any counter statement. Petitioner has filed chief
examination affidavit and case stands posted for cross
examination of Petitioner. At this stage Petitioner filed one
I.A. 137/2013 for calling petty cash registers from
Respondent.
3. While so, Petitioner's counsel is present and
reported that he has no instructions from Petitioner. On
last date of hearing he was informed about the letter
purported to be written by Petitioner in which it is stated
that Petitioner is withdrawing the case. Petitioner's counsel
is appraised of the letter. He sought for time to verify and
report. Now, Petitioner's counsel reported no instructions
from Petitioner.
4. In the circumstances, considering that Petitioner
is having no interest 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 31st day of October,
2013.
M. VIJAYA LAKSHMI, Presiding Officer
Appendix of evidence
Witnesses examined for the
Witnesses examined
Petitioner
for the Respondent
NIL
NIL
Documents marked for the Petitioner
NIL
Documents marked for the Respondent
NIL
ubZ fnYyh] 30 fnlEcj] 2013
dkñvkñ 117.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ fd /kkjk 17 ds vuqlj.k esa dsanzh; ljdkj ckWEcs edsZVkby
dks&vkWijsfVo cSad fyfeVsM izca/k ra= 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 ubZ fnYyh ds iapkV ¼lanHkZ la[;k 67@2012½
dks izdkf'kr djrh gS] tks dsanzh; ljdkj dks 30@12@2013 dks izkIr
gqvk FkkA
[lañ ,y&12025@01@2013&vkbZvkj ¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 30th December, 2013
S.O. 117.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), The Central
Government hereby publishes the Award (Ref. No. 67/2012)
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 M/s Bombay
Mercantile Co-operative Bank Ltd., and their workmen,
received by the Central Government on 30/12/2013
[No. L-12025/01/2013-IR (B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE DR. R. K. YADAV, PRESIDING
OFFICER, CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL NO. 1, KARKARDOOMA
COURTS COMPLEX, DELHI
I.D.No.67/2012
Shri Shakeel Ahmed
S/o Sh.Abdul Waheed,
R/o 350/356, Flat No. 6,
Second Floor, Katra Budhan Rai Bazar,
Delhi Gate, Daryaganj,
Delhi.-110002.
..........Workman
Versus
M/s Bombay Mercantile Co-operative Bank Ltd.,
Delhi Branch, 36, Netaji Subhash Marg,
Daryaganj, Delhi.
........Management
AWARD
A cashier working with Bombay Mercantile Co-
operative Bank Ltd. (in short the bank) was operating
saving bank account No. 50575 in the bank. From 2004 to
2007, he was working in savings seat of the bank. When
balancing of saving accounts was got done, he came to
know that there was difference of Rs. 16,38,000.00 in General
Ledger and Progressive Ledgers maintained by the bank.
When his seat was to be changed in June 2007, he got
access to 'SMILE code' opened the system and in back
212
THE GAZETTE OF INDIA : JANUARY 11, 2014/PAUSA 21, 1935
[PART II—SEC. 3(ii)]
date he created entry of Rs. 16,38,000.00 in his saving bank
account, referred above. He withdrew an amount of Rs.
16,25,000.00 from the said account. He was transferred to
Current Accounts seat of the bank. In order to cross tally
the General Ledger and Progressive Ledgers of the bank,
he opened the system and in back date, viz. 31.12.2001, he
had shown that sum as deposited in his saving bank
account. When this fraud came a light, he was suspended.
On 20.03.2010, he confessed his guilt and deposited a sum
of Rs. 17 lakh with the bank, with a view to make loss good.
2. Charge sheet dated 18.08.2000 was served upon
him. Domestic enquiry was conducted. Enquiry Officer
recorded findings against the cashier. The Disciplinary
Authority awarded punishment of 'dismissal from service
of the bank without notice' vide order dated 31.10.2011.
The cashier moved an application before the Conciliation
Officer on 23.11.2011, raising his grievances before that
forum. On expiry of period of 45 days from the date of
moving an application before the conciliation Officer, the
Cashier raised his dispute before this Tribunal for
adjudication under sub section (2) of section 2A of Industrial
Disputes Act, 1947 (in short the Act) without being referred
by the appropriate Government under sub-section (1)
section 10 of the Act. Since dispute was raised within a
period of limitation, as provided by sub-section (3) of
section 2-A of the Act, It was registered as an industrial
dispute.
3. Claim statement filed by the cashier, namely, Shri
Shakeel Ahmed, pleading that he joined services of the
bank on 09.01.1996 at its Delhi branch. He rendered services
with honesty, dedication and punctuality. Not even a single
incident was reported against him, except the alleged
fabricated incident of fraud. His last drawn salary was Rs.
16,000.00 per month.
4. Claimant pleads that charge sheet dated 18.08.2010
was served upon him wherein it was alleged that while
working at Delhi branch, he misappropriated bank's funds
to the extent of Rs. 16,38,000.00 by manipulating and
tampering with the entries in books of account/computer
and withdrew a sum of Rs. 16,25,000.00 through clearing
and thus committed acts prejudicial to the interest of the
bank. He presents that a story was concocted by the bank
to the effect that a letter was received from the
Commissioner of Income tax on 27.08.2009 wherein
information was sought regarding deduction of income tax
at source on payment of interest exceeding Rs. 10,000.00.
Information was supplied by the bank vide letter dated
02.09.2009. On scrutiny of interest awarded to various
accounts amounting of Rs. 10,000.00 and above, it was
noticed that an amount of Rs. 59,000.00 was credited on
06.09.2008 in saving bank account No. 50575. On enquiry,
account opening form and specimen signature card of the
said account were found missing. Resultantly name and
address of the account holder could not be ascertained.
The said account was closed on 27.11.2008. However, on
scrutiny of transactions in the aforesaid account, it was
noted that four fixed deposit receipts, in the name of the
claimant, were transferred in the said account on 21.08.2001.
Thus, it came to light that the said account belonged to the
claimant. Chequebook was issued in the name of the
claimant and Deeba. Subsequently, another cheque book
was issued to the claimant, which fact led to confirmation
of fact that the said account was opened by him. It was
mentioned in the charge sheet that on going through the
statement of account, it revealed that there was a credit
transfer of Rs. 16,38,000.00 in the said account, on
31.12.2001 and withdrawal of a sum of Rs. 16,25,000.00 on
09.06.2007 through clearing. However, interest ranging
between Rs. 2.00 to Rs. 537.00 only was shown credited
during the period from 2002 to 2008. Since the account
reflected credit balance of over Rs. 16,38,000.00, above
transaction was found to be suspicious. M/s Zenith
Infotech was consulted for their expert opinion, who
confirmed that the said account was modified on three
occasions. Charge sheet further proceeds that the claimant
had deposited a sum of Rs. 17,00,000.00 by way of cash on
20.03.2010 to make good the loss caused on account of
unauthorized and fraudulent transaction. It was also
mentioned therein that the claimant confessed his guilt.
5. Allegations, to the effect that saving bank account
No. 50575 belonged to the claimant and Deeba, were based
on the fact that cheque book was issued in their name on
16.06.2001. As charge-sheet unfolds that the bank came to
know that the claimant credited transfer entry of Rs.
16,38,000.00 in that account on 31.12.2001 and the said
amount remained in the account till 09.06.2007. There were
allegations in the charge sheet to the effect that a sum of
Rs. 16,25,000.00 was withdrawn from the account through
clearing. However, no document was there in possession
of the bank to show as to who opened that account and
under whose signatures the account was being maintained.
It is also a mystery as to from where amount of Rs.
16,38,000.00 came in the aforesaid account. As per
procedure, an account will not be opened without receiving
account opening form, authentic documents pertaining to
residence of the account holder and his work place. Account
opening form is to be attested by an introducer, who must
have an account in the bank. The account must be operated
by way of depositing money or withdrawing the same
through cheques or otherwise. Credit and withdrawal
enteries are made in various ledgers. When an amount, to
be withdrawn, happens to be considerably higher, then the
Branch Manager is to verify the particulars of the person
withdrawing the amount. In absence of any document, it is
difficult to believe that an amount of Rs. 16,38,000.00 was
deposited on 31.12.2001 in saving bank account No. 50575,
which entry could not be noticed till 2010. These facts
make the very basis of the charge sheet unworthy of
credence.
¹Hkkx II—[k.M 3(ii)º
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213
6. Claimant proceeds that the bank appointed Shri
Anzar Hussain, Advocate, as Enquiry Officer. He moved
an application before the Enquiry officer on 08.10.2010
asking him to provide documents to facilitate him to file
reply to the charge sheet. He also requested to allow him to
bring an advocate to defend in the enquiry. The Presenting
officer informed the Enquiry Officer that the account
opening form and specimen signature card etc. had been
destroyed by the claimant himself. Under these
circumstances, the Enquiry officer asked him to inspect
the record, instead of supplying the documents. Since the
matter was complicated, the claimant was legally entitled
to bring an advocate to defend himself. His request, to be
defended by an advocate, was not conceded to. However,
he was permitted to be defended by Shri Amin Abdul Hamid
Sheikh. He denied all allegations made in the charge sheet.
The bank was examined Shri Jai Prakash as witness before
the Enquiry Officer. At the request of the claimant,
Shri Shikoh Salim was allowed to defend him. On conclusion
of cross examination of Shri Jai Prakash, he was called
upon to produce his defence. In addition to his own
statement, he made his written statement of defence. The
Enquiry Officer concluded the enquiry and submitted his
report dated 15.07.2011. Show cause notice was issued
calling upon him to explain as to why punishment of
'dismissal from service' may not be awarded. He filed his
reply dated 09.10.2011. Dismissal order dated 31.10.2011
was issued to him.
7. Claimant projects that he was working under Rais
Ahmed Siddique, Officer In-charge of the branch.
Shri Siddique only was able to have access to SMILE
Code, being the final authority of transactions in the bank.
The bank failed to produce any document to show specimen
signature of the person who opened the account as well as
any application for issue of cheque book. It was also not
proved as to from where amount of Rs. 16,38,000.00 was
transferred in saving bank account No. 50575. The bank
also failed to establish as to how account was maintained
in different names at different times, as allegedly detected
by M/s. Zenith Infotech. It was not made clear as to how
the aforesaid transactions remained unnoticed from 2001
to 2008. It is also not proved as to from where a sum of Rs.
17,00,000.00 was deposited in the bank by him it was the
duty of the bank to give answers to all these propositions.
Enquiry conducted by the Enquiry Officer was not in
consonance with principles of natural justice. The Enquiry
Officer, being a legal advisor to the bank, was interested to
hold the claimant guilty of the charges. He claims that report
of the Enquiry Officer is perverse. Since enquiry was
conducted in English, he was unable to understand it, being
a post graduate in Urdu. Enquiry Officer was biased against
him. No legal assistance was provided to him. He projects
that the bank failed to prove the charges against him and
punishment of dismissal is illegal. He claims reinstatement
in service with continuity and full back wages.
8. The bank demurs the claim pleading that the dispute
raised by the claimant is not in consonance with provisions
of sub-section (2) of section 2A of the Act. Claimant had
not moved application before the Conciliation Officer,
hence direct dispute, presented for adjudication, was
premature and liable to be rejected. Office order was issued
on 11.05.2001 detailing therein that the claimant
unauthorizedly and illegally credited an amount of Rs.
16,38,000.00 in saving bank account No. 50575 by
manipulating entries in books of account/computer in back
dates by misusing SMILE passward and withdrew Rs.
16,75,000.00 through clearing. During investigation on
20.03.2010, the claimant confessed his guilt. He also
deposited a sum of Rs. 17,00,000.00 with the bank to make
loss good. Claimant was suspended and charge sheet dated
18.08.2001 was served upon him. Charge sheet served upon
the claimant was specific and clear. Shri Anzar Hussain
was appointed as Enquiry Officer, who issued notice on
11.10.2010 calling upon the claimant to appear before him.
The claimant filed reply to the charge sheet on 16.12.2010,
wherein he admitted that in order to make loss good, he
had deposited a sum of Rs. 17,00,000 in the bank. He
requested the bank not to initiate any criminal or penalty
proceedings against him. His request letter was also
witnessed by his father in law. The Enquiry Officer granted
him reasonable opportunities to defend. He was permitted
to cross examine the witness examined by the hank. He,
himself, entered in his defence, wherein he admitted his
guilt. The Enquiry Officer recorded his findings against
the claimant, vide report dated 15.07.2011. The Disciplinary
Authority served notice on the claimant calling upon him
to explain as to why punishment of dismissal from service
without notice should not be awarded to him. On
consideration of his submissions, punishment of dismissal
was awarded to him on 31.10.2011. The bank presents that
punishment awarded to the claimant commensurate to his
misconduct. Claim statement filed by him deserves
dismissal, being devoid of merits, pleads the bank.
9. On pleadings of parties, following issues were
settled:
(i)
Whether present direct reference has been filed
in contravention of the provisions of sub-
section (2) of section 2A of the Industrial
Disputes Act?
(ii)
Whether enquiry conducted by the
management is in consonance with principles
of natural justice and fair play?
(iii)
Whether punishment of dismissal from service,
awarded to the claimant, does not
commensurate to his misconduct?
(iv)
To what relief, if any, the claimant is entitled
to?
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[PART II—SEC. 3(ii)]
10. Issues No. (I) and (II) were treated as preliminary
issues.
11. The claimant examined himself to discharge onus
resting on him. The bank examined Shri Sultan Farid to
prove its stand. No other witness was examined by either
of the parties.
12. On hearing Dr. M.Y. Khan, authorised
representative of the claimant, and Shri Mohinder Singh,
authorised representative of the bank, preliminary issue
No. 1 was answered in favour of the claimant, while issue
relating to virus of the enquiry was answered in favour of
the bank, vide order dated 14.05.2013.
13. Arguments on proportionality of punishment
were heard at the bar. Dr. M.Y. Khan, authorised
representative, advanced arguments on behalf of the
claimant. Shri Mohinder Singh, authorised representative,
presented facts on behalf of the bank. 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. III
14. In order to assess adequacy of punishment
awarded to the claimant, it is expedient to have a glance on
charges served upon him. Charge sheet Ex. WW 1/3 enlists
charges in the following manner:
"A. Mr. Shakeel Ahmad Abdul Waheed, Code No.
3329, Cashier working at Delhi branch has been placed
under suspension vide Office order No. 73/STF'IR/
1636 dated 11.05.2010. It is decided to hold a domestic
enquiry against him in the following matter:
Mr. R.K. Gupta, Commissioner of Income Tax (TDS),
New Delhi, vide his letter No. CIT(TDS)/Del/T-3(4)/
197A/09-10/959 dated 27th August, 2009 addressed
to Assistant General Manager, Northern India Region
called for information under Section 133(6) of the
Income Tax Act, 1961, in the prescribed manner
regarding deduction of TDS on payment of interest
exceeding Rs. 10,000.00 and above made to any
person during financial year 2007-2008 and 2008-2009.
The Assistant General Manager (Northern India
Region) advised Officer in charge of Savings Departmet
vide his letter No. 34/NI/AGM/SF/1101 dated 2nd September
2009 to furnish requisite information within the stipulated
time in compliance thereof.
On scrutiny of interest credited to various accounts
of Rs. 10,000.00 and above, it was noticed that an amount
of Rs. 59,000.00 was credited on 6th September, 2008 in
Savings Bank Account No. 50575. However, since the
account opening form and the specimen signature card of
the said account was not held on record, the name and
address of the account holder could not be ascertained.
The said account No. 50575 was closed on 27.11.2008.
On scrutiny of the transactions in the said account
No. 50575, it was observed that proceeds of 4 Fixed Deposit
Receipts Nos. 37528, 41043, 42516. and 41836 held in the
name of Mr. Shakeel Ahmad Abdul Waheed were transferred
on 21st August, 2001, which gave credence to the belief
that the said account belonged to Mr. Shakeel Ahmad Abdul
Waheed.
On going through the cheque book issue register, it
is observed that cheque book bearing Nos. 174711 to
174720 was issued on 16.06.2001 in SB Account No. 50575
in the name of Mr. Shakeel and Deeba and the same was
acknowledged having received by Mr. Shakeel Ahmad
Abdul Waheed, who has signed having received the same
Subsequently, another cheque book bearing No. 534821 to
534830 was issued to Mr. Shakeel Ahmad Abdul Waheed
having acknowledged by him. This confirmed that the said
account was opened by Mr. Shakeel Ahmad Abdul Waheed.
On going through the statements of accounts, it is
revealed that there was a credit transfer entry dated
31.12.2001 amounting to Rs. 16,33,000.00 in the said SB
account No. 50575 and withdrawal of Rs. 16,25,000.00 was
made on 9th of June, 2007 through clearing. However,
interest ranging between Rs. 2 to Rs. 537 only was applied
in the said account during half yearly intervals between
the period from 2002 to 2008 even as the account was
showing credit balance of Rs. 16,38,000.00. On being
suspicious about the transactions in the said account M/s
Zenith Infotech were consulted for their expert opinion
who confirmed that the said account has been modified on
three occasions.
During the Course of investigation on 20th March,
2010 Mr. Shakeel Ahmad Abdul Waheed confessed in
writing vide his letter dated 20th March, 2010 in Hindi
addressed to the Assistant General Manager, Northen India
Region, Delhi, having made the said withdrawal by
manipulating books of accounts.
Besides he also admitted in the presence of the
Assistant General Manager (Northern India Region) having
unauthorizedly changed the title of the said SB account
No. 50575 from his own name to the name of Mr. Sayed Ali
and destroyed the account opening form etc. so as to avoid
detection of the fraud.
Mr. Shakeel Ahmad Abdul Waheed deposited
Rs. 17,00,000.00 by way of cash on 20th March, 2010
towards his unauthorized and fraudulent transactions
committeed by him.
B. It is revealed that Mr. Shakeel Ahmad Abdul
Waheed had issued a cheque bearing No. 524826 for Rs.
16,25,000.00 from the cheque book issued to him which
was presented through clearing on 09.06.2007 by UTI Bank
Daryaganj Branch, Delhi (Now Axis Bank).
¹Hkkx II—[k.M 3(ii)º
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215
As per inward clearing list as on 09.06.2007, the title
of the account is reflected as Mr. Syed Ahmed against
payment of the said cheque through clearing of
Rs. 16,25,000.00.
On making enquiries with Axis Bank, it is revealed
that Mr. Shakeel Ahmad, Abdul Waheed had opened a
Savings Bank account No. 43772 with the said bank on
30.05.2007 with cash of Rs. 5500.00 and deposited the said
cheque bearing no. 534826 in clearing for Rs. 16,25,000.00
on 09.06.2007. Apart from this there was a deposit of an
amount of Rs. 4,00,000.00 on 20.05.2009, Rs. 4,50,000.00 on
16.06.2000, Rs. 6,00,000.00 in September 2009 and
Rs. 90,000.00 on 30.03.2010 in the said account maintained
with Axis Bank.
This shows that Mr. Shakeel Ahmad Abdul Waheed
manipulated the entries in the SB account No. 50575 and
committed misappropriation of funds to the extent of
Rs. 16,38,000.00.
Mr. Shakeel Ahmad Abdul Waheed has confessed
the unauthorized and fraudulent transactions committed
by him vide his letter dated 20th March 2010 and deposited
Rs. 17,00,000.00 with the Bank towards the unauthorized
fraudulent transactions committed by him.
In view of the foregoing, Mr. Shakeel Ahmad Abdul
Waheed is charged as under:
"Mr. Shakeel Ahmad Abdul Waheed, Code No. 3329,
Cashier, working at Delhi branch committed
misappropriation of bank's fund to the extent of
Rs. 16,38,000.00 by manipulating and tampering with
entries in books of accounts/computer and withdrew
an amount of Rs. 16,25,000.00 through clearing, which
is an act prejudicial to the interest of the bank."
The inquiry into the aforesaid charge will be held as
per the provisions of Memorandum of Settlement dated
15.01.1992 on Service Conditions and Conduct Rules, etc.
by the Inquiry Officer appointed by the Bank. The date,
time and venue of the inquiry will be intimated to Mr. Shakeel
Ahmad Abdul Waheed.
In the meantime, Mr. Shakeel Ahmad Abdul Waheed
may submit his written explanation to the charge sheet
within 10 days of receipt thereof."
15. In his report, the Enquiry Officer recorded findings
against the claimant, which are reproduced thus:
"I have carefully gone through the entire proceedings
and the evidence on behalf of the CSE and evidence of the
management witness and also perused the entire record
and documents. The documents/records exhibit MW1/
A(colly) produced during the course of inquiry by the
management shows that the CSE has manipulated the
entries in the SB account No. 50575 and further the
management witness in his statement/evidence MW1/B
has proved that the CSE was having access to SMILE
CODE for modification and rectification etc. and the CSE
used the same on various occasions, as such there is
nothing to disbelieve on the version of the management
witness. Further, the CSE also admitted the withdrawal of
the amount and the same was deposited with the bank and
tendered apology and requested to spare him from any
punitive action. Thus, the management successfully proved
that CSE manipulated the entries in the SB account
No. 50575 and committed misappropriation of funds of the
bank to the extent of Rs. 16.38 lakh. I am of the opinion that
in view of the aforesaid facts, records and documents and
the evidence produced by the management, the charges
framed against the CSE vide charge sheet ref. No. 73 STF/
IR/5238 dated 28.08.2010 stands proved conclusively."
16. Findings, recorded by the Enquiry Officer, make
it obvious that the claimant manipulated entry of
Rs. 16,38,000.00 in saving bank account No. 50575 in June,
2007 in back date. He withdrew a sum of Rs. 16,25,000.00
through clearing. When fraud came to light, during the
course of investigation he confessed his guilt on
20.03.2010. He deposited a sum of Rs. 17 lakh in the bank
on that date. His confessional statement, which was
recorded by the claimant in his own hand, was witnessed
by his father in law. Therefore, it is evident that by
manipulating entries in bank account/computer, claimant
committed fraud and cheated the bank to the tune of
Rs. 16,25,000.00.
17. Punishment of dismissal from service was awarded
to the claimant. Question for consideration comes as to
whether there are any justifications for punishment of
dismissal? It is well settled proposition of law that right of
an employer to inflict punishment of discharge or dismissal
is not unfettered. The punishment imposed must
commensurate with gravity of the misconduct, proved
against the delinquent workman. Prior to enactment of
section 11-A of the Act, it was not open to the industrial
adjudicator to vary the order of punishment on finding
that the order of dismissal was too severe and was not
commensurate with the act of misconduct. In other words,
the industrial adjudicator could not interfere with the
punishment as it was not required to consider propriety or
adequacy of punsihment or whether it was excessive or
too severe. Apex Court, in this connection, had, however,
laid down in Bengal Bhatdee Coal Company [1963(1) LLJ
291] that where order of punsihment was shockingly
disproportionate with the act of the misconduct which no
reasonable employer would impose in like circumstances,
that itself would lead to the inference of victimization or
unfair labour practice which would vitiate order of dismissal
or discharge. But by enacting the provisions of section 11-
A of the Act, the Legislature has transferred the discretion
of the employer, in imposing punishment, to the industrial
adjudictor. It is now the satisfaction of the industrial
adjudicator to finally decide the quantum of punishment
for proved acts of misconduct, in cases of discharge or
dismissal. If the Tribunal is satisfied that the order of
216
THE GAZETTE OF INDIA : JANUARY 11, 2014/PAUSA 21, 1935
[PART II—SEC. 3(ii)]
discharge or dismissal is not justified in any circumstances
on the facts of a case, it has the power not only to set aside
order of punishment and direct reinstatement with back
wages, but it has also the power to imposed certain
conditions as it may deem fit and also to give relief to the
workman, including award of lesser punishment in lieu of
discharge or dismissal.
18. It is established law that imposing punishment
for a proved act of misconduct is a matter for the punishing
authority to decide and normally it should not be
interfered with by the Industrial Tribunals. The Tribunal
is not required to consider the propriety or adequacy of
punishment. But where the punishment is shockingly
disproportionate, regard being had to the particular
conduct and past record or is such as no reasonable
employer would ever impose in like circumstance, the
Tribunal may treat the imposition of such punishment as
itself showing victimization or unfair labour practice. Law
to this effect was laid by the Apex Court in Hind
Construction and Engineering Company Labour [1965 (1)
LLJ 462]. Likewise in Management of the Federation of
Indian Chambers of Commerce and Industry [1971 (II)
LLJ 630] the Apex Court ruled that the employer made a
mountain out of a mole hill and had blown a trivial matter
into one involving loss of prestige and reputation and as
such punishment of dismissal was held to be unwarranted.
In Ram Kishan [1996 (1) LLJ 982] the delinquent employee
was dismissed from service for using abusive language
against a superior officer. On the facts and in the
circumstances of the case, the Apex Court held that the
punishment of dismissal was harsh and disproportionate
to the gravity of the charge imputed to the delinquent. It
was ruled therein, "when abusive language is used by
anybody against a superior, it must be understood in the
environment in which that person is situated and the
circumstances surrounding the event that led to the use
of abusive language. No straight-jacket formula could be
evolved in adjudicating whether the abusive language
in the given circumstances would warrant dismissal
from service. Each case has to be considered on its own
facts".
19. In B.M. Patil [1996 (11) LLJ 536], Justice Mohan
Kumar of Karnataka High Court observed that in exercise
of discretion, the disciplinary authority should not act like
a robot and justice should be moulded with humanism and
understanding. It was assess each case on its own merit
and each set of fact should be decided with reference to
the evidence recording the allegation, which should be
basis of the decision. The past conduct of the worker may
be a ground for assuming that he might have a propensity
to commit the misconduct and to assess the quantum of
punishment to be imposed. In that case a conductor of the
bus was dismissed from service for causing revenue loss
of 50p to the employer by irregular sale of tickets. It was
held that the punishment was too harsh and
disproportionate to the act of misconduct.
20. After insertion of section 11-A of the Act, the
jurisdiction to interfere with the punishment is there with
the Tribunal, who has to see whether punishment imposed
by the employer commensurate with the gravity of the act
of misconduct. If it comes to the conclusion that the
misconduct is proved, it may still hold that the punishment
is not justified because misconduct alleged and proved is
such as it does not warrant punishment of discharge or
dismissal and where necessary, set aside the order of
discharge or dismissal and direct reinstatement with or
without any terms or conditions as it thinks fit or give any
other relief, including the award of lesser punishment, in
lieu of discharge or dismissal, as the circumstance of the
case may warrant. Reference can be made to a precedent in
Sanatak Singh (1984 Lab. I.C. 817). The discretion to award
punishment lesser than the punishment of discharge or
dismissal has to be judiciously exercised and the Tribunal
can interfere only when it is satisfied that the punishment
imposed by the management is highly disproportionate to
the decree of the guilt of the workman. Reference can be
made to the precedent in Kachraji Motiji Parmar [1994 (II)
LLJ 332]. Thus it is evident that the Tribunal has now
jurisdiction and power of substituting its own measure of
punishment in place of the managerial wisdom, once it is
satisfied that the order of discharge or dismissal is not
justified. On facts and in the circumstances of a case,
Section 11A of the Act specifically gives two folds powers
to the Industrial Tribunal, first is virtually the power of
appeal against findings of fact made by the Enquiry Officer
in his report with regard to the adequacy of the evidence
and the conclusion on facts and secondly of foremost
importance, is the power of reappraisal of quantum of
punishment.
21. Power to set aside order of discharge or dismissal
and grant relief of reinstatement or lesser punishment is
not untramaled power. This power has to be exercised only
when Tribunal is satisfied that the order of discharge or
dismissal was not justified. This satisfaction of the Tribunal
is objective satisfaction and not subjective one. It involves
application of the mind by the Tribunal to various
circumstances like nature of delinquency committed by
the workman, his past conduct, impact of delinquency on
employer's business, besides length of service rendered
by him. Furthermore, the Tribunal has to consider whether
the decision taken by the employer is just or not. Only after
taking into consideration these aspects, the Tribunal can
upset the punishment imposed by the employer. The
quantum of punishment cannot be interefered with without
recording specific findings on points referred above. No
indulgence is to be granted to a person, who is guilty of
grave misconduct like cheating, fraud, misappropriation of
employers fund, theft of public property etc. A reference
cannot be made to the precedent in Bhagirath Mal Rainwa
[1995 (1) LLJ 960].
¹Hkkx II—[k.M 3(ii)º
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217
22. On turning to facts, one would note that the
claimant got opened a saving bank account No. 50575 with
the bank. He got access to SMILE Code and made entry of
a sum of Rs. 16,38,000.00 in the said account, in back date.
Thereafter he withdraw a sum of Rs. 16,25,000.00 from the
said account on 09.06.2007 through clearing. Thus it is
evident that the claimant manipulated the entry in the
aforesaid saving bank account and inflated the money
deposited therein. He defrauded the bank to the tune of
Rs. 16,25,000.00 by mainpulation in the above saving bank
acount. After withdrawal of the said amount from the
aforesaid account, he modified that account with a view to
conceal his act. Acts committed by the claimant amount to
fraud.
23. Acts of dishonesty or fraud constitute
misconduct of serious nature warranting penalty of
dismissal. The Apex Court inTika Ram and Sons Pvt. Ltd.
[1960 (1) LLJ 514] ruled that such an employee has no right
to remain in service of his employer. Punishment of
dismissal is the appropriate penalty for an employee who
commits such serious misconduct. In view of these facts,
punishment of dismissal from service, awarded to the
claimant, commensurate to his misconduct. Issue is,
accordingly, answered in favour of the bank and against
the claimant.
Issue No. IV
24. Since punishment awarded to the claimant
commensurate to his misconduct, he is not entitled to relief
of reinstatement is service. No indulgence could be
accorded to such an employee who commits fraud, while in
service of his employer. Dismissal is the appropriate
punishment for such misconduct. Resultantly, I am of the
considered view that claimant is not entitled to any relief,
muchless the relief of reinstatement in service with
continuity and full back wages. His claim statement is
discarded. An award is, accordingly, passed. It be sent to
the appropriate Government for publication.
DR. R.K. YADAV, Presiding Officer
Dated: 19.11.2013.
ubZ fnYyh] 30 fnlEcj] 2013
dkñvkñ 118.—vkS|ksfxd fookn vf/kfu;e] 1947] ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUæh; ljdkj fcykliqj jk;iqj
{ks=h; xzkeh.k cSad ds izca/ku ds lac) fu;kstdksa vkSj muds deZdkjksa
ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUæh; ljdkj vkS|ksfxd
vf/kdj.k tcyiqj ds iapkV ¼lanHkZ la[;k 152/92) dks izdkf'kr
djrh gS tks dsUæh; ljdkj dks 30-12-2013 dks izkIr gqvk FkkA
[lañ ,y&12012@36@92&vkbZ vkj ¼ch&3½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 30th December, 2013
S.O. 118.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 152/92)
of the Central Government Industrial Tribunal-cum-Labour
Court, Jabalpur as shown in the Annexure in the Industrial
Dispute between the management of Bilaspur Raipur
Kshetriya Gramin Bank and their workmen, received by the
Central Government on 30.12.2013.
[No. L-12012/36/92-IR (B-3)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-
LABOUR COURT, JABALPUR
No. CGIT/LC/R/152/92
PRESIDING OFFICER: SHRI R.B. PATLE
Shri Derha Ram Verma,
Post Gram: Sejbahar,
Tehsil Distt. Raipur.
...Workman
Versus
The Chairman,
Bilaspur Raipur Kshetriya Gramin Bank,
Dayalbandh,
Bilaspur.
...Management
AWARD
(Passed on this 10th day of December, 2013)
1. As per letter dated 3-7-92 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/
36/92/IR (B-3). The dispute under reference relates to:
"Whether the action of the management of Bilaspur
Raipur Kshetriya Gramin Bank in relation to their
Cana Branch in not allowing Shri Derha Ram Verma,
Sub-Staff to work w.e.f. 20-8-1991 is justified? If not,
to what relief the workman is entitled to?"
2. After receiving reference, notice were issued to
the parties. Ist party workman filed Statement of claim at
Page 3/1 to 3/3. The case of Ist party workman is that he
was employed as sweeper cum waterman in Bilaspur Raipur
Kshetriya Gramin Bank from 17-12-1980. He continued to
work till 8-4-84. Thereafter he was suffering from mental
illness. He was receiving treatment from D.K. Hospital,
Raipur and could not attend his duties. That he was declared
fit for duty on 20-8-91. He submitted medical certificate of
his illness. However he was informed in October 1991 that
he has abandoned service, he would not be permitted to
join duty. Workman submits that he was not served with
218
THE GAZETTE OF INDIA : JANUARY 11, 2014/PAUSA 21, 1935
[PART II—SEC. 3(ii)]
chargesheet, he was not given opportunity of hearing. He
had completed more than 240 days service prior to his
termination. When the termination of his services amounts
to illegal retrenchment, Section 25-F of I.D. Act was not
complied. That the relative of workman has informed the
Manager about his illness and receiving treatment. Despite
of it without conducting enquiry, his services are terminated
illegally. He was not permitted to join duties since 20-8-91.
Workman prays direction to the management to allow him
to join duties and consequent benefits.
3. IInd party filed Written Statement at Page 6/1 to 6/3.
Claim of workman is totally denied. IInd party denies that
the workman was employed by management from 17-12-1980
rather it is submitted that there is no post of sweeper cum
waterman as per Staff Regulation. It is denied that workman
was suffering from mental illness and receiving treatment
in D.K. Hospital, Raipur. It is denied that the management
was intimated about the medical certificate. It is denied
that management informed workman that he had abandoned
service and could not be allowed to work. It is denied that
termination order was issued by the management. That
workman had not completed 240 days continuous service.
Violation of Section 25-F of I.D. Act is denied. The relatives
of workman has not informed about mental illness of
workman. That workman was engaged as part time daily
rated workman as per availability of work in the branch. His
services are not covered by Staff Service Regulations. Ist
party is not entitled to join duties as claimed by him.
4. IInd party submitted rejoinder at Page 7/1 to 7/2
reiterating its contentions in Written Statement.
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 Bilaspur Raipur
Kshetriya Gramin Bank in
relation to their Cana Branch in
not allowing Shri Derha Ram
Verma, Sub-Staff to work w.e.f.
20-8-1991 is justified?
(ii) If not, what relief the workman
As per final order.
is entitled to?"
REASONS
6. The workman is praying directions to the
management to allow him to join duties. That his services
are terminated in violation of Section 25-F of I.D. Act on
the ground that he has abandoned service. The
management has denied entire claim of the workman.
Workman filed affidavit of his evidence. Workman have
stated that he was employed as sweeper cum waterman
w.e.f. 17-12-1980. He was continuously working till 8-4-84.
He worked for more than 240 days during each of the
calendar year. He suffered from illness and receiving
treatment from D.K. Hospital, Raipur from Dr. B.G. Lalwani,
G.P. Jethani. that he was declared fit for duty on 20-8-91. He
reported for duty but he was not permitted to resume duties.
His affidavit covers his contentions in Statement of claim
that he received treatment from time to time from Lalwani,
Jethani. That intimation about his illness was given to the
Bank by his family member. He received letter dated 9-11-98
that no chargesheet was issued to him, neither enquiry
was conducted, order of termination was not served on
him. From his further evidence, documents Exhibit W-2 to
W-5 are admitted in evidence. Document Exhibit W-1 is
certificate issued by Branch Manager that workman was
working during period 17-12-80 to 8-3-84 as part time daily
wages. Exhibit W-2 is Medical Certificate that workman
was suffering from the illness and was fit to join his duty
from 16-8-90. Exhibit W-3 is certificate issued by Dr. B.G.
Lalwani that workman was under his treatment during
21-11-86 to 30-10-87, 1-1-88 to 20-10-88. Exhibit W-4 is
medical certificate issued by Dr. Jethani that Ist party
workman was under his treatment during 1984 to 86. The
evidence of workman remained unchallenged. The
management despite of notices sent did not participate in
reference. No evidence is adduced.
7. As per document Exhibit W-1 Ist party workman
was working in the Bank as part time daily wage waterman
cum sweeper from 17-12-1980 to 8-4-84. IInd party has not
issued chargesheet to the workman. No enquiry is admitted.
The services of workman are not terminated following due
process of law. Termination order has not been issued,
refusing workman from joining duties without terminating
his services is clearly illegal. That workman was suffering
from illness after recovery of his mental illness when he
joined the work, he could not be refused to join duties
therefore action of the management not allowing him to
join duties is illegal. For above reasons, I record my finding
in Point No. 1 in Negative.
8. Point No. 2-In view of my finding in Point No. 1
that action of IInd party in not allowing workman to join
duty is illegal, question arises to what relief the workman is
entitled? Workman was working as part time sweeper cum
waterman as per Exhibit W-1, his Provident fund was
deducted as per Exhibit W-3. Exhibit W-1, W-2 are copies
of payment vouchers of the wages. The services of workman
are not terminated following due process issuing
chargesheet, holding enquiry. As per Exhibit W-6, he was
informed that he could not be allowed to join duties. The
evidence of workman is silent what work he was doing all
those years therefore back wages cannot be allowed to the
workman, only relief claimed by workman for direction to
the management to allow him to join duty appears justified.
Accordingly I hold.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 11] 2014@ikS"k 21] 1935
219
9. In the result, award is passed as under:—
(1)
Action of management of Bilaspur Raipur
Kshetriya Gramin Bank in relation to their Cana
Branch in not allowing Shri Derha Ram Verma,
Sub-Staff to work w.e.f. 20-8-1991 is illegal.
(2)
IInd parrty is directed to allow workman to join
his duties as part time sweeper-cum-waterman
but without back wages.
R.B. PATLE, Presiding Officer
ubZ fnYyh] 30 fnlEcj] 2013
dkñvkñ 119.—vkS|ksfxd fookn vf/kfu;e] 1947] ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUæh; 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 dsUæh; ljdkj vkS|ksfxd
vf/kdj.k] tcyiqj ds iapkV ¼lanHkZ la[;k 231/99) dks izdkf'kr
djrh gS tks dsUæh; ljdkj dks 30-12-2013 dks izkIr gqvk FkkA
[lañ ,y&12012@63@98&vkbZ vkj ¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 30th December, 2013
S.O. 119.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 231/98)
of the Central Government Industrial 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
30.12.2013.
[No. L-12012/63/98-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/231/98
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),
5, Y.N. Road,
Ujjain
...Management
AWARD
(Passed on this 11th day of December 2013)
1. As per letter dated 15-10-1998 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/
63/98-IR(B-I). The dispute under reference relates to:
"Whether the management of Managing Director,
State Bank of Indore in terminating Shri Nandkishore
Raikwar w.e.f. 4-1-97 and 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. Ist party workman filed Statement of claim at
Page 2/1 to 2/3. Case of Ist party workman is that he was
engaged by Branch Manager Sujalpur Mandi Branch for
cleaning work on daily wages from 1-3-89. He was honestly
doing said work. He was continuously working in the Bank
till 4-3-97. IInd party discontinued him without notice. He
was not paid retrenchment compensation. That he had
completed 240 days continuous service during each of the
year. He is covered as workman under Section 25-F of I.D.
Act, he was working more than 8 hours every day. He is
not paid retrenchment compensation. Termination of his
service is in violation of Section 25-F, G, H of I.D. Act.
Principles of last come first go was not followed. He was
not allowed to work on vacant post. Permission under
Section 33(B) of I.D. Act was not obtained. On such ground,
workman is praying for his reinstatement with consequential
benefits.
3. IInd party filed Written Statement at Page 6/1 to 6/6.
The claim of Ist party workman is totally denied. IInd party
submits that the alleged Union is not competent to represent
workman. The Union of Ujjain has no authority to represent
workman from Indore. IInd party denied all material
contentions of Ist party workman that he was continuously
working for more than 240 days or he was working for 8
hours every day. IInd party submits that workman was
engaged on daily wages temporary employee as per
exigency. Workman was intermittently working from 1989
to 1996. He was not continuously working. Workman was
paid wages for the working days. He is no regular employee.
There was no question of paying retrenchment
compensation. The contentions of Ist party workman that
his termination from service is illegal for violation of Section
25-F, G, H of I.D. Act are denied. That there were six
sanctioned post of sub staff in Sujalpur Mandi branch.
There was no need to engage regular employee in the
branch. On such grounds, IInd party prays for rejection of
the claim.
4. Ist party has submitted rejoinder at Page 6 to 9
reiterating contentions in Statement of Claim.
5. Considering pleadings on record, the points which
220
THE GAZETTE OF INDIA : JANUARY 11, 2014/PAUSA 21, 1935
[PART II—SEC. 3(ii)]
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 management of
In Affirmative
Managing Director, State
Bank of Indore in terminating
Shri Nandkishore Raikwar
w.e.f. 4-1-97 and not
regularizing him is justified?
(ii) If not, what relief the workman Workman is not
is entitled to?"
entitled to relief
prayed by workman.
REASONS
6. Ist party workman is challenging termination of
his service for violation of Section 25-F of I.D. Act. IInd
party denied material contentions of workman. Affidavit if
evidence is filed by workman stating that he was working
as peon from 21-11-84. Thereafter he was engaged from
1-3-89 on daily wages. He was paid wages Rs. 10/- per day.
Wages were increased time to time to Rs. 35/- per day. That
he was continuously working till 1-1-97, till he was
discontinued from service. In his cross-examination, 1st
party workman says that there was one daftary, 5 peons
working in Sujalpur branch. Their names are also stated as
Makhanlal Raikewar, Babulal Raikwar, Amar Singh Raikwar,
Ramlal Maliya and Shantilal Ahirwar. In his further cross-
examination, he says that he was doing cleaning work in
the morning. He was paid weekly wages. Wages were
Rs. 10/- per day increased to Rs. 35/- per day. He had not
appeared for Written Test. He had not submitted application
for job. Appointment letters P-1 to P-3 were issued to him.
Those appointment letters are for specific period. The
evidence of workman is not supported by documents. That
he was continuously working document P-1 is appointment
for 30 days from 20-9-84 to 19-10-84, P-2 is for period of 40
days, P-3 is for 4 days only. The workman has not examined
any such witness. Any documents are not produced.
Isolated evidence of the workman cannot be accepted to
establish continuous working for more than 240 days.
Evidence of Management's witness Krishna Murari is in
the nature of denial. He could not be cross-examined.
Considering isolated evidence of workman, Ist party
workman has failed to prove that workman had completed
240 days continuous service preceding termination
therefore violation of Section 25-F of I.D. Act cannot be
proved. Therefore I record my finding in Point No. 1 in
Affirmative.
7. In the result, award is passed as under:—
(1) Action of management of Managing Director,
State Bank of Indore in terminating
Shri Nandkishore Raikwar w.e.f. 4-1-97 and not
regularizing him is proper and legal.
(2) Workman is not entitled to relief prayed by him.
R. B. PATLE, Presiding Officer
ubZ fnYyh] 30 fnlEcj] 2013
dkñvkñ 120.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ fd /kkjk 17 ds vuqlj.k esa dsanzh; ljdkj e/; jsyos izcaèra=
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 lanHkZ la[;k 140@96 dks izdkf'kr djrh gS] tks dsanzh; ljdkj
dks 30@12@1213 dks izkIr gqvk FkkA
[la- ,y&41012@6@93&vkbZ vkj ¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 30th December, 2013
S.O. 120.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 140/96) of
the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Jabalpur as shown in the Annexure, in the Industrial Dispute
between the management of Central Railway, and their
workmen, received by the Central Government on 30/12/2013.
[No. L-41012/6/93-IR (B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/140/96
PRESIDING OFFICER: SHRI R.B. PATLE
Shri Narayan, S/o Sampat,
Shakir Hussain Niwas,
Qr. No. 50, V.V. Giri Ward,
Harda (MP)
........Workman
Versus
The DRM,
Central Railway,
Bhopal
........Management
AWARD
(Passed on this 12th day of December, 2013)
1. As per letter dated 10-6-96 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-42012/
6/93-IR(B-I). The dispute under reference relates to:
"Whether the action of the management of DRM,
Central Railway Bhopal in terminating the services
of Shri Narayan Sampat w.e.f. 1-5-86 is justified? If
not, to what relief the workman is entitled for?"
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 11] 2014@ikS"k 21] 1935
221
2. After receiving reference, notices were issued to
the parties. Ist party workman submitted Statement of claim
at Page 3/3 to 3/6. Case of Ist party workman is that he
belongs to ST (Mahar). He was engaged as permanent
Gangman in Central Railway on 20-5-71 by PWI, Harda.
That he was unable to attend his duties from 26-9-85 to
26-4-86. Memorandum was issued to him on 24-4-86 by
Assistant Engineer Central Railway, Harda for his absence
from duty. That departmental enquiry was conducted
against him. He was removed from service from 1.5.86. Ist
party workman submits that he had submitted medical
certificate for his inability to attend duties from 26.9.85 to
1.5.88. The certificate of mental illness issued by Dr. R.D.
Dupare Medical Officer, Mental Hospital Nagpur was
submitted by him and enquiry was held. The enquiry is
vitiated.
3. It is further submitted that the order of removal
from service is illegal and deserves to be quashed. That
enquiry is vitiated for following wrong procedure and
therefore the prays for his reinstatement with consequential
benefits.
4. IInd party filed Written Statement at Page 9/1 to
9/3. The claim of Ist party workman is denied. IInd party did
not dispute that Ist party workman was employed as
Gangman under PWI Harda, Central Railway. All other
contentions of workman are denied. It is denied that
workman was suffering from mental illness and as such
unable to attend duty. It is denied that workman had
submitted certificate of mental illness issued by Medical
Officer, Medical Hospital, Nagpur. It is denied that enquiry
conducted by management is vitiated.
5. Workman has filed rejoinder at Page 10/1 to 10/3
reiterating its contentions in Statement of claim. He
contended that he was suffering from illness, had submitted
medical certificate, enquiry was not properly conducted.
6. Considering evidence, may predecessor vide order
dated 16.11.09 found enquiry conducted against workman
is not proper. The management is permitted to prove
misconduct adducing evidence.
7. Considering pleadings and order passed by my
predecessor, enquiry conducted against workman is found
illegal, 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 misconduct alleged
In Affirmative
against workman is proper?
(ii) Whether the punishment of
In Affirmative
termination from service of Ist
party workman is proper and legal?
(iii) If so, to what relife the workman
Workman is not
workman is entitled to?"
entitled to relief
claimed by him.
REASONS
8. The enquiry conducted against workman is found
illegal. Management has been permitted to prove
misconduct in Court. Management filed affidavit of
Shri Mohanlal, S/o Babulal Head Clerk. The witness of the
management has stated that the workman was unauthorised
absent from 18.9.85 to 18.5.86, the period comes almost
8 months. The workman had not submitted application for
leave for said period. That as the matter is 24 years old, MR
Sheet is destroyed, Muster roll was brought by the witness,
its zerox copy is admitted and marked as Exhibit M-1. The
management witness in his cross-examination says that Ist
party workman was appointed against permanent post. His
pay was paid as per muster. The attendance of Ist party
workman was maintained in Muster roll. The workman was
appointed on 14.6.85. That workman was not regularly
attending his duties. The witness denies that workman has
submitted application for leave along with Medical
Certificate. The suggestions are denied that the entries in
muster register were falsely made marked absence of Ist
party workman. Workman has not examined himself. The
evidence of management clearly shows that the workman
had joined service on 14.6.85. There was no reason for
marking his absence from duties. The workman has not
adduced any evidence why his absence should be marked,
whether he had any enmity with anybody who is marking
his attendance. In absence of such evidence, I do not find
reason to disbelieve evidence of management's witness.
The evidence of management witness is sufficient to prove
the unauthorized absence of Ist party workman. Therefore
I record my finding on Point No. 1 in Affirmative.
9. Point No. 2- in view of my finding in Point No. 1,
the misconduct alleged against workman is proved, the
workman has not adduced any evidence. The Medical
Certificate issued by Medical Officer, Mental Hospital,
Nagpur is not proved. There is no evidence whether he
was suffering from mental illness and when he had attended
normalcy and was fit to join service. In absence of such
evidence, I do not find reason to interfere in the order of
dismissal passed by the Disciplinary Authority. Therefore
I record my finding in Point No. 2 in Affirmative.
10. In the result, award is passed as under:—
(1) Action of the IInd party DRM, Central Railway
Bhopal in terminating the services of Shri
Narayan Sampat w.e.f. 1.5.86 is proper.
(2) Workman is not entitled to relief prayed by him.
R.B. PATLE, Presiding Officer
222
THE GAZETTE OF INDIA : JANUARY 11, 2014/PAUSA 21, 1935
[PART II—SEC. 3(ii)]
ubZ fnYyh] 30 fnlEcj] 2013
dkñvkñ 121.—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 14@2004 dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 30-12-2013 dks izkIr gqvk FkkA
[lañ ,y&12012@264@2003&vkbZvkj ¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 30th December, 2013
S.O. 121.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref. 14/2004 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 Inore, and their
workmen, received by the Central Government on
30.12.2013.
[No. L-12012/264/2003-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
No. CGIT/LC/R/14/2004
PRESIDING OFFICER: SHRI R.B. PATLE
General Secretary,
Daily Wages Bank Employees Association,
9, Sanwar Road,
Ujjain
.....Workman/Union
Versus
General Manager (Operations),
State Bank of Indore,
State Bank of India (After Merger),
Head Office, 5, Yeshwant Niwas Road,
Indore
......Management
AWARD
(Passed on this 10th day of December 2013)
1. As per letter dated 26.2.2004 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/
264/2003-IR(B-I). The dispute under reference relates to:
"Whether the action of the management of General
Manager (O), State Bank of Indore in terminating the
services of Shri Mukesh Kumar Rajak w.e.f. 16.1.2000
not regularising him and not paying him bonus 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 6/1 to 6/11. Case of Ist party workman is that IInd
party had issued circular dated 29.8.89 not to engage
temporary employees. The circulars were issued on
29-8-89, 7-9-89 not to engage sweepers on daily wages.
That the workman was engaged on daily wages by Branch
Manager B.K. Trivedi from 26-4-94. He was sincerely doing
his duties. The wages were increased time to time from
Rs. 10/- per day to Rs. 65/- per day. That he was also
required to prepare draft and submit for signature of Branch
Manager. During 20-4-99 till 30-11-2000. That advice of 30
drafts were not received in Head Office, Indore from Branch
Office. The matter was required by Branch Manager Niraj
Kumar and it was found that the thefts of drafts were
committed. The incident was reported to police on 16-1-01.
against him. That his service were discontinued without
notice from 16-1-2001. He was not paid retrenchment
compensation. That termination of his services is illegal
for violation of section 25-F of I.D. Act, that he was working
more than 240 days during each of the year. He is covered
as workman under Section 25 B of I.D. Act. As his services
are terminated without notice, in violation of Section 25-F,
G, N of I.D. Act, the workman prays for his reinstatement
with consequential benefits.
3. IInd party filed Written Statement at Page 13/1 to
13/13. Claim of workman is total denied. That workman was
not employed in the Bank as permanent or termporary
employee. Employer Employee relationship does not exists
between the parties. That Ram Nagwanshi General
Secretary of the Union was dismissed from service from
5-12-2001. He is not competent to represent workman. That
Ist party workman was employed as casual employee. He
had committed fraud with one customer of the Bank
Shri Wahid Khan, proprietor of M/s Universal Electronics.
The fraud was committed in the Bank stealing pages of
draft book. The incident was reported to Police Station.
Workman was in Jail for long period then released on bail.
He is not in service of the Bank.
4. That IInd Bank is a statutory corporation
incorporated under the State Bank of India (Subsidiary
Banks) act, 1959. The recruitment of subordinate cadre is
formulated by the rules framed by Government of India.
The appointment of messengers, peons etc. is made by
Head Office. The Branch manager has no power to make
such appointments. Ist party workman had not completed
240 days service. There is no question of termination of his
service by the IInd party. Workman was not appointed in
the Bank's service. Therefore reference is not tenable. The
services of Ist party are not governed by Bipartite
Settlement as he is not regular employee.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 11] 2014@ikS"k 21] 1935
223
5. IInd party submits that workman was kept on
casual basis for cleaning branch premises, fetching water
for 2 hours before opening of the branch and one hour
after its close. i.e. for 3 hours. However he had committed
fraud stealing the pages of the draft books from time to
time. Complaint was registered for committing offences
punishable under Section 281, 420, 467, 468 and 34 IPC.
The criminal case is pending. The Bank suffered loss of
Rs. 5,27,090. All other material contentions of workman
about his work in the Bank for cleaning work in the Bank
are denied. Workman was engaged for cleaning, sweeping
work on wages Rs. 10 per day. Workman has not completed
240 days service during any of the year. Therefore he is not
entitled to relief prayed by him.
6. Ist party filed Rejoinder at Page 14/1 to 14/2
reiterating contentions in Statement of Claim.
7. Considering pleading 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
management of General
Manager (O), State Bank of
Indore in terminating the
services of Shri Mukesh
Kumar Rajak w.e.f. 16-1-2000
not regularising him and not
paying him bonus is justified?
(ii) If not, what relief the
Workman is not
workman is entitled to?"
entitled to reliefs
prayed by him.
REASONS
8. Workman is challenging termination of his services
for violation of Section 25-F, G. N of I.D. Act. His claim is
denied by the management. Workman filed affidavit of
evidence. Workman in his affidavit says from 26-4-94 he
was working on daily wages. The wages were increased
upto Rs. 65 per day. He had completed 240 days continuous
service. That he was discontinued from 16-1-01. That he
was required to write drafts. The amount in the draft was
increased to different amounts. In his cross-examination,
workman says he received education upto 8th standard.
He was working 2 hours morning, 2 hours evening. He was
paid wages Rs. 10 per day. The wages were paid weekly.
That appointment letter was not given to him. He had not
submitted application for full time post. While he was
working in the Bank, the draft was kept in lock. He admits
copies of drafts P-4 to P-33 are written in his handwriting.
Theft of those drafts was committed. That the drafts was
got prepared by clerks from him. Shri Vijay Sagoria, Mohan
Bangde, Katakwar, Ghansham Adiwasi & Ashish Nag were
helping him. He says that he was in jail for 3 months then
released on bail. That he did not received termination order
from Bank. Workman has not proved any documents. That
he was continuously working in the Bank for more than
240 days.
9. The management submitted affidavit of evidence
of Raju Shukla. Management's witness denies that
workman was continuously working in the Bank from 1994
to 2001. His name was not sponsored through Employment
Exchange. Workman was not called for interview. Workman
is prosecuted in criminal case. Loss of Rs. 5,27,090/- is
caused because of fraud committed by workman. The
evidence of management's witness in cross-examination
shows his affidavit is filed on the basis of documents in
office record. Those documents are not produced. He had
not discussed with the previous Branch Manager before
filing affidavit of evidence. That workman was not serviced
with notice, retrenchment compensation was not paid to
him as the workman is not regular employee.
10. The burden lies on workman to provide that he
worked for more than 240 days in Bank. The said burden is
not discharged by cogent evidence. Mere affidavit of
evidence cannot be accepted that he had completed 240
days service during any of the year. Therefore workman
has failed to establish that he is covered under Section
25(B) of I.D. Act. Consequently he is not entitled to
protection under Section 25-F of I.D. Act. Therefore I record
my finding in Point No. 1 in Affirmative.
11. In the result, award is passed as under:—
(1) Action of the management of General Manager
(O), State Bank of Indore in terminating the
services of Shri Mukesh Kumar Rajak w.e.f.
16-1-2000 not regularising him and not paying
him bonus is proper.
(2) Workman is not entitled to relief prayed by him.
R.B. PATLE, Presiding Officer
ubZ fnYyh] 30 fnlEcj] 2013
dkñvkñ 122.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ fd /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|ksfxdh
vf/kdj.k] tcyiqj ds iapkV ¼lanHkZ la[;k 129@2001½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 30@12@2013 dks izkIr gqvk FkkA
[lañ ,y&12012@156@2001&vkbZvkj¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
In Affirmative
224
THE GAZETTE OF INDIA : JANUARY 11, 2014/PAUSA 21, 1935
[PART II—SEC. 3(ii)]
New Delhi, the 30th December, 2013
S.O. 122.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 129/
2001) 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
30/12/2013.
[No. L-12012/156/2001-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR
COURT, JABALPUR
NO. CGIT/LC/R/129/2001
Presiding Officer : SHRI R. B. PATLE
General Secretary,
Daily Wages Bank Employees Association,
9, Sanwar Road,
Ujjain
...Workman/Union
Versus
General Manager (Operations),
State Bank of Indore,
State Bank of India (After Merger)
Head officer, 5 Yeshwant Niwas Road,
Indore
...Management
AWARD
(Passed on this 10th day of December 2013)
1. As per letter dated 24-7-2001 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/
156/2001/IR(B-I). The dispute under reference relates to:
"Whether the action of the management of State Bank
of Indore, Indore in not regularizing the services of
Shri Mitthanlal Prajapati even after working for more
than 240 days in a calendar year is justified? If not, to
what relief the workman is entitled for?"
2. After receiving reference, notices are issued to the
parties. Ist party workman filed Statement of claim at Page
3/1 to 3/4. Case of workman is that he was continuously
working at residence of Branch Manager Shri S. P. Sandele
from1987. He was doing cleaning and other domestic works,
cooking meals honestly. Workman was working the places
where Mr. S.P. Sandele, Branch Manager was transferred.
He was also working in the branch office at
Chachoda.Where Mr. Sandele was transferred. He was
cooking meals. Mr. Sandele had assured him of permanent
appointment, his name was registered in Employment office.
That correspondence was made for his appointment as
permanent employee. However his services were
discontinued in 1998 without issuing notice. That
termination of his services is illegal. He was not given notice,
retrenchment compensation, bonus was not paid to him.
On such contentions, Ist party workman through Union
Representative Ram Nagwanshi prays for reinstatement
with consequential benefits.
3. IInd party filed Written Statement at Page 6/1 to 6/8.
Claim of workman is totally denied. IInd party submits that
workman has not completed 240 days service preceding
his termination. The dispute is not tenable. The workman
is not covered under. I. D. Act. It is further submitted that
workman was not working in Bank. There is no employer
employee relationship. The reference is not tenable. That
Union Secretary Mr. Ram Nagwanshi was dismissed from
Bank service from 5-12-2001. He is not competent to
represent the workman. In view of judgment in AIR 1990
SC-1865 is that Sub Staff cannot be appointed by Branch
Manager. The Head Office appoints sub staff following
recruitment procedure. The entry of Ist party workman is
back door entry. He cannot claim regularization.
4. IInd party further submits that the permanent peons
are performing duties of cleaning. The permanent employee
are appointed following recruitment process calling the
candidates sponsored through Employment Exchange etc.
workman was engaged for few hours. His employment came
to end. His discontinuaiton from work is covered under
Section 2(00) of I.D. Act, therefore the reference is not
tenable.
5. IInd party further submits that daily wager casual
employees have no right for absorption in service. In view
of the ratio held in other several cases relied IInd party
prays that the claim of Ist party workman is not legal.
6. Ist party workman filed rejoinder at page 7/1 to 7/2
reiterating its contentions in statement of Claim.
7. 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
management of State Bank of
Indore, Indore in not
regularizing the services of
Shri Mitthanlal Prajapati even
after working for more than
240 days in a calendar year is
justified?
(ii) If not, what relief the to
Workman is entitled
workman is entitled to?"
to relief claimed by
him.
In Affirmative
¹Hkkx II—[k.M 3(ii)º
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225
REASONS
8. Statement of claim is not submitted by workman
himself rather it is submitted by Shri Ram Nagwanshi
claiming to be Union Representative. Mr. Ram Nagwanshi
has not produced any resolution authorizing him by Union
for representing workman. Membership receipt is not
produced. Ist party filed documents. However no care is
taken for proving the same. Exhibit W-1 produced by
workman is letter issued by the authorities of State Bank of
Indore to the Branch Manager for submitting paper relating
to Ist party workman.
9. Workman has not adduced evidence is support of
his claim. His evidence is closed on 24-1-2012.
10. Management filed affidavit of evidence of
witness Shri O.P. Anand, the management's witness has
stated that salary register only of permanent employees
on roll of the Bank is maintained. Bank doesnot maintain
salary register of Daily Wages casual employees.
Management's witness Raj Kishore Sinha in his affidavit
of evidence denied the claim of workman that workman
was engaged for cleaning work in Chachoda Branch for
one hour morning, evening. Ist party workman was paid
wages for the work done by him. Workman is not eligible
for appointment as regular peon. In his cross-examination
management's witness says workman was not paid
retrenchment compensation, no notice was issued to him
as he was not regular employee. Workman has not
adduced any evidence that he was working for more than
240 days preceding termination of his services therefore
the claim of Ist party workman is not substantiated. For
above reasons, I record my finding in Point No. 1 in
Affirmative.
11. In the result, award is passed as under:—
(1) Action of the management of State Bank of
Indore, Indore in not regularizing the services
of Shri Mitthanlal Prajapati even after working
for more than 240 days in a calendar year is
proper.
(2) Workman is not entitled to relief prayed by him.
R.B. PATLE, Presiding Officer
ubZ fnYyh] 30 fnlEcj] 2013
dkñvkñ 123.—vkS|ksfxd fookn vf/kfu;e] 1947 1947
dk 14 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 dsanzh; ljdkj vkS|ksfxd
vfèdj.k] tcyiqj ds iapkV ¼lanHkZ la[;k 113@2005½ dks izdkf'kr
djrh gS] tks dsanzh; ljdkj dks 30@12@2013 dks izkIr gqvk FkkA
[lañ ,y&12012@52@2005&vkbZ vkj ¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 30th December, 2013
S.O. 123.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 113/
2005) 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 30/12/2013.
[No. L-12012/52/2005-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR
COURT, JABALPUR
No. CGIT/LC/R/113/2005
PRESIDING OFFICER : SHRI R.B. PATLE
General Secretary,
Daily Wages Bank Employees Association,
9, Sanwer Road,
Ujjain (MP)
....Workman/Union
Versus
Deputy General Manager,
State Bank of India,
Zonal Office, Hamidia Road,
Bhopal (MP)
... Management
AWARD
(Passed on this 11th day of December 2013)
1. As per letter dated 4-10-2005 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-12012/
52/2005-IR(B-I). The dispute under referece relates to:
"Whether the action of the management of Dy.
General Manager, State bank of India, Bhopal in
terminating the services of Shri Veer Singh w.e.f.
16-10-99 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. The
226
THE GAZETTE OF INDIA : JANUARY 11, 2014/PAUSA 21, 1935
[PART II—SEC. 3(ii)]
case of Ist party workman is that he had worked for 73 days
as peon/messenger in Bank during 13-9-85 to 25-11-85. That
as per settlement dated 17-11-87, he was called for interview
on 23-1-90. He was successful in the interview. His name
was included in the panel list. After 3 years and 6 months,
he was engaged as messenger from 16-2-97 but again he
received letter dated 28-1-97 informing that he was
interviewed earlier. It is necessary to be interviewed.
3. To be precise, Ist party workman further submits
that on 2-7-93, he was called in chamber and informed about
termination of his services, he was paid retrenchment
compensation. Workman submits that he was continuously
working in the bank for more than 6 1/2 years. His services
are illegally terminated. Employees junior to him are
continued in service. Therefore termination of his service
is illegal. On such ground, workman prays for reinstatement
with consequential benefits.
4. IInd party filed Written Statement at Page 15/1/ to
15/17. The claim of Ist party workman is totally denied. It is
submitted that Shri Ram Nagwanshi is Secretary of Union.
He has not competent to represent workman. Ram
Nagwanshi is dismissed from service. That workman was
engaged as per exigency on contract basis. His engagement
ended at end of the day. His discontinuation of workman is
covered udner Section 2(oo)(bb) of I.D.Act. It doesnot
amount to illegal retrenchment. IInd party denied that
workman completed 240 days continuous service. The IInd
party has narrated the settlement dated 17-11-87 providing
opportunity to the temporary employees for appointment.
Workman were also given opportunity as per settlement.
Workman was called for interview on 23-1-90 as he had
worked for 73 days. IInd party submits that workman is not
entitled for appointment as messenger. His appointment
was not made following recruitment process. The select
list had expired on 31-1-97. Ist party workman was never
appointed as permanent messenger. As per settlement of
1987, Waiting List was prepared. Workman was paid
retrenchment compensation Rs. 6834/- and one months
pay Rs. 2877/- though he had not completed 240 days
continuous service. Ist party was discontinued after
payment of wages on account in lieu of notice and
retrenchment compensation. Therefore termination of his
service is legal. On such ground, IInd party prays for
rejection of claim.
5. Workman has filed rejoinder at Page 17/1 to 17/6
reiterating his contentions in Statement of Claim.
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 Dy. General
Manager, State Bank of India,
Bhopal in terminating the
services of Shri Veer Singh
w.e.f. 16-10-99 is justified?
(ii) If not, what relief the
As per final order.
workman is entitled to?"
REASONS
7. Ist party workman is challenging termination of
his services for violation of I.D.Act. that workman was
interviewed in 23-1-90. He was engaged as messenger in
1993, The services were terminated in the year 1999. IInd
party denied that workman had completed 240 days
continuous service. Workman filed affidavit of his evidece.
He has stated that he worked for 73 days as Messenger in
the Bank from 13-9-85 to 25-11-85. As per settlement of
1987, he was called for interview. The interview was held
on 16-1-90. He was called for personal interview. He was
selected in the list. He was working in Vindyanchal branch
Bhopal from 2-7-93. His services were terminated from
16-10-99. Amount of Rs. 11,511/- was paid to him. He was
not served with notice. In his cross-examinaiton, workman
says his name was not sponsored through Employment
Exchange. He had not appeared for Waiting List prior to
13-9-85. Appointment letter was not given to him. He admits
that he was called for interview on 23-1-90 as he had worked
for 73 days in the Bank. He had worked for 2327 days
during 1993 to 1999. Management's witness filed affidavit
of his evidence. The witness of the management also stated
that during 1993 to 1999, workman worked for 2327 days. It
is clear from evidence of management's witness that
workman had completed more than 240 days continuous
service preceding his termination. Workman admits receipt
of Rs. 11,511/- before termination of his services.
Management's witness has also stated payment of
retrenchment compensation and notice pay. However
Section 25-F of I.D.Act provides—
"One months notice in writing indicating the reasons
for retrenchment and the period of notice has expired,
or the workman has been paid in lieu of such notice"
Section 25-G provides for retrenchment of last person
employed in that Category."
8. The pleadings and evidence of IInd party are silent
about preparation and displaying such list on the notice
board. Thus the retrenchment of Ist party workman is in
violation of Rule 77 of the Industrial Dispute (Central Rules),
1957. The documents produced on record. Exhibit W-1 is
letter issued from Desk Officer, W-2 shows workman worked
for 73 days, W-3 notice published by the Bank inviting
applications. The advertisement is clear that the Waiting
List would be valid till 1992. The documents Exhibit W-4 is
¹Hkkx II—[k.M 3(ii)º
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227
about change of date of interview. Exhibit W-5 is that the
interview would be conducted on 19-2-97 instead of 16-2-
97. As per Exhibit W-6, Ist party workman was informed
that it was not necessary for him to attend interview.
Documents Exhibit W-7 to W-11 are not relevant for deciding
legality of termination of services. At the time of argument,
learned counsel for IInd party produced copies of
settlement. The settlement dated 17-11-87 deals with
different category of employees to be considered for
permanent appointment. Annexure 6 Page 28 clearly shows
that temporary appointment were to be made only from the
existing panels. The list of the selected condidates is
produced by learned counsel. Ist party workman is
appearing at Sl. No. 478 whereas candidates found suitable
in the list are appointed only upto 147. The settlement is
clear that the selected candidates were in the Waiting List.
As per Advertisement the Waiting List was valid till 1992.
The period was extended from time to time till 31-3-97. The
selection does not give right to be appointed.
9 Learned counsel for IInd party relies on plenty of
cases.
In case of Shankarsan Dash versus Union of India
reported in 1991(3) Supreme Court Cases 47. Ratio was
held that candidates included in merit list has not right to
appointment even if vacancy exists.
In case of State of Haryana versus Subash Chander
Marwaha and others reported in 1974(3) Supreme Court
Cases 220. Their Lordship dealing with Government
appointing only seven candidates from the top with a view
to maintain high standard of competence. Whether
Appearance of candidate's name in the list entitles him to
appointment. Their Lordship held mere entry in the list in
the name of candidate does not given him right to be
appointed.
In case of Punjab State Electricity Board and others
versus Malkiat Singh reported in 2005(9) Supreme court
Cases 22. Their Lordship dealing with right of appointment.
The policy decision providing employment to affected
persons whose land has been acquired, their Lordship held
the post involved having been created long after such
policy decision and subsequent to the change made therein,
the question of respondent seeking appointment to the
said post pursuant to the said policy decision did not arise."
10.On the point of violation of Section 25-F of I.D.
Act reliance is placed on ratio held in
"Case of Krishna Bhagya Jala Nigam Limited versus
Mohammed Rafi reported in 2006(9) Supreme Court Cases
697. Their Lordship held burden of proof of working
continuously for period of 240 days relief on the workman.
In case of Bharat Sanchar Nigam Limited and others
versus Abhishek Shukla and another reported in 2009(5)
Supreme Court Cases 368, their Lordship did not find any
error in the judgment observing that the ordinarily life of
such panel is one year as has been observed in case of
Girdhari versus State of Rajasthan.
In present case, life of selected list was initially till
1992. The life of list selected was extended till 31-3-97.
Workman has not adduced evidence regarding existing
vacancy or any other employee appointed from the selected
test, therefore workman has no case on that ground.
Violation of Settlement of 17.11.87 is not established.
11. Rule 77 under Industrial Dispute Central Rules
1957 provides—
"Employer shall prepare a list of all workmen in the
particular category from which retrenchment is
contemplated arranged according to the seniority of
their service in that category and cause a copy thereof
to be pasted on a notice board in a conspicuous
place in the premises of the industrial establishment
at least 7 days before the actual date of retrenchment."
As discussed above, though retrenchment
compensation was paid to the workman, IInd party has not
prepared list and therefore retrenchment of workman is
illegal for violation of Rule 77 of I.D. Central Rules 1957.
For above reasons, I record my finding in Point No. 1 in
Negative.
12. Point No. 2- In view of my finding in Point No. 1,
question arises whether workman is entitled for
reinstatement with full back wages. The workman was called
for interview and his name was in Waiting List. The workman
was continuously working from 93 to 99. His retrenchment
is illegal for non-compliance of rule 77 discussed above.
Persons similarly situated are not appointed by the bank
therefore the workman cannot be reinstated. His claim for
full back wages cannot be accepted. In my considered view
as retrenchment is illegal for violation of Rule 77, reasonable
compensation would be appropriate. Considering the period
of working, compensation Rs. One Lakh would be
appropriate. Accordingly I record my finding in Point No.
2.
13. In the result, award is passed as under;
(1) Action of the management of Dy. General
Manager, State Bank of India, Bhopal in
terminating the services of Shri Veer Singh w.e.f.
16.10.99 is illegal.
(2) IInd party is directed to pay compensation
Rs. 1 lakh to the workman Shri Veer Singh.
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
228
THE GAZETTE OF INDIA : JANUARY 11, 2014/PAUSA 21, 1935
[PART II—SEC. 3(ii)]
ubZ fnYyh] 30 fnlEcj] 2013
dkñvkñ 124.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj LVsV cSad vkWQ
bafM;k 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 ¼lanHkZ la[;k 194@99½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 30-12-2013 dks izkIr gqvk FkkA
[lañ ,y&12012@664@98&vkbZ vkj ¼ch&I)]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 30th December, 2013
S.O. 124.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 194/99)
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 30.12.2013.
[No. L-12012/664/98-IR (B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-COM-LABOUR COURT,
JABALPUR
No. CGIT/LC/R/194/99
Presiding Officer : Shri R. B. PATLE
Shri Phoolchand Sonkhare,
State Bank of India Staff Congress,
5/235, Pragati,
State Bank Staff Colony,
Vikasnagar,
Jabalpur (MP)
.......Workman
Versus
Branch Manager,
State Bank of India,
Kamla Nehru Branch,
Jabalpur (MP)
.....Management
AWARD
(Passed on this 29th day of November 2013)
1. As per letter dated 5.5.99 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-12012/664/98-IR(B-I). The dispute under reference relates
to:
"Whether the action of the management of State Bank
of India in not giving regular appointment to
Shri Phool Chand Sonkhare, part time safai karmachari
as per Ministry of Finance Circular No. 102/4/1/90
SCT (B) Dt. 16-4-90 is legal and justified? I not, to
what relief the said workman is entitled?"
2. After receiving reference, notices were issued to
the parties. Ist party workman filed Statement of Claim at
Page 3/1 to 3/3. The case of workman is that he was working
as sweeper in IInd party Bank from 17.5.92 in Kamla Nehru
Bank, Jabalpur. That certificates were issued appreciating
his services in 1994, 95, 96. That the building of Kamla
Nehru branch consist of 3500 sq ft. that he was working
more than 36 hours in a week as sweeper. The work is
extracted from him as sweeper, waterman. He claims that he
should have been paid full pay of Sweeper for the work
extracted from him. However he is paid only Rs. 650 per
month. The regular sweeper is paid Rs. 3600 per month.
The act of IInd party is illegal.
3. Workman further submits that IInd party violates
principles of equal pay for equal work as per Section 39(d)
of the Constitution. That since 17.5.92, he is working more
than 240 days during each for the calendar year. He is not
appointed as permanent sweeper though the post is vacant.
He prays for regularization of his services as per Circular
Dated 24.1.84, 7.11.84, 18.2.97. He also submits that he is
covered undeer Desai Award, Sastri Award and entitled to
wages prescribed under those awards. On above ground,
workman is praying for regularization of his services and
salary as regular employee.
4. IInd party filed Written Statement at Page 8/1 to
8/6. IInd party submits that workman was engaged for 1-2
hours a day for cleaning work of the branch premises or
contract rate on daily wages from August 1992 with certain
breaks. That he was paid wages as per contract for the
work performed by him. IInd party denied that workman
was continuously working for more than 240 days during
any of the year.
5. IInd party submits that the workman was paid
Rs. 30 per day which were increased from time to time.
Minimum wages were paid to him. Workman performed job
at his choice. The management of IInd Party has no control
over him. After performing his job, Ist party workman is
free to execute other job at any other place. Person seeking
employment in Bank has to go through the prescribed
procedure for appointment. The employees undergoing
recruitment process are entitled for appointment as regular
employee. Engagement of workman was not regular neither
it is according to the rules and regulations. That only
Regional Manager has power to appoint sub staff.
Workman was engaged by Branch Manager without having
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 11] 2014@ikS"k 21] 1935
229
authority. That the person engaged by daily wages starts
at morning and ends with end of the day. That as workman
was not engaged as permanent employee, he is not entitled
for regularization. That the person who is engaged purely
on termporary basis on stop gap arrangement without
following process is not right to be appointed permanently.
If Ist party workman is regularized, it may be without proper
qualification, without passing competion for appointment.
Such claim cannot be allowed.
6. That as per letter dated S/36 dated 6.7.99, workman
had appeared for interview but he was not selected for
regular post. Therefore workman is not entitled for regular
appointment. All other adverse contentions of workman
are denied. It is submitted that workman was engaged purely
on daily wages without following proper procedure.
Management had decided to held interview. One post of
sweeper cum farrash on full wages and another post of
sweeper cum farrash on 3/4th wages as per circular dated
28.6.99. The workman was sponsored by concerned branch.
Though he appeared for interview he was not selected.
That workman cannot claim wages of permanent sweeper
Rs. 3600 per month. On such contentions IInd party denies
the relief prayed by workman.
7. Workman filed rejoinder at Page 9/1 to 9/3. He had
reiterated contentions in his statement of claim. He has
pleaded that he was working in the branch from 10.30. AM
to 3 PM. He had completed 240 days service during each of
the year. Work of messenger, waterman was also extracted
from him. However he was denied wages of regular
employee.
8. 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
Denial of regular
management of State Bank
employment to
of India in not giving regular
the workman in
appointment to Shri Phool
violation of
Chand Sonkhare, part of
Bipartite settlement
time safai karmachari
dated 20.2.97 and
as per Ministry of Finance
other circular is
Circular No. 102/4/1/90 SCT(B)
illegal.
Dt. 16.4.90 is justified?
(ii) If not, what relief the workman
As per final
is entitled to?"
orders.
REASONS
9. As per the terms of reference, the denial of regular
appointment to Foolchand in violation of Ministry of
Finance Circular No. 102/4/1/90 SCT(B) Dt. 16.4.90 is referred
for adjudication, the copy of said notification is not received
alongwith reference order. Workman has produced
document. Letter dated 16.1.2003 from Director of Appellate
Authority, Government of India, Ministry of Finance. The
letter finds that copy of letter dated 16.4.90 was not traceable
to CPIO. The copy of document annexed with said letter
finds circular relating to appointment of persons holding
post of sweeper, Farrash etc. as peon relaxation of
educational qualifications etc. As per para 5.13, 25% of the
vacancies accruing in the Peon's Cadre should be reserved
for being filled by transfer from Full Time Sweepers,
Farashes who have put in minimum of 5 years. Next Para
provides for the purpose of direct recruitment of the post
who may possess elementary literacy and give proof of
ability to read either English or Hindi or regional language,
it would be necessary to hold a simple written test. The
claim of workman is not for the post of peon through the
post of sweeper/farrash etc. therefore the document
produced does not advance claim of the workman.
10. Workman filed affidavit of his evidence. In his
affidavit, he has stated that he is working as sweeper in the
branch from 17.5.92 continuously. His services are not
regularized. That he had completed 240 days continuous
service during each of the year. In his cross-examination,
workman says that he was working for 2 hours in the Bank.
He was engaged for cleaning floor and bathroom. He was
initially paid Rs. 10 per day and Rs. 90 per day at the time
his evidence was recorded. That he was called for interview.
He was selected but his name was not included in
considering the seniority.
11. Management's witness Shri K.P. Dubey in his
evidence on affidavit has stated that worker was engaged
for 1-2 hour a day for cleaning branch premises on contract
rate from August 1992 with certain break. Workman never
completed 240 days continuous service during any year.
The workman was not working as permanent employee
against sanctioned post. Workman was paid wages Rs. 35
per day. That appointment in Bank is covered by statutory
rules and regulations. The persons seeking employment in
Bank has to go through the employment procedure. Only
such employees are entitled for regular appointment.
Workman was not issued appointment order as he was not
appointed against sanctioned post. He was not sponsored
through Employment Exchange. In his cross-examination,
management's witness says since 1992 workman is working
as sweeper on daily wages for 1-2 hours in a day. No other
work is extracted from him. Except for holidays and Sunday,
workman was working through the year. He was initially
paid Rs. 10 per day and presently paid Rs. 90 per day.
Suggestion is denied that workman was working from 10.30
PM to 4.30 PM The service of workman are denied. That
Attendance Register was not maintained in the branch
Kachha Register was maintained. His bills were not checked
by other person. That for permanent appointment,
application of 1st party workman was received. The
proposal for regularization was submitted to the Head office.
230
THE GAZETTE OF INDIA : JANUARY 11, 2014/PAUSA 21, 1935
[PART II—SEC. 3(ii)]
12. Though the terms of reference relates to letter
dated 16.3.90, the claim of workman cannot be restricted to
said letter only. The letter is not received alongwith reference
order. Bipartite settlement Exhibit W-I dated 20.2.97 is
produced. Said Bipartite Settlement provides-
"The Management Representatives stated that
the interviews of daily wagers/casual labour eligible
to be considered for permanent appointment will be
over shortly and those found suitable for
appointment will be empanelled categorywise as has
been done in the case of temporary employees. Para-
2(i) provides—
i. All temporary employees interviewed and found
suitable for permanent appointment have already
been empanelled/wait listed. The waiting lists
maintained at the Zonal Offices will be thoroughly
scrutinized by the authorities concerned and ensured
that their empanelment is category-wise and in the
manner envisaged in the settlements.
ii. Similarly as daily-wagers/casual labour interviewed
and found suitable for permanent appointment will
be empanelled/wait listed category-wise and in the
manner envisaged in the settlements.
iii. Both the panels/wait-lists will be marged in their
respective categories and a combined waiting list
will be prepared. Where a termporary employee and
a daily wager/casual labour stand on equal footing
the former will be wait listed above the later.
iv. Before offering appointments to the candidates
waitlisted in the manner aforesaid, conversation of
non-messengers as messengers and part time
employees on full time basis will be completed in the
manner laid down in terms of Staff Circular No. 69 of
1990."
Bipartite settlement dated 27.10.88, 9.1.91 provides
absorption of temporary employee in subordinate cadre in
Bank's service. That daily wagers who will be considered
for a chance for permanent appointment in the bank's
service. Clause III provides with educational qualification.
At the time of appointment, they should have been within
the age limit of 18 to 26 years and possess educational
qualification of less than matriculation. It also provides for
relaxation of age in case of daily wagers at the time of initial
temporary employment. Pleadings of workman as well as
evidence of management's witness shows that workman
was called for interview in 1999. Workman says that he was
selected but name did not appear in the list because of
seniority. Copy of letter dated 8.11.90 is produced on record
for absorpition of sweeper/farrash on the post of waterman,
messenger etc. 25% post are earmarked for such category.
Such candidates must be able to read English, Hindi and
minimum Educational Qualification should be 8th standard.
13. That workman has produced Exhibit M-1 to M-6
which are the vouchers about payment. Document Exhibit
M-7 is letter issued from Asstt. General Manager dated
29.5.2001 the tabulation chart of the candidates interviewed
for permanent part time sweepers is forwarded. In document
Exhibit M-14 name of Ist party workman is appearing at
Sl. No. 19. He was not selected. His total marks are 31. His
educationl qualification is show 7th standard. Date of birth
is 4.7.1969. Selected candidate at Sl. No. 20, his educational
qualification is 5th standard, date of birth is 7.7.67, total
marks is 46. Other selected candidate at Sl. No. 21 Raju
Balmik, educational qualification is 7th standard. Next
selected candidate at Sl. No. 24 is Subash Devak,
educational qualification is shown as 8th standard along
with other details. Document Exhibit M-2 shows that
qualification for sweeper/farrash candidates should be 7th
pass, age limit should be 18 to 31 years for General Category.
Thus candidate at Sl. No. 20 Gopal Balmik selected was not
fulfilling educational qualification. Those documents clearly
shows that the management is not following the prescribed
norms. It is appointing candidates of its choice and benefit
of Bipartite Settlement dated 20.2.97 and other circulars is
denied to the workman.
14. The evidence on record shows that workman is
working since 1992 as per Bipartite Settlement, he is entitled
for absorption as permanent sweeper/farrash but said
benefit is denied to him. As discussed above, other
candidate is shown favour and though the candidate at Sl.
No. 20 is not fulfilling educational qualification he was
selected.
15. Learned counsel for IInd party management relies
on bunch of citations.
"In case of M.P. State Agro Industries Development
Corporation Ltd. and others versus Shri S.C. Pandey
reported in 2006 (2) Supreme Court Cases 716, their
Lordship dealing with Casual Labour/Temporary
employee right to regularization held only because a
temporary employee completes said period of
services, that by itself would not confer any legal
right upon him to be regularized in service."
"In case of M.P. Housing Board and another versus
Manoj Shrivastava reported in 2006 (2) Supreme
Court Cases 702. Their Lordship dealing with casual
labour/temporary employee, daily wager status held
a daily wager does not hold a post or derive any
legal right in relation thereto, unless he is appointed
(1) against a duly sanctioned vacant post, and (2)
upon following the statutory law operating in the
field. If an appointment is made in contravention of
either (1) or (2), such appointment would be void."
The facts of present case are different. Merely
working on daily wages as sweeper/farrash by workman
would not get right for regularization but 1st party workman
cannot be denied benefit of Bipartite Settlement dated
¹Hkkx II—[k.M 3(ii)º
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231
20-2-97. IInd party has selected candidates who was not
holding required educational qualification. Candidate at
Sl. No. 20 was selected though the prescribed qualification
was 7th standard. The workman was discriminated.
Reliance is also placed on ratio held in—State of
Karnataka versus M.L. Kesari and other reported in 2010(9)
Supreme court Cases 247. Their Lordship dealing with
regularization of casual labour/daily wager Adhoc
employee. In context of exception contained in Para 53 of
Umadevi's case 2006(4) SCC. 1. Their Lordship held
appointments of qualified persons made against sanctioned
posts without following process of open competition are
irregular appointments. As against this, appointments made
not against sanctioned posts or appointments of
unqualified persons are illegal appointments.
In present case, it is not case of IInd party that
appointment of 1st party of daily wages is illegal. Bipartite
Settlement dated 20-2-97 provides regularization for daily
wagers, sweeper. Therefore the ratio in present case cannot
be applied to case at hand. For the same reasons, cannot
be relied in case of National Fertilizers Ltd. and another
versus Somvir Singh reported in 2006(5) Supreme Court
Cases 493.
16. The evidence on record shows that the workman
is denied benefit of Bipartite Settlement dated 20-2-97
though he was called for interview. Candidate at Al.No.20
was not fulfilling the qualification was selected and the
workman was not considered. The instructions for
absorption of temporary employee in subordinate cadre as
per Bipartite Settlement dated 20-2-97 were not following
by IInd party.
17. Though reference is made only in respect of claim
for regularization as per circular of Finance Department
dated 16-4-98, said circular is not received along with
reference order. The befit of Bipartite Settlement discussed
above cannot be denied to workman. IInd party has not
properly implemented Bipartite Settlement as discussed
above. Benefit is denied to the workman. Therefore I recored
my finding on Point No. 1 in Negative.
18. In the result, award is passed as under:—
(1) Denial of regular appointment to Shri Phool Chand
Sonkhare for the post of sweeper is not proper.
(2) IInd party is directed to consider the claim of workman
for the post of permanent sweeper as per Bipartite
Settlement dated 20-2-97, 27-10-88, 9-1-91 and as per
Staff Circular No. 50/91 within 3 months.
R.B. PATLE, Presiding Officer
ubZ fnYyh] 30 fnlEcj] 2013
dkñvkñ 125.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj LVsV cSad vkWQ
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vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsanzh; ljdkj vkS|ksfxd
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[lañ ,y&12012@289@88&Mh&3¼,½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 30th December, 2013
S.O. 125.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref. 121/88 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 30/12/2013
[No. L-12012/289/88-D-3(A)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
No. CGIT/LC/R/121/88
PRESIDING OFFICER: SHRI R.B. PATLE
Shri Shyam Sunder Agrawal,
S/o Shri Babulalji Agrawal,
Talab Mohalla,
Near Mata Mandir, Itarsi,
...Workman
Versus
Regional Manager,
State Bank of India,
Region-II, Regional office,
Chhola Road,
Near Bus stand,
Bhopal
...Management
AWARD
(Passed on this 15th day of November 2013)
1. As per letter dated 10-11-88 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/
289/88-D-3(A). The dispute under reference relates to:
"Whether the dismissal of Shri S.S. Agrawal, Dy. Head
Cashier, State Bank of India, Khargone by the
Regional Manager, SBI Bhopal is justified or not? 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
232
THE GAZETTE OF INDIA : JANUARY 11, 2014/PAUSA 21, 1935
[PART II—SEC. 3(ii)]
Page 3/1 to 3/4. Case of Ist party workman is that he was
appointed as cashier cum clerk in IInd party Bank on 2nd
February 1974. On probation of six months, his services
were confirmed on 4-12-1974. That he was performing duties
of clerical nature in the Bank. He had no power to grant
leave or punish any employee. He is covered as workman
under I.D. Act. that on 14-6-85, IInd party Bank issued
chargesheet. The charges alleged against him were-(1)
doing wrong signature on the counter voucher of Shri
Brijmohan S/o Shersingh. (S.B.A./C No. S.847 for Rs. 4500),
(2) false identification in the matter of withdrawal of Shri
Leeladhar Agrawal (S.B.A/C No. L-257). That he has
submitted reply to the chargesheet, enquiry was held
against him. It is submitted that the deposition of witnesses
clearly shows that charges were not proved. Enquiry Officer
was biased. He went beyond charges and imputed intention
of fraud againt him. No reasonable man could come on
such findings. That the punishment based on such findings
is uncalled, harsh. That findings of Enquiry officer are
perverse. That handwriting expert was not produced for
cross-examination. principles of natural justice were
followed. Expert's testimony cannot override direct
evidence.
3. It is submitted that Disciplinary Authority with
prejudice passed order of terminating his services without
applying mind. That his appeal was dismissed without
applying mind. On such ground, he prays for reinstatement
with consequential benefits.
4. Management of IInd party filed Written Statement
at page 4/1 to 4/4. IInd party did not dispute that the
workman was appointed as clerk cum cashier, it was not
disputed that workman is covered under I.D. Act. IInd party
submits that the workman acted contrary to the procedure
and Bank's book of Instructions and Circulars which
resulted financial loss to the Bank. The management was
compelled to take disciplinary action against workman.
Chargesheet was issued to him. Department Enquiry was
conducted after the charges were proved. Punishment of
dismissal was imposed. That workman was given full
opportunity for his defence. That the workman handed
over deposit counter foil for Rs. 4500/- mentioning the
amount in deposit in the Pass Book of the Account holder
Shri Sher Singh in his Saving Bank Account No. S. 847.
That after verifying the counter foil and other documents
maintained in the bank, no such entries were found. That
the workman was required to strictly comply instructions
under Bank's book of Instructions and the circulars issued
from time to time. It is submitted that the workman had
given identification of Leeladhar Agrawal without verifying
the specimen signatures. It is reiterated that the workman
was given opportunity for his defence. The Enquiry Officer
had properly manshelled the evidence. The workman did
not insist to call handwriting expert for cross-examination.
Workman was satisfied with the observations of the Enquiry
officer in that regard. It is submitted that for proved
misconduct, services of workman are terminated. The order
of termination doesnot call for interference.
5. Workman submitted rejoinder at Page 5/1 to 5/3
reiterating his contentions in statement of claim that he
had not admitted his signature on the documents. That the
enquiry was not properly conducted. The charges are not
proved from evidence in Enquiry Proceeddings. IInd party
also filed rejoinder at Page 6/1 to 6/3 reiterating its
contentions in Written Statement. That enquiry was
conducted properly. The evidence was considered by
Enquiry Officer. The termination from service is for proved
misconduct.
6. The issues are framed by my predecessor on 31-8-90.
Issue No. 1 was decided on 7-9-95. The enquiry is found
proper and legal.
7. Keeping above aspects in view, the points which
arise for my consideration and determination are as under:-
(i)
Whether alleged misconduct is
In Negative
proved from evidence in Enquiry
Proceedings?
(ii) Whether punishment of termination
In Negative
from service imposed against
workman is legal and proper?
(iii) If not, what relief the
As per final
workman is entitled to?"
order.
REASONS
8. Termination of services of Ist party workman is
challenged by this reference. The enquiry is found proper
by my predecessor as per order dated 7-9-95. The workman
has pleaded that the findings of Enquiry Officer are
perverse. He had not admitted his signature on any
documents. There is no evidence to prove misconduct
against him. Here I make it clear that the Appellate Authority
held that charge No. 2 with respect to giving wrong
identification by workman Leeladhar Agrawal is not proved.
Thus the dispute is limited to whether Charge No. 1 is
proved from evidence is Enquiry Proceedings. Learned
counsel for workman Shri N.B. Sharma submits that
chargesheet issued alleging misconduct (1) loss caused to
the Bank, (2) negligence in duty. The charges were not on
the point that amount was received by delinquent and he
committed the fraud. The finding of Enquiry officer at Page
3/33 is beyond the miconduct alleged against workman.
Considering the tenor of workman, the findings of Enquiry
Officer needs to be considered. The Enquiry Officer has
observed at Page 3/33 that S.S. Agrawal has obviously
misused the powers of granting receipts delegated to him
by the Bank. He has kept aside all rules/procedure before
granting the receipt. As per practice in the Bank, when the
cash has correctly been accepted from the depositor as
indicated in the relative vouchers, it is entered in the cash
¹Hkkx II—[k.M 3(ii)º
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233
scroll, serial number is incorporated in the voucher and
counter foil and after branding the days receipt stamp, the
counter foil is delivered to the depositor after signature of
the cashier as authorized by the Bank. This has not been
done. The charges are proved and can confidently say
that the clear cut intension of Shri Agrawal was to defraud
the Bank and tarnish the image of the Bank. The
Management's Witness Shri Tulsiram Chourey at Page
3/12 has stated that Brijmohan S/o Sher Singh had come
for depositing amount. The voucher was filled by him. That
Brijmohan had gone to S.S. Agrawal i.e. delinquent. He
claims ignorance whether he had come to cash section or
to meet Shri S.S. Agrawal specific question was asked to
him about letter in which amount of Rs. 4500/- received
from Sher Singh. Said witness did not say anything about
it. Thus from his evidence, it is clear that amount of Rs.
4500/- was received by the witness from Shri Sher Singh.
He admits his signature on the statement. Further question
was asked that the witness had received Rs. 4500/- from
Shri Sher Singh, L.F.51/147. The witness said he had nothing
to do in that regard. In reply to next question, witness
admitted that in Pass Book A/C No. S-847 L.F. 51/395
pertaining to Shri Sher Singh, he made entry of Rs. 4500/-,
it is clear from evidence of Shri Tulsiram Chourey that the
amount of Rs. 4500/- was received by the witness and not
by the delinquent. Enquiry officer did not discussed above
evidence and mostly relied on statement of delinquent that
the signature and mostly relied on statement of delinquent
that the signature on the voucher appear like his signature.
The statement of witness Brijmohan shows that he paid
amount Rs. 4500/- to Shri Chourey. Workman has not
admitted his signature in his statement at Page 3/25 but the
signature appears like his signature.
9. The evidence of Shri Tulsiram Chourey, Brijmohan
did not state that the delinquent had singed on the
vouchers. They are the persons to know who had singed
on vouchers as amount has been paid from Tulsiram to
Shri Chourey and Tulsiram had handed over voucher to
him. However both of them have not stated in evidence
that the receipt was signed by him. On the point, learned
counsel for workman Shri N.B. Sharma relies on ratio held
in plenty of cases.
"In case of Roop Singh Negi versus Punjab National
Bank and others reported in 2009(2) Supreme Court
Cases 570. Their Lordship of the Apex Court held
mere production of documents is not enough.
Contents of documentary evidence has to be proved
by examining witnesses. Further held FIR in itself
not an evidence without actual proof of facts stated
therein."
"In case of State of Punjab versus Sukhdev Singh
reported in 1980(3) 1980-Vol-III SLR-29. Lordship of
Punjab and Haryana High Court has held As noticed
above, the Enquiry Officer has held the charges to
have been proved against the respondent only on
the ground that he had admitted his guilt in the written
statement. From persual of the written statement,
however it is found that the respondent had denied
all other allegations except that he had taken liquor
at his residence in the Police Lines when he was
having fever and headache and also feeling
depressed because of his non-selection for the
training course. It is, therefore, evidence that the
respondent never pleaded guilty to the charge leveled
against him and on the basis of his written statement
any interference of guilt could not be drawn by any
stretch of reasoning."
In present case, workman denied allegations in
chargesheet against him filing reply to the chargesheet. He
denied his signature while his statement is recorded. Merely
saying that signature on voucher appears to be his
signature cannot be said admission of Charge No. 1.
"In case of Satya Prakash versus Union of India and
others reported in 1980(3) SLR-364. His Lordship of
Gwalior bench held admission of delinquent officer
to be taken as a whole cannot be split up and part
thereof which is favourable to the prosecution."
10. Learned counsel for IInd party Shri Shroti submits
that the Enquiry Officer has considered evidence. Workman
has not stated name of other persons signed on the voucher
and therefore Enquiry Officer was right to hold that the
voucher was signed by the workman as delinquent was
working as clerk cum cashier. He has also placed reliance
on raito held in
"Case of Divisional Controller, NEKTC versus A.
Amaresh reported in 2006(6) Supreme Court cases
187. Their Lordship dealing with quantum of
punishment held misappropriation of small amount
of SRTC funds of Rs. 360.95 in the case by conductor,
held a grave act of misconduct which resulted in
financial loss to RTC."
Reliance is also placed on ratio held in Cash of
Ganesh Santa Ram Sirur versus State Bank of India and
another reported in 2005(1) Supreme Court Cases 13. Their
Lordship considering sanction of loan to his spouse by
Bank Manager in contravention of services rules, although
the cheque issued pursuance thereto was not enchased,
held not an honest decision. Service rule prohibiting the
Bank Manager to sanction loan to his spouse, held was a
rule of integrity. Hence punishment of removal from service
awarded to the Bank Manager was just and proper.
The facts of the present case are not comparable.
Charges against the delinquent are not comparable. Ratio
cannot be applied to present case at hand.
11. The evidence on record discussed above is not
sufficient to hold that the delinquent had singed on the
234
THE GAZETTE OF INDIA : JANUARY 11, 2014/PAUSA 21, 1935
[PART II—SEC. 3(ii)]
voucher of Rs. 4500/-. The amount was not received by the
delinquent. It is matter of surprise that the amount of Rs.
4500/- was received by Shri Tulsiram Chourey as per
evidence of Brijmohan, S/o Sher Singh, it is not understood
whether any action was taken against Tulsi Chourey. The
evidence in Enquiry proceedings discussed above cannot
establish the charges. The evidence of both Tulsiram and
Brijmohan are silent about signature of delinquent on the
voucher. Merely as the workman said in his statement that
the signature appears to be like his signature cannot be
termed as admission to hold workman guilty. For above
reasons, I record my finding in Point No. 1 in Negative.
12. Point No. 2— In view of my charge No. 1 against
delinquent is not proved from evidence in Enquiry
proceedings, the Appellate Authority has already held that
Charge No. 2 is not proved against delinquent. Thus both
charge against delinquent are not proved. The punishment
of termination imposed against workman for alleged
misconduct which are not proved. Learned counsel for
IInd party Shri Shroti submits that power under Section 11-A
of I.D. Act cannot be retrenched. Reliance is placed on
ratio held in case of
"West Bokaro Colliery, TISCO Ltd. versus Ram
Pravesh Singh reported in 2008 (3) Supreme Court
Cases 729. Their Lordship of the Apex Court dealing
with Section Section 11-A of I.D. Act held Labour
Court or Industrial Tribunal cannot act as if it were
an appellate body where two views are possible on
evidence, Industrial Tribunal should every slow in
interfering with the findings arrived at in domestic
enquiry."
13. Reliance is also placed in ratio held in
"Case of workman of Balmadies Estates versus
management of Balmadies Estates and others
reported in 2008(4) Supreme Court Cases 517. Their
Lordship held power of Labour Court under I.D. Act
has expanded vastly after introduction of Section
11-A. Hence it can in an appropriate case consider
the evidence which has been considered by the
domestic tribunal and in a given case on such
consideration arrive at a conclusion different from
the one arrived at by the domestic tribunal."
14. Shri N.B. Sharma, Advocate counsel for Ist party
on the point relies on ratio held in
"Case of Krishna Gopal Vaity versusu M/s Collin &
Co. and others reported in 1992-I-LLJ-110. Their
Lordship of Bombay High court dealing with Section
11-A held Labour Court has power to consider
correctness of evidence recorded by Enquiry officer
and re-appreciate the same and also to interfere with
the quantum of punishment."
In present case, as dicussed above, he evidence of
Tulsiram Chourey and Brijmohan I silent who signed on
the vouchers of Rs. 4500/-. Amount was received by Shri
Tulsiram Chourey. Their evidence is silent that the
delinquent signed on the voucher handed over by Shri
Tulsiram to Brijmohan. Therefore the punishment of
termination of service cannot be sustained. It is illegal. The
misconduct alleged is not proved. Accordingly I record my
finding on Point No. 2.
15. Point No. 3— In view of my finding in Point No. 1
& 2, that charge No. 1,2 are not proved Termination of
services is found illegal. the question arises to whether the
workman is entitled for reinstatement with back wages.
Therefore misconduct alleged are not proved. Workman
deserves to be reinstated. The evidence is not clear what
he was doing during all those years. Considering long
period has passed the workman was terminated from service,
in my considered view, reinstatement of Ist party workman
with 50% back wages would be appropriate. Accordingly I
record my finding on Point No. 3.
16. In the result, award passed as under:—
(1) Action of the Regional Manager, SBI Bhopal is
dismissing Shri S.S. Agarwal, Dy. Head Cashier, is
not proper.
(2) II party management is directed to reinstate workman
with 50% back wages.
R.B. PATLE, Presiding Officer
ubZ fnYyh] 30 fnlEcj] 2013
dkñvkñ 126.—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 232@97 dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 30-12-2013 dks izkIr gqvk FkkA
[lañ ,y&12012@183@89&vkbZ vkj ¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 30th December, 2013
S.O. 126.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref. 232/97 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 30/12/2013.
[No. L-12012/183/89-IR(B-I)]
SUMATI SAKLANI, Section Officer
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 11] 2014@ikS"k 21] 1935
235
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR
COURT, JABALPPUR
No. CGIT/LC/R/232/97
PRESIDING OFFICER: SHRI R.B. PATLE
Shri Prakash Chandra Sethi,
S/o Shri Ghasilalji Sethi,
R/o 40/3, Sir Hukumchand Marg,
Indore ...Workman
Versus
Regional Manager,
Region-III, State Bank of India,
Gwalior Regional Office,
Modi House, Ganohi Road,
Gwalior
...Management
AWARD
Passed on this 27th day of November, 2013
1. As per letter dated 4-8-97 by the Government of
India, Ministry of Labour, New Dellhi, the reference is
received. The reference is made to this Tribunal under
Section -10 of I.D. Act, 1947 as per Notification No.
L-12012/183/89-IR(B)-I. The dispute under reference relates
to:
"Whether Shri P.C. Sethi is a workman as defined
under I.D. Act? If so, whether the action of the
management of State Bank of Indore, Gwalior in
terminating the services of Shri P.C. Sethi is legal and
justified. If not, to what relief the workman is entitled
to?"
2. After receiving reference, notices were issued to
the parties. Ist party workman filed Statement of Claim at
Page 3/1 to 3/6, Case of Ist party workman is that his date
of birth is 14-11-1932. he was appointed by Bank of Jaipur
Ltd. Indore on 6.12.1954 as clerk on probation of 9 months.
He was confirmed on the said post on 1-9-1955. On
20.10.1962, his services were taken over by IInd party State
Bank of Indore which is a body corporate by virtue of State
Bank of India Act 1959. That since then he was working as
Assistant Accountant. That he performed clerical duties.
Writing log books/supplementaries, Inward Bills in register,
Advices to branches/constitutents, Clearing cheques etc.
He was also taking down balances of current deposit ledger,
Saving Bank deposit/ledgers, Recurring Deposit ledgers,
Term deposit ledgers, special Term Deposit ledgers, Draft
payables, payment orders and other Advance Accounts
balance. The workman has given different kinds of duties
performed by him i.e. signing routine vouchers, cheques,
drafts, pay orders, advices, bill schedules statements etc.
That he had no power to punish anybody, he had no
authority to grant leave. He claims to be workman under
Section 2(s) of I.D. Act.
3. That on 19.10.66, service conditions of award Staff
or workman contained under earlier award were modified
therefore memorandum of settlement between management
and their workman. The settlement in industries known as
Bipartite Settlement. The age of retirement was raised from
58 to 60 years as per Para-18.1 of Bipartite Settlement.
However IInd party Bank vide unilateral order applied
service regulations of 1979 placing him in Junior
Management Grade Scale-I. That he had not given option
though I places in junior management Grade Scale-I. he
was performing duties of workman stated above. That he
was retired on 30.1.88 on attaining age of 55 years as per
the Bank of India (Officers Service Regulation 1979).
Workman claims that he being workman as per Bipartite
Settlement iPara-4 he was entitled to continue service till
age of 60years. He was retired by IInd party 4 years 10
months before the age of retirement. On such grounds, the
workman submit that his retirement is in violation of Bipartite
Settlement/Sastri Award. That State bank of Indore Officers
service Regulation 1979 did not apply to him. The said
regulations cannot override the Bipartite Settlement. Merely
placing workman in Junior Management Grade Scale I, it
doesnot seems to be workman that he was performing duties
of clerical nature. As such he is workman under Section
2(s) of I.D. Act. He is entitled to retirement age of 60 years
. He is retired 4 years 10 months before his superannuation
date. On such ground, he is claiming for deciding the
legality of his retirement and prays for consequential reliefs.
4. IInd party filed Written Statement at Page 11/1 to
11/12. IInd party submits that workman was promoted from
clerical cadre as Junior Officer w.e.f. 1.5.66. workman had
willingly accepted his promotion. Consequent to his
promotion, the workman was discharging supervisory
duties. His emoluments exceeded Rs. 500 per month from
1-5-66. The Bipartite settlement dated 19.10.66 came into
force. Workman had an option to renounce his status of
officer and revert to clerical cadre. However the workman
did not avail the option. In 1970, when there was a general
revision of pay scales and the First party workman was
fitted in corresponding new scale of Officer Grade II, he
tried to take up the issue regarding his being a workman in
a civil suit. Said suit was withdrawn by workmen in 1973.
5. IInd party has reiterated that workman was reluctant
to perform the duties assigned to his grade, chargesheet
was issued to him. Warnings were also issued to him.
Punishment withholding increments were imposed against
him. That it often resulted in tendency of promoted officer
to raise dispute claiming to be the workman disowning the
status as Officer. Workman has failed to exercise this option
as per Settlement dated 19.10.66. It is denied that workman
is covered as workman under Section 2(s) of I.D. Act. It is
submitted that workman was promoted as Junior Officer
Scale Grade-I. that the notifications published in Gazette of
India on 7-9-1963 and 6-3-76 by Board of Directors of the
236
THE GAZETTE OF INDIA : JANUARY 11, 2014/PAUSA 21, 1935
[PART II—SEC. 3(ii)]
Bank advising for general information the extent of Authority
and signing powers that will be exercised by the
supervisory staff. During 1966—69 when workman was
working as Officer Incharge, Clelaring Department at P.Y.
Road, Indore branch of the Bank which has been the biggest
branch of the bank throughout, the workman was required
to control, command and direct the working of not less
than 5 clerks and subordinate. That IInd party bank has
reserved punishment against high managerial officers not
below the rank of Regional Managers. When Ist Bipartite
Settlement came into force on 9-10-66, Ist party was
promoted to Supervising official Cadre w.e.f 1.5.66. That as
per Clause 5.14(iv), the failure on part of Ist party workman
is deemed to have chosen to continue in the Bank's
Supervising Officials cadre and terms and conditions of
service.
6. IInd party submits that in 1980, there was general
revision of pay scales as per Statutory regulations of State
Bank of India. Ist party was already working as Officer
Grade-II having been promoted from 1.5.66 in Junior
Management Scale I. All adverse contentions of Ist party
workman are denied that he continued to work in clerical
cadre and as such covered as workman under Section 2(s)
of I.D. Act Ist party had completed 30 years service on
5-12-1984. He has attained the age of superannuation. The
competent authority had granted extension in service till
13.11.1987 when he attained age of 55 years. Further
extension was not desirable. Workman was allowed to retire
on 30.1.1988.On such ground IInd party submits that the
dispute raised by workman deserves no merit.
7. Ist party workman filed rejoinder at Page 12/1 to
12/2 reiterating his contentions in Statement of Claim that
he is covered as workman as under Section 2(s) of I.D. Act.
8. Considerign 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 Shri P.C. Sethi is a
In Negative
Workman as defined under
I.D. Act?
(ii) Whether the action of the
In Negative
Management of State Bank
of Indore, Gwalior in
terminating the services of
Shri P.C. Sethi is legal?
(iii) If not, what relief the
Relief prayed by
Workman is entitled to?
workman rejected.
REASONS
9. Workman claims to be doing clerical duties and as
such covered as workman defined under Section 2(s) of
I.D. Act. IInd party denied above contentions. The affidavit
is filed by Ist party workman stating that he was appointed
as clerk on 1-9-1955. The Bank was merged in State Bank of
Jaipur in 1962. He has stated details of his duties Writing
log books/supplementaries, Inward Bills in register, Advices
to branches/constitutents, Clearing cheques etc. He was
also taking down balances of current deposit ledger, Saving
Bank deposit/ledgers, Recurring Deposit ledgers, Term
deposit ledgers, special Term Deposit ledgers, Draft
payables, payment orders and other Advance Accounts
balance. The workman has given different kinds of duties
performed by him i.e. signing routine vouchers, cheques,
drafts, pay orders, advices, bill schedules statements etc.
In his cross-examination, workman says that he was
promoted as Junior Officer on 1-5-1966. On 17-5-1980, he
was not discriminated as Junior Officer. That he was
performing his official duties as has been fixed. That he
was performing duties states in Para-4-a, b, c of his affidavit.
That he was not holding post of Junior management Scale
I at any time. that he was working as Accountant. Any
official document in that regard is not filed by him. Thus
the workman has not produced any document that he was
performing duties of Accountant. Workman is defined under
section 2(s) of I.D. Act.
Section 2(s):—
"Workman means any person including an apprentice
employed in any industry to do any manual, unskilled,
skilled technical, operational, clerical or supervisory
work for hire or reward, whether the terms of
employment be express or implied and for the
purposes of any proceeding under this Act in relation
to an industrial dispute, includes any such person
who has been dismissed, discharged or retrenched
in connection with, or as a consequence of, that
dispute, or whose dismissal, discharge or
retrenchment has led to that dispute, but doesnot
include any such person—
(i) Who is subject to Air force Act, 1950 or the
Army Act, 1950 or
(ii) Who is employed in the police service or as
an officer or other employee of a prison, or
(iii) Who is employed mainly in a managerial or
administrative capacity or
(iv) Who being employed in a supervisory
capacity, draws wages exceeding one
thousand six hundred rupees per mensem or
exercises a either by the nature of the duties
attached to the office or by reason of the
powers vested in him, functions mainly of a
managerial nature."
Workman is retired from service on 30-1-1988. The
workman has challenged legality of his retirement. Therefore
the duties performed by workman at the time of his retirement
needs to be considered. Documents are produced as per
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 11] 2014@ikS"k 21] 1935
237
Exhibit M-1, workman was promoted as Junior Officer Grade.
As per document Exhibit M-2, the Ist party workman had
undertaken to serve at any branch of Bank when called
upon by Bank in connection of his promotion to the Junior
officers cadre. As per Exhibit M-3, after employee has
attained age of 58 years, he will be made to retire unless
Directors give him extension. Exhibit M-4 is copy of service
conditions as per settlement. Employees were excluded
from exercising options, all employees promoted to the
supervisory cadre of the Bank before 31-11-1962. As per
document Exhibit M-8, workman had requested that it will
not suit him to take over charge of Bank as he was suffering
from illness. As per Exhibit M-9, workman was directed
giving 3 months time to make himself suitable for expected
duties. As per Exhibit M-11, workman was informed that he
was incapable of undertaking duties and responsibilities
commensurable with his cadre. Said letter was issued on
29-9-96. In Exhibit M-12, workman had requested
management before taking any action on him, he wanted to
know the truth relating to bogus entry. Vide Exhibit M-13,
workman was directed to act as temporary Branch Manager
of Khandwa Branch on 26-5-76. Vide Exhibit M-15, letter
dated 14-7-76 the workman was informed that he was
allotted duties of passing cheques, drafts etc. Vide Exhibit
M-16 the duties allocated is shown. The Branch Manager
in his absolute discretion, can require the Assistant
Accountant to pass vouchers to sign drafts, etc. without
any upper limit. Exhibit M-17 relates to allocation of duties
to workman. As per Exhibit M-18 workman was informed
by telegraph and that he was deputed to Gogaon branch in
place of Shri R.N. Parse who is proceeding on leave from
4-10-1976. As per Exhibit M-19, workman had requested for
reconsideration of his deputation and make suitable
arrangements. It was with reference to office letter dated
15-9-76. All those documents clearly shows that the request
of workman not to assign duties of supervisory officer
grade. The documents shows that he was working in officer
grade but not inclined to do the duties prescribed. Several
documents in that regard are produced. The document
Exhibit M-22 is chargesheet issued to workman. The charge
relates to Branch Manager Khandwa under whose
supervisory control the workman was working, allocated
vide letter dated 14-7-1976 duties of passing vouchers,
cheques, drafts etc. he failed to discharge those duties.
Charges related to disobeying the orders of the superiors.
As per document Exhibit M-23, workman was imposed
punishment of cancellation of one increment. Articles of
charges is produced at Exhibit M-24. Order of penalty is
produced at Exhibit M-25. The penalty was imposed vide
Regulation 68(1)(ii) of the State Bank of Indore Officers
Service Regulation Act 1979. As per Exhibit M-26 letter
dated 27-6-72 workman was informed that he will continue
to be in supervisory cadre in the Bank as such he will be
liable to be posted as a Branch Agent. That he will not be
entitled to any benefits which have already accrued to the
members of the supervising staff under the revision. Despite
of it, workman was informed that he will be continued to be
in supervisory cadre. The Ist party is claiming to be
workman without challenging above orders. His claim is
contrary to the documents produced above. Workman had
disobeyed the order of his superior and penalty was
imposed for disobedience of orders. His one increment
was cancelled long back in 1972, suppressing all those
documents workman is claiming that he was continuing to
work as clerk appears after thought. Exhibit 49 is order of
his posting at Khandwa Branch as Assistant Accountant.
10. Evidence of Management's witness Mukesh
Dwivedi is filed on affidavit. The witness of the management
has stated that Ist party workman was promoted as Junior
Officer on 1-5-66. He was given benefit of Ist Bipartite
Settlement dated 19-10-1966. He was posted as Officer
Grade-II in 1970. Ist party workman had filed Civil Suit in
1973, it was withdrawn in 1979. That workman received
benefit as Officer Grade-II under the Officer Service
Regulation, 1979 till his retirement in 1988. The evidence of
the management's witness remained unchallenged.
Workman failed to cross-examine. All these evidence shows
that the workman was promoted as Officer Grade-II. He
received all benefits of said post since 1966 till retirement
in 1988. Workman has suppressed fact of filing civil suit
and punishment imposed, chargesheet issued on him for
disobedience in duty. Therefore evidence of workman is
not worthy of reliance. His claim that he was performing
duties of clerical nature cannot be relied. As the workman
was promoted as Junior Officer Grade-II in 1966. Workman
has not stated what were the duties assigned to the officer
Grade-II. Therefore I record my finding in Point No. 1 in
Negative.
11. Workman is challenging order of his retirement
dated 30-1-88 claiming that he was working as workman
and not in officers cadre. That the age of retirement of the
workman cadre is 60 years. He was retired 4 years 10 months
before date of his superannuation. Above contentions of
workman are denied by IInd party. Section 2(oo) of I.D. Act
defines retrenchment.
Section 2(oo)—Retrenchment means the termination
by the employer of the service of a workman for any reason
whatsoever, otherwise than as a punishment inflicted by
way of disciplinary action but doesnot include—
(a) Voluntary retirement of the workman; or
(b) Retirement of the workman on reaching the age of
superannuation if the contract of employment
between the employer and the workman concerned
contains a stipulation in that behalf
Thus retirement or superannuation of workman is
not covered in definition of retrenchment. Therefore the
retirement of workman cannot be said retrenchment under
Section 2(oo) of I.D. Act. Therefore legality of his retirement
cannot be challenged by dispute under Section 10 of I.D. Act.
238
THE GAZETTE OF INDIA : JANUARY 11, 2014/PAUSA 21, 1935
[PART II—SEC. 3(ii)]
Therefore I record my finding in Point No. 2 in Negative.
12. In view of my finding in Point Nos. 1, 2, that
workman is not covered under Section 2(s) of I.D. Act. The
retirement of workman is not covered under Section 2(oo)
of I.D. Act as retrenchment. Therefore the workman is not
entitled to any relief. Accordingly I record my finding in
Point No. 3.
13. In the result, award is passed as under:—
(1) Workman is not covered as workman under Section
2(s) of I.D. Act.
(2) Retirement of workman by IInd party management is
proper.
(3) Workman is not entitled to the relief prayed.
R. B. PATLE, Presiding Officer
ubZ fnYyh] 30 fnlEcj] 2013
dkñvkñ 127.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj e/; jsyos
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 ¼lanHkZ la[;k 56@99½ dks izdkf'kr djrh gS] tks
dsUnzh; ljdkj dks 30@12@2013 dks izkIr gqvk FkkA
[lañ ,y&41011@22@98&vkbZvkj ¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 30th December, 2013
S.O. 127.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 56/99)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Jabalpur as shown in the Annexure, in the Industrial dispute
between the management of Central Railway, and their
workmen, received by the Central Government on 30/12/
2013.
[No. L-41011/22/98-IR(B-I)]
SUMATI SAKLANI, Section Officer.
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/56/99
PRESIDING OFFICER: SHRI R.B. PATLE
The Divl. Organising Secretary,
Madhya Railway Karmchari Sangh,
RB-II, 176-D, Railway East Colony,
Bhopal
........Workman/Union
Versus
Sr. Divisional Personnel Officer,
Central Railway,
Bhopal
Executive Engineer(Const.),
Central Railway,
Bhopal
......Management
AWARD
(Passed on this 22nd day of November, 2013)
1. As per letter dated 12-1-99 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-41011/
22/98/IR(B-I). The dispute under reference relates to:
"Whether the action of the management of
Sr. Divisional Railway Manager, Central Railway,
Bhopal in not regularizing Shri Resham Bahadur and
Shri Ram Vilas in the post of Motor Driver even after
completing 240 days service in a calender year is
justified? If not, to what relief the workmen are entitled
for?"
2. After receiving reference, notices were issued to
the parties. Workman filed Statement of Claim at Page 3/1
to 3/2. Case of 1st party workman is that 1st party No. 2
Reshambai was appointed as Gangman Cat-IV on 26-6-82.
On 1-3-1983, he was appointed as Motor Driver Cat-III. On
21-6-88, he was appointed as Motor Driver Grade_II.
However his services were not confirmed on said post. 1st
party no. 3 Ramvilas was first appointed as labour on 19-9-
81. On 15-3-89, he was appointed as Category IV, on 1-9-89
he was appointed as Jeep Driver Grade-III. On 16-9-84, he
was given Adhoc promotion for 3 months in Driver Cat-II.
That he was not confirmed on said post. That 1st party No.
3 Ramvilas was working at Bhopal vide order dated 7-10-
99. He was transferred to DEE©/RE/BPL on same grade
pay Rs. 4000-6000. That 1st party No. 3 without any hearing
was reverted to pay scale Rs. 3050-4590 illegally. He claims
to be entitled to pay Scale Rs. 4000-6000. He was illegally
posted in Pay Scale Rs. 3050-4590 by DEE(C). 1st party No.
2,3 further submits that they have repeatedly written letters
for fixation of their lien. However IInd party No. 1 to 3 have
not fixed their lien. On such ground, 1st party BNo. 2,3
prays for fixation of their lien. On such grounds, 1st party
No. 2,3 prays for fixation of their lien. 1st party No. 3 prays
for setting aside order of reversion from Grade II to Grade-
III.
3. IInd party filed Written Statement at page 21/1 to
21/2. The case of IInd party is that IInd party No. 2 Resham
Bahadur was appointed as Khalasi in Pay Scale Rs. 780-
940 on 26-6-82 & 1-4-89. He was appointed on 1-4-89 as
Motor Driver on adhoc basis. That he had passed
departmental exam prior to his appointment as motor driver
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 11] 2014@ikS"k 21] 1935
239
on adhoc basis. Grade II Pay Scale Rs. 1200-1800. He was
promoted on 21-6-88 & 16-11-94. The record is available in
office. The required trade test was conducted by Asstt.
Chief Engineering Workshop Jhansi. After passing the trade
test, 1st Party No. 2 Resham Bahadur was appointed as
Motor Driver on 1-3-83. That the consideration division is
temporary division. Therefore there is no point of fixing
lien in the consideration division. That as per letter dated
7-6-98, IInd party had requested Personnel Manager, Bhopal
for fixation of lien of 1st party workman at appropriate stage.
However no action was taken by said authority despite of
repeated letters. The consideration division being temporary
division, the lien of 1st party No. 2, 3 could not be fixed.
That as per Personnel Manager, Rail Division, Bhopal memo
No. P-400/2/EG different policy employees in Bhopal
Division were not required to submit their options. The
employees were to be kept on lien in the division. IInd
party has not opposed the relief prayed by 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 Negative
management of Sr. Divisional
Railway Manager, Central
Railway, Bhopal in not
regularizing Shri Resham
Bahadur and Shri Ram Vilas in
the post of Motor Driver even
after completing 240 days
service in a clendar year is
justified?
(ii) If not, what relief the
As per final order.
workman is entitled to?"
REASONS
5. 1st party workman Resham Bahadur & Ram Vilas
are praying for fixation of lien. As per the terms of reference,
the dispute relates to denial of regularization of their
services after completing 240 days working as Motor Driver.
The reference does not relate to the reversion of 1st party
No. 3 Ram Vilas by DE in Pay Scale 3050-4590. Thus the
claim of 1st party No. 1 w.r.t. his reversion in Pay Scale from
4000-6000 in Pay Scale 3050-4590 is beyond the terms of
reference. The relief claimed by 1st party No. 3 Ram Vilas
cannot be adjudicated. So far as relief prayed by 1st party
No. 2, 3 and fixation of lieu, IInd party has not disputed the
same. The documents are produced by 1st party workman.
Ram Vilas was working as Jeep Driver Gr-III, was promoted
as Jeep Driver Grade-II on adhoc basis for 3 months as per
Order No. 39/94 dated 16-11-94. The copy of order No. 39/
94 produced shows that Shri Ram Vilas was working as
jeep Driver in Grade Rs. 4000-6000. Letter dated 19-7-95
shows that office of IInd party had requested for fixation
of lien of Resham Bhadur, Ram Vilas alongwith others.
However no action was taken by the concerned Railway
Authorities. Ram Vilas filed his affidavit of evidence. He
has stated about his promotion on Grade-II Jeep Driver on
1-9-89, 16-11-94. He is continuously working on said post.
He was not cross-examined by IInd party. Resham Bahadur
filed affidavit of his evidence stating that he was working
as Jeep Driver Grade-II in office of Dr. Chief Engineer,
Bhopal in Pay Scale Rs. 4000-6000. That initially he was
appointed as Gangman on 26-6-82. He was appointed as
Motor Driver Grade-III on 1-3-88. Again on 21--6-88 he was
appointed as Motor Driver Grade-II. That his seniority was
not fixed. He was not cross-examined by IInd party. Affidavit
of evidence of management's witness Bhagwan Sahay
Meena is filed. The witness of the management has stated
that Resham Bhadur was appointed as Gangman on 26-6-68
in Pay Scale 196-232. Ram vilas was appointed as Gangman
on 1-1-84 in Pay Scale 196-232. That in Railway
Construction Division, employees are not directly
appointed. The employees are taken from other division as
per requirement of the work. Seniority list is not maintained
of the employees in construction division. The employees
are provided lien. That the Seniority of Resham Bhadur
and Ram Vilas is maintained by Personnel Manager, Rail
Mandal, Bhopal. In para-8 of his affidavit, management's
witness has stated that the lien of both the workmen is
being maintained by Personnel Manager, Rail Mandal
Bhopal. However no documents is produced in that regard.
Management's witness is not cross-examined. Workman
has submitted application for withdrawal of the case
supported by affidavit appears unusual when their claim is
not settled, how the workman can withdraw their claim.
6. Learned counsel for workman at the time of hearing
was unable to explain how the documents were admitted
by 1st party No. 2,3 themselves.
7. Reliance is placed by learned counsel in—
"Case of P.P. Muralidharan Versus Zonal Manager,
Food Corporation of India others reported in 1994
Supp (2) Supreme Court Cases 201. Their Lordship
the Apex Court dealing with the promotion right to
transfer on request to another zone with termination
of lien in the old zone and subject to bottom seniority
in the new zone-Judicial quashment of a certain
restriction on promotion to the next higher post
resulting in entitlement of the transferee to promotion
w.e.f. a pre-transfer date in the old zone. In such
circumstances, the transferee, held, entitled to
promotion in the new zone despite the termination of
his lien in the old zone."
The facts of present case are not comparable. In
present case but Ist party No. 2 & 3 were appointed in IInd
party itself. There is no evidence on their transfer from
other division. However affidavit of management's witness
is clear that lien of employees in construction division is of
no use. The lien of Ist party workman No. 2, 3 is to be
240
THE GAZETTE OF INDIA : JANUARY 11, 2014/PAUSA 21, 1935
[PART II—SEC. 3(ii)]
maintained in the office of Personnel Manager, Railway
Division, Bhopal. However steps are not taken by such
office in maintaining lien of seniority of workman. The
evidence shows that the workman are regularly working as
Jeep Driver Cat-II from 1984 discussed above. Though the
promotion of Ist party workman was on adhoc basis, he
was continuously working on said post. The Controlling
Authorities has shown negligence in their duty by not
maintaining Seniority lien of workman. Therefore I record
my finding on Point No. 1 in Negative.
8. In the result, award is passed as under:—
(1) Action of the management of Sr. Divisional Railway
Manager, Central Railway, Bhopal in not regularizing
Shri Resham Bahadur and Shri Ram Vilas in the post
of Motor Driver even after completing 240 days
service in a calendar year is not proper.
(2) Ist party workman No. 2 Resham Bahadur, No. 3 Ram
Vilas are deemed promoted as Motor Driver Cat-II
from 21-6-88, 16-9-94 respectively. Their lien be fixed
in the Controlling Division by Personnel Manager,
Railway Division, Bhopal.
R.B. PATLE, Presiding Officer
ubZ fnYyh] 30 fnlEcj] 2013
dkñvkñ 128.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj e/; jsyos 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 238@97 dks izdkf'kr djrh gS] tks
dsUnzh; ljdkj dks 30@12@2013 dks izkIr gqvk FkkA
[lañ ,y&41012@77@93&vkbZ vkj ¼ch&I½]
lqefr ldykuh] vuqHkkx vf/kdkjh
New Delhi, the 30th December, 2013
S.O. 128.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref. No. 238/97
of the Cent.Govt.Indus.Tribunal-cum-Labour Court,
Jabalpur as shown in the Annexure, in the industrial dispute
between the management of Central Railway, and their
workmen, received by the Central Government on
30/12/2013.
[No. L-41012/77/93-IR(B-I)]
SUMATI SAKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
No. CGIT/LC/R/238/97
PRESIDING OFFICER: SHRI R.B. PATLE
Shri Upendra Shrama,
H.No. 3880, Shiv Kumar Gupta's House,
Kanchghar Nai Basti,
Jabalpur (MP)
.....Workman
Versus
The Divisional Railway Manager,
Central Railway,
Bhopal
................Management
AWARD
(Passed on this 28th day of November, 2013)
1. As per letter dated 13-8-97 by the Government of
India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to his Tribunal under
Section-10 of I.D. Act, 1947 as per Notification No. L-41012/
77/93-IR(B-I) The dispute under reference relates to:
"Whether the action of the management of Divisional
Railway Manager, Central Railway Bhopal in
terminating the services of Shri Upendra Prasad
Sharma S/o Shri Bishu Sharma w.e.f. 19-1-87 is
justified? If not, to what relief the workman is
entitled?"
2. After receiving reference, notices were issued to
the parties. Ist party filed Statement of claim at Page 2/1 to
2/4. The case of workman is that he was working as Railway
Khalasi Pay Scale 750-1040 with IInd party No. 3 IInd party
No. 2 is Divisional Authority of IInd party No. 3 PWI, IInd
party No. 1 is zonal authority. That IInd party terminated
his services from 19-1-87 in violating of Service Rules,
principles of natural justice, Article 311 of the constitution.
He was not paid retrenchment compensation. He was not
served with 14 days notice. That IInd part No. 3 is not his
Appointing Authority therefore the termination of his
service is illegal. That he had protested termination of his
service to IInd party No. 2 his request was not considered.
Thereafter he had approached ALC, Bhopal and the dispute
has been referred. IInd party terminated his services in
violation of Para 2301 (b) (1) of Railway Establishment
Manual. Rule 9 of Disciplinary Appeal Rule 1968 of Railway
servants. Under Rule 149(5) of Railway Establishment Vol-
1, termination of his services is unconstitutional. On such
ground, he prays for his reinstatement on the post of
Khalasi. He also prays for consequential benefits.
3. IInd party filed Written Statement at Page 7/1 to
7/3. The calim of workman is totally denied. It is denied that
Ist party worked from 1985. Rather it is submitted that he
was engaged as casual labour w.e.f 19-6-86 under PWI.
Violation of Article 311(2) of the constitution and other
rules is denied. IInd party submits that workman had
obtained employment producing bogus employment card.
After scrutiny, it was found that casual service card were
never issued to him. Therefore show cause notice was
issued to him. That after issuing show cause notice, the
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241
workman left the service. He has aslo left the place. He
never came to join duties and directly filed proceeding
before ALC for conciliation. IInd party also request
permission to prove misconduct against the workman. That
there is inordinate delay in making application before ALC.
IInd party prays for rejection of claim of workman.
4. Workman has filed rejoinder at Page 8/1 to 8/3
reiterating his contentions in statement of 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 Divisional
Railway Manager, Central
Railway Bhopal in terminating
the services of Shri Upendra
Prasad Sharma S/o Shri Bishu
Sharma w.e.f. 19-1-87 is justified?
(ii) If not, what relief the
Workman is not
workman is entitled to?"
entitled to relief
prayed by him.
REASONS
6. Workman is challenging termination of his services
for violation of Article 311(2) of constitution. Para 2301(b)(i)
of Indian Railway Establishment Manual etc. That he was
not served with notice before termination of his services.
Workman filed his affidavit of evidence. He has stated that
he worked under Management of IInd party from May,
1985 to 18-1-87 as monthly rated casual labour. He was
stopped from work from 19-1-87 without paying
retrenchment compensation, his services were terminated
in violation of Section 25-F of I.D. Act. That he was engaged
in Railway service as casual labour. He got monthly rated
pay of MRCL. He acquired temporary status. That his
services were wrongly terminated on ground that fake
service card was produced by him. Show cause notice dated
3-1-87 was issued to him workman in his cross-examination
says he received appointment letter. Same is produced on
record. He had received letter of termination produced on
record. The document is at Exhibit M-7. He joined service
on the basis of service card Exhibit M-1. In his further
cross-examination, workman says for securing card, he was
required to dposit Rs. 2, he receipt of amount. He has
received such receipt but the said fact is not pleaded in his
Statement of Claim. Thus evidence of workman that he
depsited Rs. 2 for securing card, the received receipt was
lost appears afterthought as those facts are not stated in
his Statement of Claim. His Statement of Claim is also silent
about he was securing job on the basis of the card when he
had already received show cause notice dated 3-1-87. The
notice Exhibit M-7 dated 3-1-84 clearly refers that workman
had obtained employment as casual labour at Loco from
Jabalpur depot on 10-4-1982 on production of Casual Labour
Card issued by PWI/LF-JBP. That enquiry is revealed that
casual labour card No. 289125 shown by him at the time of
request for appointment. Vacancy at BIR was forged and
false. Appointment was obtained on the strength of such
entries. Workman was called upon to explain within 15 days
as to why his services should not be terminated for above
reasons. Workman did not submit explanation to said
showcause notice. As per pleadings of management, the
workman did not report to work. He also did not submit
report. The evidence of management's witness on above
point is not shattered in his cross-examination. The
management's witness Victor Kleton says that Card No.
289125 was not issued from his office. In his cross-
examination, witness of the management says that he was
working in Loco foreman office. That entries in Exhibit M-
8 are in respect of left thumb for the period 1979 to 1984.
The period was 3-4 years subsequent to his joining service
in Locoshed. That he was not appointed in Locoshed. The
working rule for Locoshed was established in 2006. The
casual labour card was issued by foreman. He was unable
to tell who was foreman in 1982.
7. Learned counsel for Ist party H.R. Bharti pointed
out my attention to documents Exhibit M-1 to M-5 and
emphasized that no enquiry was held to hold that the casual
card issued to the workman was bogus. There is no evidence
to hold that any kind of enquiry was made before
concluding that casual card issued to workman was forged
or bogus. In present case as per document Exhibit M-7
show cause notice was issued to workman on 3-1-87 why
his services should not be terminated as casual card
produced by him was bogus. The workman did not give
reply to it. The evidence of workman is silent whether he
has replied to show cause notice. Workman himself has
not replied to the show cause notice, I donot find substance
in the argument.
8. Learned counsel for workman Shri Bharti relies on
judgment in a similar Case No. R/86/05 in which the workman
was granted reinstatement with 20% back wages. However
the evidence in present case is different. Show cause notice
was issued to the workman calling upon him to explain
why his services could not be terminated for production of
bogus casual card. Workman has not replied to it. The
facts in Reference 86/05 are not comparable as in said case,
there was no evidence that showcause notice was issued
to the workman and he failed to reply the same. Therefore
I donot find appropriate to take similar view in the matter.
As show cause notice was not replied, the opportunity
given to the workman has not availed by him to explain
that the casual card produced by him was genuine. The
dispute is referred after lapse of 10 years. Therefore the
action taken by management terminating his services
cannot be said illegal. For above reasons, I record my
finding in Point No. 1 in Affirmative.
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[PART II—SEC. 3(ii)]
9. In the result, award is passed as under:—
(1) Action of the management of Divisional Railway
Manager, Central Railway Bhopal in terminating the
services of Shri Upendra Prasad Sharma S/o Shri
Bishu Sharma w.e.f. 19-1-87 is proper.
(2) Workman is not entitled to relief prayed by him.
R.B. PATLE, Presiding Officer
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New Delhi, the 30th December, 2013
S.O. 129.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. 27/2012)
of the Central Government Industrial Tribunal/Labour Court
No. 1, New Delhi now as shown in the Annexure in the
Industrial Dispute between the employers in relation to the
management of the Commissioner, MCD and their workman,
which was received by the Central Government on
26/12/2013.
[No. L-42011/101/2011-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE DR. R. K. YADAV, PRESIDING OFFICER,
CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL NO. 1, DELHI
I.D. No. 27/2012
Sh. Ishwar Singh S/o Sh. Gugan,
C/o Delhi Municipal Mazdoor Trade Union
BE-360, Lane-I,
New Delhi.
...Workman
Versus
The Commissioner,
Municipal Corporation of Delhi,
Town Hall, Chandni Chowk,
Delhi-110006
... Management
AWARD
A safai karamchari was engaged on muster roll to
render services in a colony, which was under the control
and management of Delhi Development Authority (in short
the Authority). Later on, control and management of the
said colony was transferred to Municipal Corporation of
Delhi (in short the Corproation). Services of safai
karamchari, engaged on muster roll by the Authority was
transferred to the Corporation. He was regularized in service
by the Corporation with effect from 01.08.1971, vide office
order dated 19.07.1971. At the time of regularization of his
service, he gave his date of birth as 24.04.1947. He was
superannuated from service by the Corporation on
30.04.2007. After his superannuation, he raised a demand
claiming to be of younger age than the age, recorded in
service record by the Corporation. His demand was not
conceded to by the Corporation. He approached the
Municipal Mazdoor Trade Union (in short the Union) for
redressal of his grievances. The Union raised a dispute
before the Conciliation Officer. Since the Corporation
contested the claim, conciliation proceedings failed. On
consideration of failure report, submitted by the
Conciliation Officer, the appropriate Government referred
the dispute to this Tribunal for adjudication, vide order
No. L-42011/101/2011-IR(DU), New Delhi dated 25.01.2012,
with following terms:
"Whether action of the management of Municipal
corporation of Delhi (MCD), Town Hall Delhi in
terminating the service o f the workman Shri Ishwar
Singh, S/o Shri Gugan, ex-safai karamchari, on the
basis of two different date of birth recorded in the
service book with effect from 30.04.2007 and without
giving an opportunity to the workman of being heard
is justified? What relief the workman is entitled to?"
2. In the reference order, the appropriate Governmet
commanded the parties to the dispute to file statement of
claim, complete with relevant documents, list of reliance
and witnesses with this Tribunal within 15 days of receipt
of the reference order and to forward a copy of such
statement of claim to the opposite parties involved in the
dispute. Despite directions, so given, Shri Ishwar Singh
opted not to file his claim statement with the Tribunal.
3. Notice was sent to Shri Ishwar singh by registered
post on 16.02.2012, calling upon him to file claim statement
before the Tribunal on or before 06.03.2012. This notice
was sent to him through the union, at Delhi Municipal
Mazdoor Trade Union, BE-360, Lane I, New Delhi, the
address provided by the appropriate Government in order
of reference. However, the postal article was received back
with the remarks 'Address incomplete'. Hence, complete
address was called for from the appropriate Government.
Notice was sent to the claimant by registered post on
08.05.2012, calling upon him to file his claim statement
before this Tribunal on 24.05.2012, on which date Shri
¹Hkkx II—[k.M 3(ii)º
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243
Pradeep Kaushik appeared before the Tribunal and sought
time.
4. Thereafter none came forward on behalf of the
claimant to file his claim statement, hence final notice was
sent to him by registered post on 13.12.2012 commanding
the claimant to file his claim statement before the Tribunal
on or before 08.01.2013, Neither the postal articles, referred
above, were received back nor was it observed by the
Tribunal the postal services remained affected in the peirod,
referred above. Therefore, every presumption lies in favour
of the fact that the above notice was also seraved upon the
claimant. Despite service of these notices, claimant opted
to abstain away from the proceedings. No claim statement
was filed on this behalf.
5. Since onus of the quesiton referred for adjudicaiton
was on the Corporation, it was called upon to file its
response to the reference order. In its response to the
reference order, the Corporation presents that the dispute
is not maintainable since it has not acquired status of an
industrial dispute for want of espousal of a union or
considerable number of workman in its establisment. It has
also been pleaded that the dispute is not maintainable on
the grounds of delay, since a belated claim was raised after
a cap of five years. Claimant is not entitled to any relief on
account of delay and laches, pleads the Corporation. The
Corporation further pleads that at the time of regularization
of his services in August 1971, he was medically examined.
At that time, he filled in a form and gave his date of birth as
24.04.1947, which date of birth was recorded in his service
record. Since the claimant reached the age of
superannuation, he was made to retire on 30.04.2007. He
has no claim and the dispute may be answered in favour of
the Corporation.
6. Arguments were heard at the bar. None came
forward on behalf of the claimant to advance arguments.
Shri Umesh Gupta, authorized representative, raised
submissions on behalf of the Corporation. 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:
7. At the outset, the Corporation argued that the
dispute is an individual dispute since it has not been
espoused by a union or considerable number of workmen
in its establishment. An individual dispute does not give
jurisdiction to this Tribunal. For an answer to this
proposition, definition of the term 'industrial dispute' is to
be construed. Section 2(k) of the Industrial Disputes Act,
1947 (in short 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."
8. The definition of "Industrial dispute" referred
above, can be divided into four parts, viz. (1) factum of
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".
9. 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 "employer", all "Employments" and all "workmen",
whatever the nature or scope of the employment may be.
Therefore, except in the case where there can be a dispute
between the employers and employers and workmen and
workmen, one of the parties to an industrial dispute must
be an employee or a class of employees. The first point,
therefore, to be noted, perhaps self evident, is that the
phrase "employer and workmen", the plural may include
singular on either side or any permutation of singular or
plural, the masculine including the feminine. In order,
therefore, to determine as to whether a controversy or
difference or a dispute is an "an industrial dispute" or not,
it must first be determined whether the workman concerned
or workmen sponsoring his cause satisfy the conditions of
clause (s) of section 2 of the Act. Here in the case the
Corporation does not dispute status of the claimant to be
of a workman within the meaning of section 2(s) of the Act.
10. The Apex Court put gloss on the definition of
"Industrial dispute" in Dimakuchi Tea Estate [1958 (1) 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 (i) 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 workman raised a
dispute as against their employment, the person regarding
whose employment, non employer, 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 to be extracted
thus:
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[PART II—SEC. 3(ii)]
"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."
11. 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 workman 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 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.
12. The expression "industrial disputes" 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 industiral dispute. It was
laid thereon that (1) a dispute between the employer and a
single workman cannot be an industrial dispute, (2) it cannot
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".
13. 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
" industiral 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].
14. 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
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245
507] complaints relating to dispute of ten workmen were
filed before the Conciliation Officer by the individual
workmen themselves. But thier 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".
15. 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,
throgh 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 cases 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 ([974 (II) LLJ 34]. For ascertaining as to whether
an individual dispute has acquired character of an individual
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].
16. Here in the case, not even an iota of facts are
brought over the record to the effect that the union took
up the cause of the claimamt as their own. It is also not
shown that the members of the union had shown their
collective will in favour of the cause of the claimant. Thus
it is evident that there is a complete vaccum of facts to the
effect that the union espoused the cause of the claimant.
Resultantly there is no material to conclude to the effect
that the dispute acquired status of an industrial dispute.
The reference is liable to be answered against the claimant
on that score. Issue is therefore answered in favour of the
Corporation and against the claimant.
17. Next count of attack has been made by the
Corporation pleading that the dispute was raised by the
claimant after five years from the date of superannuation.
A stale claim was put forward, which frustrates relief in his
favour. Section 10 (1) of the Act does not prescribe any
period of limiation for making reference of the dispute for
adjudication. The words 'at any time' used in sub-section
(1) of section 10 of Act does not admit of any limitation in
making an order of reference. Law of limitation, which might
bar any Civil Court from giving remedy in respect of lawful
rights, cannot be applied by Industrial Tribunals. However,
policy of industrial adjudication is that stale claim should
not be generally encouraged or allowed unless there is
satisfactory explanation for delay. In Shalimar Works Ltd.
[1959 (2) LLJ 26], the Apex Court pointed out that though
there is no limitation prescribed in making reference of the
dispute to Industrial Tribunal, even so, it is only reasonable
that disputes should be referred as soon as possible after
having arisen and on failure of conciliation proceedings.
In Western India Match Company [1970 (2) LLJ 256] the
Apex Court observed that in exercising its discretion,
Government will take into account time which has lapsed
between its earlier decision and the date when it decides to
consider it in the interest of justice and industrial peace to
make the reference for adjudication. Same view was taken
in Mahabir Jute Mills Ltd. [1975 (2) LLJ 326]. In Gurmail
Singh [2000 (1) LLJ 1080] Industrial Adjudicator dismissed
the reference on the ground that there was delay of 8 years
in raising the dispute, which delay was condoned by the
Apex Court and it was ordered that the workman would not
be entitled to any back wages for the period of 8 years but
would be entitled to 50% of wages from the date it raised
the dispute till the date of his reinstatement. In Prahalad
Singh [2000 (2) LLJ 1653], the Apex Court approved the
award of the Tribunal in not granting any relief to the
workman who preferred the claim after a period of 13 years
without any reasonable or justifiable grounds. In
Nedungadi Bank Ltd. [2002 (2) SCC 4] a lapse of seven
years in raising the dispute was held to be a factor to refuse
the relief. The Apex Court ruled that the appropriate
Government has to exercise its powers of referring the
dispute in a reasonable manner. Delay of seven years made
the Court to conclude that there was no dispute existing or
apprehended when decision was taken to refer it for
adjudication. Same view was taken in Haryana State Co-
operative Land Development Bank [2005 (5) S.C.C. 91].
From above decisions, it can be said that the law relating to
delay in raising or reference of dispute is bereft of any
principles, which can be easily comprehended by the
litigants.
18. Claimant superannuated on 30.04.2007. After his
superannuation, he approached the union in the year 2001.
The union raised the dispute before the Conciliation Officer,
which dispute was contested. It is emerging over the record
that for a period more than 4 years, the claimant remained
in hibernation. One fine morning, he comes out of slumbers
and approached the union for redressal of his grievance. A
superannuated employee, if aggrieved by the action of his
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THE GAZETTE OF INDIA : JANUARY 11, 2014/PAUSA 21, 1935
[PART II—SEC. 3(ii)]
employer, is supposed to raise the dispute immediately.
Delay in raising the dispute would frustrate claim on
continuance in service. Taking into account all these
aspects, delay of nearly five years in raising the dispute
would certainly come in his way. I am of the considered
opinion that on account of delay of nearly 5 years, the
claimant is not entitled to any relief.
19. As projected by the Corporation, services of the
claimant were regularized with effect from 01.04.1971. He
appeared before the medical board for his medical
examination. At that time he gave his date of birth as
24.04.1947, which was entered into his service book.
Thereafter, he never gave any proof to the effect that the
date of birth furnished by him was not correct. After his
superannuation on 30.04.2007, he cannot claim his date of
birth to be different than 24.04.1947. Date of birth recorded
in his service book, which was accepted and acted upon
by the parties for more than 36 years, cannot be questioned
now. Action of the Corporation in superannuating the
claimant on reaching the age of 60 years is found to be
justified. Claimant is not entitled to any relief on factual
matrix too.
20. In view of the reasons detailed above, it is evident
that Shri Ishwar Singh is not entitled to any relief.
Furthermore, no facts have been projected to the effect
that this Tribunal can invoke its jurisdiction over the matter
to adjudicate it, being an individual dispute. In view of
these reasons, it is concluded that the action of the
Corporation in superannuating the claimant on 30.04.2007
was legal and justified. An award is, accordingly, passed. It
be sent to the appropriate Government for publication.
Date 09.12.2013
DR. R.K. YADAV, Presiding Officer
ubZ fnYyh] 18 fnlEcj] 2013
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deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh;
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¼lanHkZ la[;k 43@2004½ dks izdkf'kr djrh gS] tks dsUnzh; ljdkj
dks 18@12@2013 dks izkIr gqvk FkkA
[lañ ,y&40012@158@2003&vkbZvkj ¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 18th December, 2013
S.O. 130.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 43/2004)
of the Central Government Industrial Tribunal/Labour
Court, Lucknow now as shown in the Annexure in the
Industrial Dispute between the employers in relation to the
management of The Senior Superintendent, Post Office,
Dehradun and their workman, which was received by the
Central Government on 18/12/2013.
[No. L-40012/158/2003-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL –CUM- LABOUR COURT,
LUCKNOW
PRESENT : Dr. MANJU NIGAM, Presiding Officer
I.D. No. 43/2004
Ref. No. L-40012/158/2003-IR(DU) dated: 19.04.2004
BETWEEN
Shri Inder Singh, S/o Sh. Bhagwan Singh
Village & Post Office – Mazagoan Kavanu
Distt – Dehradun
AND
The Senior Superintendent
Post Office
Dehradun Division
Dehradun
AWARD
1. By Order No. L-40012/158/2003-IR(DU) dated:
19.04.2004 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 Inder Singh, S/o
Sh. Bhagwan Singh, Village & Post Office – Mazagoan
Kavanu, Distt – Dehradun and the Senior Superintendent,
Post Office, Dehradun Division, Dehradun for adjudication
to this CGIT-cum-Labour Court, Lucknow.
2. The reference under adjudication is:
“Whether the action of Sr. Supdt. of Post Offices,
Dehradun in terminating the services of
Sh. Inder Singh S/o Sh. Bhagwan Singh, Shakha
Dakpal w.e.f. 22.5.98 is legal and just? If not to what
relief the workman is entitled to?”
3. It is admitted case of the parties that the workman,
Inder Singh had been appointed as Branch Post Master
with the opposite party Post Office w.e.f. 29.07.94 and he
was served upon a charge sheet dated 20.03.98 for the
misconduct of misappropriation and consequently his
services have be terminated w.e.f. 22.05.98 vide impugned
order dated 22.05.98.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 11] 2014@ikS"k 21] 1935
247
4. The workman in his statement of claim has stated
that he submitted his reply to the charge sheet dated
20.03.98 as per advice of the his higher officer and has
alleged that the management arbitrarily terminated his
services without following due procedures of law i.e. did
not conduct any inquiry or provided him a chance to
defend himself, which was flagrant violation of the
principles of natural justice. Accordingly, the workman
has prayed that the action of the management in
terminating his services vide impugned order dated 22.05.98
be set aside and he be reinstated with full back wages;
continuity in services and other consequential benefits.
5. The management, denying the allegations of the
workman has submitted that the workman received Rs. 20
on 25.6.95 and Rs. 50 on 26.6.95 against R.D. A/Cs and
though he entered the amounts in respective pass books;
but did not deposit said amount with the department; and
thus he had misappropriated the amount, which was
submitted back by him on 17.02.98 with interest amount to
Rs. 115. The management has further submitted that the
above misconduct led to issuance of charge sheet dated
20.03.98, which was accepted by the workman vide his
reply dated 11.04.98 and resultantly, he was terminated
vide order dated 22.05.98. Moreover, the management has
pleaded that the establishment of Post Office is not an
industry as envisaged by the various verdicts of the
Hon’ble Apex Court. Further, the management has also
pleaded that the workman does not come within the
definition of workman. Accordingly, the management has
prayed that the claim of the workman is liable to be rejected
as not maintainable and devoid of merit.
6. The workman has filed its rejoinder; wherein apart
from reiterating the averments already made in the
statement of claim, the workman has submitted that he
had been posted as Branch Post Master and was not
allotted any supervisory or managerial work, therefore, he
is covered within the meaning of ‘workman’ as provided
in Section 2 ‘s’ of the Industrial Disputes Act, 1947.
7. The parties filed documentary evidence in support
of their rival contentions. The workman examined himself
and one Shri Soorat Singh whereas the management
examined Shri G.D. Arya, Assistant Suptd. of Post Offices
in support of their claim. The parties availed opportunity
to cross-examine the each other’s witnesses. The
management’s witness was cross-examined on 18.2.2011
and with that the management concluded its evidence and
accordingly, 26.4.2010 was fixed for argument. Since then
the case is being fixed for argument for the reasons that
the adjournments were sought by the either parties at one
pretext or the other. The workman’s authorized
representative argued its case on 25.11.2011; but the
management refrained to do so. On 20.09.2012 the
authorized representative of the management moved an
application for rehearing, which was allowed and the case
was fixed for 27.09.2012; but once again the management’s
representative failed to appear before this court and
forward its arguments. Since then the management kept
absent on several dates, which resulted into reserving of
present file for award, keeping in view reluctance of the
management and long pendency of the case since year
2004.
8. Heard the representative of the workman only
and perused entire material on record.
9. The authorized representative of the workman
has argued that after issuance of the charge sheet for
alleged misconduct of misappropriation, it was
responsibility of the management to get its charge sheet
proved by appointing an Inquiry Officer, who might have
inquired into the charges after giving full and adequate
opportunity to the workman to defend himself; but the
management of the post office failed to observe this norm.
It failed to conduct a formal enquiry; wherein the
complainants/aggrieved were neither produced nor the
workman was given any opportunity to cross examine
them. He has further argued that the so called statement/
admission of the workman was not recorded by the Inquiry
officer; likewise, the other witness whose written
statements have been relied upon by the management were
neither produced before the Inquiry Officer nor the
workman had access to them for their cross examined even
then, the Disciplinary Authority, relying on their statement,
penalized the workman with the punishment of removal
from service.
10. No oral argument has been forwarded by the
management. The management has taken plea that the
establishment of Post Office does not come within the
purview of ‘industry’ as defined in Section 2 ‘j’ of the Act
and the applicant is not a ‘workman’ within the provisions
of Industrial Disputes Act, 1947 as he was Extra
Departmental Branch Post Master. It has further pleaded
that consequent to admission of the workman vide dated
11.04.98, there was no need of conducting any formal
enquiry into the case of the applicant, hence, there is
nothing illegal or infirm with the impugned order, removing
the workman from service or the appellate order, rejecting
appeal of the workman.
11. I have given my thoughtful consideration to
the submissions of the authorized representative of the
workman, pleadings of the management and entire
evidence adduced by the either parties, documentary as
well as oral.
12. The case of the workman in nut shell is that the
as per settled law of the land and procedure on occurrence
of the misconduct and issuance of the charge sheet, it
was incumbent upon the management to conduct a formal
inquiry by appointing an Inquiry Officer and the workman
was required to be given a notice to appea before it and
248
THE GAZETTE OF INDIA : JANUARY 11, 2014/PAUSA 21, 1935
[PART II—SEC. 3(ii)]
defend his cause; but the management in haste failed to
observe this basic principle of natural justice. It relied
upon the written statement of the workman, which was
taken by misrepresentation, and statements of the other
witnesses, to whom the workman had no opportunity to
get them cross examined. This was not only deviation
from the procedure of law regarding conducting an inquiry
into the misconduct but also denial of proper defence to
the workman. The management passed the impugned order
dated 22.05.98 without observing above mandatory
formalities. Moreover, the workman has challenged the
validity of impugned order on the ground that no complaint
was eve made by any one and also that no such
complainant was ever produced before an independent
Inquiry Officer for recording its evidence/statement or his
cross-examination by the workman. However, the
pleadings of the workman are well supported by one of
the depositor viz. Shri Soorat Singh.
13. Per contra, the case of the management rests on
the plea that it is not and industry and the applicant is not
a workman with the Act; and further that in view of the
admission of the workman regarding alleged misconduct,
there was no need to conduct a formal enquiry.
14. Hon’ble Apex Court in Banglore Water Supply
& Sewerage Board vs. A Rajappa & others (1978) 2 SCC
213 case has 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.”
The workman has relied upon General Manager,
Telecom vs. S. Srinivasa Rao & others 1998 LLR 8; wherein
it has been held by Hon’ble Apex Court that the
Telecommunication Department is an ‘industry within the
definition of Section 2(j) of the Industrial Disputes Act,
1947 because it is engaged in a commercial activity and is
not discharging any of the sovereign functions of the
State.
It is well known that the Department of Post is
indulged in transporting letters, money orders, parcels
etc. from one place to another within the country and
overseas also and for this they charge fee in form of postage
stamp or in cash. Thus, the safe movement of articles
from one place to another could be done only when it is
systematic and there exists proper management/co-
operation between the employer and employee of the
department concerned. Further, the services provided by
the postal department is very much to satisfy the human
wants. Moreover, the activity run by the postal department
is no ‘sovereign’ in the nature as similar services are being
provided by other various courier companies.
Thus, in view of facts and circumstances of the case
and above legal prepositions, I am of considered opinion
that the opposite party management i.e. post office is at
par with the other courier companies, indulge in commercial
activity and not engaged in any sovereign function of the
State; and accordingly, come to the conclusion that the
opposite party is an ‘industry’ within the provisions of
Section 2 (j) of the Industrial Disputes Act, 1947.
15. As regarding the plea of the management that
the applicant is not a ‘workman’ within the provisions of
the Act, the applicant, Inder Singh has pleaded that he
had been posted as Branch Post Master and was not
allotted any supervisory or managerial work, therefore, he
is covered within the meaning of ‘workman’ as provided
in Section 2 ‘s’ of the Industrial Disputes Act, 1947; and in
rebuttal the management has taken plea that the applicant
served the department under the category of Postal
Department E.D. and for him the E.D. (Services Conduct)
Rules, 1964 are applicable; but it failed to sustain its
contention by filing relevant Rules/guidelines. Thus, there
is no material on record to corroborate that the applicant
was covered with different Rules and his case is not
covered within the provisions of I.D. Act or that he is not
a workman within I.D. Act. Hence, I am of opinion that the
applicant is a ‘workman’, covered within definition of
Section 2 (s) of the Act.
16. Now coming to the merit of the case, the main
contention of the workman is that he had been removed
by the impugned order dated 22.05.98 after serving a charge
sheet for alleged misconduct of misappropriation, without
conducting any formal inquiry. The workman’s case is
that since there was no complaint from any corner. The
management relied upon the written statement of some
independent witness to whom he had no chance to cross-
examine. Since the management failed to observe this
general principle of natural justice and not afforded him
proper opportunity to defend himself, the impugned order
is bad in the eye of law. As regard his admission dated
11.04.98, the workman has come up with the case that the
same was obtained by the management through
misrepresentation/pressure. The management has
defended its move with the sole contention that
consequent to admission of the workman vide dated
11.04.98, there was no need to go into inquiry etc.
17. It is settled law as well as undisputed procedure
that once a charge sheet has been issued and even there
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 11] 2014@ikS"k 21] 1935
249
comes admission from the side of charged official, even
then the same has to be recorded before Inquiry Officer
had it been recorded by an independent Inquiry Officer
then the Inquiry Officer might have warned him of the
pros and cons of the such ‘admission’ which the Inquiry
Officer was supposed to do. Moreover, when the charge
sheet is out come of some complaint, as in the present
case it was written statement of some witnesses, then those
complainants are ought to be produced before an
independent Inquiry Officer, for recording their statement
and the workman had an chance to cross-examine them.
Further, in absence of any formal inquiry i.e. an inquiry
into the charges by an independent Inquiry Officer who
affords all reasonable opportunity to the workman to
defend himself with full access to peruse the documents
relied upon by the management and proper opportunity
to cross examine the witness whose statement were relied
upon, it cannot be said that the management’s move was
just. The workman has relied upon A. Karthikeyan vs.
Managing Director, TASMAC Ltd. Chennai & others 2010
LLR 663; wherein the services of the petitioner had been
terminated without enquiry. Hon’ble High Court setting
aside the impugned order, held it ‘not valid’, even if the
petitioner has confessed under pressure and has observed
that such statement cannot be basis for termination.
18. Admittedly, in the instant case, the charge sheet
was issued and an admission vide letter dated 11.04.98
was obtained from the workman and thereafter, relying on
said admission and written statements of the few other
witnesses the impugned order was passed. An admission
itself cannot be said to be a sufficient basis to prove the
charge sheet, particularly when it was not recoded by an
independent authority who might have explained him of
adverse effects of such admission. The workman could
not get an opportunity to cross-examine examine those
persons viz. Shri Soorat Singh and Smt. Sundla Devi, who
filed complaint/statement regarding misappropriation/
misconduct by the workman since no inquiry was ever
conducted against the workman. The workman was
penalized/terminated without being getting any
opportunity to defend himself. The Disciplinary Authority
while passing the impugned order dated 22.5.98 moved
only by the statement of Shri Soorat Singh and Smt. Sundla
Devi without considering the fact that they have not been
cross-examined and as such acted in complete defiance of
principle of natural justice. It is the fundamental rule of
law that while punishing a person at least an opportunity
of hearing must be given to him; but in the instant case
this basic rule was not observed by the management of
Post Office and the workman was not given an opportunity
of personal hearing before terminating his services.
19. Thus, in view of the discussions made above
and facts and circumstances of the case, I am of the opinion
that the action of the management of Sr. Supdt. of Post
Offices, Dehradun in terminating the services of the
workman, Inder Singh without conducting a formal inquiry
and providing adequate opportunity to the workman to
defend himself was illegal and unjustified.
20. As regard relief which may be extended to the
workman, the workman has relied on Zila Sahakari
Kendriya Bhank Mariyadit vs. Jadishchandra 2001 LLR
310; where in a case a working after issuance of charge
sheet for alleged misconduct of embezzlement returned
the money and his termination was set aside on technical
grounds that no enquiry was conducted, Hon’ble Apex
Court upheld the reinstatement; but set aside the order for
back wages.
Accordingly, keeping in view, the above legal
position, the workman shall be reinstated with
consequential benefits i.e. continuity etc. less any back
wages.
21. Award as above.
Lucknow
16th April, 2013.
Dr. MANJU NIGAM, 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.