foÙk ea=ky;
¼foRrh; lsok,a foHkkx½
ubZ fnYyh] 5 fnlacj] 2013
dkñvkñ 131.—jk"Vªh;d`r cSad ¼izca/k vkSj izdh.kZ mica/k½
Ldhe] 1970@1980 ds [kaM 9¼2½ ds mi&[kaM ¼[k½ ds lkFk ifBr
cSaddkjh daiuh ¼miØeksa dk vtZu vkSj varj.k½ vf/kfu;e]
1970@1980 dh /kkjk 9 dh mi&/kkjk 3¼N½ }kjk iznRr 'kfDr;ksa dk
iz;ksx djrs gq,] dsUnzh; ljdkj] ,rn~}kjk] Jh tx eksgu 'kekZ ¼tUe
frfFk% 29-10-1949½ dks mudh fu;qfDr dh vf/klwpuk dh rkjh[k ls
rhu o"kZ dh vof/k ds fy, vFkok vxys vkns'kksa rd] tks Hkh igys
gks] ;wfu;u cSad vkWQ bafM;k ds funs'kd e.My esa pkVZMZ vdkmaVSaV
Js.kh ds varxZr va'k&dkfyd xSj&ljdkjh funs'kd ukfer djrh gSA
[Qkñ lañ 6@41@2013&chvks&I]
fot; eYgks=k] voj lfpo
MINISTRY OF FINANCE
(Department of Financial Services)
New Delhi, the 5th December, 2013
S.O. 131.—In exercise of the powers conferred by
sub-section 3(g) of Section 9 of The Banking Companies
(Acquisition and Transfer of Undertakings) Act, 1970/1980
read with sub-clause (b) of clause 9(2) of the Nationalised
Banks (Management and Miscellaneous Provisions)
Scheme, 1970/1980, the Central Government hereby
nominates Sh. Jag Mohan Sharma (DoB: 29.10.1949) as part-
time Non-official Director under Chartered Accountant
category on the Board of Directors of Union Bank of India
for a period of three years, from the date of notification of
his appointment or until further orders, whichever is earlier.
[F. No. 6/41/2013-BO-I]
VIJAY MALHOTRA, Under Secy.
ubZ fnYyh] 5 fnlacj] 2013
dkñvkñ 132.—jk"Vªh;d`r cSad ¼izca/k vkSj izdh.kZ mica/k½
Ldhe] 1970@1980 ds [kaM 3 ds mi&[kaM ¼1½ ds lkFk ifBr cSaddkjh
daiuh ¼miØeksa dk vtZu vkSj varj.k½ vf/kfu;e] 1970@1980 dh
/kkjk 9 dh mi&/kkjk 3¼t½ vkSj ¼3&d½ }kjk iznRr 'kfDr;ksa dk
iz;ksx djrs gq,] dsUnzh; ljdkj] ,rn~}kjk] Jh ,ñ lqczge.;k ¼tUe
frfFk% 12-02-1971½ dks mudh fu;qfDr dh vf/klwpuk dh rkjh[k ls
rhu o"kZ dh vof/k ds fy, vFkok vxys vkns'kksa rd] tks Hkh igys gks]
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- 3]
ubZ fnYyh, tuojh 12—tuojh 18] 2014] 'kfuokj@ikS"k 22—ikS"k 28] 1935
No. 3]
NEW DELHI, JANUARY 12—JANUARY 18, 2014, SATURDAY/PAUSA 22—PAUSA 28, 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)
47 GI/2014
(251)
252
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
nsuk cSad ds funs'kd e.My esa va'k&dkfyd xSj&ljdkjh funs'kd
ukfer djrh gSA
[Qkñ lañ 6@42@2013&chvks&I]
fot; eYgks=k] voj lfpo
New Delhi, the 5th December, 2013
S.O. 132.—In exercise of the powers conferred by
sub-section 3(h) and (3-A) of Section 9 of the Banking
Companies (Acquisition and Transfer of Undertakings) Act,
1970/1980 read with sub-clause (1) of clause 3 of the
Nationalised Banks (Management and Miscellaneous
Provisions) Scheme, 1970/1980, the Central Government
hereby nominates Sh. A. Subramanya (DoB: 12.02.1971) as
part-time Non-official Director on the Board of Directors of
Dena Bank for a period of three years, from the date of
notification of his appointment or until further orders,
whichever is earlier.
[F.No. 6/42/2013-BO-I]
VIJAY MALHOTRA, Under Secy.
ubZ fnYyh] 5 fnlacj] 2013
dkñvkñ 133.—jk"Vªh;d`r cSad ¼izca/k vkSj izdh.kZ mica/k½
Ldhe] 1970@1980 ds [kaM 3 ds mi&[kaM ¼1½ ds lkFk ifBr cSaddkjh
daiuh ¼miØeksa dk vtZu vkSj varj.k½ vf/kfu;e] 1970@1980 dh
/kkjk 9 dh mi&/kkjk 3¼t½ vkSj ¼3&d½ }kjk iznRr 'kfDr;ksa dk
iz;ksx djrs gq,] dsUnzh; ljdkj] ,rn~}kjk] Jh ekspsykZ lkbZjke HkkLdj
¼tUe frfFk% 27-08-1964½ dks mudh fu;qfDr dh vf/klwpuk dh
rkjh[k ls rhu o"kZ dh vof/k ds fy, vFkok vxys vkns'kksa rd] tks
Hkh igys gks] dsujk cSad ds funs'kd e.My esa va'k&dkfyd xSj&ljdkjh
funs'kd ukfer djrh gSA
[Qkñ lañ 6@27@2011&chvks&I]
fot; eYgks=k] voj lfpo
New Delhi, the 5th December, 2013
S.O. 133.—In exercise of the powers conferred by
sub-section 3(h) and (3-A) of Section 9 of The Banking
Companies (Acquisition and Transfer of Undertakings) Act,
1970/1980 read with sub-clause (1) of clause 3 of the
Nationalised Banks (Management and Miscellaneous
Provisions) Scheme, 1970/1980, the Central Government
hereby nominates Sh. Mocherla Sairam Bhaskar (DoB:
27.08.1964) as part-time Non-official Director on the Board
of Directors of Canara Bank for a period of three years,
from the date of notification of his appointment or until
further orders, whichever is earlier.
[F. No. 6/27/2011-BO-I]
VIJAY MALHOTRA, Under Secy.
ubZ fnYyh] 5 fnlacj] 2013
dkñvkñ 134.—jk"Vªh;d`r cSad ¼izca/k vkSj izdh.kZ mica/k½
Ldhe] 1970@1980 ds [kaM 3 ds mi&[kaM ¼1½ ds lkFk ifBr cSaddkjh
daiuh ¼miØeksa dk vtZu vkSj varj.k½ vf/kfu;e] 1970@1980 dh
/kkjk 9 dh mi&/kkjk 3¼t½ vkSj ¼3&d½ }kjk iznRr 'kfDr;ksa dk
iz;ksx djrs gq,] dsUnzh; ljdkj] ,rn~}kjk] Jherh ,lñ lqtkrk ¼tUe
frfFk% 15-12-1971½ dks mudh fu;qfDr dh vf/klwpuk dh rkjh[k ls
rhu o"kZ dh vof/k ds fy, vFkok vxys vkns'kksa rd] tks Hkh igys
gks] bafM;u vksojlht cSad ds funs'kd e.My esa va'k&dkfyd
xSj&ljdkjh funs'kd ukfer djrh gSA
[Qkñ lañ 6@26@2013&chvks&I]
fot; eYgks=k] voj lfpo
New Delhi, the 5th December, 2013
S.O. 134.—In exercise of the powers conferred by
sub-section 3(h) and (3-A) of Section 9 of The Banking
Companies (Acquisition and Transfer of Undertakings) Act,
1970/1980 read with sub-clause (1) of clause 3 of the
Nationalised Banks (Management and Miscellaneous
Provisions) Scheme, 1970/1980, the Central Government
hereby nominates Smt. S. Sujatha (DoB: 15.12.1971) as part-
time Non-official Director on the Board of Directors of Indian
Overseas Bank for a period of three years, from the date of
notification of her appointment or until further orders,
whichever is earlier.
[F.No. 6/26/2013-BO-I]
VIJAY MALHOTRA, Under Secy.
ubZ fnYyh] 6 fnlacj] 2013
dkñvkñ 135.—jk"Vªh;d`r cSad ¼izca/k vkSj izdh.kZ mica/k½
Ldhe] 1970@1980 ds [kaM 9¼2½ ds mi&[kaM ¼[k½ ds lkFk ifBr
cSaddkjh daiuh ¼miØeksa dk vtZu vkSj varj.k½ vf/kfu;e]
1970@1980 dh /kkjk 9 dh mi&/kkjk 3¼N½ }kjk iznRr 'kfDr;ksa dk
iz;ksx djrs gq,] dsUnzh; ljdkj] ,rn~}kjk] Jh lquhy gqdqepan dkspsVk
¼tUe frfFk% 01-06-1958½ dks mudh fu;qfDr dh vf/klwpuk dh
rkjh[k ls rhu o"kZ dh vof/k ds fy, vFkok vxys vkns'kksa rd] tks
Hkh igys gks] dsujk cSad ds funs'kd e.My esa pkVZMZ vdkmaVSaV JS.kh
ds varxZr va'k&dkfyd xSj&ljdkjh funs'kd ukfer djrh gSA
[Qkñ lañ 6@39@2013&chvks&I]
fot; eYgks=k] voj lfpo
New Delhi, the 6th December, 2013
S.O. 135.—In exercise of the powers conferred by
sub-section 3(g) of Section 9 of The Banking Companies
(Acquisition and Transfer of Undertakings) Act, 1970/1980
read with sub-clause (b) of clause 9(2) of the Nationalised
Banks (Management and Miscellaneous Provisions)
Scheme, 1970/1980, the Central Government here-
by nominates Sh. Sunil Hukumchand Kocheta
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
253
(DoB: 01.06.1958) as part-time Non-official Director under
Chartered Accountant category on the Board of Directors
of Canara Bank for a period of three years, from the date of
notification of his appointment or until further orders,
whichever is earlier.
[F. No. 6/39/2013-BO-I]
VIJAY MALHOTRA, Under Secy.
ubZ fnYyh] 9 fnlacj] 2013
dkñvkñ 136.—cSaddkjh fofu;eu vf/kfu;e] 1949 ¼1949
dk 10½ dh /kkjk 53 }kjk iznRr 'kfDr;ksa dk iz;ksx djrs gq,] Hkkjr
ljdkj] Hkkjrh; fjtoZ cSad dh flQkfj'k ij] ,rn~}kjk ?kks"k.kk djrh
gS fd mDr vf/kfu;e dh /kkjk 10 dh mi&/kkjk ¼1½ [kaM ¼x½ ds
mi&[k.M (i) ds mica/k lsaVªy cSad vkWQ bafM;k ij ykxw ugha gksaxs] tgka
rd mudk laca/k cSad ds v/;{k ,oa izca/k funs'kd Jh jktho _f"k
dks baMks tkfEc;k cSad fyñ ¼vkbZtsMch½ ds cksMZ esa funs'kd ds :i esa
ukfer fd, tkus ls gSA
[Qkñ lañ 13@11@2013&chvks&I]
fot; eYgks=k] voj lfpo
New Delhi, the 9th December, 2013
S.O. 136.—In exercise of the powers conferred by
Section 53 of the Banking Regulation Act, 1949 (10 of 1949),
the Government of India on the recommendation of the
Reserve Bank of India, hereby declare that the provisions
of sub-clause (i) of clause (c) of sub-section (1) of Section
10 of the said Act shall not apply to Central Bank of India in
so far as it relates to the nomination of Rajeev Rishi,
Chairman & Managing Director of the Bank on the Board
of Indo Zambia Bank Ltd. (IZB) as Director.
[F. No. 13/11/2013-BO-I]
VIJAY MALHOTRA, Under Secy.
ubZ fnYyh] 12 fnlacj] 2013
dkñvkñ 137.—jk"Vªh;d`r cSad ¼izca/k vkSj izdh.kZ mica/k½
Ldhe] 1970@1980 ds [kaM 3 ds mi&[kaM ¼1½ ds lkFk ifBr cSaddkjh
daiuh ¼miØeksa dk vtZu vkSj varj.k½ vf/kfu;e] 1970@1980 dh
/kkjk 9 dh mi&/kkjk 3¼t½ vkSj ¼3&d½ }kjk iznRr 'kfDr;ksa dk
iz;ksx djrs gq,] dsUnzh; ljdkj] ,rn~}kjk] Jh ,ñchñMhñ cnq'kkl
¼tUe frfFk% 19-08-1962½ dks mudh fu;qfDr dh vf/klwpuk dh
rkjh[k ls rhu o"kZ dh vof/k ds fy, vFkok vxys vkns'kksa rd] tks
Hkh igys gks] bafM;u vksojlht cSad ds funs'kd e.My esa va'k&dkfyd
xSj&ljdkjh funs'kd ukfer djrh gSA
[Qkñ lañ 6@29@2011&chvks&I]
fot; eYgks=k] voj lfpo
New Delhi, the 12th December, 2013
S.O. 137.—In exercise of the powers conferred by
sub-section 3(h) and (3-A) of Section 9 of The Banking
Companies (Acquisition and Transfer of Undertakings) Act,
1970/1980 read with sub-clause (1) of clause 3 of the
Nationalised Banks (Management and Miscellaneous
Provisions) Secheme, 1970/1980, the Central Government
hereby nominates Sh. A.B.D. (DoB: 19.08.1962) as part-
time Non-official Director on the Board of Directors of Indian
Overseas Bank for a period of three years, from the date of
notification of his appointment or until further orders,
whichever is earlier.
[F.No. 6/29/2011-BO-I]
VIJAY MALHOTRA, Under Secy.
ubZ fnYyh] 12 fnlacj] 2013
dkñvkñ 138.—jk"Vªh;d`r cSad ¼izca/k vkSj izdh.kZ mica/k½
Ldhe] 1970@1980 ds [kaM 3 ds mi&[kaM ¼1½ ds lkFk ifBr cSaddkjh
daiuh ¼miØeksa dk vtZu vkSj varj.k½ vf/kfu;e] 1970@1980 dh
/kkjk 9 dh mi&/kkjk 3¼t½ vkSj ¼3&d½ }kjk iznRr 'kfDr;ksa dk
iz;ksx djrs gq,] dsUnzh; ljdkj] ,rn~}kjk] MkWñ uSuk 'kekZ ¼tUe
frfFk% 21-05-1953½ dks mudh fu;qfDr dh vf/klwpuk dh rkjh[k ls
rhu o"kZ dh vof/k ds fy, vFkok vxys vkns'kksa rd] tks Hkh igys
gks] vka/kzk cSad ds funs'kd e.My esa va'k&dkfyd xSj&ljdkjh funs'kd
ukfer djrh gSA
[Qkñ lañ 6@33@2013&chvks&I]
fot; eYgks=k] voj lfpo
New Delhi, the 12th December, 2013
S.O. 138.—In exercise of the powers conferred by
sub-section 3(h) and (3-A) of Section 9 of The Banking
Companies (Acquisition and Transfer of Undertakings) Act,
1970/1980 read with sub-clause (1) of clause 3 of the
Nationalised Banks (Management and Miscellaneous
Provisions) Secheme, 1970/1980, the Central Government
hereby nominates Dr. Naina Sharma (DoB: 21.05.1953) as
part-time Non-official Director on the Board of Directors of
Andhra Bank for a period of three years, from the date of
notification of her appointment or until further orders,
whichever is earlier.
[F.No. 6/33/2013-BO-I]
VIJAY MALHOTRA, Under Secy.
ubZ fnYyh] 12 fnlacj] 2013
dkñvkñ 139.—jk"Vªh;d`r cSd ¼izca/k vkSj izdh.kZ mica/k½
Ldhe] 1970@1980 ds [kaM 3 ds mi&[kaM ¼1½ ds lkFk ifBr cSaddkjh
daiuh ¼miØeksa dk vtZu vkSj varj.k½ vf/kfu;e] 1970@1980 dh
/kkjk 9 dh mi&/kkjk 3¼t½ vkSj ¼3µd½ }kjk iznÙk 'kfDr;ksa dk
iz;ksx djrs gq,] dsUnzh; ljdkj] ,rn~}kjk] Jh e/kq lwnu lkgw ¼tUe
frfFk% 02-05-1959½ dks mudh fu;qfDr dh vf/klwpuk dh rkjh[k ls
rhu o"kZ dh vof/k ds fy, vFkok vxys vkns'kksa rd] tks Hkh igys
254
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
gks] vksfj;aVy cSad vkWQ dkWelZ ds funs'kd ea.My esa va'k&dkfyd
xSj&ljdkjh funs'kd ukfer djrh gSA
[Qkñ lañ 6@43@2013&chvks&I]
fot; eYgks=k] voj lfpo
New Delhi, the 12th December, 2013
S.O. 139.—In exercise of the powers conferred by
sub-section 3(h) and (3-A) of Section 9 of The Banking
Companies (Acquisition and Transfer of Undertakings) Act,
1970/1980 read with sub-clause (1) of clause 3 of the
Nationalised Banks (Management and Miscellaneous
Provisions) Scheme, 1970/1980, the Central Government
hereby nominates Shri Madhu Sudan Sahoo (DoB:
02.05.1959) as part-time Non-official Director on the Board
of Directors of Oriental Bank of Commerce for a period of
three years, from the date of notification of his appointment
or until further orders, whichever is earlier.
[F. No. 6/43/2013-BO-I]
VIJAY MALHOTRA, Under Secy.
ubZ fnYyh] 13 fnlacj] 2013
dkñvkñ 140.—jk"Vªh; d`f"k ,oa xzkeh.k fodkl cSd
vfèfu;e] 1981 ¼1981 dk 61½ dh /kkjk 6 dh mi&/kkjk ¼1½ ds
[kaM ¼d½ ds lkFk ifBr mi&/kkjk ¼2½ vkSj /kkjk 7 dh mi&/kkjk ¼1½
}kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq,] dsUnzh; ljdkj] ,rn~}kjk] Jh
g"kZ dqekj Hkkuokyk ¼tUe frfFk% 27-11-1961½ dk;Zikyd funs'kd]
bafM;k baQz kLVªDpj Qkbusal daiuh fyfeVsM ¼vkbZvkbZ,Qlh,y½ dks
muds }kjk inHkkj xzg.k djus dh frfFk ls 5 lky rd vFkok vxys
vkns'kksa rd] tks Hkh igys gks] jk"Vªh; d`f"k vkSj xzkeh.k fodkl cSad
¼ukckMZ½ ds v/;{k ds :i esa ukfer djrs gSaA
[Qkñ lañ 7@4@2013&chvks&I]
fot; eYgks=k] voj lfpo
New Delhi, the 13th December, 2013
S.O. 140.—In exercise of the powers conferred by
clause (a) of sub-section (1) of Section 6 read with sub-
section (2) thereof and sub-section (1) of Section 7 of the
National Bank for Agriculture and Rural Development Act,
1981 (61 of 1981), the Central Government hereby appoints
Sh. Harsh Kumar Bhanwala (DoB: 27.11.1961), Executive
Director, India Infrastructure Finance Company Ltd. (IIFCL)
as Chairman, National Bank for Agriculture and Rural
Development (NABARD), for a period of five years from
the date of his taking over the charge of the post or until
further orders, whichever is earlier.
[F. No.7/4/2013-BO-I]
VIJAY MALHOTRA, Under Secy.
ubZ fnYyh] 13 fnlacj] 2013
dkñvkñ 141.—jk"Vªh;d`r cSd ¼izca/k vkSj izdh.kZ mica/k½
Ldhe] 1970@1980 ds [kaM 3 ds mi&[kaM ¼1½ ,oa [kaM 8 ds mi&[kaM
¼1½ ds lkFk ifBr cSaddkjh daiuh ¼miØeksa dk vtZu vkSj varj.k½
vf/kfu;e] 1970@1980 dh /kkjk 9 dh mi&/kkjk 3 ds [kaM ¼d½ }kjk
iznÙk 'kfDr;ksa dk iz;ksx djrs gq,] dsUnzh; ljdkj] ,rn~}kjk]
Jh lhñohñvkjñ jktsUnzu ¼tUe frfFk% 08-04-1955½ dk;Zikyd
funs'kd] cSad vkWQ egkjk"Vª dks muds }kjk inHkkj xzg.k djus dh
frfFk ls rFkk fnukad 30-04-2015 rd] vFkkZr~] mudh vf/kof"kZrk dh
rkjh[k rd] vFkok vxys vkns'kksa rd] tks Hkh igys gks] vka/kzk cSad ds
v/;{k ,oa izca/kd funs'kd ds :i esa ukfer djrh gSA
[Qkñ lañ 4@4@2012&chvks&I]
fot; eYgks=k] voj lfpo
New Delhi, the 13th December, 2013
S.O. 141.—In exercise of the powers conferred by
clause (a) of sub-section (3) of Section 9 of The Banking
Companies (Acquisition and Transfer of Undertakings) Act,
1970/1980 read with sub-clause (1) of clause 3 and sub-
clause (1) of Clause 8 of The Nationalised Banks
(Management and Miscellaneous Provisions) Scheme,
1970/1980, the Central Government hereby appoints Shri
C.V.R. Rajendran (DoB: 08.04.1955) Executive Director, Bank
of Maharashtra as Chairman and Managing Director,
Andhra Bank, from the date of his taking over the charge
of the post and upto 30-4-2015, i.e. the date of his
superannuation or until further orders whichever is earlier.
[F. No. 4/4/2012-BO-I]
VIJAY MALHOTRA, Under Secy.
ubZ fnYyh] 18 fnlacj] 2013
dkñvkñ 142.—jk"Vªh;d`r cSd ¼izca/k vkSj izdh.kZ mica/k½
Ldhe] 1970@1980 ds [kaM 9¼2½ ds mi&[kaM ¼[k½ ds lkFk ifBr
cSaddkjh daiuh ¼miØeksa dk vtZu vkSj varj.k½ vf/kfu;e]
1970@1980 dh /kkjk 9 dh mi&/kkjk 3¼N½ }kjk iznÙk 'kfDr;ksa dk
iz;ksx djrs gq,] dsUnzh; ljdkj] ,rn~}kjk] Jh latho dqekj 'kekZ
¼tUe frfFk% 16-07-1961½ dks mudh fu;qfDr dh vf/klwpuk dh
rkjh[k ls rhu o"kZ dh vof/k ds fy, vFkok vxys vkns'kksa rd] tks
Hkh igys gks] bykgkckn caSad ds funs'kd e.My esa pkVZMZ vdkmaVSaV
Js.kh ds varxZr va'k&dkfyd xSj&ljdkjh funs'kd ukfer djrh gSA
[Qkñ lañ 6@37@2013&chvks&I]
fot; eYgks=k] voj lfpo
New Delhi, the 18th December, 2013
S.O. 142.—In exercise of the powers conferred by
sub-section 3(g) of Section 9 of The Banking Companies
(Acquisition and Transfer of Undertakings) Act, 1970/1980
read with sub-clause (b) of clause 9(2) of the Nationalised
Banks (Management and Miscellaneous Provisions)
Scheme, 1970/1980, the Central Government hereby
nominates Shri Sanjeev Kumar Sharma (DoB: 16.07.1961)
as part-time Non-official Director under Chartered
Accountant category on the Board of Directors of
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
255
Allahabad Bank for a period of three years, from the date of
notification of his appointment or until further orders,
whichever is earlier.
[F. No. 6/37/2013-BO-I]
VIJAY MALHOTRA, Under Secy.
ubZ fnYyh] 19 fnlacj] 2013
dkñvkñ 143.—jk"Vªh;d`r cSad ¼izca/k vkSj izdh.kZ mica/k½
Ldhe] 1970@1980 ds [kaM 3 ds mi&[kaM ¼1½ ds lkFk ifBr cSaddkjh
daiuh ¼miØeksa dk vtZu vkSj varj.k½ vf/kfu;e] 1970@1980 dh
/kkjk 9 dh mi&/kkjk 3¼t½ ,oa ¼3&d½ }kjk iznÙk 'kfDr;ksa dk iz;ksx
djrs gq,] dsUnzh; ljdkj] ,rn~}kjk] Jherh ,uñ,lñ jRuizHkk ¼tUe
frfFk% 19-07-1962½ dks mudh fu;qfDr dh vf/klwpuk dh rkjh[k ls
rhu o"kZ dh vof/k ds fy, vFkok vxys vkns'kksa rd] tks Hkh igys
gks] lsaVªy c®d vkWQ bafM;k ds funs'kd ea.My esa va'k&dkfyd
xSj&ljdkjh funs'kd ukfer djrh gSA
[Qkñ lañ 6@50@2013&chvks&I]
fot; eYgks=k] voj lfpo
New Delhi, the 19th December, 2013
S.O. 143.—In exercise of the powers conferred by
sub-section 3(h) and (3-A) of Section 9 of The Banking
Companies (Acquisition and Transfer of Undertakings) Act,
1970/1980 read with sub-clause (1) of clause 3 of The
Nationalised Banks (Management and Miscellaneous
Provisions) Scheme, 1970/1980, the Central Government
hereby nominates Smt. N.S. Ratnaprabha (DoB: 19.07.1962)
as part-time Non-official Director on the Board of Directors
of Central Bank of India for a period of three years, from the
date of notification of her appointment or until further
orders, whichever is a earlier.
[F. No. 6/50/2013-BO-I]
VIJAY MALHOTRA, Under Secy.
ubZ fnYyh] 26 fnlacj] 2013
dkñvkñ 144.—jk"Vªh;d`r cSad ¼izca/k vkSj izdh.kZ mica/k½
Ldhe] 1970@1980 dh /kkjk 9¼2½ dh mi&/kkjk ¼[k½ ds lkFk ifBr
cSaddkjh daiuh ¼miØeksa dk vtZu vkSj varj.k½ vf/kfu;e]
1970@1980 ds [kaM 9 ds mi&[kaM 3¼N½ }kjk iznÙk 'kfDr;ksa dk
iz;ksx djrs gq,] dsUnzh; ljdkj] ,rn~}kjk] Jh vkfn'k dqekj tSu
¼tUe frfFk% 13-12-1959½ dks mudh fu;qfDr dh vf/klwpuk dh
rkjh[k ls rhu o"kZ dh vof/k ds fy, vFkok vxys vkns'kksa rd] tks
Hkh igys gks] dkjiksjs'ku cSad ds funs'kd e.My esa pkVZMZ vdkmaVsaV
Js.kh ds varxZr va'k&dkfyd xSj&ljdkjh funs'kd ukfer djrh gSA
[Qkñlañ 6@40@2013&chvks&I]
fot; eYgks=k] voj lfpo
New Delhi, the 26th December, 2013
S.O. 144.—In exercise of the powers conferred by
sub-section 3(g) of Section 9 of The Banking Companies
(Acquisition and Transfer of Undertakings) Act, 1970/1980
read with sub-clause (b) of clause 9(2) of the Nationalised
Banks (Management and Miscellaneous Provisions)
Scheme, 1970/1980, the Central Government hereby
nominates Shri Adish Kumar Jain (DoB: 13.12.1959) as part-
time Non-official Director under Chartered Accountant
category on the Board of Directors of Corporation Bank
for a period of three years, from the date of notification of
his appointment or until further orders, whichever is earlier.
[F. No. 6/40/2013-BO-I]
VIJAY MALHOTRA, Under Secy.
ubZ fnYyh] 26 fnlacj] 2013
dkñvkñ 145.—jk"Vªh;d`r cSad ¼izca/k vkSj izdh.kZ mica/k½
Ldhe] 1970@1980 ds [kaM 3 ds mi&[kaM ¼1½ ,oa [kaM 8 ds mi&[kaM
¼1½ ds lkFk ifBr cSaddkjh daiuh ¼miØeksa dk vtZu vkSj varj.k½
vf/kfu;e] 1970@1980 dh /kkjk 9 dh mi&/kkjk ¼3½ ds [kaM ¼d½ }kjk
iznÙk 'kfDr;ksa dk iz;ksx djrs gq,] dsUnzh; ljdkj] ,rn~}kjk] Jh v:.k
frokjh ¼tUe frfFk% 01-07-1957½ dk;Zikyd funs'kd] bykgkckn
cSad dks muds }kjk inHkkj xzg.k djus dh frfFk ls rFkk fnukad
30-06-2017 rd] vFkkZr~] mudh vf/kof"kZrk dh rkjh[k rd] vFkok
vxys vkns'kksa rd] tks Hkh igys gks] ;wfu;u cSad vkWQ bafM;k ds v/;{k
,oa izca/kd funs'kd ds :i esa ukfer djrh gSA
[Qkñ lañ 4@4@2012&chvks&I]
fot; eYgks=k] voj lfpo
New Delhi, the 26th December, 2013
S.O. 145.—In exercise of the powers conferred by
clause (a) of sub-section (3) of Section 9 of The Banking
Companies (Acquisition and Transfer of Undertakings) Act,
1970/1980 read with sub-clause (1) of clause 3 and sub-
clause (1) of Clause 8 of The Nationalised Banks
(Management and Miscellaneous Provisions) Scheme,
1970/1980, the Central Government hereby appoints
Shri Arun Tiwari (DoB: 01.07.1957) Exexutive Director,
Allahabad Bank as Chairman and Managing Director, Union
Bank of India, from the date of his taking over the charge of
the post and upto 30.06.2017, i.e. the date of his
superannuation or until further orders, whichever is earlier.
[F. No. 4/4/2012-BO-I]
VIJAY MALHOTRA, Under Secy.
ubZ fnYyh] 26 fnlacj] 2013
dkñvkñ 146.—Hkkjrh; LVsV cSad ¼leuq"kaxh cSad½
vfèfu;e] 1959 ¼1959 dk 38½ dh /kkjk 26 dh mi/kkjk 2¼d½
ds lkFk ifBr /kkjk 25 dh mi/kkjk ¼1½ ds [kaM ¼x[k½ }kjk iznÙk
'kfDr;ksa dk iz;ksx djrs gq,] dsUnzh; ljdkj] Hkkjrh; fjtoZ cSad ls
ijke'kZ djus ds i'pkr~ ,rn~}kjk] Jh jathr dqekj ¼tUe frfFk%
15-04-1957½] eq[; izca/kd dks mudh fu;qfDr dh vf/klwpuk dh
256
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
rkjh[k ls rhu o"kks± dh vof/k ds fy, vFkok LVsV cSad vkQ ifV;kyk ds
vf/kdkjh ds :i esa muds inHkkj NksM+ nsus rd vFkok vxys vkns'kksa
rd] buesa ls tks Hkh igys gks] LVsV cSad vkQ ifV;kyk ds funs'kd
e.My esa vf/kdkjh deZpkjh funs'kd ds :i esa fu;qDr djrh gSA
[Qkñ lañ 6@1@2012&chvks&I]
fot; eYgks=k] voj lfpo
New Delhi, the 26th December, 2013
S.O. 146.—In exercise of the powers conferred by
clause (cb) of the sub-section (1) of section 25 read with
sub-section (2A) of Section 26 of the State Bank of India
(Subsidiary Banks) Act, 1959 (38 of 1959), the Central
Government, after consultation with the Reserve Bank of
India, hereby appoints Shri Ranjit Kumar (DoB: 15.04.1957),
Chief Manager, as Officer Employee Director on the Board
of Directors of State Bank of Patiala, for a period of three
years from the date of notification of his appointment or
until he ceases to be an officer of the State Bank of Patila or
until further orders, whichever is earlier.
[F. No. 6/1/2012-BO-I]
VIJAY MALHOTRA, Under Secy.
ubZ fnYyh] 27 fnlEcj] 2013
dkñvkñ 147.—Hkkjrh; LVsV cSad vf/kfu;e] 1955 ¼1955
dk 23½ dh /kkjk 19 ds [kaM ¼[k½ vkSj /kkjk 20 dh mi /kkjk ¼1½
}kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq,] dsUnzh; ljdkj Jh ih- iznhi
dqekj ¼tUe frfFk% 02-10-1955½] mi izca/k funs'kd] Hkkjrh;
LVsV cSad dks muds }kjk in dk dk;Z&Hkkj xzg.k djus dh rkjh[k ls
31-10-2015 rd vFkkZr~ muds }kjk vf/kof"kZrk dh vk;q izkIr dj ysus
rd ;k vxys vkns'kksa rd] tks Hkh igys gks] Hkkjrh; LVsV cSad esa
izca/k funs'kd fu;qDr djrh gSA
[Qkñ lañ 2@6@2013&chvks&I]
fot; eYgks=k] voj lfpo
New Delhi, the 27th December, 2013
S.O. 147.—In exercise of the powers conferred by
clause (b) of section (19) and Sub-section (1) of Section 20
of the State Bank of India Act, 1955 (23 of 1955), the Central
Government, hereby appoints Shri P. Pradeep Kumar
(DoB:02.10.1955), Deputy Managing Director, State Bank
of India as Managing Director, State Bank of India, from
the date of taking over the charge of the post and upto
31-10-2015 i.e. the date of his attaining the age of
superannuation or until further orders, whichever is earlier.
[F. No. 2/6/2013-BO-I]
VIJAY MALHOTRA, Under Secy.
ubZ fnYyh] 31 fnlEcj] 2013
dkñvkñ 148.—jk"Vªh;d`r cSad ¼izca/k vkSj izdh.kZ micaè½
Ldhe] 1970@1980 ds [kaM 3 ds mi [kaM ¼1½ vksSj [kaM 8 ds
mi&[kaM ¼1½ ds lkFk ifBr cSaddkjh daiuh ¼miØeksa dk vtZu vkSj
varj.k½ vf/kfu;e] 1970@1980 dh /kkjk 9 dh mi&/kkjk ¼3½ ds
[kaM ¼d½ }kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq,] dsUnzh; ljdkj
,rn}kjk] Jh vkj- ds-xqIrk ¼tUe frfFk% 16-04-1960½] egk izca/kd
nsuk cSad dks in dk dk;Z&Hkkj xzg.k djus dh rkjh[k ls ikap o"kZ dh
vof/k ds fy, vFkok vxys vkns'kksa rd] tks Hkh igys gks] cSad vkWQ
egkjk"Vª esa dk;Zdkjh funs'kd ds in ij fu;qDr djrh gSA
[Qkñ lañ 4@5@2012&chvks&I]
fot; eYgks=k] voj lfpo
New Delhi, the 31st December, 2013
S.O. 148.—In exercise of the powers conferred by
clause (a) of Sub-section (3) of Section 9 of The Banking
Companies (Acquisition and Transfer of Undertaking) Act,
1970/1980 read with sub-caluse (1) of clause 3 and sub-
clause (1) of Clause 8 of The Nationalised Banks
(Management and Miscellaneous Provisions) Scheme,
1970/1980, the Central Government, hereby appoints Shri
R.K. Gupta (DoB:16-4-1960), General Manager, Dena Bank
as Executive Director, Bank of Maharashtra, for a period of
five years from the date of his taking over charge of the
post, or until further orders,whichever is earlier.
[F. No. 4/5/2012-BO-I]
VIJAY MALHOTRA, Under Secy.
ubZ fnYyh] 7 tuojh] 2014
dkñvkñ 149.—cSaddkjh fofu;eu vf/kfu;e] 1949
¼1949 dk 10½ dh /kkjk 53 }kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq,]
dsUnzh; ljdkj Hkkjrh; fjtZo cSad dh flQkfj'k ij] ,rn}kjk] ?kks"k.kk
djrh gS fd cSaddkjh fofu;eu vf/kfu;e] 1949 dh /kkjk
10¼1½¼x½(i) ds mica/k Jh ';ke Jhfuoklu] izca/k funs'kd ,ao
eq[; dk;Zdkjh vf/kdkjh] QsMjy cSad fyfeVsM ij ykxw ugha gksaxs]
tgka bldk laca/k vkbZMhchvkbZ QsMjy ykbQ ba';ksjsal daiuh
fyfeVsM ¼vkbZ,Q,yvkbZlh½ ds cksMZ esa mUgsa ukfer fd, tkus ls gSA
[Qkñ lañ 6@12@2013&chvks&II]
rhFkZ jke] voj lfpo
New Delhi, the 7th January, 2014
S.O. 149.—In exercise of the powers conferred by
Section 53 of the Banking Regulation Act, 1949 (10 of 1949),
the Central Government, on the recommendations of
Reserve bank of India, hereby declares that the provisions
of Section 10(1)(c) (i) of the Banking Regulation Act, 1949
shall not apply to Shri Shyam Srinivasan, Managing
Director & Chief Executive Officer, the Federal Bank Limited
in so far as they relate to his nomination to the Board of
IDBI Federal Life Insurance Co. Limited (IFLIC).
[F. No. 6/12/2013-BO-II]
TIRTH RAM, Under Secy.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
257
dkfeZd] yksd f'kdk;r rFkk isa'ku ea=ky;
¼dkfeZd vkSj izf'k{k.k foHkkx½
ubZ fnYyh] 31 fnlEcj] 2013
dkñvkñ 150.—dsUnz ljdkj ,rn~}kjk naM izfØ;k lafgrk]
1973 ¼1974 dk vf/kfu;e la- 2½ dh /kkjk 24 dh mi/kkjk ¼8½
}kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq, fnYyh fo'ks"k iqfyl LFkkiuk
¼ds-v- C;wjks½ }kjk laLFkkfir Hkkjr dh mPpre U;k;ky;] ubZ fnYyh
esa v;ks/;k ds fookfnr <kapk fo/oal ls lacaf/kr ekeys ,l,yih
¼lhvkj,y½ la- 2275@2011 ¼ds-v- C;wjks cuke dY;k.k flag ,oa
vU;½ esa rFkk blls lac) ;k blh laO;ogkj esa vU; ekeyksa esa mifLFkr
gksus ds fy, Jh jktho /kou] vf/koDrk dks fo'ks"k yksd vfHk;kstd
ds :i esa fu;qDr djrh gSA
[la- 225@60@2013&,ohMh&II]
jktho tSu] voj lfpo
MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES
AND PENSIONS
(Department of Personnel and Training)
New Delhi, the 31st December, 2013
S.O. 150.—In exercise of the powers conferred by
sub-section (8) of Section 24 of the Code of Criminal
Procedure, 1973 (Act No. 2 of 1974), the Central Government
hereby appoints Shri Rajeev Dhavan, Advocate as Special
Public Prosecutor for appearing in SLP(Crl.) No. 2275/2011
(CBI Vs. Kalyan Singh and others) in cases pertaining to
the demolition of the disputed structure at Ayodhya,
instituted by the Delhi Special Police Establishment (C.B.I.)
in the Supreme Court of India, New Delhi and other matters
connected therewith and incidental thereto.
[No. 225/60/2013-AVD-II]
RAJIV JAIN, Under Secy.
ubZ fnYyh] 31 fnlEcj] 2013
dkñvkñ 151.—dsUnzh; ljdkj ,rn~}kjk naM izfdz;k lafgrk]
1973 ¼1974 dk vf/kfu;e la- 2½ dh /kkjk 24 dh mi/kkjk ¼8½ }kjk
iznÙk dk iz;ksx djrs gq,] fnYyh fo'ks"k iqfyl LFkkiuk }kjk laLFkkfir
dsñvñ C;wjks ekeys] xkft;kckn] mÙkj izns'k ds fo'ks"k U;k;k/kh'k ds
U;k;ky; esa ih,Q ?kksVkyk ekeyk vkjlh 1¼,½@2008&,lhch]
xkft;kckn esa ijh{k.k dk lapkyu djus rFkk fof/k }kjk LFkkfir iqujh{k.k
vFkok vihyh; U;k;ky;ksa esa mDr ekeys ls mRiUu vihyksa] iqujh{k.kksa
vFkok ;k blls mRiUu vU; ekeyksa dk lapkyu djus ds fy,
Jh oh-ds-a 'kekZ] odhy dks fo'ks"k yksd vfHk;kstd fu;qDr djrh gSA
[lañ 225@29@2013&,ohMh&II]
jktho tSu] voj lfpo
New Delhi, the 31st December, 2013
S.O. 151.—In exercise of the powers conferred by
sub-section (8) of Section 24 of the Code of Criminal
Procedure, 1973 (Act No. 2 of 1974), the Central Government
hereby appoints Shri V.K. Sharma, Advocates as Special
Public Prosecutor for conducting trial of PF scam case RC
1(A)/2008-ACB, Ghaziabad in the Court of Spl. Judge, CBI
cases, Ghaziabad, Uttar Pradesh instituted by the Delhi
Special Police Establishment and appeals, revisions or other
matters arising out of the said cases in revisional or
appellate courts established by law.
[No. 225/29/2013-AVD-II]
RAJIV JAIN, Under Secy.
ubZ fnYyh] 1 tuojh] 2014
dkñvkñ 152.—dsUnzh; ljdkj] ,rn~}kjk fo'ks"k iqfyl LFkkiuk
vf/kfu;e] 1946 ¼1946 dk vf/kfu;e la- 25½ dh /kkjk 6
lgifBr /kkjk 5 dh mi/kkjk ¼1½ }kjk iznÙk 'kfDr;ksa dk iz;ksx djrs
gq, mÙkj izns'k ljdkj 'kklu ds x`g ¼iqfyl½ vuqHkkx&14 fuxZr
vf/klwpuk la[;k 2235@6&ih ;w&14&13&70¼600½@13] y[kuÅ
fnukad 25 tqykbZ] 2013 }kjk izkIr lgefr ls th;uiqj dLcs esa
Jh losZ'k flag mQZ lhiw flag dh gR;k ds laca/k esa Fkkuk&th;kuiqj]
ftyk&vktex<+] mÙkj izns'k esa Hkkjrh; naM lafgrk] 1860 ¼1860 dk
vf/kfu;e] lañ 35½ dh /kkjk 147] 302 vkSj 120&ch ds varxZr ntZ
vijk/k lañ 348@13 rFkk mijksDr ekeys ls lacaf/kr iz;kl djus]
mdlkus vkSj "kM;a= djus dk vUos"k.k djus ds fy, fnYyh fo'ks"k
iqfyl laLFkkiuk ds lnL;ksa dh 'kfDr;ksa vkSj U;k;{ks= dk foLrkj
laiw.kZ mÙkj izns'k jkT; ij djrh gSA
[la- 228@56@2013&,ohMh&II]
jktho tSu] voj lfpo
New Delhi, the 1st January, 2014
S.O. 152.—In exercise of the powers conferred by
sub-section (1) of Section 5 read with Section 6 of the
Delhi Special Police Establishment Act, 1946 (Act No. 25 of
1946), the Central Government with the consent of the State
Government of Uttar Pradesh, Grih (Police) Anubhag-14,
Lucknow vide Notification No. 2235/6-PU-14-13-70(600)/
13 dated 25th July, 2013, hereby extents the power and
Jurisdiction of the members of the Delhi Special Police
Establishment to the whole of the State of Uttar Pradesh
for investigation of case Crime No. 348/13 under sections
147, 302 and 120-B of the Indian Penal Code, 1860 (Act
No. 45 of 1860) registered at Police Station Jiyanpur District
Azamgarh, Uttar Pradesh relating to murder of Mr. Sarvesh
Singh alias Sipu Singh at Jiyanpur town (Uttar Pradesh)
and attempts, abetments and conspiracies in relation to
the above mentioned case.
[No. 228/56/2013-AVD-II]
RAJIV JAIN, Under Secy.
ekuo lalk/ku fodkl ea=ky;
¼Ldwy f'k{kk vkSj lk{kjrk foHkkx½
¼,u,y,e&IV vuqHkkx½
ubZ fnYyh] 24 fnlacj] 2013
dkñvkñ 153.—Hkkjr ljdkj dh vf/klwpuk la[;k
,Q&46&3@2008&,bZ&4@,u,y,e&4 fnukad 07-07-2010 ds
ek/;e ls xfBr jk"Vªh; lk{kjrk fe'ku izkf/kdj.k ¼,u,y,e,½
258
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
ifj"kn~ vkSj 31-03-2013 rd c<+kbZ gqbZ vof/k lekIr gksus ds i'pkr~
vkSj Hkkjr ljdkj ds ladYi la[;k ,Q&9&5@87&,bZ&1 fnukad
20-06-1988 ¼iqu% ladYi la[;k ,Q&14&9@1992&,bZ&1 fnukad
25-09-1992 vkSj Qkñ 9&18@94&,bZ&1 fnukad 13-12-1994 ds
ek/;e ls la'kksf/kr½ ds vuqPNsn 4 esa iznÙk 'kfDr;ksa dk iz;ksx djrs
gq, fuEufyf[kr lnL;ksa ds lkFk ifj"kn~ dks iquxZfBr djus dk fu.kZ;
fy;k x;k gS%
Øñlañ
Js.kh
la?kVu
d- v/;{k]insu
ekuo lalk/ku fodkl ea=h] Hkkjr ljdkj
[k- mik/;{k] insu
jkT; ea=h] ekuo lalk/ku fodkl ea=ky;]
Hkkjr ljdkj
x-
lnL; ¼insu½
1- lnL; ¼insu½
lwpuk vkSj izlkj.k ea=h] Hkkjr ljdkj
2- lnL; ¼insu½
LokLF; ,oa ifjokj dY;k.k ea=h]
`
Hkkjr ljdkj
3- lnL; ¼insu½
;qok dk;Z vkSj [ksy ea=h] Hkkjr ljdkj
4- lnL; ¼insu½
lkekftd U;k; ,oa vf/kdkfjrk ea=h] Hkkjr
ljdkj
5- lnL; ¼insu½
efgyk vkSj cky fodkl ea=h] Hkkjr ljdkj
6- lnL; ¼insu½
xzkeh.k fodkl ea=h] Hkkjr ljdkj
7- lnL; ¼insu½
iapk;rh jkt ea=h] Hkkjr ljdkj
8- lnL; ¼insu½
vYila[;d dk;Z ea=h] Hkkjr ljdkj
9- lnL; ¼insu½
tutkrh; dk;Z ea=h] Hkkjr ljdkj
10- lnL; ¼insu½
lfpo] Ldwy f'k{kk vkSj lk{kjrk foHkkx]
Hkkjr ljdkj
11- lnL; ¼insu½
v/;{k] fo'ofo|ky; vuqnku vk;ksx
¼;wthlh½
12- lnL; ¼insu½
lnL; ¼f'k{kk½] ;kstuk vk;ksx
13- lnL; ¼insu½
egkfuns'kd] Hkkjrh; d`f"k vuqla/kku ifj"kn~
14- lnL; ¼insu½
vij lfpo] loZ f'k{kk vfHk;ku] Ldwy f'k{kk
vkSj lk{kjrk foHkkx
15- lnL; ¼insu½
la;qDr lfpo ,oa foÙkh; lykgdkj] ekuo
lalk/ku fodkl ea=ky;
16- lnL; ¼insu½
egkfuns'kd] oSKkfud rFkk vkS|ksfxd
vuqla/kku ifj"kn~
17- lnL; lfpo
la;qDr lfpo ¼izkS<+ f'k{kk½ ,oa egkfuns'kd
¼insu½
¼jk"Vªh; lk{kjrk fe'ku izkf/kdj.k½
?k- ukfer lnL;
f'k{kk 'kkL=h oSKkkfud ehfM;k fo'ks"kKk vkfn
esa ls p;fur izfrfuf/k
18- lnL;
Jh vkj- jkek nksjbZ
19- lnL;
izksñ ,l- ij'kqjkeu] funs'kd] VkVk lkekftd
foKku laLFkku] eqacbZ
20- lnL;
izksñ u;u rkjk] vkbZvkbZ,e] caxykSj
21- lnL;
izksñ vkjñ xksfoan] dqyifr] ,u;wbZih,
22- lnL;
Jh tkosn v[rj
23- lnL;
izksñ vuhrk jkeiky
³ - ukfer lnL;
LoSfPNd laxBuksa dk izfrfuf/kRo djus gsrq
6 O;fDr
24- lnL;
Jh d`".k dqekj] Hkkjr Kku foKku lfefr
25- lnL;
lqJh v#.kk jkW;] lhbZvks] izseth QkmaMs'ku
26- lnL;
Jherh ekfyuh ?kks"k] fujarj
27- lnL;
Jh iyksn jfo] ,e,y,] fr#ouariqje
28- lnL;
lqJh jk/kk dkfUriqMh] lhbZvks] rkjk dySfDVo
gSnjkckn
29- lnL;
Jh vkeksn dsñ daB] iz;kl] ubZ fnYyh
p- ukfer lnL;
30- &ogh&
eq[; jk"Vªh; jktuSfrd ikfVZ;ksas ds ofj"B
35-
Lrjh; izeq[k&6 ¼jktuSfrd ikfVZ;ksa }kjk
euksuhr
N-
lnL;
laln ds rhu lnL; ¼lalnh; dk;Z foHkkx
}kjk ukekafdr 2 yksd lHkk ls rFkk
1 jkT; lHkk ls½
36- &ogh&
yksd lHkk ls 2 laln lnL; ¼lalnh; dk;Z
37-
foHkkx }kjk ukekafdr½
38- &ogh&
jkT; lHkk ls 1 laln lnL; ¼lalnh; dk;Z
foHkkx }kjk ukekafdr½
t- lnL;
jkT; ljdkj@la?k 'kkflr izns'k ls izkS<+ f'k{kk
gsrq mÙkjnk;h 6 ea=h ¼ckjh&ckjh ls ukekafdr½
39- &ogh&
v#.kkpy izns'k
40- &ogh&
vka/kz izns'k
41- &ogh&
gfj;k.kk
42- &ogh&
e/; izns'k
43- &ogh&
>kj[k.M
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
259
44- &ogh&
jktLFkku
>- lnL;
,dhd`r fudk;ksa ds izfrfuf/k ¼6½
45- &ogh&
egkfuns'kd] Hkkjrh; okf.kT; ,oa m|ksx eaMy
ifjla?k ¼fQDdh½ ¼,QvkbZlhlhvkbZ½]
ubZ fnYyh
46- &ogh&
Hkkjrh; m|ksx egkla?k ¼lhvkbZvkbZ½]
ubZ fnYyh
47- &ogh&
lkoZtfud m|e laca/kh LFkk;h lfefr
¼,llhvksihbZ½] ubZ fnYyh
48- &ogh&
;wusLdks esa ns'k ds izfrfuf/k] ubZ fnYyh
49- &ogh&
;wuhlsQ esa ns'k ds izfrfuf/k] ubZ fnYyh
50- &ogh&
;w,uMhih esa ns'k ds izfrfuf/k] ubZ fnYyh
2- jk"Vªh; lk{kjrk fe'ku izkf/kdj.k ifj"kn~ ds xSj&ljdkjh
lnL; Hkkjr ljdkj ds fu;eksa ds vuqlkj ;k=k vkSj nSfud HkÙks ds
gdnkj gksaxsA
3- ifj"kn~ dk dk;Zdky vf/klwpuk dh frfFk ls nks o"kZ dh
vof/k ds fy, gksxkA
[lañ ,Qñ46&3@2008@,bZ&4@,u,y,e&4]
txeksgu flag jktw] la;qDr lfpo
MINISTRY OF HUMAN RESOURCE DEVELOPMENT
(Department of School Education and Literacy)
(NLM-IV SECTION)
New Delhi, the 24th December, 2013
S.O. 153.—On expiry of the term of the Council of
the National Literacy Mission Authority (NLMA)
constituted vide Government of India's Notification No.
F.46-3/2008-AE-4/NLM-4 dated 07-07-2010 and its extended
term till 31.03.2013 and in exercise of powers delegated in
para 4 of Government of India Resolution No. F.9-5/87-
AE-I dated 20.6.1988 (modified further vide Resolution No.
F 14-9/1992-AE-I dated 25.9.1992 and F.9-18/94-AE.I dated
13-12-1994), it has been decided to reconstitute the Council
with the following members:
S.No.
Category
Composition
A. Chairman,
Minister
of
Human
Resource
ex-officio
Development, Government of India
B. Vice-Chairman, Minister of State, Ministry of Human
ex-officio
Resource Development, Government
of India
C. Members
(Ex-Officio)
1. Member
Minister of Information and
(Ex-Officio)
Broadcasting, Government of
India
2. Member
Minister of Health and Family Welfare,
(Ex-Officio)
Government of India
3. Member
Minister of Youth Affairs and Sports,
(Ex-Officio)
Government of India
4. Member
Minister of Social Justice and
(Ex-Officio)
Empowerment, Government of India
5. Member
Minister of Women and Child
(Ex-Officio)
Development, Government of India
6. Member
Minister of Rural Development,
(Ex-Officio)
Government of India
7. Member
Minister of Panchayati Raj,
(Ex-Officio)
Government of India
8. Member
Minister of Minority Affairs,
(Ex-Officio)
Government of India
9. Member
Minister of Tribal Affairs,
(Ex-Officio)
Government of India
10. Member
Secretary, Department of School
(Ex-Officio)
Education & Literacy, Government of
India
11. Member
Chairman, University Grants
(Ex-Officio)
Commission (UGC)
12. Member
Member (Education),
(Ex-Officio)
Planning Commission
13. Member
Director General, Indian Council of
(Ex-Officio)
Agricultural Research
14. Member
Additional Secretary, Sarv Shiksha
(Ex-Officio)
Abhiyan, Department of School
Education and Literacy
15. Member
Joint Secretary & Financial Advisor,
(Ex-Officio)
Ministry of Human Resource
Development
16. Member
Director General, Council of Scientific
(Ex-Officio)
and Industrial Research
17. Member
Joint Secretary (Adult
Secretary
Education) and Director General,
(Ex-Officio)
National Literacy Mission Authority
D. Nominated
Representative from amongst
Members
Educationists, Scientists, Media
Experts etc.
18. Member
Shri R. Rama Dorai
19. Member
Prof. S. Parasuraman,
Director, Tata Institute of Social
Sciences, Mumbai
20. Member
Prof. Nayan Tara, IIM, Bangalore
21. Member
Prof. R. Govinda,
Vice-Chancellor, NUEPA
260
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
22. Member
Shri Javed Akhtar
23. Member
Prof. Anita Rampal
E Nominated
Six person to represent voluntary
Members
organizations
24. Member
Shri Krishna Kumar, Bharat Gyan
Vigyan Samiti
25. Member
Ms. Aruna Roy, CEO, Premji
Foundation
26. Member
Smt. Malini Ghosh, NIRANTAR
27. Member
Shri Palode Ravi, MLA,
Thiruvananthapuram
28. Member
Ms Radha Kantipudi, CEO, Tara
Collective, Hyderabad
29.Member
Shri Amod K. Kanth, Prayas, New
Delhi
F Nominated Members
30- -do-
Senior Level Leaders of the main
35
National political Parties-6 (to be
nominated by political parties)
G Members
Three Members of Parliament
(Two from Lok Sabha & one from
Rajya Sabha to be nominated by
Department of Parliamentary Affairs)
36. -do-
Two MPs from Lok Sabha (to be
37
nominated by Department of
Parliamentary Affairs)
38. -do-
One MP from Rajya Sabha (to be
nominated by Department of
Parliamentary Affairs)
H Members
Six Minister responsible for Adult
Education From State Government/
Union Territories
(to be nominated on rotational basis)
39. -do-
Arunachal Pradesh
40. -do-
Andhra Pradesh
41. -do-
Haryana
42. -do-
Madhya Pradesh
43. -do-
Jharkhand
44. -do-
Rajasthan
I. Members
Representatives of Integrated Bodies
(6)
45. -do-
Director General, Federation of Indian
Chambers of Commerce & Industries
(FICCI), New Delhi
46. -do-
Confederation of Indian Industries
(CII), New Delhi
47. -do-
Standing Committee on Public
Enterprises (SCOPE), New Delhi.
48. -do-
Country Representative of UNESCO,
New Delhi.
49. -do-
Country Representative of UNICEF,
New Delhi
50. -do-
Country Representative of UNDP,
New Delhi
2. The Non-official members of the Council of the
National Literacy Mission Authority will be entitled to
traveling and daily allowance as per the Govt. of India
Rules
3. The term of the Council will be for a period of two
years from the date of Notification.
[No. F. 46-3/2008/AE-4/NLM-4]
JAGMOHAN SINGH RAJU, Jt. Secy.
miHkksDrk ekeys [kkn~; ,oa lkoZtfud forj.k ea=ky;
¼miHkksDrk ekeys foHkkx½
¼Hkkjrh; ekud C;wjks½
ubZ fnYyh] 31 fnlacj] 2013
dkñvkñ 154.—Hkkjrh; ekud C;wjks fu;e] 1987 ds fu;e 7
ds mifu;e ¼1½ ds [kaM ¼[k½ ds vuqlj.k esa Hkkjrh; ekud C;wjks
fu;e ,rn~ n~okjk vf/klwfpr djrk gS fd ftu Hkkjrh; ekudksa ds
la'kksèu dk fooj.k uhps vuqlwph esa fn;k x;k gS] og LFkkfir gks x, gSa%
Øe la'kksf/kr Hkkjrh; ekud dh la[;k]
la'kks/ku la[;k
la'kks/ku ykxw gksus
la[;k o"kZ vkSj 'kh"kZd
vkSj o"kZ
dh frfFk
1
2
3
4
1-
vkbZ ,l 3041% 1994
la'kks/ku la[;k 1 30 flrEcj 2013
filh gqbZ pckus okyh rEckdw &
o"kZ 2013
fof'k"V ¼nwljk iqujh{k.k½
2-
vkbZ ,l 3508% 1966
la'kks/ku la[;k 3 30 flrEcj 2013
?kh ¼cVj QsV½ esa uewuk ysus vkSj
o"kZ 2013
ijh{k.k dh i)fr;ka
3-
vkbZ ,l 6969% 1973
la'kks/ku la[;k 2 30 flrEcj 2013
iz'khfrr ihus ds ikuh dh izgLru ,oa
o"kZ 2013
fcØh dh LoPN fLFkfr;ksa dk dksM
4-
vkbZ ,l 4627% 1968
la'kks/ku la[;k 3
31 vDrwcj
futZykd`r xksHkh & fof'k"V
o"kZ 2013
2013
5-
vkbZ ,l 7482% 1989
la'kks/ku la[;k 2
31 vDrwcj
izksVhu vk/kkfjr is;k & fof'k"V
o"kZ 2013
2013
¼igyk iqujh{k.k½
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
261
6-
vkbZ ,l 9304% 1979
la'kks/ku la[;k 1
31 vDrwcj
vke ds Hk.Mkj.k ds fy, ekxZnf'kZdk
o"kZ 2013
2013
bu la'kks/kuksa dh izfr;ka Hkkjrh; ekud C;wjks] ekud Hkou]
9] cgknqj 'kkg tQ+j ekxZ] ubZ fnYyh&110002] {ks=h; dk;kZy;ksa %
ubZ fnYyh] dksydkrk] psUubZ] eqacbZ] paMhx<+ rFkk 'kk[kk dk;kZy;ksa %
vgenkckn] caxykSj] Hkksiky] dks;Ecrwj] xqokgkVh] gSnjkckn] t;iqj]
dkuiqj] ukxiqj] iVuk] iw.ks rFkk dksph esa fcØh gsrq miyC/k gSaA
[lUnHkZ ,Q,Mh@th&128]
dqekj vfuy] oSKkfud ^,Q* ,oa izeq[k
¼[kkn~; ,oa d`f"k foHkkx½
MINISTRY OF CONSUMER AFFAIRS, FOOD AND
PUBLIC DISTRIBUTION
(Department of Consumer Affairs)
(BUREAU OF INDIAN STANDARDS)
New Delhi, the 31st December, 2013
S.O. 154.—In pursuance of Clause (b) of sub-rule
(1) of Rule 7 of Bureau of Indian Standards rules, 1987, the
Bureau of Indian Standrads hereby notifies that the
amendment to the Indian Standards, particulars of which
are given in the Scheduled hereto annexed have been
established on the date indicated against it:
SCHEDULE
Sl.
No. & year of the
No. & Year of the
Date on which
Indian Standard
Amendment
the Amendment
shall have effect
1.
IS 3041: 1994
Amendment No. 1
30 September
Minced type chewing
Year 2013
2013
tobacco - Specification
(Second Revision)
2.
IS 3508: 1996
Amendment No. 3
30 September
Methods of sampling
Year 2013
2013
and test for ghee
(Butterfat)
3.
IS 6969: 1973 Code
Amendment No. 2
30 September
for hygienic conditions
Year 2013
2013
for handing and sale of
refregerated drinking
`water
4.
IS 4627: 1968
Amendment No. 3
30 September
Specification for
Year 2013
2013
dehydrated cabbage
5.
IS 7842: 1989
Amendment No. 2
30 September
Protein-based
Year 2013
2013
beverages-Specification
(First Revision)
6.
IS 9304: 1979
Amendment No. 1
30 September
Guide for storage
Year 2013
2013
of mangoes
Copies of these amendments are available for sale
with the Bureau of Indian Standards, Manak Bhawan,
9 Bhandur Shah Zafar Marg, New Delhi - 110002 and
Regional Offices: New Delhi, Kolkata, Chandigarh, Chennai,
Mumbai and also Branch Offices: Ahemdabad, Bangalore,
Bhopal, Bhubhneshwar, Coimbatore, Guwahati, hyderabad,
Jaipur, Kanpur, Nagpur, Patna, Pune and Kochi.
[Ref. FAD/G-128]
KUMAR ANIL, Scientist 'F' and Head
(Food & Agri)
ubZ fnYyh] 31 fnlacj] 2013
dkñvkñ 155.—Hkkjrh; ekud C;wjks fu;e] 1987 ds fu;e
7 ds mifu;e ¼1½ ds [kaM ¼[k½ ds vuqlj.k esa Hkkjrh; ekud C;wjks
,rn~ n~okjk vf/klwfpr djrk gS fd ftu Hkkjrh; ekudksa dk fooj.k
uhps vuqlwph esa fn;k x;k gS] os LFkkfir gks x, gSa%—
Øe
LFkkfir Hkkjrh; ekud ¼dksa½
u;s Hkkjrh; ekud }kjk
LFkkiuk dh
la[;k dh la[;k] o"kZ vkSj 'kh"kZd
vfrØfer Hkkjrh; ekud
frfFk
vFkok ekudksa] ;fn dksbZ
gks] dh la[;k vkSj o"kZ
1-
vkbZ ,l 16069 (Part 1) %
vkbZ ,l 14920% 2001
30 twu 2013
`
2013@vkbZ ,l vks 21527&
1% 2008 [kkn~; ,oa i'kq vkgkj
lkefxz;ksa dk lw{e tSofoKku
&[kehj ,oa QQwanh fd x.kuk
dh {kSfrt i)fr & Hkkx 1 0-95
ls vf/kd ty xfrfof/k okys
mRiknksa esa dkWyksuh x.kuk
rduhd
2-
vkbZ ,l 6840% 2013 &
vkbZ ,l 6840 1972
31vxLr
d`f"k ifg,nkj VªSDVj ds
2013
,gfr;krh j[kj[kko &
jhfr lafgrk ¼igyk iqujh{k.k½
3-
vkbZ ,l 9253 % 2013 &
vkbZ ,l 9523% 2001
31vxLr
d`f"k dk;Z gsrq ifg, okyk
2013
VªSDVj & [ksr esa dk;Z laiknu
vkSj d"kZ.k ¼<qykbZ½ ijh{k.k&
ekxZnf'kZdk ¼rhljk iqujh{k.k½
4-
vkbZ ,l 16116% 2013 ukfj;y
&
31 vDrwcj
nw/k dk ikmMj & fof'k"V
2013
5-
vkbZ ,l 16117% 2013
&
31 vDrwcj
fpyxkstk fxjh & fof'k"V
2013
bu Hkkjrh; ekudksa dh izfr;ka Hkkjrh; ekud C;wjks] ekud
Hkou] 9 cgknqj 'kkg tQ+j ekxZ] ubZ fnYyh&110002] {ks=h; dk;kZy;ksa%
ubZ fnYyh] dksydkrk] psUubZ] eqacbZ] paMhx<+ rFkk 'kk[kk dk;kZy;ksa %
vgenkckn] caxykSj] Hkksiky] dks;Ecrwj] xksokgkVh] gSnjkckn] t;iqj]
dkuiqj] ukxiqj] iVuk] iw.ks rFkk dksph esa fcØh gsrq miyC/k gSaA
[lUnHkZ ,Q,Mh@th&128]
dqekj vfuy]oSKkfud ^,Q* ,oa izeq[k
¼[kkn~; ,oa d`f"k foHkkx½
1
2
3
4
262
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
New Delhi, the 31st December, 2013
S.O. 155.—In pursuance of Clause (b) of sub-rule
(1) of Rule 7 of Bureau of Indian Standards rules, 1987, the
Bureau of Indian Standrads hereby notifies that the Indian
Standards, particulars of which are given in the Scheduled
hereto annexed have been established on the date indicated
against these:
SCHEDULE
Sl.
No. & year of the Indian
No. & Year of Indian
Date of
No.
Standard(s) Established
Standards, if any
Establishment
Superseded by the
New Indian Standard
1.
IS 16069 (Part 1) 2013/
IS 14920 : 2001
30 June 2013
ISO 21527-1: 2008 Micro-
biology of food and animal
feeding Stuffs — Horizontal
method for the enumeration
of yearts and moulds, Part 1
Colony count technique in
products with water activity
greater than 0.95
2.
IS 6840: 2013 Preventive
IS 6840 : 1972
31 August 2013
Maintenance of Agricultural
Wheeled Tractors — Code
of Practice (First Revision)
3.
IS 9253: 2013 Agricultural
IS 9253: 2001
31 August 2013
Wheeled Tractors — Field
Performance and Haulage
tests — Guidelines (Third
Revision)
4.
IS 16116: 2013 Coconut
-
31 October 2013
milk power — Specification
5.
IS 16117: 2013 chilgoza
-
31 October 2013
nuts — Specification
Copies of these standards are available for sale with
the Bureau of Indian Standards, Manak Bhawan, 9 Bhandur
Shah Zafar Marg, New Delhi - 110002 and Regional Offices:
New Delhi, the Kolkata, Chandigarh, Chennai, Mumbai and
also Branch Offices: Ahemdabad, Bangalore, Bhopal,
Bhubhneshwar, Coimbatore, Guwahati, Hyderabad, Jaipur,
Kanpur, Nagpur, Patna, Pune and Kochi.
[Ref. FAD-128]
KUMAR ANIL, Scientist 'F' and Head
(Food & Agri.)
dks;yk ea=ky;
vkns'k
ubZ fnYyh] 6 tuojh] 2014
dkñvkñ 156.—dks;yk /kkjd {ks= ¼vtZu vkSj fodkl½
vf/kfu;e] 1957 ¼1957 dk 20½ ¼ftls blesa blds i'pkr~ mDr
vf/kfu;e dgk x;k gS½ dh /kkjk 9 dh mi/kkjk ¼1½ ds v/khu tkjh
Hkkjr ds jkti=] Hkkx II] [kaM 3] mi[kaM ¼ii½] rkjh[k 03 flrEcj]
2013 esa izdkf'kr Hkkjr ljdkj ds dks;yk ea=ky; dh vf/klwpuk
dkñvkñ la[;kad 2665¼v½] rkjh[k 02 flrEcj] 2013 ij mDr
vfèlwpuk ls layXu vuqlwph esa of.kZr Hkwfe vkSj ,slh Hkwfe ¼ftls
blesa blds i'pkr~ mDr Hkwfe dgk x;k gS½] esa ;k ml ij ds lHkh
vfèdkj] mDr vf/kfu;e dh /kkjk 10 dh mi/kkjk ¼1½ ds v/khu]
lHkh foYyaxuksa ls eqDr gksdj] vkR;afrd :i esa dsUnzh; ljdkj esa
fufgr gks x, Fks(
vkSj dsUnzh; ljdkj dk ;g lek/kku gks x;k gS fd osLVuZ
dksyQhUM~l fyfeVsM] ukxiqj ¼ftls blesa blds i'pkr~ ljdkjh
daiuh dgk x;k gS½] fuca/kuksa vkSj 'krks± dk vuqikyu djus ds fy,
jtkean gS] tks dsUnzh; ljdkj bl fufeÙk vf/kjksfir djuk mfpr
le>s(
vr% vc] dsUnzh; ljdkj] mDr vf/kfu;e dh /kkjk 11 dh
mi/kkjk ¼1½ }kjk iznÙk 'kfDr;ksa dk iz;ksx djrs gq,] ;g funs'k nsrh gS
fd bl izdkj fufgr Hkwfe vkSj mDr Hkwfe esa ;k ml ijds lHkh vf/kdkj
rkjh[k 03 flrEcj] 2013 ls dsUnzh; ljdkj esa bl izdkj fufgr cus
jgus ds ctk,] fuEufyf[kr fuca/kuksa vkSj 'krks± ds v/khu jgrs gq,]
ljdkjh daiuh esa fufgr gks tk,axs] vFkkZr~&
1- ljdkjh daiuh] mDr vf/kfu;e ds mica/kksa ds v/khu ;Fkk
vo/kkfjr izfrdj] C;kt] uqdlkfu;ksa vkSj oSlh gh enksa dh
ckcr~ fd, x, lank;ksa dh dsUnzh; ljdkj dks izfriwfrZ djsxh(
2- 'krZ ¼1½ ds v/khu ljdkjh daiuh }kjk dsUnzh; ljdkj dks
lans; jdeksa dk vo/kkj.k djus ds iz;kstuksa ds fy, mDr
vfèfu;e dh /kkjk 14 ds v/khu ,d vf/kdj.k dk xBu
fd;k tk,xk vkSj ,sls fdlh vf/kdj.k dh lgk;rk ds fy,
fu;qDr O;fDr;ksa ds laca/k esa mixr lHkh O;;] ljdkjh daiuh
}kjk ogu fd, tk,axs vkSj bl izdkj fufgr mDr Hkwfe esa ;k ml
ij ds vf/kdkjksa ds fy, ;k muds laca/k esa tksfd vihy vkfn
lHkh fof/kd dk;Zokfg;ksa dk ckcr~ mixr lHkh O;; Hkh ljdkjh
daiuh }kjk ogu fd, tk,axs(
3- ljdkjh daiuh] dsUnzh; ljdkj ;k mlds in/kkfj;ksa dh] ,sls
fdlh vU; O;; ds laca/k esa {kfriwfrZ djsxh] tks bl izdkj
fufgr mDr Hkwfe esa ;k ml ij ds vf/kdkjksa ds ckjs esa dsUnzh;
ljdkj ;k mlds in/kkfj;ksa }kjk ;k muds fo#) fdUgh dk;Zokfg;ksa
ds laca/k esa vko';d gks(
4- ljdkjh daiuh dks dsUnzh; ljdkj ds iwoZ vuqeksnu ds fcuk
mDr Hkwfe dks vkSj mlesa fufgr mDr Hkwfe esa ;k ml ij ds
vf/kdkjksa dks vkSj fdlh vU; O;fDr ds vf/kdkjksa dks varfjr
djus dh 'kfDr ugha gksxh( vkSj
5- ljdkjh daiuh] ,sls funsZ'kksa vkSj 'krks± dk ikyu djsxh] tks
dsUnzh; ljdkj }kjk] tc dHkh vko';d gks] mDr Hkwfe ds
fof'k"V {ks=ksa ds fy, fn, tk,a ;k vf/kjksfir fd, tk,aA
[Qkñ lañ 43015@11@2011&ihvkjvkbZMCY;w&1 ]
,eñ dsñ 'kekZ] funs'kd
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
263
MINISTRY OF COAL
ORDER
New Delhi, the 6th January, 2014
S.O. 156.—Whereas on the publication of the
notification of the Government of India in the Ministry of
Coal, number S.O. 2665(E), dated the 2nd September, 2013,
published in the Gazette of India, Part II, Section 3, Sub-
section (ii) dated the 3rd September, 2013, issued under
sub-section (1) of section 9 of the Coal Beaning Areas
(Acquisition and Development) Act, 1957 (20 of 1957)
(hereinafter referred to as the said Act), the land and all
rights in or over the land described in the Schedule
appended to the said notification (hereinafter referred to
as the said land) vested absolutely in the Central
Government free from all encumbrances under sub-section
(1) of section 10 of the said Act;
And whereas the Central Government is satisfied
that the Western Coalifields Limited, Nagpur (hereinafter
referred to as the Government company) is willing to comply
with such terms and conditions as the Central Government
thinks fit to impose in this behalf.
Now, therefore, in exercise of the powers conferred
by sub-section (1) of section11 of the said Act, the Central
Government hereby directs that the said land and all rights
in or over the said land so vested shall, with effect from
3rd September, 2013, instead of continuing to so vest in the
Central Governent, vest in the Government company,
subject to the following terms and conditions, namely:—
1. the Government company shall reimburse the Central
Government all payments made in respect of
compensation, interest, damages and the like, as
determined under the provisions of the said Act;
2. a Tribunal shall be constituted under section 14 of
the said Act, for the purpose of determining the
amounts payable to the Central Government by the
Government company under condition (1) and all
expenditure incurred in connection with any such
Tribunal and persons appointed to assist the said
Tribunal shall be borne by the Government company
and similarly, all expenditure incurred in respect of all
legal proceedings like appeals, etc. for or in
connection with rights, in or over the said land, so
vested, shall also be borne by the Government
company;
3. the Government company shall indemnify the Central
Government or its officials against any other
expenditure that may be necessary in connection
with any proceedings by or against the Central
Government or its officials regarding the rights in or
over the said land so vested;
4. the Government company shall have no power to
transfer the said land and the rights in or over the
said land to any other person without the prior
approval of the Central Government; and
5. the Government company shall abide by such
directions and conditions as may be given or imposed
by the Central Government for particular areas of the
said land, as the when necessary.
[F. No. 43015/11/2011-PRIW-I]
M. K. SHARMA, Director
Je ,oa jkstxkj ea=ky;
ubZ fnYyh] 26 fnlacj] 2013
dkñvkñ 157.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj tujy esustj]
Oghdy QSDVªh 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
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26&12&2013 dks izkIr gqvk FkkA
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MINISTRY OF LABOUR AND EMPLOYMENT
New Delhi, the 26th December, 2013
S.O. 157.—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/195/99) of the Central Government Industrial Tribunal-
cum-Labour Court, Jabalpur as shown in the Annexure, in
the Industrial dispute between the employers in relation to
the management of The General Manager, Vehicle Factory
and their workman which was received by the Central
Government on 26-12-2013.
[F. No. L-14011/19/1998-IR(DU)]
P. K.VENUGOPAL, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/195/99
PRESIDING OFFICER: SHRI R.B.PATLE
General Secretary,
Vehicle Factory Pratiraksha Mazdoor Sangh,
Q.No. 2491, Type-2,
Sector-1, Vehicle Factory Estate,
Jabalpur
..Workman/Union
264
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
Versus
General Manager, Vehicle Factory,
Jabalpur (MP)
..Management
AWARD
(Passed on this 18th day of June 2013)
As per letter dated 6-5-99 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-14011/19/98/IR(DU).
The dispute under reference relates to:
"Whether the action of the management of Vehicle
Factory, Jabalpur in imposing the penalty of stoppage
of one increment without conducting any enquiry
on Shri S.K. Sengupta H.S.Grade-2 vide their order
no. 99/viz/20255 dated 23-9-95 is legal and justified?
If not, to what relief the workman is entitled?"
2. After receiving reference, notices were issued to
the parties. 1st party Union submitted statement of claim at
Page 4/1 to 4/5. The case of 1st party workman is that
workman was active member of Union. He was also General
Secretary of the Union. He was working as Millwright in
Vehicle Factory, Jabalpur. Mr. A.B. Ghosh was Asstt.
Foreman, M.M. Section, Vehicle Factory, Jabalpur. That on
complaint of A.B. Ghosh, charge sheet was issued to
Shri S.K. Sengupta on 24- 12-92. The charges against
workman were of abusing and using indescent language
to his superior. The enquiry was conducted under Rule 14
of CCS Rule, 1965. Astt. Works Manager was Enquiry
Officer. All the 5 witnesses did not support the department.
The Enquiry Officer submitted report that charge was not
established. Despite of it, General Manager imposed
punishment regarding dessent in finding. Punishment of
reduction in pay in one stage is imposed. The Union
submits that the punishment is illegal. It is imposed in
colourable exercise of power regarding dessent in finding.
The Disciplinary Authority was pre-determined to impose
the punishment. The penalty amount to double jeopardie.
On such ground, it is prayed that the punishment of
reducing salary be set-aside.
3. Management filed Written Statement at Page 6/1
to 6/2. It is submitted by management of IInd party that
Shri S.K. Sengupta was working as Millwright in MM
Section of Vehicle Factory. On 1-12-92, he loudly shouted
in presence of staff members. That the existing procedure
of taking attendance and search of I.E's after lunch recess.
That chargesheet issued to Mr. Sengupta as per Rule-14 of
CCS Rule 1965 Mr. Sengupta denied charges. The enquiry
was initiated against him. The Enquiry Report was received
by General Manager. Considering representation by the
workman and findings of Enquiry officer, the punishment
of reduction in pay by one stage was imposed on 21-2-95.
Instead of preferring appeal, the workman approached ALC
for conciliation. The said approach itself is sufficient to
decide reference in favour of the management. The reference
was made. The punishment was properly imposed.
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 Vehicle Factory,
Jabalpur in imposing the penalty
of stoppage of one increment
without conducting any enquiry
on Shri S.K. Sengupta H.S.
Grade-2 vide their order no. 99/
viz/20255 dated 23-9-95 is legal
and justified
(ii) If so, to what relief the
Relief prayed by
workman is entitled to?"
workman
are
rejected.
REASONS
5. The Union is challenging order of punishment of
reduction of ipay of workman Shri Sengupta. The Union
had not filed evidence. The evidence of workman was
closed as per order dated 17-9-09. The management filed
affidavit of evidence of Shri S.K. Mishra, The witness of
management has stated about the chargesheet issued to
the workman and enquiry conducted against him. That the
charges against workman were proved. The evidence of
management's witness remained unchallenged as the
workman failed to cross-examine the said witness. The IInd
witness Anuj Kishore Prasad filed affidavit of his evidence.
He has also stated that workman Shri S.K. Sengupta had
committed gross misconduct shouting and using
un-parliamentary language in Plant-1,MM Section. The
enquiry was conducted and charges were proved. The
appeal was rejected. The evidence of IInd witness of
management also remained unchallenged. The workman
failed to cross-examine both the witnesses. Though the
evidence of workman was closed as stated above, he has
filed his affidavit of evidence on 30-3-2011 without applying
for recalling the order of closing his evidence on 17-9-2009.
The workman did not remained available for cross-
examination. As the exparte order against workman is not
called back, his evidence cannot be considered. The
evidence of both witnesses of management remained
unchallenged. Thus the evidence on record cannot
establish that punishment of reduction of pay by one stage
to workman suffers from illegality. Therefore I record my
finding in Point No.1 in Affirmative.
6. In the result, award is passed as under:—
1. The action of the management of Vehicle Factory,
Jabalpur in imposing the penalty of stoppage of one
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
265
increment without conducting any enquiry on
Shri S.K. Sengupta H.S.Grade-2 vide their order no.
99/viz/20255, dated 23-9-95 is legal.
2. Relief prayed by workman is rejected.
R. B. PATLE, Presiding Officer
ubZ fnYyh] 26 fnlEcj] 2013
dkñvkñ 158.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj dkarksaesaV ,XthD;wfVo
vkfQlj] egq ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds
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[Qk- la- ,y&13012@01@2006&vkbZvkj ¼Mh-;w-½]
ih- ds- os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 26th December, 2013
S.O. 158.—In pursuance of Section 17 of the
Industrial Dispute Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. CGIT/
LC/R/44/06) of the Central Government Industrial Tribunal-
cum-Labour Court, Jabalpur as shown in the Annexure, in
the Industrial dispute between the Contonment Executive
Officer, Mhow and their workman, which was received by
the Central Government on 26-12-2013.
[F.No. L-13012/01/2006-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/44/06
PRESIDING OFFICER: SHRI R.B.PATLE
Shri Pratap Singh,
S/o Shri Omkar Singh & 10 others,
R/o H.No. 93, Mehta Ki Chaal,
Mhow
..Workman
Versus
Cantonment Executive Officer,
Cantonment Board,
Mhow
..Management
AWARD
(Passed on this 07th day of June, 2013)
1. As per letter dated 31-07-06 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-13012/
1/2006-IR(DU). The dispute under reference relates to:
"Whether the action of the management of
Cantonment Executive Officer, Cantonment Board,
Mhow (MP) in terminating the services of their
workmen Shri Pratap Singh and 10 others as per
Annexure w.e.f. November 2003 is legal and justified?
If not, to what relief the workmen are entitled to?"
2. After receiving reference, notices were issued to
the parties. 1st party employees submitted joint statement
of claim list party employees submits that they were
continuously working with IInd party for 5-9 years. To be
precise, 1st party No.1 Pratap Singh was appointed in
February 1999 as Helper to help the work of carpenter.
Hukum Singh was appointed in April 1995 to help in Mason
work, Santosh Kumar was appointed in March 1998 to help
in mason work, Rakesh was appointed in July 1999 to help
in electrical work, Shyamlal was appointed in April 1998 as
helper in water supply, Dinesh Chandra was appointed in
March 1998 to help in water supply work, Kamal Kumar
was appointed in April 1994 to help in Mason work, Rajesh
was appointed in April 1995 to help in water supply work,
Radheshyam was appointed in July 1995 to help in electrical
work, Jagdish was appointed in April 1996 to help in
electrical work. They had continuously worked till October
2003. Their services were terminated in November 2003
without assigning any reasons. That their working was
satisfactory. The termination of their services without
holding any enquiry is against principles of natural justice.
It amounts to illegal retrenchment. That IInd party did not
served notice for termination of service, no retrenchment
compensation was paid to them. Permission of appropriate
Government was not obtained for their termination. The
termination of their services is illegal. After conciliation
proceeding, the dispute has been referred. That they are
not in employment. Since their termination, they are not
gainfully employed elsewhere. On such ground, they are
praying for setting aside the order of termination and
reinstatement with consequential benefits. The earlier
statement of claim was submitted on behalf of all 11
employees contending same points. In addition, it was
contented that the termination of services of 1st party
workman is in violation of the provisions of I.D.Act. The
termination of services of those employees is by way of
victimization. It is unfair labour practice. All the 11 employees
prayed for their reinstatement with consequential benefits.
266
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
3. The management of IInd party submitted Written
Statement at Page 11/1 to 11/4. IInd party submits that there
are rules for making any appointment in the Cantonment
Board and appointments are made only as per rules and after
following the due procedure. The applicants have never
been issued call letter to attend an interview for selection in
any of the post lying vacant. IInd party submits that the
workers were engaged for carrying out casual nature of work
like removal of encroachments for maintenance of PWD etc.
These work are not permanent nature and the applicants
were engaged as daily labourers to do the same. The
engagement of daily labourers was on purely need basis.
Their engagement came to end on end of the day. They are
not entitled to protection under I.D.Act. The employees had
choice to work elsewhere. Their discontinuation doesnot
amount to termination from service. The employees are not
covered under Section 2(s) of I.D. Act.
4. IInd party further submits that applicant No. 1 to
10 were never appointed on the post of coolie and no
appointment letter were issued to them. They were engaged
on need basis for some casual nature of work. All the 10
employees were engaged on daily wage basis. The
allegation of 1st party that their services are terminated in
violation of principles of natural justice are denied. It is
denied that they are terminated by way of victimization: It
is reiterated that all the 10 employees were engaged for
casual work and their services came to an end after end of
day. IInd party prays for rejection 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 Negative
management of Cantonment
Executive
Officer,
Cantonment Board, Mhow (MP)
in termination the services of
their workmen Shri Pratap Singh
and 10 others as per Annexure
w.e.f. November 2003 is legal
and justified?
(ii) If so, to what relief the workman
1st party work-
is entitled to?"
men are entitled
to reliefs as per
final order.
REASONS
6. The dispute under reference relates to legality of
termination of 1st party employees. The reference is made
with respect to termination of services of Pratap Singh and
10 others. The 1st statement of claim filed by 1st party is on
behalf of Pratap and 10 others where as the statement of
claim filed in English is only on behalf of 10 employees.
7. IInd statement of claim submitted in English
doesnot find signature of Shri Rakesh,S/o Babulal Malviya.
1st party employees prays that they were continuously
working since initial appointment in different work till their
services were terminated in November 2003. Management
contends that these employees were not appointed as
coolie. They were engaged for casual work. However
Written Statement filed by management doesnot find clear
pleadings that the employees had completed 240 days
continuous service. The details of the working days of 1st
party employees are also not pleading in Written Statement
filed by management.
8. Affidavits of evidence filed by workmen
Santosh Kumar, S/o Suresh Chandra, Jagdish, S/o Motilal
Verma, Hukum Singh, S/o Kishan, Radhesham S/o Harlal,
Dineshchandra, S/o Rameshchandra, Radhesham,
S/o Mangilal, Pratap Singh, S/o Omkarsingh, Kamal Kumar,
S/o Shri Harishchandra Yadav, Rakesh, S/o Babulal Malviya.
Affidavit filed by all those 9 employees are identical about
the period of their engagement that they were continuously
working as coolie till 31-10-2003. They had completed 240
days continuous service during each of the year. Their
services were terminated without enquiry, without issuing
notice or payment of retrenchment compensation etc.
9. Santosh Kumar, S/o Suresh Chandra in his cross-
examination says that his education is upto 8th standard.
He was not called for interview, he was helping in work of
mason. He claims ignorance about the vacant post. He has
stated that he had worked for more than 240 days during
1998 to 2003. His evidence about work for more than 240
days is not shattered. Jagdish Motilal Verma in his cross-
examination says that he was not given appointment letter,
he had issued copy of muster roll, he says that he had
worked for more than 240 days during every year. His
evidence about doing work for more than 240 days every
year is not shattered. Similarly evidence of Hukum Singh,
S/o Kishan, Radhesham S/o Harlal, Dineshchandra, S/o
Rameshchandra, Radhesham,S/o Mangilal, Pratap Singh,
S/o Omkarsingh, Kamal Kumar, S/o Shri Harishchandra
Yadav, Rakesh, S/o Babulal Malviya that they have worked
more than 240 days during each of the year is not shattered
during cross-examination. All those employees have not
stated that in cross-examination that they were workman,
they have received copy of muster roll. Letters received
from the Cantonment Officer are produced at Exhibit P-4 to
P-11. The working days of those employees are shown in
the annexure along with those letters Exhibit P-4 to P-11.
The working days for the months November to December
2002 are not shown. However the working days in the
annexures are shown 239, 257, 233, 211, 235, 238, 236 & 239
in the year 2003. The services of all those employees were
terminated from 1-11-03. The period of proceeding 12
months comes upto November 2002. If the working days of
the month November to December 2002 shown in the
Annexure submitted in P-4 to P-11 are considered, all of the
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
267
employees have completed 240 days service during
12 calendar months preceding termination of their services.
10. The management has also produced copies of
muster rolls with list at Page 15/1, document M-1 to M-21.
The working days shown of all the employees more than
240 days during the year 2002-03. However counsel for 1st
party denied those documents without considering its
contents. Therefore it is not appropriate to consider those
documents. As per evidence of witness Pramod Prasad,
the document Exhibit P-2, P-3 the extracts of outward
register are proved. The letters sent as per entry No. 1433
& 1434 were sent from the office of IInd party. The evidence
of this witness in cross-examination shows that the witness
has no knowledge about the documents sent alongwith
those letters. That the letter sent through office bears
signature of the concerned officer. He has admitted in his
evidence that the annexure sent alongwith the letters also
used to be signed by the concerned officer. The officers
sending letters Exhibit P-4 to P-11 are not examined by the
IInd party. Those letters were sent by the Cantonment
Officer is best person to explain whether the Annexures
sent with those letters were correct or incorrect. The letters
Exhibit P-4 to P-11 finds clear reference that the annexures
were being sent for the period 1996 to 2003. As the IInd
party management has not adduced evidence in rebuttal, I
donot find any reason to disbelieve evidence of the
applicants. The documents P-4 to .P-11 and the annexures
sent alongwith those letters certainly corroborates evidence
of the applicant that they were continuously working with
the Management of IInd party from 1996 to 2003 and they
had completed 240 days continuous service. The
management of IInd party filed affidavit of evidence of
Prashant chouhan, S/o Prahlad Das Chouhan. The said
witness has stated in his affidavit that the employees were
engaged for casual work of removal of encroachments for
maintenance of PWD office. The names of employees were
not sponsored through Employment Exchange. That the
employees not worked for more than 240 days during any
of the year. The witness is working as junior clerk. That
Pramod Kumar was working as inward, outward clerk.
N.F.Hussain was Chief Officer of the Cantonment Board.
In his cross- examination, contents of document Exhibit
P-1, P-4 to P-11 are confirmed. In his further cross-
examination, this witness says that the employees were
not paid retrenchment compensation, that the copy of
muster roll for November-02 to October 03 will be available
in the office. He has shown his willingness to produce
those documents. That he has not produced any document
about the engagement in any other work after termination
of their services.
11. From evidence described above, it is clear that all
the employees have completed 240 days continuous service
preceding their termination from November 2003. They were
not paid retrenchment compensation, no notice was issued
to them.
12. Learned counsel for IInd party Mr. P.C.Chandak
during course of argument submitted that the annexure
with document Exhibit P-4 to P-11 are not bearing the
signatures. As discussed above, the IInd party has not
examined the competent officer who issued letter P-4 to
P-11. No evidence in rebuttal is adduced. Therefore the
argument advanced on above points cannot be accepted.
If the working days for November December 2002 of all the
employees shown in the annexure are considered, it is clear
that all employees have completed 240 days continuous
service. Their services are terminated without notice, no
retrenchment compensation was paid, the termination of
services of 1st party employees is in violation of Section
25-F of I.D.Act.
13. Considering the pleadings in Written Statement
of IInd party that the 1st party employees were not given
appointment letters, they were not appointed following
the rules for appointment, requires time to emphasize that
1st party employees are not entitled for reinstatement. As
discussed above, the services of 1st party employees are
terminated in violation of Section 25-F of I.D.Act.
14. It is beneficial to consider ratio in
"case of Shri Ramesh Kumar versus State of Haryana
reported in 2010-2 Supreme Court Cases 543. Their
Lordship dealing with applicability of Section 25-F
to casual employees and validity of termination. In
case of termination of casual employee what is
required to be seen is whether he has completed 240
days of service in preceding 12 months or not. If he
has then the service cannot be terminated without
giving notice or compensation in lieu of it in terms of
Section 25-F . Though appointment on Public post
cannot made in contravention of recruitment rules
and constitutional scheme of employment,
contention that initial appointment of appellant was
contrary to recruitment rules and constitutional
scheme of employment was not raised either before
Labour Court or High Court . Moreover appellant
had not prayed for regularisation but only for
reinstatement with continuity of service to which he
is legally entitled. In addition to factual conclusion
by Labour Copurt that appellant had worked the
required 240 days, appellant also shows that persons
similarly situated had been reinstated and regularized.
Hence the Labour Court's direction for reinstatement
with continuity of service upheld, but with
concession of workman to forego back wages."
Ratio held in above case squarely covers claim of•
1st party. Employees terminated in November 2003 without
compliance of Section 25-F of I.D.Act . The action of the
management is illegal and therefore I record my finding in
Point No.1 in Negative.
268
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
15. Point No.2- In view of my finding in Point No.1
that the termination of 1st party employees is in violation
of Section 25-F of I.D.Act, the employees were not gainfully
employed,. The Termination of services needs to be set-
aside. The employees deserves to be reinstated with 50 %
back wages. Accordingly I record my finding on Point No.2.
16. In the result, award is passed as under:—
"1. The action of the management of Cantonment
Executive Officer, Cantonment Board, Mhow (MP)
in termination the services of their workmen
Shri Pratap Singh and 10 others w.e.f. November 2003
is illegal.
2. IInd party is directed to reinstate 1st party employees
with 50% back wages.
R.B. PATLE, Presiding Officer
ubZ fnYyh] 26 fnlEcj] 2013
dkñvkñ 159.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj Mk;jsDVj] QkeZ
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dsUnzh; ljdkj dks 26-12-2013 dks izkIr gqvk FkkA
[Qk- la- ,y&42012@58@1996&vkbZvkj ¼Mh;w½]
ih-ds- os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 26th December, 2013
S.O. 159.—In pursuance of Section 17 of the
Industrial Dispute Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. CGIT/
LC/R/155/97) of the Central Government Industrial Tribunal
cum Labour Court, JABALPUR as shown in the Annexure,
in the Industrial dispute between the employers in relation
to the management of The Director, Farm Machinery
Training and Testing Institute, Sehore, which was received
by the Central Government on 26-12-2013.
[F. No. L-42012/58/1996-IR(DU)]
P. K.VENUGOPAL, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM -LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/155/97
PRESIDING OFFICER: SHRI R. B. PATLE
Smt.Ummi Bai,
S/o late Amir Khan,
Behind Rly.Station,
Godi Mohalla, Budni,
Sehore (MP)
..Workman
Versus
The Director,
Central Farm Machinery Training &
Testing Institute,
Tractor Nagar, PO Budni,
Distt. Sehore
..Management
AWARD
(Passed on this 13th day of June 2013)
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/
58/96-1R(DU) . The dispute under reference relates to:
"Whether the action of the management of Central
Farm Machinery Training and Testing Institute,
Budni in terminating the services of Smt. Ummi Bai,
W/o Late Amir Khan is legal and justified? If not, to
what relief the workman is entitled?"
2. After receiving reference, notices were issued to
the parties. 1st party workman submitted statement of claim
at Page 5/1 to 5/2. The case of the 1st party workman is that
she was employed by Ilnd party on daily wages as casual
labour in 1977. She continuously rendered services till year
1994. Her services were abruptly terminated. She had
worked for more than 240 days during each 12 months
preceding her termination. Her services were terminated
illegally. The management had adopted pick and choose
policy. Services of 24 employees were regularized. Out of
them Gulab, Shivlal and Narmada Prasad were of more than
70 years of age. Hiralal, Ashok Kumar, Suresh were junior
to the workman. Her services were deliberately discontinued
to accommodate those workmen. There was no justification
to discontinue her services. That her services are terminated
without notice in violation of Section 25-F, G & H of I.D.Act.
The workman prays for her reinstatement with
consequential benefits.
3. lInd party failed to appear even after notices issued
repeatedly. Ilnd party failed to submit Written Statement.
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
In Negative
the management of Central Farm
Machinery Training and
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
269
Testing Institute, Budni
in terminating . the services of
Smt. Ummi Bai, W/o Late Amir
Khan is legal.
(ii) If so, to what relief the workman
As per final order.
is entitled to?"
REASONS
5. 1st party workman is challenging her termination.
It is submitted that she was working on daily wages as
casual labour from 1977 to 1994. Her services were
terminated without notice, juniors were regularized, other
employees more than 70 years were regularized to
accommodate those persons. Her services were illegally
terminated. The management has not filed Written
Statement. 1st party workman filed her affidavit at Page
8/1 to 8/2. She has stated most of the facts stated in her
Statement of claim that she had completed 240 days
continuous service preceding her termination no notice
was issued to her. Other junior employees are regularized
namely Gulab, Shivlal , Narmada Prasad, Hiralal, Ashok
Kumar and Suresh. The evidence of the workman remained
unchallenged. Ilnd iparty not participated in the reference.
From evidence on record, the termination of services of 1st
party workman is proved illegal. For above reasons, I record
my finding in Point No. 1 in Negative.
6. Point No.2- In view of my finding on Point No.1,
the termination of services of 1st party workman is illegal.
It is in violation of Section 25-F, G of I.D. Act. the workman
was working on daily wages as casual labour in 1994. Her
affidavit of evidence shows her age 55 years in 2007. The
workman must have completed 60 years age in the year
2012. She was not in employment since 1994 therefore the
relief of reinstatement cannot be allowed. Reasonable
compensation would be proper. Considering the length of
service rendered by 1st party workman, compensation of
Rs. I Lakh would be proper. The workman had completed
17 years service. The workman is entitled to retrenchment
compensation 15 days for each year of her completed
service. Thus she is entitled to retrenchment compensation
for 8 months 15 days and notice pay one month. Thus the
workman is entitled to total wages of 9 months 15 days.
The rate of wages is not stated in her statement of claim.
Therefore the amount needs to be paid @ last wages paid
to them.
7. In the result, award is passed as under:—
(i) Termination of services of 1st party workman
Smt. Ummi Bai, wife of Late Amir Khan by the
management of Central Farm Machinery Training and
Testing Institute, Budni is illegal.
(ii) Ilnd party is directed to pay compensation Rs. 1 Lakh,
notice pay for one months wages, retrenchment
compensation for 8 months 15 days at the rate of
wages last paid to the workman.
Amount as per above order shall be paid to workman
within 30 days. In case of default, amount shall carry 9 %
interest per annum from the date of award till its realization.
R.B. PATLE, Presiding Officer
ubZ fnYyh] 26 fnlEcj] 2013
dkñvkñ 160.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa] dsanzh; ljdkj phQ tujy
esustj] fMikVZesaV vkWQ+ VsfydkWe Hkksiky ,aM vnlZ ds izcaèra= ds
lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqcaè esa fu£n"V
vkS|ksfxd fookn esa dsanzh; ljdkj vkS|ksfxd vfèdj.k tcyiqj ds
iapkV ¼lanHkZ la[;k lhñthñvkbZñVhñ@,yñlhñ@vkjñ@88@2001½ dks
izdkf'kr djrh gS] tks dsanzh; ljdkj dks 26&12&2013 dks izkIr gqvk
FkkA
[Qkñ lañ ,y&40012@33@2001&vkbZvkj ¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vfèdkjh
New Delhi, the 26th December, 2013
S.O. 160.—In pursuance of Section 17 of the
Industrial Dispute Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. CGIT/
LC/R/88/2001) of the Central Government Industrial
Tribunal cum Labour Court Jabalpur as shown in the
Annexure, in the Industrial dispute between the Chief
General Manager, Deptt. of Telecommunication, Bhopal &
others and their workman, which was received by the Central
Government on 26-12-2013.
[F. No. L-40012/33/2001-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
No. CGIT/LC/R/88/2001
Presiding Officer: SHRI R.B. PATLE
Shri Jai Prakash Bharati,
R/o Village Manda,
Post Rasda,
Tehsil Rasda,
Distt. Balia
...........Workman
Versus
Chief General Manager,
Deptt. Of Telecommunication,
Hoshangabad Road
M.P. Circle,
Bhopal (MP)
270
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
The General Manager,
Telecom, CTO Building,
T.T.Nagar,
Bhopal (MP)
...Management
AWAR D
(Passed on this 26th day of June 2013)
As per letter dated 27-4-2001 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-
40012/33/2001/IR(DU). The dispute under reference relates
to:
"Whether the action of the management of Chief
General Manager Telecom, Bhopal in terminating the
services of Shri Jaiprakash Bharati S/o Shri Shiv
Muniram w.e.f. March 1992 is justified? If not, to
what relief the workman is entitled?"
2. After receiving reference, notices were issued to
the parties. Ist party submitted statement of claim at Page
2/1 to 2/12. The case of Ist party workman is that he was
employed in Railway Electrification Project, Telecom deptt.
as casual labour from 1-1-86 to December 92. He had
received letter dated 9-9-92 and as he was engaged in Jan-
86 he could not be retrenched. That he had submitted
application dated 20-1-94. He further submits that several
circulars for regularization granting temporary status to
those employees were issued covering the employees
working as casual labours upto 26-6-88. The said circular
was in consonance to the directions issued by the Apex
Court. That the services of Ist, party workman were
discontinued from December 1992.
3. Ist party further submits that he had worked for
240 days during all the calendar years. His services were
terminated without issuing notice or paying retrenchment,
compensation. Retrenchment is in violation of Section 25-
F of I.D. Act. The workman has also referred to ratio held in
various cases by Apex Court and principles laid down about
Casual labours and their regularization/absorption in
service. That Section 25-F, N were violated and the workman
was discriminated other employees were retained in service.
That some employees had filed original application 411/90
before CAT, Jabalpur as per order dated 28-8-95 in case of
Dhaniram Meena and others, other services were
regularized. Workman further refers to the scheme for
regularization of Telecom Department in 1989 is provided
casual labours be granted temporary status regularization
etc. considering other aspects including age relaxation etc.
Such employees were to be absorbed in Grade D again.
The details are also given with respect of temporary status
who completed 240/206 days in an year, that engagement
was to be on need basis. The workman submits that in case
of Brij Kishore in W.P.No. 1041/88 principles laid down was
all casual employees who had referred continuous service
one year and who had been engaged for work for 240 days
in calendar year were regularized. The ratio held in various
cases were also referred by the workman and he submits
that termination of services is in violation of Section 25-F
of I.D. Act. He was denied regularization as per scheme.
His services were illegally terminated including the cut off
dated 22-6-88 instead of 30-3-85. Workman prays for setting
aside termination order and he may be reinstated with full
back wages.
4. IInd party filed reply at Page 15/1 to 15/3. IInd
party submits that Railway Electrification project was short
term project. It was temporary at short period. The office of
director of Telecom Electrification has been closed. Other
contentions of workman are denied. The documents
produced by workman are contradictory as he claims to be
suffering from illness. At next stage he claims to be still
working. He further submits that workman was engaged
purely on casual basis. Therefore his services could not be
regularized. The circulars were issued by Non-applicant
for regularization and award of temporary status to casual
labours are not applicable in case of workman. IInd party
denies that service of workman were abruptly discontinued
from December. 90 in violation of Section 25-F of I.D. Act.
According to IInd party provisions of I.D. Act is not
applicable in the matter. It is submitted that in view of
judgment in case of Secretary, State of Karnataka and others
versus Uma Devi and others, workman is not entitled to
regularization of the service as he was engaged on daily
wages temporarily on contractual basis. He has no right to
be absorbed.
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 Chief General
Manager Telecom, Bhopal
in terminating the services of
Shri Jaiprakash Bharati
S/o Shri Shiv Muniram w.e.f.
March 1992 is legal?
(ii) If so, to what relief the
As per final
workman is entitled to?"
orders.
REASONS
6. Ist party workman is challenging legality of his
termination from service. He submits that his services are
terminated in violation of Section 25-F, N of I.D. Act. he
was working with IInd party during 1-1-1986 to December
1992. He has continuously worked for 240 days during
each of the year of his service. IInd party denied above
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
271
contentions of the workman. IInd party submits that
workman was engaged as casual labor. He has not
completed 240 days continuous service. He is not entitled
to regularization. The contentions of the workman w.e.f.
circulars issued for regularization of casual employees is in
1989. IInd party submits that those circulars are not
applicable to present case. Workman has not completed
240 days continuous service. The parties are in dispute
about termination of his service in December 1992. The
document Exhibit W-1 produced by the workman shows
that as he was engaged in January 1986 and was not working
prior to 30-3-85, no permission can be granted to continue
him on work. Said letter also finds reference of application
submitted by workman dated 10-7-92. To be precise,
document Exhibit W-1 doesnot clearly speak about
termination of the service of the workman. It is reply to the
letter dated 10-7-92 given by workman. Certain benefits
claimed by him as per rules were denied. The Written
Statement filed by IInd party is silent as to when services
of Ist party workman were discontinued. Even it is not
stated by witness of IInd party Shri Pandey as to when
services of Ist party workman were discontinued. The
argument advanced by the learned counsel for IInd party
Mr. Kapoor that services of workman were discontinued
prior to 10-7-92 finds no support from the affidavit of
management's witness Shri Pandey. On the other hand, the
workman in his affidavit of evidence has stated that his
services were discontinued in December 1992. That he was
working as casual labour with IInd party from Jan. 1986. In
his cross-examination, he has stated that he was working
with IInd party till December 1992. Evidence of workman
on the above point is not shattered in cross-examination.
Rather the point is not confirmed in his evidence in
Para-15. The evidence of workman that his services were
terminated in violation of Section 25-F is also not shattered.
Any question is not asked to workman in his cross-
examination, neither it is case of IInd party that provision
of Section 25-F was complied, notice was issued or
retrenchment compensation was paid to the workman.
7. Learned counsel for IInd party Mr. Kapoor submits
that workman has not worked for 240 days. The
documentary evidence is not produced. Burden lies on the
workman is not discharged by him. The evidence requires
to be tested by probability. That written Statement filed by
IInd party and evidence of the management is silent that
after 1-1-86, at any time services of workman were
discontinued or any break was given. It presumes
continuity of service and therefore I donot find reason to
disbelieve the evidence of workman that he continuously
worked as casual labour from 1-1-86 to December 1992.
8. The evidence of management witness
Shri A.K. Balpandey is merely by way of denial that the
workman was engaged purely on casual basis. He is not fit
for regularisation in deptt. of BSNL as per scheme
circulated. In his cross-examination, management's witness
says from 1-9-92, he was working BSNL department, he
doesnot know the workman. Workman was not appointed
by him neither terminated by him. He was unable to tell
whether order of termination was issued or not. He further
says that when project is terminated, all the employees in
such project are also terminated. He was unable to tell
whether notice of termination was given or retrenchment
compensation was paid to workman. That he has not
produced any documents. That the workman had not
worked for 240 days during any of the year. The witness
says that attendance sheet or any record is not available.
In absence of such record, how the evidence of witness
that the workman had not worked for 240 days cannot be
believed. It is a case of withholding the record about
working days of workman. In his further crass-examination,
management's witness says that Gafar Khan, Nagesh,
Laddu, Ramnaresh, Dhaniram, Mangilal and Tarwat Singh
were absorbed in the service he cannot say. Thus the
management's witness has absolutely no knowledge about
the affairs of the office and his evidence is not worth to
place reliance.
9. Workman has produced documents. Document
Exhibit W-2 about absorption of casual labours for 14117
posts. Para-2 of the guidelines relating to eligibility shows
that full time casual labours who have put in a service of
atleast 240 days per year in any two years prior to 31-3-87
were eligible for absorption. In document W-3, instruction
were given for absorption of daily rated casual labours as
per judgment by Supreme Court dated 27-10-87. Document
Exhibit W-4 letter issued by Director, in para-2 finds cut off
date for absorption is 22-6-88. The services of the 1st party
are discontinued in December 1992. He was working with
IInd party from 1-1-86. Thus it is clear that on 22-6-88, he
was working on establishment of IInd party as casual
employee.
10. Document Exhibit W-5 is judgment by Hon'ble
CAT, Jabalpur in Original application 411/86. Para-7 refers
to scheme for casual labours, . grant of temporary status.
The Written Statement filed by IInd party is imagive merely
saying that the circulars are not applicable. Cut off date
was 22-6-88. Management of IInd party has absolutely not
submitted any reason why benefit of regularization scheme
was not given to the workman. The letter Exhibit W-1 shows
that the workman was not in employment on 31-3-1985 and
therefore as per rule he could not be retrenched. It is
contrary to the cut off date 22-6-88 in document Exhibit
W-4,5. Other employees were regularized as per judgment
in Original application No. 411/86. The present workman
was illegally denied benefit of regularization rather when
he tried to claim the benefit as per letter dated 10-7-92, he
was denied benefit. Therefore the act of management is
apparently illegal. Provisions of 25-F were not complied
while terminating workman from service.
11. Learned counsel for management relies on ratio
held in case of Bharat Sanchar Nigam Limited, Jammu versus
272
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
Teja Singh reported in Civil Appeal No. 292 of 2009 referring
ratio held in case of State of Karnataka and Others Versus
Umadevi & Others, it was observed that deem it proper to
clarify that the comments and observations should be read
as obiter and the same should neither be treated as binding
by the High Courts.
The facts of present case are not comparable as the
scheme for regularization of casual labours was framed by
the department in pursuance of directions of Hon'ble Apex
Court. The workman is entitled to benefits of the scheme
for regularization 1989. It was illegally denied to the
workman.
12. For the same reasons, ratio held in
"Case of Krishna Bahadur versus Purna Theatre and
others reported in 2004(8) Supreme Court Cases-229
cannot be applied to case at hand. The ratio held in
above cited case deals with the waver of statutory
rights. In present case, it is no body's case that the
workman has waved his statutory right. Para-12 of
the judgment refers to provisions of Section 25-F
has been held to be mandatory before retrenchment
of workman. There is no evidence about its
compliance by IInd party."
13. Learned counsel for IInd party relies on ratio held
in case of State of M.P Versus Bhairav Prasad Mishra
reported in
"2009(1)M.P.H.T.73(CG). Their Lordship dealing with
benefit of Section 25-F of I.D. Act observed services
of respondent workman was discontinued by oral
order. Labour court holding that he had worked for 3
months from Ist April to 30th June in every calendar
year and for more than 240 days during the entire
period from 1981 to 1988 gave him benefit of Section
25-F of Industrial disputes Act. Their Lordship held
workman should have worked for not less than 240
days in the preceding year and not by taking into
consideration his entire service to entitle him to
benefit of Section 25-F of I.D. Act, directing
reinstatement of the respondent with full back wages
giving him benefit of Section 25-F of I.D. Act."
Terms of reference shows that the services of
workman were terminated in March 1993. The learned
counsel Mr. Kapoor submits that the Period of 12 months
is calculated from March 93 — 240 days continuous
working cannot be established. The pleadings in Written
Statement filed by IInd party, nothing is pleaded when
services of workman were terminated. On the other hand,
workman has pleaded in Statement of claim that his services
were discontinued from December 1992. It is not specifically
denied. Thus the evidence of workman that his services
were discontinued from December 92 is also not shattered
in his cross-examination. Though the terms of reference
shows that the termination of services of workman was
from March 92, evidence on record shows that his services
were discontinued from December 92. There is no evidence
that prior to his discontinuation of service, workman was
given any kind of break or his services were discontinued
prior to his termination of service in December 1992. The
evidence discussed is cogent that he was working for 240
days during each of the year and therefore the ratio held in
above case cannot be applied to the present case at hand.
14. From above reasons, it is clear that instead of
regularizing services of workman as per the scheme of 1989,
his services were terminated in violation of Section 25-F of
I.D. Act is illegal. Therefore I record my finding on Point
No.1 in Negative.
15. Point No. 2-As to point No. 2, in my finding in
Point No.1 that termination of services of workman is illegal,
question arises as to what relief workman is entitled?
Workman is out of employment from December 1992. There
is no evidence that he is in gainful employment. The
evidence of management's witness are silent on above
point. The evidence of workman is also silent about survival
and what he is doing all those years. An able body person
cannot be supposed to remain idle for such a long period
of time. Keeping above aspects in view, it would be
appropriate to reinstate workman allowing benefit of
regularisation as per scheme of 1989 and back wages 25%
to meet the ends of justice. According I hold.
16. In the result, award is passed as under:—
1. Action of the management of Chief General Manager
Telecom, Bhopal in terminating the services of
Shri Jaiprakash Bharati S/o Shri Shiv Muniram
w.e.f. March 1992 is legal.
2. Mangement is directed to reinstate workman and
regularize him in service as per Regularisation Scheme
1989 with 25% back wages.
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 161.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa] dsanzh; ljdkj VsyhdkWe fMlfVd
eSustj] lkxj ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds
chp] vuqcaè esa fu£n"V vkS|ksfxd fookn esa dsanzh; ljdkj vkS|ksfxd
vfèdj.k] tcyiqj ds iapkV ¼lanHkZ la[;k lhñthñvkbZñVhñ@
,yñlhñ@vkjñ@16@2003½ dks izdkf'kr djrh gS] tks dsanzh; ljdkj
dks 26&12&2013 dks izkIr gqvk FkkA
[Qkñ lañ ,y&40012@92@2002&vkbZvkj ¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vfèdkjh
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
273
New Delhi, the 26th December, 2013
S.O. 161.—In pursuance of Section 17 of the
Industrial Dispute Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. CGIT/
LC/R/16/2003) of the Central Government Industrial
Tribunal-cum-Labour Court, Jabalpur as shown in the
Annexure, in the Industrial dispute between the Telecom
District Manager, Sagar and their workman, which was
received by the Central Government on 26-12-2013.
[F. No. L-40012/92/2002-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
No. CGIT/LC/R/16/2003
Presiding Officer: SHRI R.B. PATLE
Shri Raju Prasad Tiwari,
S/o Shri Rameshwar Prasad Tiwari,
C/o Shri Ram Kumar Purohit,
Behind Punjab Bank, Shastri Ward,
Bina, Sagar (MP)
....Workman
Versus
The Telecom District Manager,
Sagar (MP)
....Management
AWARD
( Passed on this 26th day of June 2013 )
1. As per letter dated 6-8/1/2003 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/
92/2002- IR(DU). The dispute under reference relates to:
"Whether the action of the management of Telecom
District Manager, Sagar (MP), Deptt of Telecom now
converted into Telecom District Manager, Sagar
(MP), Bharat Sanchar Nigam Limited in terminating
the services of Shri Raju Prasad Tiwari S/o Shri
Rameshwar Prasad Tiwari w.e.f. 30-12-87 (Dec. 87)
and not regularizing as regular employee is justified?
If not, what relief the workman is entitled to?"
2. After receiving reference, notices were issued to
the parties. Workman filed his statement of claim at Page 6/
1 to 6/4. Workman submits that he was working as casual
labour from 1-3-87 for the work of store drump and
dismentalling of Telephone Lines along Rail and a
certificate was issued by the Asstt. Manager, Telecom Rail
Electrification Project, Sagar. That he had completed 294
days service. His services were terminated without
complying provisions of I.D. Act. His repeated
representations were not considered. The IInd party was
claiming that it is not covered as an Industry. IInd party
adopts policy of use and throw. The other persons
appointed before 1988 were regularized. His services are
illegally terminated. The workman prays for his
reinstatement with consequential benefits.
3. IInd party filed Written Statement at Page 5/1 to
5/3. IInd party denies all contentions of the workman. It is
submitted that workman was not engaged by the
department. He had not worked for 240 days in the
department. It is submitted that casual labours are granted
temporary status as per Regularisation Scheme 1989. Prior
to 30-3-1985, continuing as casual workers on 7-11-89 and
who have completed 240 days in a year are treated as casual
labours. That applicant was not working as per requirement
of the scheme. He was not engaged between 31-3-85 to
22-6-88. He was not engaged as casual labours. Therefore
there was no question of compliance of Section 25-F,G,H of
I.D. Act. 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
Action
of
management of Telecom District
the management
Manager, Sagar (MP), Deptt of
is not proved
Telecom now converted into
illegal.
Telecom District Manager, Sagar
(MP), Bharat Sanchar Nigam
Limited in terminating the
services of Shri Raju Prasad
Tiwari S/o Shri Rameshwar
Prasad Tiwari w.e.f. 30-12-87 and
not regularizing him in service is
legal?
(ii) If so, to what relief the workman
Relief prayed by
is entitled to?
workman is
rejected."
REASONS
5. Workman challenging termination from service in
violation of Section 25-F of I.D. Act filed affidavit of his
evidence at page 8. However he failed to make available for
cross-examination. Management filed affidavit of witness
Shri R.G. Gohe. The workman failed to cross-examine him.
Thus the workman has not participated in reference
proceeding. He has not make available for this cross-
examination. Therefore his evidence cannot be relied upon.
The evidence of management's witness remained
unchallenged. I find no reason to disbelieve the evidence
of management's witness. Workman has failed to prove his
contention. Therefore, I record my finding that the action
of the management is not proved illegal.
274
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
6. In the result, award is passed as under:—
1. The action of the management of Telecom District
Manager, Sagar (MP), Deptt of Telecom now
converted into Telecom District Manager, Sagar
(MP), Bharat Sanchar Nigam Limited in terminating
the services of Shri Raju Prasad Tiwari S/o
Shri Rameshwar Prasad Tiwari w.e.f. 30-12-87 is not
proved illegal.
2. Relief prayed by workman is rejected.
R.B. PATLE, Presiding Officer
ubZ fnYyh] 26 fnlEcj] 2013
dkñvkñ 162.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa] dsanzh; ljdkj vkWfQlj&bu&
pktZ fefyVªh Msjh QkeZ] egq ds izcaèra= ds lac) fu;kstdksa vkSj
muds deZdkjksa ds chp] vuqcaè esa fu£n"V vkS|ksfxd fookn esa dsanzh;
ljdkj vkS|ksfxd vfèdj.k] tcyiqj ds iapkV ¼lanHkZ la[;k
lhñthñvkbZñVhñ@,yñlhñ@vkjñ@193@97½ dks izdkf'kr djrh gS] tks
dsanzh; ljdkj dks 26&12&2013 dks izkIr gqvk FkkA
[Qkñ lañ ,y&14012@04@1997&vkbZvkj ¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vfèdkjh
New Delhi, the 26th December, 2013
S.O. 162.—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/193/97) of the Central Government Industrial Tribunal-
cum-Labour Court, Jabalpur as shown in the Annexure, in
the Industrial dispute between the Officer-in-charge,
Military Dairy Farm, Mhow and their workman, which was
received by the Central Government on 26-12-2013
[F. No. L-14012/04 /1997-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/193/97
PRESIDING OFFICER: SHRI R.B. PATLE
Shri Kanhaiyalal,
S/o Shri Balli, Chowkidar,
Military Farm. Mhow,
Distt. Indore (MP)
....Workman
Versus
Officer Incharge,
Military Farm, Mhow,
Distt. Indore (MP)
....Management
AWARD
Passed on this 15th day of May 2013
1. As per letter dated 9-7-92 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-
14012/4/97-IR(DU). The dispute under reference relates to:
"Whether the action of the management of Military
Farm in terminating the services of Shri Kanhaiyalal
S/o Shri Balli w.e.f. 1-6-96 is correct 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 on
25-9-98. The case of 1st party workman is that he was
working as temporary chowkidar with IInd party
management No. 3 since 1990. His services were terminated
from 1-6-96 by oral order. He has submitted application
before ALC(C) Bhopal. The conciliation proceedings failed.
The reference are made by Government. It is further
submitted that termination of his service by oral order is
illegal. That the person who completed 240 days service
would be made regular. However the services were
terminated without any notice. Other persons completing
240 days were regularized. He prays for his reinstatement
with regularity of services.
3. IInd party management submitted Written
Statement at Page 6/1 to 6/4. It is submitted that the IInd
party is part of Military Farm. IInd party is discharging
sovereign functions of the State. It is not an industry as
held in the case of Bangalore Water Supply. The vacancies
are reporting to the Local Employment Exchange. List of
eligible candidate is called. After interview, by the
Committee, suitability of candidates is tested and the
appointment orders used to be issued to the successful
candidates. That no such procedure was followed while
engaging Ist party workman. That no back door entry could
be allowed. The services of Ist party workman cannot be
regularized. Several unemployed are in search of
employment. It is further submitted that the Ist party
workman was engaged as seasonal chowkidar in Grassbir.
After handing over the grassbir to contractor for
harvesting, work was not available. The workman was
offered alternative job at Mhow but he refused to join at
said place. IInd party management prays for rejection of
the claim.
4. Ist party workman filed rejoinder at Page 8/1 to 8/2.
It is reiterated that he had completed 240 days continuous
service. Said fact was admitted by IInd party before ALC(C),
Bhopal. Workman also prays for calling attendance register
known as R-17 and wages book. He submits that 11 out of
20 applicants were regularized from 15-1-96.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
275
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 Military Farm in
terminating the services of Shri
Kanhaiyalal S/o Shri Balli w.e.f.
1-6-96 is correct and justified?
(ii) If so, to what relief the
Relief prayed by
workman is entitled to?"
workman
are
rejected.
REASONS
6. That Ist party workman is challenging legality of
termination of his services. That he had completed 240
days continuous service. His services are terminated
without notice. He failed to adduce evidence and ex parte
order is passed on 5-6-08. Management filed affidavit of
evidence of its witness Shri Phagan Dass, S/o Shri
Harichand. Management's witness in his affidavit of
evidence has stated that the IInd party Dairy Farm is
commanded by a Farm Officer of the Indian Army who is
designated as Officer Incharge of the establishment of
Defence Forces to defend the territories of the country
from external aggregation is a primary and enable function
of a constitutional Government. The Military Farm is
responsible for supply of milk required for various units.
As per recruitment policy in the IInd party, it is necessary
to call names of the suitable candidates from employment
Exchange. After conducting interview, the successful
candidates are again subjected to medical examination and
then suitable candidates are appointed. Such procedure
was not followed while engaging workman. He was
temporarily engaged as per exigency of work. He has not
completed 240 days in the preceding year. The workman
was engaged as seasonal chowkidar in Grassbir. After
handing over grass to contractor, there was no need to
keep chowkidar. Ist party workman was also offered relevant
employment at Military Farm Mhow. However applicant
refused to go to Indore. The evidence of the witness of
IInd party remained unchallenged. So far as contentions of
IInd party that IInd party discharging sovereign functions
of Govt. cannot be accepted as Dairy Farm whether Ist
party workman was engaged cannot be said sovereign
function. However as the evidence on other points of
management's witness remained unchallenged, Ist party
has failed to adduce evidence to substantiate his
contentions. The action of the IInd party management
terminating services of Ist party workman cannot be said
illegal. Therefore I record my finding in Point No. 1 in
Affirmative.
7. In the result, award is passed as under:-
(1) Action of the IInd party management in terminating
the services of Shri Kanhaiyalal S/o Shri Balli w.e.f.
1-6-96 is legal.
(2) Relief prayed by workman is rejected.
R.B. PATLE, Presiding Officer
ubZ fnYyh] 26 fnlEcj] 2013
dkñvkñ 163.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa] dsanzh; ljdkj phQ tujy
esustj] fMikVZesaV vkWQ+ VsfydkWe Hkksiky ,aM vnlZ ds izcaèra= ds
lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaè esa fu£n"V
vkS|ksfxd fookn esa dsanzh; ljdkj vkS|ksfxd vfèdj.k tcyiqj ds
iapkV ¼lanHkZ la[;k lhñthñvkbZñVhñ@,yñlhñ@vkjñ@96@2000½ dks
izdkf'kr djrh gS] tks dsanzh; ljdkj dks 26&12&2013 dks izkIr gqvk
FkkA
[Qkñ lañ ,y&40012@78@2000&vkbZvkj ¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vfèdkjh
New Delhi, the 26th December, 2013
S.O. 163.—In pursuance of Section 17 of the
Industrial Dispute Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. CGIT/
LC/R/96/2000) of the Central Government Industrial
Tribunal cum Labour Court Jabalpur as shown in the
Annexure, in the Industrial dispute between the Chief
General Manager, Deptt. Of Telecommunication, Bhopal &
others and their workman, which was received by the Central
Government on 26-12-2013.
[F. No. L-40012/78/2000-IR(DU)]
P.K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/96/2000
PRESIDING OFFICER: SHRI R.B. PATLE
Shri Lukman Khan,
S/o Shri Nashir Khan,
R/o Moh.' Balbatpura,
Nr. Dargah,
Tahsil Narsinghgarh,
Distt. Rajgarh
....Workman
Versus
Chief General Manager,
Deptt. of Telecommunication,
Hoshangabad Road,
MP Circle, Bhopal (MP)
Telecom Distt. Engineer,
Rajgarh At Biaora,
Rajgarh (MP)
....Management
276
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
AWARD
(Passed on this 24th day of June 2013 )
1. As per letter dated 31-5-09 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/
78/2000/IR(DU). The dispute under reference relates to:
"Whether the action of the management of Chief
General Manager, Telecom in terminating the services
of Shri Lukman Khan S/o Nasir Khan w.e.f. December
96 is justified? If not, to what relief the workman is
entitled?"
2. After receiving reference, notice was issued to the
parties. 1st party workman submitted his statement of claim
at Page 2/1 to 2/4. The case of workman is that he was
initially appointed in 1992 in Telecom Department as casual
labour at Narsinghgarh, Distt. Rajgarh. Thereafter he
worked at different places with seniority and honesty. He
continued to Work in November 1996 without break. He
was appointed on permanent vacant post of labour. He
had completed more than 240 days continuous service in
each of the calendar year, was entitled to be regularized as
permanent employee. That his service was dismissed
without following statutory provisions, without assigning
any reasons. The action of IInd party management is
arbitrary and against principles of natural justice.
3. Workman further submits that he was posted at
Narsinghgarh Sub-Division. He was assigned duties of
maintaining the trunk line, testing and recording the register
and battery register are available with the applicant. That
he was engaged for work of permanent nature. That
terminating his service without assigning reasons is an act
of Victimisation. He is entitled for reinstatement with back
wages.
4. It is further submitted that he was not issued
showcause notice, provisions of Section 25 of I.D. Act
were not followed. Any enquiry not conducted against
him. Termination of his service amounts to illegal
retrenchment. On such grounds, he prays for his
reinstatement with consequential benefits.
5. Management filed Written Statement at Page 4/1
to 4/2 signed by counsel for the management. It is not
signed by any officer of IInd party. Ilnd party pleaded that
the workman was never engaged by it. The claim of
workman for regularization is baseless and privolous. That
no violation of I.D. Act was committed by IInd party.
Workman was engaged as casual labour for specific work.
As the specific work was finished, his work was
automatically discontinued. There is no question of giving
one month's notice or payment of retrenchment
compensation. Workman never completed 240 days
continuous service preceding the termination. IInd party
prayed for rejection of claim of workman.
6. Considering pleadings on record, the points which
arise for my consideration and determination are as under.
My findings are recorded against each of them for the
reasons as below:—
"(i) Whether the action of the
In Negative
management of Chief General
Manager,
Telecom
in
terminating the services of Shri
Lukman Khan S/o Nasir Khan
w.e.f. December 96 is legal?
(ii) If so, to what relief the
As per final order
workman is entitled to?"
REASONS
7. Workman is challenging termination of service by
IInd party. The claim of Ist party workman is denied by IInd
party by filing reply. Written Statement signed by
management's counsel. The reply filed by management
cannot be said legal pleading as it doesnot bear signature
of any responsible officer of the lInd party. Workman filed
affidavit of his evidence stating that he was engaged by
Ilnd party as casual labour in 1992 and discontinued from
December 1996. That he had completed 240 days
continuous service, he was not given notice pay, not given
retrenchment compensation. Provisions of Section 25-F of
I.D. Act are violated. Termination of his service is illegal. In
his cross-examination, workman says that he has no
knowledge about advertisement being published at the
time of his appointment. He claims ignorance whether his
name was sponsored through Employment Exchange. He
did not remember whether he had submitted application
for appointment to the officer of IInd party. That oral
interview was taken by Junior Engineer Shrivastava. He
was required to do the work of installing telephone box,
laying of the telephone cables, opening exchange for
installing telephone connection of customers. That the work
done by him were of technical nature. He had received
training. He was doing all the work by getting experience
and learning from the seniors. That he had worked during
1987 to 1989, 1992 to 1996. He worked at Shajapur,
Narsinghgarh. He was working under one Mr. Nasir Babu
during the period June 1995 to December 1995. That he
was provided spade and ropes for his work. He was paid
wages as per muster roll for working days. At fag end of
his cross-examination, he says that he was engaged for
special skill. He denied suggestion that he had not
completed 240 days working. Those suggestions was given
to the workman that he was engaged for special work. Any
document about such scheme are not produced. There are
no clear feelings about such claim in reply filed by
management. The management filed affidavit of its witness
Ramjani Khan. His affidavit of evidence also doesnot show
the details of special work in which the workman was
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
277
engaged. Management's witness has stated that workman
was engaged as casual labour by management for specific
work. His services were automatically discontinued. The
details of the specific work is not given in his application.
8. Workman had filed application Pg.7 of record for
production of documents, attendance register, muster roll,
Kachha muster roll of a Deora, Rajgarh where workman
worked in 1992 to 1996. IInd party has replied at Page 13
and contented that no attendance register is maintained
by the management of IInd party. Where such documents
are not maintained by management, the workman cannot
be accepted to produce such documentary evidence to
substantiate his claim. Therefore I do not find reason to
disbelieve the evidence of workman that he was
continuously working with management of IInd party
from1992 to 1996. The services of workman are discontinued
without issuing notice, or paying retrenchment
compensation. Provisions of Section 25 of I.D. Act are
violative by management. Therefore action of the
management is illegal. For above reasons my finding in
Point No.1 is in Negative.
9. Point No. 2—As to Point No. 2, in view of my
finding in Point No.1, discontinuance of service of workman
is in violation of Section 25 of I.D. Act. Question arises to
what relief the workman is entitled. The evidence on record
doesnot show that any advertisement was issued and name
was sponsored through Employment Exchange. The
workman was engaged as casual labour, he was working
for short period from 92 to 96 about 5 years. The
reinstatement of workman would not be justified as he is
out of employment for long period of more than 17 years.
The compensation of Rs. 1 Lakh would be appropriate with
one Months notice pay and retrenchment 2 months 15
days ( 15 days each of 5 years service).
10. Accordingly the award is passed as under:—
1. Action of the management of Chief General Manager,
Telecom in terminating the services of Shri Lukman
Khan S/o Nasir Khan w.e.f. December 96 is illegal.
2. IInd party is directed to pay compensation of Rs.1
Lakh, one month's notice pay and one month, 15 day
retrenchment compensation at the rate of last wages
paid to the workman.
The amount as per above order shall be paid within
30 days from the date of award. In default, the said amount
shall carry interest @ 9% per annum from the date of award
till its realization.
R. B. PATLE, Presiding Officer
ubZ fnYyh] 26 fnlEcj] 2013
dkñvkñ 164.—vkS|ksfxd fookn vfèfu;e 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj fgUnqLrku QksVks
fQYEl fofuekZ.k lg fyfeVsM ds izcaèra= ds laca) fu;kstdks 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;] psUubZ ds iapkV
¼lanHkZ la[;k 35@2011½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks
26@12@2013 dks izkIr gqvk FkkA
[Qkñ lañ ,y&42012@239@2010&vkbZvkj ¼Mhñ;wñ½]
ihñ dsñ os.kqxksiky] vuqHkkx vfèdkjh
New Delhi, the 26th December, 2013
S.O. 164.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No.35/2011)
of the Central Government Industrial Tribunal/Labour
Court, Chennai now as shown in the Annexure in the
Industrial Dispute between the employers in relation to the
management of Hindustan Photo Films Manufacturing Co.
Ltd. and their workman, which was received by the Central
Government on 26/12/13.
[F. No. L-42012/239/2010-IR(DU))
P. K.VENUGOPAL, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL- CUM - LABOUR COURT
CHENNAI
Thursday, the 2lst November, 2013
Present : K.P. PRASANNA KUMARI, Presiding Officer
Industrial Dispute No. 35/2011
(In the matter of the dispute for adjudication under
clause (d) of sub-section (1) and sub-section 2(A) of Section
10 of the Industrial Disputes Act, 1947(14 of 1947), between
the Management of Hindustan Photo Films Manufacturing
Co. Ltd. and their workman)
BETWEEN
Sri M. Ramakrishnan
:
1st Party/Petitioner
AND
The Senior Manager
:
2nd Party/Respondent
Hindustan Photo Films
Manufacturing Co Ltd.,
Indu Nagar, Udhaga-
mandalam, Nilgiris-643005
Appearance:
For the 1st Party/
:
Sri R. Sampath Kumar,
Petitioner
Advocate
For the 2nd Party/
:
M/s Aiyar & Dolia,
Management
Advocates
278
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
AWARD
The Central Government, Ministry of Labour and
Employment vide its Order No.L-42012/239/2010-IR (DU)
dated 15.04.2011 referred the following Industrial Dispute
to this Tribunal for adjudication.
The schedule mentioned in that order is:
"Whether the action of the management of Hindustan
Photo Films Co. Ltd., Udhagamandalam in terminating
the services of Sri M. Ramakrishnan, a workman w.e.f.
30.01.2001 is legal and justified? What relief the
workman is entitled to?"
2. After receipt of the Industrial Dispute this
Tribunal has numbered it as ID 35/2011 and issued notice
to both sides. Both sides have entered appearance through
their counsel and have filed their claim and counter
statement respectively.
3. The averments in the Claim Statement filed by the
petitioner are these :
The petitioner had joined the service of Hindustan
Photo Films Ltd. in the year 1978. From 1989 he was working
as Operator in Conversion Department. He was also an
active Trade Union leader and was dedicated to the welfare
of the employees. One Bellie working as Security Guard in
the Hindustan Photo Films Ltd. was bedridden since January
1999. He had authorized the petitioner to process his
medical claims and to receive the amounts on his behalf
from the company. Every bills of Mr. Bellie were
accompanied by authorization letters attended to by the
petitioner without any fault since January 1999. Amounts
were also handed over to Bellie either by the petitioner in
person or through the relatives of Bellie who were working
in the Company. On 25.08.2000 the 2nd Respondent
suspended the petitioner from service on the allegation
that the petitioner had fraudulently fabricated seven letters
of authorization by forging the signatures of Bellie to claim
the amount due on medical bills, obtained the amounts and
misappropriated the same. The petitioner approached the
Hon'ble High Court of Madras against the Suspension
Order. The High Court directed the Respondents to frame
charges, appoint enquiry officers and pass orders on merit
in accordance with the principles of natural justice. However
the 2nd Respondent ordered enquiry without framing any
fresh charge, on the basis of the earlier Charge Memo which
was not served on the petitioner and constituted an enquiry
committee. Though the petitioner objected to the
constitution of the enquiry committee and requested to
reconstitute the same, this was not allowed. The committee
conducted an enquiry and gave a finding that the petitioner
is guilty of the charges framed against him. On the basis of
the findings the 2nd Respondent sent a Show Cause Notice.
The petitioner had given an explanation to the notice.
However, the 2nd Respondent concurred with the findings
of the enquiry committee, found the petitioner guilty and
dismissed him from service by order dated 30.01.2001. The
petitioner filed Writ Petition before the Hon'ble High Court
for quashing the dismissal order. The petitioner later
withdrew the Writ Petition with liberty to raise an Industrial
Dispute before the Labour Court. It is accordingly the
dispute was raised. The enquiry was conducted against
the petitioner in violation of the principles of natural justice.
The findings of the enquiry is a perverse one. The petitioner
was victimized by the Respondents. The petitioner is
entitled to an order of reinstatement in service with full
back wages and other consequential reliefs.
4. The Respondents have filed Counter Statement
contending as below :
The petitioner has raised the dispute before the
Conciliation Officer only 9 years after the dismissal. For
this reason itself the petitioner is not entitled to any relief.
During August 2000, the Respondent Company had
received a complaint from Bellie, an employee of the
company that during August 1999 he had handed over
medical bills to the petitioner on the basis of the assurance
given by him that he would get payment from the Company,
but he had not received any amount. Bellie had informed
that he had not received medical reimbursement claims from
September 1999 to February, 2000 and that he had not given
any authorization letters to the petitioner to get
reimbursement of medical expenses. The records of the
company show that the petitioner had received medical
reimbursement claims on the strength of authorization
forms purported to have been issued by Belli. The petitioner
was suspended from service on 25.08.2000. A Charge Memo
was issued to the petitioner and an enquiry was conducted.
Enquiry Officers found the petitioner guilty of the charges.
The punishment of dismissal from service was imposed on
the petitioner by order dated 30.01.2001. The petitioner
had not raised any objection at the time of enquiry alleging
violation of principles of natural justice. The averment that
the enquiry was conducted in violation of principles of
natural justice is not correct. So also the allegation that the
finding of the enquiry committee is perverse is not correct.
The petitioner is not entitled to any relief.
5. The evidence in the case consists of documents
marked as Exs. W1 to Ex. W6 and Exs. M1 to Ex. 3. No oral
evidence was adduced by either side.
6. The Points for consideration are :
(i) Whether the termination of the petitioner from the
service of the Hindustan Photo Films Co. Ltd. is legal
and justified?
(ii) What is the relief to which the petitioner is entitled?
The Points
7. As could be seen from the Claim Statement itself
the petitioner has raised a contention that the domestic
enquiry against him was not conducted by the Respondents
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
279
in a fair and proper manner, that it was against the principles
of natural justice and that the finding is perverse. This
question has been considered as a preliminary point. By
order dated 21.05.2012 my predecessor has entered a finding
that the enquiry was conducted in a fair and proper manner.
8. In view of the above order probably, the parties
have not chosen to adduce any oral evidence. They have
produced documents pertaining to the enquiry. Both sides
now largely rely upon the proceedings of the enquiry to
put forth their respective cases.
9. The only question to be considered is whether
the evidence tendered during the enquiry proceedings make
out a case against the petitioner, whether he has actually
manipulated authorization letters in the name of Bellie,
obtained amount due to him by way of medical
reimbursement and appropriated the same. It could be seen
on going through the enquiry file that the management has
examined three witnesses and the petitioner too has
examined three witnesses including himself. In fact the
proceedings against the petitioner was started on the basis
of a letter that was written by Bellie to the Company
complaining that he has not received the amount due to
him by way of medical reimbursements though he has sent
the bills to the Company through the petitioner who is a
Union Leader. Bellie has stated in his letter dated 21.08.2000
that he had sent the medical bills to the petitioner earlier
and that subsequently when he met the petitioner in person
while he was in the vicinity of the company for taking
X-ray he had agreed to reach the house with the amount
but he has not complied with this promise. Bellie seems to
have written to the Company consequently requesting the
Company to pay the medical reimbursements to him. On
the basis of the letter of Bellie the Respondents have made
a preliminary enquiry by reaching the house of Bellie who
was still bedridden. It was on the basis of the facts revealed
by this Preliminary Enquiry that the petitioner was
suspended from service. Though the petitioner had
challenged the suspension order before the Hon'ble High
Court, the High Court had disposed the Writ Petition with
a direction that the enquiry against the petitioner should
be conducted in a fair and proper manner.
10. The material evidence in the enquiry is that of
Bellie, the employee who was allegedly cheated by the
petitioner by refusing to pay the medical reimbursement
claim made by him through the petitioner. During his
examination in the enquiry proceedings Bellie has stated
that he was bedridden, that he was undergoing treatment
and had made a claim for medical reimbursement. He has
stated that since he was bedridden he was not able to
present the medical reimbursement bills personally and
therefore he used to send his medical reimbursement claims
through one Rajan of Electrical Department to be handed
over to one Lingaraj who in turn was to hand it over to the
petitioner for follow up action with the finance division of
the Company. He had further stated that earlier to this
arrangement he had personally handed over some of the
medical claim bills to the petitioner. Before the enquiry
committee seven authorization letters which were allegedly
forged by the petitioner were produced. All these letters of
authorization were put to Bellie during his examination. He
has stated that except the authorization letter dated
22.09.1999, other authorization letters were not signed by
him. Bellie has also deposed that when he had gone to the
premises of his Company in November 1999 he had met the
petitioner and enquired him about the status of the medical
claim bills that have been given to him for follow-up. The
petitioner had told him that all the bills were cleared by the
Finance Division and that he would collect the money and
hand it over to him the next day. The petitioner did not turn
up at his residence on the next day. However, he had
continued to send his medical claim bills through Rajan of
Electrical Department who is his neighbour. Subsequently,
he had asked Lingaraj, another worker to enquire with the
petitioner about the position of his claim for medical
reimbursement. It was when he did not receive the money
that he had made the complaint with the Respondent. The
Company had informed him that the medical reimbursement
claims were disbursed on the basis of authorization letters
given by him. The copies of these letters were also sent to
Bellie. On verifying them he has returned Ex.M1 letter to
the Respondent stating that he did not give any such
authorization letters.
11. MW2 is the employee of the Respondent
Company who has stated that except the authorization letter
dated 22.09.1999 all other authorization letters referred to
in the enquiry proceedings were processed by him. He has
deposed that all these letters were brought to him by the
petitioner. After processing, he had handed over these
letters back to the petitioner for collecting the money
referred to in the letters from the Cashier.
12. MW3 who is the Cashier has deposed that all
the above authorization letters were handed over to him by
the petitioner and that he has made payments to the
petitioner on the basis of these letters.
13. It could be seen from the nature of evidence
given by the petitioner in the enquiry proceedings that the
petitioner himself has no case that he has not collected
money on the basis of the authorization letters. His case
seems to be that all the letters were signed by Bellie himself
and that the money received by him from the Cashier on
the basis of the letters were handed over to Bellie through
others.
14. There is the specific evidence given by Bellie
that none of the authorization letters other than the one
dated 22.09.1999 contain his signature. When these letters
were again put to him during his cross-examination he has
categorically stated that these were not signed by him at
all. Regarding the letter dated 22.09.1999, though in his
280
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
complaint to the Company he has referred to this also as
forged, he has stated during his examination that this
contains his signature. However, when it was again put to
him during his cross-examination he has expressed doubt
as to whether this is his signature itself. However, he had
no such doubt about the signatures purportedly his in the
other authorization letters. Except the interested version
given by the petitioner himself, there is no other evidence
to contradict this evidence given by Bellie. It is to be borne
in mind that it was when he failed to get any information
regarding the medical reimbursement claim put in through
the petitioner that he has written to the Company asking to
release the amount due to him. It was only thereafter it was
noticed that the amounts were already disbursed on the
basis of the authorization letters presented by the petitioner
before MW2. Apparently, Bellie has received the amounts
covered by his earlier claims. If not for the failure to receive
the amount it is unlikely that he would have made such a
complaint. The counsel for the petitioner had been referring
to a single sentence in the evidence of Bellie that he had
given bills and authorization earlier and he should naturally
expect the money for his earlier bills. The counsel has
argued on the basis of this that definitely authorization
letters were given by Bellie and these are the letters that
were presented by the petitioner before MW2. When the
whole evidence of Bellie examined as MW1 is taken into
account such an interpretation cannot be given to this
version. It is apparent from the evidence of MW1 that
even prior to the period of complaint he was entrusting
bills with others and getting amount. So such an
interpretation is not called for on the basis of this lone
statement given by MW1.
15. Before the enquiry committee the petitioner has
examined himself and two other witnesses to establish his
case that he has been duly making payment to MW1
whatever amount that were received by him. The other two
witnesses examined by him are his co-workers. DW1 in the
enquiry proceedings, one of the co-workers has deposed
that the petitioner used to give him closed covers to be
handed to MW1, Bellie and that Bellie also used to give
him closed covers to be handed over to the petitioner. He
has stated that the petitioner and also Bellie had told him
that the closed covers pertain to medical reimbursement
claim of Bellie. He has stated that other than himself one
Mr. Lingaraj, one Gokul and also the petitioner had been
meeting Bellie in connection with the medical reimbursement
claim. However, he does not know whether any of them
had given any money to Bellie by way of medical
reimbursement. During his cross-examination this witness
has stated that he does not remember in which period the
closed covers were handed over to Bellie. He then stated
that he never cross-checked the contents of the closed
covers and was never interested in doing this also.
16. DW2 is another co-worker who had deposed in
favour of the petitioner in the enquiry proceedings. This
witness has also deposed that Bellie used to hand over
covers said to be containing medical reimbursement bills
to be handed over to the petitioner or Mr. Lingaraj. The
petitioner or Lingaraj used to hand over closed covers said
to be containing medicines and those would be handed
over to the petitioner. He further stated that so far as medical
reimbursement money was concerned the petitioner or
Lingaraj used to pay the amount to him and also asked him
to count the money. He used to count it and then take the
money to Bellie. He stated that on 3 or 4 occasions he had
made payment to Bellie in this manner. According to him
Bellie never used to give any acknowledgement regarding
payment. He stated during his cross-examination that he
does not remember the month or year during which money
was paid. He then stated that the petitioner himself never
paid any money to him directly. The practice was that the
petitioner would pay money to Lingaraj or one
Muthukrishnan who in turn would hand over the money to
him to be handed over to Bellie.
17. It could be seen from the evidence of DW1 and
DW2 that even assuming that any transaction has passed
in between them and Bellie they are not very specific about
the period. Again, there is no case for DW2 that the
petitioner himself paid any money to him directly. Though
such was the case in the Chief Examination, he has given a
go-by to this during his cross-examination and has stated
that the petitioner did not pay any money directly. Again, if
payment by the petitioner through DW1 and DW2 both
were towards medical claims of Bellie it is unlikely that he
would have asked one of them only to count the money
and send the money in closed cover through the other.
18. What the petitioner has stated during the
examination of DW3 is that he has received amount from
the Cashier. According to him the moment he received the
money from the Cashier he used to hand over the same to
Lingaraj. He further stated that on 5 or 6 occasions he
himself handed over money personally to Bellie. He then
stated that if he does not have time and does not find
Lingaraj, he used to send money through other persons
like Rajan, Giridharan, Sundaran, etc. He has stated during
his cross-examination that he used to count the money in
front of the concerned persons before he handed over the
money to them in a cover. None of the witnesses including
the petitioner has stated during which period money was
handed over to the petitioner. Acknowledgement was never
obtained also. So in any case there is nothing to show that
the petitioner received the amount by way of medical
reimbursement towards the periods complained above. In
fact a perusal of the evidence of MW1 would show that
there is no reason to doubt about the credibility of this
witness. The circumstances under which the witness has
decided to make a complaint with the Company also requires
consideration in this respect. Alongwith this is the absence
of any credible evidence on the side of the petitioner during
the enquiry proceedings. There was every justification for
the enquiry committee to enter a finding of guilt against
the petitioner. The counsel for the Respondent has pointed
¹Hkkx II—[k.M 3(ii)º
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281
out that it is a case where the petitioner has raised a dispute
with a delay of 9 years. Though this contention will not
have any relevance in view of my findings that the finding
of the enquiry committee has justification, the question
still deserves consideration in view of the argument
advanced by the counsel for the petitioner regarding
proportionality in the punishment given. It is clear from the
case of the petitioner that he has been fighting the case
before the High Court before he withdrew the same and
decided to raise an Industrial Dispute. So the delay in raising
the claim shall not affect the petitioner.
19. Having found that the findings of the enquiry
committee need not be interfered with, the question now to
be considered is whether the punishment is not in
proportion to the gravity of the offence. The counsel for
the Respondent has referred to the decision DIVISIONAL
MANAGER, RAJASTHAN SRTC VS. KAMRUDDIN
reported in AIR 2009 SCC 2528 to support his argument
that this Tribunal need not interfere with punishment
imposed. The above was a case where a bus conductor
was found to be carrying passengers without ticket. Penalty
of termination of services was imposed by the appointing
authority. Interference of this punishment by the Labour
Court was set aside by the Apex Court
20. The above was a case where concerned worker
was continuously misappropriating money belonging to
the State by carrying passengers without ticket. In the
present case the petitioner has attained superannuation
during the enquiry proceedings. There is no allegation of
any malpractice by him earlier. When this aspect is taken
into account I am of the opinion that dismissal from service
which is the severe most punishment should not have been
imposed on him. Justice would have been meted out if the
punishment of Compulsory Retirement was imposed. I am
inclined to alter the punishment of the petitioner to one of
Compulsory Retirement from service.
21. Accordingly, the punishment imposed on the
petitioner is altered to one of Compulsory Retirement. The
petitioner will be entitled to all the benefits to which he will
be entitled on Retirement from service with effect from
30.01.2001.
22. The reference is answered accordingly.
K. P. PRASANNA KUMARI, Presiding Officer
Witnesses Examined:
For the 1st Party/Petitioner
:
None
For the 2nd Party/Management :
None
Documents Marked
:
On the petitioner's side
Ex.No. Date
Description
Ex.W1 15.01.2001
Enquiry Report into the charges
vide charge memo P1/4/2901 dated
30.08.2000 framed against the
petitioner.
Ex.W2 24.08.2000
Letter of Second Respondent to
Mr. S. Bellie.
Ex.W3 19.09.2000
Letter of Second Respondent to
the petitioner.
Ex.W4 02.11.2000
Letter of petitioner to 2nd
Respondent.
Ex.W5 06.11.2000
Letter of Second Respondent to
petitioner.
Ex.W6 -
Charge Sheet alongwith FIR in
Crime No. 169/2000 with
statements recorded under 160(1)
of Cr.P.C.
On the Management side :
Ex.No. Date
Description
Ex. M1 24.08.2000
Letter from S. Bellie to Respondent.
Ex.M2
-
Letters of Authorization/payment
order forms.
Ex.M3
-
Proceedings of Enquiry with
attachements.
ubZ fnYyh] 26 fnlEcj] 2013
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dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj {ks=h; funs'kd]
{ks=h; Je laLFkku 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;] psUubZ ds iapkV ¼lanHkZ la[;k 82@2011½
dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 26@12@2013 dks izkIr
gqvk FkkA
[Qkñ lañ ,y&42012@290@2010&vkbZvkj ¼Mhñ;wñ]
ihñ dsñ os.kqxksiky] vuqHkkx vfèdkjh
New Delhi, the 26th December, 2013
S.O. 165.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 82/2011)
of the Central Government Industrial Tribunal/Labour
Court, Chennai now as shown in the Annexure in the
Industrial Dispute between the employers in relation to the
management of The Regional Director, Regional Labour
Institute, Guindy. and their workman, which was received
by the Central Government on 26/12/2013.
[F. No. L-42012/290/2010-IR(DU)]
P. K. VENUGOPAL, Section Officer
282
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT
CHENNAI
Friday, the 8th November, 2013
Present : K. P. PRASANNA KUMARI, Presiding Officer
Industrial Dispute No. 82/2011
[In the matter of the dispute for adjudication under
clause (d) of sub-section (1) and sub-section 2(A) of Section
10 of the Industrial Disputes Act, 1947(14 of 1947), between
the Management of Regional Labour Institute and their
workmen]
BETWEEN
Sri D. Selvaraj
:
For the 1st Party/
Petitioner
AND
The Regional Director
:
2nd Party/Respondent
Regional Labour Institute
Guindy, Chennai
Appearance:
For the 1st Party/Petitioner
:
M/s M. Christopher,
K.C. Karl Marx,
Advocates
For the 2nd Party/Management :
M/s. S. Siva
Shanmugham,
Advocate
AWARD
The Central Government, Ministry of Labour and
Employment, vide its Order No. L-42012/290/2010-IR(DU)
dated 05.09.2011 referred the following Industrial Dispute
to this Tribunal for adjudication.
The schedule mentioned in that order is:
"Whether the action of the management of Regional
Director, Regional Labour Institute, Chennai in
terminating the services of Sri D. Selvaraj, Ex-Driver
w.e.f. 16.03.1994 is legal and justified? What relief
the workman is entitled to?"
2. After the receipt of the Industrial Dispute this
Tribunal has numbered it as ID 82/2011 and issued notices
to both sides. Both sides have entered appearance through
their counsel and have filed their claim and counter
statement respectively.
3. The case that is put forth in the Claim Statement
is this:
The petitioner was called for interview for the post
of Driver with the Respondent institution and was posted
as Driver on temporary basis by order dated 23.07.1990. He
had been in employment with the Respondent continuously
from 24.07.1990 to 15.03.1994 except for the artificial break
of three days on occasions. The petitioner had submitted
representation to the Respondent to regularize his
employment. Instead of regularizing him the Respondent
had terminated the services of the petitioner. The petitioner
had been working in a regular post with the respondent.
He has been terminated from service without due process
of law. The artificial break-ups in the service of the petitioner
cannot be taken into consideration for computing the
continuous service. The petitioner has worked for more
than 480 days within 48 consecutive months. The
Respondent did not give any reason for termination. Even
assuming that the termination amounts to retrenchment
the Respondent did not comply with Section-25F of the ID
Act.
An order may be passed directing the Respondent
to reinstate the petitioner in service with full back wages
and other attendant benefits.
4. The Respondent has filed Counter Statement
contending as follows:
The petition is not maintainable either in law or on
facts. The Regional Labour Institute, Chennai is not an
industrial establishment as defined in Section-2 of the
Industrial Disputes Act. No industrial activity of any kind
is undertaken in this institute. It is a centre for research,
training and consultancy on the various aspects of
industrial safety and health. In the Regional Labour
Institute, there are two posts in the grade of Driver One of
the two Drivers was under suspension. The petitioner was
appointed as Driver on adhoc basis from 24.07.1990 through
Employment Exchange against the vacancy caused due to
suspension of the regular incumbent. Since the suspension
of one of the Drivers continued the adhoc appointment of
the petitioner continued with periodical breaks. The regular
incumbent was exonerated by the Court and was reinstated.
The service of the petitioner was terminated on 15.03.1994,
prior to the reinstatement of the regular incumbent.
Challenging the termination the petitioner had approached
the Central Administrative Tribunal, Chennai. The Tribunal
had directed the Respondent to give a speaking order giving
reasons for the termination of the petitioner. As directed
by the Tribunal the Respondent terminated the services of
the petitioner by order dated 03.05.1994 giving reasons for
termination. This order was challenged by the petitioner
before the Tribunal. The Tribunal dismissed the petition.
After this the petitioner had filed another petition before
the Central Administrative Tribunal, against the
Respondent to prevent it from calling candidates from the
¹Hkkx II—[k.M 3(ii)º
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283
Employment Exchange for filling up the vacancies to the
post of Drivers and to direct the Respondent to appoint
the petitioner for the post of Driver. This petition also was
dismissed. He filed a writ Petition before the Hon'ble High
Court of Madras challenging this order and this also was
dismissed. It is after this he had filed a petition before the
Assistant Labour Commissioner with a request for
reinstatement with back wages and other' benefits. This
too was decided against the petitioner. He again
approached the Hon'ble High Court. As directed by the
Hon'ble High Court, the Asstt Labour Commissioner
conducted conciliation proceedings. On failure of
conciliation the matter was referred to this Tribunal The
appointments of the petitioner were for a specific period of
four months only purely on adhoc basis and not on regular
basis. He was never appointed continuously for more than
4 months. The petitioner is not entitled to any relief.
5. The evidence in the cases consists of the oral
evidence of WW1 and MW1 and documentary evidence
consisting of Ex. W1 to Ex. W50 and Ex. M1 to Ex. M8.
6. The Points for consideration are :
(i) Whether there was any justification in the termination
of the services of the petitioner by the Respondent?
(ii) What is to the relief to which the petitioner is entitled?
The Points
7. It could be seen on going through the Claim
Statement and the Counter Statement that the facts of the
case are not much in dispute. Admittedly, the petitioner
was appointed as Driver by order dated 23.07.1990 on the
vacancy that has arisen consequent to the suspension of
a regular employee. The petitioner has continued in service
with the Respondent as Driver until 15.03.1994 on which
date he was terminated from service. Within this period
several appointment orders were given to the petitioner, all
these appointments being for a period of 4 months. The
case of the petitioner is that he was working continuously
except for the artificial break-up of 3 days each in between
these appointments. According to him his termination is
not legal.
8. Before going into the main issue in the case it is
necessary to consider the contention of the Respondent
that the Regional Labour Institute is not an industrial
establishment as defined under the Industrial Disputes Act
and as such it does not come under the purview of the
Industrial Disputes Act. According to the Respondent, the
Regional Labour Institute is a Centre for Research, Training
and Consultancy on various aspects of industrial safety
and health catering to the needs of the Southern regional.
According to the Respondent, no industrial activities are
going on in the Institute. The activities are intended to
improve work methods and working conditions so as to
enhance the safety, health and productivity of industrial
workers in general their quality of life, etc. The counsel for
the petitioner has argued that even such establishments
will come under the definition of the term industrial
establishment as defined in the Industrial /Disputes Act
and therefore it will come under the purview of the Act
also. The Apex Court in the case of Ahmadnagar Textile
Research Assciation reported in 1960 2 LLJ 720 has held
that the Research Association was establishment to carry
on the research with respect to textile industry jointly for
the benefits of its members by discovery of processes of
manufacture with a view to secure greater efficiency,
rationalization and reduction of post and therefore the
activity done therein is an industry. Subsequently, the Apex
Court has again held in the decision Bangalore Water
Supply and Sewerage Board Vs. Rajappa reported in 1978
AIR SCC 548 that research institutes albeit run without
profit motive are industries. This observation of the Apex
Court still holds good. The Regional Labour Institute is an
establishment of the kind referred to in the above decisions.
So the activity going on in the Regional Labour Institute
also will come under the definition of the term industry as
defined in the Industrial Disputes Act and therefore any
dispute arising between the Institute and the workers
therein will be an Industrial Dispute coming under the
purview of the Industrial Disputes Act. So the contention
raised by the Respondent in this respect is only to be
rejected.
9. Coming to the main issue now, the concerned
Court had exonerated the regular employee from the charge
against him and directed him to be reinstated in service. It
was prior to his reinstatement the service of the petitioner
has been terminated so as to give room for the reinstatement
of the regular incumbent. Before approaching this Tribunal
the petitioner had approached other forums including the
Hon'ble High Court of Madras in his effort to continue in
the service of the Respondent. Ext.M2 is the order of the
Central Administrative Tribunal, Madras Bench in OA
No. 412/94 directing the Respondent to dispose of the
representation of the petitioner by a speaking order giving
reasons for the termination. Ext.M3 is the order of
termination giving reasons. The petitioner had again
approached the Central Administrative Tribunal. Ex.M4 is
the copy of the order in OA No. 542/1995 filed by him
against his termination. The Administrative Tribunal has
found that the order of termination has been issued out of
necessity and that the petitioner's case could not be
considered favourably in the absence of vacant post. Ex.M5
is the copy of the order in OA 1085/96 filed by the petitioner
in his attempt to stall appointment of Drivers by the
Respondent through Employment Exchange. This was also
dismissed. He then approached the Hon'ble High Court for
an order that he should be considered and appointed as
Driver in the Office of Deputy Director, Inspector of Dock
Safety, Madras. This petition was also dismissed with the
observation that there is no vacancy for the post of Driver
284
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
in the Office of the respondent or the R3, the Inspectorate
of Dock Safety and that if such vacancy should arise in
future the case of the applicant may be considered having
regard to the fact that he had worked for some years in the
Office of the Respondent herein. Thus it could be seen
that all the attempts made by the petitioner to continue in
employment with the Respondent, though he was working
on temporary basis, failed.
10.It could be seen from the admission made by the
petitioner during his cross-examination that he was quite
aware of the nature of his employment and was continuing
in the service of the Respondent with this awareness. He
has admitted during his cross-examination that he was
appointed in the place of the regular Driver who was
suspended from service. He has also admitted that he knew
that he will not be permanently appointed. The orders of
appointment including Ext.W8 show that the petitioner was
appointed on ad-hoc basis. What the petitioner has stated
in the Claim Statement as well in Proof Affidavit is that the
break-up of his service are artificial. However, it could not
have been so because each of his appointments was for a
period of 4 months. Again it is to be noted that he was
working in the vacancy that has arisen consequent to the
suspension of the regular employee and he was bound to
vacate the place in case the suspended person comes back.
It could be seen from the Counter Statement that the
petitioner was fortunate to continue with the service of the
Respondent almost for a period of 4 years, though with
several breaks, since the regular employee continued to be
under suspension during this period. Only when the
Respondent was forced to reinstate him in service, the
service of the petitioner was terminated.
11.Is the petitioner entitled to reinstatement in service
merely because he had worked with the Respondent for a
fairly long period though on ad-hoc basis? The counsel
for the petitioner has referred to the decision of the Apex
Court in Surendra Kumar Verma Vs. Central Government
Industrial Tribunal reported in the year 1981-SCC-422 in
this respect. It was a case where a bank had terminated the
services of certain employees on the ground that they
could not pass the prescribed test for permanent absorption
in service. The Labour Court had refused to reinstate them
in service. The Apex Court has directed that they should
be reinstated in service.
12.The facts of the above case referred to by the
counsel for the petitioner are not in parimateria with the
facts of the present case. Again, recently the Apex Court
has held that in such cases reinstatement shall not be
ordered as a matter of course and that in case there has not
been compliance of Section-25F of the ID Act, compensation
will be the suitable relief (2013 11 LLJ 141 SC).
13.There is the evidence of MW1 that at present
there is only one post of Driver with the Respondent
Institute, though earlier there were two and that this one
post is now not vacant and so in any case there is no
possibility of the petitioner being reinstated in service.
Considering all these aspects I find that the petitioner is
not entitled to the relief of reinstatement in service.
14.It is a fact that except for the periodical breaks,
the petitioner has been continuously working with the
Respondent for almost 4 years. He was in continuous
service for more than 240 days in the preceding year of his
termination. The petitioner has stated that his termination
was not in compliance of Section-25F of the ID Act. There
is no case for the Respondent also that at the time of
termination the provision has been complied with.
Therefore, the petitioner is entitled to compensation from
the Respondent. The compensation payable is fixed as Rs.
1.00 lakh. The Respondent shall pay the petitioner the above
compensation of Rs. 1.00 lakh within a month. In case of
failure to pay the amount within the prescribed period it
will carry interest at the rate of 6% per annum from the date
of the order.
15.The reference is answered accordingly.
(Dictated to the P.A., transcribed and typed by him,
corrected and pronounced by me in the open court on this
day the 8th November, 2013)
K. P. PRASANNA KUMARI, Presiding Officer
Witnesses Examined:
For the 1st Party/Petitioner Union :
WW1, Sri D.
Selvaraj
For the 2nd Party/Management
:
MW1, Dr.
R.K. Elangovan
Documents Marked
:
On the petitioner's side
Ex.No. Date
Description
Ex.W1
30.04.1984
Office Order of the Inspectorate
Dock Safety
Ex.W2
23.08.1984
Order of Director General Factory
Advice Service and Labour
Institute
Ex.W3
01.09.1984
Order
of
the
respondent
management to one Sri U. Sundaram
Ex.W4
22.11.1984
Memorandum of the respondent
management issued to one Sri U.
Sundaram
Ex.W5
23.01.1985
Office Order of the respondent
issued to one Sri U. Sundaram
Ex.W6
05.07.1990
Letter of Respondent to the
petitioner regarding call for
interview
¹Hkkx II—[k.M 3(ii)º
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285
Ex.W7
23.07.1990
Memorandum of the respondent
Ex.W8
24.07.1990
Appointment order issued by the
Respondent
Ex.W9
19.10.1990
Order
of
the
Respondent
Management
Ex.W10
26.10.1990
Order of the Respondent to pay
usual allowance to the petitioner
Ex.W11
25.05.1992
Memorandum issued by the
Directorate General Factory Advice
Service and Labour Institute
Ex.W12
09.02.1993
Letter of the petitioner to the
Directorate General Factory Advice
Service and Labour Institute
Ex.W13
30.08.1993
Order of the Central Labour
Institute,
Bombay
to
the
respondent regarding filling
vacancy of Driver
Ex.W14
10.09.1993
Office memorandum issued by the
Director, Department of Personnel
and Training
Ex.W15
17.09.1993
Letter of the petitioner to
respondent
Ex.W16
29.09.1993
Office Order of respondent to the
petitioner
Ex.W17
12.11.1993
Order of respondent management
Ex.W18
16.11.1993
Order of respondent of residential
accommodation to the petitioner
Ex.W19
22.11.1993
Memorandum of the respondent
issued to petitioner to attend the
duty at Inspectorate Dock Safety
Ex.W20
1991-1994
Monthly pay slip of the petitioner
issued by the respondent
Ex.W21
09.03.1994
Petitioner representation to the
respondent regarding Regulari-
zation
Ex.W22
10.03.1994
Termination order
Ex.W23
04.04.1994
Order copy in OA No. 412 of 1994
Ex.W24
25.04.1994
Memorandum of the respondent
Ex.W25
03.05.1994
Letter of respondent to the
petitioner
Ex.W26
28.06.1994
Certificate of the respondent
regarding service and conduct of
the petitioner
Ex.W27
30.06.1994
Petitioner representation to the
respondent regarding to consider
in Group "D" post
Ex.W28
22.11.1994
Office order to the petitioner
regarding to pay the overtime
allowance
Ex.W29
16.12.1994
Reminder-II
letter
to
the
respondent to the petitioner
regarding to collect the OTA
amount
Ex.W30
27.03.1995
Memorandum of respondent
regarding revised seniority list of
staff car drivers
Ex.W31
27.06.1996
Order passed in OA No. 542 of 1995
Ex.W32
10.10.1996
Legal notice issued to the
management
Ex.W33
29.01.1997
CAT review order in RA No. 80 of
1996 in OA No. 542 of 1995
Ex.W34
19.04.1999
CAT order in OA No. 1085 of 1996
Ex.W35
12.07.1999
Interim order in WMP 16574 of
1999 in WP No. 11718 of 1999
Ex.W36
04.09.2000
Office Memorandum of the
Inspectorate Dock Safety
Ex.W37
11.09.2000
Order of the Inspectorate Dock
Safety issued to on Employee
Ex.W37A 10.10.2000
Legal Notice
Ex.W38
28.06.2001
Order of Honourable Court in WP
No. 11718 of 2009
Ex.W39
06.08.2001
Letter of the petitioner to the
Hon'ble Prime Minister of India
Ex.W40
06.11.2000
Representation of petitioner to the
Respondent
Ex.W41
12.12.2002
Letter of the petitioner to the
respondent
Ex.W42
12.03.2004
Letter of the petitioner to the
Hon'ble President
Ex.W43
16.03.2004
Letter from President's secretariat
to Chief Secretary, Government of
Tamil Nadu
Ex.W44
28.07.2004
Petition under Section-2A of ID Act
Ex.W45
08.07.2005
Letter of the Regional Labour
Commissioner to the petitioner
Ex.W46
29.07.2005
Letter of the petitioner to the
Regional Labour Commissioner
286
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
Ex.W47
29.07.2005
Order passed by the Regional
Labour Commissioner
Ex.W48
-
Copy of the cover dated 03.08.2005
Ex.W49
-
Writ Petition filed by the petitioner
in WP No. 3743 of 2007
Ex.W50
27.04.2010
Order of the Hon'ble High Court in
WP No. 3743 of 2007
On the Management's side
Ex.No.
Date
Description
Ex. M 1
23.07.1990
Memorandum of appointment of
the petitioner
Ex.M2
04.04.1994
Order made in OA No. 412 of 1994
Ex.M3
03.05.1994
Reply to petitioner's representation
Ex.M4
26.06.1996
Order in OA No. 542 of 1995 with
petitioner respondent's letter
Ex. M5
19.04.1999
Order in OA No. 1085 of 1996
Ex.M6
28.06.2001
Order in WP No. 11718 of 1999
Ex.M7
29.05.2005
Rejection order passed by the
Regional Labour Commissioner
Ex.M8
27.04.2010
Order made in WP No. 3743 of 2007.
ubZ fnYyh] 26 fnlEcj] 2013
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dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj vk;qDr] fnYyh
uxj fuxe ds izcaèra= ds laca) fu;kstdks 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
194@2012½ izdkf'kr djrh gS tks dsUnzh; ljdkj dks 26@12@2013
dks izkIr gqvk FkkA
[Qkñ lañ ,y&42012@136@2012&vkbZvkj ¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vfèdkjh
New Delhi, the 26th December, 2013
S.O. 166.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No.194/2012)
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.
[F. No. L-42012/136/2012-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.194/2012
Sh.Sita Ram S/o Late Sh.Ramphal,
C/o Nagar Nigam Karamchari Sangh,
Delhi Pradesh, P-2/624, Sultanpuri,
Delhi.
...Workman
Versus
The Commissioner,
Municipal Corporation of Delhi,
Town Hall, Chandni Chowk,
Delhi-110002.
...Management
AWARD
A safai karamchari working with Municipal
Corporation of Delhi (in short the Corporation) expired on
09.01.1997. Her son, namely Shri Sita Ram, was engaged as
safai karamchari for a period of 89 days, after her death. His
engagement was further extended for another period of 89
days in the year 1997 itself. Thereafter, he was never
engaged by the Corporation. In the year 2012, Shri Sita
Ram approached the Nagar Nigam Karamchari Sangh (in
short the union) with a request to espouse his case for his
appointment in the service of the Corporation on
compassionate grounds. The union raised an industrial
dispute before the Conciliation Officer. Since the
Corporation contested the claim, conciliation proceedings
ended into a failure. On consideration of failure report, so
submitted by the Conciliation Officer, the appropriate
Government referred the dispute to this Tribunal for
adjudication, vide order No.L42012/136/2012-1R(DU) New
Delhi dated 07.12.2012, with following terms:
"Whether action of the management of Municipal
Corporation of Delhi in not regularizing the services
of Shri Sita Ram, S/o Shri Rampal, who worked as
safai karamchari after due appointment on
compassionate grounds is justified or not? If not,
what relief the workman 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, Shri Sita Ram opted
not to file her claim statement with the Tribunal.
3. Notice was sent to Shri Sita Ram by registered
post on 27.12.2012, calling upon him to file claim statement
¹Hkkx II—[k.M 3(ii)º
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287
before the Tribunal on or before 17.01.2013. This notice
was sent to him through the union, 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 his claim statement, fresh notice was sent to her by
registered post on 22.01.2013 calling upon him 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 him to file his 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 his 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 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 his 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, the Corporation projects that no notice of
demand was served upon it. Hence, the dispute has not
acquired status of an industrial dispute. The Corporation
further pleads that for want of espousal, the dispute has
not acquired character of an industrial dispute. It projects
that Ms.Beena, mother of the claimant, expired on
09.11.1997. After her death, the claimant was engaged as a
safai karamchari on daily wage basis for a period of 89
days, which engagement was further extended for a period
of 89 days. Thereafter, the claimant was never engaged by
the Corporation. Family of Ms.Beena survived for long 16
years. Now, it cannot claim that the said family is facing
starvation. Claim for appointment in the service of the
Corporation on compassionate grounds and regularization
of service is uncalled for. Reference may be answered in
favour of the Corporation, 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 findings 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. These 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 an employer or group of
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.(1970 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) LLJ 484), 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
288
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
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
decision 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,
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 the 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 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;"
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,
¹Hkkx II—[k.M 3(ii)º
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289
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 [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:
"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 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.
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
290
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
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
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 an industrial dispute.
The reference is liable to be answered against the claimant
on this score also.
24. The Corporation projects that the claimant was
engaged for a period of 89 days as daily wage safai
karamchari, after the death of his mother. The period of his
engagement was extended for a period of 89 days and
thereafter he was never engaged. Thus, it is emerging over
the record that after death of Smt.Beena, mother of the
claimant, latter was engaged by the Corporation on two
spells for period of 89 days each only. He was never
appointed on compassionate grounds.
25. Now coming to facts, when the claimant moved
an application for appointment on compassionate grounds,
no vacancy was available for him. 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 him appointment on daily wage basis on
humanitarian grounds, for two short spells. Thus, it is
emerging over the record that his engagement on daily
wage basis was not against the policy of compassionate
appointment. The Corporation engaged the claimant on
humanitarian grounds, with a view to help him. 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 does
not come to the rescue of the claimant, since he was
¹Hkkx II—[k.M 3(ii)º
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291
engaged only for two spells of 89 days each in the year
1997. Hence he has no case on factural matrix too.
26. From the foregoing reasons, it is evident that the
claimant is not entitled for relief of appointment on
compassionate grounds and regularization in service of
the Corporation. Action of the Corporation in not
regularizing services as safai karamchari, when he was
engaged at two spells of 89 days only, is found to be legal
and justified. Claimant is not entitled to any relief. An award
is accordingly passed. It be sent to the appropriate
Government for publication.
Dr. R. K. YADAV, Presiding Officer
Date: 29.11.2013
ubZ fnYyh] 26 fnlEcj] 2013
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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
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gqvk FkkA
[Qkñ lañ ,y-42012/141/2012-vkbZvkj¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 26th December, 2013
S.O. 167.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No.16/2013)
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.
[F. No. L-42012/141/2012-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.16/2013
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
Shri Karamvir, was working as daily wager Safai
Karamchari with Municipal Corporation of Delhi (in short
the Corporation). He breathed his last on 21.12.1988. Shri
Mausam, son of the deceased, was one of the persons,
who survived him. He presented an application for
appointment on compassionate grounds, which application
was rejected by the Corporation. However on 13.10.2008,
he was engaged as a substitute Safai Karamchari. Now he
claimed for regularization of his services as a permanent
employee on regular pay scale with all consequential
benefits, from the date of appointment on compassionate
grounds with the Corporation. His claim was rejected by
the Corporation on the count that Shri Karamvir was not
working on a substantive post. He approached the Nagar
Nigam Karamchari Sangh (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 ended into a failure. On
consideration of failure report, so submitted by the
Conciliation Officer, appropriate Government referred the
dispute to this Tribunal for adjudication, vide order No.
L-42012/141/2012-IR(DU) New Delhi dated 10.12.2012, with
following terms:
"Whether action of the management of Municipal
Corporation of Delhi in denying the regularization of
services of Shri Mausam, S/o late Karamvir. Safai
karamchari on the permanent post and with all
consequential benefits from the date management
granted compassionate appointment to the said
workman, i.e. form 13.10.2008 is justified or not? If
not, what relief the workman 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, Shri Mausam opted
not to file his claim statement with the Tribunal.
3. Notice was sent to Shri Mausam by registered
post on 06.02.2013, calling upon him to file claim statement
before the Tribunal on or before 04.03.2013. This notice
was sent to his through the union, 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.
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[PART II—SEC. 3(ii)]
4. Since none came forward on behalf of the claimant
to file his claim statement, fresh notice was sent to his by
registered post on 03.04.2013 calling upon his to file claim
statement before the Tribunal on 26.04.2013. Notice was
again transmitted to the claimant by registered post on
30.04.2013 asking him to file his claim statement on or before
06.06.2013. Lastly, notice dated 01.08.2013 was sent by
registered post commanding the claimant to file his claim
statement before the Tribunal on or before 02.09.2013.
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 his 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, the Corporation projects that no notice
of demand was served on it prior to raising of dispute,
hence it has not acquired status of an industrial dispute.
The Corporation further pleads that for want of espousal,
dispute has not acquired character of an industrial dispute.
Claimant is not entitled to get regularization in service of
the Corporation with effect from 13.10.2008, the date when
he was engaged as substitute safai karamchari. His claim is
not maintainable. It is liable to be dismissed being devoid
of merits, pleads the Corporation. Even otherwise, Shri
Karamvir never worked with the Corporation as a regular
employee and as such, the claimant is not entitled for
compassionate appointment after his death. It has been
projected that the claim is liable to be dismissed.
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. 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. These 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 an employer or group of
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.(1970 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) LLJ 484], 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
¹Hkkx II—[k.M 3(ii)º
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293
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
decision 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,
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 the 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 argued that the
dispute has not acquired status of an industrial dispute for
want of espousal 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 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;"
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. The Corporation does
not dispute status of the claimant, being a workman within
the meaning of section 2(s) of the Act.
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[PART II—SEC. 3(ii)]
17. 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
condition 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.
"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 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.
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
¹Hkkx II—[k.M 3(ii)º
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295
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
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 regisiered 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 an industrial dispute.
The reference is liable to be answered against the claimant
on that score.
24. For claim of regularization in service, it was
incumbent upon the claimant to establish that his father
was appointed with the Corporation against a sustentative
post. As projected by the Corporation in the written
statement, Shri Karamvir was not working on any
substantive post. A daily wager Safai Karamchari is not
borne on the strength of the Corporation, where he was
engaged intermittently in exigencies of service. Therefore,
such casual employee not render any service against any
substantive post. In view of these facts, son of deceased,
Shri Karamvir is not entitled to raise a claim for his
appointment in the service of the Corporation, on
compassionate grounds. He was engaged in October, 2008,
as a substitute Safai Karamchari, which engagement does
not confer on him any right to claim regularization of his
services on the post, since the date of his engagement.
Resultantly, it is concluded that action of the Corporation
in denying regularization of service of Shri Mausam as a
permanent employee is found to be justified. Shri Mausam
is not entitled to any relief on factual proposition too.
25. The foregoing reasons make me to conclude that
Shri Mausam is not entitled to regularization in the service
of the Corporation. Action of the Corporation in denying
regularization in its service to Shri Mausam is found to be
justified. No relief can be granted in favour of Shri Mausam.
An award is, accordingly, passed. It be sent to the
appropriate Government for publication.
Dr. R. K. YADAV, Presiding Officer
Dated: 02.09.2013
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296
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
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New Delhi, the 26th December, 2013
S.O. 168.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No.160/2012)
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.
[F. No. L-42012/56/2012-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. 160/2012
The General Secretary,
Nagar Nigam Karamchari Sangh,
Delhi Pradesh, P-2/624, Sultanpuri,
Delhi.
..........Workman
Versus
The Commissioner,
Muncipal Corporation of Delhi
Town Hall, Chandni Chowk,
Delhi -110006.
............Management
AWARD
Shri Roshan Lal, was working as substitute safai
karamchari with Municipal Corporation of Delhi (in short
the Corporation). He breathed his last on 21.12.1988. Smt.
Bachni Devi, survived the deceased employee. She moved
an application for her appointment on compassionate
grounds, which application was declined by the Corporation
on the count that Shri Roshan Lal was not working on any
substantive post. However, on 30.10.95, she was engaged
as a substitute Safai Karamchari. Now she claimed for
regularization of her services as a permanent employee on
regular pay scale with all consequential benefits from the
date of appointment on compassionate grounds. Since the
deceased, Shri Roshan Lal was a casual employee, the
Corporation declined her claim. She approached the Nagar
Nigam Karamchari Sangh (in short the union) for redressal
of her grievances. The union raised a dispute before the
Conciliation Officer. Since the Corporation contested the
claim, conciliation proceedings ended into a failure. On
consideration of failure report, so submitted by the
Conciliation Officer, appropriate Government referred the
dispute to this Tribunal for adjudication, vide order No.L-
42012/56/2012-IR(DU) New Delhi dated 31.10.2012, with
following terms:
"Whether action of the management of Municipal
Corporation of Delhi in denying the regularization of
services of Smt. Bachni Devi, W/o late Roshan Lal
as a permanent employee on regular pay scale with
all consequential benefits from the date management
granted compassionate appointment to the said
workman, i.e. form 30.10.1995 is justified or not? If
not, what relief the workman 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 day 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.Bachni Devi opted not to
file her claim statement with the Tribunal.
3. Notice was sent to Ms. Bachni Devi by registered
post on 03.122012, calling upon her to file claim statement
before the Tribunal on or before 02.01.2013. This notice
was sent to her through the union, 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 02.01.2013 calling upon her to file claim
statement before the Tribunal on 29.01.2013. Notice was
again transmitted to the claimant by registered post on
31.01.2013 asking her to file her claim statement on or before
20.02.2013. 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 22.03.2013.
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. 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, the Corporation projects that no notice of
demand was served on the management prior to raising of
¹Hkkx II—[k.M 3(ii)º
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dispute, hence it has not acquired status of an industrial
dispute. The Corporation further pleads that for want of
espousal, dispute has not acquired character of an industrial
dispute. Claimant is not entitled to get regularization in
service of the Corporation with effect from 30.10.1995, the
date when she was engaged as substitute safai karamchari.
Her claim is not maintainable. It is liable to be dismissed
being devoid of merits, pleads the Corporation. Even
otherwise, Shri Roshan Lal never worked with the
Corporation as a regular employee and as such, the claimant
is not entitled for compassionate appointment after his
death. It has been projected that the claim is liable to be
dismissed.
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. 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. These 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 an employer or group of
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. [1970 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 Shambunath Goyal [1978(1) LLJ 484], 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
decision 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
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THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
further observed that "it is nowhere stipulated in the Act,
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 the 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 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,"
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 [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
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299
observations made by the 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 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.
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) LLS;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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THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[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 an industrial dispute,
The reference is liable to be answered against the claimant
on that score.
24. For claim of regularization in service, it was
incumbent upon the claimant to establish that her husband
was appointed with the Corporation against a sustantative
post. As projected by the Corporation in the written
statement, Shri Roshan Lal was not working on any
substantive post. A substitute safai Karamchari is not borne
on the strength of the Corporation where he was engaged
intermittently in exigencies of service. Therefore, such
casual employee would not render any service on a
substantive post. In view of these facts, widow of deceased,
Shri Roshan Lal is not entitled to claim for her appointment
in the services of the Corporation, on compassionate
grounds. However she has been engaged by the
Corporation on substitute Safai Karamchari in the year 1995
on compassionate grounds. Such engagement is not in
consonance with the scheme of compassionate
appointment to confer any right on the claimant to seek her
regularization, in pursuance of the provisions of the said
scheme. Resultantly, it is concluded that action of the
Corporation in denying regularization of service of
Smt. Bachni Devi as a permanent employee is found to be
justified. Smt. Bachni Devi is not entitled to any relief on
factual proposition too.
25. The foregoing reasons make me to conclude that
Smt.Bachni Devi is not entitled to regularization in the
service of the Corporation. Action of the Corporation in
denying regularization in its service to Smt. Bachni Devi is
found to be justified. No relief can be granted in favour of
Smt. Bachni Devi. An award is, accordingly, passed. It be
sent to the appropriate Government for publication.
Dr. R. K. YADAV, Presiding Officer
Dated : 02.09.2013
ubZ fnYyh] 26 fnlEcj] 2013
dkñvkñ 169.—vkS|ksfxd fookn vf/kfu;e 1947¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj tujy esustj]
Cghdy QSDVªh ds izca/kra= ds laca?k 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
lhñthñvkbZñVhñ@,yñlhñ@vkjñ@182@99½ izdkf'kr djrh gS] tks dsUnzh;
ljdkj dks 26@12@2013 dks izkIr gqvk FkkA
[Qkñ lañ ,y&14011@24@1998&vkbZvkj¼Mh;w½]
ihñ dsñ os.kqxksiky vuqHkkx vf/kdkjh
New Delhi, dated 26th December 2013
S.O. 169.—In pursuance of Section 17 of the
Industrial Dispute Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No.
CGIT/LC/R/182/99) of the Central Government Industrial
Tribunal-cum-Labour Court, JABALPUR as shown in
the Annexure, in the Industrial dispute between the
employers in relation to the management of the General
¹Hkkx II—[k.M 3(ii)º
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301
Manager, Vehicle Factory and their workman which was
received by the Central Government on 26.12.2013.
[F. No. L-14011/24/1998-IR(DU)]
P. K.VENUGOPAL, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
No. CGIT/LC/R/182/99
PRESIDING OFFICER: SHRI R. B. PATLE
General Secretary,
Vehicle Factory Pratiraksha Mazdoor Sangh,
Q.No.2491, Type-2,
Sector-1, Vehicle Factory Estate,
Jabalpur
...Workman/Union
Versus
General Manager,
Vehicle Factory,
Jabalpur (MP)
...Management
AWARD
(Passed on this 18th day of June, 2013)
1. As per letter dated 26-4-99 by the Government of
India, Ministry 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-14011/24/98/IR(DU).
The dispute under reference relates to:
"Whether the action of the management of Vehicle
Factory, Jabalpur in reducing the salary of Shri S.K.
Sengupta Millwright H.S.Garde-2 from 21-2-95 by the
order dated 20-2-95 i.e. reducing his salary from
Rs.1410 to Rs.1380 as a measure of punishment is
legal and justified? If not, to what relief the workman
is entitled?"
2. After receiving reference, notices were issued to
the parties. Statement of claim is filed by union at Page 4/1
to 4/5. The case of Union is that Shri S.K.Sengupta workman
was General Secretary of Union in the year 1997-98. He was
working as Millwright at Vehicle Factory, Jabalpur.
Chargesheet was issued to workman on 19-5-95 about using
un-parliamentary language towards the officer of
M.M.Section Shri A.R.Sit. The workman denied charges
submitting his reply. That without giving any opportunity
or conducting Departmental Enquiry, punishment of
withholding one increment was imposed on 23-9-95. The
appeal preferred against the order of punishment was
rejected on 26-8-96. It is submitted that punishment of
withholding one increment is imposed by victimization by
colourable exercise of powers. The punishment is illegal.
There is no evidence to prove charges. The workman had
requested to hold regular enquiry but no enquiry was held.
Workman was denied reasonable opportunity of hearing.
Punishment is illegal, violation of principles of natural
justice. It is prayed to be set-aside. IInd party management
submitted Written Statement at Page 6/1 to 6/2. He ubmitted
that Shri Sengupta was working as Millwright in MM Section
of Vehicle Factory, Jabalpur. On 4-5-95 he had honed Shri
A.R.Sit asking why night shift in MM Section was stopped.
He was not satisfied with the answer given by the Works
Manager, The workman used unparliamentary language.
Again on 5.5.95, the workman wanted to discuss issue
with the Works Manager, Despite of it, he was told that
officer would be coming to MM Section. The workman
rushed alongwith gang and came to MM Section where
officer was sitting. He used unparliamentary language
against Officer. On report of incharge of MM Section,
chargesheet under Rule 14 of CCS Rule was issued. That
conduct of Shri Sengupta amounts to gross misconduct .
The workman denied the charges and requested for enquiry.
However minor punishment was imposed of reduction of
pay for one year IInd party submits that punishment is
legal and reliefs prayed by workman be rejected.
3. Considering pleadings on record, the points which
arise for my consideration and determination are as under.
My findings are recorded against each of them for the
reasons as below:—
(i)
Whether the action of the
In Affirmative
management of Vehicle Factory,
Jabalpur in reducing the salary
of Shri S.K.Sengupta Millwright
H.S.Garde-2 as per order dated
20-2-95 is legal ?
(ii) If so, to what relief the
Relief prayed by
workman is entitled to?"
workman is
rejected.
REASONS
4. Though legality of punishment for reducing pay
of Shri S.K.Sengupta by one stage is challenged, the Union
failed to adduce evidence. The evidence of workman was
closed on 17-9-09. Affidavit evidence is filed by .K.Mishra
and Shri Anuj Kishore Prasad oiling the contentions in
Written Statement filed by the IInd Party. The evidence of
both the witnesses remained unchallenged as were not
cross-examined on behalf of workman. The right to Cross-
examine the management's witness was exercised. The
workman failed to participate in the reference proceeding.
The witnesses were discharged. Without submitting
application to call back the order dated 17-9-09, the workman
filed affidavit of his evidence on 30-3-2011. However he
failed to appear for cross- examination. Therefore evidence
of workman cannot be considered. The evidence of
management's witness remained unchallenged. Therefore
the punishment of reduction of pay imposed against
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THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
workman cannot be said illegal. For above reasons, I record
my finding in Point No.1 in Affirmative.
5. In the result, award is passed as under:-
(1) Action of the management of Vehicle Factory,
Jabalpur in reducing the salary of Shri S.K.Sengupta
Millwright H.S.Garde-2 as per order dated 20-2-95 is
legal ?
(2) Relief prayed by workman is rejected.
R. B. PATLE, Presiding Officer
ubZ fnYyh] 26 fnlEcj] 2013
dkñvkñ 170.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj dsUnzZh; fo|ky;
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;] psUubZ ds iapkV ¼lanHkZ la[;k 05@2011½ dks izdkf'kr
djrh gS tks dsUnzh; ljdkj dks 26@12@2013 dks izkIr gqvk FkkA
[Qkñ lañ ,y&42011@17@2009&vkbZvkj ¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 26th December, 2013
S.O. 170.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 05/2011)
of the Central Government Industrial Tribunal/Labour
Court, Chennai now as shown in the Annexure in the
Industrial Dispute between the employers in relation to the
management of the Principal, Kendriya Vidyalaya School
and their workman, which was received by the Central
Government on 26/12/13.
[F. No. L-42011/17/2009-IR(DU)]
P. K.VENUGOPAL, Séction Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL- CUM - LABOUR COURT,
CHENNAI
Wednesday, the 29th October, 2013
Present : K. P. PRASANNA KUMARI,
Presiding Officer
Industrial Dispute No. 5/2011
(In the matter of the dispute for adjudication under
clause (d) of sub-section (1) and sub- section 2(A) of
Section 10 of the Industrial Disputes Act, 1947(14 of 1947),
between the Management of Kendriya Vidyalaya School
and their workman)
BETWEEN
Smt. P. Thangam
:
1st Party/Petitioner
AND
The Principal
:
2nd Party/Petitioner
Kendriya Vidyalaya School
INS Kattabomman, Vijayanarayanam
Nanguneri Taluk
Tirunelveli Taluk
Appearance:
For the 1st Party/Petitioner
:
M/s K.M. Ramesh,
Advocates
Respondent
:
Sri M. Vaidyanathan,
For the 2nd Party/
:
Advocate
AWARD
The Central Government, Ministry of Labour &
Employment vide its Order No. L-42011/17/2009-IR(DU)
dated 22.12.2010 referred the following Industrial Dispute
to this Tribunal for adjudication.
The schedule mentioned in that order is :
"Whether the action of the management of Kendriya
Vidyalaya, Vijayanarayanam, in not considering the
reinstatement with back wages to their workman Smt
P. Thangam, from 06.03.1996 is legal and justified?
What relief the workman is entitled to?"
2. After the receipt of the Industrial Dispute this
Tribunal has numbered it as ID 5/2011 and issued notice to
both sides. The petitioner and the respondent through
their respective counsel and filed their Claim and Counter
Statement respectively.
3. The case in the Claim Statement in brief is this:
The First Party was appointed as a Basic Servant at
Kendriya Vidyalaya School, INS, Kottabomman,
Vijayanarayanam, Nanguneri Taluk, Tirunelveli on casual
basis and worked continuously from 01.01.1995 to
28.07.1995. From 27.07.1995 to 05.12.1995 she had been
employed on monthly salary of Rs. 868. Since the school
was situated in a prohibited area, under the control of Indian
Navy, she was issued a valid pass for entry in the school.
The First Party had worked continuously from 01.01.1995
to 28.07.1995 for 209 days without any break. Her salary for
the period from 01.01.1995 to 28.07.1995 was paid to her by
voucher, on obtaining her signature. The First Party went
on maternity leave from 05.12.1996 and had been paid salary
for the maternity leave period also. In all, the First Party
had worked continuously for 338 days in the school. After
three months of her maternity leave the First Party had
reported for duty on 06.03.1996. However, she was not
allowed to join duty. Her services had been terminated
¹Hkkx II—[k.M 3(ii)º
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303
without any reason and without an order in writing. There
is no justification in the termination of the First Party from
the services of the Second Party. She is entitled to
reinstatement. An order may be passed directing the Second
Party to reinstate the First Party in service with continuity
of service, backwages and all other attendant benefits.
4. The Second Party has filed Counter Statement
contending as follows :
It is incorrect to state that the First Party was
appointed as Basic Servant at Kendriya Vidyalaya School,
INS Kattabomman on casual basis and worked
continuously from 01.01.1995 to 28.07.1995. So also it is
incorrect to state that she worked in the Vidyalaya from
29.07.1995 to 05.12.1995 on a monthly salary of Rs. 868/-
The First Party had worked in the Vidyalaya for 45 days
from 29.07.1995 to 28.09.1995 and for 21 days from 20.10.1995
to 17.11.1995 as casual labour and was paid wages @
Rs. 29/- a day. She was paid Rs. 1305/- by cheque dated
17.10.1995 and Rs. 609/- by cheque dated 04.01.1996. The
claim of the First Party that she has worked for 338 days in
all in the school is incorrect. The claim of the First Party
that she had availed Maternity Leave for 3 months and had
reported for duty after that on 05.12.1995 but was not
allowed to rejoin duty and was thus terminated from service
also is false. Her claim that she was assured that she would
be taken back into service after expiry of Maternity Leave
also is incorrect. Such an assurance could not have been
given since Kendriya Vidyalaya Sangathan is following
the recruitment procedure approved by the Board of
Governors of Kendriya Vidyalaya Sangathan. The First
Party is not entitled to any relief.
5. The evidence in the case consists of oral evidence
of WW1 and MW1 and exhibits marked as ExsW1 to Exs.W6
and ExsM1 and Exs.M2.
6. The Points for consideration in the case are :
(i) Whether the First Party was terminated from the
services of the Second Party illegally and without
any justification?
(ii) Whether the First Party is entitled to the relief of
reinstatement in service? if not what if any is the
relief to which she is entitled?
The Points
7. The First Party claims that she has joined the
services of the Second Party as a Basic Servant on
01.01.1995 and had continued with the services of the
Second Party for a period of 338 days. According to her,
she had availed Maternity Leave from 05.12.1996 and has
been paid salary for the period of Maternity Leave also.
According to her, when she went back to the Vidyalaya to
rejoin duty on 06.03.1996 she was not permitted to do so
and was terminated from service. The case of the First
Party is that having worked in the Vidyalaya for 338 days
she was entitled to continue in service and the act of the
Second Party in turning her out without allowing her to
join duty on 06.03.1996 is illegal and unjust.
8. The stand of the Second Party is that the First
Party had worked in the Vidyalaya only for 2 spells, initially
for 45 days from 29.07.1995 to 28.09.1995 and later for 21
days from 20.10.1995 to 17.11.1995 as a casual labour and
her remuneration @ Rs. 29/- a day for these two periods
has been disbursed to her by two cheques. The case of the
Second Party is that the First Party is not entitled to any
relief since she has altogether worked for only 66 days at
the school.
9. The First Party has submitted affidavit in lieu of
Chief Examination reiterating the case in the Claim Petition
and has been cross-examined. She has produced 6
documents also to substantiate the case. Out of this, the
material documents are the two receipts for payment of
wages and marked as Ex.W1 and Ex.W2 respectively.
Ex.W1 shows that she was paid Rs. 1305/- as wages for 45
working days @ Rs. 29/- per day for the period from
29.07.1995 to 28.09.1995. Ex.W2 shows that she was paid
Rs. 609/- towards wages for the period from 20.10.1995 to
17.11.1995, for 21 working days. Both these receipts show
that she was treated as a casual labourer and the amounts
were paid towards casual labour charge. Ex.M1 and Ex.M2
produced by the Second Party are in fact replicas of Exs.W1
and Ex.W2 respectively. These documents, in fact, justify
the case of the Second Party that the First Party worked in
the Vidyalaya only for 66 days altogether.
10.The case of the First Party is that she had worked
in the Vidyalaya for a longer period though she had
produced Ex.W1 and Ex.W2 only showing receipt of wages.
If actually the First Party had worked with the Second Party
for a longer period as claimed by her she should have been
able to produce the required documents. If she has taken
care to retain Ex.W1 and Ex.W2 she would have necessarily
retained documents showing that she had worked in the
Vidyalaya for a longer period. There is no material at all to
show that the First Party had worked with the Vidyalaya
for a longer period than admitted by the Second Party that
is a period of 66 days. Her claim that she was allowed
Maternity Leave by the Vidyalaya must be absolutely
without any basis. A casual labourer is not entitled to
Maternity Leave at all. So it is not likely that the First Party
was given Maternity Leave and that also with salary.
11.Since the First Party has worked with the Second
Party only for a very short period as a casual labourer only
there is no question of her being reinstated into service.
She will not be entitled to any compensation under Section-
25F of the Industrial Disputes also since she has failed to
establish that she has worked for the required period. The
First Party is not entitled to any relief.
304
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
12.The reference is answered against the First
Party.
K. P. PRASANNA KUMARI, Presiding Officer
Witnesses Examined:
For the 1st Party/Petitioner
:
WW1,
Smt.
P.
Union
Thangam
For the 2nd Party/Management :
MW1, Sri G.B. Naidu
Documents Marked :
On the petitioner's side
Ex.No.
Date
Description
Ex.W1
17.11.1995
Receipt of payment of salary for
the period 29.07.1995 to 28.09.1995
Ex.W2
04.01.1996
Receipt of payment of salary for
the period 20.10.1995 to 17.11.1995
Ex.W3
21.10.2005
Award passed by the Labour Court,
Tirunelveli in ID No. 30/1999
Ex.W4
27.02.2009
Report on failure of conciliation
issued by the Asstt. Labour
Commissioner (C), Mumbai
Ex.W5
18.05.2009
Order issued by the Ministry of
Labour, Govt. of India
Ex.W6
18.10.2010
Order of the Madurai Bench of the
Madras High Court in WP (MD)
No. 8587 of 2009
On the Management's side
Ex.No.
Date
Description
Ex. Ml
17.11.1995
Receipt for Rs. 1305/- received by
the First Party
Ex.M2
04.01.1996
Receipt for Rs. 609/- received by
the First Party
ubZ fnYyh] 26 fnlEcj] 2013
dkñvkñ 171.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k es dsUnzh; ljdkj ;wfu;u 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 ,oa Je U;k;ky;] p.Mhx<+ ds iapkV ¼704@2005½ dks
izdkf'kr djrh gS tks dsUnzh; ljdkj dks 26@12@2013 dks izkIr gqvk
FkkA
[Qkñ lañ ,y&12012@159@2001&vkbZ vkj ¼ch-II½]
jfo dqekj] vuqHkkx vf/kdkjh
New Delhi, the 26th December, 2013
S.O. 171.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 704/2005)
of the Cent. Govt. Indus. Tribunal - cum - Labour Court II,
Chandigarh as shown in the Annexure, in the industrial
dispute between the management of Union Bank of India
and their workmen, received by the Central Government on
26/12/2013.
[F. No - L-12012/159/2001- 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.704/2005
Registered on 25.8.2005
Smt. Nirmala Devi C/o Sh. Tek Chand Sharma 25, Sant Nagar,
Civil Lines, Ludhiana.
...Petitioner
Versus
Union Bank of India, The Asssistant General Manager,
UBI, Regional Office, Bank Square, Sector 17B, Chandigarh.
...Respondent
APPEARANCES:
For the workman
Sh. Tek Chand Sharma Advocate.
For the Management
Sh. B.B. Bagga Advocate.
AWARD
(Passed on 24-10-2013)
Central Government ,vide Notification No. L-12012/
159/2001 ((lR(B-11)) Dated 28.11.2001, 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 Union
Bank of India in awarding the punishment of
dismissal from services of Smt. Nirmala Devi, Clerk/
Cashier is just and legal? If not, what relief the
workman is entitled to and from which date?"
After receiving the reference, notice was issued to
the workman as well as to the management.
Workman appeared and filed statement of claim
pleading that she was dismissed from service vide
impugned order dated 8.1.2000 without conducting proper
and valid inquiry. That she was issued a charge-sheet vide
letter dated 3.3.1999 but the designation of the disciplinary
authority was not disclosed. That the inquiry officer himself
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
305
was the Inquiry Officer as well as the disciplinary authority.
He prepared the report and submitted the same to himself.
That the inquiry report is not based on any evidence. She
has given written submissions prior to the imposing of
penalty which were not considered at all and consequently
the impugned order was passed which is not legal and
valid.
Management filed written reply admitting that the
workman was its employee and was dismissed from service
after holding a legal and valid inquiry. That the workman
was guilty of falsification of accounts and tampering with
the record etc. and after holding a proper departmental
inquiry, charges were found proved against her and
considering the entire matter, the impugned order was
rightly passed.
In support of her case the workman appeared in the
witness box and filed her affidavit reiterating her case as
set out in the claim petition. On the other hand the
management examined Banta Ram who filed his affidavit
reiterating the case as stated in the written statement.
The workman was proceeded ex parte vide order
dated 19.10.2010.
I have heard Sh. B.B. Bagga counsel for the
management and have gone through the file carefully.
It is not disputed that the workman was charge-
sheeted on account of falsification of account-books i.e.
she enhanced sum of Rs 10000/- in account No 10557 in
May 1998 and she made false entry in the account of
Smt. Priya Gulati in April 1998 and she also tampered with
the entries of account No. 4/84 of Santosh Kumari. Similarly
she made other false entries in the SB accounts of other
persons. A due charge-sheet was issued to her to which
she submitted reply. Finding it not satisfactory, a
departmental inquiry was held and the Inquiry Officer, after
examining the evidence found that charges are proved
against the workman. After considering the inquiry report,
the impugned order dated 8.1.2010 dismissing the workman
from service was passed.
Before passing the said order the workman was also
given an opportunity of personal hearing. Thus it cannot
be said that there was any defect in the inquiry or the
impugned order was passed without any basis. Therefore
it is to be held that the impugned order was passed after
holding a fair and proper inquiry.
The workman was dismissed from service. She was
given opportunity of personal hearing before passing the
impugned order and considering her work and conduct of
tampering the bank accounts, she was not found fit to be
retined in service. There is hardly any gain-saying that in
the banking business, people repose confidence only on
account of the fact that transactions are duty and properly
entered therein. But if the employee indulge in tampering
with the records, the confidence of the people would be
eroded which in consequenc will effect the economy of the
country. In the circumstances the penalty of dismissing
the workman from service was rightly imposed and the
same do not call for any interference.
Thus it is held that the punishment of dismissal from
service was rightly awarded to the workman and workman
is not entitled to any relief and reference is answered
accordingly. 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 172.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k es dsUnzh; ljdkj v'kksd gksVy ds
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fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k ,oa
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ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 26th December, 2013
S.O. 172.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No.130/2013)
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 Ashok Hotel and their workman, which
was received by the Central Government on 26/12/13.
[F. No. L-42025/03/2013-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.130/2013
Shri Babu Rao
S/o Sh.Gaindu Rao,
Through President,
Ashok Hotel Mazdoor Janta Union,
C-48-49, Ashok Hotel Staff Qtr.,
50-B, Chanakyapuri, New Delhi - 110021
...Workman
Versus
The Management of
Ashok Hotel,
Through its General Manager, New Delhi
...Management
306
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
AWARD
Shri Bapu Rao joined services of Ashok Hotel (in
short the Hotel) in 1996 as a houseman/sweeper in the
main kitchen department for carrying out house keeping
jobs. His services were abruptly dispensed with on
01.12.2008. His case for regularization in services of the
Hotel was answered in his favour, by the Industrial Tribunal
constituted by the Govt of NCT Delhi, vide award dated
05.10.2005. The Hotel challenged the award in High Court
of Delhi through writ petition No.14828 of 2006, which was
also decided in favour of the claimant. However, during
pendancy of the matter before the High Court, his services
were dispensed with by the Hotel. An industrial dispute is
raised by the claimant before this Tribunal on 03.10.2013,
using right available to him under the provisions of sub-
section (2) of section 2-A of the Industrial Disputes Act,
1947 (in short the Act), without being referred for
adjudication by the appropriate Government under sub-
section (1) of section 10, of the, Act.
2. Arguments on maintainability of the dispute were
advanced by Shri S.S.Upadhyay, authorized representative
of the claimant. 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 :—
3. As record projects, dispute under reference is
raised by the claimant, namely, Shri Bapu Rao under sub
section (2) of section 2A of the Act. The term "industrial
dispute" has been defined by sub-section (k) of section 2
of the Act to mean "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 terms
of employment or with the conditions of labour, of any
person". 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 workman 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".
4. 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
management does not dispute that the claimant is workman
within the meaning of clause(s) of Section 2 of the Act.
5. A long line of decisions, handed down by the
Apex Court, had established that an individual dispute
could not per se be an industrial dispute, but could become
one if it was taken up by a trade union or a considerable
number of workmen of the establishment. This position of
law created hardship for individual workmen, who were
discharged, dismissed, retrenched or whose services were
otherwise terminated when they could not find support by
a union or any appreciable number of workman to espouse
their cause. Section 2A was engrafted in the Act by the
Amendment Act of 1965 and it has to be read as an
extension of the definition of industrial dispute contained
in clause (k) of section 2 of the Act. Thus by way of
extension of definition of industrial dispute, by insertion
of section 2A of the Act, the dispute of an individual
workman connected with or arising out of his discharge,
dismissal, retrenchment or otherwise termination of his
service by his employer has been brought within the ambit
of the Act.
6. Industrial workman has got a very restricted right
to move an industrial court when his service conditions
have been changed to his prejudice during pendancy of an
industrial dispute or he has been dismissed or discharged
during such pendancy, under section 33-A of the Act. He
has a right to recover certain dues from his employer under
section 33(C)(2) of the Act. An individual workman who
had been thrown out of employment had to rely for redress
only through aegis of the union or his co-workers where
there was no union. Sometimes he found it hard to proceed
further or get the union to take up his cause. Besides, there
are industries where so far no union have been formed.
Workers are still, in certain industries, unorganized.
Enactment of section 2A of the Act was taken up by the
Parliament solely with a view to modify the law to raise
industrial disputes relating to discharge, dismissal,
retrenchment or otherwise termination of services of the
workmen.
7. Classification between workmen unaided by union
or considerable number workmen and workman whose
cause is espoused by a union or considerable number of
workmen has been made by the legislature, when provisions
of section 2A were brought on the Statute Book. Thus, it is
evident that by way of extension of definition of industrial
dispute relating to discharge, dismissal, retrenchment or
termination of service of the workmen, Legislature provided
remedy to the workmen who is unaided by a union or
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
307
considerable number of workmen. Section 2A of the Act
does not destroy the concept of industrial dispute and
collective dispute and such concept still remains as a major
class and in all other provisions of the Act. Consequently,
it is evident that excepting the dispute relating to dispute
of dismissal, discharge, retrenchment or otherwise
termination of services of a workman, a dispute is to be
espoused by the union or considerable number of workmen
to reach the status of an industrial dispute.
8. Even in cases of dispute between a workman and
his employer connected with or arising out of his discharge,
dismissal, retrenchment or termination of his service, it has
to pass through the procedure provided in the Act. For
raising a dispute, an employee has to raise a demand on
the employer and thereafter he has to raise the dispute
before the Conciliation Officer, who had to enter into the
conciliation proceedings. In case conciliation proceedings
fails, the Conciliation Officer submits his report to the
appropriate Government. On consideration of the report,
so submitted by the Conciliation Officer, the appropriate
Government has to form an opinion that an industrial
disputes exists or is apprehended and refer that dispute to
an industrial adjudicator under sub-clause (c) or (d), as the
case may be, of sub-section (1) of section 10 of the Act.
Procedure, referred above, would take considerable time
and an employee had to wait for the decision of the
appropriate Government, making reference to an industrial
adjudicator for adjudication of the dispute. With a view to
do away with this hardship, Legislature, vide Amendment
Act No. 24 of 2010, inserted sub section (2) and (3) in
section 2A and re-numbered original section as sub section
(1) in order to enable the workman to approach an industrial
adjudicator for ajudication of his dispute, without it being
referred by the appropriate Government. For sake of
convenience, provisions of sub-section (2) and (3) of
section 2A of the Act are reproduced thus:
"(2) .Notwithstanding anything contained in section
10, any such workman as is specified in sub-section
(1) may make an application direct to Labour Court
or Industrial Tribunal for adjudication of the dispute
referred to therein after expiry of forty five days from
the date he has made the application to the
Conciliation Officer of the appropriate Government
for conciliation of the dispute and in receipt of such
application, the Labour Court or Tribunal shall have
powers and jurisdiction to adjudicate upon the
dispute, as if it were a dispute referred to it by the
appropriate Government in accordance with the
provisions of this Act and all the provisions of this
Act shall apply in relation to such adjudication as
they apply in relation to an industrial dispute referred
to it by the appropriate Government.
(3) The application referred to in sub-section (2) shall
be made to the Labour Court or Tribunal before the
expiry of three years from the date of discharge,
dismissal, retrenchment or otherwise termination of
service as specified in sub-section (1)."
9. Provisions of sub section (2) of section 2A of the
Act empowers a workman to move an application before
an industrial adjudicator for adjudication of his dispute,
after expiry of 45 days from the date he made such
application before the Conciliation Officer. On receipt of
such application, the industrial adjudicator shall have
powers and jurisdiction to adjudicate the dispute as if it
were a dispute referred to it by the appropriate Government,
in accordance with provisions of the Act. Thus, it is evident
that before moving an application before an Industrial
Adjudicator, the workman has to approach the Conciliation
Officer for conciliation of his dispute. In case no settlement
is arrived at or conciliation proceedings goes beyond a
period of 45 days from the date the workman had moved
the application to the Conciliation officer, he may approach
the Industrial Adjudicator for adjudicate of his dispute,
without being referred by the appropriate Government
under the provisions of the Act. Consequently, it is evident
that before approaching an Industrial Adjudicator, workman
whose services have been discharged, dismissed,
retrenched or terminated by his employer, shall have to
approach the Conciliation Officer and wait for expiry of a
period of 45 days, in case no settlement arrived between
them. Obligation to approach the Conciliation Officer and
allow him to enter into conciliation proceedings are
mandatory. It is also obligatory on the workman to wait for
a period of 45 days and only thereafter he can seek
indulgence of an industrial adjudicator for adjudication of
his dispute. In case he opts not to approach the Conciliation
Officer or fails to wait for a period of 45 days from the date
of moving his application, the Industrial Adjudicator will
acquire no jurisdiction to entertain the dispute.
10. Bare perusal of sub section (3) of section 2A
makes it clear that an application for adjudication of an
industrial dispute, relating to discharge, dismissal,
retrenchment or termination of his service can be moved
by an employee before expiry of three years from the date
of his discharge, dismissal, retrenchment or otherwise
termination of service, as the case may be.
11. As emerged out of the claim statement, services
of the claimant was terminated on 01.12.2008. Claimant
projects that the Conciliation Officer entered into
conciliation proceedings and forwarded his failure report
to the appropriate Government on 23.09.2013. Out of facts
presented by the claimant, it emerged over the record that
his Services were disengaged by the management on
01.12.2008. He raised an industrial dispute before this
Tribunal on 3.10.2013, using provisions of sub section (2)
of section 2A of the Act. For approaching this Tribunal,
under provisions of sub-section (2) of section 2A of the
Act, limitation of three years from the date of discharge,
308
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
dismissal, retrenchment or otherwise termination of service
of an employee has been imposed by the legislature. Thus,
it is apparent that the claimant could have approached this
Tribunal under sub-section (2) of section 2A of the Act till
30.11.2011 only. As is evident, claim preferred is beyond
the period of limitation. Under these circumstances, this
Tribunal cannot invoke its jurisdiction for adjudication of
the dispute.
12.Since the dispute has been raised beyond the
period of limitation, the Tribunal cannot entertain it. Under
these circumstances, the Tribunal is constrained to brush
aside the claim statement, presented by the claimant.
Accordingly, his claim is dismissed, being barred by time.
An award is, accordingly, passed. It be sent to the
appropriate Government for publication.
Dated 03.10.2013
DR. R.K. YADAV, Presiding Officer
ubZ fnYyh] 27 fnlacj] 2013
dkñvkñ 173.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj funs'kd] jk"Vªh;
iquokZl izf'k{k.k ,oa vuqla/kku 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; Hkqous'oj ds
iapkV ¼lanHkZ la[;k 17@2000½ izdkf'kr djrh gS] tks dsUnzh; ljdkj
dks 26&12&2013 dks izkIr gqvk FkkA
[Qkñ lañ ,y&42011@19@2000&vkbZvkj ¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 27th December, 2013
S.O. 173.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No.17/2000)
of the Central Government Industrial Tribunal/Labour Court
No.1, Bhubaneswar now as shown in the Annexure in the
Industrial Dispute between the employers in relation to the
management of The Director, National Institute of
Rehabilitation Training & Research and their workman,
which was received by the Central Government on
27/12/13.
[F. No. L-42011/19/2000-IR(DU)]
P. K.VENUGOPAL, Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT,
BHUBANESWAR
Present:
Shri J. Srivastava,
Presiding Officer, C.G.I.T.-cum-Labour Court,
Bhubaneswar.
INDUSTRIAL DISPUTE CASE NO. 17/2000
Date of Passing Award — 13th September, 2013
Between:
The Director, National Institute of Rehabilitation
Training & Research, Olatpur, Po. Bairoi, Cuttack.
... 1st Party-Management.
(And)
The General Secretary, National Institute of
Rehabilitation Training and Research Employees
Union, Po. Bairoi, Cuttack.
............ 2nd Party—Union.
Appearances:
M/s. Ganeswar Rath,
:
For the lst Party—
Advocate.
Management.
Shri C.R. Mohanty,
:
For the 2nd Party—
General Secretary.
Union.
AWARD
The Government of India in the Ministry of Labour
has referred an industrial dispute existing between the
employers in relation to the management of Director,
National Institute of Rehabilitation Training and Research
and their workmen in exercise of the powers conferred
under clause (d) of sub-section (1) and sub-section 2(A) of
Section 10 of Industrial Disputes Act, 1947 vide its letter
No. L-42011/19/2000/IR (DU), dated 05.07.2000 in respect
of the following matter.
Whether the demand No. 1 to 4 (List attached) of
National Institute of Rehabilitation Training and
Research Employees Union are justified? If yes, to
what relief the employees are entitled?
2. The 2nd Party-Union through its General Secretary
has filed its statement of claim alleging that the
establishment of the 1st Party-Management is functioning
since 1975 with the purpose of giving service to the public
on payment. But the employees rendering their valuable
services are not being given proper and genuine benefits
whereas the employees of other similar establishments are
getting much more benefits. The 2nd Party-Union submitted
a charter of demands to the Management with a request to
settle the disputes amicably. When their demands were
turned down, the matter was raised before the concerned
conciliation officer. But due to non-cooperation of the
Management the grievances of the 2nd Party-Union could
not be duly addressed and consequently the conciliation
proceedings ended in failure. Thereafter the Central
Government referred the dispute regarding four demands
of the 2nd Party-Union, namely, the time scale promotion,
payment of pension, filling up of vacant posts and filling
up of vacant posts having pay scale of Rs. 5500 — 9000 on
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
309
the recommendations of the Departmental Promotion
Committee.
3. The contention of the 2nd Party-Union is that the
establishment of the 1st Party-Management is fully owned
by the Government of India which comes under the
supervision and control of the Ministry of Social Justice
and Empowerment. On 20.10.1984 the establishment of the
1st Party-Management was merged with the National
Institute of Rehabilitation Training and Research shortly
known as NIRTAR and registered as society under the
Societies Registration and from that date the employees of
the 1st Party-Management were declared to be the
employees of the Government of India and service
conditions of the employees of the Government of India
were made applicable to them. Their wage structure was re-
formed at par with the employees of the Government of
India, but they have not given other service benefits
including promotional facilities as were admissible to the
employees of the Government of India.
4. Subsequently it was decided that the employees
of the 1st Party-Management will be given pay scale of the
next higher posts under time scale promotion policy vide
Office Order dated 16.10.1990, but without giving
designation of higher posts. By virtue of this office order
only 91 employees were granted time scale. But thereafter
no time scale promotion is being given to the eligible
employees even after rendering more than ten years of
service. The 1st Party-Management is not giving the post
retirement benefits such as pension, gratuity, G.P.F. etc to
its employees. Later-on after repeated demands the 1st
Party-Management has formed a consolidated fund for
payment of pension and pensionary benefits which are
now being been given from the consolidated fund. This is
in violation of terms of employment and conditions of
service. The 1st Party-Management is not filling the vacant
posts in senior cadres by promotion, but is engaging
employees of different departments to discharge the duties
of such posts instead of promoting its employees. Therefore
the vacant posts are needed to be filled up as quickly as
possible by giving promotion to the employees through
Departmental Promotion Committee. The 1st Party-
Management is also not filling up the posts bearing pay
scale of Rs. 5500 to 9000, but is recruiting candidates from
the direct sources as a result of which promotional avenues
of the lower grade employees are being cut. Therefore all
posts in the pay sale of Rs. 5500 to Rs. 9000 should be filled
up by promotion on the recommendation of the
Departmental Promotion Committee.
5. The 1st Party-Management in its written statement
has submitted that NIRTAR is a Hospital-cum-Training and
Research Institute devoted to the rehabilitation services
for the persons with disabilities. On 22.2.1984 it became a
separate autonomous body registered under the Societies
Registration Act, 1882 and came to the direct administrative
control of the Ministry of Social Justice and Empowerment,
Government of India. It adopted Central Government rules
and regulations so as to enable the employees to derive
the benefits of 4th pay commission. Since then same are
being followed. The employees are performing their duties
as per their duty roster like in any other hospital and are
being extended the benefits as applicable to the Central
Government employees on the specific orders issued by
the Ministry of Social Justice and Empowerment. All the
benefits are not extended automatically to its employees
as being done in the case of the Central Government
Employees. On coming to the administrative control of the
Ministry of Social Justice and Empowerment a tripartite
agreement was reached by virtue which the employees
exercised their option for availing of the benefits of 4th pay
commission recommendation as applicable. The allegation
of the employees that their service conditions were changed
and they were compelled to work like the employees of the
Government of India by relinquishing the benefits which
they were receiving prior to 20th October, 1984 and revision
of wage structure by the Management are incorrect and
misleading. The matter of promotional avenues was
considered by the 20th Executive Council held on 10.4.1990
and it approved promotion of those employees to the next
higher scale who had completed five years of service as a
one time measure to avoid stagnation. Accordingly
promotions were made to Group-C and Group-D employees
who have completed five years of service vide G.O. No. 28/
90. Since the promotion was granted as a one time measure
the same could not be continued. The employees Union
did not raise this Issue during that time. With effect from
1.1.1996 the benefits of 5th pay commission were made
applicable to the employees of NIRTAR and orders for time
scale promotion based on ACP were received. 50th
Executive Council and 16th General Council approved the
implementation of ACP to the employees of NIRTAR. The
final clearance of the Ministry was received vide letter dated
18.10.2000 and the same is being implemented. Therefore,
it is not practicable to consider time scale promotion
retrospectively. The NIRTAR being an autonomous body
and registered society the employees are not eligible to get
their pension from Government Treasury. However a
pension fund has been built up by its own arrangements
and the employees who are retiring from service are being
granted the benefits of pension, gratuity, G.P.F. etc.
invariably at par with the Central Government employees
without any delay. Regarding filling up of the vacant posts,
16 posts out of 23 vacant posts, which were technical and
crucial in nature were filled up. Remaining seven posts will
also be filled up gradually as per respective recruitment
criteria depending on the requirement. So far as filling up
of posts bearing pay scale of Rs. 5500 to 9000 by D.P.C.,
14 posts out of 26 posts have been filled up by the
departmental promotion committee from the existing
employees and the remaining 12 posts are being filled up
by direct recruitment as per existing recruitment rules
310
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
applicable for each category. In case of direct recruitment
the employees who are eligible and fulfill the requirement
can also apply. At the time of selection no instruction can
be given to the selection committee to give preferential
treatment to the employees as it will be against the principle
of natural justice and will cause prejudice to other aspirants.
Therefore the claim petition of the 2nd Party-Union lacks
substance and is liable to be dismissed.
6. No issues have formally been framed by my learned
predecessor, but the reference can safely be answered by
taking into account the dispute referred as per schedule of
reference. Accordingly two points of issue come up for
adjudication:—
ISSUES
(1) Whether the demand Nos. 1 to 4 (list attached) of
National Institute of Rehabilitation Training and
Research Employees Union are justified?
(2) If yes, to what relief the employees are entitled?
7. In order to substantiate its claim the 2nd Party-
Union has examined three witnesses in evidence, namely,
W.W.-1 Shri Gopal Chandra Satpathy, W.W.-2 Shri
Birakishore Behera and W.W.-3 Shri Chittaranjan Mohanty
and relied on seven documents marked as Ext.-1 to 7
8. On the other hand the 1st Party-Management has
examined M.W.-1 Shri Sambhunath Majhi and relied on
five documents marked as Ext. -A to E.
FINDINGS
ISSUE NO. 1
9. An industrial dispute with regard to justification
of four demands of the 2nd Party-Union has been referred
to this Tribunal for adjudication. These demands relate to
(1) Time Scale Promotion (ii) Pension (iii) Filling up the
vacant posts and (iv) Post bearing scale of pay Rs. 5500—
9000 be filled up by departmental promotion committee.
10. The undisputed facts are that the 1st Party-
Management was earlier functioning as a Public Sector
Undertaking, but it later came under the direct
administrative control of Ministry of Social Justice and
Empowerment, Government of India. It adopted Central
Government Rules and Regulations and also framed bye-
laws for administration and management of its affairs. The
employees of the 1st Party-Management are not getting
certain benefits such as promotional facilities, post
retirement benefits, time scale and other promotional
avenues as are admissible to the employees of the
Government of India.
11. As regards the time scale promotion some of the
employees of the 1st Party-Management were given pay
scale of the next higher post under time scale promotion
without giving designation of higher post. On this score
only 91 employees were granted the benefits, who had
completed five years of service, but thereafter no time scale
promotion was given to the eligible employees even after
rendering more than ten years of service. Therefore time
scale promotion be given to other employees also with
retrospective effect.
12. In this regard the contention of the 1st Party-
Management is that the 20th Executive Council in its meeting
held on 10.4.1990 approved the promotion of only those
employees to the next higher scale, who had completed
five years of service as one time measure to avoid stagnation.
Accordingly promotions were given to 91 Group C & D
employees to 91 employees. The same practice was not
continued further. The Union also did not raise this issue
during that time.
13. Here it may be mentioned that vide Ext.-2, 91
employees were given promotions with effect from 7.5.1990.
The 1st Party-Management has alleged this promotion as
a one time measure. But the 2nd Party-Union could not
show any reason as to why this issue was not raised at the
later stage impressing that the Resolution of the Executive
Council was not a one time measure, but it was to be given
effect to at due intervals when eligibility of such
promotions subsequently arises. The 1st Party-
Management has also alleged that only those benefits
eligible to Central Government employees are extended to
the employees of the 1st Party-Management on which
specific orders are issued by the Ministry of Social Justice
and Empowerment. All the benefits are not extended
automatically to the employees of the 1st Party-
Management as is being done in the case of the Central
Government employees. Therefore this demand of the 2nd
Party-Union cannot be held justified and no relief on this
count can be given to them.
14. With regard to the demand of pension, there
seems no dispute between the parties as it has been
admitted that pensionary benefits, such as pension, gratuity
and G.P.F. are being given to the employees of the 1st Party-
Management from a consolidated fund created by its own
resources. The demand of the 2nd Party-Union is that they
should be given pension and other post retirement benefits
directly from the Government treasury. But no order of the
Government has been issued in this regard. No doubt
Rule 6, Sub-Rule VII of by-law of NIRTAR, Ext.-7 provides
that the employees of the Institute shall be eligible to
pensionary benefits, G.P.F. and gratuity as per the Central
Government Rules, but this sub-rule is silent as to from
which source pensionary benefits will be provided to the
employees of the 1st Party-Management. However, the 1st
Party-Management shall make every possible effort to take
up the matter with the Government to provide pension to
its employees from the Government Treasury like other
Central Government Employees so that shortage of funds
will not be faced in paying pension to its employees in
future.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
311
15. The third demand relates to filling up of the vacant
posts. In this regard the 1st Party-Management has alleged
that out of the 23 vacant posts 16 posts, which were
technical and crucial in nature, were filled up and at the
time of filing of written statement/counter only three posts
were lying vacant. The Government of India has issued
circulars from time to time restraining filling up of vacant
posts and surrendering 10% of the existing vacant posts.
Because of this reason the vacant posts could not be filled
up immediately. M.W.-1 Shri Sambhu Nath Majhi has
categorically stated this fact in his examination in chief and
the 2nd Party-Union has not denied the assertions made
by or on behalf of the 1st Party-Management. The grievance
of the 2nd Party-Union as is revealed by its General Secretary
Shri Chittaranjan Mohanty W.W.-3 in his evidence is that
the Management used to keep most of the posts vacant
and surrender some of the Group-C and D posts which
should not be surrendered and the vacant posts need to
be filled up in time. Now only three posts are said to be
vacant in Group-C and D cadre as has been stated by M.W.-
1 in his statement before the Court. The 1st Party-
Management is directed to fill up these posts as per the
Recruitment Rules without any further delay and must
continue to fill up the vacant posts in future within a
reasonable time.
16. There is another demand for filling up of posts
bearing pay scale of Rs. 5500-9000 by departmental
promotion committee. The assertions of the 2nd Party-
Union is that the 1st Party-Management is recruiting
candidates from the open market to fill-up the posts bearing
pay scale of Rs. 5500 - 9000 without giving promotion to its
employees. Therefore the demand of the Union is that these
posts should be filled-up by way of promotion on the
recommendation of the Departmental Promotion Committee.
17. On the other hand, the 1st Party-Management
has stated that out of 26 posts bearing pay scale of
Rs. 5500-9000, 14 posts be filled up by the Departmental
Promotion Committee from the existing employees and the
remaining 12 posts are being filled-up by direct recruitment
as per existing Recruitment Rules applicable for each
category. Those employees who are eligible and fulfill the
requirement can also apply for these posts. From the side
of the 2nd Party-Union it has been admitted by its witnesses
namely W.W.-1 Shri Gopal Chandra Satpathy, W.W.-2
Shri Birakishore Behera and W.W.-3 Shri Chittaranjan
Mohanty that Recruitment Rules prescribe certain posts
to be filled-up by direct recruits and certain other posts are
required to be filled-up by departmental promotion
committee. If this is the position how the demand of the
2nd Party-Union can be justified that all the posts in the
pay scale of Rs. 5500-9000 be filled-up by promotions only
under the recommendations of the departmental promotion
committee. The 1st Party-Management has to adhere to
the Recruitment Rules and it cannot travel beyond that.
18. This issue is decided as per observations made
above and conclusions derived thereby.
ISSUE NO. 2
19. For the aforesaid reasons the employees of the
1st Party-Management are not entitled to any immediate
and direct relief. The demands raised by the 2nd Party-
Union are found justified and reasonable to the extent
discussed above and necessary directions have been given
to the 1st Party-Management to follow them.
20. Reference is answered accordingly.
JITENDRA SRIVASTAVA, Presiding Officer
ubZ fnYyh] 27 fnlEcj] 2013
dkñvkñ 174.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj 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;] Hkqous'oj ds iapkV ¼lanHkZ
la[;k 1@2013½ dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks
26&12&2013 dks izkIr gqvk FkkA
[Qk-la- ,y&42012@129@2012&vkbZvkj ¼Mh;w½]
ih-ds- os.kqxksiky] vuqHkkx vf/kdkjh
New Delhi, the 27th December, 2013
S.O. 174.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No.01/2013)
of the Central Government Industrial Tribunal/Labour Court
No.1, Bhubaneswar now as shown in the Annexure in the
Industrial Dispute between the employers in relation to the
management of NHAI and their workman, which was
received by the Central Government on 27/12/2013.
[F. No. L-42012/129/2012-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT, BHUBANESWAR
Present:
SHRI J. SRIVASTAVA,
Presiding Officer, C.G.I.T.-cum-Labour Court,
Bhubaneswar.
INDUSTRIAL DISPUTE CASE NO. 1/2013
Date of Passing Order — 1st July, 2013
312
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
Between:
1. The Proprietor, Col. Bimal Kumar Chaudhary (retired),
P-28, Sangram Security, Jagat Banerjee Ghat Road,
Shibpur, Howrah-711102.
2. The Project Director, NH-60, Kharagpur Project
Implementation Unit, NHAI Complex, Near Chourangee,
Po. Inda, Kharagpur-721 305
3. Ex-Servicemen Security Personnel, Laxmannath Toll
Plaza, Laxmannath, Balasore, Orissa.
...1st Party-Managements
(And)
Their workmen Shri Ganesh Chandra Mohanty & 2
Others, Vill./Po Chaka Barahapur,
Dist. Balasore, Orissa — 756 055
...2nd Party Workmen
Appearances:
None
:
For the 1st Party-
Managements.
None
:
For the 2nd Party-
Workmen.
ORDER
Case taken up. Parties are absent. The 2nd Party-
workmen have failed to file any statement of claim despite
sending ordinary notice on 28.1.2013 and registered notice
on 29.5.2013. Nearly a period of six months is going to
expire and the 2nd Party-workmen have taken no care to
take any steps for further prosecuting their case, though
the reference in itself is required to be answered within
three months. When the workmen themselves seem to have
no interest in their case it will be a wanton effort to keep the
case pending indefinitely. It might be that the 2nd Party-
workmen have settled their dispute amicably with the
Management out of the court and for that reason they are
not further prosecuting their case. Under the circumstances
a no-dispute award is to be passed in the case and
accordingly a no-dispute award is passed.
2. The reference is answered in the above terms.
JITENDRA SRIVASATAVA, Presiding Officer
ubZ fnYyh] 27 fnlacj] 2013
dkñvkñ 175.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj bafM;u vksojlht
cSad ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèdj.k@Je U;k;ky;] p.Mhx<+ ds iapkV ¼lanHkZ la- 5@2010½ dks
izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 27&12&2013 dks izkIr
gqvk FkkA
[Qk- la- ,y&12012@23@2010&vkbZvkj ¼ch&II½]
jfo dqekj] vuqHkkx vf/kdkjh
New Delhi, the 27th December, 2013
S.O. 175.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 5/2010)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court-I,
Chandigarh as shown in the Annexure, in the industrial
dispute between the management of Indian Overseas Bank
and their workmen, received by the Central Government on
27/12/2013.
[F. No. L-12012/23/2010 - IR(B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
BEFORE SHRI SURENDRA PRAKASH SINGH,
PRESIDING OFFICER, CENTRAL GOVT.
INDUSTRIAL TRIBUNAL-CUM-LABOUR
COURT-1, CHANDIGARH
Case No. ID No. 5/2010
Shri Raj Kumar son of Maghu Ram, R/o House No. 186/4,
Suhra Mohalla, Mandi (HP)
...Applicant
Versus
1. Chief Regional Manager, Indian Overseas Bank, SCO
II, Sector 7-C, Chandigarh.
2. Chairman Indian Overseas Bank Central Office, Post
Box No.3765-763, Annaselia, Chennai (Tamil Nadu).
3. Branch Manager, Indian Overseas Bank, Mandi,
Chaman Complex, Seri Bazaar, Mandi, H.P.
...Respondents/Employer
Appearances:
For the workman
:
Workman in person
For the management
:
Shri Prem Nath Katoch
AWARD
Passed on:- 20-11-2013
Central Govt. vide notification No. L-12012/23/2010-
IR(B-11) Govt. of India, Ministry of Labour, New Delhi,
dated 17.05.2010 has referred the following dispute to this
Tribunal for adjudication:
"Whether the action of the Management of Indian
Overseas Bank in terminating the Services of Sh. Raj
Kumar w.e.f. 01.09.2008 without following the
provisions of Sections 25-F, 25-G of the I.D.Act 1947,
is legal and justified? What relief the workman is
entitled to?"
2. On receipt of the reference notices were issued to
the parties. Workman filed claim statement in which he
alleged that he was engaged by the respondent bank as
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
313
Peon/Daftari in Mandi Branch since January 2004, on daily
wages and he has completed 240 days in each calendar
year. The workman further submitted that he served a
request letter to Regional Manager of the respondent bank
on 25.6.2008 and also raised an Industrial Dispute regarding
non regularization of his services before the Assistance
Labour Commissioner Chandigarh on 14.7.2008. Workman
further submitted that during the pendency of conciliation
proceedings, in utter disregard of provision of Industrial
Disputes Act, the respondent bank orally terminated his
service on 1.9.2008 without complying with the mandatory
provisions of the ID Act. He further submitted that he has
worked since January 2004 to 31.8.2008 to the entire
satisfaction of the respondent management and completed
240 days in each calendar year. He has also given detail of
his working as below:—
Transaction
Dated
Days
Voucher No.
300
15.10.2007
15
328
01.10.2007
15
138
01.12.2007
15
164
15.12.2007
15
97
31.12.2007
16
237
17.01.2008
15
216
31.01.2008
16
38
16.02.2008
15
193
01.03.2008
14
137
15.03.2008
15
38
02.04.2008
16
287
15.04.2008
15
171
15.05.2008
15
202
31.05.2008
16
319
16.06.2008
15
93
01.07.2008
15
221
01.08.2008
16
53
16.08.2008
15
Total days
294 days
3. At the time of his termination no notice was given
nor any compensation has been paid and provisions of ID
Act have been violated by the respondent management. In
order to deprive the workman from his job and to deny
permanent status. During pendency of Conciliation
proceedings, the respondent bank tries to fabricate the
vouchers in the name of some unknown person. The
workman sought that termination dated 1.9.2008 may be
set aside and the management may be directed to reinstate
the workman with full back wages and consequential
benefits and management may also be directed to regularize
the services of the workman.
4. Management filed written statement in which it is
submitted by the management that the workman was never
employed as peon/daftri as alleged and the workman was
not on the roll of the bank but merely a casual worker. The
workman was not given any appointment and he was a
casual worker assigned duties on day by day basis as and
when required and he never completed 240 days in any of
the calendar year. Detail of his working is also given in
annexure 'A' filed along with the written statement. It is
admitted by the bank that application dated 25.6.2008 of
the workman was received. As per recruitment rules some
persons were called from the employment exchange,
interview was conducted on 18.8.2008 and the claimant
also applied on 25.6.2008 and it came to the notice of the
management that workman was not eligible for the above
post on account of his being over age. It is further submitted
by the management that workman wants to back door entry
into service which is against the recruitment rules of the
bank and management requested that the claim of the
workman may be rejected.
5. Workman also placed on record application dated
25.6.2008 Ex.W1 application dated 14.7.2008, notice issued
by the Assistant Labour Commissioner dated 28.8.2008,
letter of the bank dated 27.10.2004 and letter dated 8.8.2008
Ex. W5 and vouchers/withdrawn slip Ex. W7 to W57.
6. In evidence the workman files his affidavit which
has been exhibited as WI. The management in evidence
tendered two affidavits one of Prem Nath Katoch and
another Premlal son of Sandup. The said Shri Premlal was
not examined by the management in evidence. Shri Prem
Nath Katoch was examined & cross-examined. In cross-
examination the witness of the management admitted that
no notice or retrenchment compensation was paid to the
workman as the same was not required being the workman
was working as casual labour. The witness also denied
that workman has completed 240 days preceding to the
date of termination that is 1.9.2008.
7. My predecessor vide order dated 26.7.2010 while
exercising its jurisdiction under section 36(4) of I.D. Act,
held that none of the parties shall be permitted to be
represented by any advocate.
8. I have heard the parties, and also gone through
the record and evidence in the case. Workman during
argument submitted that he was employed with the bank
from January, 2004 on daily wages and he was turned out
from the job w.e.f. from 1.9.2008 and the workman has already
put in more than 240 days of service to the date of 1.9.2008
in the precedings 12 months. The management has not
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[PART II—SEC. 3(ii)]
complied with provisions of Section 25F of the ID Act. As
the management has not complied with the mandatory
provisions of the Industrial Dispute Act the workman is
entitled for reinstatement in service with full back wages.
9. In rebuttal the representative of the management
submitted that the post was filled up from the persons
called from the employment exchange and workman has no
right to post as he was working on casual basis. Therefore
the workman was not entitled to be given any notice,
reinstatement, compensation as he has not put in 240 days
mandatory service during one calendar year, the preceding
of the date of termination and the reference is deserved to
be answered in favour of the management.
10. The management in its reply to the claim statement
of the workman clearly mentioned that workman was not
employed as peon/daftri and he was also not on the roll of
the bank but the management in its reply admitted this fact
that the workman was a casual worker. In his claim statement
workman mentioned that he has completed 240 days in
each calendar year 2007-08 (detail of the working days
mentioned in para-5 of the claim statement). Besides this,
workman in Ex. W1 to W2 clearly alleged that workman
was working in bank since January, 2004 to 31.8.2008 and
all these documents have been admitted by the
representative of the management.
11. The management filed annexure 'A' along with
the affidavit of Shri Prem Nath Katoch. As per annexure 'A',
it is submitted that the engagement of workman's for 12
days in 2004, 75 days in 2005, 121 days in 2006, 214 days in
2007 and 131 days from January, 2008 to August, 2008. If
calculated, as per the version of the management preceeding
to the date of termination that is 1.9.2008, it came to 224
days which excluded Sunday and Holidays. If Sunday and
holidays are included then the workman must have worked
for 240 days in one calendar preceeding to the date of
termination.
12. It is pertinent to mention here that as per Ex. W2
which has been also admitted by the management reveals
that since January, 2004 in all calendar year 2004, 2005,
2006 and 2007 he has completed 240 days respectively.
13. After examining the entire documents, oral
evidence, the workman completed 240 days preceeding to
the date of termination in one calendar year. It is also
pleaded by the workman that he submitted application for
the post of peon/daftri which was rejected because the
workman was not eligible being over age. It is held in the
management of Divisional Engineer Telecommunications,
Mahaboobnagar Vs. Venkataiah, 2007 (112) FLR 24 that
mere completion of 240 days of continuous service in a
year can not by itself form the basis for directing
regularization of services of a workman.
14. As stated above, the workman's application for
recruitment for the post of peon was rejected being overage,
workman can not be reinstated in service.
15. In the present case, workman is entitled to get
compensation as required in Section 25(F)(b) of the
Industrial Disputes Act 1947. The amount of compensation
comes to Rs. 6525. Keeping in view the peculiar facts and
circumstances of the case, the workman also to get
Rs. 5000 as expenses of the litigation.
16. Thus the management is directed to pay
Rs. 11525 to the workman within two months from the date
of notification of the Award by the Central Govt. Reference
is answered accordingly. Central govt. be informed. Hard
copy as well as soft copy be sent to the Central Govt. for
publication.
Chandigarh.
20.11.2013
S. P. SINGH, Presiding Officer
ubZ fnYyh] 27 fnlEcj] 2013
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U;k;ky;] ukxiqj ds iapkV ¼lanHkZ la[;k 314@2003½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 27&12&2013 dks izkIr gqvk FkkA
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New Delhi, the 27th December, 2013
S.O. 176.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 314/2003)
of the Cent.Govt. Indus.Tribunal-cum-Labour Court,
NAGPUR as shown in the Annexure, in the industrial
dispute between the management of Food Corporation of
India, and their workmen, received by the Central
Government on 27/12/2013.
[F. No. L-22012/296/2003-IR(CM-II)]
M. K. SINGH, Section Officer
ANNEXURE
BEFORE SHRI J.P.CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No.CGIT/NGP/314/2003
Date: 29.11.2013
Party No.1(a)
The District Manager,
Food Corporation of India,
Ajani, Nagpur,
Nagpur - 440015.
¹Hkkx II—[k.M 3(ii)º
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315
Party No.1(b)
The Senior Regional Manager,
Food Corporation of India,
Mistry Bhawan, Dinshaw Wacha
Road, Churchgatye,
Mumbai - 400020.
Versus
Party No.2
The Secretary,
Rashtriya Mazdoor Sena, Hind Nagar
Ward No. 2, Near Boudha Vihar,
Post: Wardha, Distt. Wardha (M.S.)
AWARD
(Dated: 29th November, 2013)
In exercise of the powers conferred by clause (d)
of sub-section (1) and sub-section 2(A) of section 10 of
Industrial Disputes Act, 1947 (14 of 1947) ("the Act" in
short), the Central Government has referred the industrial
dispute between the employers, in relation to the
management of Food Corporation of India and their
workman, Shri Santosh Maroti Sapkal, for adjudication, as
per letter No. L-22012/296/2003-IR (CM-II) dated 08.12.2003,
with the following schedule:—
"Whether the action of the management of Food
Corporation of India, Nagpur (M.S.) in terminating the
services of Shri Santosh Maroti Sapkal, Security Guard
w.e.f. 14.03.1999 is legal and justified? If not, to what relief
the concerned workman is entitled?"
2. On receipt of the reference, the parties were noticed
to file their respective statement of claim and written
statement and accordingly, the workman, Shri Santosh
Maroti Sapkal, (the workman" in short), filed the statement
of claim and the management of Food Corporation of India
("Party No. 1" in short) filed their written statement.
The case of the workman as presented in the
statement of claim is that he was in the employment of
Party No. 1 from 11.05.1993 and he was initially engaged
through a contractor at Wardha Depot of Party No. 1, as a
Security Guard and he was in continuous service without
any interruption till 14th March, 1999, when his services
were terminated orally by Party No. 1, without following
the due procedure of law and he had completed more than
240 days of work in each year and the termination of his
services on 14.03.1999 was not in good faith, but in
colourable exercise of the rights and powers by the Party
No. 1 and while terminating his services, neither one
month's notice nor one month's wages in lieu of notice nor
retrenchment compensation was given to him as required
under section 25-F of the Act and after his illegal
termination, fresh hands from the department of home guard
and police were engaged by Party No. 1 to extract the duties
of Security guards, in violation of the provision of section
25-H of the Act and the work which he was performing is
constantly in existence and the same is of a perennial nature
and as his termination is illegal and unlawful, he is entitled
for reinstatement in service with continuity and full back
wages.
The further case of the workman is that in 1991, he
was engaged by the Party No. 1 through the contractor for
a period of two years, but the contract was made only on
papers and after every two years, the Party No. 1 changed
the contractor on papers only and the engagement of the
so-called contractor did not replace the Security Guards
and he was also not disturbed from his services and he
was merely shown to be engaged by the contractors, but
actually he was working under the direct control and
supervision of the Party No. 1 and the contractor had no
role to play in the same and the work performed by him was
being assigned to him by Party No. 1 and he was a regular
employee of Party No. 1 and Party No. 1 was his real
employer and not the contractor as alleged and the
engagement and change of contractors by Party No. 1 from
time to time was sham and only a camouflage to deny his
legitimate claim and the contract between Party No. 1 and
the contractor was bogus and not genuine and therefore,
his oral termination from services was against the
mandatory provisions of the Act and the Central
Government decided to abolish the appointment of contract
labour as contemplated under section 10 of the Contract
Labour (Regulation and Abolition) Act, 1970 and issued
notification on 01.11.1990 with directions to abolish the
contract labour system in the establishment of the Party
No. 1 and to give employment to contract labours engaged
by the management and therefore, it was the mandatory
duty of the Party No. 1 to abolish the contract labour system
in all places and management of FCI implemented the
notification only at Nagpur and Manmad and absorbed
the Security Guards working at Nagpur and Manmad, but
at Akola, Amravati, Wardha and Gondia districts, the
contract labour system was continued by the management,
with an intention to deprive him from the benefits under
the labour laws.
It is further pleaded by the workman that his salary
was paid by the Party No. 1 and not by the contractor and
his daily attendance was also marked by the Asstt.
Manager of FCI, Wardha Depot and the Party No. 1 was
supervising his work through their officers and he had no
relation with the so called contractors engaged by the Party
No. 1 and Party No. 1 also supplied the articles, such as,
torch, lathi, whistle and uniform etc to him and in view of
the long spell of work being carried out by him, he is entitled
to be reinstated in service with continuity and full back
wages.
3. The Party No. 1 in their written statement have
pleaded inter alia that the workman was never in their
employment and the workman has not impleaded the
contractor, who appointed him, as a Party and the workman
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[PART II—SEC. 3(ii)]
was engaged by the contractor as a Security Guard at FCI
Depot and the said contractor is a necessary party and in
absence of the contractor, the proceeding cannot proceed
and the workman was not in their service uninterruptedly
till 14th March, 1999 and since the contract of the contractor
came to an end, the services of the workman were terminated
by the contractor and the original period of contract given
to the contractor for providing Security services was up to
1998 and the same was extended as per the terms and
conditions till March, 1999 and as the workman was not
employed by them, there was no question of following the
procedure of termination by them and they were not the
employer of the workman and the services of the workman
were never utilized by them as employer from 11.05.1991 to
14.03.1999 , without any break in service and the workman
did not complete 240 days of work in a year as alleged and
as the workman was engaged by the Security Contractor,
there was no relationship of master and servant between
them and the workman at any point of time and under
section 10 of the Contract Labour (Regularisation and
Abolition) Act, they were exempted by the Central
Government, so the allegations made by the workman
against them are not true and there was no question of
violation of the provisions of 25 (H) of the Act and the
work does not constantly exist and the work of providing
security guards was given to other Government Agencies
like Police Personnel and Home guards and therefore, the
workman has no right to claim any relief from them and the
work of security is not perennial in nature and as and when
their go-downs are filled with food grains, then only,
services of the security guards are required and in
pursuance of notification issued by the Central Government
abolishing contract labour system, they appointed Home
guards and Police personnel as security guards.
The further case of party No.1 is that for the relief as
claimed in this reference, the workman had filed a writ petition
before the Hon'ble High Court, Nagpur Bench bearing W.P.
No. 1389/99 and the Hon'ble High Court rejected the said
WP and denied the reliefs prayed for and therefore, this
Tribunal has no jurisdiction to decide the reference and
the decision of the Hon'ble Court operates as res-judicata
and they floated tenders for the contract and lowest bidder
was awarded the contract and the change of contractor in
every two years was not on papers only and they had no
say in the appointment of security guards by the security
contractor and they had no control over the appointment
and service conditions of the workman, who was an
employee of the security agency and he was never their
employee and the security contractor was the employer of
the workman.
The further case of party no.1 is that the appropriate
government decided to abolish the employment of the
contract labour as contemplated under section 10 of the
Contract Labour (Regularisation and Abolition) Act, 1970
and the interpretation of the notification issued on
01.11.1990 put by the workman is not correct and they were
exempted from the operation of the Act of 1970 in the year
1989 and the said exemption was withdrawn in the year
1999 and therefore, the security contact given to the
contractor was terminated and hence, the services of the
workman were terminated by the security contractor and
they did not pay the salary to the workman and it was the
contractor, who was paying the same to the workman and
when the contractor failed to pay the salary to the workman,
they paid the amount as per the directions given by the
ALC from time to time and the said amount was recovered
from the contract's bill and they only used to check the
attendance of the security guards to find out as to whether
the contractor had made arrangement of the requisite
number of security guards, as per their requirement and
they did not have the power to terminate any employee
appointed by the contractor and they did not provide any
article, such as torch, Lathi, whistle and uniform etc to the
workman and as such, the workman is not entitled to any
relief.
4. Both parties have led oral evidence in support of
their respective claims, besides placing reliance on
documentary evidence.
The workman in support of his claim has examined
himself as a witness. In his evidence, which is on affidavit,
the workman has reiterated the facts mentioned in the
statement of claim.
In his cross-examination, the workman has admitted
that he as engaged in F.C.I. through the contractor, "Singh
Security Services". The workman in his cross-examination
has further admitted that no appointment order was issued
by the F.C.I. to him and he has filed no document to show
that he was appointed by F.C.I. and F.C.I. was making
payment of his wages and he had worked for 240 days in
every calendar year with F.C.I.
5. Shri Suresh N. Bokade, the witness examined on
behalf of the party No.1 has also reiterated the facts
mentioned in the written statement, in his examination-in-
chief, which is on affidavit. In his cross-examination, the
witness for the party No. 1 has admitted the suggestions
given on behalf the workman that the workman other
security guards were deployed tom work in F.C.I. through
the contractor, Singh Security Services and Singh Security
Services was given the contract to supply security guards
for two years and after the expiry of contract of Singh
Security Services in 1995, contract for supply of security
guards was given to Industrial Security and Fire Services
for two years and the workman and other security guards
were engaged in F.C.I. through the contractors till December,
1998 and after the notification made by the Government
imposing ban for engagement of contract labourers in 1998,
F.C.I. discontinued the engagement of contract labourers
and security guards were being deployed for watch and
ward duty of F.C.I. depots and the workman other security
¹Hkkx II—[k.M 3(ii)º
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317
guards worked continuously from the date of their
respective engagement till December, 1998 in F.C.I. through
different contractors and F.C.I. had the control regarding
the duties to be performed by the security guards.
6. At the time of argument, it was submitted by the
learned advocate for the workman that the workman from
11.05.1991 was in the service of the party No. 1 till 14.03.1999,
when all of a sudden, his services were terminated orally
by the party No.1 sections 25 F and 25 H of the Act and
party no 1 also did not comply with the provisions of the
Contract Labour (Regulation and Abolition) Act,1970
("Act,1970" in short) and as such, the termination of the
workman is illegal and null and void. It is further submitted
by the learned advocate for the workman that the
appointment of the workman to work in the establishment
of the Party No. 1 was admittedly through contractor
appointed by Party No. 1 and it is an admitted position that
the tenure of the contract was for two years and though
there was change of contractor in every two years, the
workman and other security guards remained the same and
there was a specific condition in the contract between the
management and the contractor that the set of workers will
be continued by the incoming contractor and in such
fashion, the workman and other security guards continued
to work in the establishment of Party No. 1 right from the
date of their respective date of appointments till March,
1999 and there was no bread in their service and each of
them completed 240 days of service in each calendar year
and the same shows that the work was all time available in
the establishment of Party No. 1 and is of perennial nature
and ever though the workman and other security guards
were employed by the contractor, fact remains and is also
admitted by the witness for the Party No. 1 that Party No. 1
had control over the working of the workman.
The learned advocate for the workman further
submitted that though Party No. 1 in the written statement
has contended that it was exempted from the provisions of
the Act, 1970, it has failed to produce any document in
corroboration of such contention and as mere statement of
Party No. 1 is no sufficient, the fact remains that Party No.
1 was never exempted from the provisions of the Act, 1970
and the Central Government by notification dated
01.01.1990 issued U/S 10 of the Act, 1970 abolished contract
labour system in the establishment of Party No. 1 and after
issuance of the said notification, Party No. 1 was prohibited
from engaging any contract labour and as the workman
and other security guards were engaged by Party No.1
inspite of notification prohibiting contract labour system,
the workman became the direct employee of the Party
No. 1 and he has attained the status of regular employee of
Party No. 1.
It was also argued by the learned advocate for the
workman that Party No. 1 has not filed on record any
document showing that it was registered as principal
employer or the contractors were registered under
Section 7 and Section 12 respectively of the Act, 1970 and
in absence of the said documents, it cannot be assumed
that the contract between the contractor and management
was genuine and it is clear that the contracts between the
Party No. 1 and the contractors were sham and bogus and
such contract was entered into only with malafide intention
to deny regular employment to the workman and after
termination of the services of the workman, Party No. 1
appointed police and home guard personnel as security
guards and this proves that the work is available even
today and after the notification dated 01.11.1990, Party
No. 1 regularized the contract labourers were engaged at
Nagpur and Manmad, but same was not the case at Akola,
Amravati, Wardha and Gondia and this shows that Party
No. 1 indulged into invidious discrimination amongst equal,
which is contrary to provisions of Articles 14 and 16 of the
constitution and the Writ Petition filed by the workman
and others as disposed of by the Hon'ble High Court with
a direction to the petitioners to approach the appropriate
authority and as such, the judgment in Writ Petition
1389/99, cannot operate as res-judicata.
In support of the contentions, the learned advocate
for the workman placed reliance on the decision reported
in 2006(2) Bom. CR - 167 (Food Corporation of India Vs
Prashant Pandurang Ramteke & others).
The learned advocate for the workman also submitted
that as the termination of the workman from service is illegal,
the workman is entitled for reinstatement in service with
continuity and full back wages.
7. Per contra, it was submitted by the learned
advocate for the party No.1 that the workman was never
appointed by party No.1 and he has engaged by the
contractor as a security guard and as such, the concerned
contractor is a necessary party and inspite of raising such
objection in the written statement, the workman did not
implead the contractor as a party and for that the reference
is not maintainable. It was further submitted by the learned
advocate for the party No.1 that the workman was engaged
by the contractor and as the contract of the contractor
came to an end in March, 1999, the services of the workman
were terminated by the contractor and as such, there was
no question of party No.1 complying with the due procedure
of termination and there was no relationship of master and
servant between the party No. 1 and the workman and the
party No.1 was exempted by the Central Government from
the ban imposed for engagement of contract labourers, so
contract was given to the security contractor, as per rules,
for supply of security guards and due to the notification of
the Government for abolition of contract labour system,
Home guards and Police personnel were appointed as
security guards and party No.1 has no control over the
workman and the security contractor was submitting bills
for payment for supply of security guards and the security
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[PART II—SEC. 3(ii)]
contractor was paying the wages to the workman. It was
further submitted by the learned advocate for the party
no.1 that the workman and some others had approached
the Hon'ble High Court, Nagpur Bench in W.P. 1389 of 1999
for the reliefs sought in this reference and the Hon'ble
High Court while depositing of the said petition have held
that the termination of the workman by the contractor was
a valid one and the action of FCI was legal and as such, the
workman cannot agitate the question again and the decision
of the Hon'ble High Court operates as res-judicata between
the parties and the workman is not entitled to any relief.
8. First of all, I will take up the submission made by
the learned advocate for the party no.1 that the present
reference is hit by the principles of res-judicata, due to the
decision of the Hon'ble High Court, Nagpur Bench in W.P.
1389/99.
It is not disputed that the workman alongwith 78
others through the union, "Rashtriya Mazdoor Sena
Saptahit Jaibhim" filed Writ Petition no. 1389/99 before the
Hon'ble High Court of Judicature at Bombay, Nagpur Bench,
Nagpur, for their regularisation and the Hon'ble High Court
did not grant such relief. On perusal of the order passed by
the Hon'ble High Court on 29.07.2002 in the said writ
petition, it is found that the workman and others claimed
regularisation on the ground that they were employed by
the contractor for doing regular work of the Food
Corporation of India and in view of the same, they have
became workmen of Food Corporation of India, since the
work on which they were employed is of perennial nature.
However, it is found from the judgment that the Hon'ble
High Court did not consider the main relief and passed the
following order:
"In view of the judgment of the Constitution Bench
in Steel Authority of India Ltd. and others Vs.
National Union water front workers and others
(reported in 2001 (7) SCC1), the relief sought by the
petitioners cannot be granted since the petition
involves disputed question of facts as also other
facts which are required to be adjudicated by
appropriate authority. Accordingly, the main prayer
to absorb them cannot be granted.
*
*
*
*
In view of the rejection of the main prayer, the question
of granting other prayer does not arise. In case, the
petitioners approach the appropriate authority, the
appropriate authority shall take decision in the matter
within a period of one year. The applicants are free to
approach the appropriate authority for redress of
their grievances."
So, it is clear from the orders passed by the Hon'ble
High Court as mentioned above that the Hon'ble High Court
did not consider the claim made by the workman and others
on merit and granted them the liberty to approach the
appropriate authority for redress. The Hon'ble High Court
in the decision reported in 2006(2) Bom.CR - 167 (Supra)
have held that, 'Because Division Bench had not gone into
merits of the case the decision cannot operate as res-
judicata". Applying the principles settled by the Hon'ble
High Court, as mentioned above to the case in hand, the
reference cannot be said to be hit by the principles of res-
judicata. So, there is no force in the contention raised by
the learned advocate for the party no. 1.
9. In this reference, it is never the case of the workman
that he was directly appointed or engaged by the party
no.1 as a security guard. In the very beginning of the
statement of claim, it has been mentioned by the workman
that he was initially engaged at Food Corporation of India
Depot, Wardha as a security guard, through a contractor.
In paragraph 4 of the statement of claim, the workman has
mentioned that, "In the year 1993, the workman was
engaged by the Food Corporation of India through
contractor, for the period of 2 years, but the contract was
made on paper." The case of the workman is that after
every two years, the party no.1 on papers showed the
change of contractors, but he was not disturbed from
services and he worked continuously without any break
till 14.03.1999 and as he worked as a security guard of
perennial nature, he is entitled for reinstatement in service.
The workman has also claimed that as the Central
Government issued notification on 01.11.1990 to abolish
the contract labour system in FCI and directed to give
employment to contract labours engaged by the
management and party no.1 implemented such direction at
Nagpur and Manmad only and gave employment and
regularized and absorbed the services of the Security Guards
working at Nagpur and Manmad and did not implement the
same at Wardha and other places to deprive him from the
benefits under the Labour Laws.
In his evidence on affidavit also, the workman has
mentioned that he was initially engaged in Food
Corporation of India as a Security Guard through a
contractor.
From the evidence on record and the own admission
of the workman in the cross- examination including the
specific admission that he was engaged by the contractor,
it is clear that the workman was engaged by the contractor.
The workman has not produeed any evidence to show that
he was directly engaged by the Party No. 1.
10.At this juncture, I think it apropos to mention
about the principles enunciated by the Hon'ble Apex Court
regarding contract labours, in the decisions reported in
1985-II LLJ-4 (S.C.) (The workman of the Food Corporation
of India Vs M/s Food Corporation of India), 2001 LAB IC
3656 (S.C.) (Steel Authority of India Ltd. and others Vs.
National Union Water Front Workers and others) and 1994
II CLR 402 (R.K. Panda & Others Vs. Steel Authority of
India and Others).
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319
In the decision reported in 1985-II LLOJ-4 (supra)
the Hon'ble Apex Court have held that:—
"Briefly stated, when corporation engaged a
contractor for handling food grain at Siliguri Depot,
the corporation had nothing to do with the manner
of handling work done by the contractor, the labour
force employed by him, payments made by him etc.
In such a fact situation, there was no privity of
contract of employer and workmen between the
corporation and the workmen. "Workmen" has been
defined (omitting the words not necessary) in the
Industrial Disputes Act to mean (any person
including an apprentice) employed in any industry
to do ......" . The expression' employed has at least
two known connotations, but as used in the
definition, the context would indicate that it is used
in the sense of a relationship brought about by
express or implied contract of service in which the
employee renders service for which he is engaged
by the employer and the latter agrees to pay him in
cash or kind as agreed between them or statutorily
prescribed. It discloses a relationship of command
and obedience. The essential condition of a person
being a workman within the terms of the definition is
that he should be employed to do the work in that
industry and that there should be, in other words, an
employment of his by the employer and that there
should be a relationship between the employer and
employee or master and servant unless a person is
thus employed there can be no question of his being
a "workman" within the definition of the term as
contained in the Act.
Dharangadhara Chemical Works Ltd. Vs. State of
Saurashtra (1957 - I - LLJ - 477). Now where a contractor
employs a workman to do the work which he contracted
with a third person to accomplish on the definition as it
stands, the workman of the contractor would not without
something more become the workman of that third person.
Therefore, when the workmen employed by the contractor
were certainly not the workmen of the corporation and no
claim to that effect has been made by the union."
11. In the decision reported in 2001 LAB IC - 3656
(supra) the Hon'ble Apex Court have held that:—
"The principle that a beneficial legislation needs to
be constructed liberally in favour of the class for
whose benefit it is intended, does not extend to
reading in the provisions of the Act what the
legislature has not provided whether expressly or by
necessary implication, or substituting remedy or
benefits for that provided by the legislature. The
intendment of the CLRA Act is to regulate the
conditions of service of the contract labour and to
authorize in Section 10(1) prohibition of contract
labour system by the appropriate Government on
consideration of factors enumerated in sub-section
(2) of Section 10 of the Act among other relevant
factors. But, the presence of some or all those factors,
provide no ground for absorption of contract labour
on issuing notification under Section 10(1) by the
appropriate Government, is not alluded to either in
Section 10 or at any other place in the Act and the
consequence of violation of Sections 7 and 12 of the
CLRA Act is explicitly provided in Sections 23 and
25 of the CLRA Act, it is not for the High Courts or
the Supreme Court to read in some unspecified
remedy in Section 10 or substitute for penal
consequences specified in Sections 23 and 25 a
different sequel be it absorption of contract labour
in the establishment of principal employer or a lesser
or a harsher punishment. Such an interpretation of
the provisions of the statute will be far beyond the
principle of ironing out the creases and the scope of
interpretative legislation and as such clearly
impermissible.
Thus on issuance of prohibition notification under
S. 10(1) of the CLRA Act prohibiting employment of
contract labour or otherwise, in an industrial dispute
brought before it by any contract in regard to
conditions of service, the industrial adjudicator will
have to consider the question whether the contractor
has been interposed either on the ground of having
undertaken to produce any given result for the
establishment or for supply of contract labour for
work of the establishment under a genuine contract
or is a mere ruse/camouflage to evade compliance of
various beneficial legislations so as to deprive the
workers of the benefit there under. If the contract is
found to be not genuine but a mere camouflage, the
so called contract labour will have to be treated as
employees of the principal employer who shall be
directed to regularize the services of the contract
labour in the concerned establishment. If the contract
is found to be genuine and the prinicpal employer
intends to employ regular workmen he shall give
preference to the erstwhile contract labour. It
otherwise found suitable, and, if necessary, by
relaxing the condition as to maximum age
appropriately taking into consideration the age of
the workers at the time of their initial employment by
the contractor and also relaxing the condition as to
academic qualifications other than technical
qualifications.
Air India's case 1997 AIR SCW430 Overruled
prospectively. M.A.T. Nos. 1704 and 1705 of 1999,
D/ - 12-8-1999 (Cal): C.O. No. 6545(W) if 1996,
D/ -9-5-1997(Cal): W.A. Nos. 345-354 of 1997m
D/ - 17-4-1998 (Kant): W.P. No. 4050 of 1999,
D/ - 2-8-2000 (Bom) and W.P. No. 2616 of 1999,
D/ - 23-12-1999 (Bom), 1998 Lab IC 2571 (Cal),
Reversed.
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It cannot be said that by virtue of engagement of
contract labour by the contractor in any work of or in
connection with the work of an establishment, the
relationship of master and servant is created between
the principal employer and the contract labour. Even
a combined reading of the definition of the terms
"Contract labour", "Establishment" and "Workman"
does not show that the legal relationship between
the person employed in any industry and the owner
of the industry is created irrespective of the fact as
to who has brought about such relationship. The
word "Workman" is defined in wide terms. It is a
generic term of which contract labour is a species. It
is true that combined reading of the terms
"Establishment" and "Workman" shows that a
workman engaged in any establishment would have
direct relationship with the principal employer as a
servant of master. But what is true of a workman
could not be correct of contract labour. When the
provisions of the Act neither contemplate creation
of direct relationship of master and servant between
the principal employer and the contract labour nor
can such relationship be implied from the provisions
of the action issuing notification under Section 10(1)
of the CLRA Act. A fortiori much less can such a
relationship be found to exist from the rules and the
forms made there under."
12.In the decision reported in 1994 II CLR 402 (Supra),
the Hon'ble Apex Court have held that:—
With the industrial growth, the relation between the
employer and the employees also has taken a new
turn. At one time the establishment being the
employer all persons working therein were the
employees of such employer. But slowly the employer
including Central and State Governments started
entrusting many of the jobs to contractors.
Contractors in their turn employed a worker, who
has no direct relationship with the establishment in
which they were employed. Many contractors
exploited the labourers engaged by them in various
manners including the payment of low wages. Hence,
the Contract Labour (Regulation and Abolition) Act,
1970 was enacted to regulate the employment of
contract labour in certain establishment and to
provide for its abolition in certain circumstances and
for matters connected therewith.
The "Contract Labour" has been defined in Section
2 (1) (b) to mean a workman, who has been employed
as contract labour in or in connection with the work
of an establishment when he is hired in or in
connection with such work by or through a
contractor, with or without the knowledge of the
principal employer. Section 2 (1) (c) defines
"Contractor" to mean a person who undertakes to
produce a given result for the establishment, other
than a mere supply of goods or articles of manufacture
to such establishment, through contract labour or
who supplies contract labour for any work of the
establishment and includes a sub-contractor.
"Principal employer" has been defined to mean (i) in
relation to any office or department of the
Government or a local authority, the head of that
office or department or such other officer as the
government or the local authority, as the case may
be, may specify in this behalf and (ii) in a factory, the
owner or occupier of the factory. In view of section
10, of the appropriate Government may after
consultation with the Central Board or, as the case
may be, a state Board, prohibit, by notification in the
Official Gazette, employment of contract labour "in
any process, operation or other work in any
establishment," Sub-section (2) of Section 10 requires
that before issuing any such notification, in relation
to an establishments, the appropriate Government
shall have regard to the conditions of work and
benefits provided for the contract labour in that
establishment and other relevant factors. One of the
relevant factors, which is to be taken into
consideration is whether the work performed by the
contract labourers is of perennial nature. Section 12
enjoins that no contractor to whom this Act is
applicable shall undertake or execute any work
through contract labour except under and in
accordance with a license issued in that behalf by
the licensing authority. The license so issued may
contain conditions in respect of hours of work,
fixation of wages and other essential amenities in
respect of contract labour as the appropriate
Government may deem fit to impose in accordance
with rules. Section 20 provides that if any amenity
required to be provided under section 16, section 17,
section 18, or section 19 for the benefit of the contract
labour employed in an establishment, is not provided
by the contractor within the time prescribed by the
contractor within the time prescribed therefore, such
amenity shall be provided by the principal employer
within such time as may be prescribed and all
expensed incurred by the principal employer in
providing the amenity may be recovered by the
principal employer from the contractor "either by
deduction from any amount payable to the contractor
under any contract or as a debt payable by the
contractor". Section 21 says that a contractor shall
be responsible for the payment of wages to each
worker employed by him as contract labour but at
the same time in order to protect the interest of such
contract labour, it requires every principal employer
to nominate a representative duly authorized by him
to be present at the time of disbursement of wages
by the contractor. It shall be the duty of the contractor
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321
to ensure the disbursement of wages in the presence
of the authorized representative of the principal
employer. Because of sub-section (4) of section 21, if
the contractor fails to make payment of wages within
the prescribed period, then the principal employer
shall be liable to make payment of wages in full to the
contact labour employed by the contractor and
recover the amount so paid from the contractor. Any
contravention of the provisions aforesaid has been
made penal for which punishment can be imposed.
From the provisions referred to above, it is apparent
that the framers of the Act have allowed and
recognized contract labour and they have never
purported to abolish in its entirety. The primary
object appears to be that there should not be any
exploitation of the contract labourers by the
contractor or the establishment. For achieving that
object, statutory restrictions and responsibilities have
been imposed on the contractor as well as on the
principal employer. Of course if any expenses are
incurred for providing any amenity to the contract
labourers or towards the payment of wages by the
principle employer he is entitled to deduct the same
from the bill of the contractor. The Act also conceives
that all appropriate government may after
consultation with the central board or the state board,
as the case may be, prohibit by notification in official
gazette, employment of contract labour in any
process, operation or other work in any
establishment, taking all facts and circumstances of
employment of contract labour in such process,
operation or the work into consideration.
Of late a trained amongst the contract labourers is
discernible that after having work for some years,
they make a claim that they should be absorbed by
the principal employer and be treated as employees
of the principal employer especially when the
principal employer is the central government or the
state government or an authority which can be held
to be state within the meaning of Article 12 of the
constitution, although no right flows from the
provisions of the act for the contract labourers to be
absorbed or to become the employees of the principal
employer. This court in the case of Gammon India
limited V. Union of India (1974) I SCC 596, pointed
out the object and scope of the act as follows:—
"The Act was passed to prevail the exploitation of
contract labour and also to introduce better condition
of work. The Act provides for regulation and abolition
of contract labour. The underline policy of the Act is
to abolish contract labour, wherever possible and
practicable and where it cannot be abolished to
altogether, the policy of the Act is that the working
conditions of the contract labour should be so
regulated as to ensure payment of wages and
provisions of essential amenities. This is why the
Act provides for regulated conditions of work and
contemplates progressive abolition to the extent
contemplated by Section 10 of the Act."
In the case of B.H.E.L. Workers' Association V. Union
of India, 1985 I CLR SC 165 = (1985) 1 SCC 630 it was
pointed out that Parliament has not abolished the
contract labour as such but has provided for its
abolition by the Central Government in appropriate
cases under section 10 of the Act. It is not for the
court to enquire into the question and to decide
whether the employment of contract labour in any
process, operation or other work in any establishment
should be abolished or not. That has to be decided
by the government after considering the relevant
aspects as required by Section 10 of the Act. Again
in the case of Mathura Refinery Mazdoor Sangh V.
Indian Oil Corporation Ltd., 1991 ICLR 684, this court
refused to direct the Indian Oil Corporation Ltd., to
absorb the contract labourers in its employment
saying that, the contract labourers have not been
found to have direct connection with the refinery. In
other words, there was no relationship of employer
and employee between the Indian Oil Corporation
Ltd. and the contract labourers concerned. Again in
Dena Nath V. National Fertilizers Ltd., 1992 I CLR 1,
this court pointed out that the aforesaid Act has two
purposes to serve (i) to regulate the conditions of
service of the worker employed by the contractor
who is engaged by a principal employer and (ii) to
provide for the abolition of contract labour altogether,
in certain notified processes, operation or other works
in any establishment by the appropriate government,
under section 10 of the Act. It was further stated that
neither the Act nor the Rules framed by the central
government or by any appropriate government
provide that upon abolition of contract labour, the
labourers would be directly absorbed by the principal
employer.
It is true that with passage of time and purely with a
view to safeguard the interests of workers, many
principal employers while renewing the contracts
have been insisting that the contractor or the new
contractor retains the old employees. Infact such a
condition is incorporated in the contract itself.
However, such a clause in the contract which is
benevolently inserted in the contract to protect the
continuance of the source of livelihood of the
contract labour cannot by itself give rise to a right to
regularization in the employment of the principal
employer. Whether the contract labourers have
become the employees of the principal employer in
course of time and on whether the engagement and
employment of labourers through a contractor is a
mere camouflage and a smoke screen, as has been
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[PART II—SEC. 3(ii)]
urged in this case, is a question of fact is to be
established by the contract labourers on the basis of
the requisite material. It is not possible for High Court
or this court, while exercising writ jurisdiction or
jurisdiction under Article 136 to decide such
questions only on the basis of the affidavits. It need
not to be pointed out that in all such cases, the
labourers are initially employed and engaged by the
contractors. As such at what point of time a direct
link is established between the contract labourers
and the principal employer, eliminating the contractor
from the scene, is a matter which has to be established
on material produced before the court. Normally, the
Labour Court and the Industrial Tribunal, under the
Industrial Disputes Act are the Competent Fora to
adjudicate such disputes on the basis of the oral and
documentary evidence produced before them."
So, keeping in view the principles enunciated by the
Hon'ble Apex Couit in the decisions mentioned
above, the present case in hand is to be considered.
13.In this case, the letter No. U-23013/11/89/LW dated
28.05.92, Govt. of India, Ministry of Labour shows that the
prohibition of employment of contract labour in sweeping,
cleaning, dusting and watching of buildings owned or
occupied by the establishments of Food Corporation of
India and some other departments was lifted by the Central
Government. So, the engagement of contract labour by the
Party No. 1 cannot be said to be illegal. It is also found from
the materials on record that the appointment of labour
contractor by Party No. 1 for supply of Security Guards
was genuine and the same was not only on papers as claimed
by the workman. The workman has failed to prove such
claim by adducing cogent or reliable evidence. The
engagement of labor contractor by Party No. 1 was not a
mere ruse or camouflage to evade compliance of the various
beneficial legislations, so as to deprive the workman of the
benefits there under. The workman has not been able to
produce any document to show that at any point of time,
Party No. 1 paid him wages as their employee. As it is clear
from the evidence on record that the workman was engaged
as a contract labour with Party No. 1, by the contractor, it
can be held that there was no relationship of master and
servant between the Party No. 1 and the workman. Hence,
there was no question of termination of the services by the
Party No. 1 or compliance of the provisions of Sections 25-
F or 25-H of the Act.
14. It is the own case of the workman that he was
engaged by the contractor. So the contractor, who had
engaged the workman, is a necessary party in the reference.
The said contractor has not been added as a party in this
reference. Due to non-joinder of necessary party, the
reference is bad in law.
In view of the materials on record and the discussions
made above, the reference cannot be answered in favour
of the workman. Hence, it is ordered:—
ORDER
The reference is answered in the negative. The
workman is not entitled to any relief.
J.P. CHAND, Presiding Officer
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New Delhi, the 27th December, 2013
S.O. 177.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 303/
2003) of the Cent.Govt.Indus.Tribunal-cum-Labour Court,
NAGPUR as shown in the Annexure, in the industrial
dispute between the management of Food Corporation of
India„ and their workmen, received by the Central
Government on 27/12/2013.
[F.No. L-22012/280/2003-IR(CM-II)]
M. K. SINGH, Section Officer
ANNEXURE
BEFORE SHRI J. P. CHAND, PRESIDING
OFFICER, CGIT-CUM-LABOURT COURT, NAGPUR
Case No.CGIT/NGP/303/2003
Date: 29.11.2013.
Party No.1(a)
The District Manager,
Food Corporation of India,
Ajani, Nagpur,
Nagpur - 440015.
Party No.1(b)
The Senior Regional Manager,
Food Corporation of India,
Mistry Bhawan, Dinshaw Wacha Road,
Churchgatye,
Mumbai - 400020.
Versus
Party No.2
The Secretary,
Rashtriya Mazdoor Sena,
Hind Nagar Ward No. 2,
Near Boudha Vihar, Post: Wardha,
Distt. Wardha (M.S.)
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323
AWARD
(Dated: 29th November, 2013)
In exercise of the powers conferred by clause (d) of
sub-section (1) and sub-section 2(A) of section 10 of
Industrial Disputes Act, 1947 (14 of 1947) ("the Act" in
short), the Central Government has referred the industrial
dispute between the employers, in relation to the
management of Food Corporation of India and their
workman, Shri Mohan Onkar Bodade, as per letter No.L-
22012/280/2003-IR (CM-II) dated 08.12.2003, with the
following schedule:-
"Whether the action of the management of Food
Corporation of India, Nagpur (M.S.) in terminating
the services of Shri Mohan Onkar Bodade, Security
Guard w.e.f. 14.03.1999 is legal and justified? If
not, to what relief the concerned workman is
entitled?"
2. On receipt of the reference, the parties were noticed
to file their respective statement of claim and written
statement and accordingly, the workman, Shri Mohan Onkar
Bodade, (the workman" in short), filed the statement of
claim and the management of Food Corporation of India
("Party No. 1" in short) filed their written statement.
The case of the workman as presented in the
statement of claim is that he was in the employment of
Party No. 1 from 20.06.1993 and he was initially engaged
through a contractor at Wardha Depot of Party No. 1, as a
Security Guard and he was in continuous service without
any interruption till 14th March, 1999, when his services
were terminated orally by Party No. 1, without following
the due procedure of law and he had completed more than
240 days of work in each year and the termination of his
services on 14.03.1999 was not in good faith, but in
colourable exercise of the rights and powers by the Party
No. 1 and while terminating his services, neither one
month's notice nor one month's wages in lieu of notice nor
retrenchment compensation was given to him as required
under section 25-F of the Act and after his illegal
termination, fresh hands from the department of home guard
and police were engaged by Party No. 1 to extract the duties
of Security guards, in violation of the provision of section
25-H of the Act and the work which he was performing is
constantly in existence and the same is of a perennial nature
and as his termination is illegal and unlawful, he is entitled
for reinstatement in service with continuity and full back
wages.
The further case of the workman is that in 1992, he
was engaged by the Party No. 1 through the contractor for
a period of two years, but the contract was made only on
papers and after every two years, the Party No. 1 changed
the contractor on papers only and the engagement of the
so-called contractor did not replace the Security Guards
and he was also not disturbed from his services and he
was merely shown to be engaged by the contractors, but
actually he was working under the direct control and
supervision of the Party No. 1 and the contractor had no
role to play in the same and the work performed by him was
being assigned to him by Party No. 1 and he was a regular
employee, of Party No. 1 and Party No. 1 was his real
employer and not the contractor as alleged and the
engagement and change of contractors by Party No. 1 from
time to time was sham and only a camouflage to deny his
legitimate claim and the contract between Party No. 1 and
the contractor was bogus and not genuine and therefore,
his oral termination from services was against the
mandatory provisions of the Act and the Central
Government decided to abolish the appointment of contract
labour as contemplated under section 10 of the Contract
Labour (Regulation and Abolition) Act, 1970 and issued
notification on 01.11.1990 with directions to abolish the
contract labour system in the establishment of the Party
No. 1 and to give employment to contract labours engaged
by the management and therefore, it was the mandatory
duty of the Party No. 1 to abolish the contract labour system
in all places and management of FCI implemented the
notification only at Nagpur and Manmad and. absorbed
the Security Guards working at Nagpur and Manmad, but
at Akola, Amravati, Wardha and Gondia districts, the
contract labour system was continued by the management,
with an intention to deprive him from the benefits under
the labour laws.
It is further pleaded by the workman that his salary
was paid by the Party No. 1 and not by the contractor and
his daily attendance was also marked by the Asstt.
Manager of FCI, Wardha Depot and the Party No. 1 was
supervising his work through their officers and he had no
relation with the so called contractors engaged by the Party
No. 1 and Party No. 1 also supplied the articles, such as,
torch, lathi, whistle and uniform etc to him and in view of
the long spell of work being carried out by him, he is entitled
to be reinstated in service with continuity and full back
wages.
3. The Party No. 1 in their written statement have
pleaded inter alia that the workman was never in their
employment and the workman has not impleded the
contractor, who appointed him, as a Party and the workman
was engaged by the contractor as a Security Guard at FCI
Depot and the said contractor is a necessary party and in
absence of the contractor, the proceeding cannot proceed
and the workman was not in their service uninterruptedly
till 14th March, 1999 and since the contract of the contractor
came to an end, the services of the workman were terminated
by the contractor and the original period of contract given
to the contractor for providing Security services was up to
1998 and the same was extended as per the terms and
conditions till March, 1999 and as the workman was not
employed by them, there was no question of following the
procedure of termination by them and they were not the
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[PART II—SEC. 3(ii)]
employer of the workman and the services of the workman
were never utilized by them as employer from 20.06.1992
to14.03. 1999 , without any break in service and the workman
did not complete 240 days of work in a year as alleged and
as the workman was engaged by the Security Contractor,
there was no relationship of master and servant between
them and the workman at any point of time and under
section 10 of the Contract Labour (Regularisation and
Abolition) Act, they were exempted by the Central
Government, so the allegations made by the workman
against them are not true and there was no question of
violation of the provisions of 25 (H) of the Act and the
work does not constantly exist and the work of providing
security guards was given to other Government Agencies
like Police Personnel and Home guards and therefore, the
workman has no right to claim any relief from them and the
work of security is not perennial in nature and as and when
their go-downs are filled with food grains, then only,
services of the security guards are required and in
pursuance of the notification issued by the Central
Government abolishing contract labour system, they
appointed Home guards and Police personnel as security
guards.
The further case of party no.1 is that for the relief as
claimed in this reference, the workman had filed a writ petition
before the Hon'ble High Court, Nagpur Bench bearing W.P.
No. 1389/99 and the Hon'ble High Court rejected the said
WP and denied the reliefs prayed for and therefore, this
Tribunal has no jurisdiction to decide the reference. and
the decision of the Hon'ble Court operates as res-judicata
and they floated tenders for the contract and lowest bidder
was awarded the contract and the change of contractor in
every two years was not on papers only and they had no
say in the appointment of security guards by the security
contractor and they had no control over the appointment
and service conditions of the workman, who was an
employee of the security agency and he was never their
employee and the security contractor was the employer of
the workman.
The further case of party no.1 is that the appropriate
government decided to abolish the employment of the
contract labour as contemplated under section 10 of the
Contract Labour (Regularisation and Abolition) Act, 1970
and the interpretation of the notification issued on
01.11.1990 put by the workman is not correct and they were
exempted from the operation of the Act of 1970 in the year
1989 and the said exemption was withdrawn in the year
1999 and therefore, the security contact given to the
contractor was terminated and hence, the services of the
workman were terminated by the security contractor and
they did not pay the salary to the workman and it was the
contractor, who was paying the same to the workman and
when the contractor failed to pay the salary to the workman,
they paid the amount as per the directions given by the
ALC from time to time and the said amount was recovered
from the contract's bill and they only used to check the
attendance of the security guards to find out as to whether
the contractor had made arrangement of the requisite
number of security guards, as per their requirement and
they did not have the power to terminate any employee
appointed by the contractor and they did not provide any
article, such as torch, Lathi, whistle and uniform etc to the
workman and as such, the workman is not entitled to any
relief.
4. Both parties have led oral evidence in support of
their respective claims, besides placing reliance on
documentary evidence.
The workman in support of his claim has examined
himself as a witness. In his evidence, which is on affidavit,
the workman has reiterated the facts mentioned in the
statement of claim.
In his cross-examination, the workman has admitted
that he was engaged in F.C.I. through the contractor and
no appointment order was issued by the F.C.I. to him and
he has filed no document to show that F.C.I. was making
payment of his wages..
5. Shri Suresh N. Bokade, the witness examined on
behalf of the party no.1 has also reiterated the facts
mentioned in the written statement, in his examination-in-
chief, which is on affidavit. In his cross-examination, the
witness for the party no.l has admitted the suggestions
given on behalf the workman that the workman other
security guards were deployed torn work in F.C.I. through
the contractor, Singh Security Services and Singh Security
Services was given the contract to supply security guards
for two years and after the expiry of contract of Singh
Security Services in 1995, contract for supply of security
guards was given to Industrial Security and Fire Services
for two years and the workman and other security guards
were engaged in F.C.I. through the contractors till December,
1998 and after the notification made by the Government
imposing ban for engagement of contract labourers in 1998,
F.C.I. discontinued the engagement of contract labourers
and security guards were being deployed for watch and
ward duty of F.C.I. depots and the workman other security
guards worked continuously from the date of their
respective engagement till December, 1998 in F.C.I. through
different contractors and F.C.I. had the control regarding
the duties to be performed by the security guards.
6. At the time of argument, it was submitted by the
learned advocate for the workman that the workman from
20.06.1992 was in the service of the party no. 1 till 14.03.1999,
when all of a sudden, his services were terminated orally
by the party no.1 without compliance of the mandatory
provisions of Law, particularly the provisions of sections
25 F and 25 H of the Act and party no 1 also did not comply
with the provisions of the Contract Labour (Regulation
and Abolition) Act,1970("Act,1970" in short ) and as such,
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the termination of the workman is illegal and null and void.
It is further submitted by the learned advocate for the
workman that the appointment of the workman to work in
the establishment of the Party No. 1 was admittedly through
contractor appointed by Party No. 1 and it is an admitted
position that the tenure of the contract was for two years
and though there was change of contractor in every two
years, the workman and other security guards remained
the same and there was a specific condition in the contract
between the management and the contractor that the set of
workers will be continued by the incoming contractor and
in such fashion, the workman and other security guards
continued to work in the establishment of Party No. 1 right
from the date of their respective date of appointments till
March, 1999 and there was no bread in their service and
each of them completed 240 days of service in each calendar
year and the same shows that the work was all time available
in the establishment of Party No. 1 and is of perennial
nature and ever though the workman and other security
guards were employed by the contractor, fact remains and
is also admitted by the witness for the Party No. 1 that
Party No. 1 had control over the working of the workman.
The learned advocate for the workman further
submitted that though Party No. 1 in the written statement
has contended that it was exempted from the provisions of
the Act, 1970, it has failed to produce any document in
corroboration of such contention and as mere statement of
Party No. 1 is no sufficient, the fact remains that Party
No. 1 was never exempted from the provisions of the Act,
1970 and the Central Government by notification dated
01.01.1990 issued U/S 10 of the Act, 1970 abolished contract
labour system in the establishment of Party No. 1 and after
issuance of the said notification, Party No. 1 was prohibited
from engaging any contract labour and as the workman
and other security guards were engaged by Party No. 1
inspite of notification prohibiting contract labour system,
the workman became the direct employee of the Party
No. 1 and he has attained the status of regular employee of
Party No. 1.
It was also argued by the learned advocate for the
workman that Party No.1 has not filed on record any
document showing that it was registered as principal
employer or the contractors were registered under Section
7 and Section 12 respectively of the Act, 1970 and in
absence of the said documents, it cannot be assumed that
the contract between the contractor and management was
genuine and it is clear that the contracts between the Party
No. 1 and the contractors were sham and bogus and such
contract was entered into only with malafide intention to
deny regular employment to the workman and after
termination of the services of the workman, Party No. 1
appointed police and home guard personnel as security
guards and this proves that the work is available even
today and after the notification dated 01.11.1990, Party
No. 1 regularized the contract labourers were engaged at
Nagpur and Manmad, but same was not the case at Akola,
Amravati, Wardha and Gondia and this shows that Party
No. 1 indulged into invidious discrimination amongst equal,
which is contrary to provisions of Articles 14 & 16 of the
constitution and the Writ Petition filed by the workman
and others as disposed of by the Hon'ble High Court with
a direction to the petitioners to approach the appropriate
authority and as such, the judgment in Writ Petition 1389/
99, cannot operate as res-judicata.
In support of the contentions, the learned advocate
for the workman pIaced reliance on the decision reported
in 2006(2) Bom.CR — 167 (Food Corporation of India Vs.
Prashant Pandurang Ramteke 86 others).
The learned advocate for the workman also submitted
that as the termination of the workman from service is illegal,
the workman is entitled for reinstatement in service with
continuity and full back wages.
7. Per contra, it was submitted by the learned
advocate for the party No.1 that the workman was never
appointed by party No.1 and he has engaged by the
contractor as a security guard and as such, the concerned
contractor is a necessary party and inspite of raising such
objection in the written statement, the workman did not
implead the contractor as a party and for that the reference
is not maintainable. It was further submitted by the learned
advocate for the party No.1 that the workman was engaged
by the contractor and as the contract of the contractor
came to an end in March, 1999, the services of the workman
were terminated by the contractor and as such, there was
no question of party No. 1 complying with the due
procedure of termination and there was no relationship of
master and servant between the party no.1 and the workman
and the party No.1 was exempted by the Central
Government from the ban imposed for engagement of
contract labourers, so contract was given to the security
contractor, as per rules, for supply of security guards and
due to the notification of the Government for abolition of
contract labour system, Home guards and Police personnel
were appointed as security guards and party No. 1 has no
control over the workman and the security contractor was
submitting bills for payment for supply of security guards
and the security contractor was paying the wages to the
workman. It was further submitted by the learned advocate
for the party No.1 that the workman and some others had
approached the Hon'ble High Court, Nagpur Bench in W.P.
1389 of 1999 for the reliefs sought in this reference and the
Hon'ble High Court while depositing of the said petition
have held that the termination of the workman by the
contractor was a valid one and the action of FCI was legal
and as such, the workman cannot agitate the question again
and the decision of the Hon'ble High Court operates as
res-judicata between the parties and the workman is not
entitled to any relief.
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8. First of all, I will take up the submission made by
the learned advocate for the party No.1 that the present
reference is hit by the principles of res-judicata, due to the
decision of the Hon'ble High Court, Nagpur Bench in W.P.
1389/99.
It is not disputed that the workman alongwith 78
others through the union, "Rashtriya Mazdoor Sena
Saptahit Jaibhim" filed Writ Petition No. 1389/99 before the
Hon'ble High Court of Judicature at Bombay, Nagpur Bench,
Nagpur, for their regularisation and the Hon'ble High Court
did not grant such relief. On perusal of the order passed by
the Hon'ble High Court on 29.07.2002 in the said writ
petition, it is found that the workman and others claimed
regularisation on the ground that they were employed by
the contractor for doing regular work of the Food
Corporation of India and in view of the same, they have
became workmen of Food Corporation of India, since the
work on which they were employed is of perennial nature.
However, it is found from the judgment that the Hon'ble
High Court did not consider the main relief and passed the
following ,order:
"In view of the judgment of the Constitution Bench
in Steel Authority of India Ltd. and others Vs.
National Union Water Front Workers and others
(reported in 2001 (7) SCC1), the relief sought by the
petitioners cannot be granted since the petition
involves disputed question of facts as also other
facts which are required to be adjudicated by
appropriate authority. Accordingly, the main prayer
to absorb them cannot be granted.
**
**
**
**
In view of the rejection of the main prayer, the question
of granting other prayer does not arise. In case, the
petitioners approach the appropriate authority, the
appropriate authority shall take decision in the matter
within a period of one year. The applicants are free
to approach the appropriate authority for redress of
their grievances."
So, it is clear from the orders passed by the Hon'ble
High Court as mentioned above that the Hon'ble High Court
did not consider the claim made by the workman and others
on merit and granted them the liberty to approach the
appropriate authority for redress. The Hon'ble High Court
in the decision reported in 2006(2) Bom.CR - 167 (Supra)
have held that, "Because Division Bench had not gone
into merits of the case the decision cannot operate as res-
judicata". Applying the principles settled by the Hon'ble
High Court, as mentioned above to the case in hand, the
reference cannot be said to be hit by the principles of res-
judicata. So, there is no force in the contention raised by
the learned advocate for the party No. 1.
9. In this reference, it is never the case of the workman
that he was directly appointed or engaged by the party
No.1 as a security guard. In the very beginning of the
statement of claim, it has been mentioned by the workman
that he was initially engaged at Food Corporation of India
Depot, Wardha as a security guard, through a contractor.
In paragraph 4 of the statement of claim, the workman has
mentioned that, "In the year 1993, the workman was
engaged by the Food Corporation of India through
contractor, for the period of 2 years, but the contract was
made on paper." The case of the workman is that after
every two years, the party No.1 on papers showed the
change of contractors, but he was not disturbed from
services and he worked continuously without any break
till 14.03.1999 and as he worked as a security guard of
perennial nature, he is entitled for reinstatement in service.
The workman has also claimed that as the Central
Government issued notification on 11.11.1990 to abolish
the contract labour system FCI and directed to give
employment to contract labours engaged by the
management and party No.1 implemented such direction at
Nagpur and Manmad only and gave employment and
regularized and absorbed the services of the Security Guards
working at Nagpur and Manmad and did not implement the
same at Wardha and other places to deprive him from the
benefits under the Labour Laws.
In his evidence on affidavit also, the workman has
mentioned that he was initially engaged in Food
Corporation of India as a Security Guard through a
contractor.
From the evidence on record and the own admission
of the workman in the cross-examination including the
specific admission that he was engaged by the contractor,
it is clear that the workman was engaged by the contractor.
The workman has not produced any evidence to show that
he was directly engaged by the Party No. 1.
10.At this juncture, I think it apropos to mention
about the principles enunciated by the Hon'ble Apex Court
regarding contract labours, in the decisions reported in
1985-IILLJ-4 (S.C.) (The workman of the Food Corporation
of India Vs. M/s Food Corporation of India), 2001 LAB IC
3656 (S.C.) (Steel Authority of India Ltd. and others Vs.
National Union Water Front Workers and others) and 1994
II CLR 402 (R.K. Panda Others Vs. Steel Authority of India
and Others).
In the decision reported in 1985-II LLOJ-4 (supra)
the Hon'ble Apex Court have held that:-
"Briefly stated, when corporation engaged a
contractor for handling food grain at Siliguri Depot,
the corporation had nothing to do with the manner
of handling work done by the contractor, the labour
force employed by him, payments made by him etc.
In such a fact situation, there was no privity of
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contract of employer and workmen between the
corporation and the workmen. "Workmen" has been
defined (omitting the words not necessary) in the
Industrial Disputes Act to mean (any person
including an apprentice) employed in any industry
to do...". The expression' employed has at least two
known connotations, but as used in the definition,
the context would indicate that it is used in the sense
of a relationship brought about by express or implied
contract of service in which the employee renders
service for which he is engaged by the employer and
the latter agrees to pay him in cash or kind as agreed
between them or statutorily prescribed. It discloses
a relationship of command and obedience. The
essential condition of a person being a workman
within the terms of the definition is that he should be
employed to do the work in that industry and that
there should be, in other words, an employment of
his by the employer and that there should be a
relationship between the employer and employee or
master and servant unless a person is thus employed
there can be no question of his being a "workman"
within the definition of the term as contained in the
Act.
Dharangadhara Chemical Works Ltd. Vs. State of
Saurashtra (1957 - I - LLJ - 477). Now where a
contractor employs a workman to do the work which
he contracted with a third person to accomplish on
the definition as it stands, the workman of the
contractor would not without something more
become the workman of that third person. Therefore,
when the workmen employed by the contractor were
certainly not the workmen of the corporation and no
claim to that effect has been made by the union."
11.In the decision reported in 2001 LAB IC - 3656
(supra) the Hon'ble Apex Court have held that:—
"The principle that a beneficial legislation needs to
be constructed liberally in favour of the class for
whose benefit it is intended, does not extend to
reading in the provisions of the Act what the
legislature has not provided whether expressly or by
necessary implication, or substituting remedy or
benefits for that provided by the legislature. The
intendment of the CLRA Act is to regulate the
conditions of service of the contract labour and to
authorize in Section 10(1) prohibition of contract
labour system by the appropriate Government on
consideration of factors enumerated in sub-section
(2) of Section 10 of the Act among other relevant
factors. But, the presence of some or all those factors,
provide no ground for absorption of contract labour
on issuing notification under Section 10(1) by the
appropriate Government, is not alluded to either in
Section 10 or at any other place in the Act and the
consequence of violation of Sections 7 and 12 of the
CLRA Act is explicitly provided in Sections 23 and
25 of the CLRA Act, it is not for the High Courts or
the Supreme Court to read in some unspecified
remedy in Section 10 or substitute for penal
consequences specified in Sections 23 and 25 a
different sequel be it absorption of contract labour
in the establishment of principal employer or a lesser
or a harsher punishment. Such an interpretation of
the provisions of the statute will be far beyond the
principle of ironing out the creases and the scope of
interpretative legislation and as such clearly
impermissible.
Thus on issuance of prohibition notification under
S. 10(1) of the CLRA Act prohibiting employment of
contract labour or otherwise, in an industrial dispute
brought before it by any contract in regard to
conditions of service, the industrial adjudicator will
have to consider the question whether the contractor
has been interposed either on the ground of having
undertaken to produce any given result for the
establishment or for supply of contract labour for
work of the establishment under a genuine contract
or is a mere ruse/camouflage to evade compliance of
various beneficial legislations so as to deprive the
workers of the benefit thereunder. If the contract is
found to be not genuine but a mere camouflage, the
so called contract labour will have to be treated as
employees of the principal employer who shall be
directed to regularize the services of the contract
labour in the concerned establishment. If the contract
is found to be genuine and the principal employer
intends to employ regular workmen he shall give
preference to the erstwhile contract labour. It
otherwise found suitable, and, if necessary, by
relaxing the condition as to maximum age
appropriately taking into consideration the age of
the workers at the time of their initial employment by
the contractor and also relaxing the condition as to
academic qualifications other than technical
Qualifications.
Air India's case 1997 AIR SCW 430 Overruled
prospectively. M.A.T. Nos. 1704 and 1705 of 1999,
D/ - 12-8-1999 (Cal): C.O. No. 6545(W) of 1996,
D/ -9-5-1997(Cal): W.A. Nos. 345-354 of 1997m
D/ - 17-4-1998 (Kant): W.P. No. 4050 of 1999,
D/ - 2-8-2000 (Bom) and W.P. No. 2616 of 1999,
D/ - 23-12-1999 (Bom), 1998 Lab IC 2571 (Cal),
Reversed.
It cannot be said that by virtue of engagement of
contract labour by the contractor in any work of or in
connection with the work of an establishment, the
relationship of master and servant is created between
the principal employer and the contract labour. Even
a combined reading of the definition of the terms
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"Contract labour", "Establishment" and "Workman"
does not show that the legal relationship between
the person employed in any industry and the owner
of the industry is created irrespective of the fact as
to who has brought about such relationship. The
word "Workman" is defined in wide terms. It is a
generic term of which contract labour is a species. It
is true that combined reading of the terms
"Establishment" and "Workman" shows that a
workman engaged in any establishment would have
direct relationship with the principal employer as a
servant of master. But what is true of a workman
could not be correct of contract labour. When the
provisions of the Act neither contemplate creation
of direct relationship of master and servant between
the principal employer and the contract labour nor
can such relationship be implied from the provisions
of the action issuing notification undet Section 10(1)
of the CLRA Act. A fortiori much less can such a
relationship be found to exist from the rules and the
forms made thereunder."
12.In the decision reported in 1994 II CLR 402 (Supra),
the Hon'ble Apex Court have held that:—
With the industrial growth, the relation between the
employer and the employees also has taken a new
turn. At one time the establishment being the
employer all persons working therein were the
employees of such employer. But slowly the employer
including Central and State Governments started
entrusting many of the jobs to contractors.
Contractors in their turn employed a worker, who
has no direct relationship with the establishment in
which they were employed. Many contractors
exploited the labourers engaged by them in various
manners including the payment of low wages. Hence,
the Contract Labour (Regulation and Abolition) Act,
1970 was enacted to regulate the employment of
contract labour in certain establishment and to
provide for its abolition in certain circumstances and
for matters connected therewith.
The "Contract Labour" has been defined in Section
2 (1) (b) to mean a workman, who has been employed
as contract labour in or in connection with the work
of an establishment when he is hired in or in
connection with such work by or through a
contractor, with or without the knowledge of the
principal employer. Section 2 (1) (c) defines
"Contractor" to mean a person who undertakes to
produce a given result for the establishment, other
than a mere supply of goods or articles of manufacture
to such establishment, through contract labour or
who supplies contract labour for any work of the
establishment and includes a sub-contractor.
"Principal employer" has been defined to mean (i) in
relation to any office or department of the
Government or a local authority, the head of that
office or department or such other officer as the
government or the local authority, as the case may
be, may specify in this behalf and (ii) in a factory, the
owner or occupier of the factory. In view of section
10, of the appropriate Government may after
consultation with the Central Board or, as the case
may be, a state Board, prohibit, by notification in the
Official Gazette, employment of contract labour "in
any process, operation or other work in any
establishment," Sub-section (2) of Section 10 requires
that before issuing any such notification, in relation
to an establishments, the appropriate Government
shall have regard to the conditions of work and
benefits provided for the contract labour in that
establishment and other relevant factors. One of the
relevant factors, which is to be taken into
consideration is whether the work performed by the
contract labourers is of perennial nature. Section 12
enjoins that no contractor to whom this Act is
applicable shall undertake or execute any work
through contract labour except under and in
accordance with a license issued in that behalf by
the licensing authority. The license so issued may
contain conditions in respect of hours of work,
fixation of wages and other essential amenities in
respect of contract labour as the appropriate
Government may deem fit to impose in accordance
with rules. Section 20 provides that if any amenity
required to be provided under section 16, section 17,
section 18, or section 19 for the benefit of the contract
labour employed in an establishment, is not provided
by the contractor within the time prescribed by the
contractor within the time prescribed therefore, such
amenity shall be provided by the principal employer
within such time as may be prescribed and all
expensed incurred by the principal employer in
providing the amenity may be recovered by the
principal employer from the contractor "either by
deduction from any amount payable to the contractor
under any contract or as a debt payable by the
contractor". Section 21 says that a contractor shall
be responsible for the payment of wages to each
worker employed by him as contract labour but at
the same time in order to protect the interest of such
contract labour, it requires every principal employer
to nominate a representative duly authorized by him
to be present at the time of disbursement of wages
by the contractor. It shall be the duty of the contractor
to ensure the disbursement of wages in the presence
of the authorized representative of the principal
employer. Because of sub-section (4) of section 21, if
the contractor fails to make payment of wages within
the prescribed period, then the principal employer
shall be liable to make payment of wages in full to the
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329
contact labour employed by the contractor and
recover the amount so paid from the contractor. Any
contravention of the provisions aforesaid has been
made penal for which punishment can be imposed.
From the provisions referred to above, it is apparent
that the framers of the Act have allowed and
recognized contract labour and they have never
purported to abolish it in its entirety. The primary
object appears to be that there should not be any
exploitation of the contract labourers by the
contractor or the establishment. For achieving that
object, statutory restrictions and responsibilities have
been imposed on the contractor as well as on the
principal employer. Of course if any expenses are
incurred for providing any amenity to the contract
labourers or towards the payment of wages by the
principle employer he is entitled to deduct the same
from the bill of the contractor. The Act also conceives
that all appropriate government may after
consultation with the central board or the state board,
as the case may be, prohibit by notification in official
gazette, employment of contract labour in any
process, operation or other work in any
establishment, taking all facts and circumstances of
employment of contract labour in such process,
operation or the work into consideration.
Of late a trained amongst the contract labourers is
discernible that after having work for some years,
they make a claim that they should be absorbed by
the principal employer and be treated as employees
of the principal employer especially when the
principal employer is the central government or the
state government or an authority which can be held
to be state within the meaning of Article 12 of the
constitution, although no right flows from the
provisions of the act for the contract labourers to be
absorbed or to become the employees of the principal
employer. This court in the case of Gammon India
Limited V. Union of India (1974) I SCC 596, pointed
out the object and scope of the act as follows:—
"The Act was passed to prevail the exploitation of
contract labour and also to introduce better condition
of work. The Act provides for regulation and abolition
of contract labour. The underline policy of the Act is
to abolish contract labour, wherever possible and
practicable and where it cannot be abolished to
altogether, the policy of the Act is that the working
conditions of the contract labour should be so
regulated as to ensure payment of wages and
provisions of essential amenities. This is why the
Act provides for regulated conditions of work and
contemplates progressive abolition to the extent
contemplated by Section 10 of the Act."
In the case of B.H.E.L. Workers' Association V. Union
of India, 1985 I CLR SC 165 = (1985) 1 SCC 630 it was
pointed out that Parliament has not abolished the
contract labour as such but has provided for its
abolition by the Central Government in appropriate
cases under section 10 of the Act. It is not for the
court to enquire into the question and to decide
whether the employment of contract labour in any
process, operation or other work in any establishment
should be abolished or not. That has to be decided
by the government after considering the relevant
aspects as required by Section 10 of the Act. Again
in the case of Mathura Refinery Mazdoor Sangh V.
Indian Oil Corporation Ltd., 1991 I CLR 684, this court
refused to direct the Indian Oil Corporation Ltd., to
absorb the contract labourers in its employment
saying that, the contract labourers have not been
found to have direct connection with the refinery. In
other words, there was no relationship of employer
and employee between the Indian Oil Corporation
Ltd. and the contract labourers concerned. Again in
Dena Nath V. National Fertilizers Ltd., 1992 I CLR 1,
this court pointed out that the aforesaid Act has two
purposes to serve (i) to regulate the conditions of
service of the worker employed by the contractor
who is engaged by a principal employer and (ii) to
provide for the abolition of contract labour altogether,
in certain notified processes, operation or other works
in any establishment by the appropriate government,
under section 10 of the Act. It was further stated that
neither the Act nor the Rules framed by the central
government or by any appropriate government
provide that upon abolition of contract labour, the
labourers would be directly absorbed by the principal
employer.
It is true that with passage of time and purely with a
view to safeguard the interests of workers, many
principal employers while renewing the contracts
have been insisting that the contractor or the new
contractor retains the old employees. Infact such a
condition is incorporated in the contract itself.
However, such a clause in the contract which is
benevolently inserted in the contract to protect the
continuance of the source of livelihood of the
contract labour cannot by itself give rise to a right to
regularization in the employment of the principal
employer. Whether the contract labourers have
become the employees of the principal employer in
course of time and on whether the engagement and
employment of labourers through a contractor is a
mere camouflage and a smoke screen, as has been
urged in this case, is a question of fact is to be
established by the contract labourers on the basis of
the requisite material. It is not possible for High Court
or this court, while exercising writ jurisdiction or
jurisdiction under Article 136 to decide such
questions only on the basis of the affidavits. It need
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not to be pointed out that in all such cases, the
labourers are initially employed and engaged by the
contractors. As such at what point of time a direct
link is established between the contract labourers
and the principal employer, eliminating the contractor
from the scene, is a matter which has to be established
on material produced before the court. Normally, the
Labour Court and the Industrial Tribunal, under the
Industrial Disputes Act are the Competent Fora to
adjudicate such disputes on the basis of the oral and
documentary evidence produced before them."
So, keeping in view the principles enunciated by the
Hon'ble Apex Court in the decisions mentioned above, the
present case in hand is to be considered.
13.In this case, the letter No. U-23013/11/89/LW dated
28.05.92, Govt. of India, Ministry of Labour shows that the
prohibition of employment of contract labour in sweeping,
cleaning, dusting and watching of buildings owned or
occupied by the establishments of Food Corporation of
India and some other departments was lifted by the Central
Government. So, the engagement of contract labour by the
Party No. 1 cannot be said to be illegal. It is also found from
the materials on record that the appointment of labour
contractor by Party No. 1 for supply of Security Guards
was genuine and the same was not only on papers as claimed
by the workman. The workman has failed to prove such
claim by adducing cogent or reliable evidence. The
engagement of labour contractor by Party No. 1 was not a
mere ruse or camouflage to evade compliance of the various
beneficial legislations, so as to deprive the workman of the
benefits thereunder. The workman has not been able to
produce any document to show that at any point of time,
Party No. 1 paid him wages as their employee. As it is clear
from the evidence on record that the workman was engaged
as a contract labour with Party No. 1, by the contractor, it
can be held that there was no relationship of master and
servant between the Party No. 1 and the workman. Hence,
there was no question of termination of the services by the
Party No. 1 or compliance of the provisions of Sections
25-F or 25-H of the Act.
14. It is the own case of the workman that he was
engaged by the contractor. So the contractor, who had
engaged the workman, is a necessary party in the reference.
The said contractor has not been added as a party in this
reference. Due to non-joinder of necessary party, the
reference is bad in law.
In view of the materials on record and the discussions
made above, the reference cannot be answered in favour
of the workman. Hence, it is ordered:—
ORDER
The reference is answered in the negative. The
workman is not entitled to any relief.
J. P. CHAND, Presiding Officer
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New Delhi, the 27th December, 2013
S.O. 178.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 289/
2003) of the Cent.Govt. Industrial Tribunal-cum-Labour
Court, Nagpur as shown in the Annexure, in the industrial
dispute between the management of Food Corporation of
India, and their workmen, received by the Central
Government on 27/12/2013.
[F. No. L-22012/232/2003-IR (CM-II)]
M. K. SINGH, Section Officer
ANNEXURE
BEFORE SHRI J. P. CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No. CGIT/NGP/289/2003
Date: 29.11.2013.
Party No.1(a) :
The District Manager,
Food Corporation of India,
Ajani,
Nagpur - 440015.
Party No. 1(b)
The Senior Regional Manager,
Food Corporation of India,
Mistry Bhawan, Dinshaw Wacha
Road, Churchgate,
Mumbai - 400020.
Versus
Party No. 2 :
The Secretary,
Rashtriya Mazdoor Sena, Hind Nagar
Ward No. 2, Near Boudha Vihar,
Post: Wardha, Distt. Wardha (M.S.)
AWARD
(Dated: 29th November, 2013)
In exercise of the powers conferred by clause (d) of
sub-section (1) and sub-section 2(A) of section 10 of
Industrial Disputes Act, 1947 (14 of 1947) ("the Act" in
¹Hkkx II—[k.M 3(ii)º
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331
short), the Central Government has referred the industrial
dispute between the employers in relation to the
management of Food Corporation of India and their
workman, Shri Suraj Ganpat Ganvir for adjudication, as per
letter No. L-22012/232/2003-IR (CM-II) dated 08.12.2003,
with the following schedule:—
"Whether the action of the management of Food
Corporation of India, Nagpur (M.S.) in terminating
the services of Shri Suraj Ganpat Ganvir, Security
Guard w.e.f. 14.03.1999 is legal and justified? If not,
to what relief the concerned workman is entitled?"
2. On receipt of the reference, the parties were noticed
to file their respective statement of claim and written
statement and accordingly, the workman, Shri Suraj Ganpath
Ganvir ("the workman" in short), filed the statement of
claim and the management of Food Corporation of India
("Party No. 1" in short) filed their written statement.
The case of the workman as presented in the
statement of claim is that he was in the employment of
Party No. 1 from 13.12.1993 and he was initially engaged
through a contractor at Wardha Depot of Party No. 1, as a
Security Guard and he was in continuous service without
any interruption till 14th March, 1999, when his services
were terminated orally by Party No. 1, without following
the due procedure of law and he had completed more than
240 days of work in each year and the termination of his
services on 14.03.1999 was not in good faith, but in
colourable exercise of the rights and powers by the Party
No. 1 and while terminating his services, neither one
month's notice nor one month's wages in lieu of notice nor
retrenchment compensation was given to him as required
under section 25-F of the Act and after his illegal
termination, fresh hands from the department of home guard
and police were engaged by Party No. 1 to extract the duties
of Security Guards, in violation of the provision of section
25-H of the Act and the work which he was performing is
constantly in existence and the same is of a perennial nature
and as his termination is illegal and unlawful, he is entitled
for reinstatement in service with continuity and full back
wages.
The further case of the workman is that in 1993, he
was engaged by the Party No. 1 through the contractor for
a period of two years, but the contract was made only on
papers and after every two years, the Party No. 1 changed
the contractor on papers only and the engagement of the
so-called contractor did not replace the Security Guards
and he was also not disturbed from his services and he
was merely shown to be engaged by the contractors, but
actually he was working under the direct control and
supervision of the Party No. 1 and the contractor had no
role to play in the same and the work performed by him was
being assigned to him by Party No. 1 and he was a regular
employee of Party No. 1 and Party No. 1 was his real
employer and not the contractor as alleged and the
engagement and change of contractors by Party No. 1 from
time to time was sham and only a camouflage to deny his
legitimate claim and the contract between Party No. 1 and
the contractor was bogus and not genuine and therefore,
his oral termination from services was against the
mandatory provisions of the Act and the Central
Government decided to abolish the appointment of contract
labour as contemplated under section 10 of the Contract
Labour (Regulation and Abolition) Act, 1970 and issued
notification on 01.11.1990 with directions to abolish the
contract labour system in the establishment of the Party
No. 1 and to give employment to contract labours engaged
by the management and therefore, it was the mandatory
duty of the Party No. 1 to abolish the contract labour system
in all places and management of FCI implemented the
notification only at Nagpur and Manmad and absorbed
the Security Guards working at Nagpur and Manmad, but
at Akola, Amravati, Wardha and Gondia districts, the
contract labour system was continued by the management,
with an intention to deprive him from the benefits under
the labour laws.
It is further pleaded by the workman that his salary
was paid by the Party No. 1 and not by the contractor and
his daily attendance was also marked by the Asstt.
Manager of FCI, Wardha Depot and the Party No. 1 was
supervising his work through their officers and he had no
relation with the so called contractors engaged by the Party
No. 1 and Party No. 1 also supplied the articles, such as,
torch, lathi, whistle and uniform etc. to him and in view of
the long spell of work being carried out by him, he is entitled
to be reinstated in service with continuity and full back
wages.
3. The Party No. 1 in their written statement have
pleaded inter alia that the workman was never in their
employment and the workman has not impleded the
contractor, who appointed him, as a Party and the workman
was engaged by the contractor as a Security Guard at FCI
Depot and the said contractor is a necessary party and in
absence of the contractor, the proceeding cannot proceed
and the workman was not in their service uninterruptedly
till 14th March, 1999 and since the contract of the contractor
came to an end, the services of the workman were terminated
by the contractor and the original period of contract given
to the contractor for providing Security services was up to
1998 and the same was extended as per the terms and
conditions till March, 1999 and as the workman was not
employed by them, there was no question of following the
procedure of termination by them and they were not the
employer of the workman and the services of the workman
were never utilized by them as employer from 13.12.1993 to
14.03. 1999 , without any break in service and the workman
did not complete 240 days of work in a year as alleged and
as the workman was engaged by the Security Contractor,
there was no relationship of master and servant between
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[PART II—SEC. 3(ii)]
them and the workman at any point of time and under section
10 of the Contract Labour (Regularisation and Abolition)
Act, they were exempted by the Central Government, so
the allegations made by the workman against them are not
true and there was no question of violation of the provisions
of 25 (H) of the Act and the work does not constantly exist
and the work of providing security guards was given to
other Government Agencies like Police Personnel and Home
guards and therefore, the workman has no right to claim
any relief from them and the work of security is not perennial
in nature and as and when their godowns are filled with
food grains, then only, services of the security guards are
required and in pursuance of the notification issued by the
Central Government abolishing contract labour system,
they appointed Home Guards and Police personnel as
security guards.
The further case of Party No. 1 is that for the relief as
claimed in this reference, the workman had filed a writ petition
before the Hon'ble High Court, Nagpur Bench bearing W.P.
No. 1389/99 and the Hon'ble High Court rejected the said
WP and denied the reliefs prayed for and therefore, this
Tribunal has no jurisdiction to decide the reference and
the decision of the Hon'ble Court operates as res-judicata
and they floated tenders for the contract and lowest bidder
was awarded the contract and the change of contractor in
every two years was not on papers only and they had no
say in the appointment of security guards by the security
contractor and they had no control over the appointment
and service conditions of the workman, who was an
employee of the security agency and he was never their
employee and the security contractor was the employer of
the workman.
The further case of Party No.1 is that the appropriate
government decided to abolish the employment of the
contract labour as contemplated under section 10 of the
Contract Labour (Regularisation and Abolition) Act, 1970
and the interpretation of the notification issued on
01.11.1990 put by the workman is not correct and they were
exempted from the operation of the Act of 1970 in the year
1989 and the said exemption was withdrawn in the year
1999 and therefore, the security contract given to the
contractor was terminated and hence, the services of the
workman were terminated by the security contractor and
they did not pay the salary to the workman and it was the
contractor, who was paying the same to the workman and
when the contractor failed to pay the salary to the workman,
they paid the amount as per the directions given by the
ALC from time to time and the said amount was recovered
from the contract's bill and they only used to check the
attendance of the security guards to find out as to whether
the contractor had made arrangement of the requisite
number of security guards, as per their requirement and
they did not have the power to terminate any employee
appointed by the contractor and they did not provide any
article, such as torch, Lathi, whistle and uniform etc. to the
workman and as such, the workman is not entitled to any
relief.
4. Both parties have led oral evidence in support of
their respective claims, besides placing reliance on
documentary evidence.
The workman in support of his claim, though had
filed in his evidence, on affidavit, he did not appear for his
cross-examination, so, his such evidence cannot be taken
in to consideration.
5. Shri Suresh N. Bokade, the witness examined on
behalf of the Party No. 1 has also reiterated the facts
mentioned in the written statement, in his examination-in-
chief, which is on affidavit. In his cross-examination, the
witness for the Party No. 1 has admitted the suggestions
given on behalf the workman that the workman other
security guards were deployed to work in F.C.I. through
the contractor, Singh Security Services and Singh Security
Services was given the contract to supply security guards
for two years and after the expiry of contract of Singh
Security Services in 1995, contract for supply of security
guards was given to Industrial Security and Fire Services
for two years and the workman and other security guards
were engaged in F.C.I. through the contractors till December,
1998 and after the notification made by the Government
imposing ban for engagement of contract labourers in 1998,
F.C.I. discontinued the engagement of contract labourers
and security guards were being deployed for watch and
ward duty of F.C.I. depots and the workman other security
guards worked continuously from the date of their
respective engagement till December, 1998 in F.C.I. through
different contractors and F.C.I. had the control regarding
the duties to be performed by the security guards.
6. At the time of argument, it was submitted by the
learned advocate for the workman that the workman from
13.12.1993 was in the service of the Party No. 1 till 14.03.1999,
when all of a sudden, his services were terminated orally
by the Party No. 1 without compliance of the mandatory
provisions of Law, particularly the provisions of sections
25 F and 25 H of the Act and Party No. 1 also did not
comply with the provisions of the Contract Labour
(Regulation and Abolition) Act,1970 ("Act,1970" in short )
and as such, the termination of the workman is illegal and
null and void. It is further submitted by the learned advocate
for the workman that the appointment of the workman to
work in the establishment of the Party No. 1 was admittedly
through contractor appointed by Party No. 1 and it is an
admitted position that the tenure of the contract was for
two years and though there was change of contractor in
every two years, the workman and other security guards
remained the same and there was a specific condition in
the contract between the management and the contractor
that the set of workers will be continued by the incoming
contractor and in such fashion, the workman and other
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333
security guards continued to work in the establishment of
Party No. 1 right from the date of their respective date of
appointments till March, 1999 and there was no bread in
their service and each of them completed 240 days of service
in each calendar year and the same shows that the work
was all time available in the establishment of Party No. 1
and is of perennial nature and ever though the workman
and other security guards were employed by the contractor,
fact remains and is also admitted by the witness for the
Party No. 1 that Party No. 1 had control over the working of
the workman.
The learned advocate for the workman further
submitted that though Party No. 1 in the written statement
has contended that it was exempted from the provisions of
the Act, 1970, it has failed to produce any document in
corroboration of such contention and as mere statement of
Party No. 1 is no sufficient, the fact remains that Party No. 1
was never exempted from the provisions of the Act, 1970
and the Central Government by notification dated
01.01.1990 issued U/s 10 of the Act, 1970 abolished contract
labour system in the establishment of Party No. 1 and after
issuance of the said notification, Party No: 1 was prohibited
from engaging any contract labour and as the workman
and other security guards were engaged by Party No. 1
inspite of notification prohibiting contract labour system,
the workman became the direct employee of the Party No. 1
and he has attained the status of regular employee of Party
No. 1.
It was also argued by the learned advocate for the
workman that Party No. 1 has not filed on record any
document showing that it was registered as principal
employer or the contractors were registered under Section 7
and Section 12 respectively of the Act, 1970 and in absence
of the said documents, it cannot be assumed that the
contract between the contractor and management was
genuine and it is clear that the contracts between the Party
No. 1 and the contractors were sham and bogus and such
contract was entered into only with mala fide intention to
deny regular employment to the workman and after
termination of the services of the workman, Party No. 1
appointed police and home guard personnel as security
guards and this proves that the work is available even
today and after the notification dated 01.11.1990, Party
No. 1 regularized the contract labourers were engaged at
Nagpur and Manmad, but same was not the case at Akola,.
Amravati, Wardha and Gondia and this shows that Party
No. 1 indulged into invidious discrimination amongst equal,
which is contrary to provisions of Articles 14 & 16 of the
constitution and the Writ Petition filed by the workman
and others as disposed of by the Hon'ble High Court with
a direction to the petitioners to approach the appropriate
authority and as such, the judgment in Writ Petition 1389/99,
cannot operate as res-judicata.
In support of the contentions, the learned advocate
for the workman placed reliance on the decision reported
in 2006(2) Bom.CR - 167 (Food Corporation of India Vs.
Prashant Pandurang Ramteke & others).
The learned advocate for the workman also submitted
that as the termination of the workman from service is illegal,
the workman is entitled for reinstatement in service with
continuity and full back wages.
7. Per contra, it was submitted by the learned
advocate for the Party No.1 that the workman was never
appointed by Party No.1 and he has engaged by the
contractor as a security guard and as such, the concerned
contractor is a necessary party and inspite of raising such
objection in the written statement, the workman did not
implead the contractor as a party and for that the reference
is not maintainable. It was further submitted by the learned
advocate for the Party No. 1 that the workman was engaged
by the contractor and as the contract of the contractor
came to an end in March, 1999, the services of the workman
were terminated by the contractor and as such, there was
no question of Party No.1 complying with the due
procedure of termination and there was no relationship of
master and servant between the party no.1 and the workman
and the Party No.1 was exempted by the Central
Government from the ban imposed for engagement of
contract labourers, so contract was given to the security
contractor, as per rules, for supply of security guards and
due to the notification of the Government for abolition of
contract labour system, Home guards and Police personnel
were appointed as security guards and Party No.1 has no
control over the workman and the security contractor was
submitting bills for payment for supply of security guards
and the security contractor was paying the wages to the
workman. It was further submitted by the learned advocate
for the Party No.1 that the workman and some others had
approached the Hon'ble High Court, Nagpur Bench in W.P.
1389 of 1999 for the reliefs sought in this reference and the
Hon'ble High Court while depositing of the said petition
have held that the termination of the workman by the
contractor was a valid one and the action of FCI was legal
and as such, the workman cannot agitate the question again
and the decision of the Hon'ble High Court operates as
res-judicata between the parties and the workman is not
entitled to any relief.
8. First of all, I will take up the submission made by
the learned advocate for the Party No. 1 that the present
reference is hit by the principles of res-judicata, due to the
decision of the Hon'ble High Court, Nagpur Bench in W.P.
1389/99.
It is not disputed that the workman alongwith 78
others through the union, "Rashtriya Mazdoor Sena
Saptahit Jaibhim" filed Writ Petition no. 1389/99 before the
Hon'ble High Court of Judicature at Bombay, Nagpur Bench,
Nagpur, for their regularisation and the Hon'ble High Court
did not grant such relief. On perusal of the order passed by
the Hon'ble High Court on 29.07.2002 in the said writ
petition, it is found that the workman and others claimed
regularisation on the ground that they were employed by
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[PART II—SEC. 3(ii)]
the contractor for doing regular work of the Food
Corporation of India and in view of the same, they have
became workmen of Food Corporation of India, since the
work on which they were employed is of perennial nature.
However, it is found from the judgment that the Hon'ble
High Court did not consider the main relief and passed the
following order:
"In view of the judgment of the Constitution Bench
in Steel Authority of India Ltd. and others Vs.
National Union water front workers and others
[reported in 2001 (7) SCC 1], the relief sought by the
petitioners cannot be granted since the petition
involves disputed question of facts as also other
facts which are required to be adjudicated by
appropriate authority. Accordingly, the main prayer
to absorb them cannot be granted.
**
**
**
**
In view of the rejection of the main prayer, the question
of granting other prayer does not arise. In case, the
petitioners approach the appropriate authority, the
appropriate authority shall take decision in the matter
within a period of one year. The applicants are free to
approach the appropriate authority for redress of
their grievances."
So, it is clear from the orders passed by the Hon'ble
High Court as mentioned above that the Hon'ble High Court
did not consider the claim made by the workman and others
on merit and granted them the liberty to approach the
appropriate authority for redress. The Hon'ble High Court
in the decision reported in 2006(2) Bom.CR - 167 (Supra)
have held that, "Because Division Bench had not gone
into merits of the case the decision cannot operate as res-
judicata". Applying the principles settled by the Hon'ble
High Court, as mentioned above to the case in hand, the
reference cannot be said to be hit by the principles of res-
judicata. So, there is no force in the contention raised by
the learned advocate for the Party No. 1.
9. In this reference, it is never the case of the workman
that he was directly appointed or engaged by the
Party No.1 as a security guard. In the very beginning of the
statement of claim, it has been mentioned by the workman
that he was initially engaged at Food Corporation of India
Depot, Wardha as a security guard, through a contractor.
In paragraph 4 of the statement of claim, the workman has
mentioned that, "In the year 1993, the workman was
engaged by the Food Corporation of India through
contractor, for the period of 2 years, but the contract was
made on paper." The case of the workman is that after
every two years, the Party No. 1 on papers showed the
change of contractors, but he was not disturbed from
services and he worked continuously without any break
till 14.03.1999 and as he worked as a security guard of
perennial nature, he is entitled for reinstatement in service.
The workman has also claimed that as the Central
Government issued notification on 01.11.1990 to abolish
the contract labour system in FCI and directed to give
employment to contract labours engaged by the
management and Party No.1 implemented such direction at
Nagpur and Manmad only and gave employment and
regularized and absorbed the services of the Security Guards
working at Nagpur and Manmad and did not implement the
same at Wardha and other places to deprive him from the
benefits under the Labour Laws.
From the evidence on record and the own admission
of the workman in the statement of claim that he was
engaged by the contractor, it is clear that the workman was
engaged by the contractor. The workman has not produced
any evidence to show that he was directly engaged by the
Party No. 1.
10.At this juncture, I think it apropos to mention
about the principles enunciated by the Hon'ble Apex Court
regarding contract labours, in the decisions reported in
1985-II LLJ-4 (S.C.) (The workman of the Food Corporation
of India Vs M/s. Food Corporation of India), 2001 LAB IC
3656 (S.C.) (Steel Authority of India Ltd. and others Vs.
National Union Water Front Workers and others) and 1994
II CLR 402 (R.K. Panda & Others Vs. Steel Authority of
India and Others).
In the decision reported in 1985-II LLOJ-4 (supra)
the Hon'ble Apex Court have held that:-
"Briefly stated, when corporation engaged a
contractor for handling foodgrain at Siliguri Depot,
the corporation had nothing to do with the manner
of handling work done by the contractor, the labour
force employed by him, payments made by him etc.
In such a fact situation, there was no privity of
contract of employer and workmen between the
corporation and the workmen. "Workmen" has been
defined (omitting the words not necessary) in the
Industrial Disputes Act to mean (any person
including an apprentice) employed in any industry
to do..............". 'The expression' employed has at least
two known connotations, but as used in the
definition, the context would indicate that it is used
in the sense of a relationship brought about by
express or implied contract of service in which the
employee renders service for which he is engaged
by the employer and the latter agrees to pay him in
cash or kind as agreed between them or statutorily
prescribed. It discloses a relationship of command
and obedience. The essential condition of a person
being a workman within the terms of the definition is
that he should be employed to do the work in that
industry and that there should be, in other words, an
employment of his by the employer and that there
should be a relationship between the employer and
employee or master and servant unless a person is
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335
thus employed there can be no question of his being
a "workman" within the definition of the term as
contained in the Act.
Dharangadhara Chemical Works Ltd. Vs. State of
Saurashtra (1957 - I - LLJ - 477). Now where a
contractor employs a workman to do the work which
he contracted with a third person to accomplish on
the definition as it stands, the workman of the
contractor would not without something more
become the workman of that third person. Therefore,
when the workmen employed by the contractor were
certainly not the workmen of the corporation and no
claim to that effect has been made by the union."
11. In the decision reported in 2001 LAB IC - 3656
(supra) the Hon'ble Apex Court have held that:—
"The principle that a beneficial legislation needs to
be constructed liberally in favour of the class for
whose benefit it is intended, does not extend to
reading in the provisions of the Act what the
legislature has not provided whether expressly or by
necessary implication, or substituting remedy or
benefits for that provided by the legislature. The
intendment of the CLRA Act is to regulate the
conditions of service of the contract labour and to
authorize in Section 10(1) prohibition of contract
labour system by the appropriate Government on
consideration of factors enumerated in sub-section
(2) of Section 10 of the Act among other relevant
factors. But, the presence of some or all those factors,
provide no ground for absorption of contract labour
on issuing notification under Section 10(1) by the
appropriate Government, is not alluded to either in
Section 10 or at any other place in the Act and the
consequence of violation of Sections 7 and 12 of the
CLRA Act is explicitly provided in Sections 23 and
25 of the CLRA Act, it is not for the High Courts or
the Supreme Court to read in some unspecified
remedy in Section 10 or substitute for. penal
consequences specified in Sections 23 and 25 a
different sequel be it absorption of contract labour
in the establishment of principal employer or a lesser
or a harsher punishment. Such an interpretation of
the provisions of the statute will be far beyond the
principle of ironing out the creases and the scope of
interpretative legislation and as such clearly
impermissible.
Thus on issuance of prohibition notification under
S. 10(1) of the CLRA Act prohibiting employment of
contract labour or otherwise, in an industrial dispute
brought before it by any contract in regard to
conditions of service, the industrial adjudicator will
have to consider the question whether the contractor
has been interposed either on the ground of having
undertaken to produce any given result for the
establishment or for supply of contract labour for
work of the establishment under a genuine contract
or is a mere ruse/camouflage to evade compliance of
various beneficial legislations so as to deprive the
workers of the benefit there under. If the contract is
found to be not genuine but a mere camouflage, the
so called contract labour will have to be treated as
employees of the principal employer who shall be
directed to regularize the services of the contract
labour in the concerned establishment. If the contract
is found to be genuine and the principal employer
intends to employ regular workmen he shall give
preference to the erstwhile contract labour. It
otherwise found suitable, and, if necessary, by
relaxing the condition as to maximum age
appropriately taking into consideration the age of
the workers at the time of their initial employment by
the contractor and also relaxing the condition as to
academic qualifications other than technical
qualifications.
Air India's case 1997 AIR SCW 430 Overruled
prospectively. M.A.T. Nos. 1704 and 1705 of 1999,
D/ - 12-8-1999 (Cal): C.O. No. 6545(W) if 1996, D/-
9-5-1997(Cal): W.A. Nos. 345—354 of 1997m
D/ - 17-4-1998 (Kant): W.P. No. 4050 of 1999,
D/ - 2-8-2000 (Born) and W.P. No. 2616 of 1999,
D/ - 23-12-1999 (Bonr), 1998 Lab IC 2571 (Cal),
Reversed.
It cannot be said that by virtue of engagement of
contract labour by the contractor in any work of or in
connection with the work of an establishment, the
relationship of master and servant is created between
the principal employer and the contract labour. Even
a combined reading of the definition of the terms
"Contract labour", "Establishment" and "Workman"
does not show that the legal relationship between
the person employed in any industry and the owner
of the industry is created irrespective of the fact as
to who has brought about such relationship. The
word "Workman" is defined in wide terms. It is a
generic term of which contract labour is a species. It
is true that combined reading of the terms
"Establishment" and "Workman" shows that a
workman engaged in any establishment would have
direct relationship with the principal employer as a
servant of master. But what is true of a workman
could not be correct of contract labour. When the
provisions of the Act neither contemplate creation
of direct relationship of master and servant between
the principal employer and the contract labour nor
can such relationship be implied from the provisions
of the action issuing notification under Section 10(1)
of the CLRA Act. A fortiori much less can such a
relationship be found to exist from the rules and the
forms made there under."
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[PART II—SEC. 3(ii)]
12. In the decision reported in 1994 II CLR 402 (Supra),
the Hon'ble Apex Court have held that:—
With the industrial growth, the relation between the
employer and the employees also has taken a new
turn. At one time the establishment being the
employer all persons working therein were the
employees of such employer. But slowly the employer
including Central and State Governments started
entrusting many of the jobs to contractors.
Contractors in their turn employed a worker, who
has no direct relationship with the establishment in
which they were employed. Many contractors
exploited the labourers engaged by them in various
manners including the payment of low wages. Hence,
the Contract Labour (Regulation and Abolition) Act,
1970 was enacted to regulate the employment of
contract labour in certain establishment and to
provide for its abolition in certain circumstances and
for matters connected therewith.
The "Contract Labour" has been defined in Section
2 (1) (b) to mean a workman, who has been employed
as contract labour in or in connection with the work
of an establishment when he is hired in or in
connection with such work by or through a
contractor, with or without the knowledge of the
principal employer. Section 2 (1) (c) defines
"Contractor" to mean a person who undertakes to
produce a given result for the establishment, other
than a mere supply of goods or articles of manufacture
to such establishment, through contract labour or
who supplies contract labour for any work of the
establishment and includes a sub-contractor.
"Principal employer" has been defined to mean (i) in
relation to any office or department of the
Government or a local authority, the head of that
office or department or such other officer as the
government or the local authority, as the case may
be, may specify in this behalf and (ii) in a factory, the
owner or occupier of the factory. In view of section
10, of the appropriate Government may after
consultation with the Central Board or, as the case
may be, a state Board, prohibit, by notification in the
Official Gazette, employment of contract labour "in
any process, operation or other work in any
establishment," Sub-section (2) of Section 10 requires
that before issuing any such notification, in relation
to an establishments, the appropriate Government
shall have regard to the conditions of work and
benefits provided for the contract labour in that
establishment and other relevant factors. One of the
relevant factors, which is to be taken into
consideration is whether the work performed by the
contract labourers is of perennial nature. Section 12
enjoins that no contractor to whom this Act is
applicable shall undertake or execute any work
through contract labour except under and in
accordance with a license issued in that behalf by
the licensing authority. The license so issued may
contain conditions in respect of hours of work,
fixation of wages and other essential amenities in
respect of contract labour as the appropriate
Government may deem fit to impose in accordance
with rules. Section 20 provides that if any amenity
required to be provided under section 16, section 17,
section 18, or section 19 for the benefit of the contract
labour employed in an establishment, is not provided
by the contractor within the time prescribed by the
contractor within the time prescribed therefore, such
amenity shall be provided by the principal employer
within such time as may be prescribed and all
expensed incurred by the principal employer in
providing the amenity may be recovered by the
principal employer from the contractor "either by
deduction from any amount payable to the contractor
under any contract or as a debt payable by the
contractor". Section 21 says that a contractor shall
be responsible for the payment of wages to each
worker employed by him as contract labour but at
the same time in order to protect the interest of such
contract labour, it requires every principal employer
to nominate a representative duly authorized by him
to be present at the time of disbursement of wages
by the contractor. It shall be the duty of the contractor
to ensure the disbursement of wages in the presence
of the authorized representative of the principal
employer. Because of sub-section (4) of section 21, if
the contractor fails to make payment of wages within
the prescribed period, then the principal employer
shall be liable to make payment of wages in full to the
contact labour employed by the contractor and
recover the amount so paid from the contractor. Any
contravention of the provisions aforesaid has been
made penal for which punishment can be imposed.
From the provisions referred to above, it is apparent
that the framers of the Act have allowed and
recognized contract labour and they have never
purported to abolish it in its entirety. The primary
object appears to be that there should not be any
exploitation of the contract labourers by the
contractor or the establishment. For achieving that
object, statutory restrictions and responsibilities have
been imposed on the contractor as well as on the
principal employer. Of course if any expenses are
incurred for providing any amenity to the contract
labourers or towards the payment of wages by the
principle employer he is entitled to deduct the same
from the bill of the contractor. The Act also conceives
that all appropriate government may after
consultation with the central board or the state board,
as the case may be, prohibit by notification in official
¹Hkkx II—[k.M 3(ii)º
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337
gazette, employment of contract labour in any
process, operation or other work in any
establishment, taking all facts and circumstances of
employment of contract labour in such process,
operation or the work into consideration.
Of late a trained amongst the contract labourers is
discernible that after having work for some years,
they make a claim that they should be absorbed by
the principal employer and be treated as employees
of the principal employer especially when the
principal employer is the central government or the
state government or an authority which can be held
to be state within the meaning of Article 12 of the
constitution although no right flows from the
provisions of the act for the contract labourers to be
absorbed or to become the employees of the principal
employer. This court in the case of Gammon India
limited V. Union of India (1974) I SCC 596, pointed
out the object and scope of the act as follows:—
"The Act was passed to prevail the exploitation of
contract labour and also to introduce better condition
of work. The Act provides for regulation and abolition
of contract labour. The underline policy of the Act is
to abolish contract labour, wherever possible and
practicable and where it cannot be abolished to
altogether, the policy of the Act is that the working
conditions of the contract labour should be so
regulated as to ensure payment of wages and
provisions of essential amenities. This is why the
Act provides for regulated conditions of work and
contemplates progressive abolition to the extent
contemplated by Section 10 of the Act."
In the case of B.H.E.L. Workers' Association V. Union
of India, 1985 I CLR SC 165 = (1985) 1 SCC 630 it was
pointed out that Parliament has not abolished the
contract labour as such but has provided for its
abolition by the Central Government in appropriate
cases under section 10 of the Act. It is not for the
court to enquire into the question and to decide
whether the employment of contract labour in any
process, operation or other work in any establishment
should be abolished or not. That has to be decided
by the government after considering the relevant
aspects as required by Section 10 of the Act. Again
in the case of Mathura Refinery Mazdoor Sangh V.
Indian Oil Corporation Ltd., 1991 I CLR 684, this court
refused to direct the Indian Oil Corporation Ltd., to
absorb the contract labourers in its employment
saying that, the contract labourers have not been
found to have direct connection with the refinery. In
other words, there was no relationship of employer
and employee between the Indian Oil Corporation
Ltd. and the contract labourers concerned. Again in
Dena Nath V. National Fertilizers Ltd., 1992 I CLR 1,
this court pointed out that the aforesaid Act has two
purposes to serve (i) to regulate the conditions of
service of the worker employed by the contractor
who is engaged by a principal employer and (ii) to
provide for the abolition of contract labour altogether,
in certain notified processes, operation or other works
in any establishment by the appropriate government,
under section 10 of the Act. It was further stated that
neither the Act nor the Rules framed by the central
government or by any appropriate government
provide that upon abolition of contract labour, the
labourers would be directly absorbed by the principal
employer.
It is true that with passage of time and purely with a
view to safeguard the interests of workers, many
principal employers while renewing the contracts
have been insisting that the contractor or the new
contractor retains the old employees. Infact such a
condition is incorporated in the contract itself.
However, such a clause in the contract which is
benevolently inserted in the contract to protect the
continuance of the source of livelihood of the
contract labour cannot by itself give rise to a right to
regularization in the employment of the principal
employer. Whether the contract labourers have
become the employees of the principal employer in
course of time and on whether the engagement and
employment of labourers through a contractor is a
mere camouflage and a smoke screen, as has been
urged in this case, is a question of fact is to be
established by the contract labourers on the basis of
the requisite material. It is not possible for High Court
or this court, while exercising writ jurisdiction or
jurisdiction under Article 136 to decide such
questions only on the basis of the affidavits. It need
not to be pointed out that in all such cases, the
labourers are initially employed and engaged by the
contractors. As such at what point of time a direct
link is established between the contract labourers
and the principal employer, eliminating the contractor
from the scene, is a matter which has to be established
on material produced before the court. Normally, the
Labour Court and the Industrial Tribunal, under the
Industrial Disputes Act are the Competent Fora to
adjudicate such disputes on the basis of the oral and
documentary evidence produced before them."
So, keeping in view the principles enunciated by the
Hon'ble Apex Court in the decisions mentioned above, the
present case in hand is to be considered.
13. In this case, the letter No. U-23013/11/89/LW
dated 28.05.92, Govt. of India, Ministry of Labour shows
that the prohibition of employment of contract labour in
sweeping, cleaning, dusting and watching of buildings
owned or occupied by the establishments of Food
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THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
Corporation of India and some other departments was lifted
by the Central Government. So, the engagement of contract
labour by the Party No. 1 cannot be said to be illegal. It is
also found from the materials on record that the appointment
of labour contractor by Party No. 1 for supply of Security
Guards was genuine and the same was not only on papers
as claimed by the workman. The workman has failed to
prove such claim by adducing cogent or reliable evidence.
The engagement of labour contractor by Party No. 1 was
not a mere ruse or camouflage to evade compliance of the
various beneficial legislations, so as to deprive the workman
of the benefits there under. The workman has not been
able to produce any document to show that at any point of
time, Party No. 1 paid him wages as their employee. As it is
clear from the evidence on record that the workman was
engaged as a contract labour with Party No. 1, by the
contractor, it can be held that there was no relationship of
master and servant between the Party No. 1 and the
workman. Hence, there was no question of termination of
the services by the Party No. 1 or compliance of the
provisions of Sections 25-F or 25-H of the Act.
14. It is the own case of the workman that he was
engaged by the contractor. So the contractor, who had
engaged the workman, is a necessary party in the reference.
The said contractor has not been added as a party in this
reference. Due to non-joinder of necessary party, the
reference is bad in law.
In view of the materials on record and the discussions
made above, the reference cannot be answered in favour
of the workman. Hence, it is ordered:-
ORDER
The reference is answered in the negative. The
workman is not entitled to any relief.
J. P. CHAND, Presiding Officer
ubZ fnYyh] 27 fnlEcj] 2013
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,eñ dsñ flag] vuqHkkx vf/kdkjh
New Delhi, the 27th December, 2013
S.O. 179.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947) the Central
Government hereby publishes the Award (Ref. No. 277/
2003) of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Nagpur as shown in the Annexure, in the industrial dispute
between the management of Food Corporation of India,
and their workmen, received by the Central Government on
27/ 12/2013.
[F. No. L-22012/201/2003 - IR(CM-II)]
M. K. SINGH , Section Officer
ANNEXURE
BEFORE SHRI J.P. CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No.CGIT/NGP/277/2003
Date: 29.11.2013.
Party No.1(a)
The District Manager,
Food Corporation of India,
Ajani, Nagpur,
Nagpur -440015.
Party No.1(b)
The Senior Regional Manager,
Food Corporation of India,
Mistry Bhawan, Dinshaw Wacha
Road, Churchgatye,
Mumbai - 400020.
Versus
Party No.2
The Secretary,
Rashtriya Mazdoor Sena,
Hind Nagar Ward No. 2,
Near Boudha Vihar, Post: Wardha,
Distt. Wardha (M.S.)
AWARD
(Dated: 29th November, 2013)
In exercise of the powers conferred by clause (d) of
sub-section (1) and sub-section 2(A) of section 10 of
Industrial Disputes Act, 1947 (14 of 1947) ("the Mt" in
short), the Central Government has referred the industrial
dispute between the employers, in relation to the
management of Food Corporation of India and their
workman, Shri Suresh Adkuji Rarnteke for adjudication, as
per letter No. L-22012/201/2003-IR (CM-II) dated 08.12.2003,
with the following schedule:—
"Whether the action of the management of Food
Corporation of India, Nagpur (M.S.) in terminating
the services of Shri Suresh Adkuji Ramtake, Security
Guard w.e.f. 14.03.1999 is legal and justified? If not,
to what relief the concerned workman is entitled?"
2. On receipt of the reference, the parties were noticed
to file their respective statement of claim and written
statement and accordingly, the workman, Shri Suresh Adkuji
Ramtake, (`the workman" in short), filed the statement of
claim and the management of Food Corporation of India
("Party No. 1" in short) filed their written statement.
The case of the workman as presented in the
statement of claim is that he was in the employment of
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339
Party No. 1 from 27.09.1992 and he was initially engaged
through a contractor at Wardha Depot of Party No. 1, as a
Security Guard and he was in continuous service without
any interruption till 14th March, 1999, when his services
were terminated orally by Party No. 1, without following
the due procedure of law and he had completed more than
240 days of work in each year and the termination of his
services on 14.03.1999 was not in good faith, but in
colourable exercise of the rights and powers by the Party
No. 1 and while terminating his services, neither one
month's notice nor one month's wages in lieu of notice nor
retrenchment compensation was given to him as required
under section 25-F of the Act and after his illegal
termination, fresh hands from the department of home guard
and police were engaged by Party No. 1 to extract the duties
of Security guards, in violation of the provision of section
25-H of the Act and the work which he was performing is
constantly in existence and the same is of a perennial nature
and as his termination is illegal and unlawful, he is entitled
for reinstatement in service with continuity and full back
wages.
The further case of the workman is that in 1992, he
was engaged by the Party No. 1 through the contractor for
a period of two years, but the contract was made only on
papers and after every two years, the Party No. 1 changed
the contractor on papers only and the engagement of the
so-called contractor did not replace the Security Guards
and he was also not disturbed from his services and he
was merely shown to be engaged by the contractors, but
actually he was working under the direct control and
supervision of the Party No. 1 and the contractor had no
role to play in the same and the work performed by him was
being assigned to him by Party No. 1 and he was a regular
employee of Party No. 1 and Party No. 1 was his real
employer and not the contractor as alleged and the
engagement and change of contractors by Party No. 1 from
time to time was sham and only a camouflage to deny his
legitimate claim and the contract between Party No. 1 and
the contractor was bogus and not genuine and therefore,
his oral termination from services was against the
mandatory provisions of the Act and the Central
Government decided to abolish the appointment of contract
labour as contemplated under section 10 of the Contract
Labour (Regulation and Abolition) Act, 1970 and issued
notification on 01.11.1990 with directions to abolish the
contract labour system in the establishment of the Party
No. 1 and to give employment to contract labours engaged
by the management and therefore, it was the mandatory
duty of the Party No. 1 to abolish the contract labour system
in all places and management of FCI implemented the
notification only at Nagpur and Manmad and absorbed
the Security Guards working at Nagpur and Manmad, but
at Akola, Amravati, Wardha and Gondia districts, the
contract labour system was continued by the management,
with an intention to deprive him from the benefits under
the labour laws.
It is further pleaded by the workman that his salary
was paid by the Party No. 1 and not by the contractor and
his daily attendance was also marked by the Asstt.
Manager of FCI, Wardha Depot and the Party No. 1 was
supervising his work through their officers and he had no
relation with the so called contractors engaged by the Party
No. 1 and Party No. 1 also supplied the articles, such as,
torch, lathi, whistle and uniform etc to him and in view of
the long spell of work being carried out by him, he is entitled
to be reinstated in service with continuity and full back
wages.
3. The Party No. 1 in their written statement have
pleaded inter alia that the workman was never in their
employment and the workman has not impleded the
contractor, who appointed him, as a Party and the workman
was engaged by the contractor as a Security Guard at FCI
Depot and the said contractor is a necessary party and in
absence of the contractor, the proceeding cannot proceed
and the workman was not in their service uninterruptedly
till 14th March, 1999 and since the contract of the contractor
came to an end, the services of the workman were terminated
by the contractor and the original period of contract given
to the contractor for providing Security services was up to
1998 and the same was extended as per the terms and
conditions till March, 1999 and as the workman was not
employed by them, there was no question of following the
procedure of termination by them and they were not the
employer of the workman and the services of the workman
were never utilized by them as employer from 27.09.1992
to14.03. 1999 , without any break in service and the workman
did not complete 240 days of work in a year as alleged and
as the workman was engaged by the Security Contractor,
there was no relationship of master and servant between
them and the workman at any point of time and under
section 10 of the Contract Labour (Regularisation and
Abolition) Act, they were exempted by the Central
Government, so the allegations made by the workman
against them are not true and there was no question of
violation of the provisions of 25 (H) of the Act and the
work does not constantly exist and the work of providing
security guards was given to other Government Agencies
like Police Personnel and Home guards and therefore, the
workman has no right to claim any relief from them and the
work of security is not perennial in nature and as and when
their go-downs are filled with foodgrains, then only,
services of the security guards are required and in
pursuance of the notification issued by the Central
Government abolishing contract labour system, they
appointed Home guards and Police personnel as security
guards.
The further case of Party No.1 is that for the relief as
claimed in this reference, the workman had filed a writ petition
before the Hon'ble High Court, Nagpur Bench bearing W.P.
No. 1389/99 and the Hon'ble High Court rejected the said
WP and denied the reliefs prayed for and therefore, this
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[PART II—SEC. 3(ii)]
Tribunal has no jurisdiction to decide the reference and
the decision of the Hon'ble Court operates as res-judicata
and they floated tenders for the contract and lowest bidder
was awarded the contract and the change of contractor in
every two years was not on papers only and they had no
say in the appointment of security guards by the security
contractor and they had no control over the appointment
and service conditions of the workman, who was an
employee of the security agency and he was never their
employee and the security contractor was the employer of
the workman.
The further case of Party No.1 is that the appropriate
government decided to abolish the employment of the
contract labour as contemplated under section 10 of the
Contract Labour (Regularisation and Abolition) Act, 1970
and the interpretation of the notification issued on
01.11.1990 put by the workman is not correct and they were
exempted from the operation of the Act of 1970 in the year
1989 and the said exemption was withdrawn in the year
1999 and therefore, the security contact given to the
contractor was terminated and hence, the services of the
workman were terminated by the security contractor and
they did not pay the salary to the workman and it was the
contractor, who was paying the same to the workman and
when the contractor failed to pay the salary to the workman,
they paid the amount as per the directions given by the
ALC from time to time and the said amount was recovered
from the contract's bill and they only used to check the
attendance of the security guards to find out as to whether
the contractor had made arrangement of the requisite
number of security guards, as per their requirement and
they did not have the power to terminate any employee
appointed by the contractor and they did not provide any
article, such as torch, lathi, whistle and uniform etc. to the
workman and as such, the workman is not entitled to any
relief.
4. Both parties have led oral evidence in support of
their respective claims, besides placing reliance on
documentary evidence.
The workman in support of his claim has examined
himself as a witness. In his evidence, which is on affidavit,
the workman has reiterated the facts mentioned in the
statement of claim.
In his cross-examination, the workman has admitted
that he was engaged in F.C.I. through the contractor,
"Bombay Industrial Security". The workman in his cross-
examination has further admitted that he has not filed any
document to show that F.C.I. was making payment of his
wages and he had worked for 240 days in every calendar
year with F.C.I.
5. Shri Suresh N. Bokade, the witness examined on
behalf of the Party No.1 has also reiterated the facts
mentioned in the written statement, in his examination-in-
chief, which is on affidavit. In his cross-examination, the
witness for the Party No. 1 has admitted the suggestions
given on behalf the workman that the workman other
security guards were deployed tom work in F.C.I. through
the contractor, Singh Security Services and Singh Security
Services was given the contract to supply security guards
for two years and after the expiry of contract of Singh
Security Services in 1995, contract for supply of security
guards was given to Industrial Security and Fire Services
for two years and the workman and other security guards
were engaged in F.C.I. through the contractors till December,
1998 and after the notification made by the Government
imposing ban for engagement of contract labourers in 1998,
F.C.I. discontinued the engagement of contract labourers
and security guards were being deployed for watch and
ward duty of F.C.I. depots and the workman other security
guards worked continuously from the date of their
respective engagement till December, 1998 in F.C.I. through
different contractors and F.C.I. had the control regarding
the duties to be performed by the security guards.
6. At the time of argument, it was submitted by the
learned advocate for the workman that the workman from
27.09.1992 was in the service of the Party No. 1 till 14.03.1999,
when all of a sudden, his services were terminated orally
by the Party No. 1 without compliance of the mandatory
provisions of Law, particularly the provisions of sections
25 F and 25 H of the Act and Party No. 1 also did not
comply with the provisions of the Contract Labour
(Regulation and Abolition)Act,1970("Act,1970" in short )
and as such, the termination of the workman is illegal and
null and void. It is further submitted by the learned advocate
for the workman that the appointment of the workman to
work in the establishment of the Party No. 1 was admittedly
through contractor appointed by Party No. 1 and it is an
admitted position that the tenure of the contract was for
two years and though there was change of contractor in
every two years, the workman and other security guards
remained the same and there was a specific condition in
the contract between the management and the contractor
that the set of workers will be continued by the incoming
contractor and in such fashion, the workman and other
security guards continued to work in the establishment of
Party No. 1 right from the date of their respective date of
appointments till March, 1999 and there was no bread in
their service and each of them completed 240 days of service
in each calendar year and the same shows that the work
was all time available in the establishment of Party No. 1
and is of perennial nature and ever though the workman
and other security guards were employed by the contractor,
fact remains and is also admitted by the witness for the
Party No. 1 that Party No. 1 had control over the working of
the workman.
The learned advocate for the workman further
submitted that though Party No. 1 in the written statement
has contended that it was exempted from the provisions of
the Act, 1970, it has failed to produce any document in
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341
corroboration of such contention and as mere statement of
Party No. 1 is no sufficient, the fact remains that Party No.
1 was never exempted from the provisions of the Act, 1970
and the Central Government by notification dated
01.01.1990 issued U/s 10 of the Act, 1970 abolished contract
labour system in the establishment of Party No. 1 and after
issuance of the said notification, Party No. 1 was prohibited
from engaging any contract labour and as the workman
and other security guards were engaged by Party No. 1
inspite of notification prohibiting contract labour system,
the workman became the direct employee of the Party No.
1 and he has attained the status of regular employee of
Party No. 1.
It was also argued by the learned advocate for the
workman that Party No. 1 has not filed on record any
document showing that it was registered as principal
employer or the contractors were registered under section
7 and Section 12 respectively of the Act, 1970 and in
absence of the said documents, it cannot be assumed that
the contract between the contractor and management was
genuine and it is clear that the contracts between the Party
No. 1 and the contractors were sham and bogus and such
contract was entered into only with malafide intention to
deny regular employment to the workman and after
termination of the services of the workman, Party No. 1
appointed police and home guard personnel as security
guards and this proves that the work is available even
today and after the notification dated 01.11.1990, Party No.
1 regularized the contract labourers were engaged at Nagpur
and Manmad, but same was not the case at Akola, Amravati,
Wardha and Gondia and this shows that Party No. 1
indulged into invidious discrimination amongst equal,
which is contrary to provisions of Articles 14 & 16 of the
constitution and the Writ Petition filed by the workman
and others as disposed of by the Hon'ble High Court with
a direction to the petitioners to approach the appropriate
authority and as such, the judgment in Writ Petition 1389/
99, cannot operate as res-judicata.
In support of the contentions, the learned advocate
for the workman placed reliance on the decision reported
in 2006(2) Bom.CR - 167 (Food Corporation of India Vs
Prashant Pandurang Ramteke & others).
The learned advocate for the workman also submitted
that as the termination of the workman from service is illegal,
the workman is entitled for reinstatement in service with
continuity and full back wages.
7. Per contra, it was submitted by the learned advocate
for the Party No.1 that the workman was never appointed
by Party No.1 and he has engaged by the contractor as a
security guard and as such, the concerned contractor is a
necessary party and inspite of raising such objection in
the written statement, the workman did not implead the
contractor as a party and for that the reference is not
maintainable. It was further submitted by the learned
advocate for the Party No.1 that the workman was engaged
by the contractor and as the contract of the contractor
came to an end in March, 1999, the services of the workman
were terminated by the contractor and as such, there was
no question of Party No.1 complying with the due procedure
of termination and there was no relationship of master and
servant between the party no.1 and the workman and the
Party No.1 was exempted by the Central Government from
the ban imposed for engagement of contract labourers, so
contract was given to the security contractor, as per rules,
for supply of security guards and due to the notification of
the Government for abolition of contract labour system,
Home guards and Police personnel were appointed as
security guards and Party No.1 has no control over the
workman and the security contractor was submitting bills
for payment for supply of security guards and the security
Contractor was paying the wages to the workman. It was
further submitted by the learned advocate for the Party
No.1 that the workman and some others had approached
the Hon'ble High Court, Nagpur Bench in W.P. 1389 of 1999
for the reliefs sought in this reference and the Hon'ble
High Court while depositing of the said petition have held
that the termination of the workman by the contractor was
a valid one and the action of FCI was legal and as such, the
workman cannot agitate the question again and the decision
of the Hon'ble High Court operates as res-judicata between
the parties and the workman is not entitled to any relief.
8. First of all, I will take up the submission made by
the learned advocate for the Party No.1 that the present
reference is hit by the principles of res-judicata, due to the
decision of the Hon'ble High Court, Nagpur Bench in W.P.
1389/99.
It is not disputed that the workman alongwith 78
others through the union, "Rashtriya Mazdoor Sena
Saptahit Jaibhim" filed Writ Petition no. 1389/99 before the
Hon'ble High Court of Judicature at Bombay, Nagpur Bench,
Nagpur, for their regularisation and the Hon'ble High Court
did not grant such relief. On perusal of the order passed by
the Hon'ble High Court on 29.07.2002 in the said writ
petition, it is found that the workman and others claimed
regularisation on the ground that they were employed by
the contractor for doing regular work of the Food
Corporation of India and in view of the same, they have
became workmen of Food Corporation of India, since the
work on which they were employed is of perennial nature.
However, it is found from the judgment that the Hon'ble
High Court did not consider the main relief and passed the
following order:
"In view of the judgment of the Constitution Bench
in Steel Authority of India Ltd. and others Vs.
National Union water front workers and others
[reported in 2001 (7) SCC1], the relief sought by the
petitioners cannot be granted since the petition
involves disputed question of facts as also other
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[PART II—SEC. 3(ii)]
facts which are required to be adjudicated by
appropriate authority. Accordingly, the main prayer
to absorb them cannot be granted.
XX
XX
XX
XX
In view of the rejection of the main prayer, the question
of granting other prayer does not arise. In case, the
petitioners approach the appropriate authority, the
appropriate authority shall take decision in the matter
within a period of one year. The applicants are free to
approach the appropriate authority for redress of
their grievances."
So, it is clear from the orders passed by the Hon'ble
High Court as mentioned above that the Hon'ble High Court
did not consider the claim made by the workman and others
on merit and granted them the liberty to approach the
appropriate authority for redress. The Hon'ble High Court
in the decision reported in 2006(2) Bom.CR - 167 (Supra)
have held that, "Because Division Bench had not gone
into merits of the case the decision cannot operate as res-
judicata". Applying the principles settled by the Hon'ble
High Court, as mentioned above to the case in hand, the
reference cannot be said to be hit by the principles of res-
judicata. So, there is no force in the contention raised by
the learned advocate for the Party No. 1.
9. In this reference, it is never the case of the workman
that he was directly appointed or engaged by the Party
No.1 as a security guard. In the very beginning of the
statement of claim, it has been mentioned by the workman
that he was initially engaged at Food Corporation of India
Depot, Wardha as a security guard, through a contractor.
In paragraph 4 of the statement of claim, the workman has
mentioned that, "In the year 1993, the workman was
engaged by the Food Corporation of India through
contractor, for the period of 2 years, but the contract was
made on paper." The case of the workman is that after
every two years, the Party No.1 on papers showed the
change of contractors, but he was not disturbed from
services and he worked continuously without any break
till 14.03.1999 and as he worked as a security guard of
perennial nature, he is entitled for reinstatement in service.
The workman has also claimed that as the Central
Government issued notification on 01.11.1990 to abolish
the contract labour system in FCI and directed to give
employment to contract labours engaged by the
management and Party No.1 implemented such direction at
Nagpur and Manmad only and gave employment and
regularized and absorbed the services of the Security Guards
working at Nagpur and Manmad and did not implement the
same at Wardha and other places to deprive him from the
benefits under the Labour Laws.
In his evidence on affidavit also, the workman has
mentioned that he was initially engaged in Food
Corporation of India as a Security Guard through a
contractor.
From the evidence on record and the own admission
of the workman in the cross- examination including the
specific admission that he was engaged by the contractor,
it is clear that the workman was engaged by the contractor.
The workman has not produced any evidence to show that
he was directly engaged by the Party No. 1.
10. At this juncture, I think it apropos to mention
about the principles enunciated by the Honble Apex Court
regarding contract labours, in the decisions reported in
1985-II LLJ-4 (S.C.) (The workman of the Food Corporation
of India Vs M/s Food Corporation of India), 2001 LAB IC
3656 (S.C.) (Steel Authority of India Ltd. and others Vs.
National Union Water Front Workers and others) and 1994
II CLR 402 (R.K. Panda & Others Vs. Steel Authority of
India and Others).
In the decision reported in 1985II LLOJ-4 (supra) the
Hon. Apex Court have held that:—
"Briefly stated, when corporation engaged a
contractor for handling food grain at Siliguri Depot,
the corporation had nothing to do with the manner
of handling work done by the contractor, the labour
force employed by him, payments made by him etc.
In such a fact situation, there was no privity of
contract of employer and workmen between the
corporation and the workmen. "Workmen" has been
defined (omitting the words not necessary) in the
Industrial Disputes Act to mean (any person
including an apprentice) employed in any industry
to do...." The expression' employed has at least two
known connotations, but as used in the definition,
the context would indicate that it is used in the sense
of a relationship brought about by express or implied
contract of service in which the employee renders
service for which he is engaged by the employer and
the latter agrees to pay him in cash or kind as agreed
between them or statutorily prescribed. It discloses
a relationship of command and obedience. The
essential condition of a person being a workman
within the terms of the definition is that he should be
employed to do the work in that industry and that
there should be, in other words, an employment of
his by the employer and that there should be a
relationship between the employer and employee or
master and servant unless a person is thus employed
there can be no question of his being a "workman"
within the definition of the term as contained in the
Act.
Dharangadhara Chemical Works Ltd. Vs. State of
Saurashtra (1957 - I - LLJ - 477). Now where a
contractor employs a workman to do the work which
he contracted with a third person to accomplish on
the definition as it stands, the workman of the
contractor would not without something more
become the workman of that third person. Therefore,
¹Hkkx II—[k.M 3(ii)º
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343
when the workmen employed by the contractor were
certainly not the workmen of the corporation and no
claim to that effect has been made by the union."
11. In the decision reported in 2001 LAB IC - 3656
(supra) the Hon'ble Apex Court have held that:—
"The principle that a beneficial legislation needs to
be constructed liberally in favour of the class for
whose benefit it is intended, does not extend to
reading in the provisions of the Act what the
legislature has not provided whether expressly or by
necessary implication, or substituting remedy or
benefits for that provided by the legislature. The
intendment of the CLRA Act is to regulate the
conditions of service of the contract labour and to
authorize in Section 10(1) prohibition of contract
labour system by the appropriate Government on
consideration of factors enumerated in sub-section
(2) of Section 10 of the Act among other relevant
factors. But, the presence of some or all those factors,
provide no ground for absorption of contract labour
on issuing notification under Section 10(1) by the
appropriate Government, is not alluded to either in
Section 10 or at any other place in the Act and the
consequence of violation of Sections 7 and 12 of the
CLRA Act is explicitly provided in Sections 23 and
25 of the CLRA Act, it is not for the High Courts or
the Supreme Court to read in some unspecified
remedy in Section 10 or substitute for penal
consequences specified in Sections 23 and 25 a
different sequel be it absorption of contract labour
in the establishment of principal employer or a lesser
or a harsher punishment. Such an interpretation of
the provisions of the statute will be far beyond the
principle of ironing out the creases and the scope of
interpretative legislation and as such clearly
impermissible.
Thus on issuance of prohibition notification under
S. 10(1) of the CLRA Act prohibiting employment of
contract labour or otherwise, in an industrial dispute
brought before it by any contract in regard to
conditions of service, the industrial adjudicator will
have to consider the question whether the contractor
has been interposed either on the ground of having
undertaken to produce any given result for the
establishment or for supply of contract labour for
work of the establishment under a genuine contract
or is a mere ruse/camouflage to evade compliance of
various beneficial legislations so as to deprive the
workers of the benefit there under. If the contract is
found to be not genuine but a mere camouflage, the
so called contract labour will have to be treated as
employees of the principal employer who shall be
directed to regularize the services of the contract
labour in the concerned establishment. If the contract
is found to be genuine and the principal employer
intends to employ regular workmen he shall give
preference to the erstwhile contract labour. It
otherwise found suitable, and, if necessary, by
relaxing the condition as to maximum age
appropriately taking into consideration the age of
the workers at the time of their initial employment by
the contractor and also relaxing the condition as to
academic qualifications other than technical
qualifications.
Air India's case 1997 AIR SCW430 Overruled
prospectively. M.A.T. Nos. 1704 and 1705 of 1999,
D/ - 12-8-1999 (Cal): C.O. No. 6545(W) if 1996, D/ -9-
5-1997(Cal): W.A. Nos. 345-354 of 1997m D/ - 17-4-
1998 (Kant): W.P. No. 4050 of 1999, D/ - 2-8-2000
(Born) and W.P. No. 2616 of 1999, D/ - 23-12-1999
(Born), 1998 Lab IC 2571 (Cal), Reversed.
It cannot be said that by virtue of engagement of
contract labour by the contractor in any work of or in
connection with the work of an establishment, the
relationship of master and servant is created between
the principal employer and the contract labour. Even
a combined reading of the definition of the terms
"Contract labour", "Establishment" and "Workman"
does not show that the legal relationship between
the person employed in any industry and the owner
of the industry is created irrespective of the fact as
to who has brought about such relationship. The
word "Workman" is defined in wide terms. It is a
generic term of which contract labour is a species. It
is true that combined reading of the terms
"Establishment" and "Workman" shows that a
workman engaged in any establishment would have
direct relationship with the principal employer as a
servant of master. But what is true of a workman
could not be correct of contract labour. When the
provisions of the Act neither contemplate creation
of direct relationship of master and servant between
the principal employer and the contract labour nor
can such relationship be implied from the provisions
of the action issuing notification under Section 10(1)
of the CLRA Act. A fortiori much less can such a
relationship be found to exist from the rules and the
forms made there under."
12. In the decision reported in 1994 II CLR 402 (Supra),
the Hon'ble Apex Court have held that:—
With the industrial growth, the relation between the
employer and the employees also has taken a new
turn. At one time the establishment being the
employer all persons working therein were the
employees of such employer. But slowly the employer
including Central and State Governments started
entrusting many of the jobs to contractors.
Contractors in their turn employed a worker, who
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[PART II—SEC. 3(ii)]
has no direct relationship with the establishment in
which they were employed. Many contractors
exploited the labourers engaged by them in various
manners including the payment of low wages. Hence,
the Contract Labour (Regulation and Abolition) Act,
1970 was enacted to regulate the employment of
contract labour in certain establishment and to
provide for its abolition in certain circumstances and
for matters connected therewith.
The "Contract Labour" has been defined in Section
2 (1) (b) to mean a workman, who has been employed
as contract labour in or in connection with the work
of an establishment when he is hired in or in
connection with such work by or through a
contractor, with or without the knowledge of the
principal employer. Section 2 (1) (c) defines
"Contractor" to mean a person who undertakes to
produce a given result for the establishment, other
than a mere supply of goods or articles of manufacture
to such establishment, through contract labour or
who supplies contract labour for any work of the
establishment and includes a sub-contractor.
"Principal employer" has been defined to mean (i) in
relation to any office or department of the
Government or a local authority, the head of that
office or department or such other officer as the
government or the local authority, as the case may
be, may specify in this behalf and (ii) in a factory, the
owner or occupier of the factory. In view of section
10, of the appropriate Government may after
consultation with the Central Board or, as the case
may be, a state Board, prohibit, by notification in the
Official Gazette, employment of contract labour "in
any process, operation or other work in any
establishment," Sub-section (2) of Section 10 requires
that before issuing any such notification, in relation
to an establishments, the appropriate Government
shall have regard to the conditions of work and
benefits provided for the contract labour in that
establishment and other relevant factors. One of the
relevant factors, which is to be taken into
consideration is whether the work performed by the
contract labourers is of perennial nature. Section 12
enjoins that no contractor to whom this Act is
applicable shall undertake or execute any work
through contract labour except under and in
accordance with a license issued in that behalf by
the licensing authority. The license so issued may
contain conditions in respect of hours of work,
fixation of wages and other essential amenities in
respect of contract labour as the appropriate
Government may deem fit to impose in accordance
with rules. Section 20 provides that if any amenity
required to be provided under section 16, section 17,
section 18, or section 19 for the benefit of the contract
labour employed in an establishment, is not provided
by the contractor within the time prescribed by the
contractor within the time prescribed therefore, such
amenity shall be provided by the principal employer
within such time as may be prescribed and all
expensed incurred by the principal employer in
providing the amenity may be recovered by the
principal employer from the contractor "either by
deduction from any amount payable to the contractor
under any contract or as a debt payable by the
contractor". Section 21 says that a contractor shall
be responsible for the payment of wages to each
worker employed by him as contract labour but at
the same time in order to protect the interest of such
contract labour, it requires every principal employer
to nominate a representative duly authorized by him
to be present at the time of disbursement of wages
by the contractor. It shall be the duty of the contractor
to ensure the disbursement of wages in the presence
of the authorized representative of the principal
employer. Because of sub-section (4) of section 21, if
the contractor fails to make payment of wages within
the prescribed period, then the principal employer
shall be liable to make payment of wages in full to the
contact labour employed by the contractor and
recover the amount so paid from the contractor. Any
contravention of the provisions aforesaid has been
made penal for which punishment can be imposed.
From the provisions referred to above, it is apparent
that the framers of the Act have allowed and
recognized contract labour and they have never
purported to abolish it in its entirety. The primary
object appears to be that there should not be any
exploitation of the contract labourers by the
contractor or the establishment. For achieving that
object, statutory restrictions and responsibilities have
been imposed on the contractor as well as on the
principal employer. Of course if any expenses are
incurred for providing any amenity to the contract
labourers or towards the payment of wages by the
principle employer he is entitled to deduct the same
from the bill of the contractor. The Act also conceives
that all appropriate government may after
consultation with the central board or the state board,
as the case may be, prohibit by notification in official
gazette, employment of contract labour in any
process, operation or other work in any
establishment, taking all facts and circumstances of
employment of contract labour in such process,
operation or the work into consideration.
Of late a trained amongst the contract labourers is
discernible that after having work for some years,
they make a claim that they should be absorbed by
the principal employer and be treated as employees
of the principal employer especially when the
¹Hkkx II—[k.M 3(ii)º
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345
principal employer is the central government or the
state government or an authority which can be held
to be state within the meaning of Article 12 of the
constitution, although no right flows from the
provisions of the act for the contract labourers to•
be absorbed or to become the employees of the
principal employer. This court in the case of Gammon
India limited V. Union of India (1974) I SCC 596,
pointed out the object and scope of the act as
follows:—
"The Act was passed to prevail the exploitation of
contract labour and also to introduce better condition
of work. The Act provides for regulation and abolition
of contract labour. The underline policy of the Act is
to abolish contract labour, wherever possible and
practicable and where it cannot be abolished to
altogether, the policy of the Act is that the working
conditions of the contract labour should be so
regulated as to ensure payment of wages and
provisions of essential amenities. This is why the
Act provides for regulated conditions of work and
contemplates progressive abolition to the extent
contemplated by Section 10 of the Act."
In the case of B.H.E.L. Workers' Association V. Union
of India, 1985 I CLR SC 165 = (1985) 1 SCC 630 it was
pointed out that Parliament has not abolished the
contract labour as such but has provided for its
abolition by the Central Government in appropriate
cases under section 10 of the Act. It is not for the
court to enquire into the question and to decide
whether the employment of contract labour in any
process, operation or other work in any establishment
should be abolished or not. That has to be decided
by the government after considering the relevant
aspects as required by Section 10 of the Act. Again
in the case of Mathura Refinery Mazdoor Sangh V.
Indian Oil Corporation Ltd., 1991 I CLR 684, this court
refused to direct the Indian Oil Corporation Ltd., to
absorb the contract labourers in its employment
saying that, the contract labourers have not been
found to have direct connection with the refinery. In
other words, there was no relationship of employer
and employee between the Indian Oil Corporation
Ltd. and the contract labourers concerned. Again in
Dena Nath V. National Fertilizers Ltd., 1992 I CLR 1,
this court pointed out that the aforesaid Act has two
purposes to serve (i) to regulate the conditions of
service of the worker employed by the contractor
who is engaged by a principal employer and (ii) to
provide for the abolition of contract labour altogether,
in certain notified processes, operation or other works
in any establishment by the appropriate government,
under section 10 of the Act. It was further stated that
neither the Act nor the Rules framed by the central
government or by any appropriate government
provide that upon abolition of contract labour, the
labourers would be directly absorbed by the principal
employer.
It is true that with passage of time and purely with a
view to safeguard the interests of workers, many
principal employers while renewing the contracts
have been insisting that the contractor or the new
contractor retains the old employees. Infact such a
condition is incorporated in the contract itself.
However, such a clause in the contract which is
benevolently inserted in the contract to protect the
continuance of the source of livelihood of the
contract labour cannot by itself give rise to a right to
regularization in the employment of the principal
employer. Whether the contract labourers have
become the employees of the principal employer in
course of time and on whether the engagement and
employment of labourers through a contractor is a
mere camouflage and a smoke screen, as has been
urged in this case, is a question of fact is to be
established by the contract labourers on the basis of
the requisite material. It is not possible for High Court
or this court, while exercising writ jurisdiction or
jurisdiction under Article 136 to decide such
questions only on the basis of the affidavits. It need
not to be pointed out that in all such cases, the
labourers are initially employed and engaged by the
contractors. As such at what point of time a direct
link is established between the contract labourers
and the principal employer, eliminating the contractor
from the scene, is a matter which has to be established
on material produced before the court. Normally, the
Labour Court and the Industrial Tribunal, under the
Industrial Disputes Act are the Competent Fora to
adjudicate such disputes on the basis of the oral and
documentary evidence produced before them."
So, keeping in view the principles enunciated by the
Hon'ble Apex Court in the decisions mentioned above, the
present case in hand is to be considered.
13. In this case, the letter No. U-23013/11/89/LW
dated 28.05.92, Govt. of India, Ministry of Labour shows
that the prohibition of employment of contract labour in
sweeping, cleaning, dusting and watching of buildings
owned or occupied by the establishments of Food
Corporation of India and some other departments was lifted
by the Central Government. So, the engagement of contract
labour by the Party No. 1 cannot be said to be illegal. It is
also found from the materials on record that the appointment
of labour contractor by Party No. 1 for supply of Security
Guards was genuine and the same was not only on papers
as claimed by the workman. The workman has failed to
prove such claim by adducing cogent or reliable evidence.
The engagement of labor contractor by Party No. 1 was
not a mere ruse or camouflage to evade compliance of the
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THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
various beneficial legislations, so as to deprive the workman
of the benefits there under. The workman has not been
able to produce any document to show that at any point of
time, Party No. 1 paid him wages as their employee. As it is
clear from the evidence on record that the workman was
engaged as a contract labour with Party No. 1, by the
contractor, it can be held that there was no relationship of
master and servant between the Party No. 1 and the
workman. Hence, there was no question of termination of
the services by the Party No. 1 or compliance of the
provisions of Sections 25-F or 25-H of the Act.
14. It is the own case of the workman that he was
engaged by the contractor. So the contractor, who had
engaged the workman, is a necessary party in the reference.
The said contractor has not been added as a party in this
reference. Due to non-joinder of necessary party, the
reference is bad in law.
In view of the materials on record and the discussions
made above, the reference cannot be answered in favour
of the workman. Hence, it is ordered:-
ORDER
The reference is answered in the negative. The
workman is not entitled to any relief.
J. P. CHAND, Presiding Officer
ubZ fnYyh] 27 fnlEcj] 2013
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dj 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,QñlhñvkbZñ ds
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[Qkñ lañ ,y&22012@195@2003&vkbZ vkj ¼lh ,e&II½]
,eñ dsñ flag] vuqHkkx vf/kdkjh
New Delhi, the 27th December, 2013
S.O. 180.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 275/
2003) of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
NAGPUR as shown in the Annexure, in the industrial
dispute between the management of Food Corporation of
India, and their workmen, received by the Central
Government on 27/ 12/2013.
[F. No.L-22012/195/2003 - IR(CM-II)]
M. K. SINGH, Section Officer
ANNEXURE
BEFORE SHRI J. P. CHAND-PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No. CGIT/NGP/275/2003
Date: 29.11.2013.
Party No.1(a)
The District Manager,
Food Corporation of India,
Ajani, Nagpur,
Nagpur -440015.
Party No.1(b)
The Senior Regional Manager,
Food Corporation of India,
Mistry Bhawan, Dinshaw Wacha Road,
Churchgatye,
Mumbai - 400020.
Versus
Party No. 2
The Secretary,
Rashtriya Mazdoor Sena, Hind Nagar
Ward No. 2, Near Boudha Vihar,
Post: Wardha, Distt. Wardha (M.S.)
AWARD
(Dated: 29th November, 2013)
In exercise of the powers conferred by clause (d) of
sub-section (1) and sub-section 2(A) of section 10 of
Industrial Disputes Act, 1947 (14 of 1947) ("the Act" in
short), the Central Government has referred the industrial
dispute between the employers, in relation to the
management of Food Corporation of India and their
workman, Shri Suresh Sridhar Borakar for adjudication, as
per letter No. L-22012/195/2003-IR (CM-II) dated 08.12.2003,
with the following schedule:—
"Whether the action of the management of Food
Corporation of India, Nagpur (M.S.) in terminating
the services of Shri Suresh Sridhar Borakar, security
guard w.e.f. 14.03.1999 is legal and justified? If not, to
what relief the concerned workman is entitled?"
2. On receipt of the reference, the parties were noticed
to file their respective statement of claim and written
statement and accordingly, the workman, Shri Suresh
Sridhar Borakar, ("the workman" in short), filed the
statement of claim and the management of Food Corporation
of India ("Party No. 1" in short) filed their written statement.
The case of the workman as presented in the
statement of claim is that he was in the employment of
Party No. 1 from 05.05.1993 and he was initially engaged
through a contractor at Wardha Depot of Party No. 1, as a
Security Guard and he was in continuous service without
any interruption till 14th March, 1999, when his services
were terminated orally by Party No. 1, without following
the due procedure of law and he had completed more than
240 days of work in each year and the termination of his
services on 14.03.1999 was not in good faith, but in
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colourable exercise of the rights and powers by the Party
No. 1 and while terminating his services, neither one
month's notice nor one month's wages in lieu of notice nor
retrenchment compensation was given to him as required
under section 25-F of the Act and after his illegal
termination, fresh hands from the department of home guard
and police were engaged by Party No. 1 to extract the duties
of Security guards, in violation of the provision of section
25-H of the Act and the work which he was performing is
constantly in existence and the same is of a perennial nature
and as his termination is illegal and unlawful, he is entitled
for reinstatement in service with continuity and full back
wages.
The further case of the workman is that in 1993, he
was engaged by the Party No. 1 through the contractor for
a period of two years, but the contract was made only on
papers and after every two years, the Party No. 1 changed
the contractor on papers only and the engagement of the
so-called contractor did not replace the Security Guards
and he was also not disturbed from his services and he
was merely shown to be engaged by the contractors, but
actually he was working under the direct control and
supervision of the Party No. 1 and the contractor had no
role to play in the same and the work performed by him was
being assigned to him by Party No. 1 and he was a regular
employee of Party No. 1 and Party No. 1 was his real
employer and not the contractor as alleged and the
engagement and change of contractors by Party No. 1 from
time to time was sham and only a camouflage to deny his
legitimate claim and the contract between Party No. 1 and
the contractor was bogus and not genuine and therefore,
his oral termination from services was against the
mandatory provisions of the Act and the Central
Government decided to abolish the appointment of contract
labour as contemplated under section 10 of the Contract
Labour (Regulation and Abolition) Act, 1970 and issued
notification on 01.11.1990 with directions to abolish the
contract labour system in the establishment of the
Party No. 1 and to give employment to contract labours
engaged by the management and therefore, it was the
mandatory duty of the Party No. 1 to abolish the contract
labour system in all places and management of FCI
implemented the notification only at Nagpur and Manmad
and absorbed the Security Guards working at Nagpur and
Manmad, but at Akola, Amravati, Wardha and Gondia
districts, the contract labour system was continued by the
management, with an intention to deprive him from the
benefits under the labour laws.
It is further pleaded by the workman that his salary
was paid by the Party No. 1 and not by the contractor and
his daily attendance was also marked by the Asstt.
Manager of FCI, Wardha Depot and the Party No. 1 was
supervising his work through their officers and he had no
relation with the so called contractors engaged by the
Party No. 1 and Party No. 1 also supplied the articles, such
as, torch, lathi, whistle and uniform etc. to him and in view
of the long spell of work being carried out by him, he is
entitled to be reinstated in service with continuity and full
back wages.
3. The Party No. 1 in their written statement have
pleaded inter alia that the workman was never in their
employment and the workman has not impleded the
contractor, who appointed him, as a Party and the workman
was engaged by the contractor as a Security Guard at FCI
Depot and the said contractor is a necessary party and in
absence of the contractor, the proceeding cannot proceed
and the workman was not in their service uninterruptedly
till 14th March, 1999 and since the contract of the contractor
came to an end, the services of the workman were terminated
by the contractor and the original period of contract given
to the contractor for providing Security services was up to
1998 and the same was extended as per the terms and
conditions till March, 1999 and as the workman was not
employed by them, there was no question of following the
procedure of termination by them and they were not the
employer of the workman and the services of the workman
were never utilized by them as employer from 05.05.1993
to14.03. 1999 , without any break in service and the workman
did not complete 240 days of work in a year as alleged and
as the workman was engaged by the Security Contractor,
there was no relationship of master and servant between
them and the workman at any point of time and under
section 10 of the Contract Labour (Regularisation and
Abolition) Act, they were exempted by the Central
Government, so the allegations made by the workman
against them are not true and there was no question of
violation of the provisions of 25 (H) of the Act and the
work does not constantly exist and the work of providing
security guards was given to other Government Agencies
like Police Personnel and Home guards and therefore, the
workman has no right to claim any relief from them and the
work of security is not perennial in nature and as and when
their go-downs are filled with food grains, then only,
services of the security guards are required and in
pursuance of the notification issued by the Central
Government abolishing contract labour system, they
appointed Home guards and Police personnel as security
guards.
The further case of Party No.1 is that for the relief as
claimed in this reference, the workman had filed a writ petition
before the Hon'ble High Court, Nagpur Bench bearing W.P.
No. 1389/99 and the Hon'ble High Court rejected the said
WP and denied the reliefs prayed for and therefore, this
Tribunal has no jurisdiction to decide the reference and
the decision of the Hon'ble Court operates as res-judicata
and they floated tenders for the contract and lowest bidder
was awarded the contract and the change of contractor in
every two years was not on papers only and they had no
say in the appointment of security guards by the security
contractor and they had no control over the appointment
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and service conditions of the workman, who was an
employee of the security agency and he was never their
employee and the security contractor was the employer of
the workman.
The further case of Party No.1 is that the appropriate
government decided to abolish the employment of the
contract labour as contemplated under section 10 of the
Contract Labour (Regularisation and Abolition) Act, 1970
and the interpretation of the notification issued on
01.11.1990 put by the workman is not correct and they were
exempted from the operation of the Act of 1970 in the
year 1989 and the said exemption was withdrawn in the
year 1999 and therefore, the security contact given to the
contractor was terminated and hence, the services of the
workman were terminated by the security contractor and
they did not pay the salary to the workman and it was the
contractor, who was paying the same to the workman and
when the contractor failed to pay the salary to the workman,
they paid the amount as per the directions given by the
ALC from time to time and the said amount was recovered
from the contract's bill and they only used to check the
attendance of the security guards to find out as to whether
the contractor had made arrangement of the requisite
number of security guards, as per their requirement and
they did not have the power to terminate any employee
appointed by the contractor and they did not provide any
article, such as torch, Lathi, whistle and uniform etc to the
workman and as such, the workman is not entitled to any
relief.
4. Both parties have led oral evidence in support of
their respective claims, besides placing reliance on
documentary evidence.
The workman in support of his claim has examined
himself as a witness. In his evidence, which is on affidavit,
the workman has reiterated the facts mentioned in the
statement of claim.
In his cross-examination, the workman has admitted
that the contractor informed them about the vacancy in
FCI and he took them to FCI. The workman in his cross-
examination has further admitted that no appointment order
was issued by the F.C.I. and he does not know English and
there was no advertisement by F.C.I. for appointment of
security guards. The workman has further admitted that it
is correctly mentioned in the statement of claim that he was
appointed through contractor.
5. Shri Suresh N. Bokade, the witness examined on
behalf of the Party No.1 has also reiterated the facts
mentioned in the written statement, in his examination-in-
chief, which is on affidavit. In his cross-examination, the
witness for the Party No. l has admitted the suggestions
given on behalf the workman that the workman other
security guards were deployed to work in F.C.I. through
the contractor, Singh Security Services and Singh Security
Services was given the contract to supply security guards
for two years and after the expiry of contract of Singh
Security Services in 1995, contract for supply of security
guards was given to Industrial Security and Fire Services
for two years and the workman and other security guards
were engaged in F.C.I. through the contractors till December,
1998 and after the notification made by the Government
imposing ban for engagement of contract labourers in 1998,
F.C.I. discontinued the engagement of contract labourers
and security guards were being deployed for watch and
ward duty of F.C.I. depots and the workman other security
guards worked continuously from the date of their
respective engagement till December, 1998 in F.C.I. through
different contractors and F.C.I. had the control regarding
the duties to be performed by the security guards.
6. At the time of argument, it was submitted by the
learned advocate for the workman that the workman from
05.05.1993 was in the service of the Party No. 1 till 14.03.1999,
when all of a sudden, his services were terminated orally
by the Party No.1 without compliance of the mandatory
provisions of Law, particularly the provisions of sections
25 F and 25 H of the Act and Party No 1 also did not comply
with the provisions of the Contract Labour (Regulation
and Abolition)Act,1970("Act,1970" in short ) and as such,
the termination of the workman is illegal and null and void.
It is further submitted by the learned advocate for the
workman that the appointment of the workman to work in
the establishment of the Party No. 1 was admittedly through
contractor appointed by Party No. 1 and it is an admitted
position that the tenure of the contract was for two years
and though there was change of contractor in every two
years, the workman and other security guards remained
the same and there was a specific condition, in the contract
between the management and the contractor that the set of
workers will be continued by the incoming contractor and
in such fashion, the workman and other security guards
continued to work in the establishment of Party No. 1 right
from the date of their respective date of appointments till
March, 1999 and there was no bread in their service and
each of them completed 240 days of service in each calendar
year and the same shows that the work was all time available
in the establishment of Party No. 1 and is of perennial
nature and ever though the workman and other security
guards were employed by the contractor, fact remains and
is also admitted by the witness for the Party No. 1 that
Party No. 1 had control over the working of the workman.
The learned advocate for the workman further
submitted that though Party No. 1 in the written statement
has contended that it was exempted from the provisions of
the Act, 1970, it has failed to produce any document in
corroboration of such contention and as mere statement of
Party No. 1 is no sufficient, the fact remains that
Party No. 1 was never exempted from the provisions of the
Act, 1970 and the Central Government by notification dated
01.01.1990 issued U/S 10 of the Act, 1970 abolished contract
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labour system in the establishment of Party No. 1 and after
issuance of the said notification, Party No. 1 was prohibited
from engaging any contract labour and as the workman
and other security guards were engaged by Party No. 1
inspite of notification prohibiting contract labour system,
the workman became the direct employee of the Party No. 1
and he has attained the status of regular employee of Party
No. 1.
It was also argued by the learned advocate for the
workman that Party No. 1 has not filed on record any
document showing that it was registered as principal
employer or the contractors were registered under section 7
and Section 12 respectively of the Act, 1970 and in absence
of the said documents, it cannot be assumed that the
contract between the contractor and management was
genuine and it is clear that the contracts between the Party
No. 1 and the contractors were sham and bogus and such
contract was entered into only with malafide intention to
deny regular employment to the workman and after
termination of the services of the workman, Party No. 1
appointed police and home guard personnel as security
guards and this proves that the work is available even
today and after the notification dated 01.11.1990, Party No. 1
regularized the contract labourers were engaged at Nagpur
and Manmad, but same was not the case at Akola, Amravati,
Wardha and Gondia and this shows that Party No. 1
indulged into invidious discrimination amongst equal,
which is contrary to provisions of Articles 14 & 16 of the
constitution and the Writ Petition filed by the workman
and others as disposed of by the Hon'ble High Court with
a direction to the petitioners to approach the appropriate
authority and as such, the judgment in Writ Petition 1389/99,
cannot operate as res-judicata.
In support of the contentions, the learned advocate
for the workmen placed reliance on the decision reported
in 2006(2) Bom.CR -167 (Food Corporation of India Vs.
Prashant Pandurang Ramteke and others).
The learned advocate for the workman also submitted
that as the termination of the workman from service is illegal,
the workman is entitled for reinstatement in service with
continuity and full back wages.
7. Per contra, it was submitted by the learned advocate
for the Party No. 1 that the workman was never appointed
by Party No.1 and he has engaged by the contractor as a
security guard and as such, the concerned contractor is a
necessary party and inspite of raising such objection in
the written statement, the workman did not implead the
contractor as a party and for that the reference is not
maintainable. It was further submitted by the learned
advocate for the Party No. 1 that the workman was engaged
by the contractor and as the contract of the contractor
came to an end in March, 1999, the services of the workman
were terminated by the contractor and as such, there was
no question of Party No. 1 complying with the due
procedure of termination and there was no relationship of
master and servant between the Party No.1 and the workman
and the Party No.1 was exempted by the Central
Government from the ban imposed for engagement of
contract labourers, so contract was given to the security
contractor, as per rules, for supply of security guards and
due to the notification of the Government for abolition .of
contract labour system, Home guards and Police personnel
were appointed as security guards and Party No.1 has no
control over the workman and the security contractor was
submitting bills for payment for supply of security guards
and the security contractor was paying the wages to the
workman. It was further submitted by the learned advocate
for the Party No.1 that the workman and some others had
approached the Hon'ble High Court, Nagpur Bench in W.P.
1389 of 1999 for the reliefs sought in this reference and the
Hon'ble High Court while depositing of the said petition
have held that the termination of the workman by the
contractor was a valid one and the action of FCI was legal
and as such, the workman cannot agitate the question again
and the decision of the Hon'ble High Court operates as
res-judicata between the parties and the workman is not
entitled to any relief.
8. First of all, I will take up the submission made by
the learned advocate for the Party No.1 that the present
reference is hit by the principles of res-judicata, due to the
decision of the Hon'ble High Court, Nagpur Bench in W.P.
1389/99.
It is not disputed that the workman alongwith 78
others through the union, "Rashtriya Mazdoor Sena
Saptahit Jaibhim” filed Writ Petition No. 1389/99 before the
Hon'ble High Court of Judicature at Bombay, Nagpur Bench,
Nagpur, for their regularisation and the Hon'ble High Court
did not grant such relief. On perusal of the order passed by
the Hon'ble High Court on 29.07.2002 in the said writ
petition, it is found that the workman and others claimed
regularisation on the ground that they were employed by
the contractor for doing regular work of the Food
Corporation of India and in view of the same, they have
became workmen of Food Corporation of India, since the
work on which they were employed is of perennial nature.
However, it is found from the judgment that the Hon'ble
High Court did not consider the main relief and passed the
following order:
"In view of the judgment of the Constitution Bench
in Steel Authority of India Ltd. and others Vs. National
Union water front workers and others [reported in 2001 (7)
SCC 1], the relief sought by the petitioners cannot be
granted since the petition involves disputed question of
facts as also other facts which are required to be adjudicated
by appropriate authority. Accordingly, the main prayer to
absorb them cannot be granted.
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In view of the rejection of the main prayer, the question
of granting other prayer does not arise. In case, the
petitioners approach the appropriate authority, the
appropriate authority shall take decision in the matter
within a period of one year. The applicants are free to
approach the appropriate authority for redress of
their grievances."
So, it is clear from the orders passed by the Hon'ble
High Court as mentioned above that the Hon'ble High Court
did not consider the claim made by the workman and others
on merit and granted them the liberty to approach the
appropriate authority for redress. The Hon'ble High Court
in the decision reported in 2006(2) Bom.CR - 167 (Supra)
have held that, "Because Division Bench had not gone
into merits of the case the decision cannot operate as res-
judicata". Applying the principles settled by the Hon'ble
High Court, as mentioned above to the case in hand, the
reference cannot be said to be hit by the principles of res-
judicata. So, there is no force in the contention raised by
the learned advocate for the Party No. 1.
9. In this reference, it is never the case of the workman
that he was directly appointed or engaged by the
Party No. I as a security guard. In the very beginning of the
statement of claim, it has been mentioned by the workman
that he was initially engaged at Food Corporation of India
Depot, Wardha as a security guard, through a contractor.
In paragraph 4 of the statement of claim, the workman has
mentioned that, "In the year 1993, the workman was
engaged by the Food Corporation of India through
contractor, for the period of 2 years, but the contract was
made on paper." The case of the workman is that after
every two years, the Party No.1 on papers showed the
change of contractors, but he was not disturbed from
services and he worked continuously without any break
till 14.03.1999 and as he worked as a security guard of
perennial nature, he is entitled for reinstatement in service.
The workman has also claimed that as the Central
Government issued notification on 01.11.1990 to abolish
the contract labour system in FCI and 'directed to give
employment to contract labours engaged by the
management and Party No.1 implemented such direction at
Nagpur and Manmad only and gave employment and
regularized and absorbed the services of the Security Guards
working at Nagpur and Manmad and did not implement the
same at Wardha and other places to deprive him from the
benefits under the Labour Laws.
In his evidence on affidavit also, the workman has
mentioned that he was initially engaged in Food
Corporation of India as a Security Guard through a
contractor.
From the evidence on record and the own admission
of the workman in the cross-examination including the
specific admission that he was engaged by the contractor,
it is clear that the workman was engaged by the contractor.
The workman has not produced any evidence to show that
he was directly engaged by the Party No. 1.
10. At this juncture, I think it apropos to mention
about the principles enunciated by the Hon'ble Apex Court
regarding contract labours, in the decisions reported in
1985-II LLJ-4 (S.C.) (The workman of the Food Corporation
of India Vs. M/s Food Corporation of India), 2001 LAB IC
3656 (S.C.) (Steel Authority of India Ltd. and others Vs.
National Union Water Front Workers and others) and 1994
II CLR 402 (R.K. Panda & Others Vs. Steel Authority of
India and Others).
In the decision reported in 1985-II LLOJ-4 (supra)
the Hon'ble Apex Court have held that :—
"Briefly stated, when corporation engaged a
contractor for handling food grain at Siliguri Depot,
the corporation had nothing to do with the manner
of handling work done by the contractor, the labour
force employed by him, payments made by him etc.
In such a fact situation, there was no privity of
contract of employer and workmen between the
corporation and the workmen. "Workmen" has been
defined (omitting the words not necessary) in the
Industrial Disputes Act to mean (any person
including an apprentice) employed in any industry
to do.......... . " 'The expression' employed has at least
two known connotations, but as used in the
definition, the context would indicate that it is used
in the sense of a relationship brought about by
express or implied contract of service in which the
employee renders service for which he is engaged
by the employer and the latter agrees to pay him in
cash or kind as agreed between them or statutorily
prescribed. It discloses a relationship of command
and obedience. The essential condition of a person
being a workman within the terms of the definition is
that he should be employed to do the work in that
industry and that there should be, in other words, an
employment of his by the employer and that there
should be a relationship between the employer and
employee or master and servant unless a person is
thus employed there can be no question of his being
a "workman" within the definition of the term as
contained in the Act.
Dharangadhara Chemical Works Ltd. Vs. State of
Saurashtra (1957 - I - LLJ - 477). Now where a
contractor employs a workman to do the work which
he contracted with a third person to accomplish on
the definition as it stands, the workman of the
contractor would not without something more
become the workman of that third person. Therefore,
when the workmen employed by the contractor were
certainly not the workmen of the corporation and no
claim to that effect has been made by the union."
11. In the decision reported in 2001 LAB IC - 3656
(supra) the Hon'ble Apex Court have held that:—
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351
"The principle that a beneficial legislation needs to
be constructed liberally in favour of the class for
whose benefit it is intended, does not extend to
reading in the provisions of the Act what the
legislature has not provided whether expressly or by
necessary implication, or substituting remedy or
benefits for that provided by the legislature. The
intendment of the CLRA Act is to regulate the
conditions of service of the contract labour and to
authorize in Section 10(1) prohibition of contract
labour system by the appropriate Government on
consideration of factors enumerated in sub-section (2)
of Section 10 of the Act among other relevant
factors. But, the presence of some or all those factors,
provide no ground for absorption of contract labour
on issuing notification under Section 10(1) by the
appropriate Government, is not alluded to either in
Section 10 or at any other place in the Act and the
consequence of violation of Sections 7 and 12 of the
CLRA Act is explicitly provided in Sections 23 and
25 of the CLRA Act, it is not for the High Courts or
the Supreme Court to read in some unspecified
remedy in Section 10 or substitute for penal
consequences specified in Sections 23 and 25 a
different sequel be it absorption of contract labour
in the establishment of principal employer or a lesser
or a harsher punishment. Such an interpretation of
the provisions of the statute will be far beyond the
principle of ironing out the creases and the scope of
interpretative legislation and as such clearly
impermissible.
Thus on issuance of prohibition notification under
S. 10(1) of the CLRA Act prohibiting employment of
contract labour or otherwise, in an industrial dispute
brought before it by any contract in regard to
conditions of service, the industrial adjudicator will
have to consider the question whether the contractor
has been interposed either on the ground of having
undertaken to produce any given result for the
establishment or for supply of contract labour for
work of the establishment under a genuine contract
or is a mere ruse/camouflage to evade compliance of
various beneficial legislations so as to deprive the
workers of the benefit there under. If the contract is
found to be not genuine but a mere camouflage, the
so called contract labour will have to be treated as
employees of the principal employer who shall be
directed to regularize the services of the contract
labour in the concerned establishment. If the contract
is found to be genuine and the principal employer
intends to employ regular workmen he shall give
preference to the erstwhile contract labour. It
otherwise found suitable, and, if necessary, by
relaxing the condition as to maximum age
appropriately taking into consideration the age of
the workers at the time of their initial employment by
the contractor and also relaxing the condition as to
academic qualifications other than technical
qualifications.
Air India's case 1997 AIR SCW430 Overruled
prospectively. M.A.T. Nos. 1704 and 1705 of 1999,
D/ - 12-8-1999 (Cal.): C.O. No. 6545(W) if 1996, D/ -
9-5-1997(Cal.): W.A. Nos. 345-354 of 1997m D/ - 17-4-
1998 (Kant.): W.P. No. 4050 of 1999, D/ - 2-8-2000
(Bom.) and W.P. No. 2616 of 1999, D/ - 23-12-1999
(Bom.), 1998 Lab IC 2571 (Cal.), Reversed.
It cannot be said that by virtue of engagement of
contract labour by the contractor in any work of or in
connection with the work of an establishment, the
relationship of master and servant is created between
the principal employer and the contract labour. Even
a combined reading of the definition of the terms
"Contract labour", "Establishment" and "Workman"
does not show that the legal relationship between
the person employed in any industry and the owner
of the industry is created irrespective of the fact as
to who has brought about such relationship. The
word "Workman" is defined in wide terms. It is a
generic term of which contract labour is a species. It
is true that combined reading of the terms
"Establishment" and "Workman" shows that a
workman engaged in any establishment would have
direct relationship with the principal employer as a
servant of master. But what is true of a workman
could not be correct of contract labour. When the
provisions of the Act neither contemplate creation
of direct relationship of master and servant between
the principal employer and the contract labour nor
can such relationship be implied from the provisions
of the action issuing notification under Section 10(1)
of the CLRA Act. A fortiori much less can such a
relationship be found to exist from the rules and the
forms made there under."
12. In the decision reported in 1994 II CLR 402
(Supra), the Hon'ble Apex Court have held that:—
“With the industrial growth, the relation between
the employer and the employees also has taken a
new turn. At one time the establishment being the
employer all persons working therein were the
employees of such employer. But slowly the employer
including Central and State Governments started
entrusting many of the jobs to contractors.
Contractors in their turn employed a worker, who
has no direct relationship with the establishment in
which they were employed. Many contractors
exploited the labourers engaged by them in various
manners including the payment of low wages. Hence,
the Contract Labour (Regulation and Abolition) Act,
1970 was enacted to regulate the employment of
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[PART II—SEC. 3(ii)]
contract labour in certain establishment and to
provide for its abolition in certain circumstances and
for matters connected therewith.
The "Contract Labour" has been defined in Section
2 (1) (b) to mean a workman, who has been employed
as contract labour in or in connection with the work
of an establishment when he is hired in or in
connection with such work by or through a
contractor, with or without the knowledge of the
principal employer. Section 2 (1) (c) defines
"Contractor" to mean a person who undertakes to
produce a given result for the establishment, other
than a mere supply of goods or articles of manufacture
to such establishment, through contract labour or
who supplies contract labour for any work of the
establishment and includes a sub-contractor.
"Principal employer" has been defined to mean (i) in
relation to any office or department of the
Government or a local authority, the head of that
office or department or such other officer as the
Government or the local authority, as the case may
be, may specify in this behalf and (ii) in a factory, the
owner or occupier of the factory. In view of section 10,
of the appropriate Government may after
consultation with the Central Board or, as the case
may be, a state Board, prohibit, by notification in the
Official Gazette, employment of contract labour "in
any process, operation or other work in any
establishment," Sub-section (2) of Section 10 requires
that before issuing any such notification, in relation
to an establishments, the appropriate Government
shall have regard to the conditions of work and
benefits provided for the contract labour in that
establishment and other relevant factors. One of the
relevant factors, which is to be taken into
consideration is whether the work performed by the
contract labourers is of perennial nature. Section 12
enjoins that no contractor to whom this Act is
applicable shall undertake or execute any work
through contract labour except under and in
accordance with a license issued in that behalf by
the licensing authority. The license so issued may
contain conditions in respect of hours of work,
fixation of wages and other essential amenities in
respect of contract labour as the appropriate
Government may deem fit to impose in accordance
with rules. Section 20 provides that if any amenity
required to be provided under section 16, section 17,
section 18, or section 19 for the benefit of the contract
labour employed in an establishment, is not provided
by the contractor within the time prescribed by the
contractor within the time prescribed therefore, such
amenity shall be provided by the principal employer
within such time as may be prescribed and all
expensed incurred by the principal employer in
providing the amenity may be recovered by the
principal employer from the contractor "either by
deduction from any amount payable to the contractor
under any contract or as a debt payable by the
contractor". Section 21 says that a contractor shall
be responsible for the payment of wages to each
worker employed by him as contract labour but at
the same time in order to protect the interest of such
contract labour, it requires every principal employer
to nominate a representative duly authorized by him
to be present at the time of disbursement of wages
by the contractor. It shall be the duty of the contractor
to ensure the disbursement of wages in the presence
of the authorized representative of the principal
employer. Because of sub-section (4) of section 21, if
the contractor fails to make payment of wages within
the prescribed period, then the principal employer
shall be liable to make payment of wages in full to the
contact labour employed by the contractor and
recover the amount so paid from the contractor. Any
contravention of the provisions aforesaid has been
made penal for which punishment can be imposed.
From the provisions referred to above, it is apparent
that the framers of the Act have allowed and
recognized contract labour and they have never
purported to abolish it in its entirety. The primary
object appears to be that there should not be any
exploitation of the contract labourers by the
contractor or the establishment. For achieving that
object, statutory restrictions and responsibilities have
been imposed on the contractor as well as on the
principal employer. Of course if any expenses are
incurred for providing any amenity to the contract
labourers or towards the payment of wages by the
principal employer he is entitled to deduct the same
from the bill of the contractor. The Act also conceives
that all appropriate government may after
consultation with the central board or the state board,
as the case may be, prohibit by notification in official
gazette, employment of contract labour in any
process, operation or other work in any
establishment, taking all facts and circumstances of
employment of contract labour in such process,
operation or the work into consideration.”
Of late a trained amongst the contract labourers is
discernible that after having work for some years,
they make a claim that they should be absorbed by
the principal employer and be treated as employees
of the principal employer especially when the
principal employer is the Central Government or the
State Government or an authority which can be held
to be state within the meaning of Article 12 of the
constitution, although no right flows from the
provisions of the act for the contract labourers to be
absorbed or to become the employees of the principal
¹Hkkx II—[k.M 3(ii)º
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353
employer. This court in the case of Gammon India
Limited Vs. Union of India (1974) I SCC 596, pointed
out the object and scope of the act as follows:—
"The Act was passed to prevail the exploitation of
contract labour and also to introduce better condition
of work. The Act provides for regulation and abolition
of contract labour. The underline policy of the Act is
to abolish contract labour, wherever possible and
practicable and where it cannot be abolished to
altogether, the policy of the Act is that the working
conditions of the contract labour should be so
regulated as to ensure payment of wages and
provisions of essential amenities. This is why the
Act provides for regulated conditions of work and
contemplates progressive abolition to the extent
contemplated by Section 10 of the Act."
In the case of B.H.E.L. Workers' Association Vs.
Union of India, 1985 I CLR SC 165 = (1985) 1 SCC 630
it was pointed out that Parliament has not abolished
the contract labour as such but has provided for its
abolition by the Central Government in appropriate
cases under section 10 of the Act. It is not for the
court to enquire into the question and to decide
whether the employment of contract labour in any
process, operation or other work in any establishment
should be abolished or not. That has to be decided
by the government after considering the relevant
aspects as required by Section 10 of the Act. Again
in the case of Mathura Refinery Mazdoor Sangh Vs.
Indian Oil Corporation Ltd., 1991 I CLR 684, this court
refused to direct the Indian Oil Corporation Ltd., to
absorb the contract labourers in its employment
saying that, the contract labourers have not been
found to have direct connection with the refinery. In
other words, there was no relationship of employer
and employee between the Indian Oil Corporation
Ltd. and the contract labourers concerned. Again in
Dena Nath Vs. National Fertilizers Ltd., 1992 I CLR 1,
this court pointed out that the aforesaid Act has two
purposes to serve (i) to regulate the conditions of
service of the worker employed by the contractor
who is engaged by a principal employer and (ii) to
provide for the abolition of contract labour altogether,
in certain notified processes, operation or other works
in any establishment by the appropriate government,
under section 10 of the Act. It was further stated that
neither the Act nor the Rules framed by the central
government or by any appropriate government
provide that upon abolition of contract labour, the
labourers would be directly absorbed by the principal
employer.
It is true that with passage of time and purely with a
view to safeguard the interests of workers, many
principal employers while renewing the contracts
have been insisting that the contractor or the new
contractor retains the old employees. Infact such a
condition is incorporated in the contract itself.
However, such a clause in the contract which is
benevolently inserted in the contract to protect the
continuance of the source of livelihood of the
contract labour cannot by itself give rise to a right to
regularization in the employment of the principal
employer. Whether the contract labourers have
become the employees of the principal employer in
course of time and on whether the engagement and
employment of labourers through a contractor is a
mere camouflage and a smoke screen, as has been
urged in this case, is a question of fact is to be
established by the contract labourers on the basis of
the requisite material. It is not possible for High Court
or this court, while exercising writ jurisdiction or
jurisdiction under Article 136 to decide such
questions only on the basis of the affidavits. It need
not to be pointed out that in all such cases, the
labourers are initially employed and engaged by the
contractors. As such at what point of time a direct
link is established between the contract labourers
and the principal employer, eliminating the contractor
from the scene, is a matter which has to be established
on material produced before the court. Normally, the
Labour Court and the Industrial Tribunal, under the
Industrial Disputes Act are the Competent Fora to
adjudicate such disputes on the basis of the oral and
documentary evidence produced before them."
So, keeping in view the principles enunciated by the
Hon'ble Apex Court in the decisions mentioned above, the
present case in hand is to be considered.
13. In this case, the letter No. U-23013/ 11/89/LW
dated 28.05.92, Govt. of India, Ministry of Labour shows
that the prohibition of employment of contract labour in
sweeping, cleaning, dusting and watching of buildings
owned or occupied by the establishments of Food
Corporation of India and some other departments was lifted
by the Central Government. So, the engagement of contract
labour by the Party No. 1 cannot be said to be illegal. It is
also found from the materials on record that the appointment
of labour contractor by Party No. 1 for supply of Security
Guards was genuine and the same was not only on papers
as claimed by the workman. The workman has failed to
prove such claim by adducing cogent or reliable evidence.
The engagement of labour contractor by Party No. 1 was
not a mere ruse or camouflage to evade compliance of the
various beneficial legislations, so as to deprive the workman
of the benefits thereunder. The workman has not been able
to produce any document to show that at any point of
time, Party No. 1 paid him wages as their employee. As it is
clear from the evidence on record that the workman was
engaged as a contract labour with Party No. 1, by the
contractor, it can be held that there was no relationship of
354
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
master and servant between the Party No. 1 and the
workman. Hence, there was no question of termination of
the services by the Party No. 1 or compliance of the
provisions of Sections 25-F or 25-H of the Act.
14. It is the own case of the workman that he was
engaged by the contractor. So the contractor, who had
engaged the workman, is a necessary party in the reference.
The said contractor has not been added as a party in this
reference. Due to non-joinder of necessary party, the
reference is bad in law.
In view of the materials on record and the discussions
made above, the reference cannot be answered in favour
of the workman. Hence, it is ordered.
ORDER
The reference is answered in the negative. The
workman is not entitled to any relief.
J. P. CHAND, Presiding Officer
ubZ fnYyh] 27 fnlEcj] 2013
dkñvkñ 181.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa] dsanzh; ljdkj osLVuZ dksyQhYMl
fyfeVsM ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqcaè esa fu£n"V vkS|ksfxd fookn esa dsanzh; ljdkj vkS|ksfxd
vfèdj.k@Je U;k;ky;] ukxiqj ds iapkV ¼lanHkZ la[;k 78@2006½ dks
izdkf'kr djrh gS] tks dsanzh; ljdkj dks 27-12-2013 dks izkIr gqvk FkkA
[Qkñ lañ ,y&22012@328@2005µvkbZvkj ¼lhñ,eñ&II½]
,eñ dsñ flag] vuqHkkx vfèdkjh
New Delhi, the 27th December, 2013
S.O. 181.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 78/2006)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Nagpur as shown in the Annexure, in the industrial dispute
between the management of Gauri O/C Mine of Western
Coalfields Ltd., Central Workshop Tadali of WCL, and
their workmen, received by the Central Government on
27/12/2013
[F. No. L-22012/328/2005- IR (CM-II)]
M.K. SINGH, Section Officer
ANNEXURE
BEFORE SHRI J. P. CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No. CGIT/NGP/78/2006
Date: 25.11.2013.
Party No. 1
The Sub Area Manager,
Gauri OCM of WCL, PO: Gauri,
Tahsil Rajura, Chandrapur.
The Chief General Manager,
Central Workshop Tadali of
WCL, Po.: Tadali, Chandrapur.
V/s.
Party No. 2
Shri Lomesh Khartad,
General Secretary,
Rashtriya Colliery Workers Congress,
Dr. Ambedkar Nagar,
Ballarpur, Po. & Tah. Ballarpur,
Chandraur (MS).
AWARD
(25th November, 2013)
In exercise of the powers conferred by clause (d) of
sub-section (1) and sub-section 2(A) of section 10 of
Industrial Disputes Act, 1947 (14 of 1947) ("the Act" in
short), the Central Government has referred the industrial
dispute between the employers, in relation to the
management of WCL and their workman, Shri Manoj Kumar
S. Nandanwar, for adjudication, as per letter No. L-22012/
328/2005-IR (CM-II) dated 09.10.2006, with the following
schedule:—
"Whether the action of the management of Gouri I
Sub Area of Western Coalfields Limited in terminating
the services of Shri Manoj Kumar Shankarrao
Nandanwar w.e.f. 15.04.2001 is legal and justified? If
not, to what relief is the concerned workman is
entitled?"
2. On receipt of the reference, parties were noticed
to file their respective statement of claim and written
statement, in response to which, the union, "Rashtriya
Colliery Mazdoor Congress," ("the union" in short) filed
the statement of claim on behalf of the workman Shri Manoj
Kumar Nandanwar, ("the workman" in short) and the
management of WCL, ("Party No.1" in short) filed the
written statement.
The case of the workman as presented by the union
in the statement of claim is that it (union) is a registered
trade union under the Trade unions Act, 1926 and the Party
no.1 is a government company owned and controlled by
the Central Government and is a 'State' as per Article 12 of
the Constitution of India and the provisions of the National
Coal Wage Agreements ("the NCWAs" in short) are
binding on the Party No.1 and provisions for employment
of the dependent of the employees were made in NCWA-II
and such provisions were made thereafter in all the
NCWAs. It is further pleaded by the union that the workman
was appointed as a general mazdoor cat-I, vide letter no.
746 dated 20.04.1997, being the dependent of Late Anand
Rao Warhi Padwekar, clerk and during the period of
vocational training of the workman at Vocational Training
Centre, Dhooptala of Ballarpur Area, he was stopped from
work without any written communication and the Personal
Manager, Ballarpur Area wrote a letter bearing No. 371 dated
14.07.1997 to Smt. Kunda, the widow of Late Anand Rao
Pahwekar to submit the marriage certificate and accordingly,
the relevant documents were submitted to the management
N
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
355
and the workman never worked at Gouri sub-area or any
other mine of Ballarpur Area even for a single day and he
was allowed to continue and complete the vocational
training and he was deputed to work at Central Workshop,
Tadali, under the then Wani area and at the said Central
workshop, the statutory 'B' form register, Forms 'A' and 'Q'
of the workman were filled in, in which, his initial date of
appointment was mentioned as 16.08.1997 and in the service
register and in the forms, P.S.-3 and P.S.-4 required for Coal
Mines Provident Funds and Pension Scheme and all other
relevant registers, the date of appointment of the workman
was mentioned as 16.08.1997 and the workman was
promoted to the post of Trainee (Maintenance) in category-
II, w.e.f. 01.01.1999, vide office order dated 02.05.1999.
The further case of the union is that a vague, false,
baseless and fabricated charge sheet dated 15/17.08.1999
was submitted against the workman, by the Manager, Gouri
OCM No.1, who was not competent to submit the same,
without enclosing the lists of witnesses and documents
relied on by the management and the allegations were
levelled only basing on documents and the copies of the
documents were never supplied to the workman and there
were serious infirmities in the charge sheet and the workman
had never worked at Gouri OCM No.1 and therefore, no
employer-employee relationship existed between the
workman and Party No.1 and the workman replied to the
charge sheet vide his letter dated 24.08.1999, denying the
charges and his reply was not examined by the Party No.1
and Party No.1 was prejudiced and was bent upon to
victimize the workman, as evident from the facts that the
Area Personnel Manager, Ballarpur constituted the enquiry
and appointed enquiry officer and management
representative, vide office order dated 7/8.09.2000,
without endorsing a copy of the said order to the Manager,
Gouri OCM No.1, the charge sheeting authority and the
entire action was designed and planned with ulterior motive
to victimize the workman and therefore, the entire action
smacks of malafide and hence is illegal and the punishment
was decided by the higher ups, so issuance of show cause
notice etc. was an eyewash and the enquiry suffers from
several infirmities and the documents were only produced
by the management representative, but the same were not
proved and as such, the same were without any evidentiary
value and became unreliable and the Enquiry Officer acted
merely as a recorder and acted mechanically without
application of mind and the enquiry proceedings and the
report are biased outcome of prejudice and are glaring
example of violation of natural justice and the enquiry
officer did not evaluate the evidence and the order of
dismissal dated 14.04.2001 was issued by the Suptd. Mines/
Manager, Gouri OCM mechanically, without application of
mind and under the influence of superior only and he was
not competent to issue the order and the workman
approached several times to the party no.1 for reinstatement,
but without any result and the punishment, is too harsh
and disproportionate. Prayer has been made for the
reinstatement of the workman with continuity, full back
wages and all consequential benefits.
3. The party no.1 has pleaded in the written statement
inter-alia that one Anand Rao Warhi Padwekar was working
as a clerk in Ballarpur 3 & 4 Pit Colliery and due to his death
during employment, his legal heir was offered
compassionate appointment and the workman came
forward for employment claiming himself to be the son-in-
law of deceased workman, Anand Rao and the workman
submitted necessary application supported by documents
for his appointment on compassionate ground and his
application was forwarded for necessary action and on
approval from the competent authority, he was issued with
the appointment letter and the appointment order was
issued by the Personnel Manager, Ballarpur area, where
the deceased workman was working and the workman was
offered vocational training at vocational training centre,
Dhoptala, Ballarpur Area and the Personnel Manager,
Ballarpur asked the widow of deceased Anand Rao to
submit the marriage certificate issued by competent
authority of their daughter with the workman and the
workman in the meantime completed his training and he
was given posting and after some time, it received the
information that the workman fraudulently obtained the
appointment, claiming himself to be the son-in-law of the
deceased workman, Anand Rao, by giving false
informations about his name, age, father's name and
eligibility etc. and as such, charge sheet dated 5/17.08.1999
under clauses 26.1, 26.9 and 26.22 of the Standing Order
was served on the workman and the workman submitted
his reply to the said charge sheet and as the reply of the
workman was found unsatisfactory, it was decided to
conduct a departmental enquiry against him and by order
dated 08.07.2000, Shri I.M. Chandak, Personnel Manager,
Dhoptala Sub-Area was appointed as the enquiry officer
and the enquiry officer issued notice of the enquiry to the
workman and the workman filed an application to engage
Shri Manohar Palvekar as his co-worker and he was allowed
to engage Shri Palvekar as his co-worker and on 10.09.2000,
on the prayer of the workman, the enquiry was adjourned
to 18.09.2000 and 18.09.2000 also, the workman asked for
adjournment, on the ground of absence of his co-worker,
so the enquiry officer adjourned the enquiry to 10.10.2000
and the enquiry was conducted by giving fair opportunity
to the workman and evidence was produced by the
management representative in presence of the workman
and the workman also examined himself in his defence and
the enquiry officer on conclusion of the enquiry, submitted
his report holding the workman guilty of the charges, to
the competent authority and the disciplinary authority
being satisfied with the findings of the enquiry officer and
in the light of the charges proved against the workman,
decided to terminate the services of the workman and the
termination of the services of the workman is justified. It is
356
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
further pleaded by party no.1 that the union has no locus-
standi to raise the present dispute, as it is not aware of
functioning of such union and compassionate appointment
was obtained by the workman fraudulently, by claiming
himself as the dependent son-in-law of the deceased
workman, Anand Rao and when such facts came to its
knowledge, the departmental enquiry was initiated against
the workman and any of its officers is entitled to initiate the
disciplinary action against its employees and commission
of misconduct by an employee cannot be cancelled or
closed and granting of promotion or posting in different
place of work does not absolve the employee from his
misconduct and the charge sheet submitted against the
workman was very specific and there is delay of five years
in raising the dispute and as such, the reference is not
maintainable on the ground of delay and latches and the
workman is not entitled to any relief.
4. As this is a case of termination of the services of
the workman, after holding of a departmental enquiry, the
question of fairness or otherwise of the departmental
enquiry was taken up as a preliminary issue for
consideration and by order dated 20.09.2013, the enquiry
was held to be legal, proper and in accordance with the
principles of natural justice.
5. It is to be mentioned here that inspite of giving
sufficient opportunities to the workman to appear and
contest the case, the workman neither appeared nor
contested the case and as such, on 23.08.2013, order was
passed to proceed exparte against the workman.
6. Before delving into the merit of the matter, I think
it proper to mention the settled principles regarding the
power of a Tribunal in interfering with punishment awarded
by the competent authority in departmental proceedings,
by the Hon'ble Apex Court.
In a number of decisions, the Honble Apex Court
have held that :—
"The jurisdiction of the Tribunal to interfere with the
disciplinary matters or punishment cannot be equated with
an appellate jurisdiction. The Tribunal cannot interfere with
the findings of the Inquiry officer or competent authority
where they are not arbitrary or utterly perverse. The power
to impose penalty on a delinquent officer is conferred on
the competent authority either by an Act of legislature or
rules made under the proviso to Art. 309 of the Constitution.
If there has been an enquiry consistent with the rules and
in accordance with principles of natural justice what
punishment would meet the ends of justice is a matter
exclusively within the jurisdiction of the competent
authority. If the penalty can lawfully be imposed and is
imposed on the proved misconduct, the Tribunal has no
power to substitute its own discretion for that of the
authority. The adequacy of penalty unless it is malafide is
certainly not a matter of the Tribunal to concern itself with.
The Tribunal also cannot interfere with the penalty if the
conclusion of the Inquiry officer or the competent authority
is based on evidence even if some of it is found to be
irrelevant or extraneous to the matter."
7. On perusal of the materials on record, including
the pleadings of the parties, it is found that the findings of
the enquiry officer are based on the evidence adduced in
the enquiry. It is also found that this is not a case of no
evidence or that the conclusions drawn by the enquiry
officer are totally against the materials on record. Hence,
the findings of the enquiry officer cannot be said to be
perverse.
So far the proportionality of punishment is
concerned, from the record, it is found that commission of
grave misconduct has been proved against the workman
in a properly conducted departmental enquiry. The
punishment of termination of the services of the workman
cannot be said to be shocking disproportionate to the
serious misconduct proved against the workman. As such,
there is no scope to interfere with the punishment imposed
against the workman. Hence, it is ordered:—
ORDER
The action of the management of Gouri I Sub Area of
Western Coalfields Limited in terminating the services of
Shri Manoj Kumar Shankarrao Nandanwar w.e.f. 15.04.2001
is legal and justified. The workman is not entitled to any
relief.
J. P. CHAND, Presiding Officer
ubZ fnYyh] 27 fnlEcj] 2013
dkñvkñ 182.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa] dsanzh; ljdkj osLVuZ dksyQhYMl
fyfeVsM ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqcaè esa fu£n"V vkS|ksfxd fookn esa dsanzh; ljdkj vkS|ksfxd
vfèdj.k@Je U;k;ky; ukxiqj ds iapkV ¼lanHkZ la[;k 23@2004½ dks
izdkf'kr djrh gS] tks dsanzh; ljdkj dks 27&12&2013 dks izkIr gqvk FkkA
[Qkñ lañ ,y&22012@61@2003µvkbZvkj ¼lhñ,eñ&II½]
,eñ dsñ flag] vuqHkkx vfèdkjh
New Delhi, the 27th December, 2013
S.O. 182.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 23/2004)
of the Cent. Govt. Tribunal-cum-Labour Court, Nagpur as
shown in the Annexure, in the industrial dispute between
the management of Dhoptala Sub Area of Western
Coalfields Limited, and their workmen, received by the
Central Government on 27/12/2013
[F. No. L-22012/61/2003- IR (CM-II)]
M. K. SINGH, Section Officer
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
357
ANNEXURE
BEFORE SHRI J.P. CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOURT COURT, NAGPUR
Case No.CGIT/NGP/23/2004
Date: 25.11.2013.
Party No. 1
The Sub Area Manager,
Dhoptala Sub Area of WCL,
Post Sasti, Tah. Rajura,
Distt. Chandrapur (M.S).
V/s.
Party No. 2
Shri B.S. Ishwarkar,
District Advisor/Advocate,
Indian National Trade Union
Congress, Vijay Bhawan,
Vithal Mandir Ward,
Chandrapur (M.S).
AWARD
(25th November, 2013)
In exercise of the powers conferred by clause (d) of
sub-section (1) and sub-section 2(A) of section 10 of
Industrial Disputes Act, 1947 (14 of 1947) ("the Act" in
short), the Central Government has referred the industrial
dispute between the employers, in relation to the
management of Dhoptala Sub Area of WCL and their
workman, Shri Gajjala Hanumantoo Pocham, for
adjudication, as per letter No.L-22012/61/2003-IR (CM-II)
dated 30.01.2004, with the following schedule:—
"Whether the action of the management in relation
to Dhoptala Sub Area of WCL, in terminating the
services of Shri Gajjala Hanumantoo Pocham, General
Mazdoor vide office order no. WCL/SC/45B/96 dated
19.02.2002 is legal and justified? If not, to what relief
the workman is entitled?"
2. On receipt of the reference, parties were noticed
to file their respective statement of claim and written
statement, in response to which, the petitioner, Smt. Vijaya
Gajjala Hanumantoo, the widow of the deceased workman,
Gajjala, ("the petitioner" in short) filed the statement of
claim through the union, Indian National Trade Union
Congress ("the union" in short) and the management of
WCL ("party no. 1" in short) filed the written statement.
3. The case of the petitioner as presented by the
union in the statement of claim is that Gajjala, the deceased
husband of the petitioner was working as a General Mazdoor
in Dhoptala Sub Area and he was terminated from services
illegally vide order dated 19.02.2002 by Party No. 1, without
any proper and fair enquiry and the termination of Gajjala
was illegal, improper and without any show cause notice,
letter or charge sheet and the so called domestic enquiry
conducted exparte against deceased Gajjala was illegal and
unfair and the order of termination from services was passed
against the deceased workman without giving him any
opportunity of submitting his explanation and he was not
given the scope to cross-examine the witnesses or to
adduce evidence in his defence and the enquiry papers
were not supplied to him and he was not allowed to engage
any co-worker and as such, the enquiry was illegal, improper,
unfair and against the principles of natural justice and the
punishment of dismissal from service is shockingly
disproportionate, considering the past clean service record
of 28 years of the deceased workman. The union has prayed
to answer the reference in affirmative and to appoint
Shri Chandra Mohan, the son of the deceased workman in
place of his father in service, after declaring the termination
order as illegal.
It is necessary to mention here that before the
reference was made by the Government to this Tribunal for
adjudication, the workman expired on 17.07.2003 and as
such, the statement of claim was filed by his widow.
4. The Party No. 1 in the written statement has
pleaded inter alia that the deceased workman, Gajjala was
appointed on 30.10.1974 as a Badlee worker and he was
regularized on 01.01.1991 and he was irregular in service
from the very beginning and he was given ample
opportunity to improve his attendance by not initiating
any disciplinary action against him, but he did not show
any interest in his work and continued to remain absent
from duty without intimation and sanctioned leave and
due to poor attendance and habitual absenteeism, he was
issued with the charge sheet dated 15/18.03.1999 and as no
reply was received from him, it was decided to conduct a
departmental enquiry against him and accordingly, vide
order dated 17/23.05.1999, Shri Y. Krishna Sepuri was
appointed as the Enquiry Officer to conduct the enquiry
and though the Enquiry Officer fixed the enquiry on
13.10.2000 and 30.11.2000, the workman did not appear, so
the Enquiry Officer adjourned the enquiry to 25.12.2000
and the workman appeared in the enquiry on 25.12.2000
and requested for adjournment, so the next date of the
enquiry was fixed to 29.12.2000 and on 29.12.2000, the
workman again requested for adjournment and to fix the
enquiry to 06.01.2001, on the ground of absence of his co-
worker and as per the request of the workman, the enquiry
was fixed to 06.01. 2001and on 06.01.2001, the workman
submitted an application to adjourn the enquiry on the
ground of absence of his co-worker and left the enquiry
and the Presenting Officer objected to adjourn the enquiry
and the Enquiry Officer passed orders to conduct the
enquiry exparte, after finding that the workman deliberately
avoiding to attend the enquiry and after closure of the
enquiry, the Enquiry Officer submitted his enquiry report
holding the workman guilty of the charges and the entire
enquiry papers were placed before the Competent Authority
and the Competent Authority agreeing with the findings of
the Enquiry Officer, issued show cause notice dated 13/
19.10.2001 alongwith the copy of the enquiry report and
358
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
after going through the enquiry proceedings and the
representation to the show cause notice, the Competent
Authority vide office order no. 1377 dated 05/30.11.2001
imposed the punishment of dismissal from services on the
workman and the workman filed an appeal giving the
undertaking to improve his attendance and considering
the appeal, the workman was given a last chance to improve
his attendance and allowed on duty vide letter dated 24/
30.12.2001, but as the workman did not improve his
attendance and remained unauthorized absent, his services
were terminated by order dated 19.02.2002 and the
punishment imposed on him was proportionate to the
gravity of the misconduct committed by him and the
departmental enquiry conducted against the workman was
legal and in accordance with the principles of natural
justice.
5. As this is a case of termination of the services of
the workman after holding of a departmental enquiry, the
question of fairness or otherwise of the departmental
enquiry was taken up as a preliminary issue for
consideration and by order dated 21.06.2013, the enquiry
was held to be legal, proper and in accordance with the
principles of natural justice.
6. It is necessary to mention here that inspite of
giving sufficient opportunities to the petitioner to appear
and make argument, the petitioner neither appeared nor
made any argument, hence, on 25.10.2013, order was passed
to proceed exparte against the petitioner.
7. Before delving into the merit of the matter, I think
it proper to mention the settled principles regarding the
power of a Tribunal in interfering with punishment awarded
by the competent authority in departmental proceedings,
by the Hon'ble Apex Court.
In a number of decisions, the Honble Apex Court
have held that:—
"The jurisdiction of the Tribunal to interfere with the
disciplinary matters or punishment cannot be equated with
an appellate jurisdiction. The Tribunal cannot interfere with
the findings of the Inquiry officer or competent authority
where they are not arbitrary or utterly perverse. The power
to impose penalty on a delinquent officer is conferred on
the competent authority either by an Act of legislature or
rules made under the proviso to Art. 309 of the Constitution.
If there has been an enquiry consistent with the rules and
in accordance with principles of natural justice what
punishment would meet the ends of justice is a matter
exclusively within the jurisdiction of the competent
authority. If the penalty can lawfully be imposed and is
imposed on the proved misconduct, the Tribunal has no
power to substitute its own discretion for that of the
authority. The adequacy of penalty unless it is malafide is
certainly not a matter of the Tribunal to concern itself with.
The Tribunal also cannot interfere with the penalty if the
conclusion of the Inquiry officer or the competent authority
is based on evidence even if some of it is found to be
irrelevant or extraneous to the matter."
8. On perusal of the materials on record, including
the pleadings of the parties, it is found that the findings of
the enquiry officer are based on the evidence adduced in
the enquiry. It is also found that this is not a case of no
evidence or that the conclusions drawn by the enquiry
officer are totally against the materials on record. Hence,
the findings of the enquiry officer cannot be said to be
perverse.
So far the proportionality of punishment is concerned,
from the record, it is found that commission of grave
misconduct of unauthorized absenteeism has been proved
against the workman in a properly conducted departmental
enquiry. The punishment of termination of the services of
the workman cannot be said to be shocking disproportionate
to the serious misconduct proved against the workman. As
such, there is no scope to interfere with the punishment
imposed against the workman. Hence, it is ordered:—
ORDER
The action of the management in relation to Dhoptala
Sub Area of WCL, in terminating the services of Shri Gajjala
Hanumantoo Pocham, General Mazdoor vide office order
no. WCL/SC/45B/96 dated 19.02.2002 is legal and justified.
The workman was not entitled to any relief. Hence, the
applicant is also not entitled to any relief.
J. P. CHAND, Presiding Officer
ubZ fnYyh] 27 fnlEcj] 2013
dkñvkñ 183.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa] dsanzh; ljdkj osLVuZ dksyQhYM~l
fyfeVsM ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqcaè esa fu£n"V vkS|ksfxd fookn esa dsanzh; ljdkj vkS|ksfxd
vfèdj.k@Je U;k;ky;] ukxiqj ds iapkV ¼lanHkZ la[;k 18@2013½ dks
izdkf'kr djrh gS] tks dsanzh; ljdkj dks 27&12&2013 dks izkIr gqvk FkkA
[Qkñ lañ ,y&22012@119@2002µvkbZvkj ¼lhñ,eñ&II½]
,eñ dsñ flag] vuqHkkx vfèdkjh
New Delhi, the 27th December, 2013
S.O. 183.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 18/2003)
of the Cent.Govt.Indus.Tribunal-cum-Labour Court,
Nagpur as shown in the Annexure, in the industrial dispute
between the management of Hindustan Lalpeth U/G Sub
Area of WCL and their workmen, received by the Central
Government on 27/12/2013.
[F. No. L-22012/119/2002 - IR(CM-II)]
M. K. SINGH, Section Officer.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
359
ANNEXURE
BEFORE SHRI J . P. CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No. CGIT/NGP/ 18/2003
Date: 13.11.2013.
Party No. 1
The Sub Area Manager,
Hindustan Lalpeth
U/G sub Area of WCL, Post- Lalpeth,
Dist.-Chandrapur (M.S.)
Chandrapur (M.S.)
Party No. 2
Shri Mallesh Kamtam, Secretary,
National Colliery Workers Congress,
Hinglaj Bhawan Mandir, Junona Chowk,
Chandrapur,
Post & Distt. Chandrapur (M.S.).
AWARD
(Dated: 13th November, 2013)
In exercise of the powers conferred by clause (d) of
sub-section (1) and subsection 2(A) of section 10 of
Industrial Disputes Act, 1947 (14 of 1947) ("the Act" in
short), the Central Government has referred the industrial
dispute between the employers, in relation to the
management of Hindustan Lalpeth U/G Sub Area of WCL
and their workmen, Shri Kishor Mundi Bolambar and
36 others, for adjudication, as per letter No.L-22012/119/
2002-IR (CM-II) dated 28.11.2002, with the following
schedule:-
"Whether the demand of the union that Kishor Mundi
Bolamber and 36 others (as per list) be regularized in
permanent employment of the management in relation
to Hindustan Lalpeth U/G Sub Area of Western
Coalfields Ltd. is legal and justified? If so, to what
relief is the concerned persons entitled and from,
what date?"
2. On receipt of the reference, the parties were noticed
to file their respective statement of claim and written
statement and accordingly, the union, National Colliery
Workers Congress, ('the union' in short) filed the statement
of claim on behalf of Shri Kishor Mundi Bolamber and
36 others, ('the workmen' in short) and the management of
Hindustan Lalpeth U/G Sub Area of WCL, ("Party No. 1" in
short) filed their written statement.
The case of the 37 workmen as presented by the
union in the statement of claim is that it (union) is a
registered Trade union under the Trade Unions Act, 1926
and party No.1 is a government company and is a state
within Article 12 of the Constitution of India and under the
approval of Ministry of Coal, Central Government
constituted a Joint Bipartite Committee for the Coal
Industry ("JBCCI" in short) consisting of all employers of
Coal Industry and the five central Trade unions and the
JBCCI jointly deliberated over the wage structure including
dearness allowance, fitment in revised scale of pay, Pension,
fringe benefits, service conditions and other allied matters
including welfares/safety measures and such deliberations
is known as "National Coal Wage Agreements" ("the
NCWAs" in short) and the JBCCI has several committees
and sub-committees for proper and uniform implementation
of the provisions of NCWA in the entire Coal Industry and
for maintaining uniformity and proper implementation, the
Secretary, JBCCI issues implementation instructions from
time to time and no unilateral decision can be taken by any
subsidiary in contracvention of the provisions contained
in the NCWAs and the provisions are mandatory and
binding on all coal companies including WCL and so far
seven NCWAs have been deliberated by JBCCI, known as
NCWAs-I, II, III, IV, V, VI, and VII dated 11.12.1974,
11.08.1979, 27.07.1989, 19.01.1996, 23.12.2000 and 15.07.2005
with period of operation of the said NCWAs from 01.01.1975
to 31.12.1978, 01.01.1979 to 31.12.1982, 01.01.1983 to
31.12.1986, 01.01.1987 to 30.06.1991, 01.07.1991 to 30.06.1996,
01.07.1996 to 30.06.2001 and 01.02.2001 to 30.06.2006
respectively.
It is further pleaded by the union that Western
Coalfields Limited in the states of Maharashtra and Madhya
Pradesh is divided into 10 areas including Chandrapur and
the Chief General Manager/General Manager is the Chief
Executive of Chandrapur Area having its office at Mahakali
Colliery and there are several Sub-areas under Chandrapur
Sub Area and the Sub Areas are controlled by the Managers
and under them, there are Suptd. of Mines/Manager at
colliery/project level and the Sub-Area Manager,
Hindusthan Lalpeth underground Sub-Area is the head of
the underground Mines HLC mine no.1, HLC Mine no.3,
Mana Incline and Nandgaon Incline etc and the provisions
of Mines Act, 1952, Mines Rule, 1955, Coal Mines
Regulations, 1957, Mines vocational Rules and Circulars
and guide lines issued from time to time by the Director
General of Mines Safety ("DGMS" in short) are applicable
to the said Mines and for working of new sections and for
drilling operations, permission of DGMS is required to be
obtained by the management under the Coal Mines
Regulation , 1957 and Chapter VI of the Mines Act, 1952
provides the maintenance of various records in respect of
all persons employed in the mine and to keep their
attendance etc in the prescribed forms, such as Form 'B',
'C', 'D' `E' etc.
It is also pleaded by the union that all the 37 workmen
were employed as heavy vehicle drivers on Tipper/Dumpers
for transportation of sand from river to bunkers of the
underground mines of Lalpeth Sub-Area and the said work
is permanent and perennial in nature and in order to avoid
its liability, party No.1 created a smoke arrangement and
veiled it to deprive the workmen of their legal right and
dues, such as equal wages and other fringe benefits like
the drivers on the rolls of party No.1 and the workmen were
also engaged to transport sand to other bunkers of Mahakali
colliery and Durgapur Rayatwari Colliery and the workmen
360
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
were entitled for regularisation in view of their continuity
of service and as the workmen raised the industrial dispute,
they were harassed by the party No.1 and the intermediates
and standing instruction has been issued by the
Government of India not to appoint contract labour normally
on jobs of perennial nature and the workman are entitled
for regularisation.
Prayer has been made by the union for regularisation
of the workmen with retrospective effect and back wages.
3. The party No.1 in the written statement has
pleaded inter-alia that the union remains only on papers,
without having the minimum members in Chandrapur area
and it has not complied the Statutory Provisions of India
Trade Union Act, 1926 and by taking advantage of
registration number of Dhanbad, it is picking up stray cases
and raising the disputes in Chandrapur area and the
workmen seem not to be the members of the union and as
such, the union is not entitled to represent the workmen.
It is further pleaded by the party No.1 that all the 37
workmen were employed by a contractor, namely,
M/s. Khandelwal Transport, as mentioned in FOC report
of ALC (C) submitted to the Secretary, Ministry of Labour
on 28.02.2002 and there was no relationship of employer
and employee and on verification of the workmens'
document No.3, it is to be noted that 27 contract workers
had under gone vocational training for a period of 7 days
during March, 1997 to April, 1997 and merely undergoing
training cannot be the basis of claiming employment, which
is against the provisions of its recruitment policy and after
award of the job for a specified period to supply sand to a
mine for stowing to the contractor, he engaged his own
persons for excavating sand and transporting it to the mine
and the Manager of the Mine had no control/supervision
over the contract workers and there was no master and
servant relationship between it and the workmen and it is
well settled principle of law that regularisation is not a
mode of recruitment and continuous working for a long
period in absence of any statute or statutory rule by itself
does not confer any right upon the employee to obtain a
status to which he is otherwise entitled to and no equality
can be claimed on the basis of illegality and it is also trite
that illegality cannot be perpetuated and as the workmen
were engaged by the contractor and there was never any
relation of employee and employer between it and the
workmen, the workmen are not entitled to any relief.
4. It is to be mentioned here that inspite of giving
numerous chances to the petitioner to file rejoinder and to
adduce evidence to prove its case, neither any rejoinder
nor any evidence was adduced either by the union or the
workmen. The union and so also the workmen did not appear
in the case. Hence, on 05.08.2013, order was passed to
proceed with the case exparte against the petitioner.
5. Party No.1 also did not adduce any oral evidence
in this case.
6. It is well settled that when a party challenges the
legality of an order, the burden lies upon him to prove the
illegality of the order and if no evidence is produced, the
party invoking the jurisdiction of the court must fail.
In this case, neither the union nor the workmen
appeared and contented the case. No evidence is also
adduced either by the union or the workmen in support of
the claim. So applying the settled principles as mentioned
above to the case in hand, it is found that the reference
cannot be answered in favour of the workmen and no relief
can be granted to them, Hence, it is ordered:—
ORDER
The reference is answered in the negative. The 37
workmen as per list enclosed are not entitled to any relief.
J. P. CHAND, Presiding Officer
APPENDIX
Vide F.O.C. Report No.1(10)/2002-ID dated 28th
February, 2002
No. of workmen
1.
Shri Kishore Mundi Bolambar
2.
Shri Ram Sewak Rain Narain Kavvap.
3.
Shri Ram Das Mundi Rada Rufwar.
4.
Shri Ramesh Malaiya Katul.
5.
Shri Gajanan Kishan Gohine.
6.
Shri Anil Kocham Bimanwar.
7.
Shri Nagesh Malaiya Katul.
8.
Shri Sanjal Rajaiya Irala.
9.
Shri Palana Enkati Konda Gurla..
10. Shri Manik Samrao Kamble.
11. Shri Nairn Jalil Ahmed Saikh.
12
Shri Sriniwas Malaiya Dodalwar.
13
Shri Hanumantu Gatmalu Kondugo1a
14
Shri Shankar Bapo Babbar.
15. Shri Ankulu Gatomolu Kandugula
16. Shri Anand Raoji Morale.
17. Shri Sanjaya Lingaiyah Gudala.
18. Shri Chainram Gunu Tajne
19. Shri Kanchan Prasad.
20. Shri Nandi Gunu Shah.
21. Shri Yogesh Chandekar.
22. Shri Yubraj Bapanna Rangari
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
361
23. Shri Shyamlal Puranlal Jadav
24. Shri Pradip Lataro Motgare
25. Shri Bandu Laxman Tawad
26. Shri Jagdish Balaji Babore
27. Shri Ashok Chauhan
28. Shri Tulshiram Mahadeo Chikate
29. Shri Nand Kishore Madhaw Tengane
30. Shri Krishna Malialeo Mude
31. Shri Raju Abadi Dande
32
Shri Ramesh Mutej Durge
33. Shri Suresh Chandrika Sonekar
34. Shri Rajkumar Puranlal Jadave
35. Shri Suresh Sonekar
36. Shri Shankar Enkati Burdi
37. Shri Vasudeo Badiram Tipla,
ubZ fnYyh] 27 fnlEcj] 2013
dkñvkñ 184.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,Qñ lhñ vkbZñ
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;] ukxiqj ds iapkV ¼lanHkZ la[;k 258@2003½
dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 27@12@2013 dks izkIr
gqvk FkkA
[Qkñ lañ ,y&22012@160@2003&vkbZ vkj ¼lh,e&II)]
,eñ dsñ flag] vuqHkkx vf/kdkjh
New Delhi, the 27th December, 2013
S.O. 184.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 258/
2003) of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Nagpur as shown in the Annexure, in the industrial dispute
between the management of Food Corporation of India,
and their workmen, received by the Central Government on
27/12/2013.
[F. No. L-22012/160/2003-IR(CM-II)]
M. K. SINGH, Section Officer
ANNEXURE
BEFORE SHRI J. P. CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No. CGIT/NGP/258/2003
Date: 29.11.2013.
Party No.1(a) :
The District Manager,
Food Corporation of India,
Ajani, Nagpur,
Nagpur - 440015.
Party No.1(b) :
The Senior Regional Manager,
Food Corporation of India,
Mistry Bhawan, Dinshaw Wacha Road,
Churchgate,
Mumbai - 400020.
Versus
Party No. 2 :
The Secretary,
Rashtriya Mazdoor Sena,
Hind Nagar, Ward No. 2,
Near Boudha Vihar, Post: Wardha,
Distt. Wardha (M.S.)
AWARD
(Dated: 29th November, 2013)
In exercise of the powers conferred by clause (d) of
sub-section (1) and sub-section 2(A) of section 10 of
Industrial Disputes Act, 1947 (14 of 1947) ("the Act" in
short),
the Central Government has referred the industrial
dispute between the employers, in relation to the
management of Food Corporation of India and their
workman, Shri Rajesh Shriram Bombodkar for adjudication,
as per letter No. L-22012/160/2003-IR (CM-II) dated
08.12.2003, with the following schedule:—
"Whether the action of the management of Food
Corporation of India, Nagpur (M.S.) in terminating
the services of Shri Rajesh Shriram Bombodkar,
Security Guard w.e.f. 14.03.1999 is legal and justified?
If not, to what relief the concerned workman is
entitled?"
2. On receipt of the reference, the parties were noticed
to file their respective statement of claim and written
statement and accordingly, the workman, Shri Rajesh
Shriram Bombodkar, (''the workman" in short), filed the
statement of claim and the management of Food Corporation
of India ("Party No. 1" in short) filed their written statement.
The case of the workman as presented in the
statement of claim is that he was in the employment of
Party No. 1 from 07.11.1992 and he was initially engaged
through a contractor at Wardha Depot of Party No. 1, as a
Security Guard and he was in continuous service without
any interruption till 14th March, 1999, when his services
were terminated orally by Party No. 1, without following
the due procedure of law and he had completed more than
240 days of work in each year and the termination of his
services on 14.03.1999 was not in good faith, but in
colourable exercise of the rights and powers by the Party
No. 1 and while terminating his services, neither one
month's notice nor one month's wages in lieu of notice nor
retrenchment compensation was given to him as required
under section 25-F of the Act and after his illegal
362
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
termination, fresh hands from the department of home guard
and police were engaged by Party No. 1 to extract the duties
of Security Guards, in violation of the provision of section
25-H of the Act and the work which he was performing is
constantly in existence and the same is of a perennial nature
and as his termination is illegal and unlawful, he is entitled
for reinstatement in service with continuity and full back
wages.
The further case of the workman is that in 1992, he
was engaged by the Party No. 1 through the contractor for
a period of two years, but the contract was made only on
papers and after every two years, the Party No. 1 changed
the contractor on papers only and the engagement of the
so-called contractor did not replace the Security Guards
and he was also not disturbed from his services and he
was merely shown to be engaged by the contractors, but
actually he was working under the direct control and
supervision of the Party No. 1 and the contractor had no
role to play in the same and the work performed by him was
being assigned to him by Party No. 1 and he was a regular
employee of Party No. 1 and Party No. 1 was his real
employer and not the contractor as alleged and the
engagement and change of contractors by Party No. 1 from
time to time was sham and only a camouflage to deny his
legitimate claim and the contract between Party No. 1 and
the contractor was bogus and not genuine and therefore,
his oral termination from services was against the
mandatory provisions of the Act and the Central
Government decided to abolish the appointment of contract
labour as contemplated under section 10 of the Contract
Labour (Regulation and Abolition) Act, 1970 and issued
notification on 01.11.1990 with directions to abolish the
contract labour system in the establishment of the Party
No. 1 and to give employment to contract labours engaged
by the management and therefore, it was the mandatory
duty of the Party No. 1 to abolish the contract labour system
in all places and management of FCI implemented the
notification only at Nagpur and Manmad and absorbed
the Security Guards working at Nagpur and Manmad, but
at Akola, Amravati, Wardha and Gondia districts, the
contract labour system was continued by the management,
with an intention to deprive him from the benefits under
the labour laws.
It is further pleaded by the workman that his salary
was paid by the Party No. 1 and not by the contractor and
his daily attendance was also marked by the Asstt.
Manager of FCI, Wardha Depot and the Party No. 1 was
supervising his work through their officers and he had no
relation with the so called contractors engaged by the Party
No. 1 and Party No. 1 also supplied the articles, such as,
torch, lathi, whistle and uniform etc. to him and in view of
the long spell of work being carried out by him, he is entitled
to be reinstated in service with continuity and full back
wages.
3. The Party No. 1 in their written statement have
pleaded inter alia that the workman was never in their
employment and the workman has not impleded the
contractor, who appointed him, as a Party and the workman
was engaged by the contractor as a Security Guard at FCI
Depot and the said contractor is a necessary party and in
absence of the contractor, the proceeding cannot proceed
and the workman was not in their service uninterruptedly
till 14th March, 1999 and since the contract of the contractor
came to an end, the services of the workman were terminated
by the contractor and the original period of contract given
to the contractor for providing Security services was up to
1998 and the same was extended as per the terms and
conditions till March, 1999 and as the workman was not
employed by them, there was no question of following the
procedure of termination by them and they were not the
employer of the workman and the services of the workman
were never utilized by them as employer from 07.11.1992 to
14.03.1999 , without any break in service and the workman
did not complete 240 days of work in a year as alleged and
as the workman was engaged by the Security Contractor,
there was no relationship of master and servant between
them and the workman at any point of time and under
section 10 of the Contract Labour (Regularisation and
Abolition) Act, they were exempted by the Central
Government, so the allegations made by the workman
against them are not true and there was no question of
violation of the provisions of 25 (H) of the Act and the
work does not constantly exist and the work of providing
security guards was given to other Government Agencies
like Police Personnel and Home Guards and therefore, the
workman has no right to claim any relief from them and the
work of security is not perennial in nature and as and when
their godowns are filled with food grains, then only, services
of the security guards are required and in pursuance of the
notification issued by the Central Government abolishing
contract labour system, they appointed Home Guards and
Police personnel as security guards.
The further case of party No.1 is that for the relief as
claimed in this reference, the workman had filed a writ petition
before the Hon'ble High Court, Nagpur Bench bearing W.P.
No. 1389/99 and the Hon'ble High Court rejected the said
WP and denied the reliefs prayed for and therefore, this
Tribunal has no jurisdiction to decide the reference and
the decision of the Hon'ble Court operates as res-judicata
and they floated tenders for the contract and lowest bidder
was awarded the contract and the change of contractor in
every two years was not on papers only and they had no
say in the appointment of security guards by the security
contractor and they had no control over the appointment
and service conditions of the workman, who was an
employee of the security agency and he was never their
employee and the security contractor was the employer of
the workman.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
363
The further case of party No.1 is that the appropriate
government decided to abolish the employment of the
contract labour as contemplated under section 10 of the
Contract Labour (Regularisation and Abolition) Act, 1970
and the interpretation of the notification issued on
01.11.1990 put by the workman is not correct and they were
exempted from the operation of the Act of 1970 in the year
1989 and the said exemption was withdrawn in the year
1999 and therefore, the security contact given to the
contractor was terminated and hence, the services of the
workman were terminated by the security contractor and
they did not pay the salary to the workman and it was the
contractor, who was paying the same to the workman and
when the contractor failed to pay the salary to the workman,
they paid the amount as per the directions given by the
ALC from time to time and the said amount was recovered
from the contract's bill and they only used to check the
attendance of the security guards to find out as to whether
the contractor had made arrangement of the requisite
number of security guards, as per their requirement and
they did not have the power to terminate any employee
appointed by the contractor and they did not provide any
article, such as torch, Lathi, whistle and uniform etc. to the
workman and as such, the workman is not entitled to any
relief.
4. Both parties have led oral evidence in support of
their respective claims, besides placing reliance on
documentary evidence.
The workman in support of his claim has examined
himself as a witness. In his evidence, which is on affidavit,
the workman has reiterated the facts mentioned in the
statement of claim.
In his cross-examination, the workman has admitted
that he has engaged in F.C.I. by the contractor, "Singh
Security Services" and Singh Security Services was paying
him his salary. The workman in his cross-examination has
further admitted that wages was being paid to him by signing
on revenue stamp affixed on acquaintance roll and the Zerox
copy of the muster roll Ext. M- I, filed by the management is
the true copy of the said acquaintance roll and Ext. M-II is
the true copy of his attendance register maintained by Singh
Security Services and at first he was working at Akola and
he was asked by Bombay Industrial Security and Fire Services
to work at Wardha instead of Akola and he was engaged by
other contractors in FCI and he has not filed any document
to show that he had worked for 240 days in every calendar
year with F.C.I. and his engagement was without any
advertisement by F.C.I. and the contractors were deciding to
keep a person in job or not.
5. Shri Suresh N. Bokade, the witness examined on
behalf of the Party No.1 has also reiterated the facts
mentioned in the written statement, in his examination-in-
chief, which is on affidavit. In his cross-examination, the
witness for the Party No. 1 has admitted the suggestions
given on behalf the workman that the workman and other
security guards were deployed to work in F.C.I. through
the contractor, Singh Security Services and Singh Security
Services was given the contract to supply security guards
for two years and after the expiry of contract of Singh
Security Services in 1995, contract for supply of security
guards was given to Industrial Security and Fire Services
for two years and the workman and other security guards
were engaged in F.C.I. through the contractors till December,
1998 and after the notification made by the Government
imposing ban for engagement of contract labourers in 1998,
F.C.I. discontinued the engagement of contract labourers
and security guards were being deployed for watch and
ward duty of F.C.I. depots and the workman other security
guards worked continuously from the date of their
respective engagement till December, 1998 in F.C.I. through
different contractors and F.C.I. had the control regarding
the duties to be performed by the security guards.
6. At the time of argument, it was submitted by the
learned advocate for the workman that the workman from
07.11.1992 was in the service of the Party No. 1 till 14.03.1999,
when all of a sudden, his services were terminated orally
by the party No.1 without compliance of the mandatory
provisions of Law, particularly the provisions of sections
25F and 25H of the Act and Party No. 1 also did not comply
with the provisions of the Contract Labour (Regulation
and Abolition) Act,1970 ("Act,1970" in short ) and as such,
the termination of the workman is illegal and null and void.
It is further submitted by the learned advocate for the
workman that the appointment of the workman to work in
the establishment of the Party No. 1 was admittedly through
contractor appointed by Party No. 1 and it is an admitted
position that the tenure of the contract was for two years
and though there was change of contractor in every two
years, the workman and other security guards remained
the same and there was a specific condition in the contract
between the management and the contractor that the set of
workers will be continued by the incoming contractor and
in such fashion, the workman and other security guards
continued to work in the establishment of Party No. 1 right
from the date of their respective date of appointments till
March, 1999 and there was no bread in their service and
each of them completed 240 days of service in each calendar
year and the same shows that the work was all time available
in the establishment of Party No. 1 and is of perennial
nature and ever though the workman and other security
guards were employed by the contractor, fact remains and
is also admitted by the witness for the Party No. 1 that
Party No. 1 had control over the working of the workman.
The learned advocate for the workman further
submitted that though Party No. 1 in the written statement
has contended that it was exempted from the provisions of
the Act, 1970, it has failed to produce any document in
corroboration of such contention and as mere statement of
Party No. 1 is no sufficient, the fact remains that Party No. 1
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was never exempted from the provisions of the Act, 1970
and the Central Government by notification dated
01.01.1990 issued U/S 10 of the Act, 1970 abolished contract
labour system in the establishment of Party No. 1 and after
issuance of the said notification, Party No. 1 was prohibited
from engaging any contract labour and as the workman
and other security guards were engaged by Party No. 1
inspite of notification prohibiting contract labour system,
the workman became the direct employee of the Party No. 1
and he has attained the status of regular employee of Party
No. 1.
It was also argued by the learned advocate for the
workman that Party No. 1 has not filed on record any
document showing that it was registered as principal
employer or the contractors were registered under section
7 and Section 12 respectively of the Act, 1970 and in
absence of the said documents, it cannot be assumed that
the contract between the contractor and management was
genuine and it is clear that the contracts between the Party
No. 1 and the contractors were sham and bogus and such
contract was entered into only with malafide intention to
deny regular employment to the workman and after
termination of the services of the workman, Party No. 1
appointed police and home guard personnel as security
guards and this proves that the work is available even
today and after the notification dated 01.11.1990, Party No. 1
regularized the contract labourers were engaged at Nagpur
and Manmad, but same was not the case at Akola, Amravati,
Wardha and Gondia and this shows that Party No. 1
indulged into invidious discrimination amongst equal,
which is contrary to provisions of Articles 14 & 16 of the
constitution and the Writ Petition filed by the workman
and others as disposed of by the Hon'ble High Court with
a direction to the petitioners to approach the appropriate
authority and as such, the judgment in Writ Petition 1389/
99, cannot operate as res-judicata.
In support of the contentions, the learned advocate
for the workman placed reliance on the decision reported
in 2006(2) Bom.CR — 167 (Food Corporation of India Vs
Prashant Pandurang Ramteke & others).
The learned advocate for the workman also submitted
that as the termination of the workman from service is illegal,
the workman is entitled for reinstatement in service with
continuity and full back wages.
7. Per contra, it was submitted by the learned advocate
for the party no.1 that the workman was never appointed
by party no.1 and he has engaged by the contractor as a
security guard and as such, the concerned contractor is a
necessary party and inspite of raising such objection in
the written statement, the workman did not implead the
contractor as a party and for that the reference is not
maintainable. It was further submitted by the learned
advocate for the party no.1 that the workman was engaged
by the contractor and as the contract of the contractor
came to an end in March, 1999, the services of the workman
were terminated by the contractor and as such, there was
no question of party no.1 complying with the due procedure
of termination and there was no relationship of master and
servant between the party no.1 and the workman and the
party no.1 was exempted by the Central Government from
the ban imposed for engagement of contract labourers, so
contract was given to the security contractor, as per rules,
for supply of security guards and due to the notification of
the Government for abolition of contract labour system,
Home guards and Police personnel were appointed as
security guards and party no.1 has no control over the
workman and the security contractor was submitting bills
for payment for supply of security guards and the security
contractor was paying the wages to the workman. It was
further submitted by the learned advocate for the party
no.1 that the workman and some others had approached
the Hon'ble High Court, Nagpur Bench in W.P. 1389 of 1999
for the reliefs sought in this reference and the Hon'ble
High Court while depositing of the said petition have held
that the termination of the workman by the contractor was
a valid one and the action of FCI was legal and as such, the
workman cannot agitate the question again and the decision
of the Hon'ble High Court operates as res-judicata between
the parties and the workman is not entitled to any relief.
8. First of all, I will take up the submission made by
the learned advocate for the party no.1 that the present
reference is hit by the principles of res-judicata, due to the
decision of the Hon'ble High Court, Nagpur Bench in W.P.
1389/99.
It is not disputed that the workman alongwith 78
others through the union, "Rashtriya Mazdoor Sena
Saptahit Jaibhim" filed Writ Petition no. 1389/99 before the
Hon'ble High Court of Judicature at Bombay, Nagpur Bench,
Nagpur, for their regularisation and the Hon'ble High Court
did not grant such relief. On perusal of the order passed by
the Hon'ble High Court on 29.07.2002 in the said writ
petition, it is found that the workman and others claimed
regularisation on the ground that they were employed by
the contractor for doing regular work of the Food
Corporation of India and in view of the same, they have
became workmen of Food Corporation of India, since the
work on which they were employed is of perennial nature.
However, it is found from the judgment that the Hon'ble
High Court did not consider the main relief and passed the
following order:
"In view of the judgment of the Constitution Bench
in Steel Authority of India Ltd. and Others Vs.
National Union Water Front Workers and Others
[reported in 2001 (7) SCC1], the relief sought by the
petitioners cannot be granted since the petition
involves disputed question of facts as also other
facts which are required to be adjudicated by
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appropriate authority. Accordingly, the main prayer
to absorb them cannot be granted.
XX
XX
XX
XX
In view of the rejection of the main prayer, the question
of granting other prayer does not arise. In case, the
petitioners approach the appropriate authority, the
appropriate authority shall take decision in the matter
within a period of one year. The applicants are free to
approach the appropriate authority for redress of
their grievances."
So, it is clear from the orders passed by the Hon'ble
High Court as mentioned above that the Hon'ble High Court
did not consider the claim made by the workman and others
on merit and granted them the liberty to approach the
appropriate authority for redress. The Hon'ble High Court
in the decision reported in 2006(2) Bom.CR - 167 (Supra)
have held that, "Because Division Bench had not gone
into merits of the case the decision cannot operate as res-
judicata". Applying the principles settled by the Hon'ble
High Court, as mentioned above to the case in hand, the
reference cannot be said to be hit by the principles of res-
judicata. So, there is no force in the contention raised by
the learned advocate for the party no. 1.
9. In this reference, it is never the case of the workman
that he was directly appointed or engaged by the party
no.1 as a security guard. In the very beginning of the
statement of claim, it has been mentioned by the workman
that he was initially engaged at Food Corporation of India
Depot, Wardha as a security guard, through a contractor.
In paragraph 4 of the statement of claim, the workman has
mentioned that, "In the year 1992, the workman was
engaged by the Food Corporation of India through
contractor, for the period of 2 years, but the contract was
made on paper." The case of the workman is that after
every two years, the party no.1 on papers showed the
change of contractors, but he was not disturbed from
services and he worked continuously without any break
till 14.03.1999 and as he worked as a security guard of
perennial nature, he is entitled for reinstatement in service.
The workman has also claimed that as the Central
Government issued notification on 01.11.1990 to abolish
the contract labour system in FCI and directed to give
employment to contract labours engaged by the
management and party no.1 implemented such direction at
Nagpur and Manmad only and gave employment and
regularized and absorbed the services of the Security Guards
working at Nagpur and Manmad and did not implement the
same at Wardha and other places to deprive him from the
benefits under the Labour Laws.
In his evidence on affidavit also, the workman has
mentioned that he was initially engaged in Food
Corporation of India as a Security Guard through the
contractor, Singh Security Services and after Singh Security
Services, he was engaged by other contractors.
From the evidence on record and the own admission
of the workman in the cross- examination including the
specific admission that he was engaged by the contractor,
it is clear that the workman was engaged by the contractor.
The workman has not produced any evidence to show that
he was directly engaged by the Party No. 1.
10. At this juncture, I think it apropos to mention
about the principles enunciated by the Hon'ble Apex Court
regarding contract labours, in the decisions reported in
1985-II LLJ-4 (S.C.) (The workman of the Food Corporation
of India Vs M/s. Food Corporation of India), 2001 LAB IC
3656 (S.C.) (Steel Authority of India Ltd. and others Vs.
National Union Water Front Workers and others) and
1994 II CLR 402 (R.K. Panda & Others Vs. Steel Authority
of India and Others).
In the decision reported in 1985-II LLOJ-4 (supra)
the Hon'ble Apex Court have held that:-
"Briefly stated, when corporation engaged a
contractor for handling food grain at Siliguri Depot,
the corporation had nothing to do with the manner
of handling work done by the contractor, the labour
force employed by him, payments made by him etc.
In such a fact situation, there was no privity of
contract of employer and workmen between the
corporation and the workmen. "Workmen" has been
defined (omitting the words not necessary) in the
Industrial Disputes Act to mean (any person
including an apprentice) employed in any industry
to do........'' 'The expression' employed has at least
two known connotations, but as used in the
definition, the context would indicate that it is used
in the sense of a relationship brought about by
express or implied contract of service in which the
employee renders service for which he is engaged
by the employer and the latter agrees to pay him in
cash or kind as agreed between them or statutorily
prescribed. It discloses a relationship of command
and obedience. The essential condition of a person
being a workman within the terms of the definition is
that he should be employed to do the work in that
industry and that there should be, in other words, an
employment of his by the employer and that there
should be a relationship between the employer and
employee or master and servant unless a person is
thus employed there can be no question of his being
a "workman" within the definition of the term as
contained in the Act.
Dharangadhara Chemical Works Ltd. Vs. State of
Saurashtra (1957 - I - LLJ - 477). Now where a
contractor employs a workman to do the work which
he contracted with a third person to accomplish on
the definition as it stands, the workman of the
contractor would not without something more
become the workman of that third person. Therefore,
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when the workmen employed by the contractor were
certainly not the workmen of the corporation and no
claim to that effect has been made by the union."
11. In the decision reported in 2001 LAB IC - 3656
(supra) the Hon'ble Apex Court have held that:-
"The principle that a beneficial legislation needs to
be constructed liberally in favour of the class for
whose benefit it is intended, does not extend to
reading in the provisions of the Act what the
legislature has not provided whether expressly or by
necessary implication, or substituting remedy or
benefits for that provided by the legislature. The
intendment of the CLRA Act is to regulate the
conditions of service of the contract labour and to
authorize in Section 10(1) prohibition of contract
labour system by the appropriate Government on
consideration of factors enumerated in sub-section
(2) of Section 10 of the Act among other relevant
factors. But, the presence of some or all those factors,
provide no ground for absorption of contract labour
on issuing notification under Section 10(1) by the
appropriate Government, is not alluded to either in
Section 10 or at any other place in the Act and the
consequence of violation of Sections 7 and 12 of the
CLRA Act is explicitly provided in Sections 23 and
25 of the CLRA Act, it is not for the High Courts or
the Supreme Court to read in some unspecified
remedy in Section 10 or substitute for penal
consequences specified in Sections 23 and 25 a
different sequel be it absorption of contract labour
in the establishment of principal employer or a lesser
or a harsher punishment. Such an interpretation of
the provisions of the statute will be far beyond the
principle of ironing out the creases and the scope of
interpretative legislation and as such clearly
impermissible.
Thus on issuance of prohibition notification under
S. 10(1) of the CLRA Act prohibiting employment of
contract labour or otherwise, in an industrial dispute
brought before it by any contract in regard to
conditions of service, the industrial adjudicator will
have to consider the question whether the contractor
has been interposed either on the ground of having
undertaken to produce any given result for the
establishment or for supply of contract labour for
work of the establishment under a genuine contract
or is a mere ruse/camouflage to evade compliance of
various beneficial legislations so as to deprive the
workers of the benefit thereunder. If the contract is
found to be not genuine but a mere camouflage, the
so called contract labour will have to be treated as
employees of the principal employer who shall be
directed to regularize the services of the contract
labour in the concerned establishment. If the contract
is found to be genuine and the principal employer
intends to employ regular workmen he shall give
preference to the erstwhile contract labour. It
otherwise found suitable, and, if necessary, by
relaxing the condition as to maximum age
appropriately taking into consideration the age of
the workers at the time of their initial employment by
the contractor and also relaxing the condition as to
academic qualifications other than technical
qualifications.
Air India's case 1997 AIR SCW430 Overruled
prospectively. M.A.T. Nos. 1704 and 1705 of 1999,
D/ - 12-8-1999 (Cal): C.O. No. 6545(W) if 1996, D/ -
9-5-1997(Cal): W.A. Nos. 345-354 of 1997m D/ -
17-4-1998 (Kant): W.P. No. 4050 of 1999, D/ - 2-8-2000
(Bom) and W.P. No. 2616 to 1999, D/- 23-12-1999
(Born), 1998 Lab IC 2571 (Cal), Reversed.
It cannot be said that by virtue of engagement of
contract labour by the contractor in any work of or in
connection with the work of an establishment, the
relationship of master and servant is created between
the principal employer and the contract labour. Even
a combined reading of the definition of the terms
"Contract labour", "Establishment" and "Workman"
does not show that the legal relationship between
the person employed in any industry and the owner
of the industry is created irrespective of the fact as
to who has brought about such relationship. The
word "Workman" is defined in wide terms. It is a
generic term of which contract labour is a species. It
is true that combined reading of the terms
"Establishment" and "Workman" shows that a
workman engaged in any establishment would have
direct relationship with the principal employer as a
servant of master. But what is true of a workman
could not be correct of contract labour. When the
provisions of the Act neither contemplate creation
of direct relationship of master and servant between
the principal employer and the contract labour nor
can such relationship be implied from the provisions
of the action issuing notification under Section 10(1)
of the CLRA Act. A fortiori much less can such a
relationship be found to exist from the rules and the
forms made there under."
12. In the decision reported in 1994 II CLR 402 (Supra),
the Hon'ble Apex Court have held that:—
With the industrial growth, the relation between the
employer and the employees also has taken a new
turn. At one time the establishment being the
employer all persons working therein were the
employees of such employer. But slowly the employer
including Central and State Governments started
entrusting many of the jobs to contractors.
Contractors in their turn employed a worker, who
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has no direct relationship with the establishment in
which they were employed. Many contractors
exploited the labourers engaged by them in various
manners including the payment of low wages. Hence,
the Contract Labour (Regulation and Abolition) Act,
1970 was enacted to regulate the employment of
contract labour in certain establishment and to
provide for its abolition in certain circumstances and
for matters connected therewith.
The "Contract Labour" has been defined in Section
2 (1) (b) to mean a workman, who has been employed
as contract labour in or in connection with the work
of an establishment when he is hired in or in
connection with such work by or through a
contractor, with or without the knowledge of the
principal employer. Section 2 (1) (c) defines
"Contractor" to mean a person who undertakes to
produce a given result for the establishment, other
than a mere supply of goods or articles of manufacture
to such establishment, through contract labour or
who supplies contract labour for any work of the
establishment and includes a sub-contractor.
"Principal employer" has been defined to mean (i) in
relation to any office or department of the
Government or a local authority, the head of that
office or department or such other officer as the
government or the local authority, as the case may
be, may specify in this behalf and (ii) in a factory, the
owner or occupier of the factory. In view of section 10,
of the appropriate Government may after consultation
with the Central Board or, as the case may be, a state
Board, prohibit, by notification in the Official Gazette,
employment of contract labour "in any process,
operation or other work in any establishment," Sub-
section (2) of Section 10 requires that before issuing
any such notification, in relation to an
establishments, the appropriate Government shall
have regard to the conditions of work and benefits
provided for the contract labour in that establishment
and other relevant factors. One of the relevant
factors, which is to be taken into consideration is
whether the work performed by the contract
labourers is of perennial nature. Section 12 enjoins
that no contractor to whom this Act is applicable
shall undertake or execute any work through contract
labour except under and in accordance with a license
issued in that behalf by the licensing authority. The
license so issued may contain conditions in respect
of hours of work, fixation of wages and other essential
amenities in respect of contract labour as the
appropriate Government may deem fit to impose in
accordance with rules. Section 20 provides that if
any amenity required to be provided under section
16, section 17, section 18, or section 19 for the benefit
of the contract labour employed in an establishment,
is not provided by the contractor within the time
prescribed by the contractor within the time
prescribed therefore, such amenity shall be provided
by the principal employer within such time as may be
prescribed and all expensed incurred by the principal
employer in providing the amenity may be recovered
by the principal employer from the contractor "either
by deduction from any amount payable to the
contractor under any contract or as a debt payable
by the contractor". Section 21 says that a contractor
shall be responsible for the payment of wages to
each worker employed by him as contract labour but
at the same time in order to protect the interest of
such contract labour, it requires every principal
employer to nominate a representative duly
authorized by him to be present at the time of
disbursement of wages by the contractor. It shall be
the duty of the contractor to ensure the disbursement
of wages in the presence of the authorized
representative of the principal employer. Because of
subsection (4) of section 21, if the contractor fails to
make payment of wages within the prescribed period,
then the principal employer shall be liable to make
payment of wages in full to the contact labour
employed by the contractor and recover the amount
so paid from the contractor. Any contravention of
the provisions aforesaid has been made penal for
which punishment can be imposed.
From the provisions referred to above, it is apparent
that the framers of the Act have allowed and
recognized contract labour and they have never
purported to abolish it in its entirety. The primary
object appears to be that there should not be any
exploitation of the contract labourers by the
contractor or the establishment. For achieving that
object, statutory restrictions and responsibilities have
been imposed on the contractor as well as on the
principal employer. Of course if any expenses are
incurred for providing any amenity to the contract
labourers or towards the payment of wages by the
principle employer he is entitled to deduct the same
from the bill of the contractor. The Act also conceives
that all appropriate government may after
consultation with the central board or the state board,
as the case may be, prohibit by notification in official
gazette, employment of contract labour in any
process, operation or other work in any
establishment, taking all facts and circumstances of
employment of contract labour in such process,
operation or the work into consideration.
Of late a trained amongst the contract labourers is
discernible that after having work for some years,
they make a claim that they should be absorbed by
the principal employer and be treated as employees
of the principal employer especially when the
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principal employer is the central government or the
state government or an authority which can be held
to be state within the meaning of Article 12 of the
constitution, although no right flows from the
provisions of the act for the contract labourers to be
absorbed or to become the employees of the principal
employer. This court in the case of Gammon India
limited Vs. Union of India (1974) I SCC 596, pointed
out the object and scope of the act as follows:—
"The Act was passed to prevail the exploitation of
contract labour and also to introduce better condition
of work. The Act provides for regulation and abolition
of contract labour. The underline policy of the Act is
to abolish contract labour, wherever possible and
practicable and where it cannot be abolished to
altogether, the policy of the Act is that the working
conditions of the contract labour should be so
regulated as to ensure payment of wages and
provisions of essential amenities. This is why the
Act provides for regulated conditions of work and
contemplates progressive abolition to the extent
contemplated by Section 10 of the Act."
In the case of B.H.E.L. Workers' Association V. Union
of India, 1985 I CLR SC 165 = (1985) 1 SCC 630 it was
pointed out that Parliament has not abolished the
contract labour as such but has provided for its
abolition by the Central Government in appropriate
cases under section 10 of the Act. It is not for the
court to enquire into the question and to decide
whether the employment of contract labour in any
process, operation or other work in any establishment
should be abolished or not. That has to be decided
by the government after considering the relevant
aspects as required by Section 10 of the Act. Again
in the case of Mathura Refinery Mazdoor Sangh Vs.
Indian Oil Corporation Ltd., 1991I CLR 684, this court
refused to direct the Indian Oil Corporation Ltd., to
absorb the contract labourers in its employment
saying that, the contract labourers have not been
found to have direct connection with the refinery. In
other words, there was no relationship of employer
and employee between the Indian Oil Corporation
Ltd. and the contract labourers concerned. Again in
Dena Nath Vs. National Fertilizers Ltd., 1992 I CLR 1,
this court pointed out that the aforesaid Act has two
purposes to serve (i) to regulate the conditions of
service of the worker employed by the contractor
who is engaged by a principal employer and (ii) to
provide for the abolition of contract labour altogether,
in certain notified processes, operation or other works
in any establishment by the appropriate government,
under section 10 of the Act. It was further stated that
neither the Act nor the Rules framed by the central
government or by any appropriate government
provide that upon abolition of contract labour, the
labourers would be directly absorbed by the principal
employer.
It is true that with passage of time and purely with a
view to safeguard the interests of workers, many
principal employers while renewing the contracts
have been insisting that the contractor or the new
contractor retains the old employees. Infact such a
condition is incorporated in the contract itself.
However, such a clause in the contract which is
benevolently inserted in the contract to protect the
continuance of the source of livelihood of the
contract labour cannot by itself give rise to a right to
regularization in the employment of the principal
employer. Whether the contract labourers have
become the employees of the principal employer in
course of time and on whether the engagement and
employment of labourers through a contractor is a
mere camouflage and a smoke screen, as has been
urged in this case, is a question of fact is to be
established by the contract labourers on the basis of
the requisite material. It is not possible for High Court
or this court, while exercising writ jurisdiction or
jurisdiction under Article 136 to decide such
Questions only on the basis of the affidavits. It need
not to be pointed out that in all such cases, the
labourers are initially employed and engaged by the
contractors. As such at what point of time a direct
link is established between the contract labourers
and the principal employer, eliminating the contractor
from the scene, is a matter which has to be established
on material produced before the court. Normally, the
Labour Court and the Industrial Tribunal, under the
Industrial Disputes Act are the Competent Fora to
adjudicate such disputes on the basis of the oral and
documentary evidence produced before them."
So, keeping in view the principles enunciated by the
Hon'ble Apex Court in the decisions mentioned above, the
present case in hand is to be considered.
13. In this case, the letter no. U-23013/ 11/89/LW
dated 28.05.92 of Govt. of India, Ministry of Labour shows
that the prohibition of employment of contract labour in
sweeping, cleaning, dusting and watching of buildings
owned or occupied by the establishments of Food
Corporation of India and some other departments was lifted
by the Central Government. So, the engagement of contract
labour by the Party No. 1 cannot be said to be illegal. It is
also found from the materials on record that the appointment
of labour contractor by Party No. 1 for supply of Security
Guards was genuine and the same was not only on papers
as claimed by the workman. The workman has failed to
prove such claim by adducing cogent or reliable evidence.
The engagement of labour contractor by Party No. 1 was
not a mere ruse or camouflage to evade compliance of the
various beneficial legislations, so as to deprive the workman
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369
of the benefits there under. The workman has not been
able to produce any document to show that at any point of
time, Party No. 1 paid him wages as their employee. As it is
clear from the evidence on record that the workman was
engaged as a contract labour with Party No. 1, by the
contractor, it can be held that there was no relationship of
master and servant between the Party No. 1 and the
workman. Hence, there was no question of termination of
the services by the Party No. 1 or compliance of the
provisions of Sections 25-F or 25-H of the Act.
14. It is the own case of the workman that he was
engaged by the contractor. So the contractor, who had
engaged the workman, is a necessary party in the reference.
The said contractor has not been added as a party in this
reference. Due to non-joinder of necessary party, the
reference is bad in law.
In view of the materials on record and the discussions
made above, the reference cannot be answered in favour
of the workman. Hence, it is ordered:—
ORDER
The reference is answered in the negative. The
workman is not entitled to any relief.
J. P. CHAND, Presiding Officer
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New Delhi, the 27th December, 2013
S.O. 185.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 263/2003)
of the Cent.Govt. Indus.Tribunal-cum-Labour Court,
Nagpur as shown in the Annexure, in the industrial dispute
between the management of Food Corporation of India,
and their workmen, received by the Central Government on
27/12/2013.
[F. No. L-22012/165/2003-IR(CM-II)]
M. K. SINGH, Section Officer
ANNEXURE
BEFORE SHRI J. P. CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No. CGIT/NGP/263/2003
Date: 29.11.2013.
Party No.1(a):
The District Manager,
Food Corporation of India,
Ajani, Nagpur,
Nagpur - 440015.
Party No.1(b):
The Senior Regional Manager,
Food Corporation of India,
Mistry Bhawan, Dinshaw Wacha
Road, Churchgatye,
Mumbai - 400020.
Versus
Party No.2
The Secretary,
Rashtriya Mazdoor Sena, Hind Nagar
Ward No. 2, Near Boudha Vihar,
Post: Wardha, Distt. Wardha (M.S.)
AWARD
(Dated: 29th November, 2013)
In exercise of the powers conferred by clause (d) of
sub-section (1) and sub-section 2(A) of section 10 of
Industrial Disputes Act, 1947 (14 of 1947) ("the Act" in
short), the Central Government has referred the industrial
dispute between the employers, in relation to the
management of Food Corporation of India and their
workman, Shri Babarao Daduji Chahande for adjudication,
as per letter No.L-22012/165/2003-IR (CM-II) dated
08.12.2003, with the following schedule:—
"Whether the action of the management of Food
Corporation of India, Nagpur (M.S.) in terminating
the services of Shri Babarao Daduji Chahande,
Security Guard w.e.f. 14.03.1999 is legal and justified?
If not, to what relief the concerned workman is
entitled?"
2. On receipt of the reference, the parties were noticed
to file their respective statement of claim and written
statement and accordingly, the workman, Shri Babarao
Daduji Chande, ('the workman" in short), filed the statement
of claim and the management of Food Corporation of India
("Party No. 1" in short) filed their written statement.
The case of the workman as presented in the
statement of claim is that he was in the employment of
Party No. 1 from 23.07.1993 and he was initially engaged
through a contractor at Wardha Depot of Party No. 1, as a
Security Guard and he was in continuous service without
any interruption till 14th March, 1999, when his services
were terminated orally by Party No. 1, without following
the due procedure of law and he had completed more than
240 days of work in each year and the termination of his
services on 14.03.1999 was not in good faith, but in
colourable exercise of the rights and powers by the Party
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[PART II—SEC. 3(ii)]
No. 1 and while terminating his services, neither one
month's notice nor one month's wages in lieu of notice nor
retrenchment compensation was given to him as required
under section 25-F of the Act and after his illegal
termination, fresh hands from the department of home guard
and police were engaged by Party No. 1 to extract the duties
of Security guards, in violation of the provision of section
25-H of the Act and the work which he was performing is
constantly in existence and the same is of a perennial nature
and as his termination is illegal and unlawful, he is entitled
for reinstatement in service with continuity and full back
wages.
The further case of the workman is that in 1993, he
was engaged by the Party No. 1 through the contractor for
a period of two years, but the contract was made only on
papers and after every two years, the Party No. 1 changed
the contractor on papers only and the engagement of the
so-called contractor did not replace the Security Guards
and he was also not disturbed from his services and he
was merely shown to be engaged by the contractors, but
actually he was working under the direct control and
supervision of the Party No. 1 and the contractor had no
role to play in the same and the work performed by him was
being assigned to him by Party No. 1 and he was a regular
employee of Party No. 1 and Party No. 1 was his real
employer and not the contractor as alleged and the
engagement and change of contractors by Party No. 1 from
time to time was sham and only a camouflage to deny his
legitimate claim and the contract between Party No. 1 and
the contractor was bogus and not genuine and therefore,
his oral termination from services was against the
mandatory provisions of the Act and the Central
Government decided to abolish the appointment of contract
labour as contemplated under section 10 of the Contract
Labour (Regulation and Abolition) Act, 1970 and issued
notification on 01.11.1990 with directions to abolish the
contract labour system in the establishment of the Party
No. 1 and to give employment to contract labours engaged
by the management and therefore, it was the mandatory
duty of the Patty No. 1 to abolish the contract labour system
in all places and management of FCI implemented the
notification only at Nagpur and Manmad and absorbed
the Security Guards working at Nagpur and Manmad, but
at Akola, Amravati, Wardha and Gondia districts, the
contract labour system was continued by the management,
with an intention to deprive him from the benefits under
the labour laws.
It is further pleaded by the workman that his salary
was paid by the Party No. 1 and not by the contractor and
his daily attendance was also marked by the Asstt.
Manager of FCI, Wardha Depot and the Party No. 1 was
supervising his work through their officers and he had no
relation with the so called contractors engaged by the Party
No. 1 and Party No. 1 also supplied the articles, such as,
torch, lathi, whistle and uniform etc to him and in view of
the long spell of work being carried out by him, he is entitled
to be reinstated in service with continuity and full back
wages.
3. The Party No. 1 in their written statement have
pleaded inter alia that the workman was never in their
employment and the workman has not impleded the
contractor, who appointed him, as a Party and the workman
was engaged by the contractor as a Security Guard at FCI
Depot and the said contractor is a necessary party and in
absence of the contractor, the proceeding cannot proceed
and the workman was not in their service uninterruptedly
till 14th March, 1999 and since the contract of the contractor
came to an end, the services of the workman were terminated
by the contractor and the original period of contract given
to the contractor for providing Security services was up to
1998 and the same was extended as per the terms and
conditions till March, 1999 and as the workman was not
employed by them, there was no question of following the
procedure of termination by them and they were not the
employer of the workman and the services of the workman
were never utilized by them as employer from 23.07.1993
to14.03. 1999 , without any break in service and the workman
did not complete 240 days of work in a year as alleged and
as the workman was engaged by the Security Contractor,
there was no relationship of master and servant between
them and the workman at any point of time and under
section 10 of the Contract Labour (Regularisation and
Abolition) Act, they were exempted by the Central
Government, so the allegations made by the workman
against them are not true and there was no question of
violation of the provisions of 25 (H) of the Act and the
work does not constantly exist and the work of providing
security guards was given to other Government Agencies
like Police Personnel and Home guards and therefore, the
workman has no right to claim any relief from them and the
work of security is not perennial in nature and as and when
their go-downs are filled with food grains, then only,
services of the security guards are required and in
pursuance of the notification issued by the Central
Government abolishing contract labour system, they
appointed Home guards and Police personnel as security
guards.
The further case of Party No.1 is that for the relief as
claimed in this reference, the workman had filed a writ petition
before the Hon'ble High Court, Nagpur Bench bearing W.P.
No. 1389/99 and the Hon'ble High Court rejected the said
WP and denied the reliefs prayed for and therefore, this
Tribunal has no jurisdiction to decide the reference and
the decision of the Hon'ble Court operates as res-judicata
and they floated tenders for the contract and lowest bidder
was awarded the contract and the change of contractor in
every two years was not on papers only and they had no
say in the appointment of security guards by the security
contractor and they had no control over the appointment
and service conditions of the workman, who was an
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371
employee of the security agency and he was never their
employee and the security contractor was the employer of
the workman.
The further case of Party No.1 is that the appropriate
government decided to abolish the employment of the
contract labour as contemplated under section 10 of the
Contract Labour (Regularisation and Abolition) Act, 1970
and the interpretation of the notification issued on
01.11.1990 put by the workman is not correct and they were
exempted from the operation of the Act of 1970 in the year
1989 and the said exemption was withdrawn in the year
1999 and therefore, the security contact given to the
contractor was terminated and hence, the services of the
workman were terminated by the security contractor and
they did not pay the salary to the workman and it was the
contractor, who was paying the same to the workman and
when the contractor failed to pay the salary to the workman,
they paid the amount as per the directions given by the
ALC from time to time and the said amount was recovered
from the contract's bill and they only used to check the
attendance of the security guards to find out as to whether
the contractor had made arrangement of the requisite
number of security guards, as per their requirement and
they did not have the power to terminate any employee
appointed by the contractor and they did not provide any
article, such as torch, lathi, whistle and uniform etc to the
workman and as such, the workman is not entitled to any
relief.
4. Both parties have led oral evidence in support of
their respective claims, besides placing reliance on
documentary evidence.
The workman in support of his claim has examined
himself as a witness. In his evidence, which is on affidavit,
the workman has reiterated the facts mentioned in the
statement of claim.
In his cross-examination, the workman has admitted
that the contractor informed them about the vacancy in
FCI and he took them to F.C.I. and he does not know the
name of the contractor. The workman in his cross-
examination has further admitted that no appointment order
was issued by the F.C.I. to him.
5. Shri Suresh N. Bokade, the witness examined on
behalf of the Party No.1 has also reiterated the facts
mentioned in the written statement, in his examination-in-
chief, which is on affidavit. In his cross-examination, the
witness for the Party No. 1 has admitted the suggestions
given on behalf the workman that the workman other
security guards were deployed torn work in F.C.I. through
the contractor, Singh Security Services and Singh Security
Services was given the contract to supply security guards
for two years and after the expiry of contract of Singh
Security Services in 1995, contract for supply of security
guards was given to Industrial Security and Fire Services
for two years and the workman and other security guards
were engaged in F.C.I. through the contractors till December,
1998 and after the notification made by the Government
imposing ban for engagement of contract labourers in 1998,
F.C.I. discontinued the engagement of contract labourers
and security guards were being deployed for watch and
ward duty of F.C.I. depots and the workman other security
guards worked continuously from the date of their
respective engagement till December, 1998 in F.C.I. through
different contractors and F.C.I. had the control regarding
the duties to be performed by the security guards.
6. At the time of argument, it was submitted by the
learned advocate for the workman that the workman from
23.07.1993 was in the service of the Party No. 1 till 14.03.1999,
when all of a sudden, his services were terminated orally
by the Party No. 1 without compliance of the mandatory
provisions of Law, particularly the provisions of sections
25 F and 25 H of the Act and Party No. 1 also did not
comply with the provisions of the Contract Labour
(Regulation and Abolition)Act,1970("Act,1970" in short )
and as such, the termination of the workman is illegal and
null and void. It is further submitted by the learned advocate
for the workman that the appointment of the workman to
work in the establishment of the Party No. 1 was admittedly
through contractor appointed by Party No. 1 and it is an
admitted position that the tenure of the contract was for
two years and though there was change of contractor in
every two years, the workman and other security guards
remained the same and there was a specific condition in
the contract between the management and the contractor
that the set of workers will be continued by the incoming
contractor and in such fashion, the workman and other
security guards continued to work in the establishment of
Party No. 1 right from the date of their respective date of
appointments till March, 1999 and there was no bread in
their service and each of them completed 240 days of service
in each calendar year and the same shows that the work
was all time available in the establishment of Party No. 1
and is of perennial nature and ever though the workman
and other security guards were employed by the contractor,
fact remains and is also admitted by the witness for the
Party No. 1 that Party No. 1 had control over the working of
the workman.
The learned advocate for the workman further
submitted that though Party No. 1 in the written statement
has contended that it was exempted from the provisions of
the Act, 1970, it has failed to produce any document in
corroboration of such contention and as mere statement of
Party No. 1 is no sufficient, the fact remains that Party No.
1 was never exempted from the provisions of the Act, 1970
and the Central Government by notification dated
01.01.1990 issued U/S 10 of the Act, 1970 abolished contract
labour system in the establishment of Party No. 1 and after
issuance of the said notification, Party No. 1 was prohibited
from engaging any contract labour and as the workman
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[PART II—SEC. 3(ii)]
and other security guards were engaged by Party No. 1
inspite of notification prohibiting contract labour system,
the workman became the direct employee of the Party No.
1 and he has attained the status of regular employee of
Party No. 1.
It was also argued by the learned advocate for the
workman that Party No. 1 has not filed on record any
document showing that it was registered as principal
employer or the contractors were registered under section
7 and Section 12 respectively of the Act, 1970 and in
absence of the said documents, it cannot be assumed that
the contract between the contractor and management was
genuine and it is clear that the contracts between the Party
No. 1 and the contractors were sham and bogus and such
contract was entered into only with malafide intention to
deny regular employment to the workman and after
termination of the services of the workman, Party No. 1
appointed police and home guard personnel as security
guards and this proves that the work is available even
today and after the notification dated 01.11.1990, Party No.
1 regularized the contract labourers were engaged at Nagpur
and Manmad, but same was not the case at Akola, Amravati,
Wardha and Gondia and this shows that Party No. 1
indulged into invidious discrimination amongst equal,
which is contrary to provisions of Articles 14 & 16 of the
constitution and the Writ Petition filed by the workman
and others as disposed of by the Hon'ble High Court with
a direction to the petitioners to approach the appropriate
authority and as such, the judgment in Writ Petition 1389/
99, cannot operate as res-judicata.
In support of the contentions, the learned advocate
for the workman placed reliance on the decision reported
in 2006(2) Bom.CR - 167 (Food Corporation of India Vs
Prashant Pandurang Ramteke & others).
The learned advocate for the workman also submitted
that as the termination of the workman from service is illegal,
the workman is entitled for reinstatement in service with
continuity and full back wages.
7. Per contra, it was submitted by the learned advocate
for the Party No. 1 that the workman was never appointed
by Party No. 1 and he has engaged by the contractor as a
security guard and as such, the concerned contractor is a
necessary party and inspite of raising such objection in
the written statement, the workman did not implead the
contractor as a party and for that the reference is not
maintainable. It was further submitted by the learned
advocate for the Party No. 1 that the workman was engaged
by the contractor and as the contract of the contractor
came to an end in March, 1999, the services of the workman
were terminated by the contractor and as such, there was
no question of Party No. 1 complying with the due
procedure of termination and there was no relationship of
master and servant between the Party No. 1 and the workman
and the Party No. 1 was exempted by the Central
Government from the ban imposed for engagement of
contract labourers, so contract was given to the security
contractor, as per rules, for supply of security guards and
due to the notification of the Government for abolition of
contract labour system, Home guards and Police personnel
were appointed as security guards and Party No. 1 has no
control over the workman and the security contractor was
submitting bills for payment for supply of security guards
and the security contractor was paying the wages to the
workman. It was further submitted by the learned advocate
for the Party No. 1 that the workman and some others had
approached the Hon'ble High Court, Nagpur Bench in W.P.
1389 of 1999 for the reliefs sought in this reference and the
Hon'ble High Court while depositing of the said petition
have held that the termination of the workman by the
contractor was a valid one and the action of FCI was legal
and as such, the workman cannot agitate the question again
and the decision of the Hon'ble High Court operates as
res-judicata between the parties and the workman is not
entitled to any relief.
8. First of all, I will take up the submission made by
the learned advocate for the Party No. 1 that the present
reference is hit by the principles of res-judicata, due to the
decision of the Hon'ble High Court, Nagpur Bench in W.P.
1389/99.
It is not disputed that the workman alongwith 78
others through the union, "Rashtriya Mazdoor Sena
Saptahit Jaibhim" filed Writ Petition no. 1389/99 before the
Hon'ble High Court of Judicature at Bombay, Nagpur Bench,
Nagpur, for their regularisation and the Hon'ble High Court
did not grant such relief. On perusal of the order passed by
the Hon'ble High Court on 29.07.2002 in the said writ
petition, it is found that the workman and others claimed
regularisation on the ground that they were employed by
the contractor for doing regular work of the Food
Corporation of India and in view of the same, they have
became workmen of Food Corporation of India, since the
work on which they were employed is of perennial nature.
However, it is found from the judgment that the Hon'ble
High Court did not consider the main relief and passed the
following order:
"In view of the judgment of the Constitution Bench
in Steel Authority of India Ltd. and others Vs.
National Union water front workers and others
(reported in 2001 (7) SCC1), the relief sought by the
petitioners cannot be granted since the petition
involves disputed question of facts as also other
facts which are required to be adjudicated by
appropriate authority. Accordingly, the main prayer
to absorb them cannot be granted.
XX
XX
XX
XX
In view of the rejection of the main prayer, the question
of granting other prayer does not arise. In case, the
petitioners approach the appropriate authority, the
appropriate authority shall take decision in the matter
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373
within a period of one year. The applicants are free to
approach the appropriate authority for redress of
their grievances."
So, it is clear from the orders passed by the Hon'ble
High Court as mentioned above that the Hon'ble High Court
did not consider the claim made by the workman and others
on merit and granted them the liberty to approach the
appropriate authority for redress. The Hon'ble High Court
in the decision reported in 2006(2) Bom.CR - 167 (Supra)
have held that, "Because Division Bench had not gone
into merits of the case the decision cannot operate as res-
judicata". Applying the principles settled by the Hon'ble
High Court, as mentioned above to the case in hand, the
reference cannot be said to be hit by the principles of res-
judicata. So, there is no force in the contention raised by
the learned advocate for the Party No. 1.
9. In this reference, it is never the case of the workman
that he was directly appointed or engaged by the Party
No. 1 as a security guard. In the very beginning of the
statement of claim, it has been mentioned by the workman
that he was initially engaged at Food Corporation of India
Depot, Wardha as a security guard, through a contractor.
In paragraph 4 of the statement of claim, the workman has
mentioned that, "In the year 1993, the workman was
engaged by the Food Corporation of India through
contractor, for the period of 2 years, but the contract was
made on paper." The case of the workman is that after
every two years, the Party No. 1 on papers showed the
change of contractors, but he was not disturbed from
services and he worked continuously without any break
till 14.03.1999 and as he worked as a security guard of
perennial nature, he is entitled for reinstatement in service.
The workman has also claimed that as the Central
Government issued notification on 01.11.1990 to abolish
the contract labour system in FCI and directed to give
employment to contract labours engaged by the
management and Party No. 1 implemented such direction
at Nagpur and Manmad only and gave employment and
regularized and absorbed the services of the Security Guards
working at Nagpur and Manmad and did not implement the
same at Wardha and other places to deprive him from the
benefits under the Labour Laws.
In his evidence on affidavit also, the workman has
mentioned that he was initially engaged in Food
Corporation of India as a Security Guard through a
contractor.
From the evidence on record and the own admission
of the workman in the cross-examination including the
specific admission that he was engaged by the contractor,
it is clear that the workman was engaged by the contractor.
The workman has not produced any evidence to show that
he was directly engaged by the Party No. 1.
10. At this juncture, I think it apropos to mention
about the principles enunciated by the Hon'ble Apex Court
regarding contract labours, in the decisions reported in
1985-II LLJ-4 (S.C.) (The workman of the Food Corporation
of India Vs M/s Food Corporation of India), 2001 LAB IC
3656 (S.C.) (Steel Authority of India Ltd. and others Vs.
National Union Water Front Workers and others) and 1994
II CLR 402 (R.K. Panda & Others Vs. Steel Authority of
India and Others).
In the decision reported in 1985-11 LLOJ-4 (supra)
the Hon'ble Apex Court have held that:—
'Briefly stated, when corporation engaged a
contractor for handling food grain at Siliguri Depot,
the corporation had nothing to do with the manner
of handling work done by the contractor, the labour
force employed by him, payments made by him etc.
In such a fact situation, there was no privity of
contract of employer and workmen between the
corporation and the workmen. "Workmen" has been
defined (omitting the words not necessary) in the
Industrial Disputes Act to mean (any person
including an apprentice) employed in any industry
to do.........." 'The expression' employed has at least
two known connotations, but as used in the
definition, the context would indicate that it is used
in the sense of a relationship brought about by
express or implied contract of service in which the
employee renders service for which he is engaged
by the employer and the latter agrees to pay him in
cash or kind as agreed between them or statutorily
prescribed. It discloses a relationship of command
and obedience. The essential condition of a person
being a workman within the terms of the definition is
that he should be employed to do the work in that
industry and that there should be, in other words, an
employment of his by the employer and that there
should be a relationship between the employer and
employee or master and servant unless a person is
thus employed there can be no question of his being
a "workman" within the definition of the term as
contained in the Act.
Dharangadhara Chemical Works Ltd. Vs. State of
Saurashtra (1957 - I - LLJ - 477). Now where a
contractor employs a workman to do the work which
he contracted with a third person to accomplish on
the definition as it stands, the workman of the
contractor would not without something more
become the workman of that third person. Therefore,
when the workmen employed by the contractor were
certainly not the workmen of the corporation and no
claim to that effect has been made by the union."
11. In the decision reported in 2001 LAB IC - 3656
(supra) the Hon'ble Apex Court have held that:—
"The principle that a beneficial legislation needs to
be constructed liberally in favour of the class for
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[PART II—SEC. 3(ii)]
whose benefit it is intended, does not extend to
reading in the provisions of the Act what the
legislature has not provided whether expressly or by
necessary implication, or substituting remedy or
benefits for that provided by the legislature. The
intendment of the CLRA Act is to regulate the
conditions of service of the contract labour and to
authorize in Section 10(1) prohibition of contract
labour system by the appropriate Government on
consideration of factors enumerated in sub-section
(2) of Section 10 of the Act among other relevant
factors. But, the presence of some or all those factors,
provide no ground for absorption of contract labour
on issuing notification under Section 10(1) by the
appropriate Government, is not alluded to either in
Section 10 or at any other place in the Act and the
consequence of violation of Sections 7 and 12 of the
CLRA Act is explicitly provided in Sections 23 and
25 of the CLRA Act, it is not for the High Courts or
the Supreme Court to read in some unspecified
remedy in Section 10 or substitute for penal
consequences specified in Sections 23 and 25 a
different sequel be it absorption of contract labour
in the establishment of principal employer or a lesser
or a harsher punishment. Such an interpretation of
the provisions of the statute will be far beyond the
principle of ironing out the creases and the scope of
interpretative legislation and as such clearly
impermissible.
Thus on issuance of prohibition notification under
S. 10(1) of the CLRA Act prohibiting employment of
contract labour or otherwise, in an industrial dispute
brought before it by any contract in regard to
conditions of service, the industrial adjudicator will
have to consider the question whether the contractor
has been interposed either on the ground of having
undertaken to produce any given result for the
establishment or for supply of contract labour for
work of the establishment under a genuine contract
or is a mere ruse/camouflage to evade compliance of
various beneficial legislations so as to deprive the
workers of the benefit there under. If the contract is
found to be not genuine but a mere camouflage, the
so called contract labour will have to be treated as
employees of the principal employer who shall be
directed to regularize the services of the contract
labour in the concerned establishment. If the contract
is found to be genuine and the principal employer
intends to employ regular workmen he shall give
preference to the erstwhile contract labour. It
otherwise found suitable, and, if necessary, by
relaxing the condition as to maximum age
appropriately taking into consideration the age of
the workers at the time of their initial employment by
the contractor and also relaxing the condition as to
academic qualifications other than technical
qualifications.
Air India's case 1997 AIR SCW430 Overruled
prospectively. M.A.T. Nos. 1704 and 1705 of 1999,
D/ - 12-8-1999 (Cal): C.O. No. 6545(W) if 1996, D/
- 9-5-1997(Cal): W.A. Nos. 345-354 of 1997m, D/
- 17-4-1998 (Kant): W.P. No. 4050 of 1999, D/
- 2-8-2000 (Bom) and W.P. No. 2616 of 1999, D/
- 23-12-1999 (Bom), 1998 Lab IC 2571 (Cal), Reversed.
It cannot be said that by virtue of engagement of
contract labour by the contractor in any work of or in
connection with the work of an establishment, the
relationship of master and servant is created between
the principal employer and the contract labour. Even
a combined reading of the definition of the terms
"Contract labour", "Establishment" and "Workman"
does not show that the legal relationship between
the person employed in any industry and the owner
of the industry is created irrespective of the fact as
to who has brought about such relationship. The
word "Workman" is defined in wide terms. It is a
generic term of which contract labour is a species. It
is true that combined reading of the terms
"Establishment" and "Workman" shows that a
workman engaged in any establishment would have
direct relationship with the principal employer as a
servant of master. But what is true of a workman
could not be correct of contract labour. When the
provisions of the Act neither contemplate creation
of direct relationship of master and servant between
the principal employer and the contract labour nor
can such relationship be implied from the provisions
of the action issuing notification under Section 10(1)
of the CLRA Act. A fortiori much less can such a
relationship be found to exist from the rules and the
forms made there under."
12. In the decision reported in 1994 II CLR 402 (Supra),
the Hon'ble Apex Court have held that:—
With the industrial growth, the relation between the
employer and the employees also has taken a new
turn. At one time the establishment being the
employer all persons working therein were the
employees of such employer. But slowly the employer
including Central and State Governments started
entrusting many of the jobs to contractors.
Contractors in their turn employed a worker, who
has no direct relationship with the establishment in
which they were employed. Many contractors
exploited the labourers engaged by them in various
manners including the payment of low wages. Hence,
the Contract Labour (Regulation and Abolition) Act,
1970 was enacted to regulate the employment of
contract labour in certain establishment and to
provide for its abolition in certain circumstances and
for matters connected therewith.
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The "Contract Labour" has been defined in Section
2 (1) (b) to mean a workman, who has been employed
as contract labour in or in connection with the work
of an establishment when he is hired in or in
connection with such work by or through a
contractor, with or without the knowledge of the
principal employer. Section 2 (1) (c) defines
"Contractor" to mean a person who undertakes to
produce a given result for the establishment, other
than a mere supply of goods or articles of manufacture
to such establishment, through contract labour or
who supplies contract labour for any work of the
establishment and includes a sub-contractor.
"Principal employer" has been defined to mean (i) in
relation to any office or department of the
Government or a local authority, the head of that
office or department or such other officer as the
government or the local authority, as the case may
be, may specify in this behalf and (ii) in a factory, the
owner or occupier of the factory. In view of section 10,
of the appropriate Government may after consultation
with the Central Board or, as the case may be, a state
Board, prohibit, by notification in the Official Gazette,
employment of contract labour "in any process,
operation or other work in any establishment," Sub-
section (2) of Section 10 requires that before issuing
any such notification, in relation to an
establishments, the appropriate Government shall
have regard to the conditions of work and benefits
provided for the contract labour in that establishment
and other relevant factors. One of the relevant
factors, which is to be taken into consideration is
whether the work performed by the contract
labourers is of perennial nature. Section 12 enjoins
that no contractor to whom this Act is applicable
shall undertake or execute any work through contract
labour except under and in accordance with a license
issued in that behalf by the licensing authority. The
license so issued may contain conditions in respect
of hours of work, fixation of wages and other essential
amenities in respect of contract labour as the
appropriate Government may deem fit to impose in
accordance with rules. Section 20 provides that if
any amenity required to be provided under section
16, section 17, section 18, or section 19 for the benefit
of the contract labour employed in an establishment,
is not provided by the contractor within the time
prescribed by the contractor within the time
prescribed therefore, such amenity shall be provided
by the principal employer within such time as may be
prescribed and all expensed incurred by the principal
employer in providing the amenity may be recovered
by the principal employer from the contractor "either
by deduction from any amount payable to the
contractor under any contract or as a debt payable
by the contractor". Section 21 says that a contractor
shall be responsible for the payment of wages to
each worker employed by him as contract labour but
at the same time in order to protect the interest of
such contract labour, it requires every principal
employer to nominate a representative duly
authorized by him to be present at the time of
disbursement of wages by the contractor. It shall be
the duty of the contractor to ensure the disbursement
of wages in the presence of the authorized
representative of the principal employer. Because of
sub-section (4) of section 21, if the contractor fails to
make payment of wages within the prescribed period,
then the principal employer shall be liable to make
payment of wages in full to the contact labour
employed by the contractor and recover the amount
so paid from the contractor. Any contravention of
the provisions aforesaid has been made penal for
which punishment can be imposed.
From the provisions referred to above, it is apparent
that the framers of the Act have allowed and
recognized contract labour and they have never
purported to abolish it in its entirety. The primary
object appears to be that there should not be any
exploitation of the contract labourers by the
contractor or the establishment. For achieving that
object, statutory restrictions and responsibilities have
been imposed on the contractor as well as on the
principal employer. Of course if any expenses are
incurred for providing any amenity to the contract
labourers or towards the payment of wages by the
principle employer he is entitled to deduct the same
from the bill of the contractor. The Act also conceives
that all appropriate government may after
consultation with the central board or the state board,
as the case may be, prohibit by notification in official
gazette, employment of contract labour in any
process, operation or other work in any
establishment, taking all facts and circumstances of
employment of contract labour in such process,
operation or the work into consideration.
Of late a trained amongst the contract labourers is
discernible that after having work for some years,
they make a claim that they should be absorbed by
the principal employer and be treated as employees
of the principal employer especially when the
principal employer is the central government or the
state government or an authority which can be held
to be state within the meaning of Article 12 of the
constitution, although no right flows from the
provisions of the act for the contract labourers to be
absorbed or to become the employees of the principal
employer. This court in the case of Gammon India
376
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
Limited V. Union of India (1974) I SCC 596, pointed
out the object and scope of the act as follows:—
"The Act was passed to prevail the exploitation of
contract labour and also to introduce better condition
of work. The Act provides for regulation and abolition
of contract labour. The underline policy of the Act is
to abolish contract labour, wherever possible and
practicable and where it cannot be abolished to
altogether, the policy of the Act is that the working
conditions of the contract labour should be so
regulated as to ensure payment of wages and
provisions of essential amenities. This is why the
Act provides for regulated conditions of work and
contemplates' progressive abolition to the extent
contemplated by Section 10 of the Act.
In the case of B.H.E.L. Workers' Association V. Union
of India, 1985 I CLR SC 165 = (1985) 1 SCC 630 it was
pointed out that Parliament has not abolished the
contract labour as such but has provided for its
abolition by the Central Government in appropriate
cases under section 10 of the Act. It is not for the
court to enquire into the question and to decide
whether the employment of contract labour in any
process, operation or other work in any establishment
should be abolished or not. That has to be decided
by the government after considering the relevant
aspects as required by Section 10 of the Act. Again
in the case of Mathura Refinery Mazdoor Sangh V.
Indian Oil Corporation Ltd., 1991 I CLR 684, this court
refused to direct the Indian Oil Corporation Ltd., to
absorb the contract labourers in its employment
saying that, the contract labourers have not been
found to have direct connection with the refinery. In
other words, there was no relationship of employer
and employee between the Indian Oil Corporation
Ltd. and the contract labourers concerned. Again in
Dena Nath V. National Fertilizers Ltd., 1992 I CLR 1,
this court pointed out that the aforesaid Act has two
purposes to serve (i) to regulate the conditions of
service of the worker employed by the contractor
who is engaged by a principal employer and (ii) to
provide for the abolition of contract labour altogether,
in certain notified processes, operation or other works
in any establishment by the appropriate government,
under section 10 of the Act. It was further stated that
neither the Act nor the Rules framed by the central
government or by any appropriate government
provide that upon abolition of contract labour, the
labourers would be directly absorbed by the principal
employer.
It is true that with passage of time and purely with a
view to safeguard the interests of workers, many
principal employers while renewing the contracts
have been insisting that the contractor or the new
contractor retains the old employees.
Infact such
a condition is incorporated in the contract itself.
However, such a clause in the contract which is
benevolently inserted in the contract to protect the
continuance of the source of livelihood of the
contract labour cannot by itself give rise to a right to
regularization in the employment of the principal
employer. Whether the contract labourers have
become the employees of the principal employer in
course of time and on whether the engagement and
employment of labourers through a contractor is a
mere camouflage and a smoke screen, as has been
urged in this case, is a question of fact is to be
established by the contract labourers on the basis of
the requisite material. It is not possible for High Court
or this court, while exercising writ jurisdiction or
jurisdiction under Article 136 to decide such
questions only on the basis of the affidavits. It need
not to be pointed out that in all such cases, the
labourers are initially employed and engaged by the
contractors. As such at what point of time a direct
link is established between the contract labourers
and the principal employer, eliminating the contractor
from the scene, is a matter which has to be established
on material produced before the court. Normally, the
Labour Court and the Industrial Tribunal, under the
Industrial Disputes Act are the Competent. Fora to
adjudicate such disputes on the basis of the oral and
documentary evidence produced before them."
So, keeping in view the principles enunciated by the
Hon'ble Apex Court in the decisions mentioned above, the
present case in hand is to be considered.
13. In this case, the letter No. U-23013/11/89/LW
dated 28.05.92, Govt. of India, Ministry of Labour shows
that the prohibition of employment of contract labour in
sweeping, cleaning, dusting and watching of buildings
owned or occupied by the establishments of Food
Corporation of India and some other departments was lifted
by the Central Government. So, the engagement of contract
labour by the Party No. 1 cannot be said to be illegal. It is
also found from the materials on record that the appointment
of labour contractor by Party No. 1 for supply of Security
Guards was genuine and the same was not only on papers
as claimed by the workman. The workman has failed to
prove such claim by adducing cogent or reliable evidence.
The engagement of labor contractor by Party No. 1 was
not a mere ruse or camouflage to evade compliance of the
various beneficial legislations, so as to deprive the workman
of the benefits there under. The workman has not been
able to produce any document to show that at any point of
time, Party No. 1 paid him wages as their employee. As it is
clear from the evidence on record that the workman was
engaged as a contract labour with Party No. 1, by the
contractor, it can be held that there was no relationship of
master and servant between the Party No. 1 and the
workman. Hence, there was no question of termination of
¹Hkkx II—[k.M 3(ii)º
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377
the services by the Party No. 1 or compliance of the
provisions of Sections 25-F or 25-H of the Act.
14. It is the own case of the workman that he was
engaged by the contractor. So the contractor, who had
engaged the workman, is a necessary party in the reference.
The said contractor has not been added as a party in this
reference. Due to non-joinder of necessary party, the
reference is bad in law.
In view of the materials on record and the discussions
made above, the reference cannot be answered in favour
of the workman. Hence, it is ordered:—
ORDER
The reference is answered in the negative. The
workman is not entitled to any relief.
J.P. CHAND, Presiding Officer
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New Delhi, the 27th December, 2013
S.O. 186.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 19/2003)
of the Cent.Govt Indus.Tribunal-cum-Labour Court,
NAGPUR as shown in the Annexure, in the industrial
dispute between the management of Chandrapur Area of
Western Coal Fields Ltd. and their workmen, received by
the Central Government on 27/12/2013.
[F.No. L-22012/24/2002-IR(CM-II)]
M.K. SINGH, Section Officer
ANNEXURE
BEFORE SHRI J.P.CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No.CGIT/NGP/19/2003
Date: 27.11.2013.
Party No.1:
The Chief General Manager,
Chandrapur Area of Western
Coalfields Ltd.
Post & Distt:- Chandrapur (MS).
Versus
Party No.2:
Shri Suryapal Durgaprasad Awasti,
Indira Rashtriya Kolya Khadan Kamgar
Sangh, 2-CH Qrt. 3, Mahakali Colliery,
Post & Distt:- Chandrapur (MS).
AWARD
(Dated: 27th November, 2013)
In exercise of the powers conferred by clause (d) of
sub-section (1) and sub section 2(A) of section 10 of
Industrial Disputes Act, 1947 (14 of 1947) ("the Act" in
short), the Central Government has referred the industrial
dispute between the employers, in relation to the
management of WCL and their workman, Shri Suryapal
Awasti, for adjudication, as per letter No.L-22012/24/2002-
IR (CM-II) dated 28.11.2002, with the following schedule:-
"Whether the action of the management of
Chandrapur Area of Western Coalfields Ltd., in not
protecting the pay of Shri Suryapal Durgaprasad
Awasti Loader, Mahakali Colliery, in terms of the
settlement dated 02.11.1991 and the office order dated
10.02.2000 is legal and justified? If not, to what relief
is the workman entitled?"
2. On receipt of the reference, the parties were noticed
to file their respective statement of claim and written
statement and accordingly, the workman, Shri Surypal
Awasti, (the workman" in short), filed the statement of claim
and the management of WCL, ("Party No. 1" in short) filed
their written statement.
The case of the workman as presented by the union
in the statement of claim is that it is a registered under the
Trade Unions Act, 1926 and the Party No. 1 is a government
company owned and controlled by the Central Government
and is a "State" under Article 12 of the Constitution of
India and under the approval of Ministry of Coal, Central
Government constituted a Joint Bipartite Committee for
the Coal Industry ("JBCCI" in short) consisting of all
employers of Coal Industry and the five central Trade
unions and the JBCCI jointly deliberated over the wage
structure including dearness allowance, fitment in revised
scale of pay, Pension, fringe benefits, service conditions
and other allied matters including welfares/ safety measures
and such deliberations is known as "National Coal Wage
Agreements" ("the NCWAs" in short) and the JBCCI has
several committees and sub-committees for proper and
uniform implementation of the provisions of NCWA in the
entire Coal Industry and for maintaining uniformity and
proper implementation, the Secretary, JBCCI issues
implementation instructions from time to time and no
unilateral decision can be taken by any subsidiary in
contravention of the provisions contained in the NCWAs
and the provisions are mandatory and binding on all coal
companies including WCL and so far seven NCWAs have
been deliberated by JBCCI, known as NCWAs-I, II, III, IV,
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THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
V, VI, and VII dated 11.12.1974, 11.08.1979, 27.07.1989,
19.01.1996, 23.12.2000 and 15.07.2005 with period of
operation of the said NCWAs from 01.01.1975 to 31.12.1978,
01.01.1979 to 31.12.1982, 01.01.1983 to 31.12.1986, 01.01.1987
to 30.06.1991, 01.07.1991 to 30.06.1996, 01.07.1996 to
30.06.2001 and 01.02.2001 to 30.06.2006 respectively and
the workman was appointed as a piece rated loader in group
V-A on 26.10.1978 and a memorandum of settlement dated
02.11.1992 was arrived under section 12 (1) of the Act
between the Party No.1 and their workmen represented by
Rashtriya Koyla Khadan Mazdoor Sangh (INTUC)
("R.K.K.M.S." in short) and the terms of the said settlement
have become the terms and conditions of service of the
employees and are binding on the management and the
employees and in terms of NCWA-V all the workmen are
given minimum benefit of Rs. 235/- per month or Rs.9.04
per day inclusive of interim relief over and above the wages
prescribed under NCWA-IV and the workman was getting
104.93 paise per day basic of group V-A of loader as
Rs. 35.54 paise as special piece rate allowance, besides
dearness etc in accordance with the provision of NCWA-V
and the workman was transferred by Party No.1 from loader
job to Trammer's job on surface sometime in January, 1999,
but he was carrying the designation of loader piece rated
group V-A and was getting protection of Group V-A basic
and SPRA i.e. Rs. 104.93 + Rs. 35.54 P per day respectively
till August, 1999 and party no.1 arbitrarily, whimsically and
without any written order or notice reduced the wages of
the workman and started paying him basic of Rs. 68.90
instead of Rs. 104.93 p per day and stopped payment of
SPRA and the Suptd./ Manager of Mahakali colliery issued
office order No. 1139 dated 22.06.2002 by which, the
workman was converted from loader (piece rated worker)
to time rated worker as Trammer in cat.-III and as per
NCWA-VI, the basic of loaders was fixed at Rs. 203.69 p
and SPRA of Rs. 3.14 per day by Party No.1 w.e.f. 01.07.1996
and as such, the workman was entitled to get protection of
the basic wages of group V-A i.e. Rs.203.69 and SPRA from
01.07.1996 to 22.06.2002 and so also, on and from 22.06.2002
and all consequential benefits and inspite of his
representations, Party No.1 did not protect his wages, even
though, such protection was given by Party No.1 to other
employees.
The union had prayed to give the workman the
protection of his wages of loader group V-A w.e.f. 01.09.1992.
3. The Party No.1 in the written statement has pleaded
inter-alia that the workman was working as a loader at
Mahakali colliery and he applied in writing vide his letter
dated 06.10.1998 for putting him on light job, which was
given to him as because, he had received injury while on
duty on 18.06.1998 and again on 17.01.1999, 18.01.1999 and
09.02.1999, the workman applied for a regular and permanent
job in time rated, on the ground of his having constant
pain in his waist and weak eye sight and the Manager/
Superintendent of Mines vide letter dated 23.03.1999 gave
a detailed reply to the workman explaining the position of
his alleged accident and also conveying that it would not
be possible to post him in light time rated job and to pay
the wages of a loader and in the meanwhile, whenever the
workman was deployed in time rated category, he was paid
the wages of a loader, as the same was on interim
arrangement and since the arrangement could not be
continued indefinitely and so also keeping in view the
policy decision of the company, the workman was ultimately
placed in the regular post of trammer in cat.III w.e.f.
22.06.2002 and while placing him in cat.III, his wage was
fixed at the midpoint of the said category and along with
the workman, 25 more employees were brought to daily
rate from the job of loader and they were also given similar
treatment.
It is further pleaded by the Party No.1 that the
workman had been claiming a series of accidents to him at
almost regular interval, but he had never been declared
medically unfit for his normal duty and a careful study of
his various representations on the subject revealed that
his pleas were more pretentious than realities and even
then also, the management being sympathetic,
accommodated him from time to time in alternative light
jobs to the extent possible and protested his wages as a
loader and for dealing with the cases of employees involved
in the accident, while on duty, a policy decision was taken
at company level and circulated to the areas and in
accordance with the circular, till a loader injured on duty
was not regularly and permanently deployed in time rated
job, he was to be paid group wages. However, on his
permanent absorption in time rated on his option, he was
to be placed in time rated category at its initial basic and
such guidelines has neither been cancelled nor withdrawn
and normally, it is being pleaded by the unions including
the one involved in this reference that in accordance with
the settlement dated 02.11.1992, all loaders, who are
converted from piece rated to time rated should be given
protection of group wages irrespective of their request for
conversion and such interpretation is not correct and at
para 1(I) of the said settlement which is based on
humanitarian consideration, the management had agreed
to provide alternative light job to the employee particularly
to loaders, who are physically weak due to old age, sickness
or injured on duty, irrespective of vacancies and in such
cases, there was no stipulation of protection of wage and
the case of the workman falls specifically under this clause
and under para 1(2) of the settlement, the management
agreed to till up 50% of the vacancies accruing in time
rated categories amongst the piece rated workers, who have
completed at least 15 years of service and following para
1(2), in para 1(3), it was agreed that management shall on
conversion from piece rated to time rated, protect the group
wage of the piece rated workers and application of para
1(3) specifically confined to cases covered by para 1(2)
and since there were controversies about the
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379
interpretations and implementation of the settlement, the
RKKMS union, with whom the settlement dated 02.11.1992
was signed and the management modified the settlement
vide agreement dated 31.10.1995 and as per the modified
settlement, such piece rated workers, who opt for time rated
jobs are to be placed in the corresponding category at the
mid point of the wage scale and as the workman opted
himself for time rate, he was rightly place at midpoint of
time rate on being permanently deployed in the said post
and the agreement dated 31.10.1995 has not been
challenged by any union/workers and the same continues
to remain in force and unless the same is challenged and
declared null and void, through appropriate proceedings
under the Act, its applicability cannot be questioned under
a proceeding like this and when a piece rated loader opts
for a time rated job in lower grade and is actually working in
the lower category, he cannot valid claim the benefits of
the piece rated job including wages and the workman is
therefore not entitled to any relief.
4. In the rejoinder, it is pleaded by the union that the
case of the workman is a case of injury on duty and in view
of the settlement dated 02.11.1992, he is entitled for the
protection of his wages and management has
misrepresented the facts and interpretations of the
settlement dated 02.11.1992 and the workman is entitled for
protection of his wages.
5. Besides placing reliance on documents, both the
parties have led oral evidence in support of their respective
claims.
On behalf of the union, the workman and one
Shri Dinesh Pandurang Teleng have been examined as the
two witnesses, where as shri Shrikrishna Shelke has been
examined as the only witness on behalf of the Party No. 1.
The examination-in-chief of the witnesses for the parties is
on affidavit and they have reiterated the facts mentioned
in the statement of claim and written statement respectively
in their respective evidence on affidavit.
In his cross-examination, the workman has admitted
that Exts. M-I toM-IV are the copies of the letters submitted
by him to Party No. 1.
6. It is necessary to mention here that during the
pendency of the reference, the workman expired. Advocate
for the workman intimated the death of the workman on
16.07.2003, by filing a pursis. Though the reference was
adjourned twice and sufficient opportunity was given for
substitution of the legal heirs of the deceased workman,
the legal heirs of the workman if any were not substituted.
As none appeared on behalf of the union to contest the
case, the evidence of the witness for the Party No.1
remained unchallenged. It is also to be mentioned that as
parties did not appear on 19.09.2013 and 28.10.2013, the
case was closed and was fixed for award.
7. Perused the record including the office order dated
10.02.2000, settlement dated 02.11.1992 and modification
dated 31.10.1995. So far the office order dated 10.02.2000 is
concerned, the same relates to the cases of demoted
employees and not to employees converted from piece
rated to time rated. As the case of the deceased workman
was not a case of demotion to lower category, the office
order dated 10.02.2000 had no application to his case.
On perusal of the materials on record, it is found that
there is nothing on record to show that the workman was
declared medically unfit to do his original job of loader. It is
also found that on the request of the workman as per Exts.
M-I to M-Iv, the workman was given permanent light job
and as posted as Trammer cat.III. Hence, there was no
illegality in fixing the wages of the workman at midpoint of
trammer category-III and not protecting his wages of loader.
Hence, it is ordered:—
ORDER
The action of the management of Chandrapur Area
of Western Coalfields Ltd., in not protecting the pay of
Shri Suryapal Durgaprasad Awasti Loader, Mahakali
Colliery, in terms of the settlement dated 02.11.1992 and the
office order dated 10.02.2000 is legal and justified. The
workman is not entitled to any relief.
J.P. CHAND, Presiding Officer.
ubZ fnYyh] 27 fnlEcj] 2013
dkñvkñ 187.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj osLVuZ dksyQhYMl
fyfeVsM ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèdj.k@Je U;k;ky ukxiqj ds iapkV ¼lanHkZ la[;k 31@2012½ dks
izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 27@12@2013 dks izkIr gqvk
FkkA
[Qkñ lañ ,y&22012@179@2012&vkbZ vkj ¼lh&,e&II½]
,eñ dsñ flag] vquHkkx vf/kdkjh
New Delhi, the 27th December, 2013
S.O. 187.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 31/2012)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
NAGPUR as shown in the Annexure, in the industrial
dispute between the management of Western Coalfields
Ltd, and their workmen, received by the Central Government
on 27/12/2013.
[F. No. L-22012/179/2012 - IR(CM-II)]
M. K. SINGH, Section Officer
380
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
ANNEXURE
BEFORE SHRI J.P. CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No. CGIT/NGP/31/2012
Date: 18.11.2013.
Party No. 1 :
The Suptd. of Mines/Manager,
Western Coalfields Ltd.,
Patansaongi Mine, Tq. Saoner,
Distt. Nagpur.
Party No. 2 :
The Assistant General Secretary,
Rashtriya Koyla Khadan Mazdoor
Sangh (INTUC), 604, Giripeth, Nagpur.
ORDER
(Dated: 18th November, 2013)
In exercise of the powers conferred by clause (d) of
sub-section (1) and sub-section 2(A) of section 10 of
Industrial Disputes Act, 1947 (14 of 1947) ("the Act" in
short), the Central Government has referred the industrial
dispute between the employers, in relation to the
management of Western Coalfields Limited and their
workman, Shri C.G. Moje, for adjudication, as per letter No.L-
22012/179/2012-IR (CM-II) dated 30.11.2012, with the
following schedule:—
"Whether the action of the management of Western
Coalfields Ltd., Patansaongi Mine TQ Saoner Distt.
Nagpur through its Suptd. of Mines/Manager in
terminating the services of Sh. C.G. Moje, an Ex-Clerk
Grade-I of Patansaongi Mines of WCL w.e.f.
26.08.2006 is legal and justified. To what extent, the
workman is entitled for relief"
This order arises out of the application filed by the
management for dismissal of the reference as not
maintainable or infructuous.
2. The case of the management is that it is the
admitted fact that the services of the workman was
terminated vide order dated 25.08.2006 w.e.f. 26.08.2006,
after conducting of the departmental enquiry against him
and the departmental appeal filed by the workman against
the order of punishment of his termination from services
was rejected on 25.05.2007 and the Hon'ble High Court in
W.P. No. 2986/2008, by order dated 08.08.2008, set aside
the order of the appellate authority rejecting the appeal
and the workman was permitted to file fresh departmental
appeal and the fresh departmental appeal filed by the
workman was partly allowed vide order dated 21.11.2008
and the workman did not challenge the order dated
21.11.2008 and the same attained finality and by order dated
22.11.2008, the workman was reappointed as General
Mazdoor Category-I with initial basic pay, with continuity,
but without back wages with a direction to post him outside
Nagpur and the workman did not join duties in terms of the
order dated 21.11.2008 and thereafter, a settlement was
arrived at by it and the workman in terms of the order dated
21.11.2008 in form-H on 31.12.2009 and the settlement was
duly signed by the parties and after signing the said
settlement, the workman joined in service and he is
performing his duties till date and the workman with an
after- thought, raised the dispute before the ALC (Central),
Nagpur for the first time after a gap of almost two years, on
17.06.2011, challenging the termination order dated
25.08.2006 and even though, it (management) had brought
the above facts to the notice of the ALC (Central), the ALC
submitted the failure report to the Central Government and
inspite of the fact that the termination order was no more in
existence in view of the order dated 21.11.2008 and
settlement dated 31.12.2009, this reference was made by
the Central Government by letter dated 31.11.2012 and the
workman has filed the statement of claim on 03.04.2013 (the
statement of claim was actually filed on 22.04.2013),
challenging the order of his dismissal from services w.e.f.
26.08.2006 (the workman in his statement of claim has
wrongly mentioned the date of his dismissal from services
as 24.08.2006 instead of 26.08.2006) and the order dated
25.08.2006 terminating the services of the workman w.e.f.
26.08.2006 is no more in existence, the same being modified
by the order of the appellate authority dated 21.11.2008
and in terms of the settlement dated 31.12.2009, there could
not be any reference for adjudication by this Tribunal and
therefore, the reference is liable to be rejected as not
maintainable or to be rejected as infructous.
3. The workman in his say to the application has
pleaded that the application has been filed only to prolong
the reference and when the reference has been made by
the appropriate Government to this Tribunal for
adjudication and to pass the award in terms of the schedule
of reference, the Tribunal has to adjudicate the dispute
and to pass the award on merit and the management is not
entitled to claim the dismissal of the reference and for that
the application is liable to be rejected. In his say, the
workman has further contented that the result of the
departmental appeal preferred by him against the order of
his termination from services rejected on 25.05.2007 was
not communicated to him and he had filed writ petition No.
2986/2008 and as per the orders of the Hon'ble High Court
passed in writ petition No. 2986/2008, he filed the
departmental appeal afresh and the same was allowed in
part by the Appellate Authority vide order dated 21.11.2008
and he challenged the order passed by the Appellate
Authority before the Chairman-Cum-Managing Director
on 20.08.2009 and also filed the writ petition No. 2986/2008
and the contentions raised by the management are totally
false and misleading and the claim of the management that
the reference is not maintainable is baseless, far from the
truth and bad in law and if it is so, then the government
would have never referred the dispute for adjudication and
the reference is required to be decided on merit after filing
of the written statement by the management and the
application is liable to be rejected.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
381
4. On perusal of the statement of claim, documents
filed by the workman, the contentions raised in the
application filed by the management and in the reply of the
workman to the application and submissions made by the
learned advocates for the parties, the following admitted
facts are found:—
(a) Charge sheet dated 24.07.2004 was served on the
workman.
(b) A departmental enquiry was conducted by the
management against the workman to make enquiry
on the charges levelled against him in the charge
sheet dated 24.07.2004.
(c) The workman was terminated from the services as
per order dated 25.08.2006, w.e.f. 26.08.2006.
(d) The workman preferred an appeal against the order
of punishment before the Appellate authority, but
the appeal was dismissed.
(e) The workman filed writ petition No. 2986 of 2008,
before the Hon'ble High Court, Nagpur Bench,
Nagpur, challenging the order of dismissal and
rejection of his appeal dated 01.09.2006.
(f) Writ petition 2986/2008 was disposed of by the
Hon'ble Court by order dated 08.08.2008, with a
direction to the management to consider the appeal
of the workman afresh.
(g) The management considered the appeal filed by the
workman afresh and by order dated 21.11.2008 the
appeal of the workman was allowed in part and the
appellate authority by order dated 21. 11.2008 passed
orders for the reappointment of the workman as a
General Mazdoor, Category-I with initial basic pay
and with continuity in service, but without back
wages and to post him outside Nagpur.
(h) There was a settlement between the workman and
the management on 31.12.2009.
(i) In view of the settlement dated 31.12.2009, the
workman joined the service of the management.
(j) After joining the service, for the first time, the workman
raised the dispute about termination of his service,
on 17.06.2011.
(k) The reference has been made by the Central
Government by letter dated 30.11.2012 for
adjudication to this Tribunal with the schedule :—
"Whether the action of the management of Western
Coalfields Ltd., Patansaongi Mine TQ Saoner Distt.
Nagpur through its Suptd. of Mines/Manager in
terminating the services of Sh. C.G. Moje, an Ex-Clerk
Grade-I of Patansaongi Mines of WCL w.e.f.
26.08.2006 is legal and justified. To what extent, the
workman is entitled for relief?"
5. It is to be mentioned here that it is well settled by
the Hon'ble Apex Court in a number of decisions that
common law principles of estoppels, waiver and
acquiescence are applicable in an industrial adjudication.
6. In this case, it is crystal clear from the admitted
facts as mentioned above that the workman had approached
the Hon'ble High Court Nagpur Bench, Nagpur
Challenging the legality of the order of his termination w.e.f.
26.08.2006 in writ petition No. 2986/2008 and as per the
direction of the Hon'ble High Court, the appeal filed by the
workman a fresh was considered by the concerned appellate
authority and the appellate authority allowed the appeal in
part and as per order dated 21.11.2008, the appellate
authority directed the appointment of the workman as
General Mazdoor, Category-I and the workman also signed
a settlement with the management in Form-H on 31.12.2009
and then joined in services and is continuing in service. It
is also not disputed that the dispute was raised before the
ALC by the workman for the first time on 17.06.2011, on
which date the impugned order dated 25.08.2007,
terminating the services of the workman w.e.f. 26.08.2007
was not in existence. Hence, the claim of the workman
challenging the order of his termination w.e.f. 26.08.2007 is
hit by the provision of estoppels, waiver and acquiescence
and not maintainable.
Hence, the application filed by the management is
allowed. The reference is disposed of as not maintainable
and as such, the workman is not entitled to any relief.
J. P. CHAND, Presiding Officer
ubZ fnYyh] 27 fnlEcj] 2013
dkñvkñ 188.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj osLVuZ dksyQhYMl
fyfeVsM ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèdj.k@Je U;k;ky;] ukxiqj ds iapkV ¼lanHkZ la[;k 89@2004½
dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 27@12@2013 dks izkIr
gqvk FkkA
[ Qkñ lañ ,y&22012@399@2003&vkbZ vkj ¼lh&,e&II½]
,eñ dsñ flag] vquHkkx vf/kdkjh
New Delhi, the 27th December, 2013
S.O. 188.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 89/2004) of
the Cent. Govt. Indus.Tribunal-cum-Labour Court, Nagpur
as shown in the Annexure, in the industrial dispute between
the management of Wani Area Ghugus of Western
Coalfields Ltd., and their workmen, received by the Central
Government on 27/12/2013.
[F. No. L-22012/399/2003-IR(CM-II)]
M. K. SINGH, Section Officer
382
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
ANNEXURE
BEFORE SHRI J.P. CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No.CGIT/NGP/89/2004
Date: 22.11.2013.
Party No. 1
The Addl. General Manager,(Operation),
Wani Area Ghugus of Western Coalfields
Ltd., Po. Ghugus Colliery, Tab. & Distt.
Chandrapur. (MS).
Versus
Party No. 2
Sh. Lomesh Khartad, General Secretary,
National Colliery Workers Congress,
Dr. Ambedkar Nagar, Ballarpur,
Po. & Tab. Ballarpur, Distt.Chandrapur.
AWARD
(Dated: 22nd November, 2013)
In exercise of the powers conferred by clause (d) of
sub-section (1) and sub-section 2(A) of section 10 of
Industrial Disputes Act, 1947 (14 of 1947) ("the Act" in
short), the Central Government has referred the industrial
dispute between the employers, in relation to the
management of WCL and the applicant, Shri Gajanan
Sadashiv Gaurkar, for adjudication, as per letter No.L-22012/
399/2003-IR (CM-II) dated 04.10.2004, with the following
schedule:—
"Whether the action of the management in relation
to Wani Area Ghugus of WCL not providing
employment to Shri Gajanan Sadashiv Gaurkar, the
dependent of Late Namdeo Ganpat Wararkar,
Watchman, Nakoda Incline of Wani Area WCL within
two months of making the application as provided
under Implementation Instruction No. 18 dated
01.11.1979 under the NCWA-II is legal & justified? If
not, to what relief the workman is entitled?"
2. On receipt of the reference, the parties were noticed
to file their respective statement of claim and written
statement and accordingly, the union, "National Colliery
Workers Congress", (the union" in short), filed the
statement of claim on behalf of the applicant Shri Gajanan
Sadashiv Gaurkar and the management of WCL, ("Party
No. 1" in short) filed its written statement.
The case of the applicant as projected by the union
in the statement of claim is that it (union) is a registered
Trade Union under the Trade Unions Act, 1926 and Party
No.1 is a government company and is a state within
Article 12 of the Constitution of India and under the
approval of Ministry of Coal, Central Government
constituted a Joint Bipartite Committee for the Coal
Industry ("JBCCI" in short) consisting of all employers of
Coal Industry and the five central Trade Unions and the
JBCCI jointly deliberated over the wage structure including
dearness allowance, fitment in revised scale of pay, Pension,
fringe benefits, service conditions and other allied matters
including welfares/ safety measures and such deliberations
is known as "National Coal Wage Agreements" ("the
NCWAs" in short) and the JBCCI has several committees
and sub-committees for proper and uniform implementation
of the provisions of NCWA in the entire Coal Industry and
for maintaining uniformity and proper implementation, the
Secretary, JBCCI issues implementation instructions from
time to time and no unilateral decision can be taken by any
subsidiary in contravention of the provisions contained in
the NCWAs and the provisions are mandatory and binding
on all coal companies including WCL and so far seven
NCWAs have been deliberated by JBCCI, known as
NCWAs-I, II, III, IV, V, VI, and VII dated 11.12.1974,
11.08.1979, 27.07.1989, 19.01.1996, 23.12.2000 and 15.07.2005
with period of operation of the said NCWAs from 01.01.1975
to 31.12.1978, 01.01.1979 to 31.12.1982, 01.01.1983 to
31.12.1986, 01.01.1987 to 30.06.1991, 01.07.1991 to 30.06.1996,
01.07.1996 to 30.06.2001 and 01.02.2001 to 30.06.2006
respectively.
The further case as presented is that deceased
Ganpat Wararkar was a permanent workman at Nakoda
Incline and was working as a Watchman and he died on
20.07.1998, while he was in service and the family members
of the deceased workman informed the Party No.1 about
the death of the workman and on the basis of records,
Party No.1 struck off his name from the rolls vide office
order No. 2377 dated 25.07.1998 and under NCWA-II, the
Secretary JBCCI issued implementation instruction No. 18
dated 01.11.1979 regarding provisions of employment to
dependent of deceased employees within two months of
receipt of application by the management and the applicant,
the son-in-law of the deceased workman applied for
employment alongwith the required documents and the
Senior Personnel Officer (IR), Nagpur vide letter No. 1116
dated 22/25.04.2000 asked the Area Personnel Manager,
Wani Area for some more papers and the said documents
were submitted by the applicant and the Personnel Manager
(IR) Wani Area again asked for some records from Manager,
Nakoda Incline vide letter No. 89 dated 25/26.11.2001 relating
to the issue of employment of the applicant and its (union)
President took up the case of the applicant with the Director
(Personnel) of Party No.1 vide letter dated 27.08.2003, but
party no.1 neither considered the case of the applicant nor
gave any reply and Party No.1 on the pretext of one or the
other, delayed and deprived the applicant from employment
and Party No.1 issued letter No. 975 dated 31/22.11.2003
asking for some more documents and the applicant
submitted the desired documents vide his letter 01.12.2003
addressed to Senior Personnel Manager and even then, as
there was no further response from the Director (Personnel)
of Party No.1, its President took up the matter with the
Chairman-Cum-Managing Director vide letter dated
05.12.2003, which also remained unreplied. It is further
pleaded by the union that the senior Personnel Manager,
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
383
Gughus again asked for the death certificate of the deceased
workman and his son vide letter No. 1060 dated 12.12.2003,
which were already demanded earlier, however, the
applicant submitted the same again and still then, as no
employment was given to the workman, the applicant raised
the dispute before the ALC (C), Nagpur and on failure of
the conciliation, failure repot was submitted to the Central
Government and the Central Government referred the
dispute for adjudication to this Tribunal. It is also pleaded
by the union that number of employments were given by
the Party No.1 from 86-87 to 2004-2005 to the dependents
of the employees including son-in laws, under the specific
provision of "social security' of NCWAs, but Party No.1
did not provide employment to the workman or the widow
of the deceased workman and even did not provide
monetary compensation to the widow of the deceased
workman.
The union has prayed to direct the Party No.1 to
give employment to the applicant and to pay monetary
compensation to the widow of the deceased workman from
two months after submission of the application by the
applicant till the actual date of giving employment to the
applicant.
3. The Party No.1 in the written statement has
pleaded inter-alia that the applicant is not a workman as
mentioned by the Central Government in the Schedule of
reference and the applicant cannot be termed as a workman
and implementation instruction No. 18 dated 01.11.1979
under NCWA-II has lost its value, as NCWA-II itself has
been superseded by NCWAs-III, IV, V, VI and VII, wherein,
the provision with regard to providing employment to
dependents have undergone changes and even otherwise
also, implementation instruction no. 18 contemplates clear
and undisputed cases where the status of the dependant
is not questioned and in this case, it is disputed as to
whether the applicant was the legally dependant of the
deceased workman. It is further pleaded by the Party No.1
that the raising of the dispute and the reference of the
same by the Ministry for adjudication was/is premature in
view of the fact that the claim of the applicant was processed
by the local area management for forwarding the same to
the headquarters at which level, providing employment to
dependant is decided and due to such reference, further
action by it on the application of the applicant is kept in
abeyance and as it has not finally rejected or accepted the
claim, the question of raising an industrial dispute and its
maintainability does not arise and the union which has
raise the dispute is registered at Dhanbad in the State of
Jharkhand and the dispute has been raised by one Shri
Lomesh Khartad as the General Secretary of the union and
as shri Khartad is not elected as the General Secretary of
the union in accordance with the constitution, he has no
locus standi to raise the instant dispute and the union is
not a union of the workman of Gughus and there is no
community of interest between the workers of Ghugus and
the applicant on whose behalf the dispute has been raised
and as such, the union is not entitled to raise the dispute
and the dispute is not an industrial dispute.
The further case of Party No.1 is that on the death of
the workman, Late Namdeo Ganpat Wararkar on 20.07.1998,
his name was struck off from the rolls vide office order
dated 25.07.1998 and according to the records available
with it, the deceased workman apart from his widow had
three daughters and one son, and it was learnt that the son
of the deceased workman pre-deceased the workman and
all his three daughters are married and are living with their
respective husbands' family and at the time of the death of
the workman none of his daughters or son-in-laws was
staying with him and none of them claimed employment in
his place for employment and widow of the workman
submitted application for payment of gratuity and she was
paid 100% amount and it was also learnt that the 2nd
daughter, Saraswati was married to the applicant on
20.05.1991, nearly seven years prior to the death of the
deceased workman and it was neither certified nor any
documentary proof was furnished to show that the applicant
was staying with the deceased workman at the time of his
death and almost wholly dependent upon him and the
applicant was not dependent upon the deceased workman
and this was made only on 03.02.2002, after a gap of about
four years by the applicant and employment was claimed
only on the basis of the relationship of father-in-law / Son-
in-law and it was not claimed that the applicant was wholly
dependent upon his father-in-law and the marriage
certificate of the applicant also indicated that he was already
employed as a mazdoor at the time of the marriage and in
view of clause 9.3.3 of NCWA-VI, the direct dependent,
the widow being available, the son-in-law being an
indirect dependant is not eligible for employment and the
applicant was not wholly dependent upon his father-in-
law at the time of his death and since, the issue of providing
employment to the widow is not under reference, it does
not want to go in detail about it. It is also pleaded by Party
No.1 that since the case of the applicant is a complicated
and unusual case and needed through scrutiny of
documents and had to be processed to different authorities.
What time was consumed was procedural and not deliberate
and the applicant himself is responsible for the delay as he
submitted his application in February, 2002, four years after
the death of the deceased workman and the widow of the
deceased workman has not preferred any claim either for
her employment or monetary compensation and the
applicant is not entitle to any relief.
4. It is to be mentioned here that even though
sufficient opportunities were given to the union and so
also the applicant to file rejoinder and adduce evidence on
affidavit in support of the claim raised in the statement of
claim, neither any rejoinder was filed nor any evidence was
adduced and lastly, on 21.08.2013, order was passed to
proceed ex-parte against the applicant.
384
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
5. As neither the union nor the applicant has adduced
any evidence in support of the claim, the claim must fail
and on that score, the reference cannot be answered in
favour of the applicant and no relief can be granted in
favour of the applicant.
6. Moreover, it is clear from clause 9.3.3 of NCWA-VI
that providing of employment to a son-in-law and that
too residing with the deceased and almost wholly
dependent on the earnings of the deceased is to be
considered, only when no direct dependent i.e. wife/
husband as the case may be, unmarried daughter, son and
legally adopted son is available for employment. In this
case, it is admitted that the wife of the deceased workman
is very much alive and she is a direct dependent of the
deceased workman. On that basis also, the applicant is not
entitled for consideration for providing of employment to
him. It is well settled that the Tribunal cannot go beyond
the schedule of reference or matters incidental to the same.
In this case, the reference has been made to consider the
legality or otherwise of not providing employment to him
within two months of the application as per Implementation
Instruction No. 18 dated 01.11.1979. So, the matter of
providing employment or payment of monetary
compensation to the wife of the deceased workman cannot
be considered. Hence, it is ordered:—
ORDER
The action of the management in relation to Wani
Area Ghugus of WCL not providing employment to Shri
Gajanan Sadashiv Gaurkar, the dependent of Late Namdeo
Ganpat Wararkar, Watchman, Nakoda Incline of Wani Area
WCL is legal & justified. The applicant is not entitled to
any relief.
J. P. CHAND, Presiding Officer
ubZ fnYyh] 27 fnlEcj] 2013
dkñvkñ 189.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj osLVuZ dksyQhYMl
fyfeVsM ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèdj.k@Je U;k;ky;] ukxiqj ds iapkV ¼lanHkZ la[;k 118@2004½
dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 27@12@2013 dks izkIr
gqvk FkkA
[Qkñ lañ ,y&22012@398@2003&vkbZ vkj ¼lh&,e&II½]
,eñ dsñ flag] vquHkkx vf/kdkjh
New Delhi, the 27th December, 2013
S.O. 189.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 118/2004)
of the Cent. Govt. Indus.Tribunal-cum-Labour Court,
Nagpur as shown in the Annexure, in the industrial dispute
between the management of Dhoptala Sub Area of Western
Coalfields Limited, and their workmen, received by the
Central Government on 27/12/2013.
[F. No. L-22012/398/2003 - IR(CM-II)]
M. K. SINGH, Section Officer
ANNEXURE
BEFORE SHRI J. P. CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No.CGIT/NGP/118/2004
Date: 27.11.2013.
Party No.1:
The Sub Area Manager,
Dhoptala Sub Area of WCL,
Post: Sasti, Tah. Rajura,
Distt. Chandrapur.
V/s.
Party No.2
Vijay M. Raipure, (Dead)
Substitued by
1: Smt. Sashikala w/o. Vijay Markandi
Raipure, age 41 yrs.
2: Sandip Vijay Raipure, age 26 Years Son
3: Ajay Vijay Raipur, age 20 yrs. Son
4: Deepa Vijay Raipure age 12 Years,
daughter
Babupeth Ward, Chandrapur.
AWARD
(27th November, 2013)
In exercise of the powers conferred by clause (d) of,
sub-section (1) and sub-section 2(A) of section 10 of
Industrial Disputes Act, 1947 (14 of 1947) ("the Act" in
short),
the Central Government has referred the industrial
dispute between the employers, in relation to the
management of WCL and their workman, Shri Vijay Raipure,
for adjudication, as per letter No.L-22012/398/2003-IR (CM-II)
dated 03.11.2004, with the following schedule:—
"Whether the action of the management in relation
to Dhoptala Sub Area of WCL in terminating the
service of Shri Vijay Markandi Raipure, Loader, Sasti
Colliery vide order No. WCL/BA/DSA/SC/45-B/1286
dated 23/24.12.1996 is legal and justified? If not, to
what relief is the workman is entitled?"
2. On receipt of the reference, parties were noticed
to file their respective statement of claim and written
statement, in response to which, the union, "National
colliery workers congress", ("the union" in short) filed the
statement of claim on behalf of the workman Shri Vijay
Raipure, ("the workman" in short) and the management of
WCL, ("Party No.1" in short) filed the written statement.
The case as projected in the statement of claim by
the union on behalf of the deceased workman was that it
(union) is a registered trade union under the Trade Unions
¹Hkkx II—[k.M 3(ii)º
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385
Act,1926 and the Party No.1 is a government company
owned and controlled by the Central Government and is a
State, as per Article 12 of the Constitution of India and the
management of Party No.1 is not competent to resort the
change in service conditions, wage structures, monetary
benefits and other service conditions provided to the
workers unilaterally, in contravention of the provisions
contained in the National Coal Wage Agreements ("the
NCWA" in short) and so far seven NCWAs have been
signed and the provisions of employment to the dependent
were made in NCWA II and thereafter in all subsequent
NCWAs and on the basis of such provisions, employment
to dependent of the employees is being given and the
provisions contained in NCWAs have become the terms
and conditions of service and the said provisions cannot
be interpreted unilaterally by the Party No.1 and the
provisions of "Employment to Dependents" is covered
under Chapter "Social Security" of NCWAs II to VII and it
is provided that "Employment would be provided to one
dependent of the workers who are disabled permanently
and also those who die while in service" and there is also
provision for monetary compensation to female
dependents.
The union has further pleaded that on 02.11.1992,
there was a settlement between the management and the
union, RKKMS (INTUC), before the Regional Labour
Commissioner and in the said settlement, it was provided
that the management shall provide alternatives light job to
the employees, particularly to loaders, who are physically
weak due to their old age, sickness or IOD, irrespective of
vacancies and management shall fill up 50% vacancies
arising out of natural wastage in Time rated/monthly rated
category/grade from amongst the piece rated workers, who
have completed at least 15 years of service.
It is further pleaded by the union that the deceased
workman was appointed as a loader on 10.04.1980 and he
had put in unblemished continuous service and a vague
charge sheet bearing No. 684 dated 27.08.1998 was issued
against him on the allegation of remaining absence from
duty, by the Suptd. Mines/Manager, Sasti Colliery and
alongwith the charge sheet, list of documents and list of
witnesses were not supplied and dates of absence were
not specified, so the charge sheet was vague and the
enquiry proceedings and action taken by Party No.1 on
the basis of such defective and vague charge sheet were
illegal and the same is liable to be quashed and the workman
replied to the charge sheet, denying the charges and
specifically mentioning about his remaining sick and taking
medicine and that his absence if any was beyond his control
and due to sufficient cause and the same was not deliberate
or intentional, but Party No.1 did not consider the same
and initiated the departmental proceedings and the entire
action, such as enquiry proceedings, enquiry report and
action taken thereon were prejudicial, mechanical and
without application of mind and the workman was dismissed
vide letter No. 1236 dated 22/24.12.1994 and the order of
dismissal suffers from serious infirmities and the workman
during the conciliation proceeding died.
The union has prayed to declare the action of the
Party No.1 in terminating the services of the deceased
workman as illegal and to hold the workman to be in service
till his death and his family members to be entitled to receive
the wages and all consequential benefits from the date of
dismissal of the workman till his death and either to give
monetary benefit to the wife of the deceased workman or
to give employment to one of his dependents, as per the
provisions of the NCWA-VII.
3. The Party No.1 in the written statement have
pleaded inter-alia that the reference was made by the
Ministry relating to a dead employee and there is no
provision in the Act to refer the case of a dead person for
adjudication and as such, the reference is ab-initio void
and bad in law and not maintainable.
It is further pleaded by Party No.1 that the deceased
workman was working as a casual loader at Sasti Colliery at
the time of termination of his services, but in the terms of
reference, his designation has been mentioned as a regular
loader, which shows that the reference has been made in a
mechanical manner by the Ministry and the workman was
appointed as a casual loader on 10.04.1980 at Sasti Colliery
and he had been consistently negligent in his duty, so
much so that during 1985 to 1994, he did not put in the
required attendance, in order to qualify for being regularized
as a permanent loader and his attendance and job
performance for the years 1992 to 1995 was also poor and
though several letters of caution for improvement of his
performance were issued to the workman, all of them fell to
his deaf ears and considering the above facts, the workman
was issued with the charge sheet on 27.08.1995, in which,
the details of his performance and attendance were
specifically mentioned and the charges were not vague
and he was asked to submit his written explanation and the
explanation of the workman to the charge sheet was
received on 07.09.1995 and the workman did not demand
any list of documents and witnesses at any time and there
is no practice or laid down procedure for supply of list to
documents and witnesses and the explanation of the
workman was examined and as the same was found not to
be satisfactory, the departmental enquiry was ordered and
Shri A.J. Reddy, the Dy. Personnel Manager, Dhoptala Sub-
Area was appointed as the enquiry officer as per office
letter dated 16/23.10.1995 and the enquiry officer held the
enquiry after due notice to the parties and the workman
availed the assistance of a co-worker in the enquiry and
the enquiry was held on several dates and on most of the
dates, the enquiry had to be adjourned for the reasons
attributed to the workman and though being asked by the
enquiry officer, the workman admitted the charges, he
wanted to explain the position in detail and he gave detailed
386
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
reasons of his absence by stating that due to consistent ill
health and domestic problems, he had not been able to
attend his duty regularly and had to remain absent and
both parties submitted their documents in support of their
respective stands in the enquiry and the enquiry was closed
with the consent of the parties and the enquiry officer
submitted his detailed report, holding the workman guilty
of the charges levelled against him and a copy of the
enquiry report was given to the workman for his
representation and the workman submitted his written
explanation and the same was duly considered and found
unsatisfactory and considering the seriousness of the
misconduct and his past records, his services were
terminated vide office order dated 23/24.12.1996 with the
approval of the competent authority and the enquiry held
against the workman was fair and proper and the
punishment was also legal and proper and the same was
not shockingly disproportionate to the charges and as the
deceased workman was not entitled to any relief, his legal
heirs are not entitled to any relief.
4. As this is a case of termination of the services of
the workman after holding of a departmental enquiry, the
question of fairness or otherwise of the departmental
enquiry was taken up as a preliminary issue for
consideration and by order dated 29.08.2013, the enquiry
was held to be legal, proper and in accordance with the
principles of natural justice.
5. It is to be mentioned here that inspite of giving
sufficient opportunities to the applicants to appear and
contest the case, neither they appeared nor contested the
case and as such, on 02.08.2013, order was passed to
proceed exparte against them.
6. Before delving into the merit of the matter, I think
it proper to mention the settled principles regarding the
power of a Tribunal in interfering with punishment awarded
by the competent authority in departmental proceedings
as settled by the Hon'b le Apex Court.
In a number of decisions, the Hon'ble Apex Court
have held that:-
"The jurisdiction of the Tribunal to interfere with the
disciplinary matters or punishment cannot be equated
with an appellate jurisdiction. The Tribunal cannot
interfere with the findings of the Inquiry officer or
competent authority where they are not arbitrary or
utterly perverse. The power to impose penalty on a
delinquent officer is conferred on the competent
authority either by an Act of legislature or rules made
under the proviso to Art. 309 of the Constitution. If
there has been an enquiry consistent with the rules
and in accordance with principles of natural justice
what punishment would meet the ends of justice is a
matter exclusively within the jurisdiction of the
competent authority. If the penalty can lawfully be
imposed and is imposed on the proved misconduct,
the Tribunal has no power to substitute its own
discretion for that of the authority. The adequacy of
penalty unless it is malafide is certainly not a matter
of the Tribunal to concern itself with. The Tribunal
also cannot interfere with the penalty if the conclusion
of the Inquiry officer or the competent authority is
based on evidence even if some of it is found to be
irrelevant or extraneous to the matter."
7. On perusal of the materials on record, including
the pleadings of the parties, it is found that the findings of
the enquiry officer are based on the evidence adduced in
the enquiry. It is also found that this is not a case of no
evidence or that the conclusions drawn by the enquiry
officer are totally against the materials on record. Hence,
the findings of the enquiry officer cannot be said to be
perverse.
So far the proportionality of punishment is
concerned, from the record, it is found that commission of
grave misconduct has been proved against the workman
in a properly conducted departmental enquiry. The
punishment of termination of the services of the workman
cannot be said to be shocking disproportionate to the
serious misconduct proved against the workman. As such,
there is no scope to interfere with the punishment imposed
against the workman. Hence, it is ordered:—
ORDER
The action of the management in relation to Dhoptala
Sub Area of WCL in terminating the service of Shri Vijay
Markandi Raipure, Loader, Sasti Colliery vide order
No. WCL/ BA/DSA/SC/45-B/1286 dated 23/24.12.1996 is
legal and justified. The workman was not entitled to any
relief. Hence, the applicants are not entitled to any relief.
J. P. CHAND, Presiding Officer
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New Delhi, the 27th December, 2013
S.O. 190.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref.139/2003) of
the Cent. Govt. Indus. Tribunal-cum-Labour Court, Nagpur
as shown in the Annexure, in the industrial dispute between
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
387
the management of Rayatwari Sub Area of Western
Coalfields Limited, and their workmen, received by the
Central Government on 27/12/2013.
[F. No. L-22012/150/2002-IR(CM-II)]
M. K. SINGH, Section Officer
ANNEXURE
BEFORE SHRI J. P. CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No.CGIT/NGP/ 139/2003
Date: 18.11.2013.
Party No.1:
The Sub Area Manager,
Rayatwari Sub Area of WCL,
PO: Rayatwari, Distt. Chandrapur (M.S.)
Party No.2:
Sh. Lomesh Khartad, General Secretary,
Rashtriya Colliery Mazdoor Congress,
Dr. Ambedkar Nagar, Ballarpur,
Post & Tah. Ballarpur, Distt.
Chandrapur (MS).
AWARD
(Dated: 18th November, 2013)
In exercise of the powers conferred by clause (d) of
sub-section (1) and subsection 2(A) of section 10 of
Industrial Disputes Act, 1947 (14 of 1947) ("the Act" in
short), the Central Government has referred the industrial
dispute between the employers, in relation to the
management of Rayatwari Sub Area of Western Coalfields
Limited and their workman, Shri V. H. Paul , for adjudication,
as per letter No.L-22012/150/2002-IR (CM-II) dated
26.05.2003, with the following schedule:-
"Whether the action of the management of Chanda
Rayatwari Colliery of Western Coalfields Limited, in
not protecting the pay of Shri V.H. Paul, Loader
converted to time rated w.e.f. 01.07.1999 vide office
order No. CL/CHA/SM/Rayat/36 dated 20.04.2000/
06.05.2000 is legal and justified? If not, to what relief
the workman is entitled?"
2. On receipt of the reference, the parties were noticed
to file their respective statement of claim and written
statement and accordingly, the union Rashtriya Colliery
Mazdoor Congress ("the union" in short) filed the
statement of claim on behalf of the workman, Shri V.H.Paul,
("the workman" in short) and the management of, ("Party
No. 1" in short) filed their written statement.
The case of the workman as presented by the union
in the statement of claim is that it (union) is a registered
Trade union under the Trade Unions Act, 1926 and party
No.1 is a government company and is a state within
Article 12 of the Constitution of India and under the
approval of Ministry of Coal, Central Government
constituted a Joint Bipartite Committee for the Coal
Industry ("JBCCI" in short) consisting of all employers of
Coal Industry and the five central Trade unions and the
JBCCI jointly deliberated over the wage structure including
dearness allowance, fitment in revised scale of pay, Pension,
fringe benefits, service conditions and other allied matters
including welfares/safety measures and such deliberations
is known as "National Coal Wage Agreements" ("the
NCWAs" in short) and the JBCCI has several committees
and sub-committees for proper and uniform implementation
of the provisions of NCWA in the entire Coal Industry and
for maintaining uniformity and proper implementation, the
Secretary, JBCCI issues implementation instructions from
time to time and no unilateral decision can be taken by any
subsidiary in contravention of the provisions contained in
the NCWAs and the provisions are mandatory and binding
on all coal companies including WCL and so far seven
NCWAs have been deliberated by JBCCI, known as
NCWAs-I, II, III, IV, V, VI, and VII dated 11.12.1974,
11.08.1979, 27.07.1989, 19.01.1996, 23.12.2000 and 15.07.2005
with period of operation of the said NCWAs from 01.01.1975
to 31.12.1978, 01.01.1979 to 31.12.1982, 01.01.1983 to
31.12.1986, 01.01.1987 to 30.06.1991, 01.07.1991 to 30.06.1996,
01.07.1996 to 30.06.2001 and 01.02.2001 to 30.06.2006
respectively and the workman was appointed as a loader
Group-VA on 07.08.1983 and a memorandum of settlement
dated 02.11.1992 was arrived between the management and
the workmen represented by RKKMS (INTUC) over
10 point charter of demands before the Regional Labour
Commissioner (C), Nagpur on 02.11.1992 and by virtue of
above settlement, the terms of the settlement become terms
and conditions of service of the workman and are binding
on the management and all the workmen and the said
settlement is at par with an award and cannot be amended
in any way except with the assistance with the Conciliation
Officer. It is further pleaded by the union that revised basic
pay and work load were fixed as per Chapter-III of
NCWA-V w.e.f. 01.07.1991 at Rs. 88.93 paise for work load
of 100 cft and Rs. 104.93 paise for work load of 118 cft and
the basic wages of Group-VA was also fixed at the same
rate i.e. Rs. 104.93 paise per day and besides the group
wages, the loaders were allowed special piece rated
allowance ("SPRA" in short) @ Rs. 2.12 p per day in terms
of para 3.11.3 of Chapter-III of NCWA-V and the loaders,
who had completed service of 10 years or more in the same
group were allowed additional SPRA w.e.f. 01.07.1994 and
then on 01.07.1995 in terms of para 3.12.0 of Chapter-III of
NCWA-V and the loaders were also allowed to other
benefits such as underground allowance, lead and lift, D.A.
and F.D.A. etc.
The further case of the union is that on 11.09.1995, in
course of his employment in the underground of Durgapur
Rayatwari Colliery Mine No. 4, in the second shift, at about
8.30 p.m., the workman sustained injuries on his waist and
left knee and as per the instructions, guidance and advise
of the Medical Officer of Chandrapur Area Hospital of WCL,
the workman was treated as different hospitals and then
the workman was referred to the Apex Medical Board for
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THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
assessment of his disability vide letter No. 6473 dated
16.03.1997 of Manager, Durgapur Rayatwari Colliery and
the workman appeared before the Board on 19.03.1997 and
the workman was informed by the Manager vide office
order No. 21 dated 01/02.04.1997 that his disability was
assessed at 15% and he was directed to work on surface
with the Safety Officer and the workman was getting basic
wages Rs. 104.93p per day and Rs. 28.58p as special piece
rate allowance besides other allowances and Party No. 1
arbitrarily and without notice or without option from the
workman reduced the grade from Group-VA to Time rated
Category-I and fixed basic wages at midpoint of Category-I
and deducted SPRA totally vide office order dated
29.07.1999 and the workman protested such action by giving
letters dated 31.07.1999 and 21.04.2000 and vide office order
No. 96 dated 30.04.2000/06.05.2000 of the Manager,
Durgapur Rayatwari Colliery, though order for payment of
SPRA w.e.f. 01.07.1999 was passed, nothing was mentioned
in the said order about protection of his group wages and
no SPRA was paid to the workman and though the workman
approached the Party No. 1 again vide his letter dated
26.01.2001, no action was taken on the said letter and due
to exigencies of jobs, the workman was transferred from
Durgapur Rayatwari Colliery to Civil Department, Chanda
Rayatwari Colliery vide office order No. 1622 dated
29.07.1999, where he was entrusted with the job of Valve
Man Category-II, but he was not paid the differences of
wages and vide order No. 2245 dated 29/30.11.2002, the
workman was regularized as Valve Man Category-II.
The further case of the union is that the Party No. 1
unilaterally decided with RKKMS union on 29.10.1995 to
give midpoint wages of Category-I on account of
conversion of a worker and the same is void ab-initio having
no support of law and management of Chandrapur Area
has been protecting the group wages and SPRA in cases
of loaders and the workers, who have been converted from
piece rated to time rated/monthly rated after completion of
15 years of service and there cannot be two type of systems
in the same company and the workman has been
discriminated and he is entitled for protection of his group
wages and SPRA w.e.f. 01.07.1999 and all consequential
benefits.
3. The Party No.1 in the written statement has
pleaded inter-alia that the dispute is not an industrial
dispute as the individual case of the workman has been
espoused by the union, though there is no record to show
that the workman is a member of the union and the workman
was a member of B.M.S. union in the years 2000, 2001 and
2002 under check off system and the dispute of the workman
has not been espoused by the recognized union and the
union which has espoused the dispute is not a recognized
union and it has no locus standi to raise the same and non
of the other workmen of the unit, where the workman is
working was interested in the alleged dispute and there
was no community of interest between the general body of
workmen and the workman and therefore, the dispute has
to be treated as individual dispute and it has been observed
by the Hon'ble Supreme Court that to convert an individual
dispute into an industrial dispute, it has to be established
that it had been taken up by the union of employees of the
establishment or by an appreciable number of workmen of
the establishment.
It is further pleaded by the Party No.1 that as the
workman became physically unfit to work as a loader,
request was made by him from time to time to provide him
with alternate job in time rated category and considering
his health conditions and his inability to work as a loader,
it gave a sympathetic consideration and absorbed him in
time rated job and it is obvious that his conversion to time
rated was on his request and for the reasons attributable to
him and as such, his conversion from loader to time rated
cannot be said to be wrong or illegal and it is inherent in
the request/option for change of job that he would accept
the wage of the changed category and the claim of the
wages of higher job, amounts to enjoying double
advantage, the benefits of less strenuous and lighter job
and benefit of higher wages, which would be against the
principles of natural justice and putting the management in
economic and financial disadvantage and the fixation of
pay of the workman at the midpoint of the time rate category
was done in accordance with the policy decision of the
company's modified settlement arrived at by an agreement
dated 31.10.1995, which was circulated and is in practice
and operation and the fixation of the wages of the workman
was fair, proper and justified.
It is also pleaded by the Party No. 1 that the workman
was appointed on 07.08.1983 and he received injury while
on duty on 11.09.1995 in second shift, in the underground
of Durgapur Rayatwari Colliery and for his injury, he was
treated in the company's and private hospitals and finally
referred to the Apex Medical Board for assessment of his
disability and the Medical Board found him fit for surface
job and assessed loss of 15% earning capacity and based
on the recommendations of the Medical Board, he was
deployed in time rated category as per interim arrangement
till regular full time time rated job was available to adjust
him against that post and according to the extant rules and
practice, during such interim arrangement, he was paid
group wages of P.R. loader and the case of the workman
was referred to headquarters for permanent absorption in
time rated category job, on the basis of attendance of
240 days in time rated category in preceding years and
while fixing in Cat-I, as per policy decision of the company
arrived at by an agreement on 31.10.1995, his pay was fixed
at midpoint of category-I in time rated category and since
he was deployed continuously as a Valve man, he was
regularized as Valve man in time rated category-II.
The further case of the Party No. 1 is that normally it
is being pleaded by the unions including in the pleadings
¹Hkkx II—[k.M 3(ii)º
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389
of the union in the present reference that in accordance
with the settlement dated 02.11.1992, all the cadres, who
are converted to time rated from piece rated are entitled for
protection of group wages irrespective of their request for
conversion, but such view/interpretation is not correct,
because at para 1(i) of the said settlement, management
had agreed to provide alternative light job to the employees
particularly loaders, who are physically weak due to their
old age, sickness or injured on duty irrespective of
vacancies and in such cases, there was no stipulation of
protection of wages and such cases fall specifically under
the said clause and under para 1(ii) of the settlement,
management agreed to fill up 50% of the vacancies accruing
in time rated categories from amongst the piece rated
workers who have completed at least 15 years of service
and following the para 1(ii), it was agreed in para 1(iii) that
management shall on conversion from PR to TR, protect
the group wage of the PR workers and application of para
1(iii) is specifically confined to cases covered under para
1(ii) and as such, the case of the workman is not covered
by para 1(iii) of the settlement, as he was not taken on time
rated against accruing vacancies and since there were
controversies about the interpretations and implementation
of the settlement dated 02.11.1992, the union, RKKMS with
whom the settlement was signed and the management
modified the settlement vide their agreement dated
31.10.1995 and in terms of the agreement (modified
settlement), such PR workers who opt for TR jobs are to be
placed in the corresponding category at midpoint of the
wage scale and as the workman himself opted for TR, he
was rightly placed at midpoint of TR on being permanently
deployed in that post and the agreement dated 31.10.1995
modifying the earlier settlement was not challenged by
any union/workers and the same continues to remain in
force and unless the same is challenged and declared null
and void through appropriate proceedings under the Act,
its applicability cannot be questioned in a proceeding like
the present reference. The further case of the Party No. 1 is
that normally when a loader is working as a loader and his
wages are reduced, it will amount to reduction of wages,
but if a loader is not working as a loader after opting for
time rated job and working in the lower category and he is
paid according to actual job performed by him, the same
does not amount to reduction of wage and when a piece
rated loader opts for TR job in lower grade, he cannot
validly claim the benefits of PR job including wages and in
such a case, he is also not entitled to claim for advantages
and benefits of both the jobs, in other words, lower and
less strenuous work and higher wage of a higher category
and if the demand of the workman/union is granted, the
same will amount to discrimination, as much as the loaders
actually working as loaders would be discriminated against
those who opt out of risk factors and for lighter jobs and
enjoy the same wage benefits and such a situation would
ultimately create a feeling of discontent and encourage
influx of loaders to TR job on same pretext or the other and
it would be against the principles of natural justice to make
payment of higher wages for performing a lower category
of job and it is only when the job of a workman is changed
by the management due to exigencies of work or in the
interest of management, then the pay of the workman has
to be protected and on the contrary, if the job is changed
on the request of the workman on his own interest, there is
no justification for protecting his wages and as its action is
perfectly justified and legal, the workman is not entitled to
any relief.
4. In the rejoinder, it is pleaded by the union on
behalf of the workman that the Party No. 1 has raised
frivolous technical points regarding the maintainability of
the reference only to delay and defeat the claim of the
workman and such technical objections cannot be
entertained in view of the Rulings of the Hon'ble Apex
Court given in different judgments and the Central
Government has referred the industrial dispute for
adjudication and as such, the same is to be adjudicated by
the Tribunal and there is no recognized union in WCL and
as per law, when there is no recognized union, every
registered union enjoys similar status and can raised
industrial dispute and Party No. 1 has settled number of
cases with the union before the ALC (C), Chandrapur and
it is competent to raise the dispute on behalf of the workman
and Party No. 1 is trying to mislead the Tribunal, by framing
issues in the written statement. The union has also
reiterated the facts regarding sustaining of injuries by the
workman while on duty, his examination by the Medical
Board to assess his disability and giving of light work to
the workman by Party No. 1 as per the recommendation of
the Medical Board and the entitlement of the workman for
protection of his wages etc.
5. In order to prove the claim, the union has examined
the workman as a witness. One Shri Shrikrishna S. SheIke,
the Senior Personnel Manager of Rayatwari Sub Area has
been examined as a witness by Party No. 1. Both the parties
have relied on documentary evidence as well.
The workman so also the witness for Party No. 1 in
their respective examination in-chief, which is on affidavit
have reiterated the facts mentioned in the statement of
claim and in the written statement respectively.
In his cross-examination, the workman has stated
that as he was declared unfit by the Medical Board to work
as a loader in the underground, the management gave him
the work of Valve man to him and as per order dated
29.07.1999, he was converted from piece rated workman to
time rated workman by the management of WCL.
The witness for Party No. 1 in paragraph 3 of his
affidavit has stated that the workman was deployed in TR
category on the basis of recommendations of the Medical
Board and he was deployed as such as an interim
arrangement till regular full time TR job was available to
adjust him against the post.
390
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
It is to be mentioned here that in paragraph 8(ii) of
the written statement also, the Party No. 1 has mentioned
that based on the recommendation of the Medical Board,
the workman was deployed in the TR category as per interim
arrangement till regular full time TR job was available to
adjust him against that post.
It is to be mentioned further that in view of the stands
taken by the parties in the statement of claim and written
statement, there is no need to discuss the oral evidence of
the witnesses in detail.
6. In this case all most all the facts pleaded in the
statement of claim have been admitted by the Party No. 1.
The Party No. 1 has pleaded that the workman is not entitled
to protection of his wages, as his conversion from loader
to time rated job was made on his request and the provision
of protection of wages as mentioned in the settlement dated
02.11.1992 was not applicable to his case and the fixation
of wages of the workman at midpoint of time rated category
was made as per the policy decision of the Party No. 1.
7. At the time of argument, it was submitted by the
learned advocate for the Party No. 1 that this dispute is not
an industrial dispute and the union has no backing of any
member at Chandrapur and the workman is not a member of
the union and there is no community of interest and the
dispute is purely an individual dispute. It was further
submitted by the learned advocate for the Party No. 1 that
the conversion of the workman from loader to time rated
was as per his request and his wages was fixed at midpoint
of time rate category in accordance with the policy decision
of the company's modified settlement arrived at by an
agreement dated 31.10.1995 and such facts have been
proved beyond doubt by the evidence of M.E. 1 and the
documents Exts. M-I to VI and such fixation of wages of
the workman is just and fair and the workman is not entitled
to any relief.
8. Per contra, it was submitted by the learned
advocate for the workman that the evidence on record
clearly shows that the conversion of the workman from
loader to time rated job was as per the recommendation of
the Medical Board of Party No. 1 and not on the request of
the workman and the workman is entitled for protection of
his wages as per the settlement dated 02.11.1992, Ext. W-I
and the union is entitled to raise the dispute and the dispute
is an industrial dispute and the workman is entitled for the
reliefs as claimed.
9. It is to be mentioned here that learned advocates
for the parties have referred to some awards passed by this
Tribunal in support of their respective submissions.
However, it is to be mentioned that the present reference is
to be considered and decided on the facts and
circumstances of this case and the evidence on record and
not on the basis of the findings given in other cases, basing
on the respective facts and circumstances and evidence
on record of the said cases.
10.On perusal of the materials on record, it is found
that the union is entitled to espouse the dispute on behalf
of the workman. From the letter of reference made by the
Central Government, it is found that the dispute was raised
by the union before the conciliation officer and on failure
of the conciliation, the reference has been made for
adjudication to this Tribunal and the union has been
directed to file the statement of claim and relevant
documents in support of the claim. It is also found from the
pleading of the parties and the materials on record that the
dispute raised by the union is an industrial dispute.
11.From the pleadings of the parties and the evidence
on record, it is clear that the workman was injured while on
duty in the colliery and he was examined by the Medical
Board and the Medical Board on examination found him
unfit to work as a loader, but found him fit to do light work
and recommended to give him light duty and on the basis
of such recommendation, the workman was given light work
on surface and ultimately, he was converted to time rated
workman from piece rated. Party No.1 has relied on Ext. M-
IV in support of its claim that the workman requested for
his conversion from loader to time rated workman. On
perusal of Ext. M-IV, it is found that the same is a letter
submitted by the workman dated 26.06.1999 to give him
light work basing on the recommendation of the Medical
Board. Moreover, it is found from the documents and
evidence of the witness of the Party No.1 that the
conversion of the workman to time rated was already made
by Party No.1 prior to 29.06.1999. So, it is clear from the
record that the conversion of the work from piece rated to
time rated by the Party No.1 on the recommendation of the
Medical Board and not on the request of the workman.
12.The stand of the Party No.1 is that para 1 (iii) of
the settlement dated 02.11.1992 regarding protection of
wages of loader has no application to the conversion of
loader to time rated category as per para 1(i) and the same
is applicable to the conversion as mentioned in para 1(ii)
only.
For better appreciation, I think it proper to mention
paragraphs 1(i) to 1(iii) of the settlement dated 02.11.1992.
The same are as follows:—
1.1
Demand No.1(i):
That the management shall provide alternate/light
job to the employees particularly loaders who are
physically weak due to their old age, sickness or 1.O. D.
irrespective of vacancies.
1.2 Demand No. 1(ii):
That the management shall fill up 50% vacancies
arising out of natural wastage in Time Rated and
monthly Rated category/grade from amongst the
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
391
piece rated workers who have completed at least 15
years of service.
1.3 Demand No. 1(iii):
That the management shall on conversion from P.R.
to TR/MR will fully protect the group wages including
SPRA wherever applicable. The basic pay so fixed in
the TR/MR category/grade if exceeds the maximum
of the category/grade, the balance will be treated as
personal pay to the person concerned which shall
be adjusted in the subsequent revision of pay/
promotion. This decision shall be effective from
01.01.1992. It is also agreed that the cases already
converted between 14.11.1990 to 31.12.1991 shall be
considered for notional fixation only and earlier cases
not be considered.
13. On perusal of the settlement dated 02.11.1992, it
is found that in para 1(iii), the Party No.1 has agreed to
protect the wages of the loaders converted to time rated or
monthly rated. There is no specification in that paragraph
that the same will apply only to cases covered under para
1(ii). On plain reading of the paras 1(i) to 1(iii), it is found
that there is nothing in the same to show that para 1(iii) has
no application to the cases of para 1(i), directly or by
implication. Hence, I find no force in the submission made
by the learned advocate in that respect.
14. So far the modified settlement dated 31.10.1995
is concerned, on perusal of the same, it is found that the
same is not a settlement at all and the same is only the
record note of discussion held between the management
of WCL and RKKMS on 31.10.1995. The said so called
settlement has no legal sanctity and cannot be said to be a
legal settlement at all.
Moreover, in the said record note of discussion also
in para 5, provision has been made to protect the wages of
the loader converted to time rated or monthly rated category
under certain circumstances. Para 5 of the said record note
read as follow:—
"Such piece rated workman who may put in time rated/
monthly rated in future by managerial decisions i.e.
without seeking option from time rated/monthly rated
or without going through the selection process
against internal notification from time rated/monthly
rated, will continue to get protection of piece rated
wages such piece rated workmen who came to TR as
per option given by them will not get this benefit."
As in this case, it is already held that the workman
did not give any option for his conversion and the
conversion was made by Party No.1 on the recommendation
of its Medical Board and the same is a managerial decision,
the workman is entitled for protection of the basic wages
and SPRA of loader. Hence, it is ordered:—
ORDER
The action of the management of Chanda Rayatwari
Colliery of Western Coalfields Limited, in not protecting
the pay of Shri V.H.Paul, Loader converted to time rated
w.e.f. 01.07.1999 vide office order No. WCL/CHA/SM/
Rayat/36 dated 20.04.2000/06.05.2000 is illegal and
unjustified. The workman is entitled for protection of basic
wages and SPRA of piece rated loader w.e.f. 01.07.1999 and
all consequential benefits arising out of such wage
protection.
J. P. CHAND, Presiding Officer
ubZ fnYyh] 27 fnlEcj] 2013
dkñvkñ 191.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj osLVuZ dksyQhYM~l
fyfeVsM ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/kdj.k@Je U;k;ky;] ukxiqj ds iapkV ¼lanHkZ la[;k 141@2003½
dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 27@12@2013 dks izkIr
gqvk FkkA
[lañ ,y&22012@197@2002&vkbZvkj ¼lh,e&II½]
,eñ dsñ flag] vuqHkkx vf/kdkjh
New Delhi, the 27th December, 2013
S.O. 191.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 141/
2003) of the Cent.Govt.Indus.Tribunal-cum-Labour Court,
Nagpur as shown in the Annexure, in the industrial dispute
between the management of Hindustan Lalpeth Open Cast
Sub-Area of WCL, and their workmen, received by the
Central Government on 27/12/2013.
[No. L-22012/197/2002-IR(CM-II)]
M. K. SINGH, Section Officer
ANNEXURE
BEFORE SHRI J. P. CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No.CGIT/NGP/141/2003
Date: 20.09.2013
Party No. 1 :
The Sub-Area Manager,
Hindustan Lalpeth Open Caste Sub-
Area of WCL
Post: Lalpeth, Distt. Chandrapur (MS).
Party No. 2 :
Shri Chandrakant Khandre, General
Secretary,
Koyala Shramik Sabha(HMS),
Br. Chandrapur Area,
C/o. C.G. Khadre, Near Mahakali Mandir,
PO & Distt. Chandrapur (MS).
392
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
AWARD
(Dated: 20th September, 2013)
In exercise of the powers conferred by clause (d) of
sub-section (1) and sub-section 2(A) of section 10 of
Industrial Disputes Act, 1947 (14 of 1947) ("the Act" in
short), the Central Government has referred the industrial
dispute between the employers, in relation to the
management of WCL and their workman Shri Sheikh Ejaj
Ahmad, Sheikh Siraj for adjudication, as per letter No.L-
22012/197/2002-IR (CM-II) dated 09.05.2003, with the
following schedule:—
"Whether the action of the management in relation
to Hindustan Lalpeth Open Cast of Western
Coalfields Ltd., in dismissing Sh. Sheikh Ejaj Ahmad,
Sheikh Siraj, Driver, Hindustan Lalpeth Open Cast
Vide Order No. WCL/CHA/PO/HLOC/PER/1840,
dated 04.07.1998 is legal and justified? If not, to what
relief the workman is entitled?"
2. On receipt of the reference, the parties were noticed
to file their respective statement of claim and written
statement and accordingly, the Union, "Koyala Sharmik
Sabha(HMS)", ("the union" in short) filed the statement of
claim, on behalf of the workman, Shri Sheikh Ejaj Ahmad,
Sheikh Siraj, ("the workman" in short), and the management
of WCL, ("Party No. 1" in short) filed their written statement.
In the statement of claim it was pleaded on the behalf
of the workman that the enquiry proceedings initiated
against the workman was illegal and the dismissal of the
workman from services was also not legal and the workman
is entitled for reinstatement in service with full back wages
and all consequential benefits alongwith continuity in
service.
3. The Party No.1 filed the written statement denying
the allegations made in the statement of claim and pleading
inter-alia that the domestic enquiry had been held against
the workman in accordance with the principles of natural
justice and there was no illegality in conducting the
departmental enquiry and the workman is not entitled for
any relief.
4. It is to be mentioned here that as this is case of
dismissal of the workman after holding a departmental
enquiry, a preliminary issue regarding the fairness or other
wise of the departmental enquiry was framed for
consideration and parties were allowed to plead evidence
on the preliminary issue. Accordingly, the workman
examined himself as a witness and thereafter closed the
evidence from his side. The case was posted to 20.09.2013
for adducing evidence from the side of the management on
the validity of the departmental enquiry and management
filed the affidavit of witness, Shri Ramesh Hanumantrao
Dingalwar.
The workman appeared in person alongwith his
advocate on 20.09.2013 and filed an application alongwith
an affidavit to close the case as withdrawn on the ground
that he will take up the matter with the Party No. 1 for
amicable negotiation and settlement. Copy of the
application was served on the advocate for the Party No.1,
who made endorsement on the application itself of "No
Objection"
4. As the workman doesn't want to proceed with the
reference, the reference is liable to be dismissed without
granting of any relief to him. Hence, it is ordered:—
ORDER
The reference is dismissed as not pressed by the
workman. The workman is not entitled to any relief. No
leave is also granted to the workman to raise the dispute
again or to review the present reference. The applications
and affidavit filed by the workman are made part of the
award.
J. P. CHAND, Presiding Officer
COURT'S COPY
BEFORE THE HONOURABLE PRESIDING
OFFICER CENTRAL GOVT. INDUSTRIAL
TRIBULNAL-CUM-LABOUR COURT, NAGPUR
Reference Case No. CGIT/NGP/141/2003
Sub-Area Manager, Hidustan Lalpeth
Open Cast Area W.E.L. Chandarpur
...Employer
Vs.
Their Workman (Case of Sri Sheikh Ejaj
Ahmad Sheikh Siraj)
...Union Workman
Humble Application of Workman for withdrawal of
Reference Case from Court
(1) That the workman does not want to follow up the
case/before this Honourable Tribunal and to this effect. In
long original of affidavit sworn by him before the Executive
Magistrate, Chandrapur on 16.9.2013 so that the matter
could be settled by negotiations with mangement. Xerox
of same sent to lowest by Regd. A/D has been recorded on
19.9.2013.
(2) That the Xerox of affidavit with forwarding letter
dt. 16.9.2013 addressed to Management has been served
on the same day and recopted on signature and seal of his
office. The original letter dt. 16.9.2013 is also being enclosed
herewith.
(3) In view of it is prayed that the case may kindly be
closed as with drawn.
Nagpur
-Sd-
Dated : 20.9.2013
(K.K. YADAV)
C.F.A
ubZ fnYyh] 27 fnlEcj] 2013
dkñvkñ 192.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,Qñ lhñ vkbZñ
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
393
ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaè
esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k@Je
U;k;ky;] ukxiqj ds iapkV ¼lanHkZ la[;k 239@2003½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 27@12@2013 dks izkIr gqvk FkkA
[lañ ,y&22012@141@2003&vkbZvkj ¼lh,e&II)]
,eñ dsñ flag] vuqHkkx vf/kdkjh
New Delhi, the 27th December, 2013
S.O. 192.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 239/
2003) of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Nagpur as shown in the Annexure, in the industrial dispute
between the management of Food Corporation of India,
and their workmen, received by the Central Government on
27/12/2013.
[No. L-22012/141/2003-IR (CM-II)]
M. K. SINGH, Section Officer
ANNEXURE
BEFORE SHRI J.P . CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No.CGIT/NGP/239/2003
Date: 29.11.2013
Party No.1(a):
The District Manager,
Food Corporation of India,
Ajani, Nagpur,
Nagpur -440015
Party No.1(b):
The Senior Regional Manager,
Food Corporation of India,
Mistry Bhawan, Dinshaw Wacha Road,
Churchgatye,
Mumbai - 400020
Versus
Party No.2:
The Secretary,
Rashtriya Mazdoor Sena, Hind Nagar
Ward No. 2, Near Boudha Vihar
Post: Wardha, Distt. Wardha (M.S.)
AWARD
(Dated: 29th November, 2013)
In exercise of the powers conferred by clause (d)
of sub-section (1) and sub-section 2(A) of section 10 of
Industrial Disputes Act, 1947 (14 of 1947) ("the Act" in
short),
the Central Government has referred the industrial
dispute between the employers, in relation to the
management of Food Corporation of India and their
workman, Shri Ashok Baliram Bhitre for adjudication, as
per letter No. L-22012/141/2003-IR (CM-II) dated 08.12.2003,
with the following schedule:—
"Whether the action of the management of Food
Corporation of India, Nagpur (M.S.) in terminating
the services of Shri Ashok Baliram Bhitre, Security
Guard w.e.f. 14.03.1999 is legal and justified? If not,
to what relief the concerned workman is entitled?"
2. On receipt of the reference, the parties were noticed
to file their respective statement of claim and written
statement and accordingly, the workman, Shri Ashok Baliram
Bhire, (“the workman" in short), filed the statement of claim
and the management of Food Corporation of India ("Party
No. 1" in short) filed their written statement.
The case of the workman as presented in the
statement of claim is that he was in the employment of
Party No. 1 from 27.03.1993 and he was initially engaged
through a contractor at Wardha Depot of Party No. 1, as a
Security Guard and he was in continuous service without
any interruption till 14th March, 1999, when his services
were terminated orally by Party No. 1, without following
the due procedure of law and he had completed more than
240 days of work in each year and the termination of his
services on 14.03.1999 was not in good faith, but in
colourable exercise of the rights and powers by the Party
No. 1 and while terminating his services, neither one
month's notice nor one month's wages in lieu of notice nor
retrenchment compensation was given to him as required
under section 25-F of the Act and after his illegal
termination, fresh hands from the department of home guard
and police were engaged by Party No. 1 to extract the duties
of Security Guards, in violation of the provision of section
25-H of the Act and the work which he was performing is
constantly in existence and the same is of a perennial nature
and as his termination is illegal and unlawful, he is entitled
for reinstatement in service with continuity and full back
wages.
The further case of the workman is that in 1993, he
was engaged by the Party No. 1 through the contractor for
a period of two years, but the contract was made only on
papers and after every two years, the Party No. 1 changed
the contractor on papers only and the engagement of the
so-called contractor did not replace the Security Guards
and he was also not disturbed from his services and he
was merely shown to be engaged by the contractors, but
actually he was working under the direct control and
supervision of the Party No. 1 and the contractor had no
role to play in the same and the work performed by him was
being assigned to him by Party No. 1 and he was a regular
employee of Party No. 1 and Party No. 1 was his real
employer and not the contractor as alleged and the
engagement and change of contractors by Party No. 1 from
time to time was sham and only a camouflage to deny his
legitimate claim and the contract between Party No. 1 and
the contractor was bogus and not genuine and therefore,
his oral termination from services was against the
mandatory provisions of the Act and the Central
Government decided to abolish the appointment of contract
labour as contemplated under section 10 of the Contract
394
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
Labour (Regulation and Abolition) Act, 1970 and issued
Notification on 01.11.1990 with directions to abolish the
contract labour system in the establishment of the Party
No. 1 and to give employment to contract labours engaged
by the management and therefore, it was the mandatory
duty of the Party No. 1 to abolish the contract labour system
in all places and management of FCI implemented the
notification only at Nagpur and Manmad and absorbed
the Security Guards working at Nagpur and Manmad, but
at Akola, Amravati, Wardha and Gondia districts, the
contract labour system was continued by the management,
with an intention to deprive him from the benefits under
the labour laws.
It is further pleaded by the workman that his salary
was paid by the Party No. 1 and not by the contractor and
his daily attendance was also marked by the Asstt.
Manager of FCI, Wardha Depot and the Party No. 1 was
supervising his work through their officers and he had no
relation with the so called contractors engaged by the Party
No. 1 and Party No. 1 also supplied the articles, such as,
torch, lathi, whistle and uniform etc to him and in view of
the long spell of work being carried out by him, he is entitled
to be reinstated in service with continuity and full back
wages.
3. The Party No. 1 in their written statement have
pleaded inter alia that the workman was never in their
employment and the workman has not impleded the
contractor, who appointed him, as a Party and the workman
was engaged by the contractor as a Security Guard at FCI
Depot and the said contractor is a necessary party and in
absence of the contractor, the proceeding cannot proceed
and the workman was not in their service uninterruptedly
till 14th March, 1999 and since the contract of the contractor
came to an end, the services of the workman were terminated
by the contractor and the original period of contract given
to the contractor for providing Security services was up to
1998 and the same was extended as per the terms and
conditions till March, 1999 and as the workman was not
employed by them, there was no question of following the
procedure of termination by them and they were not the
employer of the workman and the services of the workman
were never utilized by them as employer from 27.03.1993
to14.03.1999 , without any break in service and the workman
did not complete 240 days of work in a year as alleged and
as the workman was engaged by the Security Contractor,
there was no relationship of master and servant between
them and the workman at any point of time and under
section 10 of the Contract Labour (Regularisation and
Abolition) Act, they were exempted by the Central
Government, so the allegations made by the workman
against them are not true and there was no question of
violation of the provisions of 25 (H) of the Act and the
work does not constantly exist and the work of providing
security guards was given to other Government Agencies
like Police Personnel and Home guards and therefore, the
workman has no right to claim any relief from them and the
work of security is not perennial in nature and as and when
their godowns are filled with food grains, then only, services
of the security guards are required and in pursuance of the
notification issued by the Central Government abolishing
contract labour system, they appointed Home guards and
Police personnel as security guards.
The further case of party no.1 is that for the relief as
claimed in this reference, the workman had filed a writ petition
before the Hon'ble High Court, Nagpur Bench bearing W.P.
No. 1389/99 and the Hon'ble High Court rejected the said
WP and denied the reliefs prayed for and therefore, this
Tribunal has no jurisdiction to decide the reference and
the decision of the Hon'ble Court operates as resjudicata
and they floated tenders for the contract and lowest bidder
was awarded the contract and the change of contractor in
every two years was not on papers only and they had no
say in the appointment of security guards by the security
contractor and they had no control over the appointment
and service conditions of the workman, who was an
employee of the security agency and he was never their
employee and the security contractor was the employer of
the workman.
The further case of party no.1 is that the appropriate
government decided to abolish the employment of the
contract labour as contemplated under section 10 of the
Contract Labour (Regularisation and Abolition) Act, 1970
and the interpretation of the notification issued on
01.11.1990 put by the workman is not correct and they were
exempted from the operation of the Act of 1970 in the year
1989 and the said exemption was withdrawn in the year
1999 and therefore, the security contact given to the
contractor was terminated and hence, the services of the
workman were terminated by the security contractor and
they did not pay the salary to the workman and it was the
contractor, who was paying the same to the workman and
when the contractor failed to pay the salary to the workman,
they paid the amount as per the directions given by the
ALC from time to time and the said amount was recovered
from the contract's bill and they only used to check the
attendance of the security guards to find out as to whether
the contractor had made arrangement of the requisite
number of security guards, as per their requirement and
they did not have the power to terminate any employee
appointed by the contractor and they did not provide any
article, such as torch, Lathi, whistle and uniform etc to the
workman and as such, the workman is not entitled to any
relief.
4. Both parties have led oral evidence in support of
their respective claims, besides placing reliance on
documentary evidence.
The workman in support of his claim has examined
himself as a witness. In his evidence, which is on affidavit,
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
395
the workman has reiterated the facts mentioned in the
statement of claim.
In his cross-examination, the workman has admitted
that he was engaged in F.C.I. through the contractor,
"Bombay Industrial Security" and he had submitted an
application to the said contractor to engage him as a security
guard and "Bombay Industrial Security" appointed him as
a security guard. The workman in his cross-examination
has further admitted that no appointment order was issued
by the F.C.I. to him and he has filed no document to show
that he was appointed by F.C.I. and F.C.I. was making
payment of his wages and he had worked for 240 days in
every calendar year with F.C.I. and he does not know
English and he does not know the contents of the affidavit
filed by him and he cannot say if there was any
advertisement by F.C.I. for appointment of security guards.
The workman has further admitted that after two years of
his engagement, another contractor was appointed by the
F.C.I. and the management of F.C.I. asked the contractor to
engage him as a security guard.
5. Shri Suresh N. Bokade, the witness examined on
behalf of the Party No. 1 has also reiterated the facts
mentioned in the written statement, in his examination-in-
chief, which is on affidavit. In his cross-examination, the
witness for the Party No. 1 has admitted the suggestions
given on behalf the workman that the workman other
security guards were deployed to work in F.C.I. through
the contractor, Singh Security Services and Singh Security
Services was given the contract to supply security guards
for two years and after the expiry of contract of Singh
Security Services in 1995, contract for supply of security
guards was given to Industrial Security and Fire Services
for two years and the workman and other security guards
were engaged in F.C.I. through the contractors till December,
1998 and after the notification made by the Government
imposing ban for engagement of contract labourers in 1998,
F.C.I. discontinued the engagement of contract labourers
and security guards were being deployed for watch and
ward duty of F.C.I. depots and the workman other security
guards worked continuously from the date of their
respective engagement till December, 1998 in F.C.I. through
different contractors and F.C.I. had the control regarding
the duties to be performed by the security guards.
6. At the time of argument, it was submitted by the
learned advocate for the workman that the workman from
27.03.1993 was in the service of the Party No. 1 till 14.03.1999,
when all of a sudden, his services were terminated orally
by the Party No. 1 without compliance of the mandatory
provisions of Law, particularly the provisions of sections
25 F and 25 H of the Act and Party No. 1 also did not
comply with the provisions of the Contract Labour
(Regulation and Abolition) Act,1970 ("Act,1970" in short )
and as such, the termination of the workman is illegal and
null and void. It is further submitted by the learned advocate
for the workman that the appointment of the workman to
work in the establishment of the Party No. 1 was admittedly
through contractor appointed by Party No. 1 and it is an
admitted position that the tenure of the contract was for
two years and though there was change of contractor in
every two years, the workman and other security guards
remained the same and there was a specific condition in
the contract between the management and the contractor
that the set of workers will be continued by the incoming
contractor and in such fashion, the workman and other
security guards continued to work in the establishment of
Party No. 1 right from the date of their respective date of
appointments till March, 1999 and there was no bread in
their service and each of them completed 240 days of service
in each calendar year and the same shows that the work
was all time available in the establishment of Party No. 1
and is of perennial nature and ever though the workman
and other security guards were employed by the contractor,
fact remains and is also admitted by the witness for the
Party No. 1 that Party No. 1 had control over the working of
the workman.
The learned advocate for the workman further
submitted that though Party No. 1 in the written statement
has contended that it was exempted from the provisions of
the Act, 1970, it has failed to produce any document in
corroboration of such contention and as mere statement of
Party No. 1 is no sufficient, the fact remains that Party No. 1
was never exempted from the provisions of the Act, 1970
and the Central Government by notification dated
01.01.1990 issued U/S 10 of the Act, 1970 abolished contract
labour system in the establishment of Party No. 1 and after
issuance of the said notification, Party No. 1 was prohibited
from engaging any contract labour and as the workman
and other security guards were engaged by Party No. 1
inspite of notification prohibiting contract labour system,
the workman became the direct employee of the Party No.
1 and he has attained the status of regular employee of
Party No. 1.
It was also argued by the learned advocate for the
workman that Party No. 1 has not filed on record any
document showing that it was registered as principal
employer or the contractors were registered under Section 7
and Section 12 respectively of the Act, 1970 and in absence
of the said documents, it cannot be assumed that the
contract between the contractor and management was
genuine and it is clear that the contracts between the Party
No. 1 and the contractors were sham and bogus and such
contract was entered into only with malafide intention to
deny regular employment to the workman and after
termination of the services of the workman, Party No. 1
appointed police and home guard personnel as security
guards and this proves that the work is available even
today and after the notification dated 01.11.1990, Party No. 1
regularized the contract labourers were engaged at Nagpur
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and Manmad, but same was not the case at Akola, Amravati,
Wardha and Gondia and this shows that Party No. 1
indulged into invidious discrimination amongst equal,
which is contrary to provisions of Articles 14 and 16 of the
constitution and the Writ Petition filed by the workman
and others as disposed of by the Hon'ble High Court with
a direction to the petitioners to approach the appropriate
authority and as such, the judgment in Writ Petition 1389/
99, cannot operate as resjudicata.
In support of the contentions, the learned advocate
for the workman placed reliance on the decision reported
in 2006(2) Bom.CR — 167 (Food Corporation of India Vs
Prashant Pandurang Ramteke & Others).
The learned advocate for the workman also submitted
that as the termination of the workman from service is illegal,
the workman is entitled for reinstatement in service with
continuity and full back wages.
7. Per contra, it was submitted by the learned
advocate for the Party No.1 that the workman was never
appointed by Party No.1 and he has engaged by the
contractor as a security guard and as such, the concerned
contractor is a necessary party and inspite of raising such
objection in the written statement, the workman did not
implead the contractor as a party and for that the reference
is not maintainable. It was further submitted by the learned
advocate for the Party No. 1 that the workman was engaged
by the contractor and as the contract of the contractor
came to an end in March, 1999, the services of the workman
were terminated by the contractor and as such, there was
no question of Party No. 1 complying with the due
procedure of termination and there was no relationship of
master and servant between the Party No. 1 and the workman
and the party no.1 was exempted by the Central Government
from the ban imposed for engagement of contract labourers,
so contract was given to the security contractor, as per
rules, for supply of security guards and due to the
notification of the Government for abolition of contract
labour system, Home guards and Police personnel were
appointed as security guards and Party No. 1 has no control
over the workman and the security contractor was
submitting bills for payment for supply of security guards
and the security contractor was paying the wages to the
workman. It was further submitted by the learned advocate
for the Party No. 1 that the workman and some others had
approached the Hon'ble High Court, Nagpur Bench in W.P.
1389 of 1999 for the reliefs sought in this reference and the
Hon'ble High Court while depositing of the said petition
have held that the termination of the workman by the
contractor was a valid one and the action of FCI was legal
and as such, the workman cannot agitate the question again
and the decision of the Hon'ble High Court operates as
resjudicata between the parties and the workman is not
entitled to any relief.
8. First of all, I will take up the submission made by
the learned advocate for the Party No. 1 that the present
reference is hit by the principles of resjudicata, due to the
decision of the Hon'ble High Court, Nagpur Bench in W.P.
1389/99.
It is not disputed that the workman alongwith 78
others through the union, "Rashtriya Mazdoor Sena
Saptahit Jaibhim" filed Writ Petition No. 1389/99 before the
Hon'ble High Court of Judicature at Bombay, Nagpur Bench,
Nagpur, for their regularisation and the Hon'ble High Court
did not grant such relief. On perusal of the order passed by
the Hon'ble High Court on 29.07.2002 in the said writ
petition, it is found that the workman and others claimed
regularisation on the ground that they were employed by
the contractor for doing regular work of the Food
Corporation of India and in view of the same, they have
became workmen of Food Corporation of India, since the
work on which they were employed is of perennial nature.
However, it is found from the judgment that the Hon'ble
High Court did not consider the main relief and passed the
following order:
"In view of the judgment of the Constitution Bench
in Steel Authority of India Ltd. and Others Vs.
National Union Water Front Workers and Others
[reported in 2001 (7) SCC1], the relief sought by the
petitioners cannot be granted since the petition
involves disputed question of facts as also other
facts which are required to be adjudicated by
appropriate authority. Accordingly, the main prayer
to absorb them cannot be granted.
**
**
**
**
In view of the rejection of the main prayer, the question
of granting other prayer does not arise. In case, the
petitioners approach the appropriate authority, the
appropriate authority shall take decision in the matter
within a period of one year. The applicants are free to
approach the appropriate authority for redress of
their grievances."
So, it is clear from the orders passed by the Hon'ble
High Court as mentioned above that the Hon'ble High Court
did not consider the claim made by the workman and others
on merit and granted them the liberty to approach the
appropriate authority for redress. The Hon'ble High Court
in the decision reported in 2006(2) Bom.CR - 167 (Supra)
have held that, "Because Division Bench had not gone
into merits of the case the decision cannot operate as res-
judicata". Applying the principles settled by the Hon'ble
High Court, as mentioned above to the case in hand, the
reference cannot be said to be hit by the principles of
resjudicata. So, there is no force in the contention raised
by the learned advocate for the Party No. l.
9. In this reference, it is never the case of the workman
that he was directly appointed or engaged by the Party
No. 1 as a security guard. In the very beginning of the
statement of claim, it has been mentioned by the workman
that he was initially engaged at Food Corporation of India
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397
Depot, Wardha as a security guard, through a contractor.
In paragraph 4 of the statement of claim, the workman has
mentioned that, "In the year 1993, the workman was
engaged by the Food Corporation of India through
contractor, for the period of 2 years, but the contract was
made on paper." The case of the workman is that after
every two years, the party no.1 on papers showed the
change of contractors, but he was not disturbed from
services and he worked continuously without any break
till 14.03.1999 and as he worked as a security guard of
perennial nature, he is entitled for reinstatement in service.
The workman has also claimed that as the Central
Government issued notification on 01.11.1990 to abolish
the contract labour system in FCI and directed to give
employment to contract labours engaged by the
management and party no.1 implemented such direction at
Nagpur and Manmad only and gave employment and
regularized and absorbed the services of the Security Guards
working at Nagpur and Manmad and did not implement the
same at Wardha and other places to deprive him from the
benefits under the Labour Laws.
In his evidence on affidavit also, the workman
has mentioned that he was initially engaged in Food
Corporation of India as a Security Guard through a
contractor.
From the evidence on record and the own admission
of the workman in the cross—examination including the
specific admission that he was engaged by the contractor,
it is clear that the workman was engaged by the contractor.
The workman has not produced any evidence to show that
he was directly engaged by the Party No. 1.
10. At this juncture, I think it apropos to mention
about the principles enunciated by the Hon'ble Apex Court
regarding contract labours, in the decisions reported in
1985-11 LLJ-4 (S.C.) (The workman of the Food Corporation
of India Vs. M/s. Food Corporation of India), 2001 LAB IC
3656 (S.C.) (Steel Authority of India Ltd. and others Vs.
National Union Water Front Workers and others) and 1994
II CLR 402 (R.K. Panda & Others Vs. Steel Authority of
India and Others).
In the decision reported in 1985-II LLOJ-4 (supra)
the Hon'ble Apex Court have held that:—
"Briefly stated, when corporation engaged a
contractor for handling food grain at Siliguri Depot,
the corporation had nothing to do with the manner
of handling work done by the contractor, the labour
force employed by him, payments made by him etc.
In such a fact situation, there was no privity of
contract of employer and workmen between the
corporation and the workmen. "Workmen" has been
defined (omitting the words not necessary) in the
Industrial Disputes Act to mean (any person
including an apprentice) employed in any industry
to do............. .” ‘The expression' employed has at
least two known connotations, but as used in the
definition, the context would indicate that it is used
in the sense of a relationship brought about by
express or implied contract of service in which the
employee renders service for which he is engaged
by the employer and the latter agrees to pay him in
cash or kind as agreed between them or statutorily
prescribed. It discloses a relationship of command
and obedience. The essential condition of a person
being a workman within the terms of the definition is
that he should be employed to do the work in that
industry and that there should be, in other words, an
employment of his by the employer and that there
should be a relationship between the employer and
employee or master and servant unless a person is
thus employed there can be no question of his being
a "workman" within the definition of the term as
contained in the Act.
Dharangadhara Chemical Works Ltd. Vs. State of
Saurashtra (1957 - I - LLJ - 477). Now where a
contractor employs a workman to do the work which
he contracted with a third person to accomplish on
the definition as it stands, the workman of the
contractor would not without something more
become the workman of that third person. Therefore,
when the workmen employed by the contractor were
certainly not the workmen of the corporation and no
claim to that effect has been made by the union."
11. In the decision reported in 2001 LAB IC - 3656
(supra) the Hon'ble Apex Court have held that:—
"The principle that a beneficial legislation needs to
be constructed liberally in favour of the class for
whose benefit it is intended, does not extend to
reading in the provisions of the Act what the
legislature has not provided whether expressly or by
necessary implication, or substituting remedy or
benefits for that provided by the legislature. The
intendment of the CLRA Act is to regulate the
conditions of service of the contract labour and to
authorize in Section 10(1) prohibition of contract
labour system by the appropriate Government on
consideration of factors enumerated in sub-section
(2) of Section 10 of the Act among other relevant
factors. But, the presence of some or all those factors,
provide no ground for absorption of contract labour
on issuing notification under Section 10(1) by the
appropriate Government, is not alluded to either in
Section 10 or at any other place in the Act and the
consequence of violation of Sections 7 and 12 of the
CLRA Act is explicitly provided in Sections 23 and
25 of the CLRA Act, it is not for the High Courts or
the Supreme Court to read in some unspecified
remedy in Section 10 or substitute for penal
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consequences specified in Sections 23 and 25 a
different sequel be it absorption of contract labour
in the establishment of principal employer or a lesser
or a harsher punishment. Such an interpretation of
the provisions of the statute will be far beyond the
principle of ironing out the creases and the scope of
interpretative legislation and as such clearly
impermissible.
Thus on issuance of prohibition notification under
S. 10(1) of the CLRA Act prohibiting employment of
contract labour or otherwise, in an industrial dispute
brought before it by any contract in regard to
conditions of service, the industrial adjudicator will
have to consider the question whether the contractor
has been interposed either on the ground of having
undertaken to produce any given result for the
establishment or for supply of contract labour for
work of the establishment under a genuine contract
or is a mere ruse/camouflage to evade compliance of
various beneficial legislations so as to deprive the
workers of the benefit there under. If the contract is
found to be not genuine but a mere camouflage, the
so called contract labour will have to be treated as
employees of the principal employer who shall be
directed to regularize the services of the contract
labour in the concerned establishment. If the contract
is found to be genuine and the principal employer
intends to employ regular workmen he shall give
preference to the erstwhile contract labour. It
otherwise found suitable, and, if necessary, by
relaxing the condition as to maximum age
appropriately taking into consideration the age of
the workers at the time of their initial employment by
the contractor and also relaxing the condition as to
academic qualifications other than technical
qualifications.
Air India's case 1997 AIR SCW430 Overruled
prospectively. M.A.T. Nos. 1704 and 1705 of 1999,
D/ - 12-8-1999 (Cal): C.O. No. 6545(W) if 1996, D/ -
9-5-1997(Cal): W.A. Nos. 345-354 of 1997m D/ -
17-4-1998 (Kant): W.P. No. 4050 of 1999, D/ - 2-8-2000
(Born) and W.P. No. 2616 of 1999, D/ - 23-12-1999
(Born), 1998 Lab IC 2571 (Cal), Reversed.
It cannot be said that by virtue of engagement of
contract labour by the contractor in any work of or in
connection with the work of an establishment, the
relationship of master and servant is created between
the principal employer and the contract labour. Even
a combined reading of the definition of the terms
"Contract labour", "Establishment" and "Workman"
does not show that the legal relationship between
the person employed in any industry and the owner
of the industry is created • irrespective of the fact as
to who has brought about such relationship. The
word "Workman" is defined in wide terms. It is a
generic term of which contract labour is a species. It
is true that combined reading of the terms
"Establishment" and "Workman" shows that a
workman engaged in any establishment would have
direct relationship with the principal employer as a
servant of master. But what is true of a workman
could not be correct of contract labour. When the
provisions of the Act neither contemplate creation
of direct relationship of master and servant between
the principal employer and the contract labour nor
can such relationship be implied from the provisions
of the action issuing notification under Section 10(1)
of the CLRA Act. A fortiori much less can such a
relationship be found to exist from the rules and the
forms made there under."
12.In the decision reported in 1994 II CLR 402 (Supra),
the Hon'ble Apex Court have held that:-
With the industrial growth, the relation between the
employer and the employees also has taken a new
turn. At one time the establishment being the
employer all persons working therein were the
employees of such employer. But slowly the employer
including Central and State Governments started
entrusting many of the jobs to contractors.
Contractors in their turn employed a worker, who
has no direct relationship with the establishment in
which they were employed. Many contractors
exploited the labourers engaged by them in various
manners including the payment of low wages. Hence,
the Contract Labour (Regulation and Abolition) Act,
1970 was enacted to regulate the employment of
contract labour in certain establishment and to
provide for its abolition in certain circumstances and
for matters connected therewith.
The "Contract Labour" has been defined in Section
2 (1) (b) to mean a workman, who has been employed
as contract labour in or in connection with the work
of an establishment when he is hired in or in
connection with such work by or through a
contractor, with or without the knowledge of the
principal employer. Section 2 (1) (c) defines
"Contractor" to mean a person who undertakes to
produce a given result for the establishment, other
than a mere supply of goods or articles of manufacture
to such establishment, through contract labour or
who supplies contract labour for any work of the
establishment and includes a sub-contractor.
"Principal employer" has been defined to mean (i) in
relation to any office or department of the
Government or a local authority, the head of that
office or department or such other officer as the
government or the local authority, as the case may
be, may specify in this behalf and (ii) in a factory, the
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399
owner or occupier of the factory. In view of section 10,
of the appropriate Government may after consultation
with the Central Board or, as the case may be, a state
Board, prohibit, by notification in the Official Gazette,
employment of contract labour "in any process,
operation or other work in any establishment," Sub-
section (2) of Section 10 requires that before issuing
any such notification, in relation to an
establishments, the appropriate Government shall
have regard to the conditions of work and benefits
provided for the contract labour in that establishment
and other relevant factors. One of the relevant
factors, which is to be taken into consideration is
whether the work performed by the contract
labourers is of perennial nature. Section 12 enjoins
that no contractor to whom this Act is applicable
shall undertake or execute any work through contract
labour except under and in accordance with a license
issued in that behalf by the licensing authority. The
license so issued may contain conditions in respect
of hours of work, fixation of wages and other essential
amenities in respect of contract labour as the
appropriate Government may deem fit to impose in
accordance with rules. Section 20 provides that if
any amenity required to be provided under section
16, section 17, section 18, or section 19 for the benefit
of the contract labour employed in an establishment,
is not provided by the contractor within the time
prescribed by the contractor within the time
prescribed therefore, such amenity shall be provided
by the principal employer within such time as may be
prescribed and all expensed incurred by the principal
employer in providing the amenity may be recovered
by the principal employer from the contractor "either
by deduction from any amount payable to the
contractor under any contract or as a debt payable
by the contractor". Section 21 says that a contractor
shall be responsible for the payment of wages to
each worker employed by him as contract labour but
at the same time in order to protect the interest of
such contract labour, it requires every principal
employer to nominate a representative duly
authorized by him to be present at the time of
disbursement of wages by the contractor. It shall be
the duty of the contractor to ensure the disbursement
of wages in the presence of the authorized
representative of the principal employer. Because of
sub-section (4) of section 21, if the contractor fails to
make payment of wages within the prescribed period,
then the principal employer shall be liable to make
payment of wages in full to the contact labour
employed by the contractor and recover the amount
so paid from the contractor. Any contravention of
the provisions aforesaid has been made penal for
which punishment can be imposed.
From the provisions referred to above, it is apparent
that the framers of the Act have allowed and
recognized contract labour and they have never
purported to abolish it in its entirety. The primary
object appears to be that there should not be any
exploitation of the contract labourers by the
contractor or the establishment. For achieving that
object, statutory restrictions and responsibilities have
been imposed on the contractor as well as on the
principal employer. Of course if any expenses are
incurred for providing any amenity to the contract
labourers or towards the payment of wages by the
principle employer he is entitled to deduct the same
from the bill of the contractor. The Act also conceives
that all appropriate government may after
consultation with the central board or the state board,
as the case may be, prohibit by notification in official
gazette, employment of contract labour in any
process, operation or other work in any
establishment, taking all facts and circumstances of
employment of contract labour in such process,
operation or the work into consideration.
Of late a trained amongst the contract labourers is
discernible that after having work for some years,
they make a claim that they should be absorbed by
the principal employer and be treated as employees
of the principal employer especially when the
principal employer is the central government or the
state government or an authority which can be held
to be state within the meaning of Article 12 of the
constitution, although no right flows from the
provisions of the act for the contract labourers to be
absorbed or to become the employees of the principal
employer. This court in the case of Gammon India
limited v. Union of India (1974) I SCC 596, pointed
out the object and scope of the act as follows:—
"The Act was passed to prevail the exploitation of
contract labour and also to introduce better condition
of work. The Act provides for regulation and abolition
of contract labour. The underline policy of the Act is
to abolish contract labour, wherever possible and
practicable and where it cannot be abolished to
altogether, the policy of the Act is that the working
conditions of the contract labour should be so
regulated as to ensure payment of wages and
provisions of essential amenities. This is why the
Act provides for regulated conditions of work and
'contemplates progressive abolition to the extent
contemplated by Section 10 of the Act."
In the case of B.H.E.L. Workers' Association v. Union
of India, 1985 I CLR SC 165 = (1985) 1 SCC 630 it was
pointed out that Parliament has not abolished the
contract labour as such but has provided for its
abolition by the Central Government in appropriate
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cases under section 10 of the Act. It is not for the
court to enquire into the question and to decide
whether the employment of contract labour in any
process, operation or other work in any establishment
should be abolished or not. That has to be decided
by the government after considering the relevant
aspects as required by Section 10 of the Act. Again
in the case of Mathura Refinery Mazdoor Sangh V.
Indian Oil Corporation Ltd., 1991I CLR 684, this court
refused to direct the Indian Oil Corporation Ltd., to
absorb the contract labourers in its employment
saying that, the contract labourers have not been
found to have direct connection with the refinery. In
other words, there was no relationship of employer
and employee between the Indian Oil Corporation
Ltd. and the contract labourers concerned. Again in
Dena Nath V. National Fertilizers Ltd., 1992 I CLR 1,
this court pointed out that the aforesaid Act has two
purposes to serve (i) to regulate the conditions of
service of the worker employed by the contractor
who is engaged by a principal employer and (ii) to
provide for the abolition of contract labour altogether,
in certain notified processes, operation or other works
in any establishment by the appropriate government,
under section 10 of the Act. It was further stated that
neither the Act nor the Rules framed by the central
government or by any appropriate government
provide that upon abolition of contract labour, the
labourers would be directly absorbed by the principal
employer.
It is true that with passage of time and purely with a
view to safeguard the interests of workers, many
principal employers while renewing the contracts
have been insisting that the contractor or the new
contractor retains the old employees. Intact such a
condition is incorporated in the contract itself.
However, such a clause in the contract which is
benevolently inserted in the contract to protect the
continuance of the source of livelihood of the
contract labour cannot by itself give rise to a right to
regularization in the employment of the principal
employer. Whether the contract labourers have
become the employees of the principal employer in
course of time and on whether the engagement and
employment of labourers through a contractor is a
mere camouflage and a smoke screen, as has been
urged in this case, is a question of fact is to be
established by the contract labourers on the basis of
the requisite material. It is not possible for High Court
or this court, while exercising writ jurisdiction or
jurisdiction under Article 136 to decide such
questions only on the basis of the affidavits. It need
not to be pointed out that in all such cases, the
labourers are initially employed and engaged by the
contractors. As such at what point of time a direct
link is established between the contract labourers
and the principal employer, eliminating the contractor
from the scene, is a matter which has to be established
on material produced before the court. Normally, the
Labour Court and the Industrial Tribunal, under the
Industrial Disputes Act are the Competent Forum to
adjudicate such disputes on the basis of the oral and
documentary evidence produced before them."
So, keeping in view the principles enunciated by the
Hon'ble Apex Court in the decisions mentioned above, the
present case in hand is to be considered.
13. In this case, the letter No. U-23013/ 11/89 /LW
dated 28.05.92, Govt. of India, Ministry of Labour shows
that the prohibition of employment of contract labour in
sweeping, cleaning, dusting and watching of buildings
owned or occupied by the establishments of Food
Corporation of India and some other departments was lifted
by the Central Government. So, the engagement of contract
labour by the Party No. 1 cannot be said to be illegal. It is
also found from the materials on record that the appointment
of labour contractor by Party No. 1 for supply of Security
Guards was genuine and the same was not only on papers
as claimed by the workman. The workman has failed to
prove such claim by adducing cogent or reliable evidence.
The engagement of labor contractor by Party No. 1 was
not a mere ruse or camouflage to evade compliance of the
various beneficial legislations, so as to deprive the workman
of the benefits there under. The workman has not been
able to produce any document to show that at any point of
time, Party No. 1 paid him wages as their employee. As it is
clear from the evidence on record that the workman was
engaged as a contract labour with Party No. 1, by the
contractor, it can be held that there was no relationship of
master and servant between the Party No. 1 and the
workman. Hence, there was no question of termination of
the services by the Party No. 1 or compliance of the
provisions of Sections 25-F or 25-H of the Act.
14. It is the own case of the workman that he was
engaged by the contractor. So the contractor, who had
engaged the workman, is a necessary party in the reference.
The said contractor has not been added as a party in this
reference. Due to non-joinder of necessary party, the
reference is bad in law.
In view of the materials on record and the discussions
made above, the reference cannot be answered in favour
of the workman. Hence, it is ordered:-
ORDER
The reference is answered in the negative. The
workman is not entitled to any relief.
J. P. CHAND, Presiding Officer
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New Delhi, the 27th December, 2013
S.O. 193.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 244/2003)
of the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Nagpur as shown in the Annexure, in the industrial dispute
between the management of Food Corporation of India
and their workmen, received by the Central Government on
27/12/2013.
[No. L-22012/146/2003-IR(CM-II)]
M. K. SINGH, Section Officer
ANNEXURE
BEFORE SHRI J. P. CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No.CGIT/NGP/244/2003
Date: 29.11.2013
Party No.1(a)
The District Manager,
Food Corporation of India,
Ajani, Nagpur,
Nagpur - 440015.
Party No. 1 (b)
The Senior Regional Manager,
Food Corporation of India,
Mistry Bhawan, Dinshaw Wacha
Road, Churchgatye,
Mumbai - 400020.
Versus
Party No.2
The Secretary,
Rashtriya Mazdoor Sena, Hind Nagar
Ward No. 2, Near Boudha Vihar,
Post: Wardha, Distt. Wardha (M.S.)
AWARD
(Dated: 29th November, 2013)
In exercise of the powers conferred by clause (d)
of sub-section (1) and sub-section 2(A) of section 10 of
Industrial Disputes Act, 1947 (14 of 1947) ("the Act" in
short), the Central Government has referred the industrial
dispute between the employers, in relation to the
management of Food Corporation of India and their
workman, Shri Firoj Jamshir Khan for adjudication, as per
letter No.L22012/146/2003-IR (CM-II) dated 08.12.2003, with
the following schedule:—
"Whether the action of the management of Food
Corporation of India, Nagpur (M.S.) in terminating
the services of Shri Firoj Jamshir Khan, Security
Guard w.e.f. 14.03.1999 is legal and justified? If not,
to what relief the concerned workman is entitled?"
2. On receipt of the reference, the parties were noticed
to file their respective statement of claim and written
statement and accordingly, the workman, Shri Firoj Jamshir
Khan, (“the workman” in short), filed the statement of claim
and the management of Food Corporation of India ("Party
No. 1 " in short) filed their written statement.
The case of the workman as presented in the
statement of claim is that he was in the employment of
Party No. 1 from 13.08.1997 and he was initially engaged
through a contractor at Wardha Depot of Party No. 1 , as a
Security Guard and he was in continuous service without
any interruption till 14th March, 1999, when his services
were terminated orally by Party No. 1 , without following
the due procedure of law and he had completed more than
240 days of work in each year and the termination of his
services on 14.03.1999 was not in good faith, but in
colourable exercise of the rights and powers by the Party
No. 1 and while terminating his services, neither one
month's notice nor one month's wages in lieu of notice nor
retrenchment compensation was given to him as required
under section 25-F of the Act and after his illegal
termination, fresh hands from the department of home guard
and police were engaged by Party No. 1 to extract the
duties of Security guards, in violation of the provision of
section 25-H of the Act and the work which he was
performing is constantly in existence and the same is of a
perennial nature and as his termination is illegal and
unlawful, he is entitled for reinstatement in service with
continuity and full back wages.
The further case of the workman is that in 1997, he
was engaged by the Party No. 1 through the contractor for
a period of two years, but the contract was made only on
papers and after every two years, the Party No. 1 changed
the contractor on papers only and the engagement of the
so-called contractor did not replace the Security Guards
and he was also not disturbed from his services and he
was merely shown to be engaged by the contractors, but
actually he was working under the direct control and
supervision of the Party No. 1 and the contractor had no
role to play in the same and the work performed by him was
being assigned to him by Party No. 1 and he was a regular
employee of Party No. 1 and Party No. 1 was his real
employer and not the contractor as alleged and the
engagement and change of contractors by Party No. 1 from
time to time was sham and only a camouflage to deny his
legitimate claim and the contract between Party No. 1 and
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THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
the contractor was bogus and not genuine and therefore,
his oral termination from services was against the
mandatory provisions of the Act and the Central
Government decided to abolish the appointment of contract
labour as contemplated under section 10 of the Contract
Labour (Regulation and Abolition) Act, 1970 and issued
notification on 01.11.1990 with directions to abolish the
contract labour system in the establishment of the Party
No. 1 and to give employment to contract labours engaged
by the management and therefore, it was the mandatory
duty of the Party No. 1 to abolish the contract labour
system in all places and management of FCI implemented
the notification only at Nagpur and Manmad and absorbed
the Security Guards working at Nagpur and Manmad, but
at Akola, Amravati, Wardha and Gondia districts, the
contract labour system was continued by the management,
with an intention to deprive him from the benefits under
the labour laws.
It is further pleaded by the workman that his salary
was paid by the Party No. 1 and not by the contractor and
his daily attendance was also marked by the Asstt.
Manager of FCI, Wardha Depot and the Party No. 1 was
supervising his work through their officers and he had no
relation with the so called contractors engaged by the Party
No. 1 and Party No. 1 also supplied the articles, such as,
torch, lathi, whistle and uniform etc. to him and in view of
the long spell of work being carried out by him, he is entitled
to be reinstated in service with continuity and full back
wages.
3. The Party No. 1 in their written statement have
pleaded inter alia that the workman was never in their
employment and the workman has not impleded the
contractor, who appointed him, as a Party and the workman
was engaged by the contractor as a Security Guard at FCI
Depot and the said contractor is a necessary party and in
absence of the contractor, the proceeding cannot proceed
and the workman was not in their service uninterruptedly
till 14th March, 1999 and since the contract of the contractor
came to an end, the services of the workman were terminated
by the contractor and the original period of contract given
to the contractor for providing Security services was up to
1998 and the same was extended as per the terms and
conditions till March, 1999 and as the workman was not
employed by them, there was no question of following the
procedure of termination by them and they were not the
employer of the workman and the services of the workman
were never utilized by them as employer from 13.08.1997
to14.03. 1999 , without any break in service and the workman
did not complete 240 days of work in a year as alleged and
as the workman was engaged by the Security Contractor,
there was no relationship of master and servant between
them and the workman at any point of time and under
section 10 of the Contract Labour (Regularisation and
Abolition) Act, they were exempted by the Central
Government, so the allegations made by the workman
against them are not true and there was no question of
violation of the provisions of 25 (H) of the Act and the
work does not constantly exist and the work of providing
security guards was given to other Government Agencies
like Police Personnel and Home guards and therefore, the
workman has no right to claim any relief from them arid the
work of security is not perennial in nature and as and when
their go-downs are filled with food grains, then only,
services of the security guards are required and in
pursuance of the notification issued by the Central
Government abolishing contract labour system, they
appointed Home guards and Police personnel as security
guards.
The further case of Party No. 1 is that for the relief as
claimed in this reference, the workman had filed a writ petition
before the Hon'ble High Court, Nagpur Bench bearing W.P.
No. 1389/99 and the Hon'ble High Court rejected the said
WP and denied the reliefs prayed for and therefore, this
Tribunal has no jurisdiction to decide the reference and
the decision of the Hon'ble Court operates as res-judicata
and they floated tenders for the contract and lowest bidder
was awarded the contract and the change of contractor in
every two years was not on papers only and they had no
say in the appointment of security guards by the security
contractor and they had no control over the appointment
and service conditions of the workman, who was an
employee of the security agency and he was never their
employee and the security contractor was the employer of
the workman.
The further case of Party No. 1 is that the appropriate
government decided to abolish the employment of the
contract labour as contemplated under section 10 of the
Contract Labour (Regularisation and Abolition) Act, 1970
and the interpretation of the notification issued on
01.11.1990 put by the workman is not correct and they were
exempted from the operation of the Act of 1970 in the year
1989 and the said exemption was withdrawn in the year
1999 and therefore, the security contact given to the
contractor was terminated and hence, the services of the
workman were terminated by the security contractor and
they did not pay the salary to the workman and it was the
contractor, who was paying the same to the workman and
when the contractor failed to pay the salary to the workman,
they paid the amount as per the directions given by the
ALC from time to time and the said amount was recovered
from the contract's bill and they only used to check the
attendance of the security guards to find out as to whether
the contractor had made arrangement of the requisite
number of security guards, as per their requirement and
they did not have the power to terminate any employee
appointed by the contractor and they did not provide any
article, such as torch, lathi, whistle and uniform etc to the
workman and as such, the workman is not entitled to any
relief.
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403
4. Both parties have led oral evidence in support of
their respective claims, besides placing reliance on
documentary evidence.
The workman in support of his claim has examined
himself as a witness. In his evidence, which is on affidavit,
the workman has reiterated the facts mentioned in the
statement of claim.
In his cross-examination, the workman has admitted
that no appointment order was issued by the F.C.I. to him
and he has filed no document to show that he was
appointed by F.C.I. and F.C.I. was making payment of his
wages and he had worked for 240 days in every calendar
year with F.C.I. and he does not know English and there
was no advertisement by F.C.I. for appointment of security
guards.
5. Shri Suresh N. Bokade, the witness examined on
behalf of the Party No. 1 has also reiterated the facts
mentioned in the written statement, in his examination-in-
chief, which is on affidavit. In his cross-examination, the
witness for the Party No. 1 has admitted the suggestions
given on behalf the workman that the workman other
security guards were deployed to work in F.C.I. through
the contractor, Singh Security Services and Singh Security
Services was given the contract to supply security guards
for two years and after the expiry of contract of Singh
Security Services in 1995, contract for supply of security
guards was given to Industrial Security and Fire Services
for two years and the workman and other security guards
were engaged in F.C.I. through the contractors till December,
1998 and after the notification made by the Government
imposing ban for engagement of contract labourers in 1998,
F.C.I. discontinued the engagement of contract labourers
and security guards were being deployed for watch and
ward duty of F.C.I. depots and the workman other security
guards worked continuously from the date of their
respective engagement till December, 1998 in F.C.I. through
different contractors and F.C.I. had the control regarding
the duties to be performed by the security guards.
6. At the time of argument, it was submitted by the
learned advocate for the workman that the workman from
13.08.1997 was in the service of the Party No. 1 till
14.03.1999, when all of a sudden, his services were
terminated orally by the Party No. 1 without compliance of
the mandatory provisions of Law, particularly the
provisions of sections 25 F and 25 H of the Act and party
no 1 also did not comply with the provisions of the Contract
Labour (Regulation and Abolition)Act,1970("Act,1970" in
short ) and as such, the termination of the workman is
illegal and null and void. It is further submitted by the
learned advocate for the workman that the appointment of
the workman to work in the establishment of the Party No. 1
was admittedly through contractor appointed by Party
No. 1 and it is an admitted position that the tenure of the
contract was for two years and though there was change
of contractor in every two years, the workman and other
security guards remained the same and there was a specific
condition in the contract between the management and the
contractor that the set of workers will be continued by the
incoming contractor and in such fashion, the workman and
other security guards continued to work in the
establishment of Party No. 1 right from the date of their
respective date of appointments till March, 1999 and there
was no bread in their service and each of them completed
240 days of service in each calendar year and the same
shows that the work was all time available in the
establishment of Party No. 1 and is of perennial nature and
ever though the workman and other security guards were
employed by the contractor, fact remains and is also
admitted by the witness for the Party No. 1 that Party
No. 1 had control over the working of the workman.
The learned advocate for the workman further
submitted that though Party No. 1 in the written statement
has contended that it was exempted from the provisions of
the Act, 1970, it has failed to produce any document in
corroboration of such contention and as mere statement of
Party No. 1 is no sufficient, the fact remains that Party
No. 1 was never exempted from the provisions of the Act,
1970 and the Central Government by notification dated
01.01.1990 issued U/S 10 of the Act, 1970 abolished contract
labour system in the establishment of Party No. 1 and after
issuance of the said notification, Party No. 1 was prohibited
from engaging any contract labour and as the workman
and other security guards were engaged by Party No. 1
inspite of notification prohibiting contract labour system,
the workman became the direct employee of the Party
No. 1 and he has attained the status of regular employee of
Party No. 1 .
It was also argued by the learned advocate for the
workman that Party No. 1 has not filed on record any
document showing that it was registered as principal
employer or the contractors were registered under section
7 and Section 12 respectively of the Act, 1970 and in
absence of the said documents, it cannot be assumed that
the contract between the contractor and management was
genuine and it is clear that the contracts between the Party
No. 1 and the contractors were sham and bogus and such
contract was entered into only with malafide intention to
deny regular employment to the workman and after
termination of the services of the workman, Party No. 1
appointed police and home guard personnel as security
guards and this proves that the work is available even
today and after the notification dated 01.11.1990, Party
No. 1 regularized the contract labourers were engaged at
Nagpur and Manmad, but same was not the case at Akola,
Amravati, Wardha and Gondia and this shows that Party
No. 1 indulged into invidious discrimination amongst equal,
which is contrary to provisions of Articles 14 & 16 of the
constitution and the Writ Petition filed by the workman
and others as disposed of by the Hon'ble High Court with
404
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[PART II—SEC. 3(ii)]
a direction to the petitioners to approach the appropriate
authority and as such, the judgment in Writ Petition 1389/
99, cannot operate as res-judicata.
In support of the contentions, the learned advocate
for the workman placed reliance on the decision reported
in 2006(2) Bom.CR - 167 (Food Corporation of India Vs.
Prashant Pandurang Ramteke &others).
The learned advocate for the workman also submitted
that as the termination of the workman from service is illegal,
the workman is entitled for reinstatement in service with
continuity and full back wages.
7. Per contra, it was submitted by the learned
advocate for the Party No. 1 that the workman was never
appointed by Party No. 1 and he has engaged by the
contractor as a security guard and as such, the concerned
contractor is a necessary party and inspite of raising such
objection in the written statement, the workman did not
implead the contractor as a party and for that the reference
is not maintainable. It was further submitted by the learned
advocate for the Party No. 1 that the workman was engaged
by the contractor and as the contract of the contractor
came to an end in March, 1999, the services of the workman
were terminated by the contractor and as such, there was
no question of Party No. 1 complying with the due
procedure of termination and there was no relationship of
master and servant between the Party No. 1 and the workman
and the Party No. 1 was exempted by the Central
Government from the ban imposed for engagement of
contract labourers, so contract was given to the security
contractor, as per rules, for supply of security guards and
due to the notification of the Government for abolition of
contract labour system, Home guards and Police personnel
were appointed as security guards and Party No. 1 has no
control over the workman and the security contractor was
submitting bills for payment for supply of security guards
and the security contractor was paying the wages to the
workman. It was further submitted by the learned advocate
for the Party No. 1 that the workman and some others had
approached the Hon'ble High Court, Nagpur Bench in W.P.
1389 of 1999 for the reliefs sought in this reference and the
Hon'ble High Court while depositing of the said petition
have held that the termination of the workman by the
contractor was a valid one and the action of FCI was legal
and as such, the workman cannot agitate the question again
and the decision of the Hon'ble High Court operates as
res-judicata between the parties and the workman is not
entitled to any relief.
8. First of all, I will take up the submission made by
the learned advocate for the Party No. 1 that the present
reference is hit by the principles of res-judicata, due to the
decision of the Hon'ble High Court, Nagpur Bench in W.P.
1389/99.
It is not disputed that the workman alongwith 78
others through the union, "Rashtriya Mazdoor Sena
Saptahit Jaibhim" filed Writ Petition no. 1389/99 before the
Hon'ble High Court of Judicature at Bombay, Nagpur Bench,
Nagpur, for their regularisation and the Hon'ble High Court
did not grant such relief. On perusal of the order passed by
the Hon'ble High Court on 29.07.2002 in the said writ
petition, it is found that the workman and others claimed
regularisation on the ground that they were employed by
the contractor for doing regular work of the Food
Corporation of India and in view of the same, they have
became workmen of Food Corporation of India, since the
work on which they were employed is of perennial nature.
However, it is found from the judgment that the Hon'ble
High Court did not consider the main relief and passed the
following order:
"In view of the judgment of the Constitution Bench
in Steel Authority of India Ltd. and others Vs.
National Union water front workers and others
(reported in 2001 (7) SCC1), the relief sought by the
petitioners cannot be granted since the petition
involves disputed question of facts as also other
facts which are required to be adjudicated by
appropriate authority. Accordingly, the main prayer
to absorb them cannot be granted.
XX
XX
XX
XX
In view of the rejection of the main prayer, the question
of granting other prayer does not arise. In case, the
petitioners approach the appropriate authority, the
appropriate authority shall take decision in the matter
within a period of one year. The applicants are free to
approach the appropriate authority for redress of
their grievances."
So, it is clear from the orders passed by the Hon'ble
High Court as mentioned above that the Hon'ble High Court
did not consider the claim made by the workman and others
on merit and granted them the liberty to approach the
appropriate authority for redress. The Hon'ble High Court
in the decision reported in 2006(2) Bom.CR - 167 (Supra)
have held that, "Because Division Bench had not gone
into merits of the case the decision cannot operate as res-
judicata". Applying the principles settled by the Hon'ble
High Court, as mentioned above to the case in hand, the
reference cannot be said to be hit by the principles of res-
judicata. So, there is no force in the contention raised by
the learned advocate for the Party No. 1 .
9. In this reference, it is never the case of the workman
that he was directly appointed or engaged by the Party
No. 1 as a security guard. In the very beginning of the
statement of claim, it has been mentioned by the workman
that he was initially engaged at Food Corporation of India
Depot, Wardha as a security guard, through a contractor.
In paragraph 4 of the statement of claim, the workman has
mentioned that, "In the year 1993, the workman was
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405
engaged by the Food Corporation of India through
contractor, for the period of 2 years, but the contract was
made on paper." The case of the workman is that after
every two years, the Party No. 1 on papers showed the
change of contractors, but he was not disturbed from
services and he worked continuously without any break
till 14.03.1999 and as he worked as a security guard of
perennial nature, he is entitled for reinstatement in service.
The workman has also claimed that as the Central
Government issued notification on 01.11.1990 to abolish
the contract labour system in FCI and directed to give
employment to contract labours engaged by the
management and Party No. 1 implemented such direction
at Nagpur and Manmad only and gave employment and
regularized and absorbed the services of the Security Guards
working at Nagpur and Manmad and did not implement the
same at Wardha and other places to deprive him from the
benefits under the Labour Laws.
In his evidence on affidavit also, the workman has
mentioned that he was initially engaged in Food
Corporation of India as a Security Guard through a
contractor.
From the evidence on record and the specific
admission of the workman in the statement of claim and so
also in his evidence on affidavit that he was engaged by
the contractor, it is clear that the workman was engaged by
the contractor. The workman' has not produced any
evidence to show that he was directly engaged by the
Party No. 1 .
10.At this juncture, I think it apropos to mention
about the principles enunciated by the Hon'ble Apex Court
regarding contract labours, in the decisions reported in
1985-11 LLJ-4 (S.C.) (The workman of the Food Corporation
of India Vs. M/s. Food Corporation of India), 2001 LAB IC
3656 (S.C.) (Steel Authority of India Ltd. and others Vs.
National Union Water Front Workers and others) and 1994
II CLR 402 (R.K. Panda & Others Vs. Steel Authority of
India and Others).
In the decision reported in 1985-II LLOJ-4 (supra)
the Hon'ble Apex Court have held that:—
"Briefly stated, when corporation engaged a
contractor for handling food grain at Siliguri Depot,
the corporation had nothing to do with the manner
of handling work done by the contractor, the labour
force employed by him, payments made by him etc.
In such a fact situation, there was no privity of
contract of employer and workmen between the
corporation and the workmen. "Workmen" has been
defined (omitting the words not necessary) in the
Industrial Disputes Act to mean (any person
including an apprentice) employed in any industry
to do.......... “The expression' employed has at least
two known connotations, but as used in the
definition, the context would indicate that it is used
in the sense of a relationship brought about by
express or implied contract of service in which the
employee renders service for which he is engaged
by the employer and the latter agrees to pay him in
cash or kind as agreed between them or statutorily
prescribed. It discloses a relationship of command
and obedience. The essential condition of a person
being a workman within the terms of the definition is
that he should be employed to do the work in that
industry and that there should be, in other words, an
employment of his by the employer and that there
should be a relationship between the employer and
employee or master and servant unless a person is
thus employed there can be no question of his being
a "workman" within the definition of the term as
contained in the Act.
Dharangadhara Chemical Works Ltd. Vs. State of
Saurashtra (1957 - I - LLJ - 477). Now where a
contractor employs a workman to do the work which
he contracted with a third person to accomplish on
the definition as it stands, the workman of the
contractor would not without something more
become the workman of that third person. Therefore,
when the workmen employed by the contractor were
certainly not the workmen of the corporation and no
claim to that effect has been made by the union."
11.In the decision reported in 2001 LAB IC - 3656
(supra) the Honble Apex Court have held that:—
"The principle that a beneficial legislation needs to
be constructed liberally in favour of the class for
whose benefit it is intended, does not extend to
reading in the provisions of the Act what the
legislature has not provided whether expressly or by
necessary implication, or substituting remedy or
benefits for that provided by the legislature. The
intendment of the CLRA Act is to regulate the
conditions of service of the contract labour and to
authorize in Section 10(1) prohibition of contract
labour system by the appropriate Government on
consideration of factors enumerated in sub-section (2)
of Section 10 of the Act among other relevant factors.
But, the presence of some or all those factors, provide
no ground for absorption of contract labour on
issuing notification under Section 10(1) by the
appropriate Government, is not alluded to either in
Section 10 or at any other place in the Act and the
consequence of violation of Sections 7 and 12 of the
CLRA Act is explicitly provided in Sections 23 and
25 of the CLRA Act, it is not for the High Courts or
the Supreme Court to read in some unspecified
remedy in Section 10 or substitute for penal
consequences specified in Sections 23 and 25 a
different sequel be it absorption of contract labour
406
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
in the establishment of principal employer or a lesser
or a harsher punishment. Such an interpretation of
the provisions of the statute will be far beyond the
principle of ironing out the creases and the scope of
interpretative legislation and as such clearly
impermissible.
Thus on issuance of prohibition notification under
S. 10(1) of the CLRA Act prohibiting employment of
contract labour or otherwise, in an industrial dispute
brought before it by any contract in regard to
conditions of service, the industrial adjudicator will
have to consider the question whether the contractor
has been interposed either on the ground of having
undertaken to produce any given result for the
establishment or for supply of contract labour for
work of the establishment under a genuine contract
or is a mere ruse/camouflage to evade compliance of
various beneficial legislations so as to deprive the
workers of the benefit there under. If the contract is
found to be not genuine but a mere camouflage, the
so called contract labour will have to be treated as
employees of the principal employer who shall be
directed to regularize the services of the contract
labour in the concerned establishment. If the contract
is found to be genuine and the principal employer
intends to employ regular workmen he shall give
preference to the erstwhile contract labour. It
otherwise found suitable, and, if necessary, by
relaxing the condition as to maximum age
appropriately taking into consideration the age of
the workers at the time of their initial employment by
the contractor and also relaxing the condition as to
academic qualifications other than technical
qualifications.
Air India's case 1997 AIR SCW430 Overruled
prospectively. M.A.T. Nos. 1704 and 1705 of 1999,
D/ - 12-8-1999 (Cal): C.O. No. 6545(W) if 1996, D/ -9-
5-1997(Ca1): W.A. Nos. 345-354 of 1997m D/ - 17-4-
1998 (Kant): W.P. No. 4050 of 1999, D/ - 2-8-2000
(Born) and W.P. No. 2616 of 1999, D/ - 23-12-1999
(Born), 1998 Lab IC 2571 (Cal), Reversed.
It cannot be said that by virtue of engagement of
contract labour by the contractor in any work of or in
connection with the work of an establishment, the
relationship of master and servant is created between
the principal employer and the contract labour. Even
a combined reading of the definition of the terms
"Contract labour", "Establishment" and "Workman"
does not show that the legal relationship between
the person employed in any industry and the owner
of the industry is created irrespective of the fact as
to who has brought about such relationship. The
word "Workman" is defined in wide terms. It is a
generic term of which contract labour is a species. It
is true that combined reading of the terms
"Establishment" and "Workman" shows that a
workman engaged in any establishment would have
direct relationship with the principal employer as a
servant of master. But what is true of a workman
could not be correct of contract labour. When the
provisions of the Act neither contemplate creation
of direct relationship of master and servant between
the principal employer and the contract labour nor
can such relationship be implied from the provisions
of the action issuing notification under Section 10(1)
of the CLRA Act. A fortiori much less can such a
relationship be found to exist from the rules and the
forms made there under."
12.In the decision reported in 1994 II CLR 402 (Supra),
the Hon'ble Apex Court have held that:—
With the industrial growth, the relation between the
employer and the employees also has taken a new
turn. At one time the establishment being the
employer all persons working therein were the
employees of such employer. But slowly the employer
including Central and State Governments started
entrusting many of the jobs to contractors.
Contractors in their turn employed a worker, who
has no direct relationship with the establishment in
which they were employed. Many contractors
exploited the labourers engaged by them in various
manners including the payment of low wages. Hence,
the Contract Labour (Regulation and Abolition)
Act, 1970 was enacted to regulate the employment
of contract labour in certain establishment and to
provide for its abolition in certain circumstances and
for matters connected therewith.
The "Contract Labour" has been defined in Section 2
(1) (b) to mean a workman, who has been employed
as contract labour in or in connection with the work
of an establishment when he is hired in or in
connection with such work by or through a
contractor, with or without the knowledge of the
principal employer. Section 2 (1) (c) defines
"Contractor" to mean a person who undertakes to
produce a given result for the establishment, other
than a mere supply of goods or articles of manufacture
to such establishment, through contract labour or
who supplies contract labour for any work of the
establishment and includes a sub-contractor.
"Principal employer" has been defined to mean (i) in
relation to any office or department of the
Government or a local authority, the head of that
office or department or such other officer as the
government or the local authority, as the case may
be, may specify in this behalf and (ii) in a factory, the
owner or occupier of the factory. In view of section 10,
of the appropriate Government may after consultation
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with the Central Board or, as the case may be,
a state Board, prohibit, by notification in the Official
Gazette, employment of contract labour "in any
process, operation or other work in any
establishment," Sub-section (2) of Section 10 requires
that before issuing any such notification, in relation
to an establishments, the appropriate Government
shall have regard to the conditions of work and
benefits provided for the contract labour in that
establishment and other relevant factors. One of the
relevant factors, which is to be taken into
consideration is whether the work performed by the
contract labourers is of perennial nature. Section 12
enjoins that no contractor to whom this Act is
applicable shall undertake or execute any work
through contract labour except under and in
accordance with a license issued in that behalf by
the licensing authority. The license so issued may
contain conditions in respect of hours of work,
fixation of wages and other essential amenities in
respect of contract labour as the appropriate
Government may deem fit to impose in accordance
with rules. Section 20 provides that if any amenity
required to be provided under section 16, section 17,
section 18, or section 19 for the benefit of the contract
labour employed in an establishment, is not provided
by the contractor within the time prescribed by the
contractor within the time prescribed therefore, such
amenity shall be provided by the principal employer
within such time as may be prescribed and all
expensed incurred by the principal employer in
providing the amenity may be recovered by the
principal employer from the contractor "either by
deduction from any amount payable to the contractor
under any contract or as a debt payable by the
contractor". Section 21 says that a contractor shall
be responsible for the payment of wages to each
worker employed by him as contract labour but at
the same time in order to protect the interest of such
contract labour, it requires every principal employer
to nominate a representative duly authorized by him
to be present at the time of disbursement of wages
by the contractor. It shall be the duty of the contractor
to ensure the disbursement of wages in the presence
of the authorized representative of the principal
employer. Because of sub-section (4) of section 21, if
the contractor fails to make payment of wages within
the prescribed period, then the principal employer
shall be liable to make payment of wages in full to the
contact labour employed by the contractor and
recover the amount so paid from the contractor. Any
contravention of the provisions aforesaid has been
made penal for which punishment can be imposed.
From the provisions referred to above, it is apparent
that the framers of the Act have allowed and
recognized contract labour and they have never
purported to abolish it in its entirety. The primary
object appears to be that there should not be any
exploitation of the contract labourers by the
contractor or the establishment. For achieving that
object, statutory restrictions and responsibilities have
been imposed on the contractor as well as on the
principal employer. Of course if any expenses are
incurred for providing any amenity to the contract
labourers or towards the payment of wages by the
principle employer he is entitled to deduct the same
from the bill of the contractor. The Act also conceives
that all appropriate government may after
consultation with the central board or the state board,
as the case may be, prohibit by notification in official
gazette, employment of contract labour in any
process, operation or other work in any
establishment, taking all facts and circumstances of
employment of contract labour in such process,
operation or the work into consideration.
Of late a trained amongst the contract labourers is
discernible that after having work for some years,
they make a claim that they should be absorbed by
the principal employer and be treated as employees
of the principal employer especially when the
principal employer is the central government or the
state government or an authority which can be held
to be state within the meaning of Article 12 of the
constitution, although no right flows from the
provisions of the act for the contract labourers to be
absorbed or to become the employees of the principal
employer. This court in the case of Gammon India
limited Vs. Union of India (1974) I SCC 596, pointed
out the object and scope of the act as follows:-
"The Act was passed to prevail the exploitation of
contract labour and also to introduce better condition
of work. The Act provides for regulation and abolition
of contract labour. The underline policy of the Act is
to abolish contract labour, wherever possible and
practicable and where it cannot be abolished to
altogether, the policy of the Act is that the working
conditions of the contract labour should be so
regulated as to ensure payment of wages and
provisions of essential amenities. This is why the
Act provides for regulated conditions of work and
contemplates progressive abolition to the extent
contemplated by Section 10 of the Act."
In the case of B.H.E.L. Workers' Association Vs.
Union of India, 1985 I CLR SC 165 = (1985) 1 SCC 630
it was pointed out that Parliament has not abolished
the contract labour as such but has provided for its
abolition by the Central Government in appropriate
cases under section 10 of the Act. It is not for the
court to enquire into the question and to decide
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THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
whether the employment of contract labour in any
process, operation or other work in any establishment
should be abolished or not. That has to be decided
by the government after considering the relevant
aspects as required by Section 10 of the Act. Again
in the case of Mathura Refinery Mazdoor Sangh Vs.
Indian Oil Corporation Ltd., 1991 I CLR 684, this court
refused to direct the Indian Oil Corporation Ltd., to
absorb the contract labourers in its employment
saying that, the contract labourers have not been
found to have direct connection with the refinery. In
other words, there was no relationship of employer
and employee between the Indian Oil Corporation
Ltd. and the contract labourers concerned. Again in
Dena Nath Vs. National Fertilizers Ltd., 1992 I CLR 1,
this court pointed out that the aforesaid Act has two
purposes to serve (i) to regulate the conditions of
service of the worker employed by the contractor
who is engaged by a principal employer and (ii) to
provide for the abolition of contract labour altogether,
in certain notified processes, operation or other works
in any establishment by the appropriate government,
under section 10 of the Act. It was further stated that
neither the Act nor the Rules framed by the central
government or by any appropriate government
provide that upon abolition of contract labour, the
labourers would be directly absorbed by the principal
employer.
It is true that with passage of time and purely with a
view to safeguard the interests of workers, many
principal employers while renewing the contracts
have been insisting that the contractor or the new
contractor retains the old employees. Infact such a
condition is incorporated in the contract itself.
However, such a clause in the contract which is
benevolently inserted in the contract to protect the
continuance of the source of livelihood of the
contract labour cannot by itself give rise to a right to
regularization in the employment of the principal
employer. Whether the contract labourers have
become the employees of the principal employer in
course of time and on whether the engagement and
employment of labourers through a contractor is a
mere camouflage and a smoke screen, as has been
urged in this case, is a question of fact is to be
established by the contract labourers on the basis of
the requisite material. It is not possible for High Court
or this court, while exercising writ jurisdiction or
jurisdiction under Article 136 to decide such
questions only on the basis of the affidavits. It need
not to be pointed out that in all such cases, the
labourers are initially employed and engaged by the
contractors. As such at what point of time a direct
link is established between the contract labourers
and the principal employer, eliminating the contractor
from the scene, is a matter which has to be established
on material produced before the court. Normally, the
Labour Court and the Industrial Tribunal, under the
Industrial Disputes Act are the Competent Forum to
adjudicate such disputes on the basis of the oral and
documentary evidence produced before them."
So, keeping in view the principles enunciated by the
Hon'ble Apex Court in the decisions mentioned above, the
present case in hand is to be considered.
13. In this case, the letter No. U-23013/11/89/LW
dated 28.05.92, Govt. of India, Ministry of Labour shows
that the prohibition of employment of contract labour in
sweeping, cleaning, dusting and watching of buildings
owned or occupied by the establishments of Food
Corporation of India and some other departments was lifted
by the Central Government. So, the engagement of contract
labour by the Party No. 1 cannot be said to be illegal. It is
also found from the materials on record that the appointment
of labour contractor by Party No. 1 for supply of Security
Guards was genuine and the same was not only on papers
as claimed by the workman. The workman has failed to
prove such claim by adducing cogent or reliable evidence.
The engagement of labor contractor by Party No. 1 was
not a mere ruse or camouflage to evade compliance of the
various beneficial legislations, so as to deprive the workman
of the benefits there under. The workman has not been
able to produce any document to show that at any point of
time, Party No. 1 paid him wages as their employee. As it is
clear from the evidence on record that the workman was
engaged as a contract labour with Party No. 1 , by the
contractor, it can be held that there was no relationship of
master and servant between the Party No. 1 and the
workman. Hence, there was no question of termination of
the services by the Party No. 1 or compliance of the
provisions of Sections 25-F or 25-H of the Act.
14 . It is the own case of the workman that he was
engaged by the contractor. So the contractor, who had
engaged the workman, is a necessary party in the reference.
The said contractor has not been added as a party in this
reference. Due to non-joinder of necessary party, the
reference is bad in law.
In view of the materials on record and the discussions
made above, the reference cannot be answered in favour
of the workman. Hence, it is ordered:—
ORDER
The reference is answered in the negative. The
workman is not entitled to any relief.
J. P. CHAND, Presiding Officer
ubZ fnYyh] 27 fnlEcj] 2013
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[Qkñ lañ ,y&22012@143@2003&vkbZvkj ¼lh,e&II½]
,eñ dsñ flag] vuqHkkx vf/kdkjh
New Delhi, the 27th December, 2013
S.O. 194.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 241/2003)
of the Cent. Govt. Indus.Tribunal-cum-Labour Court,
NAGPUR as shown in the Annexure, in the industrial
dispute between the management of Food Corporation of
India, and their workmen, received by the Central
Government on 27/12/2013.
[F. No. L-22012/143/2003-IR(CM-II)]
M. K. SINGH, Section Officer
ANNEXURE
BEFORE SHRI J. P. CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No. CGIT/NGP/241/2003
Date: 29.11.2013
Party No.1(a)
The District Manager,
Food Corporation of India,
Ajani, Nagpur,
Nagpur - 440015.
Party No.1(b)
The Senior Regional Manager,
Food Corporation of India,
Mistry Bhawan, Dinshaw Wacha
Road, Churchgate,
Mumbai - 400020.
Versus
Party No.2
The Secretary,
Rashtriya Mazdoor Sena,
Hind Nagar, Ward No. 2,
Near Boudha Vihar,
Post: Wardha, Distt. Wardha (M.S.)
AWARD
(Dated: 29th November, 2013)
In exercise of the powers conferred by clause (d) of
sub-section (1) and sub-section 2(A) of section 10 of
Industrial Disputes Act, 1947 (14 of 1947) ("the Act" in
short), the Central Government has referred the industrial
dispute between the employers, in relation to the
management of Food Corporation of India and their
workman, Shri Sunil K. Mankar for adjudication, as per
letter No.L-22012/143/2003- IR (CM-II) dated 08.12.2003,
with the following schedule:-—
"Whether the action of the management of Food
Corporation of India, Nagpur (M.S.) in terminating
the services of Shri Sunil K. Mankar, Security Guard
w.e.f. 14.03.1999 is legal and justified? If not, to what
relief the concerned workman is entitled?"
2. On receipt of the reference, the parties were noticed
to file their respective statement of claim and written
statement and accordingly, the workman, Shri Sunil K.
Mankar, (the workman" in short), filed the statement of
claim and the management of Food Corporation of India
("Party No. 1 " in short) filed their written statement.
The case of the workman as presented in the
statement of claim is that he was in the employment of
Party No. 1 from 24.12.1993 and he was initially engaged
through a contractor at Wardha Depot of Party No. 1, as a
Security Guard and he was in continuous service without
any interruption till 14th March, 1999, when his services
were terminated orally by Party No. 1, without following
the due procedure of law and he had completed more than
240 days of work in each year and the termination of his
services on 14.03.1999 was not in good faith, but in
colourable exercise of the rights and powers by the Party
No. 1 and while terminating his services, neither one
month's notice nor one month's wages in lieu of notice nor
retrenchment compensation was given to him as required
under section 25-F of the Act and after his illegal
termination, fresh hands from the department of home guard
and police were engaged by Party No. 1 to extract the
duties of Security guards, in violation of the provision of
section 25-H of the Act and the work which he was
performing is constantly in existence and the same is of a
perennial nature and as his termination is illegal and
unlawful, he is entitled for reinstatement in service with
continuity and full back wages.
The further case of the workman is that in 1993, he
was engaged by the Party No. 1 through the contractor for
a period of two years, but the contract was made only on
papers and after every two years, the Party No. 1 changed
the contractor on papers only and the engagement of the
so-called contractor did not replace the Security Guards
and he was also not disturbed from his services and he
was merely shown to be engaged by the contractors, but
actually he was working under the direct control and
supervision of the Party No. 1 and the contractor had no
role to play in the same and the work performed by him was
being assigned to him by Party No. 1 and he was a regular
employee of Party No. 1 and Party No. 1 was his real
employer and not the contractor as alleged and the
engagement and change of contractors by Party No. 1 from
time to time was sham and only a camouflage to deny his
legitimate claim and the contract between Party No. 1 and
the contractor was bogus and not genuine and therefore,
his oral termination from services was against the
mandatory provisions of the Act and the Central
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THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
Government decided to abolish the appointment of contract
abour as contemplated under section 10 of the Contract
Labour (Regulation and Abolition) Act, 1970 and issued
notification on 01.11.1990 with directions to abolish the
contract labour system in the establishment of the Party
No. 1 and to give employment to contract labours engaged
by the management and therefore, it was the mandatory
duty of the Party No. 1 to abolish the contract labour
system in all places and management of FCI implemented
the notification only at Nagpur and Manmad and absorbed
the Security Guards working at Nagpur and Manmad, but
at Akola, Amravati, Wardha and Gondia districts, the
contract labour system was continued by the management,
with an intention to deprive him from the benefits under
the labour laws.
It is further pleaded by the workman that his salary
was paid by the Party No. 1 and not by the contractor and
his daily attendance was also marked by the Asstt. Manager
of FCI, Wardha Depot and the Party No. 1 was supervising
his work through their officers and he had no relation with
the so called contractors engaged by the Party No. 1 and
Party No. 1 also supplied the articles, such as, torch, lathi,
whistle and uniform etc. to him and in view of the long spell
of work being carried out by him, he is entitled to be reinstated
in service with continuity and full back wages.
3. The Party No. 1 in their written statement have
pleaded inter alia that the workman was never in their
employment and the workman has not impleded the
contractor, who appointed him, as a Party and the workman
was engaged by the contractor as a Security Guard at FCI
Depot and the said contractor is a necessary party and in
absence of the contractor, the proceeding cannot proceed
and the workman was not in their service uninterruptedly
till 14th March, 1999 and since the contract of the contractor
came to an end, the services of the workman were terminated
by the contractor and the original period of contract given
to the contractor for providing Security services was up to
1998 and the same was extended as per the terms and
conditions till March, 1999 and as the workman was not
employed by them, there was no question of following the
procedure of termination by them and they were not the
employer of the workman and the services of the workman
were never utilized by them as employer from 24.12.1993
to14.03. 1999 , without any break in service and the workman
did not complete 240 days of work in a year as alleged and
as the workman was engaged by the Security Contractor,
there was no relationship of master and servant between
them and the workman at any point of time and under
section 10 of the Contract Labour (Regularisation and
Abolition) Act, they were exempted by the Central
Government, so the allegations made by the workman
against them are not true and there was no question of
violation of the provisions of 25 (H) of the Act and the
work does not constantly exist and the work of providing
security guards was given to other Government Agencies
like Police Personnel and Home guards and therefore, the
workman has no right to claim any relief from them and the
work of security is not perennial in nature and as and when
their go-downs are filled with foodgrains, then only, services
of the security guards are required and in pursuance of the
notification issued by the Central Government abolishing
contract labour system, they appointed Home guards and
Police personnel as security guards.
The further case of Party No. 1 is that for the relief as
claimed in this reference, the workman had filed a writ petition
before the Hon'ble High Court, Nagpur Bench bearing W.P.
No. 1389/99 and the Hon'ble High Court rejected the said
WP and denied the reliefs prayed for and therefore, this
Tribunal has no jurisdiction to decide the reference and the
decision of the Hon'ble Court operates as res-judicata and
they floated tenders for the contract and lowest bidder was
awarded the contract and the change of contractor in every
two years was not on papers only and they had no say in the
appointment of security guards by the security contractor
and they had no control over the appointment and service
conditions of the workman, who was an employee of the
security agency and he was never their employee and the
security contractor was the employer of the workman.
The further case of Party No. 1 is that the appropriate
government decided to abolish the employment of the
contract labour as contemplated under section 10 of the
Contract Labour (Regularisation and Abolition) Act, 1970
and the interpretation of the notification issued on
01.11.1990 put by the workman is not correct and they were
exempted from the operation of the Act of 1970 in the year
1989 and the said exemption was withdrawn in the year
1999 and therefore, the security contact given to the
contractor was terminated and hence, the services of the
workman were terminated by the security contractor and
they did not pay the salary to the workman and it was the
contractor, who was paying the same to the workman and
when the contractor failed to pay the salary to the workman,
they paid the amount as per the directions given by the
ALC from time to time and the said amount was recovered
from the contract's bill and they only used to check the
attendance of the security guards to find out as to whether
the contractor had made arrangement of the requisite
number of security guards, as per their requirement and
they did not have the power to terminate any employee
appointed by the contractor and they did not provide any
article, such as torch, Lathi, whistle and uniform etc. to the
workman and as such, the workman is not entitled to any relief.
4. Both parties have led oral evidence in support of
their respective claims, besides placing reliance on
documentary evidence.
The workman in support of his claim has examined
himself as a witness. In his evidence, which is on affidavit,
the workman has reiterated the facts mentioned in the
statement of claim.
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In his cross-examination, the workman has admitted
that he was engaged in F.C.I. through the contractor, “Singh
Security Services” and he had submitted an application to
the said contractor to engage him as a security guard and
“Singh Security Services” appointed him as a security guard
at FCI Wardha. The workman in his cross- examination has
further admitted that no appointment order was issued by
the F.C.I. to him and he has filed no document to show that
he was appointed by F.C.I. and F.C.I. was making payment
of his wages and he had worked for 240 days in every
calendar year with F.C.I. and he does not know English and
he does not know the contents of the affidavit filed by
him.The workman has further admitted that after two years
of his engagement, another contractor was appointed by
the F.C.I. and the management of F.C.I. asked the contractor
to engage him as a security guard.
5. Shri Suresh N. Bokade, the witness examined on
behalf of the Party No. 1 has also reiterated the facts
mentioned in the written statement, in his examination-in-
chief, which is on affidavit. In his cross-examination, the
witness for the Party No. 1 has admitted the suggestions
given on behalf the workman that the workman other
security guards were deployed tom work in F.C.I. through
the contractor, Singh Security Services and Singh Security
Services was given the contract to supply security guards
for two years and after the expiry of contract of Singh
Security Services in 1995, contract for supply of security
guards was given to Industrial Security and Fire Services
for two years and the workman and other security guards
were engaged in F.C.I. through the contractors till December,
1998 and after the notification made by the Government
imposing ban for engagement of contract labourers in 1998,
F.C.I. discontinued the engagement of contract labourers
and security guards were being deployed for watch and
ward duty of F.C.I. depots and the workman other security
guards worked continuously from the date of their
respective engagement till December, 1998 in F.C.I. through
different contractors and F.C.I. had the control regarding
the duties to be performed by the security guards.
6. At the time of argument, it was submitted by the
learned advocate for the workman that the workman from
24.12.1993 was in the service of the Party No. 1 till 14.03.1999,
when all of a sudden, his services were terminated orally
by the Party No. 1 without compliance of the mandatory
provisions of Law, particularly the provisions of sections
25 F and 25 H of the Act and party no 1 also did not comply
with the provisions of the Contract Labour (Regulation
and Abolition) Act,1970 ("Act,1970" in short ) and as such,
the termination of the workman is illegal and null and void.
It is further submitted by the learned advocate for the
workman that the appointment of the workman to work in
the establishment of the Party No. 1 was admittedly through
contractor appointed by Party No. 1 and it is an admitted
position that the tenure of the contract was for two years
and though there was change of contractor in every two
years, the workman and other security guards remained
the same and there was a specific condition in the contract
between the management and the contractor that the set of
workers will be continued by the incoming contractor and
in such fashion, the workman and other security guards
continued to work in the establishment of Party No. 1 right
from the date of their respective date of appointments till
March, 1999 and there was no bread in their service and
each of them completed 240 days of service in each calendar
year and the same shows that the work was all time available
in the establishment of Party No. 1 and is of perennial
nature and ever though the workman and other security
guards were employed by the contractor, fact remains and
is also admitted by the witness for the Party No. 1 that
Party No. 1 had control over the working of the workman.
The learned advocate for the workman further
submitted that though Party No. 1 in the written statement
has contended that it was exempted from the provisions of
the Act, 1970, it has failed to produce any document in
corroboration of such contention and as mere statement of
Party No. 1 is no sufficient, the fact remains that Party No. 1
was never exempted from the provisions of the Act, 1970
and the Central Government by notification dated
01.01.1990 issued U/S 10 of the Act, 1970 abolished contract
labour system in the establishment of Party No. 1 and after
issuance of the said notification, Party No. 1 was prohibited
from engaging any contract labour and as the workman
and other security guards were engaged by Party No. 1
inspite of notification prohibiting contract labour system,
the workman became the direct employee of the Party
No. 1 and he has attained the status of regular employee of
Party No. 1 .
It was also argued by the learned advocate for the
workman that Party No. 1 has not filed on record any
document showing that it was registered as principal
employer or the contractors were registered under section
7 and Section 12 respectively of the Act, 1970 and in
absence of the said documents, it cannot be assumed that
the contract between the contractor and management was
genuine and it is clear that the contracts between the Party
No. 1 and the contractors were sham and bogus and such
contract was entered into only with mala fide intention to
deny regular employment to the workman and after
termination of the services of the workman, Party No. 1
appointed police and home guard personnel as security
guards and this proves that the work is available even
today and after the notification dated 01.11.1990, Party No.
1 regularized the contract labourers were engaged at Nagpur
and Manmad, but same was not the case at Akola, Amravati,
Wardha and Gondia and this shows that Party No. 1
indulged into invidious discrimination amongst equal,
which is contrary to provisions of Articles 14 & 16 of the
constitution and the Writ Petition filed by the workman
and others as disposed of by the Hon'ble High Court with
a direction to the petitioners to approach the appropriate
412
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[PART II—SEC. 3(ii)]
authority and as such, the judgment in Writ Petition 1389/
99, cannot operate as res-judicata.
In support of the contentions, the learned advocate
for the workman placed reliance on the decision reported
in 2006(2) Bom.CR — 167 (Food Corporation of India
Vs. Prashant Pandurang Ramteke & others).
The learned advocate for the workman also submitted
that as the termination of the workman from service is illegal,
the workman is entitled for reinstatement in service with
continuity and full back wages.
7. Per contra, it was submitted by the learned
advocate for the Party No. 1 that the workman was never
appointed by Party No. 1 and he has engaged by the
contractor as a security guard and as such, the concerned
contractor is a necessary party and inspite of raising such
objection in the written statement, the workman did not
implead the contractor as a party and for that the reference
is not maintainable. It was further submitted by the learned
advocate for the Party No. 1 that the workman was engaged
by the contractor and as the contract of the contractor
came to an end in March, 1999, the services of the workman
were terminated by the contractor and as such, there was
no question of Party No. 1 complying with the due
procedure of termination and there was no relationship of
master and servant between the Party No. 1 and the workman
and the Party No. 1 was exempted by the Central
Government from the ban imposed for engagement of
contract labourers, so contract was given to the security
contractor, as per rules, for supply of security guards and
due to the notification of the Government for abolition of
contract labour system, Home guards and Police personnel
were appointed as security guards and Party No. 1 has no
control over the workman and the security contractor was
submitting bills for payment for supply of security guards
and the security contractor was paying the wages to the
workman. It was further submitted by the learned advocate
for the Party No. 1 that the workman and some others had
approached the Hon'ble High Court, Nagpur Bench in W.P.
1389 of 1999 for the reliefs sought in this reference and the
Hon'ble High Court while depositing of the said petition
have held that the termination of the workman by the
contractor was a valid one and the action of FCI was legal
and as such, the workman cannot agitate the question again
and the decision of the Hon'ble High Court operates as
res-judicata between the parties and the workman is not
entitled to any relief.
8. First of all, I will take up the submission made by the
learned advocate for the Party No. 1 that the present reference
is hit by the principles of res-judicata, due to the decision of
the Hon'ble High Court, Nagpur Bench in W.P. 1389/99.
It is not disputed that the workman alongwith 78
others through the union, "Rashtriya Mazdoor Sena
Saptahit Jaibhim" filed Writ Petition no. 1389/99 before the
Hon'ble High Court of Judicature at Bombay, Nagpur Bench,
Nagpur, for their regularisation and the Hon'ble High Court
did not grant such relief. On perusal of the order passed by
the Hon'ble High Court on 29.07.2002 in the said writ
petition, it is found that the workman and others claimed
regularisation on the ground that they were employed by
the contractor for doing regular work of the Food
Corporation of India and in view of the same, they have
became workmen of Food Corporation of India, since the
work on which they were employed is of perennial nature.
However, it is found froth the judgment that the Hon'ble
High Court did not consider the main relief and passed the
following order:
"In view of the judgment of the Constitution Bench
in Steel Authority of India Ltd. and others Vs.
National Union Water Front Workers and others
[reported in 2001 (7) SCC1)], the relief sought by the
petitioners cannot be granted since the petition
involves disputed question of facts as also other
facts which are required to be adjudicated by
appropriate authority. Accordingly, the main prayer
to absorb them cannot be granted.
XX
XX
XX
XX
In view of the rejection of the main prayer, the question
of granting other prayer does not arise. In case, the
petitioners approach the appropriate authority, the
appropriate authority shall take decision in the matter
within a period of one year. The applicants are free to
approach the appropriate authority for redress of
their grievances."
So, it is clear from the orders passed by the Hon'ble
High Court as mentioned above that the Hon'ble High Court
did not consider the claim made by the workman and others
on merit and granted them the liberty to approach the
appropriate authority for redress. The Hon'ble High Court
in the decision reported in 2006 (2) Bom.CR—167 (Supra)
have held that, "Because Division Bench had not gone
into merits of the case the decision cannot operate as
res-judicata". Applying the principles settled by the
Hon'ble High Court, as mentioned above to the case in
hand, the reference cannot be said to be hit by the principles
of res-judicata. So, there is no force in the contention raised
by the learned advocate for the Party No. I.
9. In this reference, it is never the case of the workman
that he was directly appointed or engaged by the Party No. 1
as a security guard. In the very beginning of the statement
of claim, it has been mentioned by the workman that he
was initially engaged at Food Corporation of India Depot,
Wardha as a security guard, through a contractor. In
paragraph 4 of the statement of claim, the workman has
mentioned that, “In the year 1993, the workman was
engaged by the Food Corporation of India through
contractor, for the period of 2 years, but the contract was
¹Hkkx II—[k.M 3(ii)º
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413
made on paper.” The case of the workman is that after
every two years, the Party No. 1 on papers showed the
change of contractors, but he was not disturbed from
services and he worked continuously without any break
till 14.03.1999 and as he worked as a security guard of
perennial nature, he is entitled for reinstatement in service.
The workman has also claimed that as the Central
Government issued notification on 01.11.1990 to abolish
the contract labour system in FCI and directed to give
employment to contract labours engaged by the
management and Party No. 1 implemented such direction
at Nagpur and Manmad only and gave employment and
regularized and absorbed the services of the Security Guards
working at Nagpur and Manmad and did not implement the
same at Wardha and other places to deprive him from the
benefits under the Labour Laws.
In his evidence on affidavit also, the workman has
mentioned that he was initially, engaged in Food Corporation
of India as a Security Guard through a contractor.
From the evidence on record and the own admission
of the workman in the cross-examination including the
specific admission that he was engaged by the contractor,
it is clear that the workman was engaged by the contractor.
The workman has not produced any evidence to show that
he was directly engaged by the Party No. 1 .
10.At this juncture, I think it apropos to mention
about the principles enunciated by the Hon'ble Apex Court
regarding contract labours, in the decisions reported in
19854II LLJ-4 (S.C.) (The Workman of the Food Corporation
of India Vs. M/s. Food Corporation of India), 2001 LAB IC
3656 (S.C.) (Steel Authority of India Ltd. and Others Vs.
National Union Water Front Workers and others) and 1994
II CLR 402 (R.K. Panda & Others Vs. Steel Authority of
India and Others).
In the decision reported in 1985-11 LLOJ-4 (supra)
the Hon'ble Apex Court have held that:—
"Briefly stated, when corporation engaged a
contractor for handling food grain at Siliguri Depot,
the corporation had nothing to do with the manner
of handling work done by the contractor, the labour
force employed by him, payments made by him etc.
In such a fact situation, there was no privity of
contract of employer and workmen between the
corporation and the workmen. "Workmen" has been
defined (omitting the words not necessary) in the
Industrial Disputes Act to mean (any person
including an apprentice) employed in any industry
to do....” The expression' employed has at least two
known connotations, but as used in the definition,
the context would indicate that it is used in the sense
of a relationship brought about by express or implied
contract of service in which the employee renders
service for which he is engaged by the employer and
the latter agrees to pay him in cash or kind as agreed
between them or statutorily prescribed. It discloses a
relationship of command and obedience. The essential
condition of a person being a workman within the
terms of the definition is that he should be employed
to do the work in that industry and that there should
be, in other words, an employment of his by the
employer and that there should be a relationship
between the employer and employee or master and
servant unless a person is thus employed there can
be no question of his being a "workman" within the
definition of the term as contained in the Act
Dharangadhara Chemical Works Ltd. Vs. State of
Saurashtra (1957 - I - LLJ - 477). Now where a
contractor employs a workman to do the work which
he contracted with a third person to accomplish on
the definition as it stands, the workman of the
contractor would not without something more
become the workman of that third person. Therefore,
when the workmen employed by the contractor were
certainly not the workmen of the corporation and no
claim to that effect has been made by the union."
11.In the decision reported in 2001 LAB IC - 3656
(supra) the Hon'ble Apex Court have held that:—
"The principle that a beneficial legislation needs to be
constructed liberally in favour of the class for whose
benefit it is intended, does not extend to reading in the
provisions of the Act what the legislature has not
provided whether expressly or by necessary
implication, or substituting remedy or benefits for that
provided by the legislature. The intendment of the CLRA
Act is to regulate the conditions of service of the
contract labour and to authorize in Section 10(1)
prohibition of contract labour system by the appropriate
Government on consideration of factors enumerated in
sub-section (2) of Section 10 of the Act among other
relevant factors. But, the presence of some or all those
factors, provide no ground for absorption of contract
labour on issuing notification under Section 10(1) by
the appropriate Government, is not alluded to either in
Section 10 or at any other place in the Act and the
consequence of violation of Sections 7 and 12 of the
CLRA Act is explicitly provided in Sections 23 and 25
of the CLRA Act, it is not for the High Courts or the
Supreme Court to read in some unspecified remedy in
Section 10 or substitute for penal consequences
specified in Sections 23 and 25 a different sequel be it
absorption of contract labour in the establishment of
principal employer or a lesser or a harsher punishment.
Such an interpretation of the provisions of the statute
will be far beyond the principle of ironing out the creases
and the scope of interpretative legislation and as such
clearly impermissible .
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[PART II—SEC. 3(ii)]
Thus on issuance of prohibition notification under
S. 10(1) of the CLRA Act prohibiting employment of
contract labour or otherwise, in an industrial dispute
brought before it by any contract in regard to
conditions of service, the industrial adjudicator will
have to consider the question whether the contractor
has been interposed either on the ground of having
undertaken to produce any given result for the
establishment or for supply of contract labour for work
of the establishment under a genuine contract or is a
mere ruse/camouflage to evade compliance of various
beneficial legislations so as to deprive the workers of
the benefit there under. If the contract is found to be
not genuine but a mere camouflage, the so called
contract labour will have to be treated as employees
of the principal employer who shall be directed to
regularize the services of the contract labour in the
concerned establishment. If the contract is found to
be genuine and the principal employer intends to
employ regular workmen he shall give preference to
the erstwhile contract labour. It otherwise found
suitable, and, if necessary, by relaxing the condition
as to maximum age appropriately taking into
consideration the age of the workers at the time of
their initial employment by the contractor and also
relaxing the condition as to academic qualifications
other than technical qualifications.
Air India's case 1997 AIR SCW 430 Overruled
prospectively. M.A.T. Nos. 1704 and 1705 of 1999, D/ - 12-
8-1999 (Cal.): C.O. No. 6545(W) if 1996, D/ -9-5-1997(Cal.):
W.A. Nos. 345—354 of 1997m D/ - 17-4-1998 (Kant): W.P.
No. 4050 of 1999, D/ - 2-8-2000 (Bom) and W.P. No. 2616 of
1999, D/ - 23-12-1999 (Bom), 1998 Lab IC 2571 (Cal.),
Reversed.
It cannot be said that by virtue of engagement of
contract labour by the contractor in any work of or in
connection with the work of an establishment, the
relationship of master and servant is created between
the principal employer and the contract labour. Even
a combined reading of the definition of the terms
"Contract labour", "Establishment" and "Workman"
does not show that the legal relationship between
the person employed in any industry and the owner
of the industry is created irrespective of the fact as
to who has brought about such relationship. The
word "Workman" is defined in wide terms. It is a
generic term of which contract labour is a species. It
is true that combined reading of the terms
"Establishment" and "Workman" shows that a
workman engaged in any establishment would have
direct relationship with the principal employer as a
servant of master. But what is true of a workman
could not be correct of contract labour. When the
provisions of the Act neither contemplate creation
of direct relationship of master and servant between
the principal employer and the contract labour nor
can such relationship be implied from the provisions
of the action issuing notification under Section 10(1)
of the CLRA Act. A fortiori much less can such a
relationship be found to exist from the rules and the
forms made there under."
12.In the decision reported in 1994 II CLR 402 (Supra),
the Hon'ble Apex Court have held that:—
With the industrial growth, the relation between the
employer and the employees also has taken a new
turn. At one time the establishment being the
employer all persons working therein were the
employees of such employer. But slowly the employer
including Central and State Governments started
entrusting many of the jobs to contractors.
Contractors in their turn employed a worker, who
has no direct relationship with the establishment in
which they were employed. Many contractors
exploited the labourers engaged by them in various
marnners including the payment of low wages. Hence,
the Contract Labour (Regulation and Abolition) Act,
1970 was enacted to regulate the employment of
contract labour in certain establishment and to
provide for its abolition in certain circumstances and
for matters connected therewith.
The "Contract Labour" has been defined in Section 2
(1) (b) to mean a workman, who has been employed
as contract labour in or in connection with the work
of an establishment when he is hired in or in
connection with such work by or through a
contractor, with or without the knowledge of the
principal employer. Section 2 (1) (c) defines
"Contractor" to mean a person who undertakes to
produce a given result for the establishment, other
than a mere supply of goods or articles of manufacture
to such establishment, through contract labour or
who supplies contract labour for any work of the
establishment and includes a sub-contractor.
"Principal employer" has been defined to mean (i) in
relation to any office or department of the
Government or a local authority, the head of that
office or department or such other officer as the
government or the local authority, as the case may
be, may specify in this behalf and (ii) in a factory, the
owner or occupier of the factory. In view of section 10,
of the appropriate Government may after consultation
with the Central Board or, as the case may be, a state
Board, prohibit, by notification in the Official Gazette,
employment of contract labour "in any process,
operation or other work in any establishment," Sub-
section (2) of Section 10 requires that before issuing
any such notification, in relation to an
establishments, the appropriate Government shall
have regard to the conditions of work and benefits
provided for the contract labour in that establishment
¹Hkkx II—[k.M 3(ii)º
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415
and other relevant factors. One of the relevant factors,
which is to be taken into consideration is whether the
work performed by the contract labourers is of
perennial nature. Section 12 enjoins that no contractor
to whom this Act is applicable shall undertake or
execute any work through contract labour except under
and in accordance with a license issued in that behalf
by the licensing authority. The license so issued may
contain conditions in respect of hours of work, fixation
of wages and other essential amenities in respect of
contract labour as the appropriate Government may
deem fit to impose in accordance with rules. Section
20 provides that if any amenity required to be provided
under section 16, section 17, section 18, or section 19
for the benefit of the contract labour employed in an
establishment, is not provided by the contractor within
the time prescribed by the contractor within the time
prescribed therefore, such amenity shall be provided
by the principal employer within such time as may be
prescribed and all expensed incurred by the principal
employer in providing the amenity may be recovered
by the principal employer from the contractor "either
by deduction from any amount payable to the
contractor under any contract or as a debt payable by
the contractor". Section 21 says that a contractor shall
be responsible for the payment of wages to each worker
employed by him as contract labour but at the same
time in order to protect the interest of such contract
labour, it requires every principal employer to nominate
a representative duly authorized by him to be present
at the time of disbursement of wages by the contractor.
It shall be the duty of the contractor to ensure the
disbursement of wages in the presence of the
authorized representative of the principal employer.
Because of sub- section (4) of section 21, if the
contractor fails to make payment of wages within the
prescribed period, then the principal employer shall
be liable to make payment of wages in full to the contact
labour employed by the contractor and recover the
amount so paid from the contractor. Any
contravention of the provisions aforesaid has been
made penal for which punishment can be imposed.
From the provisions referred to above, it is apparent
that the framers of the Act have allowed and
recognized contract labour and they have never
purported to abolish it in its entirety. The primary
object appears to be that there should not be any
exploitation of the contract labourers by the
contractor or the establishment. For achieving that
object, statutory restrictions and responsibilities have
been imposed on the contractor as well as on the
principal employer. Of course if any expenses are
incurred for providing any amenity to the contract
labourers or towards the payment of wages by the
principle employer he is entitled to deduct the same
from the bill of the contractor. The Act also conceives
that all appropriate government may after
consultation with the central board or the state board,
as the case may be, prohibit by notification in official
gazette, employment of contract labour in any
process, operation or other work in any
establishment, taking all facts and circumstances of
employment of contract labour in such process,
operation or the work into consideration.
Of late a trained amongst the contract labourers is
discernible that after having work for some years,
they make a claim that they should be absorbed by
the principal employer and be treated as employees
of the principal employer especially when the
principal employer is the Central Government or the
state government or an authority which can be held
to be state within the meaning of Article 12 of the
constitution, although no right flows from the
provisions of the act for the contract labourers to be
absorbed or to become the employees of the principal
employer. This court in the case of Gammon India
limited V. Union of India (1974) I SCC 596, pointed
out the object and scope of the act as follows:—
"The Act was passed to prevail the exploitation of
contract labour and also to introduce better condition
of work. The Act provides for regulation and abolition
of contract labour. The underline policy of the Act is
to abolish contract labour, wherever possible and
practicable and where it cannot be abolished to
altogether, the policy of the Act is that the working
conditions of the contract labour should be so
regulated as to ensure payment of wages and
provisions of essential amenities. This is why the
Act provides for regulated conditions of work and
contemplates progressive abolition to the extent
contemplated by Section 10 of the Act."
In the case of B.H.E.L. Workers' Association V. Union
of India, 1985 I CLR SC 165 = (1985) 1 SCC 630 it was
pointed out that Parliament has not abolished the
contract labour as such but has provided for its
abolition by the Central Government in appropriate
cases under section 10 of the Act. It is not for the
court to enquire into the question and to decide
whether the employment of contract labour in any
process, operation or other work in any establishment
should be abolished or not. That has to be decided
by the government after considering the relevant
aspects as required by Section 10 of the Act. Again
in the case of Mathura Refinery Mazdoor Sangh V.
Indian Oil Corporation Ltd., 1991I CLR 684, this court
refused to direct the Indian Oil Corporation Ltd., to
absorb the contract labourers in its employment
saying that, the contract labourers have not been
found to have direct connection with the refinery. In
other words, there was no relationship of employer
and employee between the Indian Oil Corporation
416
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[PART II—SEC. 3(ii)]
Ltd. and the contract labourers concerned. Again in
Dena Nath V. National Fertilizers Ltd., 1992 I CLR 1, this
court pointed out that the aforesaid Act has two
purposes to serve (i) to regulate the conditions of service
of the worker employed by the contractor who is
engaged by a principal employer and (ii) to provide for
the abolition of contract labour altogether, in certain
notified processes, operation or other works in any
establishment by the appropriate government, under
section 10 of the Act. It was further stated that neither
the Act nor the Rules framed by the central government
or by any appropriate government provide that upon
abolition of contract labour, the labourers would be
directly absorbed by the principal employer.
It is true that with passage of time and purely with a
view to safeguard the interests of workers, many
principal employers while renewing the contracts
have been insisting that the contractor or the new
contractor retains the old employees. Infact such a
condition is incorporated in the contract itself.
However, such a clause in the contract which is
benevolently inserted in the contract to protect the
continuance of the source of livelihood of the
contract labour cannot by itself give rise to a right to
regularization in the employment of the principal
employer. Whether the contract labourers have
become the employees of the principal employer in
course of time and on whether the engagement and
employment of labourers through a contractor is a
mere camouflage and a smoke screen, as has been
urged in this case, is a question of fact is to be
established by the contract labourers on the basis of
the requisite material. It is not possible for High Court
or this court, while exercising writ jurisdiction or
jurisdiction under Article 136 to decide such
questions only on the basis of the affidavits. It need
not to be pointed out that in all such cases, the
labourers are initially employed and engaged by the
contractors. As such at what point of time a direct
link is established between the contract labourers
and the principal employer, eliminating the contractor
from the scene, is a matter which has to be established
on material produced before the court. Normally, the
Labour Court and the Industrial Tribunal, under the
Industrial Disputes Act are the Competent Fora to
adjudicate such disputes on the basis of the oral and
documentary evidence produced before them."
So, keeping in view the principles enunciated by the
Hon'ble Apex Court in the decisions mentioned above, the
present case in hand is to be considered.
13.In this case, the letter No. U-23013/11/89/LW dated
28.05.92, Govt. of India, Ministry of Labour shows that the
prohibition of employment of contract labour in sweeping,
cleaning, dusting and watching of buildings owned or
occupied by the establishments of Food Corporation of
India and some other departments was lifted by the Central
Government. So, the engagement of contract labour by the
Party No. 1 cannot be said to be illegal. It is also found
from the materials on record that the appointment of labour
contractor by Party No. 1 for supply of Security Guards
was genuine and the same was not only on papers as claimed
by the workman. The workman has failed to prove such
claim by adducing cogent or reliable evidence. The
engagement of labor contractor by Party No. 1 was not a
mere ruse or camouflage to evade compliance of the various
beneficial legislations, so as to deprive the workman of the
benefits there under. The workman has not been able to
produce any document to show that at any point of time,
Party No. 1 paid him wages as their employee. As it is clear
from the evidence on record that the workman was engaged
as a contract labour with Party No. 1 , by the contractor, it
can be held that there was no relationship of master and
servant between the Party No. 1 and the workman. Hence,
there was no question of termination of the services by the
Party No. 1 or compliance of the provisions of Sections
25-F or 25-H of the Act.
14.It is the own case of the workman that he was
engaged by the contractor. So the contractor, who had
engaged the workman, is a necessary party in the reference.
The said contractor has not been added as a party in this
reference. Due to non-joinder of necessary party, the
reference is bad in law.
In view of the materials on record and the discussions
made above, the reference cannot be answered in favour
of the workman. Hence, it is ordered:—
ORDER
The reference is answered in the negative. The
workman is not entitled to any relief.
J.P. CHAND, Presiding Officer
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New Delhi, the 27th December, 2013
S.O. 195.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No.55/1999)
of the Central Government Industrial Tribunal-cum-Labour
Court, Kanpur as shown in the Annexure in the Industrial
¹Hkkx II—[k.M 3(ii)º
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417
Dispute between the management of M/s. IOCL and their
workmen, received by the Central Government on
19/12/2013.
[F. No. L-30012/156/1998-IR(C-I)]
M. K. SINGH, Section Officer
ANNEXURE
BEFORE SRI RAM PARKASH, PRESIDING OFFICER,
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT, KANPUR
Industrial Dispute No. 55/99
Between-
Sri Ashok Kumar Mehra,
S/o Late Bhawani Prasad,
House No.16/49 Sheetla Gali,
Chatta Dhoen, Agra.
And
Dy. Director / General Manager, (O)
Indian Oil Corporation Limited,
Marketing Division,
Ysuf Sarai,
New Delhi.
AWARD
1. Central Government, Mol, New Delhi, vide
notification No. L.1-30012/156/98 IR (C-I) dated 11.03.99,
has referred the following dispute for adjudication to this
tribunal—
2. Whether the action of the Management of Indian
Oil Corporation in terminating the services of the
workman Sri Ashok Kumar Mehra vide order dated
05.09.96 is legal and just? If not to what relief the
workman is entitled?
3. Brief facts are-
4. It is an admitted fact of both the parties that the
claimant was employed as temporary clerk cum typist at
Agra Depot of the opposite party on 02.04.74.
5. It is alleged by the workman that he never gave any
cause of complaint to his superiors but all of sudden the
workman was suspended vide order dated 21.09.95 and the
charge sheet dated 21.09.95 was served upon him wherein
vague and false charges were leveled against him. The main
charge was that he obtained service as Clerk-cum-typist by
producing fake and forged scheduled caste certificate in
Indian 'Oi1 Corporation. Whereas he denied the charges
and clearly stated that the certificate produced by him was
neither forged nor fake but was genuine. It is alleged that the
management during the inquiry relied upon several
documents including the report of the District Magistrate
but the copies of the same were not furnished to the
employee during the course of inquiry. The inquiry
proceedings are vitiated being made in violation of principle
of natural justice. He also submitted his evidence including
the police report in defense but that was not considered by
the enquiry officer. Since the report of the inquiry officer is
not legal and fair therefore, his punishment order passed by
the disciplinary authority on the basis of the report is liable
to be quashed and he is entitled to be reinstated in the
service with full back wages and all consequential benefits.
6. Opposite party has denied the aversions of the
claimant on the ground that the caste certificate claiming
to be Jatava caste under SC/ST category submitted by the
applicant at the time of seeking employment was
subsequently found forged and fake. He was rightly issued
charge sheet. Enquiry officer has provided him all possible
opportunities for his defense and after considering the
material available on the inquiry file the inquiry officer
submitted his detailed report before the disciplinary
authority and the disciplinary authority concurring with
the report of the inquiry officer has rightly awarded him
punishment considering the gravity of the charges. There
was no illegality in holding the departmental inquiry against
the employee. Therefore, the action taken by the
management against the workman is wholly just and fair
and the workman is not entitled for any relief and his claim
is liable to be rejected.
7. Rejoinder statement has also been filed wherein
nothing new has been pleaded by the workman.
8. On previous occasion this tribunal has recorded
an ex-parte award in the case in favor of the workman on
15.10.2001. The opposite party being aggrieved with the
aforesaid award preferred writ petition No.312/2003 before
the Hon'ble High Court, Allahabad, which was ultimately,
decided by the Hon'ble Court on 08.06.2005 whereby the
Hon'ble High Court quashed the award of the tribunal and
remanded the case to the tribunal for deciding it a fresh.
9. After receipt of the judgment of the Hon'ble High
Court the tribunal has issued notices to both the parties.
10. Thereafter both the parties were permitted to
adduce their evidence. Initially both the parties put in their
appearances before the tribunal. Workman has initially filed
his affidavit on 23.11.2000 along with annexure 1 to 28-A,
annexure C-4 to C-8 and certain other papers which are
photocopies. Mostly these are the papers which are the
papers filed by the opposite party also relating to inquiry
proceedings.
11. Opposite party has filed the documents vide list
dated 20.12.2006. These documents are copy of the complaint
dated 05.09.94, copy of the suspension order and charge
sheet, copy of entire inquiry proceedings along with the
management exhibits, copy of the inquiry report, copy of
show cause notice, copy of punishment order dated 05.09.96.
12. After remand the management has adduced
evidence of Sri Vishal as M.W.1 who is Dy. Manager in the
418
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
Indian Oil Corporation.
13. Heard and perused the whole record.
14. It is pertinent to mention that after remand of the
case the workman did not appear to adduce his evidence. I
have considered his affidavit which was produced on
23.11.2000 which was before the passing of the award but
after issuance of several notices the claimant did not appear
for cross examination so this evidence cannot be read in
evidence as the claimant did not appear for cross
examination and the opposite party did not get the
opportunity to cross examine the witness. Whereas the
opposite party adduced M.W.1 Sri Vishal who filed an
affidavit in evidence and stated on oath that the workman
was appointed as typist clerk on temporary basis. His
services were regularized with effect from 4.4.75 on the
basis of a caste certificate dated 17.12.74 claiming himself
to be a SC candidate belonging to Jatav Caste. On
verification caste certificate bearing No.535/RC dated
17.12.74, copy of which has been filed issued by Tehsildar,
Agra, was found to be a fake certificate and therefore, the
workman was suspended and a charge sheet detailing the
allegations was issued to him dated 21.09.95. Workman
submitted his reply. Thereafter an inquiry was conducted
on 23.07.76 by a two member committee and full opportunity
was given to the workman to produce the original caste
certificate on the basis of which he has secured the job in
Indian Oil Corporation but he failed.
15. On the recommendation of the enquiry committee
a show cause notice was issued to the workman and the
same was replied by the workman. Thereafter after giving
full Opportunity the services of the workman were
terminated vide order dated.05.09.06.
16. Therefore I have considered all the circumstances
and aspect of the case. The workman did not appear in
evidence though being a very old case he was granted several
opportunities. He did not file any caste certificate before the
tribunal also on which he has obtained the employment.
17. The evidence adduced by the opposite party is
un-rebutted. Enquiry proceedings have also been filed.
They have explained that they have given full opportunity
to the workman during the inquiry. Therefore, there is no
reason to vitiate the inquiry.
18. In my view full opportunity has been granted by
the management to workman during the course of inquiry.
There does not appear any breach of natural justice as
contained in the claim statement that the workman has not
been granted the relevant papers on which the management
has relied upon. There is no force in such aversions. There
is no evidence in support of the pleadings filed by the
workman. The charges are grave in nature and the employee
has obtained the employment on the basis of fake and
false caste certificate and therefore he does not deserve
for were any kind of sympathy, therefore, the claim of the
workman fails. As such I do not find any illegality or unjust
in the action of the opposite party in terminating his
services on 05.09.96 after holding full inquiry.
19. Therefore, it is held that the workman is not
entitled for any relief.
20. Reference is answered accordingly against the
workman.
Dt. 24.09.13
RAM PARKASH, Presiding Officer
ubZ fnYyh] 27 fnlEcj] 2013
dkñvkñ 196.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj eSllZ Mh oh lh
ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaè
esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k @
Je U;k;ky; u-a 1] /kuckn ds iapkV ¼lanHkZ la[;k 61@2002]
62@2002] 63@2002 vkSj 64@2002½ dks izdkf'kr djrh gS tks dsUnzh;
ljdkj dks 27-12-2013 dks izkIr gqvk FkkA
[Qkñ lañ ,y&42012@109@2001&vkbZvkj ¼lh,e-II),
Qkñ lañ ,y&42012@110@2001&vkbZvkj ¼lh,e-II),
Qkñ lañ ,y&42012@107@2001&vkbZvkj ¼lh,e-II),
Qkñ lañ ,y&42012@108@2001&vkbZvkj ¼lh,e-II)]
,e- ds- flag] vuqHkkx vf/kdkjh
New Delhi, the 27th December, 2013
S.O. 196.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No.61/2002,
62/2002, 63/2002 & 64/2002) of the Cent. Govt. Indus.
Tribunal-cum-Labour Court No. 1, Dhanbad as shown in
the Annexure, in the industrial dispute between the
management of D.V.C. Soil Conservation Deptt. and their
workmen, received by the Central Government on
27/12/2013.
[F. No. L-42012/109/2001 - IR(CM-II),
F. No. L-42012/110/2001 - IR(CM-II),
F. No. L-42012/107/2001 - IR(CM-II),
F. No. L-42012/108/2001 - IR(CM-II)]
M.K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL (NO.1), DHANBAD
IN THE MATTER OF A REFERENCE U/S 10(1) (D) (2A)
OF I.D.ACT, 1947.
Ref. No. 61/ 2002, 62/2002, 63/2002, 64/2002
Employers in relation to the management of DVC Soil
Conservation Deptt. Hazaribagh
AND
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
419
Their workmen.
Present : SRI RANJAN KUMAR SARAN,
Presiding officer
Appearances:
For the Employers
:
Sri Chandra Kishore, Advocate
For the workman
:
Sri D.K.Verma, Advocate
State : Jharkhand.
Industry : Power
Dated : 3.12.2013
AWARD
The Central Government in the Ministry of Labour
has, in exercise of the powers conferred by clause (d) of
sub-section (1) and sub-section (2A) of Section 10 of the
Industrial Disputes Act, 1947, referred the following
disputes for adjudication to this Tribunal:
Ref. No. 61/2002 (Order No.L-42012/109/2001-IR -(CM-II),
dated 31/05/2002)
SCHEDULE :- Whether the action of the management of
DVC in terminating the service of Sri Fulchand Saw,
workman is justified ? If not, to what relief the workman
concerned is entitled to ?"
Ref. No. 62/2002 (Order No.L-42012/110/2001-IR -(CM-II),
dated 31/05/2002)
SCHEDULE :- Whether the action of the management of
DVC in terminating the service of Sri Baijnath Mistry,
workman is legal justified? If not, to what relief the workman
concerned is entitled to ?"
Ref. No. 63/2002 (Order No.L-42012/107/2001-IR -(CM-II),
dated 31/05/2002)
SCHEDULE :- Whether the action of the management of
DVC in terminating the service of Sri Chhotan Mahato,
workman is justified? If not, to what relief the workman
concerned is entitled to ?"
Ref. No. 64/2002 (Order No.L-42012/108/2001-IR -(CM-II),
dated 31/05/2002)
SCHEDULE :- Whether the action of the management of
DVC in terminating the service of Sri Kartik Mahato,
workman is justified? If not, to what relief the workman
concerned is entitled to ?"
2. The all case is received form the Minstry of labour
on 21.06.2002. After receipt of reference both parties are
noticed, the workman files their written statement on
22.08.2002. And the management also files their written
statement -cum-rejoinder on 28.11.2002.
3. All the above reference cases have been heard
analogously as all the four cases are identical in nature.
4. Short point to be decided in the reference as to
termination of the workman is just and proper by the DVC
management.
5. The case of the workman is that, he is a casual
workman under the DVC and was continuously rendering
service to the management and the management illegally
terminated their services.
6. On the other hand; it is the case of the management
that the workman were working through job contract as
the contract period was over and there was no need to
engage contractor to provide job to workman, the work of
the workman automatically stopped, since there was no
work to take workers through contractors.
7. But the workman in their written statement and
evidence have stated that they were not job contract
workmen but casual workman, and similarly placed casual
workman have been regularised in the job and as such the
present workmen to be taken into service by DVC.
8. But on close scrutiny of the documents filed by the
workman, it is seen that the workman were contractual
employees.
9. The workman have shown therein areas job
contract workman i.e in the year 1994 , and the same has
been filed by the workman, and that point of time there was
no controversy between the parties. Hence the workman
concerned were job contract workman, it is submitted by
the management that they are not now engaging
contractors to provide workman, Therefore the workman
have no right to continue to work under DVC management.
But the management presently discontinued the job
contractor, for job of the DVC has not been pleaded in the
written statement nor proved by any legal evidence.
10. Considering the facts and circumstances of this case,
I hold that the workman be taken as workman under job
contractors and they be placed as they were previously worked.
This is my award.
R.K. SARAN, Presiding Officer
ubZ fnYyh] 27 fnlEcj] 2013
dkñvkñ 197.—vkS|ksfxd fookn vfèfu;e 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj eSllZ ,Q lh vkbZ
ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjks ds chp vuqcaè esa
fu£"n"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèdj.k@Je
U;k;ky; uñ 1] èuckn ds iapkV ¼lanHkZ la[;k 38 of 1998½ dks
izdkf'r djrh gS tks dsUnzh; ljdkj dks 19@12@2013 dks izkIr gqvk FkkA
[Qkñ lañ ,y&22012@140@1997&vkbZvkj ¼lh&II½]
,eñ dsñ ¯lg] vuqHkkx vfèdkjh
New Delhi, the 27th December, 2013
S.O. 197.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No.38/1998)
of the Central Government Industrial Tribunal/Labour
420
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
Court, No. 1, Dhanbad as shown in the Annexure in the
Industrial Dispute between the management of Food
Corporation of India and their workmen, received by the
Central Government on 27/12/2013.
[F. No. L-22012/140/1997-IR(C-II)]
M. K. SINGH, Section Officer.
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL NO.I, DHANBAD
Reference: No. 38/ 1998
In the matter of reference U/S 10 (1) (d) (2A) of I.D.Act.
1947.
Employer in relation to the management of Food
Corporation of India, Patna
AND.
their workmen.
Present: Sri R.K. Saran
Presiding Officer.
Appearances:
For the Employers
:
None
For the workman.
:
None
State: Jharkhand.
Industry-Food
Dated 12/11/2013
AWARD
By order No. L-22012/140/ 97 /IR (C-11) dated 23/30-
7-98, the Central Government in the Ministry of Labour
has, in exercise of the powers conferred by clause (d) of
sub-section (1) and sub-section (2A) of section 10 of the
Industrial Disputes Act, 1947 referred the following dispute
for adjudication to this Tribunal:
SCHEDULE
" Whether the action of the Management of FCI,
Patna in not regularizing the Services of Smt Sita
Mehta Rani and not paying proper wages and other
benefits as per norms of the Food Corporation of
India is justified or not? If not, to what relief the
workman is entitled?"
2. After receipt of the reference , both parties are
noticed. But appearing for certain dates none appears
subsequently. Case remain pending. It is felt that the disputes
between the parties have been resolved in the meantime.
Hence No Dispute Award is passed. Communicate.
R. K. SARAN, Presiding Officer
ubZ fnYyh] 27 fnlEcj] 2013
dkñvkñ 198.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj eSllZ ,l bZ lh ,y
ds izca/kra= ds laca) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqca/k esa
fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k@Je
U;k;ky; tcyiqj ds iapkV ¼lanHkZ la[;k 13@2009½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 27@12@2013 dks izkIr gqvk FkkA
[Qkñ lañ ,y&22012@124@2008&vkbZvkj¼lh,e&II½]
,eñdsñ flag] vuqHkkx vf/kdkjh
New Delhi, the 27th December, 2013
S.O. 198.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref. 13/2009 of
the Cent.Govt.Indus.Tribunal-cum-Labour Court, Jabalpur
as shown in the Annexure, in the industrial dispute between
the management of SECL Hqrs. and their workmen, received
by the Central Government on 27/12/2013.
[F.No. L-22012/124/2008 - IR(CM-II)]
M. K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL- CUM-LABOUR COURT,
JABALPUR
No. CGIT/LC/R/13/2009
Presiding Officer: SHRI R.B.PATLE
Shri Santosh Chaturvedi,
General Secretary,
Coal India Diploma Abhiyantha Sangh,
SECL Zone, Zonal office,
Qr.No.B/397, Adarshnagar,
PO Kusmunda, Korba,
Chhattisgarh.
...Workman/Union
Versus
Director (Pers.),
SECL Hqrs.,
Seepat Road,
Bilaspur,
Chhattisgarh.
The Chief General Manager (P&A),
SECL Hqr., Seepat Road,
Bilaspur,
Chhattisgarh.
...Management
AWARD
( Passed on this 29th day of October 2013)
1. As per letter dated 27-2-2009 by the Government of
India, Ministry of Labour, New Delhi, the reference is received.
The reference is made to this Tribunal under Section -10 of
I.D.Act, 1947 as per Notification No.L-22012/124/2008-
IR(CM-II). The dispute under reference relates to:
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
421
"Whether the action of the management of SECL in
deduction of 8 days wages of workmen ( as per list
enclosed) from their salary for the month of February
2008 paid in March 2008 is legal and justified? To
what relief are the workmen concerned entitled?"
2. After receiving reference, notices were issued to
the parties. Despite of notice, workman did not appear.
They are proceeded exparte on 12-4-2012.
3. Management filed Written Statement. Management
submits that Union failed to file Statement of Claim. It is
proceeded exparte. It is proceeded exparte on 14-4-12. That
8 days wages of workmen were deducted as disclosed in
the order of reference. All 5 employees are working as
Engineering Assistant(Civil). All of them are senior most
employees in the cadre. Unauthorized absence of senior
employees cause loss of production and administrative
inconvenience. If several employees remained absent from
duty without prior intimation, management is put to
inconvenience. That the Union has issued notice of hunger
strike dated 4-1-08. The notice was displayed at Hqrs of
SECL. Management called the Union for discussing with
the Union. 21 points were discussed with Union on 5-2-08.
Status and report was communicated to the Association
which was satisfied with the explanation of management.
However on 5-2-08, more than 10 Engineering Assistant/
Diploma Holder Supervisory Staff absented from duty
without intimation or sanctioned leave. Their unauthorized
absence from duty put management to inconvenience and
loss of production. Under Payment of Wages Act, action
was initiated under Section 9(2) of P.W.Act. Action was
notified for recovery of wages. That the management is
empowered to deduct his wages. Accordingly the
management taken action.
4. That Union had put demand for withdrawal of the
order of deduction of wages. That more than 10 employees
in question had gone on mass Casual Leave. It is submitted
that deduction of wages is permissible under Section 9(2).
IInd party submits that action of reduction of wages is
legal and justified.
5. Considering pleadings on record, the points which
arise for my consideration and determination are as under.
My findings are recorded against each of them for the
reasons as below:—
(i)
Whether the action of the
In Affirmative
management of SECL in
deduction of 8 days wages of
workmen ( as per list enclosed)
from their salary for the month
of February 2008 paid in March
2008 is legal ?
(ii) If not, what relief the
Relief prayed by
workman is entitled to?
Union rejected.
REASONS
6. Though the action of the management deducting
wages of the employees from February 2008 is challenged,
the Union failed to file Statement of claim. Union did not
participate in the reference proceedings. No evidence is
filed by workman to substantiate its contention.
Management filed Written Statement and evidence of Shri
P.K. Agrawal, Manager (Legal) supporting action of
deduction of wages for absence without intimation. As
Union failed to adduce any evidence about illegality about
deduction of wages by management, I record my finding in
Point No.1 in Affirmative.
7. In the result, award is passed as under:—
(1) Action of the management of SECL in deduction of 8
days wages of workmen ( as per list enclosed) from
their salary for the month of February 2008 paid in
March 2008 is proper.
(2) Relief prayed by Union is rejected.
R.B. PATLE, Presiding Officer
ubZ fnYyh] 27 fnlEcj] 2013
dkñvkñ 199.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj eSllZ ,l bZ lh ,y
ds izca/kra= ds laca) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqca/k esa
fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k@Je
U;k;ky; tcyiqj ds iapkV ¼lanHkZ la[;k 39@2002½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 27@12@2013 dks izkIr gqvk FkkA
[Qkñ lañ ,y&22012@119@2001&vkbZvkj¼lh,e&II½]
,eñ dsñ flag] vuqHkkx vf/kdkjh
New Delhi, the 27th December, 2013
S.O. 199.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref. 39/2002 of
the Cent. Govt.Indus. Tribunal-cum-Labour Court, Jabalpur
as shown in the Annexure, in the industrial dispute between
the management of Dumanhill Colliery of SECL, P.O.
Sonamani and their workmen, received by the Central
Government on 27/12/2013.
[F. No. L-220l2/119/2001 - IR(CM-II)]
M. K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
No. CGIT/LC/R/39/2002
Presiding Officer: SHRE R.B.PATLE
422
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
The Secretary,
Koyla Mazdoor Sabha,
Branch Dumanhill
PO Sonamani,
Distt. Korea (MP)
...Workman/Secretary
Versus
Sub Area Manager,
Dumanhill Colliery of SECL,
PO Sonamani,
Distt. Korea (MP)
...Management
AWARD
(Passed on this 15th day of November 2013 )
1. As per letter dated 21-2-2002 by the Government
of India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section -10 of I.D.Act, 1947 as per Notification No.L-22012/
119/2001-IR(CM-II). The dispute under reference
relates to:
"Whether the action of the Sub Area Manager, Duman
Hill Colliery of SECL, PO Sonamani, Distt. Korea
(Chhattisgarh) in not promoting Shri Mohan Dass
S/o Shri Amar Das, Category I Mazdoor of the
Dumanhill Colliery Hospital w.e.f. 1995 and
superseding Shri Mohan Das by promoting Shri Hari
Nandan, Junior workman from Category I Mazdoor
to Ward Boy is legal and justified? If not, to what
relief Shri Mohan 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. The case of 1st party workman is that he
was appointed as tub loader in Damua Hill Colliery of WCL
in 1977. While he was working as tub loader in Damua Hill
colliery, he met with an accident. Then he was designated
in post of Category-I Mazdoor. He was posted in same
colliery i.e. in Duman Hill colliery. In 1984, he was working
as Ward Boy. He was continuously working as Ward Boy.
He was looking after the patients in Hospital, his duties
were of cleaning of ward, looking after the patients and
give medicines as per the advice of the doctors. That he
being educated person, he was assigned work of getting
medicines issued from store of the hospital.
3. Ist party workman submits that Harinandan Prasad
was initially employed as a Category I mazdoor in the
colliery in 1992, he was junior to the workman by 13 years.
However he was given promotion to the post of Ward Boy
in Grade H on 17-11-1995. That 1st party workman was
superseded by Shri Harinandan Prasad. He has been
discriminated in the matter of promotions. It is further
submitted that he had passed 8th standard. Shri Harinandan
Prasad is illiterate. He managed to get fake certificate of
passing matriculation. On such ground, he submits that he
may be given benefit of promotion as Ward Boy.
4. IInd party management filed Written Statement at
Page 4/1 to 4/6. Claim of 1st party workman is denied
outright. That 1st party workman has challenged promotion
of Harinandan Prasad, S/o Rohan Prasad from 17-11-95.
That 1st party workman was initially appointed on 28-12-
77 as tub loader in Dumanhill Colliery of WCL, Chirimiri
Area. In 1984, workman sustained injury in his right leg
while working underground. Considering his request, he
was provided light job as Category I Mazdoor in Damua
Colliery Hospital. In 1995 workman named Harinandan was
selected to the post of Ward Boy, workman raised dispute.
The conciliation has failed. That the workman was never
deployed to work as Ward Boy. He has not worked as
Ward Boy. Initially he was appointed as tub loader and
subsequently he was provided light duty as he met with an
accident. He was regularized as Mazdoor Category I. He
was granted benefit of SLU by upgradation as General
Mazdoor Catgory II, III on fulfilling the norms.
5. IInd party submits that there is no promotional job
from General Mazdoor to Ward Boy. The post of Ward Boy
is a technical post. It is filled through DPC from eligible
time rated candidates. As per cadre scheme for Para-medical
staff, Ward Boy so elected is trainee Ward Boy Category I.
After selection as Ward Boy trainee and one year training
in Hospital, the trainees are so be confirmed as Ward Boy.
On availability of sanctioned vacant post and qualifying in
Aptitude Test, the workman alongwith 4 others was
selected to the post of Ward Boy, Grade H on 28-3-2006.
The workman received benefit of upgradation from
Category I to II and from Category II to III. All adverse
contentions of workman are denied by IInd party. It is
submitted that workman cannot compare his case with
Harinandan. Both of them were selected through the
selection committee on different dates. That workman is
not entitled for selection to the post of Ward Boy. That
there is no educational bar as per I.I.No. 33 dated 22-6-80.
That there is no cadre scheme for General Mazdoor
Category to the post of Ward Boy is selection post. The
workman was selected to the post of Ward Boy in 2006
after availability of vacant post. On such contentions, IInd
party prays for rejection of claim.
6. Workman submitted rejoinder at Page 5/1 to 5/5
reiterating his contentions in Statement of claim.
7. Considering pleadings on record, the points which
arise for my consideration and determination are as under.
My fmdings are recorded against each of them for the
reasons as below:—
(i)
Whether the action of the Sub
In Negative
Area Manager, Duman Hill
Colliery of SECL, PO Sonamani,
Distt. Korea (Chhattisgarh) in
not promoting Shri Mohan
Dass S/o Shri Amar Das,
Category I Mazdoor of the
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
423
Dumanhill Colliery Hospital
w.e.f. 1995 and superseding Shri
Mohan Das by promoting Shri
Hari Nandan, Junior workman
from Category I Mazdoor to
Ward Boy is legal?
(ii) If not, what relief the workman is
entitled to?"
REASONS
8. Workman feeling aggrieved by promotion of
Shri Harinandan Category I Mazdoor promoted as Ward
Boy from 17-11-95 raised present dispute. IInd party
management submits that the post of Ward Boy is a
selection post. There is no promotional cadre to General
Mazdoor Category-I for promotion to the post of Ward
Boy. That workman was selected as Ward Boy in 2006 after
the post was found vacant and available. Workman filed
affidavit of his evidence. He has stated that he was
appointed as tub loader on 28-12-77. In 1978, he was
working underground. He suffered injury to his right leg in
accident. He was declared unfit for work. That General
Mazdoor is promoted as Ward Boy on recommendation of
DPC. That he was directed to work as Ward Boy by
Dr. Sinha was not on selection by DPC. That why he was
working as Ward Boy when he was getting wage of General
Mazdoor. He was claiming wage for the post of Ward Boy.
Doctors were telling him that he would get increase in wages
since 1985 he was doing the work of distribution of medicines.
That Harinandan Prasad was working as mazdoor since 1980.
He was called as Ward Boy in 1992. He was given promotion
without selection by DPC. That the 1st party workman was
promoted in 2005. He has faced DPC twice.
9. Management filed affidavit of evidence of Zaafar
Mohd. Management's witness states that in 1984, 1st party
workman sustained injury in right leg while working
underground. His request was considered for light job as
Category I, Mazdoor. In 1995, Harinandan Category I,
Mazdoor was promoted and selected to the post of Ward
Boy. The workman was never deployed to work as Ward
Boy and he did not work as claimed by him. In his cross-
examination, witness says that workman was working as
tub loader. After accident, he was provided light duty in
hospital. Harinandan was appointed in 1993 in Category I,
workman was appointed in 1977 as tub loader piece rated.
That Mohandas workman was senior. He was provided
light job in hospital in 1984. Harinandan was working as
mazdoor category in hospital in 1986. That the seniority
list is not produced on record. That work of Ward Boy was
not extracted form workman. Said work was done by
Harinandan. It was the reason that the name of workman
was not recommended by DPC. That the minutes of DPC
from 2007 are missing. The post of Ward Boy is selection
post. That General Mazdoor have different scale. Ward
Boy has also different cadre scheme. The evidence
discussed above is clear that workman is senior to
Harinandan Prasad. He was appointed as Ward Boy on
17-11-97. The evidence on record shows that workman was
also appointed as Ward Boy in 2006. That the post of Ward
Boy is selection post. The management has not produced
any documents about educational qualifications of
Harinandan Prasad. The evidence of workman remained
unchallenged. That he has received education upto 8th
standard. Workman is senior to him. No reasons are explained
by IInd party why 1st party workman was not considered in
1995 when Harinandan Prasad was appointed as Ward Boy.
Copy of cadre scheme is also not produced. Copy of office
order dated 28-3-06 on record shows that workman was
promoted as Ward Boy on recommendation of DPC.
Workman was not promoted while Shri Harinandan junior to
him was promoted on 17-11-95. The management has not
produced documents about selection of Harinandan Prasad
and educational qualifications possessed by him. Therefore,
I find substance in grievance of workman.
10. Learned counsel for IInd party Shri Shashi relies
on ratio held in—
"Case of Brooke Bond (India) Ltd. versus their
workmen reported in 1965-I-LLJ-402. Their Lordship held
terms and agreement interalia providing that other things
being equal, seniority shall count for promotion and that
for overlooking seniority in promotion the management
should furnish reasons to the concerned employee.
Overlooking the claim of six employees based on seniority,
the management promoting two employees out of which
one was No.2 in the seniority list. After a delay of 11 weeks
the management stating that the merit suitability and
personality of the concerned employees were taken into
consideration in promoting the two employees." Their
Lordship held proper directions to be made by the Industrial
Tribunal in a case where promotions are found malafide,
indicated the Industrial Tribunal in such could not direct
promotion of any particular employee but should direct
the management to consider the question of promotion."
Considering ratio in above cited case, the final order
needs to be passed. In case of—
"Telecommunication
Engineering
Service
Association (India) and another reported in 1995-II-LLJ-
585. Their Lordship dealing with back wages, promotion
with retrospective effect held claim for back wages on
promotion can be allowed only from date of actual working
on higher post. Promotees will be entitled to get refixation
of seniority and notional promotion but not arrears of pay
and allowances from date of retrospective promotion."
Considering the ratio held, the final award needs to
be passed. For the reasons discussed above, I record my
finding in Point No.1 in Negative.
11. In the result, award is passed as under—
(1) Action of IInd party management in superseding
Shri Mohan Das by promoting Shri Hari Nandan,
Junior workman from Category I Mazdoor to Ward
Boy is not proper.
424
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
(2) IInd party management is directed to consider the
claim of 1st party workman for post of ward boy from
date of promotion of his junior Harinandan Prasad
from 17-11-1995.
R.B. PATLE, Presiding Officer
ubZ fnYyh] 27 fnlEcj] 2013
dkñvkñ 200.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj eSllZ MCY;w lh ,y
ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqca/k esa
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U;k;ky;] tcyiqj ds iapkV ¼lanHkZ la[;k 50@2008½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 27@12@2013 dks izkIr gqvk FkkA
[Qkñ lañ ,y&22012@380@2007&vkbZvkj¼lh,e&II½]
,eñ dsñ flag] vuqHkkx vf/kdkjh
New Delhi, the 27th December, 2013
S.O. 200.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 50/2008)
of the Cent.Govt.Indus.Tribunal-cum-Labour Court,
Jabalpur as shown in the Annexure, in the industrial dispute
between the management of WCL, and their workmen,
received by the Central Government on 27/12/2013.
[F. No. L-22012/380/2007-IR(CM-II)]
M. K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
No. CGIT/LC/R/50/2008
PRESIDING OFFICER: SHRI R.B. PATLE
General Secretary,
Samyukta Koyla Mazdoor Sangh (AITUC),
CRO Camp Iklehra,
Chhindwara
...Workman/Union
Versus
Chief General Manager, WCL, Pench Area,
PO Parasia,
Chhindwara
...Management
AWARD
(Passed on this 15th day of November 2013)
1. As per letter dated 4-3-2008 by the Government of
India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section 10 of I.D. Act, 1947 as per Notification No. L-22012/
380/2007-IR(CM-II). The dispute under reference relates
to:
"Whether the action of the management of M/s. WCL
in dismissing Shri Inu w.e.f. 21-2-2006 is legal and
justified? If not, to what relief is the workman
entitled?"
2. After receiving reference, notices were issued to
the parties. The workman failed to participate in reference.
Statement of claim is not filed by him. Workman is proceeded
exparte on 21-1-2011.
3. Management filed Written Statement. IInd party in
its written Statement submits that workman was terminated
vide order dated 21-2-2006. Workman was habitually absent.
Chargesheet was issued to him on 21-10-99 under clause
26.24 of the certified standing orders. In enquiry
proceedings, the workman remained absent. Workman was
absent from duty without leave from 1-10-04. Chargesheet
was issued on 14-6-05. Shri T.K. Nikra was appointed as
Enquiry Officer, Shri S.K. Gupta was Management's
Representative. The details of the enquiry proceeding
conducted against workman was given in Para-3 of the
Written Statement. The working days of workman are
shown. It is submitted that the report of Enquiry Officer
holding guilty of charges was considered by Competent
Authority. The services of workman are terminated for his
proved habitual absence.
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 M/s. WCL in
dismissing Sh. Inu w.e.f.
21-2-2006 is legal?
(ii) If not, what relief the
Relief prayed by
workman is entitled to?"
workman is
rejected.
REASONS
5. As per terms of reference, the termination of service
of 1st party workman is challenged. However the workman
failed to file his Statement of Claim. He failed to participate
in the reference proceeding. IInd party submits that for
unauthorized absence the enquiry was held. The
misconduct proved as per report of the Enquiry Officer.
Consequently the services of workman were terminated.
The affidavit of evidence of management's witness
Sukhdev Seth also covers all above contentions of the
management. The witness of the management is not cross-
examined. The evidence remained unchallenged. I do not
find reason to disbelieve evidence of management's witness.
The copies of chargesheet and enquiry proceeding,
termination order are produced and along with list. Thus
evidence of management's witness is corroborated from
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
425
the documents produced on record. As workman failed to
participate, has not filed Statement of claim, 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 M/s. WCL in dismissing
Shri Inu w.e.f. 21-2-2006 is legal.
(2) Relief claimed by workman is rejected.
R.B. PATLE, Presiding Officer
ubZ fnYyh] 27 fnlEcj] 2013
dkñvkñ 201.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj eSllZ ,l bZ lh ,y
ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqca/k esa
fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k@Je
U;k;ky;] tcyiqj ds iapkV ¼lanHkZ la[;k 78@2004½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 27@12@2013 dks izkIr gqvk FkkA
[Qkñ lañ ,y&22012@307@2003&vkbZvkj¼lh,e&II½]
,eñ dsñ flag] vuqHkkx vf/kdkjh
New Delhi, the 27th December, 2013
S.O. 201.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 78/2004)
of the Cent. Govt. Indus.Tribunal-cum-Labour Court,
Jabalpur as shown in the Annexure, in the industrial dispute
between the management of Amlai OCM of South Eastern
Coalfields Limited, and their workmen, received by the
Central Government on 27/12/2013.
[F. No. L-22012/307/2003 - IR (CM-II)]
M. K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
No. CGIT/LC/R/78/2004
PRESIDING OFFICER: SHRI R.B.PATLE
Shri Mole Prasad Kahar,
Ward No.13,
Near Deepchand Sahu Patel Dairy,
PO & Distt. Shahdol,
Shahdol
...Workman
Versus
Sub Area Manager,
Amlai OCM of South Eastern Coalfields Limited,
PO Amlai, Distt. Shahdol,
Shahdol (MP)
...Management
AWARD
(Passed on this 30th day of October, 2013)
1. As per letter dated 30-6-04 by the Government of
India, Ministry of Labour, New Delhi, the reference is received.
The reference is made to this Tribunal under Section -10 of
I.D.Act, 1947 as per Notification No.L-22012/307/2003-
IR(CM-II). The dispute under reference relates to:
"Whether the action of the Sub Area Manager, Amlai
OCM of SECL in terminating the services of
Shri Mole Prasad w.e.f. 11/15-4-98 is legal and justified?
If not, to what relief the workman is entitled?"
2. After receiving reference, notices were issued to
the parties. 1st party workman filed Statement of Claim at
Page 6/1 to 6/2. Case of workman is that he was Secretary as
General Labour in establishment of IInd party since 8-3-79.
Workman was holding Token No. 627. That he rendered
his duty continuously with sincerity. Officers of the IInd
party are vested with administrative powers IInd party is
an industry, 1st party is workman under I.D.Act that
workman was suffered from mental illness from 14-11-96.
He was receiving treatment at Medical College, Jabalpur.
He was not in normal condition. After long treatment for
1½ years, he recovered of his mental condition and has
become fit for resuming duties. That during the period of
his illness, he had not attended duties regularly.
Management of IInd party received chargesheet as per
letter dated 2- 2-98. The charges related to habitual absence
from duties. That he had submitted medical certificates in
his defence alongwith applications for leave. IInd Party
No. 1 acted arbitrarily observing that he was not satisfied
with the explanation submitted by the workman. That his
services were terminated as per order dated 15-4-98. That
he is not educated person. The orders and proceedings
were for argument. He was unable to understand. He was
not facilitated with the translation in Hindi. His explanations
and documentary defence was rejected arbitrarily. On such
grounds, workman submits that order of his termination
from service is void. He may be reinstated.
3. IInd party filed exhaustive Written Statement at
Page 8/1 to 8/11. Case of IInd party is that 1st party workman
was appointed as piece rated tub loader on temporary basis
for a period of 3 months as per order dated 5-3-79. He was
initially posted under Manager Amlai Colliery, he was
habitual absentee. He has no interest in performing duties.
Workman remained absent from duty unauthorisely
without intimation or prior permission. Workman was given
opportunity to improve since his initial appointment, he
failed to work for minimum required period for regular
service. The workman was absent during the period
22-3-94 to 4-4-94, warning was issued to him on 5-4-94. He
was also issued warnings for his absence from 12-9-94 to
3-12-94. The warnings were also issued vide letters dated
6-7-96, 1-10-96. Chargesheet was issued to workman on
426
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
16-3-95. Chargesheet No. 745 was issued on 24-9-96. Reply
submitted by workman was unsatisfactory. DE was
conducted. Shri S.P.Nigam was appointed as Enquiry
Officer. Shri A.K.Singh was Management Representative.
Enquiry was conducted on various dates. Workman
remained absent despite of memorandum issued on 18-6-97
and 25-6-97. Letter by RPAD was sent to him on 4-8-97.
Enquiry was fixed on 20-8-97. Workman remained absent
on all the date, notice was published in newspaper. As the
workman failed to appear, enquiry was conducted exparte.
Management adduced evidence of 5 witnesses. Details of
the leave period and period of working is shown in the
Written Statement.
4. IInd party denied that workman continuously
worked with devotion. It is denied that workman worked
more than 240 days. It is submitted that workman remained
absent from duty without intimation, misconduct is proved
from report of the Enquiry Officer. The services are
terminated for proved misconduct. On such ground, IInd
party prayed for rejection of claim.
5. Workman filed rejoinder at Page 9/1 to 9/3. 1st
party workman reiterated its contention in Statement of
Claim. That order of his termination of dated 15-4-98 be
declared null and void and management be directed to
restore his services.
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 Sub
In Negative
Area Manager, Amlai OCM of
SECL in terminating the services
of Shri Mole Prasad w.e.f.
11/15-4-98 is justified?
(ii) If not, what relief the
As per final order.
workman is entitled to?"
REASONS
7. Workman is challenging termination of services.
My predecessor has decided Issue No.1 holding that
Departmental Enquiry conducted by management against
workman is not legal and proper. Management was given
opportunity to prove misconduct in Court.
8. Management filed affidavit of witness
Shri Gajadhar Gupta. Witness of the management has stated
that a Committee was constituted to enquire into the
charges leveled against workman. Shri S.P.Nigam Asstt.
Manager, Amlai and OCM was appointed as Enquiry Officer
and Management Representative respectively. As per G&H
review Mole Prasad Token No. 627 was absent from duty
without application during the period 30-7-96 to 15-9-96.
He had availed 7 days CL in 1994, 11 days CL in 1995, 11
days CL in 1996, 3 days sick leave in 1994, 15 days sick
leave in 1995, 15 days sick leave in 1996 and 10 days EL in
1994. In his cross-examination, above witness of the
management says that he was working as Leave clerk
therefore he knows about the unauthorized absence of
workman. The entries about unauthorized absence is marked
in H Register. Medical certificate of workman were received
on 10-8-94. In Form H register, there is no entry what
decision was taken on said certificate. He denied that
workman not absent unauthorisedly.
9. Next witness of the management Dharmajan Paniker
filed affidavit of his evidence. Said witness says that workman
was absent from duty without permission of competent
authority during the period 30-7-96 to 15-9-96. He was issued
letter dated 28-1-2011. Said witness has shown the working
days of workman — 91 days in 1994, 206 days in 1995, 14
days in 1996 etc. the workman again remained absent from
12-9-94 to 1-12-94 unauthorisely. The chargesheet No. 956
dated 1-12-94 was issued under standing orders clause 26.30.
The copy of chargesheet Annexure II is produced. Workman
submitted reply apologizing for his misconduct. Workman
was again issued warning letter dated 1-10-96 for attendance
of 28 days during June to August, 1996. Chargesheet No.
745 was issued on 24-9-96. The witness has given details of
working days of workman 91 days in 1994, 206 days in 1995
and 166 days in 1996. The details of leave and period of
absence given in Para-9 of his affidavit. Workman has shown
unauthorized absent of 205 days in 1994, 74 days in 1995 and
112 days in 1996. The chargesheet issued to workman dated
1-12-94 Annexure M-2 is for his unauthorized absence from
12-9-94. The chargesheet was issued on 28-11-94 (corrected
date 1-12-94). The chargesheet was not issued for his
unauthorized absence of 95 days in 1996. The unauthorized
absence shown in his affidavit by the witness in 1995- 206
days, 1996- 166 days„ Management's witness in his cross-
examination says that minimum attendance of employees
should be 150 days. He denied that there is practice in SECL
attending 150 days in a year found unauthorised
absent,warning is issued. Office record brought by him
contains the fitness certificate of workman issued by
Medical College, Jabalpur. He shown his readiness to
produce said document. Certificate is produced at Exhibit
M-6. Witness was unable to tell what decision was taken
on such medical certificate by the management. The fitness
certificate was issued subsequently.
10. That public notice was issued, the enquiry was
conducted exparte. Document Exhibit M-6 shows that the
workman suffered from certain decease during the period
14-11-96 to 3-11-98 subsequent to the period of his
unauthorised absence alleged in the chargesheet. The
enquiry held against workman is found illegal. Management
is given opportunity to prove misconduct. However the
evidence of both the witnesses of the management is not
clear about unauthorised absence, medical certificate
submitted by the workman were not considered, what action
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
427
was taken in the medical certificate was not recorded in
H Register. The affidavit of witness Shri Gajadhar Gupta
shows unauthorized absence of 205 days in 1994. The
attendance is shown 306 days. Thus the evidence of both
the witnesses of the management about unauthorized
absence is not consistent, with the allegation in chargesheet
Annexure M-2. If chargesheet M-2 is admitted as it is, the
absence of 1st party workman is shown from 12-9-94 and
chargesheet prepared on 28-11-94. Thus the period of
absence comes to 2 months 16 days. Document Exhibit
M-6 shows that the workman was suffering from certain
mental illness, what action was taken on said certificate is
not known as per evidence of Management's witness
Paniker. Therefore his absence cannot be said unauthorized.
11. Learned counsel for workman relies on ratio held
in —
"Case of Krushnakant B Parmar versus Union of
India and another reported in 2012 (132) FLR-1023.
Their Lordship dealing with unauthorized absence
from duty finding recorded by the Inquiry Officer
that appellant was unauthorisedly absent from duty
but failed to hold that the absence was willful.
specific case of appellant that he was prevented by
DCIO from attending duty. DCIO did not appear
before Inquiry Officer inspite of service of summons.
Other witness did not make statement against the
appellant. Their Lordship held that absence from duty
without prior permission amount to unauthorized
absence. Such absence not always willful such as a
result of compelling circumstances. Disciplinary
Authority required to prove that absence is willful.
In absence of such finding absence will not amount
to misconduct."
In the present case, evidence of both the witnesses
of management doesnot show the absence of workman
was willful.
12. Learned counsel for IInd party relies on bunch of
citations. In case of—
"Shri A.M. Eashwarachar versus Executive Engineer
(Electrical) reported in 1995-I-LLJ-1065. Their
Lordship dealing with habitual absence held though
a strong plea was made on behalf of petitioner that
some minor penalty be awarded and the petitioner
be reinstated having regard to the nature of
misconduct, the petitioner is totally disqualified for
any such relief. However the order of dismissal does
appear to be too harsh in so far as the petitioner
would be deprived of whatever few benefits might
have accrued to him by virtue of his earlier service
and more importantly it may act as a bar for
employment elsewhere. In such circumstances, the
order of dismissal shall stand modified to one of
termination."
In case of Mithilesh Singh versus Union of India
and others reported in 2003(3) Supreme Court Cases
309 . Their Lordship held dealing with the case of
member of Armed Forces and oposted in a terrorist
affected area proceeding on leave without proper
intimation and permission. Also leaving his arms and
ammunition unguarded and not in proper custody.
Punishment of removal which was statutorily
prescribed. Held on facts was not disproportionate
to the offence committed.
The facts of above cited case are not comparable
with the present case. The ratio cannot be applied to
the present case at hand.
Next reliance is placed on ratio held in case of Punjab
and Sind Bank versus Sakattar Singh reported in
2001-LAB. I.C.301. Their Lordship dealing with
Para-522 of Sastry Award termination of services of
Bank employee for unauthorised absence beyond
prescribed limit held employee not intending to join
nor offering any explanation regarding his
unauthorised absence. Presumption drawn under rule
that employee stands retired from service. Order
terminating his services not punishment for
misconduct.
The present case relate to Bank employee covered
by Sastry Award therefore the ratio cannot be applied
to present case. The present case doesnot relate to
voluntary retirement on account of unauthorized
absence.
Next reliance is placed on Hindustan Paper
Corporation and Purnendu Chakroborty and others
reported in 1997-II-LLJ-704. The above cited case
relates to Rule 23(vi) E and 25 Loss of lien on
appointment by employee proceeding on leave
without prior sanction and remaining unauthorisedly
absent for more than 8 consecutive days and
overstaying his sanctioned leave beyond the period
originally granted or subsequently extended for more
than 8 consecutive days."
The facts of the present case are not comparable and
therefore ratio in above case cannot be applied to
case at hand.
Reliance is also placed in ratio held in case of
Eveready Industries India Ltd. Jabalpur and others
versus Shri P.S. Parihar and another reported in 2003
(3) M.P.H.T. 257. His Lordship considering that
employee was appointed by company on 26-2-77.
He was given light work at his request because of
his poor health. He was inefficient. His work was
unsatisfactory. He used to remain absent from duty.
He behaved in an indisciplined manner. He did not
improve. He was given one month's wages in lieu of
notice and his services terminated on 11-12-97. His
428
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
Lordship held form documentary evidence, it is
evident that respondent No.1/employee remained
absent for a long time. He committed various
irregularities in handling the trade. He did not take
interest in the work. Hence there was reasonable
cause for dispensing with his services."
The facts of present case are not comparable. The
management's witness admitted that the workman
had produced medical certificate. No entry was taken
in H Register, what action was taken with regard to
said certificate is not known.
Reliance is also placed in ratio held in Case of
Syndicate Bank versus General Secretary, Syndicate
Bank Staff Association and another reported in
2000-1-LLJ1630. Said case pertains to 4th Bipartite
Settlement between Syndicate Bank and employees.
Clause 16 unauthorised absence of morethan 90 days
deemed to have taken voluntary retirement.
The present case doesnot relate to such settlement
or deemed voluntary retirement therefore the ratio
held in the case cannot be beneficially applied to the
case at hand.
13. Considering the allegation in chargesheet and
absence from duty not willful, the punishment of dismissal
from service is not appropriate. Therefore action of
management is not justified. For above reasons, I record
my finding in Point No. 1 in Negative.
14. Point No. 2- In view of my finding that action of
the management is not legal, the question arises to what
relief the workman is entitled? As per chargesheet issued,
the workman was absent, he had not submitted application,
the workman claims to be suffering from mental illness.
The Certificate M-6 is produced is for subsequent period.
Considering the facts of the case and the period of absence
from duty, in my considered view, order of dismissal cannot
be sustained. The reinstatement of workman without back
wages would be appropriate in the ends of justice.
Accordingly I record Point No. 2.
15. In the result, award is passed as under:—
(1) Action of the Sub Area Manager, Amlai OCM of SECL
in terminating the services of Shri Mole Prasad w.e.f.
11/15-4-98 is not proper.
(2) IInd party is directed to reinstate workman but
without back wages.
R.B. PATLE, Presiding Officer
ubZ fnYyh] 27 fnlEcj] 2013
dkñvkñ 202.—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k es dsUnzh; ljdkj eSllZ lh MCY;w
lh ds izca/kra= ds laca) 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
176@2003½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 27@12@2013
dks izkIr gqvk FkkA
[ Qkñ lañ ,y&42012@34@2001&vkbZ vkj ¼lh&II½]
,eñ dsñ flag] vuqHkkx vf/kdkjh
New Delhi, the 27th December, 2013
S.O. 202.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref.176/2003) of
the Cent. Govt. Indus. Tribunal-cum-Labour Court Jabalpur,
as shown in the Annexure, in the industrial dispute between
the management of Central Warehousing Corporation,
and their workmen, received by the Central Government on
27/12/2013
[F.No. L-42012/34/2001 -IR(C-II)]
M. K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/176/2003
PRESIDING OFFICER: SHRI R.B.PATLE
Shri Manoj Singh Chandel & Others,
Vill & PO Baganta,
Distt. Chhatarpur, .
Chhatarpur (MP)
........Workman
Versus
The Manager,
Central Warehousing Corporation,
Branch Chhatarpur,
Chhatarpur (MP)
...........Management
AWARD
( Passed on this 18th day of November, 2013)
1. As per letter dated 9-10-2003 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-42012/
34/2001-IR(C-II). The dispute under reference relates to:
"Whether the action of the management of Central
Warehousing Corporation in terminating the services
of S/Shri Manoj Singh Chandel, S/o Late Phool Singh
Chandel and Mazbook Ahmad S/o Vahid Ahmad
Siddique, Security Guards is legal and justified? If
not, to what relief they are entitled to?"
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
429
2. After receiving reference, notices were issued to
the parties. Workman filed Statement of Claim at Page 4/1
to 4/5. Case of 1st party workman is that they were
appointed on vacant post as security Guard by the
management of Central Ware House, Branch Chhatarpur
on 1-9-96 therefore intermediary contractor i.e. BSA
Industrial Security India- IInd party No.2. that as per
agreement and terms and conditions of contract, the IInd
party 6 No.2 BSA were required to be deemed in service of
security guard till their age of superannuation. IInd party
was required to provide service of security guard. The
overall control was with Ware Housing Corporation
Manager. That they were performing their duties
satisfactorily. They continuously worked from 1996 to 1998.
That their services were abruptly discontinued from 8-7-98
in violation of principles of natural justice. That their
services are terminated in violation of Section 25-F,a,b of
I.D.Act, They are illegally retrenched. On such grounds,
workman prays for their reinstatement with consequential
benefits.
3. IInd party filed Written Statement at Page 7/1 to
7/9. The preliminary objection is raised by IInd party that
there is no employer/employee relationship. The reference
is illegal and bad in law. Central Govt. should not have
decided disputed questions. IInd party submits that the
dispute relates to reinstatement and other benefits claimed
on the ground of illegal termination of services. Ware
Housing Corporation is not concerned with reliefs prayed
by workman. Their services are not terminated by IInd party.
They were not appointed or terminated by IInd party. That
as per policy of Govt. of India, the reservation policy is
obligatory on IInd party. The reservation for SC, ST, OBC
is required to be followed. Ex servicemen are required to be
appointed as security guards. That as per Ministry of
Industrial Department, it is mandatory on part of public
sector undertakings to approach DGR for appointment of
security guard out of panel maintained by DGR. That as
per the conditions mutually agreed, principal employer and
security agency, the DGR guidelines concerning security
agencies and wage structure enclosed and the same are
required to be followed. That the agency had agreed to
provide security guards desired by corporation from
16- 7-97 for 3 1/2 years. Other terms and conditions are
narrated in Para-12 of the Written Statement. The security
guard has to engage ex- servicemen personnel as per the
contract with Ware House Corporation. That Corporation
neither appointed 1st party No.1,2 nor terminated their
services. The claim is not tenable against IInd party. All
other contentions of Ist party are denied. IInd party claims
for rejection of claim of workman.
4. Application for impleading BSA Industrial Security
was filed by 1st party workman and the same has been
rejected.
5. Rejoinder is filed by 1st party at Page 12/1 to 12/2
reiterating their contentions that their services are
terminated in violation of Section 25-F of I.D.Act. that they
are covered as workman under Section 2(s) of I.D.Act.
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
The workmen are
management of Central
not terminated
Warehousing Corporation in
by Central Ware
terminating the services
Housing
of S/Shri Manoj Singh
Corporation.
Chandel, S/o Late Phool
Singh Chandel and Mazbook
Ahmad S/o Vahid Ahmad
Siddique, Security Guard
is legal ?
(ii) If not, what relief the
Relief prayed by
workman is entitled to?"
workmen are
rejected.
REASONS
7. 1st party No.1,2 are challenging termination of their
services as Security Guard for violation of Section 25-F, H
of I.D.Act, affidavit of evidence is filed by 1st Party No. 1
Manoj Singh Chandel. He has stated that on 1-9-96, he was
appointed as Security Guard against vacant post through
contractor BSA. That his services are terminated without
reasons. Retrenchment compensation is not paid, notice is
not issued for termination of service. The termination is in
violation of Section 25-F, H of I.D.Act. In his cross-
examination, he says that he was appointed by Shri
M.S.Siddiqui, Ware House Manager orally. The Manager
was not acquainted with him. He was called by CWC
Manager saying the post was vacant, Manager met him
while passing on road., he claims ignorance whether his
name was sponsored through Employment Exchange, That
Mr. Siddiqui had interviewed him. In his further cross-
examination, workman says BSA Agency had employed
several persons for security of godown. He was not
acquainted with any of them. He denied that CWC had not
appointed him as security guard. He denies that he was
engaged by BSA Agency. He denies that his salary was
paid by BSA Agency. He was receiving salary Rs.2200/-
salary was paid by clerk Vishwakarma of CWC .
8. Maqbool Ahmed 1st party No.21 also filed
identical affidavit and both workmen have claimed that
they were working more than 240 days in each of calendar
year 1996 to 1998. Maqbool Khan in his cross-examinatin
says the post was not advertised in newspaper, his name
430
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
was not sponsored through Employment Exchange. The
contractor Govind Singh had employed him in 1996. That
BSA Agency had submitted tendor for security guards.
The evidence adduced by workman clearly shows that they
were engaged through contractor. The contractor is not
included as party. The evidence of management's witness
J.V.Bendre is on the point that both the workmen were
engaged by contractor. 1st party workman were not
terminated by CWC. The pleadings and evidence of 1st
party workman is silent that the contract between Principal
Employer and contractor BSA Agency was not genuine or
it was camouflage. In absence of such evidence, there is
no relationship of employer employee between workman
and IInd party. The documents produced by IInd party
Exhibit M-1 to M-2 clearly shows that workman were
engaged through contractor. The services of workmen are
not terminated by IInd party. Therefore the contentions of
workman about termination of their services by IInd party
in violation of Section 25-F, H of I.D.Act cannot be
accepted.
9. Learned counsel for 1st party workman submitted
copy of Judgment in Appeal No. 10863/96 and 10541/96 in
support of the claim of 1st party workman. The facts of
present case are entirely different. The workmen were
engaged through contractor. The contractor is not
impleaded as party. Rather application of IInd party for
impleading contractor as party, the reference was opposed
by workman. The evidence of management's witness
Mrityunjay Verma on the point that workmen were engaged
through contractor BSA Security is not shattered. Therefore
for want of employer employee relationship, I record my
finding on Point No.1 that IInd party has not terminated
services of 1st party workman.
10. In the result, award is passed as under:—
(1)
Services of 1st party workman No.1,2 are not
terminated by IInd party Central Ware Housing
Corporation. There is no point of violation of
Section 25-F, H of I.D.Act.
(2)
Relief prayed by workmen are rejected.
R. B. PATLE, Presiding Officer
ubZ fnYyh] 27 fnlEcj] 2013
dkñvkñ 203.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k eas dsUnzh; ljdkj eSllZ MCY;w lh
,y ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèdj.k ,oa Je U;k;ky;] tcyiqj ds iapkV ¼lanHkZ la[;k 193@95½
dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 27@12@2013 dks izkIr
gqvk FkkA
[ Qkñ lañ ,y&22012@374@1990&vkbZ vkj ¼lh&II½]
,eñ dsñ flag] vuqHkkx vf/kdkjh
New Delhi, the 27th December, 2013
S.O. 203.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref.193/95) of
the Cent.Govt. Indus.Tribunal-cum-Labour Court, Jabalpur
as shown in the Annexure, in the industrial dispute between
the management of WCL, and their workmen, received by
the Central Government on 27/12/2013
[F. No. L-22012/374/1990 -IR (CM-II)]
M.K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/193/95
PRESIDING OFFICER: SHRI R.B.PATLE
Shri D.N.Tripathi,
Lal Jhanda Coal Mines Mazdoor Union(CITU),
Head Office, Damua,
Distt. Chhindwara
........Workman/Union
Versus
General Manager,
WCL, Kanhan Area,
Post Dungaria,
Distt. Chhindwara (MP)
......Management
AWARD
(Passed on this 29th day of October, 2013)
1. As per letter dated 20-10-95 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-22012/
374/90-IR(C-II). The dispute under reference relates to:
" Whether the action of the management of WCL,
Kanhan Area for reversion of Shri Atmaram S/o
Chiraunji w.e.f. 10-5-87 is legal and justified? If not,
to what relief the concerned workman is entitled?"
2. After receiving reference, notices were issued to
the parties. 1st party workman filed statement of claim at
page 4/1 to 4/3. Case of 1st party workman is that he was
working on the post of DPR from 1978. From 1980, he was
working as loader on promotion. In March 1987, he was
transferred to Rakhikol Colliery as tub loader. The
management was in need of JCB Operator. 1st party
workman was holding licence of driving. He had also
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
431
experience of driving. He was orally appointed as JCB
Operator. Said post was of permanent nature as the
1st party workman was holding eligibility and qualification,
he was appointed as JCB Operator. He was continuously
working on said post from 4-3-87 till 9-5-87. He had taken
entries in log book. Workman and his co-employee were
appointed as JCB Operator/driver. On 10-5-87, without prior
notice, his services were changed. He was directed to work
as tub loader. That he was appointed as JCB Operator on
probation. After he was discontinued from post of JCB
Operator, other employees were appointed on said post.
The management had made alterations in the registers to
show favour to other employees. The action of the
management discriminating him from work for JCB Operator
is illegal. On such grounds, he prays for reinstatement with
consequential benefit on the post of JCB Operator.
3. IInd party filed Written Statement at Page 7/1 to
7/5. Claim of 1st party workman is opposed by management.
The management had denied all material contentions of
the workman. RKKMS Union had not raised the dispute.
The dispute has been raised by CIRU Union. That workman
cannot be member of 2 Unions. ALC overruled the
objections. The dispute was taken into conciliation. The
same ended in failure. The Government had referred the
dispute for adjudication.
4. IInd party submits that workman was appointed
as tub loader at Rakhikol Colliery of Damua Sub area. He
was transferred to Damua Colliery as tub loader vide order
dated 4-3-87. He was subsequently allowed to resume duty
in JB Incline of Damua Colliery. Since June 1987, 1st party
workman was working as tub loader. The terms and
conditions of employment of coal mine workers are covered
by NCWA exhibited time to time. There is no job
nomenclature of JCB operator of NCWA. The job
designation is Driver. Management cannot ask workman
to perform in a particular post which is not in existence.
That the workman was piece rated workman. He was never
engaged to work as Driver on any of the vehicles. The
promotions are given as per the policy laid down in cadre
scheme by DPC. That promotion cannot be claimed as a
right, the same are based on various circumstances available
of posts etc. It is reiterated that workman was employed as
tub loader. He never worked as JCB Operator. Such post is
not existing. The relief prayed by workman cannot be
allowed. IInd party prayed 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 WCL, Kanhan
Area for reversion of Shri
Atmaram S/o Chiraunji w.e.f.
10-5-87 is legal and justified ?
(ii) If not, what relief the
Relief prayed by
workman is entitled to?"
workman is
rejected.
REASONS
6. Though workman is challenging his reversion from
the post of JCB Operator w.e.f. 10-5-87, he has failed to
adduce evidence in support of his contentions in Statement
of claim. 1st party workman has not properly participated
in the reference proceeding. The management filed affidavit
of evidence of its witness Shri A.C.Kaushik . Management's
witness has stated most of the facts covered in the Written
Statement filed by the management that there is no post of
JCB Operator. That promotions cannot be claimed as a
right. The promotions are given on recommendation of
DPC as per cadre scheme. Workman was working as tub
loader. He is not discriminated. The evidence of
management's witness remained unchallenged. I donot find
reason to discard his evidence. Workman has not adduced
any evidence to establish illegality in the act of the
management. Therefore I record my finding on Point No.1
in Affirmative.
7. In the result, award is passed as under:—
(1) Action of the management of WCL, Kanhan Area for
reversion of Shri Atmaram S/o Chiraunji w.e.f.
10-5-87 is legal.
(2) Relief prayed by workman is rejected.
R.B. PATLE, Presiding Officer
ubZ fnYyh] 27 fnlEcj] 2013
dkñvkñ 204.—vkS|ksfxd vf/klwpuk fookn vf/kfu;e 1947
¼1947 dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj eSllZ
,Q lh vkbZ ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds
chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vf/kdj.k@Je U;k;ky;] tcyiqj ds iapkV ¼lanHkZ la[;k 253@99½
dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 27@12@2013 dks izkIr
gqvk FkkA
[ Qkñ lañ ,y&22012@429@1998&vkbZ vkj ¼lh,e&II½]
,eñ dsñ flag] vuqHkkx vf/kdkjh
New Delhi, the 27th December, 2013
S.O. 204.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 253/99) of
the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Jabalpur as shown in the Annexure, in the industrial dispute
between the management of Food Corporation of India,
432
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
and their workmen, received by the Central Government on
27/12/2013.
[F. No. L-22012/429/1998-IR (CM-II)]
M. K. SINGH, Section Officer
ANNEXURE
BFORE THE CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, JABALPUR
NO. CGIT/LC/R/253/99
PRESIDING OFFICER: SHRI R.B.PATLE
General secretary,
M.P.Gadiwahan Hamal Reza Mazdoor Mahasang,
Station Road, Mahasamund (MP)
...Workman/Union
Versus
District Manager,
Food Corporation of India,
District Office,
Kutchery Chowk,
Raipur
AWARD
( Passed on this 25th day of October 2013 )
1. As per letter dated 29-6/9-7-1999 by the
Government of India, Ministry of Labour, New Delhi, the
reference is received. The reference is made to this Tribunal
under Section -10 of I.D.Act, 1947 as per Notification No.
L-22012/429/98/IR(CM-II). The dispute under reference
relates to:
"Whether the demand of the M.P.Gadiwahan Hamal
Reza Mazdoor Mahasang for regularization of 101
workers of Mahasamund Depot. Under District
Manager, FCI, Raipur w.e.f. 1-4-94 is justified? If not,
to what relief the workmen are entitled?"
2. After receiving reference, notices were issued to
the parties. 1st party Union filed Statement of Claim at
Page 2/1 to 2/3. Case of 1st party union is that 101 labours
shown in Schedule A were working in godowns of the IInd
party at Mahasamund. The period of their working is shown
in the schedule. The conciliation proceeding was initiated
before ALC, Raipur for regularization. 63 employees shown
in Schedule B, employees at Sl. No.44 to 60 were out of
State. They were shown junior to the 63 employees shown
in Schedule A. Despite of it, those employees were
regularized on failure report submitted by ALC, the dispute
has been referred. The Union submits that from 1-4-94,
direct payment scheme was introduced in Mahasamund
depot of FCI, 63 employees shown in Schedule-B were
regularized. Those 63 employees were mates, were treated
as contractor's employees. That 101 employees represented
by the Union were contract labours holding licence under
Contract Labour (Regulation and Abolition) Act, 1970. They
were not regularized by IInd party. The denial of
regularization of those 101 labours is illegal. It is further
submitted that out of 63 employees annexed in schedule B,
36 employees were of 1st party Union. GPF of those 36
employees was deducted by the 1st party union as per the
statement. On 29-8-88 IInd party treated Jagdish Bakshi as
made/contractor. That the employees at Sl. No.110, 145,
146 to 149 were at Schedule "S" have never worked were
regularized in service. 101 employees in Schedule A are
entitled for regularization. Accordingly the Union is praying
for regularization of 101 employees shown in Schedule A.
3. IInd party filed Written statement opposing claim
of Union, IInd party submits that it is constituted under
FCI Act, 1964 as such the statutory corporation which deals
in import, procurement, storage and distribution of the food
grains throughout the country. The management of FCI
usually appoints handling and transport contractors at
various depots including Mahasamund. The said
contractors used to engage labours and get work from
them. FCI has no administrative control over such labours
engaged by contractors. Present dispute filed by Union
pertains to workman engaged by contractors at Rail Head
at Mahasamund for regularization of 101 workers. All these
labours appears to have been appointed by transport
contractors of the Rail Head. They were not engaged by
FCI. There is no employer employee relationship. There is
no administrative control of FCI on those labours.
4. Earlier transport contract of Rail Head of
Mahasamund was awarded to Shri Jagdish Bakshi from
5-7-88 to 7-7-90 prior to completion of said contract, Jagdish
Bakshi expired in May 1989. Said contract was given to
M.P.Gadiwahan Hamal Reza Mazdoor Mahasang on adhoc
basis. On 26-9-89, made system was introduced and
agreement was entered between management of FCI and
workers Union through mate system Shri Mahesh Mahto
and others. Under the said agreement, Workers Union had
to nominate made in the depot which in turn execute the
agreement with the District Manager. In pursuance of
Agreement dated 1-11-94 between FCI and Union for direct
payment system, the strength of workers was to be
assessed for operations during preceding 3 years. The
demand of the Union for regularization of workers doesnot
arise.
5. Government had declined to refer dispute. In Writ
Petition No. 28760/96 filed by Union, the dispute is referred.
The claim for regularization is not legal. It deserves to be
dismissed. All adverse contentions of the Union are denied.
The workers of transport contractors cannot be equated
with the workers working with the godowns of FCI under
Direct Payment system. There is no question of payment
of benefit to them. On such ground, management prays for
rejection 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
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
433
the reasons as below:—
(i)
Whether the demand of the
In Negative
M.P.Gadiwahan Hamal Reza
Mazdoor
Mahasang
for
regularization of 101 workers of
Mahasamund Depot. Under
District Manager, FCI, Raipur
w.e.f. 1-4-94 is legal?
(ii) If not, what relief the
Demands of
workman is entitled to?"
Union are
rejected.
REASONS
7. Though the dispute is referred for adjudication
relating to regularization of 101 employees in FCI, 1st party
Union filed Statement of claim. However Union failed to
participate in the reference proceeding. The Union has not
adduced evidence in support of its demands. The evidence
of Union is closed on 14-9-2011. The management has filed
affidavit of Shri Anil Kumar Namdev and Shri Shambhunath
Mishra. Union failed to cross-examine the witness of
management. Both witnesses of management supports the
contentions of management of FCI. In absence of any
evidence in support of the demands of the Union, the
demands cannot be accepted. For above reasons, I record
my finding in Point No.1 in Negative.
8. In the result, award is passed as under:—
(1) The demand of the M.P.Gadiwahan Hamal Reza
Mazdoor Mahasang for regularization of 101 workers
of Mahasamund Depot. Under District Manager, FCI,
Raipur w.e.f. 1-4-94 is not justified.
(2) Demand of Union is rejected.
R.B. PATLE, Presiding Officer
ubZ fnYyh] 27 fnlEcj] 2013
dkñvkñ 205.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj eSllZ MCY;w lh
,y ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèdj.k@Je U;k;ky;] tcyiqj ds iapkV ¼lanHkZ la[;k 67@2009½
dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 27@12@2013 dks izkIr
gqvk FkkA
[ Qkñ lañ ,y&22012@12@2009&vkbZ vkj ¼lh,e&II½]
,eñdsñ flag] vuqHkkx vf/kdkjh
New Delhi, the 27th December, 2013
S.O. 205.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 67/2009) of
the Cent.Govt.Indus.Tribunal-cum-Labour Court, Jabalpur
as shown in the Annexure, in the industrial dispute between
the management of Western Coalfields Limited, and their
workmen, received by the Central Government on
27/12/2013.
[F. No. L-22012/12/2009-IR(CM-II)]
M. K. SINGH, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/67/2009
PRESIDING OFFICER: SHRI R.B.PATLE
Shri Manoj,
S/o Ram Bhau Sande,
Sulbha,Near Pandit Deendayal High School,
Dhantauli,
Nagpur
...Workman
Versus
Chief General Manager,
Western Coalfields Limited,
Kanhan Area, PO Dungaria,
Chhindwara
...Management
AWARD
(Passed on this 28th day of November, 2013)
1. As per letter dated 1-7-2009 by the Government
of India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section -10 of I.D.Act, 1947 as per Notification No.L-22012/
12/2009-IR(CM-II). The dispute under reference relates to:
"Whether the action of the management of M/s. WCL
in not providing employment to the dependant of
Late Shri Ashok Sande S/o Shri Ram Bhau Sande,
the ex-workman is legal and justified? To what relief
is the claimant entitled for?"
2. After receiving reference, notices were issued the
parties. Case of 1st party claiming to be dependent of
deceased workman has filed Statement of Claim at Page
3/1 to 3/5. The case of Ist party is that deceased Ashok
Kumar Sande was appointed in compassionate ground after
death of his father Ram Bhau Sande in Ghorawari Colliery.
That Ashok Kumar Sande was continuously working from
1980 till 1982. He was transferred from Ghodawari Colliery
to Nandanwari colliery on 22-6-82. On 22-6-82, he left his
house for attending his duty and thereafter his
whereabouts were not known. That Ashok Kumar was
appointed on permanent vacant post of LDC. Since 23-6-
82, his whereabouts were not known. Report was submitted
to Police Station. After sometime in place of Ashok, his
brother applied for appointment on compassionate ground.
1st party had submitted application for employment but
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THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
nothing was heard. 1st party further submits that nothing
was heard and lastly he was informed to obtain decree
from the court of law that his brother Ashok Kumar Sande
is dead. That assurance was given to him by IInd party
that if application is filed before Competent Court for
declaration that Ashok Kumar is dead, thereafter the Court
has declared Ashok Kumar as dead.
3. It is further submitted that after declaration of
Ashok Kumar Sande as dead, 1st party being his younger
brother is entitled to get appointment on compassionate
ground. That 1st party was dependent on Ashok Sande.
The rules of the department provides compassionate
appointment to the deceased. Therefore 1st party claims to
be entitled for appointment on compassionate ground. It is
further submitted that refusal by IInd party to provide
employment is unfair labour practice. The act is by
victimization in colorable exercise of powers as such illegal.
1st party further submits that he is also entitled to terminal
benefits for period of 23 years. That no enquiry was held
against Shri Ashok Sande. The termination order filed by
IInd party was without issuing chargesheet or conducting
enquiry. The document is fabricated. On such ground, 1st
party prays direction to provide employment on
compassionate ground.
4. IInd party filed Written Statement at Page 7/1 to
7/7. Claim of 1st party is totally denied. Preliminary objection
is raised that the dispute is not tenable under Section 2(k)
of I.D.Act. 1st party is not workman under section 2(s) of
I.D.Act. There is no employer employee relationship. That
reference is not tenable under Section 2(k) for employment
on compassionate ground. All other contention of Ist party
are denied. IInd party submits that except transfer of Ashok
Sande, S/o Ram Bhau , contentions in Para-2 of statement
of Claim are incorrect that Ashok Sande was on his transfer
from Ghorawari Colliery was released on 16-6-1982 by the
Manager. He did not join Nandan Colliery. He remained
unauthorisely absent without permission. The unauthorised
absence is covered as misconduct under clause 26.30 of
standing order. That Ashok Sande has not challenged said
order of termination filing appeal provided under Clause 30
of the standing orders. The 1st party is not entitled to
employment on compassionate ground as Ashok Sande
was terminated from service in 1983. That Ashok Sande
has died during continuity of service. That Ashok Sande
was not interested in continuing service as he did not
challenged the order of his termination dated 8-3-83. That
Ashok was declared dead in 2007 after lapse of 25 years.
1st party is not entitled to appointment on compassionate
ground. All other material contentions of 1st party are
denied.
5. 1st party filed rejoinder covering contentions in
Statement of Claim and prays that he is entitled for
appointment on compassionate ground to the dependent
of Ashok Kumar Sande.
6. Considering pleadings on record, the points
which arise for my consideration and determination are as
under. My findings are recorded against each of them for
the reasons as below:-
(i)
Whether the action of the
In Affirmative
management of M/s WCL in not
providing employment to the
dependant of Late Shri Ashok
Sande S/o Shri Ram Bhau Sande,
the ex-workman is legal and
justified?
(ii) If not, what relief the
Claim of 1st party
workman is entitled to?"
workman is
rejected.
REASONS
7. 1st party claiming to be brother of Ashok Sande
is claiming employment on compassionate ground
contending that whereabouts Shri Ashok Sande were not
known after 23-6-82. He was declared dead by Civil Court.
He is dependent of Ashok and as such entitled to
appointment on compassionate ground as per rules and
regulations of IInd party. All above contentions are denied
by IInd party. It is contended that services of Ashok Sande
was terminated for unauthorized absence as per order dated
8-3-83. Ashok Sande is declared dead after long lapse of 25
years. Ist party was not dependent on him.
8. 1st party filed affidavit of evidence covering most
of his contentions in Statement of Claim. That Ashok Kumar
Sande was working in Ghorawari Colliery in 1980. In June
1982 he was transferred to Nandan Colliery. He had joined
duty at Nandan on 22- 6-82. On 23-6-82, Shri Ashok Kumar
Sande left home for joining duty but did not returned back.
His whereabouts were not known. Report was submitted
to police. That Civil court has declared Ashok Sande dead.
He claims to be dependent. He is entitled to terminal benefits
on death of Shri Ashok Sande. The claim related to terminal
benefits is not been referred. Said pleadings and evidence
on the said points is beyond the terms of reference.
Workman has produced documents Exhibit W-1 to W-7. In
his cross-examination, 1st party says that Ashok was his
elder brother. That they are two brothers and two married
sisters. Their mother is alive. On 23-6-82, Ashok Sande had
gone for his work. At that time, he was of 14-15 years of
age. That they were residing in quarter of Nandan Mine for
one year. The quarter is at Hatta but there is no coal mine at
Hatta. The arguments produced by workman. Exhibit W-1
is copy of application submitted by his mother for
employment of 1st party on compassionate ground dated
10-5-95. The application was submitted after almost 13 years.
Exhibit W-2 is replication of Exhibit W-1. Exhibit W-3 is
certificate issued by Gram Panchayat Sarpanch that Ashok
Sande was missing from 1982. Exhibit W-4 is letter dated
4-9-94 sent by Suptd. Of Nandan Mines to mother of 1st
¹Hkkx II—[k.M 3(ii)º
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435
party informing that the services of Ashok Sande were
terminated from 8-3-93. Exhibit W-5 is copy of notice issued
to police station, Junnardeo. W-6 is copy of judgment in
Civil Suit 104/06 by Civil Court, Chhindwara. Shri Ashok
Sande was declared dead as the whereabouts were not
known. Exhibit W-7 is application submitted by 1st party
to the Manager to IInd party dated 19-5-07 requesting
appointment on compassionate ground. Exhibit W-8 is also
similar application submitted by 1st party.
9. Similar set of documents produced by 1st party
are exhibited twice. Management filed affidavit of evidence
of Miling Ganveer stating that services of Ashok Sande
were terminated from 9-3-83 for unauthorized absence. That
no appeal was filed under Clause 30. That 1st party is not
entitled to employment on compassionate ground. In his
cross-examination, management's witness says that he does
not know the details for appointment of Ashok Sande. That
he was working in Nandan Mine from 2005. In his further
cross-examination, he admits that from 23-6-82, Ashok
Sande was missing, letter was given by the office. That
services of Ashok Sande were terminated as per Standing
orders. He claims ignorance whether Departmental Enquiry
was held. He claims ignorance about notice issued to Shri
Ashok Sande. He admits that Ashok was declared dead by
Court vide order dated 25-4-07. That Manoj sande and
widow of Ashok submitted application for appointment on
compassionate ground and dues. Said application was
forwarded to the office. He claims ignorance whether salary
for the period 1-6-87 to 22-6-82 was paid to the workman.
LR of Ashok Sande has submitted application for payment
of dues. Ashok was terminated from service on 9-3-83.
10. IInd party produced documents. Exhibit M-1 is
transfer order dated 15-6-82, name of Ashok is appearing in
the order at SI. No.17. Exhibit M-2 is letter requesting
guidance in the matter from department. Exhibit M-3 is letter
received from Personal department that employment on
compassionate ground cannot be provided to the LRs of
the terminated employees. Exhibit M-4 is copy of standing
orders. Clause 26.30 deals with misconduct of absence from
duty without sanctioned leave etc. Clause 24 provides for
termination of permanent workman having less than 1 year
service. Exhibit M-5 is letter given by Manager, Nandan
Colliery. That after his transfer, Ashok Sande has not joined
duties at Nandan Mines. Exhibit M-6 is also letter given by
Manager, Nandan Mines to Police Station informing that
Ashok Sande has not joined duty after his transfer from
Ghorawari colliery on 15-6-82.
11. The evidence of management's witnesses and
documents produced on record clearly shows that Ashok
Kumar Sande was terminated form service on 9-3-83. 1st
party has not challenged legality of termination order. It is
clear from the documents and evidence on record that when
Ashok Sande was declared dead in the year 2007, he was
not in service. His services were terminated long back on
9-3-83. 1st party has not produced any rules on record
regarding securing employment on compassionate ground
to the LRs of he employees terminated from service. The
evidence further shows that application for compassionate
appointment was submitted in 1985 and Shri Ashok Kumar
was missing from 1983, report was not immediately
submitted to the police.
12. Learned counsel for IInd party relies on ratio held
in
"Case of I.G.Karmik and others versus Prahalad Mani
Tripathi reported in 2007 SCC 162. Their Lordship of
the apex Court dealing with compassionate
appointment and eligibility held compassionate
appointment cannot be granted to a post for which
the candidate is ineligible even though higher post
was applied for on compassionate ground, when a
lower post offered considering qualification and
eligibility as per rules was accepted by the candidate,
he cannot later again claim appointment to the higher
post."
Ratio held in the case has no bearing to controversy
in present case.
Next reliance is placed in ratio held in
"Case of General Manager State Bank of India and
others versus Anju Jain reported in 2009-I-LLJ-
319(SC). Their Lordship dealing with compassionate
appointment held Disciplinary proceedings initiated
and employee punished. It is relevant consideration
for not extending benefit of such appointment to
dependent employee dying in harness."
In present case, the services of Ashok Sande were
terminated on 9-3- 83. The Order of termination is challenged
by the workman. The rules providing employment on
compassionate ground to the LRs of deceased employee
are not produced by 1st party. In its absence, the claim of
1st party not substantiated. Therefore I record my finding
in Point No. 1 in Affirmative.
13. In the result, award is passed as under:—
(1) Action of the management of IInd party in not
providing employment to the dependent of Shri
Ashok Sande is proper.
(2) 1st party is not entitled to relief prayed by him.
R.B. PATLE, Presiding Officer
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436
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
159@2012 dks izdkf'kr djrh gS] tks dsanzh; ljdkj dks 26&12&2013
dks izkIr gqvk FkkA
[Qkñ lañ ,y&42012@37@2012&vkbZvkj¼Mhñ;wñ½]
ihñ dsñ os.kqxksiky] vuqHkkx vfèdkjh
New Delhi, the 30th December, 2013
S.O. 206.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D No.159/2012)
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.
[F. No. L-42012/37/2012-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.159/2012
Smt. Lachcho W/o Late Sh. Suraj Bhan
Through 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
Smt. Lachho Devi was engaged as safai karamchari
by Municipal Corporation of Delhi (in short the Corporation)
on muster roll. Subsequently, as per its policy, the
Corporation regularized her services on the post of safai
karamchari, vide its order No. 584/AC/AO/HQ/DAV dated
08.06.2007 with effect from 01.04.2006. She belaboured under
a belief that her services ought to have been regularized
with effect from 12.09.2001. She approached the Nagar
Nigam Karamchari Sangh, (in short the union) for redressal
of her grievances. The Union raised a dispute before the
Conciliation Officer. Since the claim was contested by the
Corporation, hence conciliation proceedings ended into a
failure. On consideration of failure report, so submitted by
the Conciliation Officer, the appropriate Government
referred the dispute to this Tribunal for adjudication, vide
order No. L-42012/37/2012-IR(DU) New Delhi dated
09.11.2012 with following terms
"Whether action of the management of Municipal
Corporation of Delhi (MCD) in denying regularization
of services of Smt. Lachho, W/o late Suraj Bhan in
proper pay scale with all consequential benefits from
the date she was appointed on compassionate
grounds as safai karamchari, i.e. 12.09.2001 is justified
or not? If not, what relief the workman 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.Lachho opted
not to file her claim statement with the Tribunal.
3. Notice was sent to Ms. Lachho by registered post
on 03.12.2012, calling upon her to file claim statement before
the Tribunal on or before 02.01.2013. This notice was sent
to her through the union, 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 herby
registered post on 02.01.2013 calling upon her to file claim
statement before the Tribunal on 29.01.2013. Notice was
again transmitted to the claimant by registered post on
30.01.2013 asking her to file her claim statement on or before
20.02.2013. 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 22.03.2013.
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. Since onus of the question referred for adjudication
was there on the Corporation, it was called upon to file its
response to the reference order. Corporation projects that
the claim is not maintainable since no notice of demand
was served on it prior to raising the dispute. It has further
been projected that the dispute is not maintainable since it
has not been espoused by a union or considerable number
of workmen. The Corporation projects that Smt. Lachho
Devi has been regularized in service with effect from
01.04.2006, as per its policy. She has accepted the offer of
regularization and joined her services with the Corporation.
Dispute raised is not liable to be entertained, pleads the
Corporation.
6. Arguments were heard at the bar. None came
forward on behalf of the claimant to advance arguments.
¹Hkkx II—[k.M 3(ii)º
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437
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. 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. These 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 an employer or group of
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 (I) 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. [1970 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 (II) 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 (I) LLJ 484], 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
decision 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 (I) 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,
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 the 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
438
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
management. Reference can be made to the precedent in
Ram Krishna Mills Coimbatore Ltd. [1984 (II) 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 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:"
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 [1958 (I) 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:
"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
¹Hkkx II—[k.M 3(ii)º
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439
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.
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
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".
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THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
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 an industrial dispute.
The reference is liable to be answered against the claimant
on that score.
24. For claim of regularization in service, it was
incumbent upon the claimant to establish that she was
appointed by the Corporation with effect from 12.09.2001
against a substantive post. As projected by the
Corporation, she was engaged as a daily wager and her
services were regularized as per policy applicable to her.
She has been regularized as safai karamchari, vide Order
No. 2518/AC/DA/HQ dated 07.05.2007 with effect from
01.04.2006. Thus, out of facts projected, it is evident that
the claimant has been regularised in service by the
Corporation. She could not establish that she was entitled
to be regularized in service by the Corporation on 12.09.2001.
Her claim is not maintainable on factual proposition too.
25. The foregoing reasons make me to conclude that
Smt. Lachho is not entitled to regularization in the service
of the Corporation. Action of the Corporation in denying
regularization in its service to Smt. Lachho is found to be
justified. No relief can be granted in favour of Smt. Lachho.
An award is, accordingly, passed. It be sent to the
appropriate Government for publication.
DR. R.K. YADAV, Presiding Officer
Date 29-11-2013.
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New Delhi, the 30th December, 2013
S.O. 207.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No.167/2012)
of the Central Government Industrial Tribunal/Labour Court
1, Delhi now as shown in the Annexure in the Industrial
Dispute between the employers in relation to the
management of The Commissioner, Municipal Corporation
of Delhi, Delhi and their workman, which was received by
the Central Government on 26/12/13.
[F. No. L-42012/66/2010-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.167/2012
Shri Ishwar Singh
S/o Shri Jai Lal,
Through 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
A chowkidar employed by Municipal Corporation of
Delhi (in short the Corporation) claimed payment of
¹Hkkx II—[k.M 3(ii)º
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441
overtime allowance, since he was made to work beyond
normal duty hours. His claim was not conceded to by the
Corporation. He approached the Nagar Nigam Karamchari
Sangh (Delhi) (in short the union) for redressal of his
grievances. The union served notice on the Corporation
seeking overtime allowance for duties performed in excess
of normal working hours, wages for weekly holidays,
gazetted holidays and casual leaves, which notice was not
responded to. A dispute was raised before the Conciliation
Officer. Since the Corporation 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-42012/66/2010-IR(DU) dated 16/21.11.2012, with
following terms:
"Whether the action of the management of Municipal
Corporation of Delhi (MCD) in denying encashment
of wages of weekly holiday, gazetted holidays and
casual leave which are not availed by the workman,
Shri Ishwar Singh, S/o Shri Jai Lal, ex-Chowkidar as
the same are spent on duty during the period of
service rendered by the workman with the MCD is
justified or not? If not, what relief the workman 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, the Chowkidar,
namely, Shri lshwar Singh opted not to file his claim
statement with the. Tribunal.
3. Notice was sent to Shri lshwar Singh by registered
post on 03.12.2012, calling upon him to file claim statement
before the Tribunal on or before 02.01.2013. This notice
was sent to him through the union, 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 his claim statement, fresh notice was sent to him by
registered post on 02.01.2013 calling upon him to file claim
statement before the Tribunal on 29.01.2013. Notice was
transmitted to the claimant by registered post on 31.01.2013
asking him to file his claim statement on or before 20.02.2013.
Lastly, notice dated 22.02.2013 was sent by registered post
commanding the claimant to file his claim statement before
the Tribunal on or before 22.03.2013. 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 his behalf.
5. Since onus of the question referred for adjudication
was there on the Corporation, it was called upon to file its
response to the reference order. Corporation filed its
response, pleading therein that the dispute was not
properly espoused by the union, hence liable to be rejected.
It further asserted that the dispute has been raised at a
belated stage, hence it became stale. The Appropriate
Government cannot refer such a dispute for adjudication,
as it has become stale. The dispute is liable to be rejected
on this count also, claims the Corporation.
6. The Corporation projects that claimant was getting
overtime allowance @ Rs. 625.00 upto a maximum of 50
hours in a month in accordance with circular dated
15.03.1997. For work performed on Sundays and holidays,
the chowkidars gets compensatory leave in lieu thereof,
hence not entitled to overtime allowance. Chowkidars are
entitled to 15 days casual leave, 3 national holidays and 6
other holidays of their choice in every calendar year. Their
normal duty hours are 10 hours per day and previously
chowkidars were entitled to 24 hours rest (one day) in
fortnight. Now, a chowkidar is getting overtime allowance
for 100 hours per month in accordance with circular dated
09.05.2011. Details of overtime allowance granted to the
claimant from June'88 to March 2013 are annexed as
Annexure C with the response. In view of these facts,
claimant is not entitled to any relief, claims the corporation.
7. Arguments were heard at the bar. None came
forward on behalf of the claimant to advance arguments.
Shri Umesh Gupta, authorized representative, assisted by
Ms. Jaishri, School Inspector, 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:
8. At the outset, it has been argued that the dispute
has not acquired status of an industrial dispute since it has
not been validly espoused by the union. For an answer,
definition of the term industrial dispute is to be construed.
For sake of convenience, definition of the term "industrial
dispute", as defined by section 2(k) of the Industrial
Disputes Act, 1947 (in short the Act).
"(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".
9. 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
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[PART II—SEC. 3(ii)]
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".
10. 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 that the claimant is workman
within the meaning of clause(s) of section 2 of the Act.
11. 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 employer, 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:
"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."
12. 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.
13. 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 can
not be per-se be an industrial dispute but may become if it
is taken up by a trade union or a number of workmen. In
¹Hkkx II—[k.M 3(ii)º
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443
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 Compny (1970
(II) LLJ 256), the Apex Court referred the precedent in Drona
Kuchi 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 ernployment, terms of employment or
conditions of labour, the parties, dispute for a direct or
substantial interest".
14. 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).
15. It is not necessary that the sponsoring union is a
registered trade union or a recognized trade union. Once it
is shown that a body of substantial number of workmen
either acting through a union or otherwise had sponsored
the workman's cause, it is sufficient to convert it into an
industrial dispute. In Pardeep Lamp Works (1970 (1) LLJ
507) complaints relating to dispute of ten workmen were
filed before the Conciliation Officer by the individual
workmen themselves. But their case was subsequently
taken up by a new union formed by a large number of co
workmen, if not a majority of them. Since this union was
not registered or recognized, the workmen elected five
representatives to prosecute the cases of ten dismissed
workmen. Thus cases of the dismissed workmen were
espoused by the new union, yet unregistered and
unrecognized. The Apex Court held that the fact that these
disputes were not taken up by a registered or recognized
union does not mean that they were not "industrial dispute".
16. 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).
17. 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 an industrial dispute.
The reference is liable to be answered against the claimant
on that score.
18. Next count of attack made by the Corporation
that the dispute was raised by the claimant after 13 years,
which frustrates the relief in his favour. Section 10 (1) of
the Act does not prescribe any period of limitation 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
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THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
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.
19. Claimant raised the dispute in respect of overtime
allowance paid to him with effect from 01.01.1997. Thus, it
is emerging over the record that the claimant had raised the
dispute after a long gap of 13 years. No explanation is
offered for this inordinate delay. It appears that there was
no industrial dispute in existence or could be even said to
have been apprehended in the year 2012, when the
appropriate Government applied its mind to the facts of the
present controversy.
20. 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 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. These 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 an employer or group of
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.
21. 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.(1970 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."
22. 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) LLJ 484], 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
¹Hkkx II—[k.M 3(ii)º
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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.
23. 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
decision 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.
24. 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,
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 the 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].
25. 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.
26. 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. 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.
27. Turning to facts presented by the Corporation, it
emerges that the Corporation takes 10 hours duty from
Chowkidars. Keeping in view the nature of duties
performed, the Corporation was paying intermittent
allowance to Chowkidars for performing more than 10 hours
duty. Allowance was paid @ Rs.130.00 per month for
performance of duty upto 12 hours, Rs. 180.00 per month
for duties performed for more than 12 hours but upto 16
hours and Rs. 190.00 per month for performing duties more
than 16 hours a day. Workers union agitated the issue and
demanded overtime allowance in lieu of intermittent
allowance. On the basis of the resolution, the Corporation,
vide its decision dated 15.03.1997 decided to pay overtime
allowance to the maximum limit of 50 hours. The said
allowance was paid @ Rs. 625.00 per month. Workers union
further demanded enhancement of maxima limit of overtime
allowance and in consideration of the said demand, the
Corporation started paying overtime allowance with a cap
of 100 hours a month. Now, the Corporation is paying
overtime allowance to Chowkidars at Rs.1250.00 in
pursuance of Office Order dated 09.05.2011.
28. Annexure C, when scanned, highlights that from
January 98 till March 2011, overtime allowance was paid to
the claimant @ Rs. 625.00 per month. From April 2011 till
March 2013, overtime allowance has been paid to the
claimant @ 1250.00 per month. Therefore, it is emerging
over the record that overtime allowance is being paid to
the claimant in accordance with the circulars, issued by the
Corporation from time to time.
29. In view of the above reasons, it is evident that
the action of the Corporation in paying overtime allowance
to the claimant @ Rs. 625.00 per month till March 2011 and
thereafter Rs. 1250.00 till date is in accordance with the
circulars issued from time to time. Claimant is not entitled
to overtime allowance more than the amount referred above.
Resultantly, action of the Corporation is found to be
justified. No relief is available to the claimant. An award is,
accordingly, passed. It be sent to the appropriate
Government for publication.
Dr. R.K. YADAV, Presiding Officer
Date: 20.12.2013
446
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
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New Delhi, 30th December, 2013
S.O. 208.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No.192/2012)
of the Central Government Industrial Tribunal/Labour Court
1, Delhi now as shown in the Annexure in the Industrial
Dispute between the employers in relation to the
management of The Commissioner, Municipal Corporation
of Delhi, Delhi and their workman, which was received by
the Central Government on 26/12/2013.
[F. No. L-42012/142/2012-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. 192/2012
Sh.Bijender S/o Sh. Jai Kishan
C/o Nagar Nigam Karamchari Sangh,
Delhi Pradesh, P-2/624,
Sultanpuri, Delhi.
.....Workman
Versus
The Commissioner,
Municipal Corporation of Delhi,
Town Hall, Chandni Chowk,
Delhi-110002.
....Management
AWARD
Claimant was engaged as safai karamchari on daily
wage basis by Municipal Corporation of Delhi (in short the
Corporation) in December 1994. Thereafter, he was engaged
at intervals as and when regular safai karamcharis happened
to be on leave or absent. However, he never rendered
continuous service of 240 days in any calendar year. In the
year 2005, the claimant was involved in a case of dowry
death and arrested by the police. He remained in judicial
custody for considerable long period. He was prosecuted
for the said offence. However, he was discharged by the
court on 05.05.2007. After his discharge from the case, he
again approached the Corporation for his re-engagement.
He was re-engaged as substitute safai karamchari with effect
from 01.10.2007. With the passage of time, he was taken as
a regular employee. On regularization of his services, he
raised a demand for counting his service, rendered as
substitute safai karamchari since 01.12.1994, which demand
was not concede to. He raised a dispute before the
Conciliation Officer in that regard. Since his calm was
contested, conciliation proceedings ended into 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-42012/142/
2012/IR(DU), New Delhi dated 07.12.2012, with following
terms:
"Whether action of the management of Municipal
Corporation of Delhi (MCD) in denying seniority to
Shri Bijender, S/o Shri Jai Kishan, safai karamchari
with all consequential benefits on the basis of
seniority of 1994 (as the workman was appointed on
01.12.1994) is justified or not? If not, to what relief
the workman 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, Shri Bijender opted
not to file his claim statement with the Tribunal.
3. Notice was sent to Shri Bijender by registered post
on 28.12.2012, calling upon him to file claim statement before
the Tribunal on or before 17.01.2013. This notice was sent
to him through the union, 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 his claim statement, fresh notice was sent to him by
registered post on 22.01.2013 calling upon his 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 him to file his 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 his 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 period, referred above. Therefore,
every presumption lies in favour of the fact that the above
notices were served upon the claimant. Despite service of
¹Hkkx II—[k.M 3(ii)º
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447
these notices, claimant opted to abstain away from the
proceedings. No claim statement was filed on his behalf.
5. Since onus of the question referred for adjudication
was there on the Corporation, it was called upon to file its
response to the reference order. In its response to the
reference order, the Corporation projects that the claim is
not maintainable, since it has not been espoused by a union
or considerable number of workmen in its establishment.
Corporation projects that the claimant was initially engaged
as substitute safai karamchari on daily wage basis on
01.12.1994. He was taken on duty as and when some regular
safai karamchari remained on leave or absent. He never
worked for 240 days in any calendar year. In the year 2005,
an FIR was registered against him. He was arrested by the
police and remained in judicial custody from 29.08.2005 to
01.12.2005. After his discharge from the case in the year
2007, he approached the Corporation for his re-engagement.
He worked only for 7 days in August 2005. He had not
reported for duty thereafter till his discharge from the case.
He approached the Corporation on 16.05.2007 with a request
to re-engage him. He was engaged as fresh substitute safai
karamchari vide order No.631/SS/WZ/2007 dated 01.10.2007.
Since he remained absent for a period of more than two
years, without any intimation, he cannot claim seniority for
the services rendered by him since 1994 till the year 2007.
Substitute karamchari is first converted as daily wager safai
karamchari and thereafter considered for regularization as
per policy of the Corporation. Since he was not a daily
wager safai karamchari in the year 1994 till 2007, he cannot
claim seniority in that regard. He is not entitled to any relief
and reference 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. The Corporation 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 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. (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".
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 "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.
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
448
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
as a class have a direct or substantial interest. The
observations made by the 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."
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 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".
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"
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
¹Hkkx II—[k.M 3(ii)º
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449
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
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".
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,
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]:
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 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 an industrial dispute.
The reference is liable to be answered against the claimant
on that score.
17. As projected by the Corporation, claimant was
engaged as safai karamchari on daily wage basis on
01.12.1994. His services were availed as and when regular
safai karamchari happened to be on leave or absent. He
never completed 240 days continuous service in any
calendar year. He was arrested by the police, when a case
of dowry death was registered against the claimant. He
remained in judicial custody from 29.05.2005 to 01.12.2005.
After his release on bail, he opted not to approach the
Corporation for his re-engagement. He waited till outcome
of the case and on his discharge by the court of Additional
Sessions Judge, Rohini, on 05.05.2007, he approached the
Corporation for his re- engagement on 06.05.2007. These
facts are brought over the record through an application
moved by the claimant for his re-engagement as substitute
safai karamchari. This it is evident that till 06.05.2007,
claimant had not rendered continuous service of one year
with the Corporation in any of the calendar years.
18. He was engaged as substitute safai karamchari
by the Corporation. He was subsequently taken on roll as
safai karamchari on muster roll. His services were
regularized, as per policy of the Corporation thereafter.
Thus, it is evident that the claimant was engaged by the
Corporation as substitute safai karamchari and he cannot
claim seniority for that period. Action of the Corporation in
denying seniority to Shri Bijender for services rendered by
him as substitute safai karamchari is in consonance with
policy of the Corporation. No illegality or unjustifiability is
noted in that action. Claimant is not entitled to any relief on
factual proposition too.
19. From the foregoing reasons, it is crystal clear that
Shri Bijender is not entitled to claim seniority with effect
from 01.12.1994 when he was engaged as safai karamchari
by the Corporation. Action of the Corporation in denying
seniority to him in respect of services rendered by him as
substitute safai karamchari is found to be legal and justified.
No relief can be granted in favour of the claimant. An award
is accordingly passed. It be sent to the appropriate
Government for publication.
Date: 29.11.2013
Dr. R.K.YADAV, Presiding Officer
450
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[PART II—SEC. 3(ii)]
vkns'k
ubZ fnYyh] 30 fnlEcj] 2013
dkñvkñ 209.—tcfd dsUnzh; ljdkj dk ;g er gS fd
Hkkjrh; LVsV cSad ds izcaèu ds lacaè esa fu;ksDrkvksa vkSj bl vkns'k
ds lkFk layXu vuqlwph ds lacaè esa muds deZdkjksa ds chp ,d
vkS|ksfxd fookn gSA
vkSj tcfd dsUnzh; ljdkj dk ;g er gS fd mi;qZDr fookn esa
jk"Vªh; egRo dk iz'u varoZfyr gS vkSj bldk jk"Vªh; vkS|ksfxd
vfèdj.k }kjk U;k;fu.kZ;u fd;k tkuk pkfg,A
vkSj tcfd dsUnzh; ljdkj dk ;g er gS fd mDr fookn dk
vkS|ksfxd vfèdj.k }kjk U;k;fu.kZ;u fd;k tkuk pkfg,A
vkSj tcfd dsUnzh; ljdkj us vkS|ksfxd fookn vfèfu;e]
1947 ¼1947 dk 14½ dh èkjk 7[k }kjk iznRr 'kfDr;ksa dk iz;ksx
djrs gq, eqacbZ esa eq[;ky; lfgr Je ea=ky; ds vkns'k la[;k
,y&12011@15@94&vkbZvkj ¼ch&I½ fnukad 21-01-2011 }kjk jk"Vªh;
vkS|ksfxd vfèdj.k xfBr fd;k rFkk U;k;ewfrZ Jh xkSjh 'kadj ljkZQ
dks blds ihBklhu vfèdkjh ds :i esa fu;qDr fd;k vkSj vkS|ksfxd
fookn vfèfu;e] 1947 ¼1947 dk 14½ dh èkjk 7[k }kjk iznRr
dk iz;ksx djrs gq, mDr vkS|ksfxd fookn dks U;k;fu.kZ;u gsrq mDr
jk"Vªh; vkS|ksfxd vfèdj.k dks fufnZ"V dj fn;kA
vkSj tcfd U;k;ewfrZ Jh xkSjh 'kadj ljkZQ lsok fuo`Rr gks x,
gSaA
vr%] vc] U;k;ewfrZ Jh lR; iwr egjks=k ds blds ihBklhu
vfèdkjh ls ;qDr eqacbZ esa eq[;ky; lfgr jk"Vªh; vkS|ksfxd vfèdj.k
xfBr fd;k tkrk gS vkSj mDr vfèfu;e dh èkjk 10 dh mièkjk
¼1d½ }kjk iznRr 'kfDr;ksa dk iz;ksx djrs gq, mi;qZDr fookn dks
U;k;fu.kZ;u gsrq mi;qZDr jk"Vªh; vkS|ksfxd vfèdj.k dks bl funs'k
ds lkFk fufnZ"V dj fn;k fd U;k;ewfrZ Jh lR; iwr egjks=k bl ekeys
esa ml pj.k ls vkxs dk;Zokgh djsaxs ftl pj.k ij bls U;k;ewfrZ
Jh xkSjh 'kadj ljkZQ }kjk NksM+k x;k Fkk vkSj bls rnuqlkj fuiVk,axsA
[Qk- la- ,y&12011@15@94&vkbZvkj¼ch&I½]
lqefr ldykuh] vuqHkkx vfèdkjh
ORDER
New Delhi, the 30th December, 2013
S.O. 209.—Whereas the Central Govt. is of the
opinion that an industrial dispute exists between the
employers in relation to the management of State Bank of
India and their workmen in respect to the schedule hereto
annexed;
And whereas the Central Government is of the
opinion that the above dispute involved a question of
national importance and should be adjudicated by a
National Industrial Tribunal;
And whereas the Central Government is of the
opinion that the said dispute should be adjudicated by the
National Tribunal;
And whereas the Central Government in exercise of
the powers conferred by Section 7 B of the I.D. Act, 1947
(14 of 1947) constituted a National Industrial Tribunal vide
Ministry of Labour Order No. L- 12011/15/94- IR(B-I) dated
21.01.2011 with headquarters at Mumbai and appointed
Justice Shri Gauri Shankar Sarraf as its Presiding Officer
and in exercise, of the powers conferred by Sub-section
(1A) of Section 10 of the said Act, referred the said Industrial
Dispute to the said National Industrial Tribunal for
adjudication.
And whereas Justice Shri Gauri Shankar Sarraf has
retired.
Now therefore, a National Industrial Tribunal is
constituted with Headquarters at Mumbai with Justice
Shri Satya Poot Mehrotra as its Presiding Officer and the
above said dispute is referred to the above said National
Industrial Tribunal for adjudication with a direction that
Justice Shri Satya Poot Mehrotra shall proceed in the matter
from the stage at which it was left by Justice Shri Gauri
Shankar Sarraf and dispose of the same accordingly.
[F. No. L- 12011/15/94-IR(B-I)]
SUMATI SAKLANI, Section Officer
vkns'k
ubZ fnYyh] 30 fnlEcj] 2013
dkñvkñ 210.—tcfd dsUnzh; ljdkj dk ;g er gS fd jsy
ea=ky;] jsyos cksMZ ds izcaèu ds lacaè esa fu;ksDrkvksa vkSj bl vkns'k
ds lkFk layXu vuqlwph ds lacaè esa muds deZdkjksa ds chp ,d
vkS|ksfxd fookn gSA
vkSj tcfd dsUnzh; ljdkj dk ;g er gS fd mi;qZDr fookn esa
jk"Vªh; egRo dk iz'u varoZfyr gS vkSj bldk jk"Vªh; vkS|ksfxd
vfèdj.k }kjk U;k;fu.kZ;u fd;k tkuk pkfg,A
vkSj tcfd dsUnzh; ljdkj dk ;g er gS fd mDr fookn dk
vkS|ksfxd vfèdj.k }kjk U;k;fu.kZ;u fd;k tkuk pkfg,A
vkSj tcfd dsUnzh; ljdkj us vkS|ksfxd fookn vfèfu;e]
1947 ¼1947 dk 14½ dh èkjk 7[k }kjk iznRr 'kfDr;ksa dk iz;ksx
djrs gq, eqacbZ esa eq[;ky; lfgr Je ea=ky; ds vkns'k la[;k
,y&41011@128@2010&vkbZvkj ¼ch&I½ fnukad 27-01-2012 }kjk
jk"Vªh; vkS|ksfxd vfèdj.k xfBr fd;k rFkk U;k;ewfrZ Jh xkSjh 'kadj
ljkZQ dks blds ihBklhu vfèdkjh ds :i esa fu;qDr fd;k vkSj
vkS|ksfxd fookn vfèfu;e] 1947 ¼1947 dk 14½ dh èkjk 7[k
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
451
}kjk iznRr dk iz;ksx djrs gq, mDr vkS|ksfxd fookn dks U;k;fu.kZ;u
gsrq mDr jk"Vªh; vkS|ksfxd vfèdj.k dks fufnZ"V dj fn;kA
vkSj tcfd U;k;ewfrZ Jh xkSjh 'kadj ljkZQ lsok fuo`Rr gks x,
gSaA
vr%] vc] U;k;ewfrZ Jh lR; iwr egjks=k ds blds ihBklhu
vfèdkjh ls ;qDr eqacbZ esa eq[;ky; lfgr jk"Vªh; vkS|ksfxd vfèdj.k
xfBr fd;k tkrk gS vkSj mDr vfèfu;e dh èkjk 10 dh mièkjk
¼1d½ }kjk iznRr 'kfDr;ksa dk iz;ksx djrs gq, mi;qZDr fookn dks
U;k;fu.kZ;u gsrq mi;qZDr jk"Vªh; vkS|ksfxd vfèdj.k dks bl funs'k
ds lkFk fufnZ"V dj fn;k fd U;k;ewfrZ Jh lR; iwr egjks=k bl ekeys
esa ml pj.k ls vkxs dk;Zokgh djsaxs ftl pj.k ij bls U;k;ewfrZ
Jh xkSjh 'kadj ljkZQ }kjk NksM+k x;k Fkk vkSj bls rnuqlkj fuiVk,axsA
[Qk- la- ,y&41011@128@2010&vkbZvkj¼ch&I½]
lqefr ldykuh] vuqHkkx vfèdkjh
ORDER
New Delhi, the 30th December, 2013
S.O. 210.—Whereas the Central Govt. is of the
opinion that an industrial dispute exists between the
employers in relation to the management of Ministry of
Railways, Railway Board and their workmen in respect to
the schedule hereto annexed;
And whereas the Central Government is of the
opinion that the above dispute involved a question of
national importance and should be adjudicated by a
National Industrial Tribunal;
And whereas the Central Government is of the
opinion that the said dispute should be adjudicated by the
National Tribunal;
And whereas the Central Government in exercise of
the powers conferred by Section 7 B of the I.D. Act, 1947
(14 of 1947) constituted a National Industrial Tribunal vide
Ministry of Labour Order No. L- 41011/128/2010- IR(B-I)
dated 27.01.2012 with headquarters at Mumbai and
appointed Justice Shri Gauri Shankar Sarraf as its Presiding
Officer and in exercise, of the powers conferred by Sub-
section (1A) of Section 10 of the said Act, referred the said
Industrial Dispute to the said National Industrial Tribunal
for adjudication.
And whereas Justice Shri Gauri Shankar Sarraf has
retired.
Now therefore, a National Industrial Tribunal is
constituted with Headquarters at Mumbai with Justice
Shri Satya Poot Mehrotra as its Presiding Officer and the
above said dispute is referred to the above said National
Industrial Tribunal for adjudication with a direction that
Justice Shri Satya Poot Mehrotra shall proceed in the matter
from the stage at which it was left by Justice Shri Gauri
Shankar Sarraf and dispose of the same accordingly.
[F. No. L- 41011/128/2010-IR(B-I)]
SUMATI SAKLANI, Section Officer
ubZ fnYyh] 31 fnlEcj] 2013
dkñvkñ 211.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj lSUVªy cSad vkWQ
bafM;k ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp
vuqcaè esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèdj.k@Je U;k;ky;] tcyiqj ds iapkV ¼101@93½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 31-12-2013 dks izkIr gqvk FkkA
[Qk- la- ,y&12012@594@89&Mh-II,&vkbZvkj ¼ch&II½]
jfo dqekj] vuqHkkx vfèdkjh
New Delhi, the 31st December, 2013
S.O. 211.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. 101/93) of
the Cent.Govt.Tribunal-cum-Labour Court, Jabalpur as
shown in the Annexure, in the industrial dispute between
the management of Central Bank of India and their workmen,
received by the Central Government on 31/12/2013.
[F. No. L-12012/594/89-D-IIA-IR(B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT NDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, JABALPUR
NO. CGIT/LC/R/101/93
PRESIDING OFFICER: SHRI R.B.PATLE
Shri Pokhanlal Ray,
S/o Shri Hemraj Ray,
R/o Pindarai, PO Adhegaon,
Tehsil Lakhnadon,
Distt. Seoni (MP)
...Workman
Versus
Regional Manager,
Central Bank of India,
Chhindwara (MP)
...Management
AWARD
(Passed on this 28th day of November 2013)
1. As per letter dated 13-5-93 by the Government of
India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
452
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
Section -10 of I.D.Act, 1947 as per Notification No.L-
12012/594/89-D-IIA. The dispute under reference relates
to:
"Whether the claim of Shri Pokhanlal Ray that he
had worked with the Central Bank of India as peon
continuously from the year 1982 till August 1988 and
that termination of his services by the management
of Central Bank of India was unjustified is correct? If
so, what relief Shri Pokhanlal Ray is entitled to?"
2. After receiving reference, notices were issued to
the parties. Union filed Statement of claim representing
workman Pokhanlal Roy at Page 5/1 to 5/5. The case of 1st
party Union is that Union is registered under Trade Union
Act 1926 having Registration No 3487 that the applicant
Pokhanlal is member of the Union. He was orally appointed
as peon from 4-6-81 by IInd party. Pokhanlal was posted at
Laknadon Branch Distt. Seoni. He was continuously
working to the satisfaction of his superiors. Artificial breaks
were given to him for 1-2 days. It is also pleaded that though
Pokhanlal was working, his salary was paid in name of
Girdhari Lal, Jeevan, his brothers. That he was continuously
working till 5-1-88 till termination of his services. That his
services were terminated without issuing notice,
retrenchment compensation was not paid, junior employees
were continued as such the services of Shri Pokhanlal are
terminated in violation of Section 25-F, G & H of I.D. Act, it
is also submitted that termination of his services amount
to illegal retrenchment. On such grounds, Union is praying
for reinstatement with back wages to Shri Pokhanlal.
3. IInd party filed Written Statement at Page 7/1 to
7/3. The objection is raised that reference is not tenable.
This Tribunal has no jurisdiction to adjudicate the reference.
Though the Union is registered, 1st party employee is not
its members. That Pokhanlal was not appointed against
vacant post as peon. Branch Manager has no power to
make such appointment. The rules and regulations of the
Banks provide appointment. Such procedure was not
followed for appointment of 1st party employee. IInd party
denies that workman was continuously working but his
salary was paid in name of his brothers Mansingh, Jeevan
lal and Girdhari. IInd party further submits that Pokhanlal
was engaged on casual basis as per exigencies.
Shri Pokhanlal was not appointed on vacant post. There
was no question of his termination. He had not completed
240 days continuous service. On such ground, IInd party
prays for rejection of the claim. IInd party further contents
that workman was not fulfilling qualifications for
appointment as peon. The procedure for selection was not
followed therefore 1st party workman is not entitled for
reinstatement.
4. 1st party filed rejoinder at Page 9/1 to 9/2 reiterating
its contentions that he had completed 240 days continuous
service during each of the year 1991 to 1998. His services
are terminated in violation of Section 25-F, G & H of I.D.Act.
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 claim of Shri
It is proved that
Pokhanlal Ray that he had
workman was
worked with the Central Bank
working in Central
of India as peon continuously
bank of India
from the year 1982 till
from 1982 to 1988
August 1988?
(ii) Whether termination of his
Termination of
services by the management
service of
of Central Bank of India
Pokhanlal is in
was unjustified
violation of
Section 25-F of
I.D. Act.
(iii) If not, what relief the
As per final order.
workman is entitled to?"
REASONS
6. Issue No.1 & 2— Point No.1,2 are interconnected
and common evidence is adduced by both the parties.
Therefore it is convenient to decide point No.1, 2
collectively. Pokhianlal workman is challenging termination
of his services for violation of Section 25-F, G of I.D. Act.
He claims that he was continuously working in the bank
from 4-6-81 to 1-1-88. His services were terminated without
notice, retrenchment compensation was not paid to him.
Management of IInd party denied above contentions.
Workman filed affidavit of his evidence covering most of
his contentions in Statement of Claim filed on his behalf. In
his affidavit of evidence, he has stated that he was
continuously working in the Bank from 4-6-81 to 1-1-87.
His services were terminated illegal. He had completed 240
days continuous service. That peon book for above period
is clearly demonstrating his working in the Bank. In his
cross-examination, workman says appointment letter was
not given to him. Post was not advertised. His name was
not sponsored through Employment Exchange. His
services were not terminated by order in writing. He was
not given certificate about his working in the Bank or he
completed 240 days working in the bank. That he was
appointed for specific work. He was paid wages for days
he worked. Workman has produced Saving Bank Account
Passbook at Exhibit W-1 and W-1(a). Management's
witness P.S.Thakur stated in his affidavit that workman
was engaged for casual work for some days he was paid
wages. The wok was of casual nature for 2-4 hours . The
work was not full time or of permanent nature . That pass
book filed by workman is for Saving Account has no nexus
with the employment. In his cross-examination,
management's witness says when workman was employed
he was not posted at the branch. He has no personal
information about workman as to when he was employed.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
453
He was unable to tell for how many days the workman was
working. That casual labour or daily wage labour if he has
account in the Bank, wages are deposited in such Account.
That passbook produced by workman W-1, W-1(a) are old.
He claims ignorance about certificate issued by Branch
Manager in 1988. He also claims ignorance with respect to
Shri Pokhanlal, workman.
7. Workman has filed affidavits of witnesses Jeevanlal,
S/o Hemraj, Girdhari, S/o Leeladhar. Both witnesses have
stated that workman was working in the bank from 1982 to
1988. Their evidence in above point is not challenged in
their cross-examination. Witness of the management has
no personal knowledge about working of the Bank. On the
other hand, evidence of workman is corroborated by both
of his witnesses therefore I donot find reason to disbelieve
their evidence. The evidence on record is sufficient to hold
the workman was continuously working from 4-6-81 to
1-1-88. Services of 1st party workman are terminated
without notice, retrenchment compensation is not ipaid to
him. As such termination of his services is in violation of
Section 25-F of I.D.Act. for above reasons, I record my
finding on Point No.1 that workman was working in the
bank from 4-6-81 to 1-1- 88. & Point No.2 in Negative.
8. Point No.3- In view of my finding in Point No.1, 2
that the termination of services of workman is in violation
of Section 25-F of I.D. Act, question arises as to what relief
the workman is entitled? The evidence on record shows
workman was not appointed following procedure. However
he was continuously working. His services were terminated
from 1-1-88 i.e. about 25 years back. As appointment of
workman was not made after selection process,
reinstatement of workman would not be justified.
9. Learned counsel for 1st party submitted certain
citations.
"In case of Devendra Singh versus Municipal
Corporation , the question of workman under
Section 2(s) was involved for decision. In present
case there is no controversy about 1st party workman
is covered under Section 2(s) of I.D. Act."
1st party workman was working as peon and not in
managerial or supervisory category therefore the ratio
cannot be applied to case at hand.
"In case of Officer Incharge Defence Standardization
Cell versus Mukesh Kumar reported in 2013-LAB-
I.C. 3329. Their Lordship of Delhi High Court held
successive appointment given to him to defeat his
right to permanency. His appointment was not
contractual employment as stop gap arrangement till
filling of vacant post through regular process to
attract Section 2(oo)(bb) of Act. Work done by him
was of perennial nature. Termination of his services
is in violation of Section 25-F of I.D.Act."
In present case also, the services of the workman are
terminated in violation of Section 25-F of I.D. Act.
10. Considering the 1st party workman was working
in the Bank for about 5 years, compensation Rs. 1 Lakh
would be appropriate to meet the ends of justice.
Accordingly I record my finding on Point No. 3.
11. In the result, award is passed as under:-
(1) The action of termination of services of workman by
llnd party is illegal for violation of Section 25-F of
I.D. Act.
(2) IInd party is directed to pay compensation Rs.1 Lakh
to the 1st party workman Shri Pokhanlal.
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] 31 fnlEcj] 2013
dkñvkñ 212.—vkS|ksfxd fookn vfèfu;e 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj flafMdsV cSad ds
izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqcaè esa
fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèdj.k@Je
U;k;ky; tcyiqj ds iapkV ¼48@2001½ izdkf'kr djrh gS tks dsUnzh;
ljdkj dks 31-12-2013 dks izkIr gqvk FkkA
[Qk- la- ,y&12012@162@2000&vkbZvkj ¼ch&II½]
jfo dqekj] vuqHkkx vfèdkjh
New Delhi, the 31st December, 2013
S.O. 212.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref. 48/2001 of
the Cent. Govt. Indus. Tribunal-cum-Labour Court,
Jabalpur as shown in the Annexure, in the industrial dispute
between the management of Syndicate Bank and their
workmen, received by the Central Government on 31/12/2013.
[F.No. L-12012/162/2000-IR(B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/48/2001
PRESIDING OFFICER: SHRI R.B. PATLE
Shri Rohit Rao Bhalekar,
S/o Late Devram Bhalekar,
New Colony,
Vill and PO Kodariya, Mhow,
Distt. Indore (MP)
...Workman
454
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
Versus
General Manager,
Syndicate bank,
Head Office, P.B. No. 1,
Manipal (Karnataka)
...Management
AWARD
(Passed on this 13th day of November 2013 )
1. As per letter dated 14/16-2-2001 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/
162/2000- IR(B-II). The dispute under reference relates to:
"Whether the action of the management of Syndicate
Bank of Mhow Branch in rejecting the application of
Smt. Dev Bai for compassionate appointment to the
son Shri Rohit Rao Bhalekar is justified or not? If
not, what relief Mrs. Dev Bai w/o deceased employee
Shri Dev Ram Bhalekar is entitled for?
2. After receiving reference, notices were issued to
the parties. Workman filed Statement of Claim at Page 8/1
to 8/6. The case of 1st Party workman is that Late Devram
Bhalekar left his widow and son as his dependent.
Shri Dev Ram Bhalekar was working in Mhow branch of
the Bank as Security Guard from 1975 till his death on 18- 6-
95. That the application for employment on compassionate
ground was submitted by his widow, 1st party No.1
requesting to provide employment to her younger son .
Application was submitted along with documents, caste
certificate, school certificate alongwith details. The
information requested by Branch Manager was also
submitted by them. That IInd paprty had issued letter dated
27-11-96 asking to furnish further details with respect to
the source of income. The amount received under Provident
Fund, Gratuity, other property details and income of the
family members. The information was submitted by 1st party
No.1 vide letter dated 10-1-98.
3. 1st party workman submits that after death of
Late Dev Ram Bhalekar, the financial condition has become
worst. Employment on compassionate ground is not
provided to her son. She is suffering hardship to survive.
As per letter dated 21-1-98, 1st party workman was informed
that the request for providing employment for
compassionate ground to her younger son could not be
considered favourably. Her request for supplying the copy
of relevant documents was also not accepted. 1st party
filed Writ Petition No. 1402/98 . the Writ petition was
disposed on 15-3-99 with observation that 1st party may
approach appropriate forum. 1st party submits that she is
suffering from illness. The amount received by her was
spent for her treatment. Her younger son is not in a position
to provide proper treatment to her. That they are facing
financial hardships. As per the scheme of the Bank, they
pray for employment on compassionate ground for younger
son 1st party No.2.
4. IInd party filed Written Statement at Page 11/1 to
11/10. Preliminary objection is raised that Late Dev Ram
Bhalekar died on 18-6-95. The dispute is raised in 2001 is
highly belated. It is not tenable. That claim of 1st party for
appointment on compassionate ground is not covered as
dispute under Section 2(k) of I.D.Act. the dispute is not
tenable. On facts, it is submitted that Late Dev Ram Bhalekar
was employed in Army. After his retirement from Army
services, he was appointed in the Bank in May 1975.
Dev Ram Bhalekar died on 18-6-95. Application for
appointment on compassionate ground was submitted by
his widow requesting to provide employment for her
younger son Rohit Rao Bhalekar . It is further submitted
that Writ Petition No. 1402/1998 was rejected on 15-3-98
observing to approach appropriate forum if available. That
scheme of the Bank for appointment on compassionate
ground provides for employment to widow, son, daughter,
brother, sister with consideration of family pension, gratuity
amount received, employee's /employer's contribution to
Provident Fund, proceeds of LIC policies and investments
of the employee, income of the family from other source,
employment of other family members, size of family and
liabilities etc. IInd party submits that widow received family
pension of Rs. 1172/- from Defence Deptt. Family owns
house worth Rs.80,000/- in 1997, there was no sudden crisis
in the family due to death of Dev Ram Bhalekar. Out of
7 children, four daughters are already married and separated,
two sons are employed and are not dependent on the
claimant and only one son is dependent on her. Family is
not in financial crisis. That LRs have receiving amount of
Rs.1,55,330.63. the amount may yield a reasonable interest
of Rs. 1553/- if invested in deposits. It is further contented
that 1st party No.1 Smt. Dev Bai informed by letter that
there was two deposits of Rs. 50,000 and Rs.20,000. In her
application she had written that there was fixed deposit of
Rs. 40,000/-. She receives monthly interest of Rs.300/- per
month were not consistent. Therefore the claim for
appointment on compassionate ground was rejected. It is
submitted that claim of the 1st party deserves to be rejected.
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 Syndicate Bank
of Mhow Branch in rejecting the
application of Smt. Dev Bai for
compassionate appointment to
the son Shri Rohit Rao Bhalekar
is justified ?
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
455
(ii) If not, what relief the
Relief prayed by
workman is entitled to?"
workman is
rejected.
REASONS
6. Claim of 1st party for appointment on
compassionate ground of her younger son Rohit Rao
Bhalkar is referred for adjudication. Claim is denied by IInd
party for the reasons given in detail in Written Statement.
1st party Devi Bai filed affidavit of her evidence stating in
detail all the facts stated in her Statement of Claim That her
younger son Rohit Bhalekar is qualified as a major for
employment on compassionate ground. She had submitted
application to the IInd party.
7. 1st party Dev Bai is claiming employment on
compassionate ground for her son Rohit. However she
has failed to adduce evidence. 1st party is proceeded
exparte on 10-1-2011. Management has filed affidavit of
evidence of witness Shri Aminesh Dhyani. The witness of
the management has stated in detail the facts pleaded in
the Written Statement that 1st party Dev Bai was receiving
pension Rs. 1172/- from Defence Deptt. Family owns house
worth Rs.80,000/- in 1997, there was no sudden crisis in the
family due to death of Dev Ram Bhalekar. The details of
scheme for employment on compassionate ground are
stated in Para-8, 9 of his affidavit. The scheme provides
employment on compassionate ground for son, daughter,
brother, sister etc. the scheme also provides to determine
financial condition of deceased employee, family pension,
gratuity amount, PF received from Bank, income of the
family from other sources, employment of other family
members, size of family and liabilities, request of dependent
for employment is to be considered provided that family is
without reasonable means of livelihood. The evidence of
workman remained unchallenged.
8. The documents produced Exhibit W-1 is copy of
scheme providing employment on compassionate ground
is consistent with the pleading of IInd party and evidence
of management's witness. Exhibit W-3 is death certificate,
W-4 is letter dated 7-9-96. The information was called from
Shri Rohit Bhalekar Exhibit W-5 is letter given to Devi Bai
calling the detailed information. The information is
submitted by workman as per document Exhibit W-6. The
declaration is Exhibit W-7. Exhibit W-12 is the copy of order
passed in Writ Petition by Hon'ble High Court.
9. Learned counsel for 1st party Shri P.Choubey relies
on ratio held in
"Case of Govind Prakash Verma versus Life
Insurance Corporation of India reported in
2005(10)SCC 289 . Their Lordship dealing with
compassionate appointment held it was only
irrelevant for the departmental authorities to take into
consideration the amount which was being paid as
family pension to the widow of the deceased and
other amounts paid on account of terminal benefits
under the rules- compassionate appointment cannot
be refused on the ground that any member of the
family received the amount admissible under the
rules."
I have carefully gone through the judgment. I donot
find there was specific scheme providing appointment on
compassionate ground as in present case, the scheme for
compassionate ground produced at Exhibit W-1
contemplates consideration of financial position of the
family, income from other sources. The evidence in present
case clearly shows that the deceased Dev Ram Bhalekar
have four daughters, all are married, his two sons are serving
in Military. They were posted in Jammu, Kashmir. The
pleadings of 1st party are silent whether the scheme
providing employment on compassionate ground suffers
from any kind of illegality. The 1st party workman has not
entered in witness box. The evidence of management
witness remained unchallenged.
10. Learned counsel for IInd party Shri Shroti relies
on ratio held in
"Case of Bank of Maharashtra versus Manoj Kumar
reported in 2010(3) MPLJ by full bench of High Court
at Jabalpur. Their Lordship held having regard to the
Exceptional nature of such appointment as it is
granted under a special scheme carved out dehors
the normal mode of recruitment, the same has to be
governed as per the policies or provisions governing
such appointment prevalent at a particular point of
time when consideration is to be made and not on
the basis of a policy which was in vogue and has
been given up by the employer due to changed
circumstances."
As per ratio held in above case, the appointment on
compassionate ground is to be made as per prevalent policy.
The pleading of 1st party are silent about the prevailing
policy are not considered by the IInd party.
Next reliance is placed in case of I.G.(Karmik) and
others versus Prahlad Mani Tripathi reported in
2007(6) Supreme Court Cases 162. Their Lordship
held compassionate appointment cannot be granted
to the post for which the candidate is ineligible."
The ratio of above cited case has no bearing to the
present case at hand. However the evidence on record
shows that 1st party was receiving pension from Defence
Department. Her financial condition was not poor. She was
not in crisis after death of her husband. I donot find reason
to disbelieve evidence of management's witness. 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 Syndicate Bank of
Mhow Branch in rejecting the application of
456
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
Smt. Dev Bai for compassionate appointment to the
son Shri Rohit Rao Bhalekar is proper.
(2) Relief prayed by workman is rejected.
R.B. PATLE, Presiding Officer
ubZ fnYyh] 31 fnlEcj] 2013
dkñvkñ 213.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj cSad vkWQ cM+ksnk
ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqcaè
esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèdj.k@Je
U;k;ky; tcyiqj ds iapkV ¼21@99½ dks izdkf'kr djrh gS tks
dsUnzh; ljdkj dks 31-12-2013 dks izkIr gqvk FkkA
[Qkñ la- ,y&12012@5@98&vkbZvkj ¼ch-II)]
jfo dqekj] vuqHkkx vfèdkjh
New Delhi, the 31st December, 2013
S.O. 213.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref. 21/99 of the
Cent. Govt. Indus. Tribunal-cum-Labour Court, Jabalpur
as shown in the Annexure, in the industrial dispute between
the management of Bank of Baroda and their workmen,
received by the Central Government on 31/12/2013.
[F.No. L-12012/5/98-IR(B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/21/99
PRESIDING OFFICER: SHRI R.B.PATLE
General Secretary,
Daily Wages Bank Employees Association,
9, Sanwer Road,
Ujjain
...Workman/Union
Versus
Managing Director,
Bank of Baroda,
Head Office,
Mandwi (Gujarat)
...Management
AWARD
(Passed on this 24th day of October 2013)
1. As per letter dated 4-12-1998 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/
5/98/IR(B-II). The dispute under reference relates to:
" Whether the action of the management of Bank of
Baroda in terminating the services of Shri Suryakanth
Bairagi and not regularizing him is justified? If not, to
what relief the said workman is entitled?"
2. After receiving reference, notices were issued to
the parties. Ist party workman submitted statement of claim
through Dainik Vetan Bank Employees Union. The case of
1st party workman is that the workman was engaged as
sweeper by IInd party from 1-2-91. He was working with
devotion till termination of his service from 13-1-97. That
he was working 6 days in a week, Sunday was holiday. His
wages were paid under voucher obtaining his signatures.
That his services were terminated without notice. He was
not paid three months pay before termination of his service.
He had completed 240 days continuous service during each
of the year. He is covered workman under Section 2(s) of
I.D.Act. He was not paid retrenchment compensation.
Principles of 1st come last go was not followed. Termination
of his services is in violation of Section 25-F , G, H of I.D.Act.
That his services were terminated in violation of Section 33
of I.D.Act. on such ground, he prays for his reinstatement
with consequential benefits.
3. IInd party filed Written Statement at Page 7/1 to
7/13. IInd party submits that the reference is illegal and
disputed questions were not considered by appropriate
Government while making reference. IInd party denied that
workman was continuously working. As per IInd party 1st
party workman was engaged as casual employee for
cleaning works for two hours morning. That discontinuation
of 1st party workman is covered under Section 2(oo)(bb)
of I.D. Act. There was sufficient sub staff in the Bank. 1st
party workman had worked for 139 days during the period
1991 to 1996. Workman is not covered under Section 25(b)
of I.D. Act as he had not completed 240 days continuous
service. Violation of Section 25-F, G, H & N of I.D. Act is
denied. IInd party submits that the Employment Exchange
guarantees the equality of opportunity for employment.
Reservation policy of Government is strictly implemented
for SC,ST, OBC, Handicapped, servicemen. The name of
1st party workman was not sponsored through
Employment Exchange. The procedure for recruitment was
not followed in this case. 1st party workman is trying to get
employment by short cut method. He was not selected
following the procedure. All other adverse contentions of
the workman are denied. 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 Bank of
Baroda in terminating the
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
457
services of Shri Suryakanth
Bairagi and not regularizing
him is legal?
(ii) If not, what relief the
Relief prayed by
workman is entitled to?”
workman is
rejected.
REASONS
5. Though workman has filed statement of claim with
respect to his grievance. That termination of his service is
in violation of Section 25 G , H of I.D.Act. he has completed
240 days "continuous service during each of the year. The
workman did not adduce evidence to substantiate his claim.
As per ordersheet dated 7-5-2012 it was submitted by
representative of workman that workman doesnot want to
be examined therefore his evidence was closed. As per
ordersheet dated 15-5-13, counsel for management
submitted that management doesnot want to adduce
evidence. Evidence of management was closed as such
both parties did not adduce evidence in support of their
contentions. Document Exhibit W-1 admitted by IInd party
is letter issued by General Manager for use of Hindi
language while sumitting the pleadings. Document Exhibit
W-2 is infact an application submitted in this reference
proceeding by the management directions be given to the
applicant for depositing cost of translation of the Written
Statement. It is not a document. As such there is no
evidence on either side. The workman has failed to adduce
evidence about his working in the Bank or his termination
is in violation of Section 25-F of I.D.Act. therefore for above
reasons, I record my finding in Point No.1 in Affirmative.
6. In the result, award is passed as under:—
(1) The action of the management of Bank of Baroda in
terminating the services of Shri Suryakanth Bairagi
and not regularizing him is proper.
(2) Relief prayed by workman is rejected.
R.B. PATLE, Presiding Officer
ubZ fnYyh] 31 fnlacj] 2013
dkñvkñ 214.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj iatkc us'kuy
cSad ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqcaè esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèdj.k@Je U;k;ky; tcyiqj ds iapkV ¼6@06½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 31&12&2013 dks izkIr gqvk FkkA
[la- ,y&12011@118@2005&vkbZvkj ¼ch&II½]
jfo dqekj] vuqHkkx vfèdkjh
New Delhi, the 31 December, 2013
S.O. 214.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref. 6/06 of the
Cent.Govt.Indus.Tribunal-cum-Labour Court, Jabalpur as
shown in the Annexure, in the industrial dispute between
the management of Punajb National Bank and their
workmen, received by the Central Government on
31/12/2013.
[No. L-12011/118/2005 - IR(B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/6/06
PRESIDING OFFICER: SHRI R.B.PATLE
General Secretary,
Punjab National Bank Employees Association,
74, Iqbal Nagar,
Ashoka Garden, Raisen Road,
Bhopal (MP)
...Workman/Union
Versus
Regional Manager,
Punjab National Bank,
Regional Office, Jawahar Bhawan,
Roshanpura Naka,
Bhopal (MP)
...Management
AWARD
Passed on this 23rd day of October 2013
1. As per letter dated 5-1-06 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-12011/
118/2005-IR(B-II). The dispute under reference relates to:
"Whether the action of the Regional Manager,
Punjab National Bank, Regional Office, Jawahar
Bhawan, Roshanpura Naka, Bhopal (MP) in
dismissing the services of Shri Mohan Bhondele,
Ex-employee of Punjab National Bank Branch Tharet
Dt. Datia w.e.f. 4-7-2000 is fair, legal and justified? If
not, to what relief the concerned workman is entitled to?"
2. After receiving reference, notices were issued to
the parties. Workman failed to appear and file Statement of
Claim, as such proceeded exparte against workman on
18-7-2013 and case was fixed for filing Written Statement
by management. However perusal of record shows that
despite of repeated notices issued to the management of
IInd party, it failed to put appearance in the matter. As
management has not appeared inspite of notice, matter
deserves to be proceeded exparte. As such both the parties
did not participate in the reference proceeding, they have
failed to file Statement of Claim and Written Statement in
458
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
the matter, as such it is clear that parties are not interested
in prosecuting the reference. Therefore no dispute Award
is passed.
3. In the result, award is passed as under:—
" Reference is disposed off as both parties did not
participate in reference proceeding despite service
of notice."
R.B. PATLE, Presiding Officer
ubZ fnYyh] 31 fnlacj] 2013
dkñvkñ 215.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ;qdks cSad ds
izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaè esa
fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèdj.k@Je
U;k;ky;] tcyiqj ds iapkV ¼140@2001½ dks izdkf'kr djrh gS] tks
dsUnzh; ljdkj dks 31&12&2013 dks izkIr gqvk FkkA
[la- ,y&12011@80@2001&vkbZvkj ¼ch&II½]
jfo dqekj] vuqHkkx vfèdkjh
New Delhi, the 31st December, 2013
S.O. 215.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref. 140/2001 of
the Cent.Govt.Indus.Tribunal-cum-Labour Court, Jabalpur
as shown in the Annexure, in the industrial dispute between
the management of UCO Bank and their workmen, received
by the Central Government on 31/12/2013.
[No. L-12011/80/2001 - IR(B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/140/2001
PRESIDING OFFICER: SHRI R.B.PATLE
General Secretary,
Daily Wages Bank Employees Association,
Hardev Niwas, 9, Sanwer road,
Ujjain
...Workman/Union
Versus
Regional Manager,
UCO Bank, Regional Office,
11, Old Palasia,
A.B.Road, Indore
...Management
AWARD
Passed on this 27th day of November, 2013
1. As per letter dated 30-8-2001 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-12011/
80/2001-IR(B-II). The dispute under reference relates to:
"Whether the action of the management of Regional
Manager, UCO Bank Indore in not regularizing the
services of Shri Harinarayan Solanki is justified and
legal? If not, what relief the workman is entitled
for ?"
2. As per terms of reference, claim for regularization
of service of 1st party workman Harinarayan Solanki is
referred for adjudication. The statement of claim is filed by
workman at Page 3/1 to 3/3 . Workman claims that he was
working as peon in the Bank from 1989 till his services were
terminated on 5-5-97. That he was continuously working.
His services are terminated in violation of Section 25-F of
I.D.Act.
3. IInd party filed Written Statement at Page 7/1 to
7/5. Material contentions of workman are denied. It is denied
that workman was continuously working as peon.
Completion of 240 days service is denied. Violation of
Section 25-F of I.D.Act is also denied.
4. Workman filed rejoinder at Page 8/1 to 8/4
reiterating its contentions in Statement of Claim.
5. The affidavit of evidence is filed by workman.
However he was not made available for cross-examination.
Workman submitted application dated 13-7-2011 to
withdraw his case. The application is supported by affidavit
in view that workman is not desiring to prosecute his claim.
He has stated that there is amicable settlement between
workman and the management therefore he is not desiring
to prosecute his claim. The dispute between parties seized
to exist. Therefore the award is passed as under:-
" The dispute between parties is settled amicably
therefore the reference stands disposed off"
R.B. PATLE, Presiding Officer
ubZ fnYyh] 31 fnlacj] 2013
dkñvkñ 216.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj cSad vkWQ egkjk"Vª
ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqcaè
esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèdj.k@Je
U;k;ky;] tcyiqj ds iapkV ¼17@05½ dks izdkf'kr djrh gS] tks
dsUnzh; ljdkj dks 31&12&2013 dks izkIr gqvk FkkA
[Qk-la- ,y&12012@187@2004&vkbZvkj ¼ch&II½]
jfo dqekj] vuqHkkx vfèdkjh
New Delhi, the 31st December, 2013
S.O. 216.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref.17/05 of the
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
459
Cent. Govt. Indus. Tribunal-cum-Labour Court, Jabalpur
as shown in the Annexure, in the industrial dispute between
the management of Bank of Maharashtra and their workmen,
received by the Central Government on 31/ 12/2013.
[No. L-12012/187/2004 - IR(B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/17/2005
PRESIDING OFFICER: SHRI R.B.PATLE
General Secretary,
Daily Wages Bank Employees Association,
Hardev Niwas, 9, Sanwer Road,
Ujjain.
...Workman
Versus
Regional Manager,
Bank of Maharashtra,
Regional Office, 688,
M.G.Road, Indore
...Management
AWARD
Passed on this 26th day of November, 2013
1. As per letter dated 2-2-2005 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/
187/2004-IR(B -II). The dispute under reference relates to:
"Whether the claim of the workman that he was
engaged as a sub-staff continuously during the
period from 7-1-96 to 10-10-2001 by the management
of Bank of Maharashtra is correct? Whether action
of the management of Regional Manager, Bank of
Maharashtra, Indore in not regularizing the services
of Shri Ashok Kumar Soni 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 submitted statement of claim
at Page 3/1 to 3/4. Case of Ist party workman is that he was
working with IInd party as peon on daily wages from
January 1996. He was paid wages Rs.50/- per day. He was
honestly working with IInd party. He was paid wages for
six days in a week. The wages for holidays and Sundays
were deducted. He was paid wages in name of different
persons preparing bogus bills. However he was actually
working in the Bank. That he had completed 240 days
continuous service during every calendar year. His service
were terminated without notice from 9-11-2002. He was not
paid retrenchment compensation. That he was working
under different Branch Managers. That he is covered as
workman under Section 25- B of I.D.Act his services are
terminated without notice, retrenchment compensation is
not paid. Section 25-F of I.D.Act is violated. That principles
of last come first go was not followed. Section 25-F, G,N of
I.D.Act is violated by find party. That other employees are
engaged after his termination. IInd party has violated
Section 25-F of I.D. On these ground, workman prays for
his reinstatement with consequential benefits.
3. IInd party filed Written Statement at Page 5/5 to
5/5 . The claim of Ist party is totally denied. IInd party
submits that the workman was engaged on daily wages
from January 1996 on temporary basis during leave vacancy.
He was engaged for cleaning work. Workman has not
completed 240 days during any of the calendar year. It is
reiterated that the workman had not completed 240 days
continuous service. There is no point of violating section
25-F.G, H, N of I.D.Act by IInd party. Workman is not entitled
to protection of Section 25-F of I.D.Act as he had not
completed 240 days work during any of the calendar year.
On such grounds, IInd party prays for rejection of claim.
4. Workman filed rejoinder at Page 6/1 to 6/2
reiterating his contentions in Statement of Claim that his
services are terminated in violation of Section 25-F, G of
I.D.Act. He has completed 240 days continuous service
during each year.
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 claim of the
In Negative
workman that he was engaged
as a sub-staff continuously
during the period from 7-1-96
to 10-10-2001 by the
management of Bank of
Maharashtra is justified?
(ii) Whether action of the
In Negative
management of Regional
Manager, Bank of Maharashtra,
Indore in not regularizing the
services of Shri Ashok Kumar
Soni is justified?
(iii) If so, to what relief the
Relief prayed by
workman is entitled to?
workman rejected.
REASONS
6. As per terms of reference, workman claims that he
was continuously working in the Bank. He was not
regularized by the Bank. However in his statement of claim,
workman submits that his services were terminated without
notice on 9-11-2002. He has challenged termination of his
services alleging violation of Section 25-F, G, N of I.D.Act.
The pleadings in Statement of Claim of workman are
different from the terms of reference. Workman has filed
460
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
affidavit of his evidence. Workman has stated that he was
working as permanent peon from 7-1-96. He was paid wages
Rs.50/- per day. He was working under Branch Manager
Rajoud. He had completed 240 days during each of the
calendar year. In his cross- examination, workman admits
that he was working temporarily. During relevant period,
part time permanent sweeper was not working. The Branch
was having sweeper on 1/3rd pay scale. In the year 2000,
he enrolled his name in Employment Exchange. When he
started working in the Bank, he was of 18 to 19 years of
age. The evidence of workman does not show any selection
procedure was followed by the Bank while he was engaged.
7. Workman has produced documents Exhibit W-1.
Bonus was paid to the workman during 96 to 2002-03.
However the working days are not shown in said document.
The document Exhibit W-2 also doesnot show the working
days of workman. In Exhibit W-3, the Branch Manager has
informed that Shri Ashok Soni, s/o Basarti Lal Soni working
as temporary PTS. In Exhibit W-4 IInd party has submitted
reply before ALC. IInd party has stated in said reply that
the workman was working from 1996 to 10-10-2001 as per
exigencies. The working days are shown 219 in 2000, 172 in
2001, 193 in 2002. The document Exhibit W-5,6,7 shows
working days. Workman has not completed 240 days.
Those documents prepared are not maintained in the
attendance register. Exhibit W-9 is reply submitted before
ALC finds reference that workman did not work from
17-1-96. The details of the working on daily wages was
enclosed. The evidence adduced by workman is not
sufficient to establish that he was regularly working in the
Bank as peon, rather the evidence shows that he was
working temporarily. He was not appointed following
selection process. No rule is brought to my notice by Shri
R.Nagwanshi how the workman is entitled for regularization
in service. For above reasons I record my finding in Point
No.1,2 in Negative.
8. In the result, award is passed as under:—
(1) Workman was working on daily wages as per
exigencies, as such workman is not entitled for
regularization.
(2) Relief prayed by workman is rejected.
R.B. PATLE, Presiding Officer
ubZ fnYyh] 31 fnlacj] 2013
dkñvkñ 217.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj lSaVªy cSad vkWQ
bafM;k ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp]
vuqcaè esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèdj.k@Je U;k;ky;]tcyiqj ds iapkV ¼156@2003½ dks izdkf'kr
djrh gS] tks dsUnzh; ljdkj dks 31&12&2013 dks izkIr gqvk FkkA
[la- ,y&12012@117@2003&vkbZvkj ¼ch&II½]
jfo dqekj] vuqHkkx vfèdkjh
New Delhi, the 31st December, 2013
S.O. 217.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref. 156/2003 of
the Cent.Govt. Indus. Tribunal-cum-Labour Court, Jabalpur
as shown in the Annexure, in the industrial dispute between
the management of Central Bank of India and their workmen,
received by the Central Government on 31/12/2013.
[No. L-12012/117/2003 - IR(B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/156/2003
PRESIDING OFFICER: SHRI R.B.PATLE
Shri Krishna Kumar Tiwari,
S/o Shri Harishankar Tiwari,
Village & Post Saisei Saaji,
Tehsil Banda,
Sagar (MP)
...Workman
Versus
Branch Manager,
Central Bank of India,
Branch Behrol,Tehsil Banda,
Sagar (MP)
...Management
A WARD
Passed on this 28th day of October, 2013
1. As per letter dated 9-9-2013 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-12012/117/2003-IR(B -II). The dispute under reference
relates to:
"Whether the action of the management of Central
Bank of India in terminating the services of Shri
Krishna Kumar Tiwari, S/o Harishankar Tiwari from
September 2002 is legal and fair? If not, to what relief
he is entitled?"
2. After receiving reference, notices were issued to
the parties. 1st party workman filed statement of claim at
Page 2/1 to 2/3. The case of 1st party workman is that he
was appointed on daily wages on 22-12-98. He worked
with devotion till his services were discontinued in
September 2002. That he was performing various types of
work. That he is doing maintenance of supplementary and
General ledger of GLD deposit Register. He was also
entrusted work to carry cash Regional Branch where he
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
461
had to sign the memo. That his services were discontinued
without paying retrenchment compensation, no notice was
issued to him. The termination of his services is in violation
of Section 25-F of I.D.Act. He had completed 240 days
continuous service. On such grounds, workman prayed
for his reinstatement with consequential benefits.
3. IInd party filed Written Statement at Page 10/1 to
10/3. The case of IInd party is of total denial. IInd party
denies that workman was appointed on daily wages from
22-12-98. It is denied that he was working with sincerity
with devotion. It is denied that the workman was performing
duties of maintenance of supply and General Ledger Gold
Deposit register. It is denied that he was entrusted work of
carrying cash to Regional Branch. There was no question
of paying wages Rs. 30-40 per day. That as per guidelines
of central office 8.33 % bonus is paid. All other contentions
of workman that his services are terminated in violation of
Section 25-F of I.D. Act is denied. That regularization in
service is not a rule. The reference be answered in favour
of the management.
4. Workman filed application for disposing the
reference passing no dispute award. Affidavits are filed in
support of the application. Workman has stated that he
was working for 89 days in 1998-99, 103 days in 1999-2000,
90 days in 2000-01, 68 days in 2001-02. Thereafter he was
discontinued from service. That the proceeding before this
Tribunal is pending. That the post of sweeper is vacant in
regional office of IInd party. He has submitted application
for said post, therefore he doesnot intend to prosecute
this reference. In next affidavit, it is stated by workman that
he is selected for post of sweeper and therefore he doesnot
deserve to prosecute the claim under reference. The dispute
doesnot seems to exist in view of the facts stated above.
Therefore award is passed as under:—
"Workman not pursuing his claim, therefore the
dispute between parties stands disposed off."
R. B. PATLE, Presiding Officer
ubZ fnYyh] 31 fnlEcj] 2013
dkñvkñ 218.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj okbZl pkalyj
tum ds izcaèr= ds lac) fu;kstdksa vkSj muds deZdkjkas ds chp
vuqcaè esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèdj.k ,oa Je U;k;ky; lañ 1 ds iapkV lanHkZ la[;k 113@2013
dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 26@12@2013 dks izkIr
gqvk FkkA
[No. L-42025/03/2013-vkbZvkj (Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vfèdkjh
New Delhi, the 31st December, 2013
S.O. 218.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D No.113/2013)
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 Vice Chancellor, JNU and their workman,
which was received by the Central Government on
26/12/2013.
[No. L-42025/03/2013-IR(DU)]
P.K.VENUGOPAL, Section Officer
ANNEXURE
BEFORE DR. R. K. YADAV, PRESIDING OFFICER,
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL
NO. 1 KARKARDOOMA COURTS COMPLEX,
DELHI
I.D. No. 113/2013
Shri Manoj Kumar
S/o Shri Brij Bhushan
R/o 618/5/FA, Balram Gali,
Vishwas Nagar, Shadhara,
Delhi — 110 032.
...Workman
Versus
The Vice Chancellor,
Jawaharlal Nehru University
New Delhi-110067.
...Management
AWARD
School of Physical Sciences (in short the School),
Jawaharlal Nehru University (in short the University) was
established in 1986. Since then, there has been manifold
increase in the activities of the School. Intake of students
for M.Sc. and pre Ph.D/Ph.D. Programme has increased. In
the recent past, the School had introduced two new courses
in Chemistry and Mathematics. Despite manifold increase
in the activity of the School, there is shortage of staff,
particularly, store keepers, caretakers and lab. attendants.
Posts of non-teaching (technical staff) for the School are
being sanctioned by University Grants Commission (in
short the Commission). When posts are sanctioned, the
University is required to fill all these posts in a phased
manner, as per recruitment rules, under intimation to the
Commission. Thus, it results that the School had to avail
services of persons for the post of store keepers, caretakers
and lab. attendants through University's service provider,
viz. M/s Good Housekeeping Regd. (hereinafter referred
as the contractor).
2. Services of Shri Manoj Kumar were availed by the
School initially as waterman through the contractor.
Subsequently, his services were availed as lab. attendant
with effect from 15.09.2008 through the contractor. His
services were dispensed with on 04.01.2012. He raised a
notice of demand on the University seeking reinstatement
in service of the School with continuity and full back wages.
His demand was not conceded to by the University.
Constrained by these circumstances, he raised a dispute
462
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
before the Conciliation Officer. Since his claim was
contested by the University, conciliation proceedings
ended into a failure. Using provisions of sub-section (2) of
section 2A of the Industrial Disputes Act, 1947(in short the
Act), Shri Manoj Kumar files direct claim before this
Tribunal, without being referred for adjudication by the
appropriate Government under section 10(1)(d) of the Act.
3. In claim statement, Shri Manoj Kumar pleads that
he joined services of the school on 01.07.2008 as waterrnan.
Since his performance was found to be satisfactory, he
was appointed as lab. attendant by the School on
15.09.2008. His appointment was made against sanctioned
regular post, when Shri Narender Kumar was appointed as
lab assistant by the School. He rendered continuous
service till 04.01.2012. His services were dispensed with in
an illegal manner, since he availed two days leave on account
of his illness. Order of his dismissal was not preceded by
one months' notice or pay in lieu thereof. The said order is
violative of the provisions of section 25F of the Act.
4. Claimant presents that notice of demand was sent
on 02.1.1.2012 the University opted not to respond to it.
Constrained by these circumstances, he raised a dispute
before the Conciliation Officer on 07.01.2013. The University
filed its reply dated 20.02.2013, which was followed by
rejoinder, filed by him. On 09.04.2013, conciliation
proceedings ended into a failure on account of non-co-
operative attitude of the University. He claims reinstatement
in service of the School with continuity and full back wages.
5. Arguments were heard at the bar. Ms.Sulekha
Sharma, authorized representative, advanced arguments
on behalf of the claimant. 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:—
6. Though in his claim statement, Shri Manoj Kumar
pleads that he was engaged by the School as a waterman
on 01.07.2008 and appointed as lab attendant on 15.09.2008
when Shri Narender Kumar was selected as lab assistant,
yet he places reliance on reply dated 20.02.2013 sent by the
University, office note dated 17.09.2008 recorded by the
Administrative Officer, order dated 06.10.2008 and office
order No. 371 of 2009 issued on 31.12.2009. When reply
dated 20.02.2013 is scanned, it came to light that the
University projects that Shri Manoj Kumar was working
with the School on behalf of the contractor, who was service
provider to the University. It was claimed that Shri Manoj
Kumar was never employed by the University. He was not
on muster roll of the University, hence there was no
occasion to pay salary to him at any point of time. The
University projects that the services of the claimant were
dispensed with by the service provider. Office note dated
17.09.2008 reaffirms the above facts, wherein it has been
mentioned that services of the claimant were taken as
waterman with effect from 02.07.2008, to 14.07.2009 through
the contractor. A proposal was made that his services may
be availed as lab Attendant from 15.9.2008 through the
contractor. Order dated 06.10.2008 highlights that services
of the claimant were availed as lab attendant through the
contractor. Office order No. 371 of 2009 dated 31.12.2009
brought to the light of the day that one post of senior
technical assistant, one post of technical assistant and
one post of lab attendant were allocated by the Vice
Chancellor to the School, out of posts sanctioned by the
Commission, vide its letter dated 13.08.2009. The said letter
further clarifies that the above posts were to be filled in a
phased manner as per actual requirement of the University,
in consonance with the recruitment rules, under intimation
to the Conmmnission.
7. It is evident that the facts pleaded in the claim
statement are contradicted by the documents relied by the
claimant. It emerges over the record that services of the
claimant were availed by the School through the contractor.
At this juncture, Ms.Sharma argued that though services
of the claimant were availed through the contractor, yet he
was working under control and supervision of the School.
Gravamen of the case of the claimant is that he assails the
contract agreement, entered into between the University
and the contractor, in order to seek a declaration from this
Tribunal to the effect that there existed relationship of
employer and employee between the claimant and the
University. Subsequent to this declaration, claimant wants
adjudication that his services were dispensed with by the
School in violation of provisions of the Act. Thus, out of
his own case, it is crystal clear that the claimant admits
himself to be an employee of the contractor and not of the
University. Relationship of employer and employee never
existed between the claimant and the University. There is
complete vacuum of facts to the effect that the claimant
was an employee of the School/University. Though the
claimant tried to assert that he was working under
supervision of the School, he failed to establish
relationship of employer and employee between and the
School/university.
8. Whether the claimant, who was an employee of
the Contractor, can maintain a dispute against the
University? For an answer to this proposition, the Tribunal
has to take note of the law contained in section 10 of the
Contract Labour (Regulation & Abolition) /Act, 1970 (in
short the contract Act), which makes provision for
prohibition of employment of contract labour. For sake of
convenience provisions of section 10 of the Contract
Labour Act are reproduced thus:
"10. Prohibition of employment of contract labour:—
(1) Notwithstanding anything contained in this Act, the
appropriate Government may, after consultation with
the Central Board or, as the case may be, a State
Board, prohibit, by notification in the Official Gazette,
employment of contract labour in any process,
operation or other work in any establishment.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
463
(2) Before issuing any notification under sub-section
(1) in relater to an establishment, the appropriate
Government shall have regard to the conditions of
work and benefits provided for the contract labour
in that establishment and other relevant factors, such
as —
(a) whether the process, operation or other work is
incidental to, or necessary for the industry, trade,
business, manufacture or occupation that is
carried on in the establishment,
(b) whether it is of perennial nature, that is to say, it
is of sufficient duration having regard to the
nature of industry, trade, business, manufacture
or occupation carried on in that establishment;
(c) whether it is done ordinarily through regular
workmen in that establishment or an
establishment similar thereto;
(d) whether it is sufficient to employ considerable
number of whole- time workmen.
Explanation — If a question arises whether any
process or operation or other work is of perennial nature,
the decision of the appropriate Government thereon shall
be final."
9. As emerge out of the provisions of sub-section (1)
of section 10 of the Contract Labour Act, the appropriate
Government may, by notification in the official gazette,
prohibit employment of contract labour in any process,
operation or other work in any establishment When
employment of contract labour is prohibited, by issuance
of a notification in official gazette by the appropriate
Government, what would be the status of the contract
labour employed in the establishment? Such a question
arose before the Apex Court in Steel Authority of India Ltd.
[2001 (7) S.C.C.1]. The Apex Court ruled therein that there
cannot be automatic absorption of contract labour by
principal employer on issuance of notification by the
appropriate Government on abolition of contract labour
system, under sub section (1) of section 10 of the Contract
Labour Act. It would be expedient to reproduce the law laid
by the Apex Court, which is extracted thus:
".....they fall in three classes : (1) where contract labour
is engaged in or in connection with the work of an
establishment and employment of contract labour is
prohibited either because the industrial adjudicator/
court ordered abolition or contract labour or because
the appropriate Government issued notification
under section 10(1) of the CLRA Act, no automatic
absorption of contract labour working in the
establishment was ordered, (2) where contract was
found to be a sham and nominal, rather a camouflage,
in which case the contract labour working in the
establishment of the principal employer were held, in
fact and in reality, the employees of the principal
employer himself. Indeed such cases do not relate to
the abolition of contract labour but present instances
wherein the court pierce the veil and declared the
correct position as a fact at the stage after
employment of contract labour stood prohibited, (3)
where in discharge of a statutory obligation of
maintaining a canteen in an establishment the
principal employer availed the services of the
contractor, the courts have held that the contract
labour would indeed be employees of the principal
employer".
10. The Court ruled that neither section 10 of the
Contract Labour Act nor any other provision in that Act,
whether expressly or by necessary implication, provides
for automatic absorption of contract labour on issuance of
a notification by the appropriate Government under sub
section (1) of section 10, prohibiting employment of
contract labour, in any process, operation or other work in
any establishment. Consequently the principal employer
cannot be required to order for absorption of the contract
labour working in the establishment concerned. It was
further ruled therein that in Saraspur Mills case [1974 (3)
SCC 66], the workman engaged for working in the canteen
run by the Cooperative Society for the appellant were the
employees of the appellant mills. In Basti Sugar Mills (AIR
1964 S.C. 355) a canteen was run in the factory by the
Cooperative Society and as such the workers working in
the canteen were held to be employees of the establishment.
The Apex Court ruled that these cases fall in class (3)
mentioned above. Judgment in Hussainbhai (1978 Lab. I.C.
1264) was considered by the Apex Court in the said
precedent and it was ruled therein that the said precedent
falls in class (2), referred above. The Apex Court concluded
that on issuance of prohibitive notification under section
10 of the Contract Labour Act prohibiting employment of
contract labour or otherwise, in an industrial dispute
brought before it by any contract labour in regard to
conditions of service, the Industrial Adjudicator will have
to consider the question whether the contractor has been
interposed either on the ground of having undertaken to
produce any given result for the establishment or for supply
of contract labour for work of the establishment under a
genuine contract or is a mere ruse/camouflage to evade
compliance of various beneficial legislation so as to deprive
the workers of the benefit thereunder. If the contract is
found to be not genuine but a mere camouflage, the so
called contract labour will have to be treated as employees
of the principal employer who-shall be directed to regularize
the services of the contract labour in the establishment
concerned, subject to the conditions as may be specified
by it for that purpose.
11. As announced by the Apex Court, on issuance of
a prohibitive notification prohibiting employment of
contract labour or otherwise in any industrial dispute
464
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
brought before it by the contract labour in regard to
conditions of his service, the dustrial adjudicator will have
to consider the question whether the contractor has been
interposed either on the ground of having undertaken to
produce any given result in the establishment or for supply
of the contract labour for the work of the establishment
under a genuine contract or it is a mere ruse/camouflage to
evade compliance of beneficial legislation so as to deprive
the workers of the benefits therein. Thus it was ruled that a
contract labour can raise a uispute before the industrial
adjudicator in regard to his conditions of service and in so
case the contract is found to be not genuine but a mere
camouflage, the so called contract labour will have to be
treated as employees of the principal employer. Also see
Standard Vacuum Refining Co. of India Ltd. [1960 (II) LLJ.
233], which was referred with approval in Steel Authority
of India.
12. In Shivnandan Sharma [1955(1) LLJ 588], the
respondent Bank entrusted its Cash Department under a
contract to the Treasures who appointed cashiers,
including the appellant Head Cashier. The question before
the Apex Court was: was the appellant an employee of the
Bank? On construction of the agreement entered into the
Bank and the Treasure, the Court laid down:
"If a master employs a servant and authorizes him to
employ a number of persons to do a particular job
and to guarantee their fidelity and efficiency for a
cash consideration, the employees thus appointed
by the servant would be equally with the employer,
servant of the master."
In the above precedent the Apex Court fel the first
time laid down the crucial test of supervision and control
for determining the retationship of employer and employee.
13. In Hussainbhui (supra) the petioner who was
manufacturing ropes, entrusted the work to a contractor
who engaged his own workers. When, after some time, the
workers were not engaged, they raised onindustrial dispute
that they were denied employment by the petitioner. On
reference of that dispute, the labour court passed an award
against the petitioner. When matter reached the Apex Court,
on examination of various factors and applying the effective
control test, it was held that though there was no direct
relationship between the petitioner and the workers yet on
lifting the veil and looking at the conspectus of factors
governing employment, the naked truth though draped in
different perfect paper arrangement, was that the real
employer was petitioner, not the immediate contractor. The
Apex Court stated law in following words:
"Where a worker or group of workers labours to
poduce goods or services and these goods or
services are for the business of another, that other
is, in fact, the employer. He has economic control
over the workers' subsistence, skill, and continued
employment. If he, for any reason, chokes off, the
worker is, virtually, laid off. The presence of
intermediate contractor with whom alone the workers
have immediate or direct relationship ex-contractu is
of no consequence when, on lifting or looking at the
conspectus of factors governing employment, we
discern the naked truth, though draped in different
perfect paper arrangement, that the real employer is
the management, not the immediate contractor***.
If the livelihood of workmen substantially depends
on labour rendered to produce goods and services
for the benefit and satisfaction of an enterprise, the
absence of direct relationship or the presence of
dubious intermediaries or the make-beleive trappings
of detachment from the management cannot snap
the real-life bond. The story may vary but the
inference defies ingenuity. The liability cannot be
shaken off. Of course, if there is total dissociation
infact between the disowning management and the
aggrieved workmen, the employment is, in substance
and real-life terms, by another. The management
adventitious connections cannot ripen into real
employent."
As noted above, this precedent does not present an
illustration of abolition of contract labour but an instance
where the Court pierced the veil and declared the correct
position to the effect that the contract labours were
employees of the principal employer and not of the
contractor.
14. In Steel Authority of India (supra) it has been
ruled that the term "contract labour" is a species of workman.
A workman may be hired : (1) in an establishment by the
principal employer or by his agent with or without the
knowledge of the principal employer, or (2) in connection
with the work of an establishment by the principal employer
through a contractor or by a contactor with or without the
knowledge of principal employer. Where a workman is hired
in or in connection with the work of an establishment by
the principal employer through a contractor, he merely acts
as an agent so there will be master and servant relationship
between the principal employer and the workman. But when
a workman is hired in or in connection with the work of an
establishment by a contractor, either because he has
undertaken to produce a given result for the establishment
or because he supplies workmen for any work of the
establishment, a question might arise whether the
contractor is a mere camouflage as in Hussainbhai's case
(supra) and in Indian Petrochemicals Corporation case [1999
(6) S.C.C. 439] etc.; if the answer is in affirmative, the
workman will be in fact an employee of the principal
employer, but if the answer is in the negative, the workman
will be a contract labour.
15. In view of the legal proposition, referred above, it
is concluded that the claimant can maintain a dispute against
¹Hkkx II—[k.M 3(ii)º
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465
the University since he agitates that the contract agreement
between the University and the Contractor is sham and
nominal.
16. Whether any directions for deeming the contract
labour as having become the employee of the principal
employer can be issued, when the contractor or the
principal employer had violated the provisions of the
Contract Labour? To find an answer, provisions of that Act
are to be examined. The Contract Labour Act regulates
conditions of workers in contract labour system and
provides for its abolition by the appropriate Government
as provided by section 10 of that Act. In regard to regulatory
measures section 7 requires the principal employer to get
itself registered, while section 12 obliges every contractor
to obtain a licence, under the provisions of that Act. Section
9 places an embargo on the principal employer of an
establishment from employing contactor labour in the
establishment, when either it is not registered or its
registration has been revoked. Section 12 of the Contract
Labour Act imposes a liability on a contractor not to
undertake or execute any work through contract labour
except under and in accordance with a licence. Sections 23,
24 and 25 make contraventions of the provisions of that
Act or Rules made thereunder penal. In Dena Nath (1992
Lab. I.C. 75) the Apex Court considered the question,
whether non-compliance of the provisions of sections 7
and 12 by the principal employer and the contractor
respectively would make the contract labour employed by
the principal employer as the employee of the latter. It was
ruled that only consequence of noncompliance either by
the principal employer of section 7 or by the contractor in
complying the provisions of section 12 is that they are
liable for prosecution under the said Act. But the employees
employed through the contractor cannot be deemed to be
the the employees of the principal employer.
17. In the Steel Authority of India (supra) the Apex
Court laid emphasis "...the consequence of violation of
Section 7 and 12 of the CLRA Act is explicitly provided in
Section 23 and 25 of the CLRA Act, it is not for the High
Courts or this Court to read in some unspecified remedy in
Section 10 or substitute for penal consequences specified
in Sections 23 and 25 a different sequel, be if absorption of
contract labour in the establishment of principal employer
or a lesser or harsher punishment. Such an interpretation
of the provisions of the statute will be far beyond the
principle of ironing out the creases and the scope of
interpretative legislation and as such, clearly
impermissible". The above authoritative pronouncements
make It clear that on violations of the provisions of the
Contract Labour Act or Rules made thereunder, the contract
labour could not be deemed to have become the employee
of the principal employer.
18. Admittedly, employee of the contractor can
maintain a dispute against the principal employer, when he
assails the contract entered into between the principal
employer and the contractor is a perfect paper arrangement.
However, the proposition would be as to whether such a
dispute can be raised by a 'contract employee under sub-
section (2) of section 2A of the Act? For an answer to this
proposition, it is expedient to consider definition of the
phrase 'industrial dispute'. Section 2(k) of the Act defines
industrial dispute, which definition is extracted thus:
"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;
19. 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 (iv) it should relate to an "industry".
20. 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.
21. The object of 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. These 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 an employer or group of
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 workman as a class.
466
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
22. 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 employer, 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:
"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."
23. In Kyas Construction Company (Pvt.) Ltd. (1958
(2) LLJ 660) 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.
24. 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
be 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 Drona
Kuchi 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".
25. 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
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
467
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).
26. It is not necessary that the sponsoring union is a
registered trade union or a recognized trade union. Once it
is shown that a body of substantial number of workmen
either acting through a union or otherwise had sponsored
the workman's cause, it is sufficient to convert it into an
industrial dispute. In Pardeep Lamp Works (1970 (1) LLJ
507) complaints relating to dispute of ten workmen were
filed before the Conciliation Officer by the individual
workmen themselves. But their case was subsequently
taken up by a new union formed by a large number of co
workmen, if not a majority of them. Since this union was
not registered or recognized, the workmen elected five
representatives to prosecute the cases of ten dismissed
workmen. Thus cases of the dismissed workmen were
espoused by the new union, yet unregistered and
unrecognized. The Apex Court held that the fact that these
disputes were not taken up by a registered or recognized
union does not mean that they were not "industrial dispute".
27. 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).
28. A long line of decisions, handed down by the
Apex Court, had established that an individual dispute
could not per se be an industrial dispute, but could become
one if it was taken up by a trade union or a considerable
number of workmen of the establishment. This position of
law created hardship for individual workmen, who were
discharged, dismissed, retrenched or whose services were
otherwise terminated when they could not find support by
a union or any appreciable number of workman to espouse
their cause. Section 2A was engrafted in the Act by the
Amendment Act of 1965 and it has to be read as an
extension of the definition of industrial dispute contained
in clause (k) of section 2 of the Act. Thus by way of
extension of definition of industrial dispute, by insertion
of section 2A of the Act, the dispute of an individual
workman connected with
or arising out of his discharge,
dismissal, retrenchment or otherwise termination of his
service by his employer has been brought within the ambit
of the Act.
29. Classification between workmen unaided by
union or considerable number of workmen and workman
whose cause is espoused by a union or considerable
number of workmen has been made by the legislature, when
provisions of section 2A were brought on the statute book.
Thus, it is evident that by way of extension of definition of
industrial dispute relating to discharge, dismissal,
retrenchment or termination of service of the workmen, the
Legislature provided remedy to the workmen who is unaided
by a union or considerable number of workmen. Section
2A of the Act does not destroy the concept of individual
dispute and collective dispute and such concept still
remains as a major class and in ail other provisions of the
Act. Consequently, it is evident that excepting the dispute
relating to discharge, dismissal, retrenchment or otherwise
termination of services of a workman, a dispute is to be
espoused by the union or considerable number of workmen
to acquire a status of an industrial dispute. As pointed out
above, the claimants assail that the contract between the
contractor and the University is sham and nominal. The
dispute, which the claimants have attempted to raise under
sub-section (2) of section 2A of the Act, needs espousal to
acquire status of an industrial dispute. The dispute has
not been espoused either by an union or considerable
number of workmen. Thus, the dispute, when he claimants
468
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
question genuineness of the contract, has not acquired
status of an dustrial dispute.
30. As pointed out above, dispute raised by the
claimant is that his services have been terminated in an
illegal manner. This dispute can be raised by him under sub
section (2) of section 2A of the Act. However claim that the
contract entered into between the University and the
contractor was sham and bogus does not fall within the
ambit of section 2A of the Act. For such a dispute, espousal
by the union or considerable number of workmen in the
establishment of the University is required. Thereafter, the
appropriate Government is supposed to form an opinion
about existence of the dispute and to refer it for adjudication
under sub-section (1) of section 10 of the Act. Claimant
cannot raise such a dispute of his own, without it being
referred for adjudication by the appropriate Government.
Therefore, it does not lie in the mouth of the claimant to
assert that the contract entered into between the University
and the contractor is sham and bogus.
31. In view of the facts detailed above, it is evident
that the claimant is not entitled to any relief. His claim
statement is to be discarded. Consequently, claim
statement put forth by the claimant is brushed aside. No
relief can be granted to the claimant. An award is,
accordingly, passed. It be sent to the appropriate
Government for publication.
Dated 12.08.2013
Dr. R.K. YADAV, Presiding Officer.
ubZ fnYyh] 31 fnlEcj] 2013
dkñvkñ 219.—vkS|ksfxd fookn vfèfu;e 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj iatkc us'kuy
c®d ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp
vuqcaè esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèdj.k@Je U;k;ky; tcyiqj ds iapkV ¼141@95½ izdkf'kr djrh
gS tks dsUnzh; ljdkj dks 31-12-2013 dks izkIr gqvk FkkA
[lañ ,y&12012@71@95&vkbZ vkj ¼ch&II½]
jfo dqekj] vuqHkkx vfèdkjh
New Delhi, the 31st December, 2013
S.O. 219.—In pursuance of Section 17 of the
Industrial DisputesAct, 1947 (14 of 1947), the Central
Government hereby publishes the Award Ref.141/95 of the
Cent.Govt. Indus.Tribunal-cum-Labour Court, Jabalpur 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
31/12/2013.
[No. L-12012/71/95 - IR(B-II)]
RAVI KUMAR, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL CUM LABOUR COURT,
JABALPUR
NO. CGIT/LC/R141/95
PRESIDING OFFICER: SHRI R.B.PATLE
Smt. Guntha Bai,
Behind Laxmi Press,
Girija Kund Ward,
Seoni.
Workman
Versus
Regional Manager,
Punjab National Bank,
124, Napier Town,
Jabalpur
Management
AWARD
Passed on this 7th day of November 2013
1. As per letter dated 25-7-1995 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-12012/71/95-IR(B-2). The dispute under reference
relates to:
" Whether the action of the management of Punjab
National Bank, Jabalpur/Seoni in stopping Smt.
Guntha Bai, sweepers from duty w.e.f. 5-8-93 is legal
and justified? If not, what relief is the said workman
entitled to".
2. After receiving reference, notices were issued to
the parties. 1st party workman filed statement of claim at
Page 3/1 to 3/2. Case of 1st party workman is that she was
employed by the Bank. Her services are governed by Sastry
Award, Desai Award and Bipartite Settlement Sastry Award
provides appointment as temporary employees on
probation , permanent member specifying the kind of
appointment and the pay and allowances to be paid. That
workman was employed as part time sweeper in Seoni
Branch of the Punjab National Bank on 7-8-92. She
continued to work without break till 4-8-93. She had
completed more than 240 days service. She is covered as
workman under Section 25(B) of I.D.Act. Her services were
abruptly discontinued without reasons. Procedure
prescribed for termination of employment in Bipartite
Settlement of Sastry Award were not followed. On such
ground, workman prays for reinstatement with full back
wages.
3. Management filed Written Statement at Page 5/1
to 5/5 opposing claim of the workman. It is submitted that
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
469
the claim of workman is misconceived. She is claiming
reinstatement with back wages on ground of illegal
termination of her service. That she was never appointed
by management of Punjab National Bank as regular
employee. Her appointment was made as per the norms
without following procedure of recruitment. That she was
engaged by Bank for casual work of sweeping in the
premises. 1st party workman is to come to Bank for cleaning,
sweeping premises for about an hour. The amounts were
paid through vouchers. She was not a regular employee of
the Bank. She is not entitled for reinstatement. The
violation of Sastry Award, Bipartite Settlement are denied.
IInd party further denied that workman completed 240 days
continuous service within meaning of Section 25(B) of
I.D.Act. Workman was part time employee. That
discontinuation of her services is covered by Section
2(oo)(bb) of I.D.Act. It doesnot amount to retrenchment.
Workman has not completed 240 days service preceding
her discontinuation. Therefore she is not workman under
I.D.Act. any settlement is not violated as alleged. On such
ground, IInd party prays for rejection of claim of workman.
4. Workman filed rejoinder at Page 6/1 to 6/2
reiterating her contentions in Statement of Claim. That she
was continuously working from 7-8-92 to 4-8-93. That her
termination is in violation of Sastry Award, provisions of
I.D.Act.
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 Punjab
National Bank, Jabalpur/Seoni
in stopping Smt. Guntha Bai,
sweepers from duty w.e.f.
5-8-93 is legal ?
(ii) If not, what relief the
Relief prayed by
workman is entitled to?"
workman is
rejected.
REASONS
6. Workman is challenging termination of her services
in violation of provisions of I.D.Act, Sastry Award, Desai
Award. That she completed 240 days service prescribed
under I.D.Act. Her services were discontinued without
reasons. Management denied above contentions of
workman. It is submitted that workman was engaged as
casual employee. She has completed 240 days. Violation of
Sastry Award, Desai Award is denied. Workman did not
participate in the reference proceeding. After filing rejoinder,
she is proceeded exparte on 7-3-08. Management also did
not adduce any evidence though the case was repeatedly
adjourned. Thus it is clear that both parties did not
participate in the reference proceedings. The contentions
of workman that she completed 240 days continuous
service during 12 months preceding her termination is not
supported by any evidence. Therefore violation of Section
25-F of I.D.Act cannot be established. For above reasons,
I record my finding in on Point No.1 in Affirmative.
7. In the result, award is passed as under:-
(1) Action of the management of Punjab National Bank,
Jabalpur/Seoni in stopping Smt. Guntha Bai,
sweepers from duty w.e.f. 5-8-93 is proper.
(2) Relief prayed by workman is rejected.
R.B. PATLE, Presiding Officer
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470
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
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[lañ ,l&38014@18@2013&,lñ,lñ&I]
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New Delhi, the 1st January, 2014
S.O. 220.—In exercise of the power conferred by
Section 88 read with Section 91-A of the Employees' State
Insurance Act, 1948 (34 of 1948) the Central Government
hereby exempts the regular employees of factories/
establishments of Numaligarh Refinery Ltd., Guwahati,
Assam from the operation of the said Act. The exemption
shall be effective w.e.f. 01.01.2014 for a period of one year.
2. The above exemption is subject to the following
conditions namely:-
(1) The aforesaid establishments wherein the employees
are employed shall maintain a register showing the
name and designations of the exempted employees;
(2) Not withstanding this exemption, the employees
shall continue to receive such benefits under the
said Act to which they might have become entitled
to on the basis of the contributions paid prior to the
date from which exemption granted by this
notification operates;
(3) The contributions for the exempted period, if already
paid, shall not be refundable;
(4) The employer of the said factory/establishment shall
submit in respect of the period during which that
factory was subject to the operation of the said Act
(hereinafter referred as the said period), such returns
in such forms and containing such particulars as
were due from it in respect of the said period under
the Employees' State Insurance (General)
Regulations, 1950;
(5) Any Social Security Officer appointed by the
Corporation under Sub- section (1) of Section 45 of
the said ESI Act or other official of the Corporation
authorized in this behalf by it, shall, for the purpose
of :-
(i) Verifying the particulars contained in any
returned submitted under sub-section (1) of
section 44 for the said period; or
(ii) Ascertaining whether registers and records were
maintained as required by the Employees' State
Insurance (General) Regulations, 1950 for the
said period; or
(iii) Ascertaining whether the employees continue
to be entitled to benefits provided by the
employer in cash and kind being benefits in
consideration of which exemption is being
granted under this notification; or
(iv) Ascertaining whether any of the provisions of
the Act had been complied with during the period
when such provisions were in force in relation
to the said factory to be empowered to:
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
471
(a) require the principal or immediate employer
to him such information as he may consider
necessary for the purpose of this Act; or
(b) at any reasonable time enter any factory,
establishment, office or other premises
occupied by such principal or immediate
employer at any reasonable time and require
any person found in charge thereof to
produce to such inspector or other official
and allow him to examine accounts, books
and other documents relating to the
employment of personal and payment of
wages or to furnish to him such information
as he may consider necessary; or
(c) examine the principal or immediate employer,
his agent or servant, or any person found
in such factory, establishment, office or
other premises or any person whom the said
inspector or other official has reasonable
cause to believe to have been an employee;
or
(d) make copies of or take extracts from any
register, account book or other document
maintained in such factory, establishment,
office or other premises,
(e) exercise such other powers as may be
prescribed.
(6) In case of disinvestment/corporatization, the
exemption granted shall become automatically cancelled
and then the new entity will have to approach the
appropriate Government for exemption.
[No. S-38014/18/2013-SS-I]
SUBHASH KUMAR, Under Secy.
ubZ fnYyh] 1 tuojh] 2014
dkñvkñ 221.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ,r~n~}kjk iqjLdkj
izdkf'kr djrk gS ¼lanHkZ la[;k 45] 46] 47] 48] 49] 50] 51] 52]
53] 54] 55] 56] 57] 58@2012] 62] 63] 64] 65] 66] 67] 68] 69]
70@2013] 18] 19] 20@2013½ ps;jeSu ,aM eSusftax Mk;jsDVj fganqLrku
Q+ksVks fQYEl eSU;qQSDpfjax daiuh fyfeVsM ds izcaèra= ds lac)
fu;kstdksa vkSj muds deZdkjksa ds chp vuqcaè esa fufnZ"V vkS|ksfxd
fookn esa dsUnzh; ljdkj vkS|ksfxd vfèdj.k ,oa Je U;k;ky;]
psUubZ ds iapkV ¼lanHkZ la[;k 45] 46] 47] 48] 49] 50] 51] 52]
53] 54] 55] 56] 57] 58@2012] 62] 63] 64] 65] 66] 67] 68] 69]
70@2013] 18] 19] 20@2013 dks izdkf'kr djrh gS tks dsUnzh; ljdkj
dks 31@12@2013 dks izkIr gqvk FkkA
[la- ,y&42012@95 ls 108@2012&vkbZvkj ¼Mh;w½]
la- ,y&42012@114&119@2012&vkbZvkj ¼Mh;w½]
la- ,y&42012@121@2012&vkbZvkj ¼Mh;w½]
la- ,y&42012@120@2012&vkbZvkj ¼Mh;w½]
la- ,y&42012@122@2012&vkbZvkj ¼Mh;w½]
la- ,y&42012@172 ls 174@2012&vkbZvkj ¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vfèdkjh
New Delhi, the 1st January, 2014
S.O. 221.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (I.D. No. 45, 46,
47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58/2012, 62, 63, 64, 65,
66, 67, 68, 69, 70/2013, 18, 19, 20/2013) of the Central
Government Industrial Tribunal/Labour Court, Chennai now
as shown in the Annexure in the Industrial Dispute between
the employers in relation to the management of The CMD,
Hindustan Photo Films Mfg. Co. Ltd., Udhagamandalam
and their workman, which was received by the Central
Government on 31/12/2013.
[No. L-42012/95 to 108/2012-IR(DU),
No. L42012/114-119/2012-IR(DU),
No. L-42012/121/2012-IR(DU),
No. L-42012/120/2012-IR(DU),
No. L-42012/122/2012-IR(DU),
No. L-42012/172 to 174/2012-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
CHENNAI
Monday, the 25th November, 2013
Present : K.P. PRASANNA KUMARI, Presiding Officer
I.D. Nos. 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57 and
58 of 2012, 62, 63, 64, 65, 66, 67, 68, 69 and 70 of 2013 and
ID 18, 19 and 20 of 2013
[In the matter of the dispute for adjudication under
clause (d) of sub-section (1) and sub-section 2(A) of Section
10 of the Industrial Disputes Act, 1947 (14 of 1947), between
the Management of Hindustan Photo Films Mfg. Co. Ltd.
and their Workman]
BETWEEN
Sri N. Krishnamoorthy & 25 Others
1st Party/Petitioner
AND
The Chairman-cum-Managing
2nd Party/
Director
Respondent
Hindustan Photo Films
Mfg. Co. Ltd., Indus Nagar (PO),
Udhagamandalam-643005
472
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
S. I.D. No.
Reference No.
Name of the
Name of the
Appearance
Appearance
No.
& Date
I Party
II Party
for
for
Workman
Respondent
1
2
3
4
5
6
7
1. 45/2012
L-42012/95/2012-
Sri N. Krishna-
Hindustan
Sri G.
M/s Aiyar &
IR(DU) dated
moorthy
Photo Films
Gunaseelan
Dolia,
24.08.2012
Mfg. Co. Ltd.
Advocates
2. 46/2012
L-42012/96/2012-
Sri S. Delila
Hindustan
Sri G.
M/s Aiyar &
IR(DU) dated
Doris
Photo Films
Gunaseelan
Dolia,
24.08.2012
Mfg. Co. Ltd.
Advocates
3. 47/2012
L-42012/97/2012-
Sri R. Jayaram
Hindustan
Sri. G.
M/s Aiyar &
IR(DU) dated
Sekar
Photo Films
Gunaseelan
Dolia,
24.08.2012
Mfg. Co. Ltd.
Advocates
4. 48/2012
L-42012/98/2012-
Smt. L. Indrani
Hindustan
Sri G.
M/s Aiyar &
IR(DU) dated
Photo Films
Gunaseelan
Dolia,
24.08.2012
Mfg. Co. Ltd.
Advocates
5. 49/2012
L-42012/99/2012-
Sri V. Mohan
Hindustan
Sri G.
M/s Aiyar &
IR(DU) dated
Photo Films
Gunaseelan
Dolia,
24.08.2012
Mfg. Co. Ltd.
Advocates
6. 50/2012
L-42012/100/2012-
Sri K. Sundarraj
Hindustan
Sri G.
M/s Aiyar &
(DU) dated
Photo Films
Gunasselan
Dolia,
24.08.2012
Mfg. Co. Ltd.
Advocates
7. 51/2012
L-42012/101/2012-
Sri B.
Hindustan
Sri G.
M/s Aiyar &
IR(DU) dated
Balakrishnan
Photo Films
Gunaseelan
Dolia,
24.08.2012
Mfg. Co. Ltd.
Advocates
8. 52/2012
L-42012/102/2012-
Sri A. Mani
Hindustan
Sri G.
M/s Aiyar &
IR(DU) dated
Photo Films
Gunaseelan
Dolia,
24.08.2012
Mfg. Co. Ltd.
Advocates
9. 53/2012
L-42012/103/2012-
Sri R.
Hindustan
Sri G.
M/s Aiyar &
IR(DU) dated
Papannan
Photo films
Gunaseelan
Dolia,
24.08.2012
Mfg. Co. Ltd.
Advocates
10. 54/2012
L-42012/104/2012-
Sri P. Singiri
Hindustan
Sri G.
M/s Aiyar &
IR(DU) dated
Photo Films
Gunaseelan
Dolia,
24.08.2012
Mfg. Co. Ltd.
Advocates
11. 55/2012
L-42012/105/2012-
Sri M.
Hindustan
Sri G.
M/s Aiyar &
IR(DU) dated
Vasudevan
Photo Films
Gunaseelan
Dolia,
24.08.2012
Mfg. Co. Ltd.
Advocates
12. 56/2012
L-42012/106/2012-
Sri T. Devraj
Hindustan
Sri G.
M/s Aiyar &
IR(DU) dated
Photo Films
Gunaseelan
Dolia,
24.08.2012
Mfg. Co. Ltd.
Advocates
13. 57/2012
L-42012/107/2012-
Sri S.
Hindustan
Sri G.
M/s Aiyar &
IR(DU) dated
Gnanavaram
Photo Films
Gunaseelan
Dolia,
24.08.2012
Mfg.Co. Ltd.
Advocates
14. 58/2012
L-42012/108/2012-
Sri A. Nazeer
Hindustan
Sri G.
M/s Aiyar &
IR(DU) dated
Photo Films
Gunaseelan
Dolia,
24.08.2013
Mfg. Co. Ltd.
Advocates
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
473
15. 62/2012
L-42012/114/2012-
Sri S.
Hindustan
Sri G.
M/s Aiyar &
IR(DU) dated
Palaniswamy
Photo Films
Gunaseelan
Dolia,
12.09.2012
Mfg. Co. Ltd.
Advocates
16. 63/2012
L-42012/115/2012-
Sri R.
Hindustan
Sri G.
M/s Aiyar &
IR(DU) dated
Pandurangan
Photo Films
Gunaseelan
Dolia,
12.09.2012
Mfg. Co. Ltd.
Advocates
17. 64/2012
L-42012/116/2012-
Sri N.
Hindustan
Sri G.
M/s Aiyar
IR(DU) dated
Ravichandran
Photo Films
Gunasselan
Dolia,
12.09.2012
Mfg. Co. Ltd.
Advocates
18. 65/2012
L-42012/117/2012-
Sri K.
Hindustan
Sri G.
M/s Aiyar
IR(DU) dated
Sreenivasan
Photo Films
Gunaseelan
Dolia
12.09.2012
Mfg. Co. Ltd.
Advocates
19. 66/2012
L-42012/118/2012-
Sri S. Shankar
Hindustan
Sri G.
M/s Aiyar &
IR(DU) dated
Photo Films
Gunaseelan
Dolia,
12.09.2012
Mfg. Co. Ltd.
Advocates
20. 67/2012
L-42012/119/2012-
Sri J. George
Hindustan
Sri G.
M/s Aiyar &
IR(DU) dated
Photo Films
Gunaseelan
Dolia,
12.09.2012
Mfg. Co. Ltd.
Advocates
21. 68/2012
L-42012/121/2012-
Smt. K. Vimala
Hindustan
Sri G.
M/s Aiyar &
IR(DU) dated
Photo Films
Gunaseelan
Dolia,
12.09.2012
Mfg. Co. Ltd.
Advocates
22. 69/2012
L-42012/120/2012-
Sri T. Suresh
Hndustan
Sri G.
M/s Aiyar &
dated 12.09.2012
Kumar
Photo Films
Gunaseelan
Dolia,
Mfg. Co. Ltd.
Advocates
23. 70/2012
L-42012/112/2012-
Smt. Kalavathy
Hindustan
Sri G.
M/s Aiyar &
IR(DU) dated
Photo Films
Gunaseelan
Dolia,
12.09.2012
Mfg. Co. Ltd.
Advocates
24. 18/2013
L-42012/172/2012-
Sri R.P.
Hindustan
Sri G.
M/s Aiyar &
IR(DU) dated
Jayakumar
Photo Films
Gunaseelan
Dolia,
01.02.2013
Mfg. Co. Ltd.
Advocates
25. 19/2013
L-42012/173/202-
Sri J.
Hindustan
Sri. G.
M/s Aiyar &
IR(UD) dated
Jayakumar
Photo Films
Gunaseelan
Dolia,
01.02.2013
Mfg. Co. Ltd.
Advocates
26. 20/2013
L-42012/174/2012-
Sri N.
Hindustan
Sri G.
M/s Aiyar &
IR(DU) dated
Kirubaharan
Photo Films
Gunaseelan
Dolia.
01.02.2013
Mfg. Co. Ltd.
Advocates
1
2
3
4
5
6
7
COMMON AWARD
The Central Government, Ministry of Labour &
Employment vide the above order of references referred
the IDs mentioned above to this Tribunal for adjudication.
2. The schedule mentioned in the orders of reference
in the above IDs are as under:
ID 45/2012
"Whether the action of the management of Hindustan
Photo Films Mfg. Co. Ltd., Ooty regarding non-
employment of Sri N. Krishnamoorthy in the
Hindustan Photo Films Mfg. Co. Ltd., Ooty even
after putting more than 17 years service is justifiable
or not? If not, what relief the workman is entitled
to?"
ID 46/2012
Whether the action of the management of Hindustan
Photo Films Mfg. Co. Ltd., Ooty regarding non-
employment of Sri S. Delila Doris in the Hindustan
Photo Films Mfg. Co. Ltd., Ooty even after putting
474
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
more than 17 years service is justifiable or not? If
not, what relief the workman is entitled to?"
ID 47/2012
Whether the action of the management of Hindustan
Photo Films Mfg. Co. Ltd., Ooty regarding non-
employment of Sri R. Jayaram Sekar in the Hindustan
Photo Films Mfg. Co. Ltd., Ooty even after putting
more than 17 years service is justifiable or not? If
not, what relief the workman is entitled to?"
ID 48/2012
Whether the action of the management of Hindustan
Photo Films Mfg. Co. Ltd., Ooty regarding non-
employment of Smt L. lndrani, W/o (Late)
Sri Govindan in the Hindustan Photo Films Mfg. Co.
Ltd., Ooty even after putting more than 17 years
service is justifiable or not? If not, what relief the
workman is entitled to?"
ID 49/2012
Whether the action of the management of Hindustan
Photo Films Mfg. Co. Ltd., Ooty regarding non-
employment of Sri V. Mohan in the Hindustan Photo
Films Mfg. Co. Ltd., Ooty even after putting more
than 17 years service is justifiable or not? If not,
what relief the workman is entitled to?"
ID 50/2012
Whether the action of the management of Hindustan
Photo Films Mfg. Co. Ltd., Ooty regarding non-
employment of Sri K. Sundarraj in the Hindustan Photo
Films Mfg. Co. Ltd., Ooty even after putting more
than 17 years service is justifiable or not? If not,
what relief the workman is entitled to?"
ID 51/2012
Whether the action of the management of Hindustan
Photo Films Mfg. Co. Ltd., Ooty regarding non-
employment of Sri B. Balakrishnan in the Hindustan
Photo Films Mfg. Co. Ltd., Ooty even after putting
more than 17 years service is justifiable or not? If
not, what relief the workman is entitled to?
ID 52/2012
Whether the action of the management of Hindustan
Photo Films Mfg. Co. Ltd., Ooty regarding non-
employment of Sri A. Mani in the Hindustan Photo
Films Mfg. Co. Ltd., Ooty even after putting more
than 17 years service is justifiable or not? If not,
what relief the workman is entitled to?"'
ID 53/2012
Wherher the action of the management of Hindustan
Photo Films Mfg. Co. Ltd., Ooty regarding non-
employment of Sri R. Papannan in the Hindustan
Photo Films Mfg. Co. Ltd., Ooty even after putting
more than 17 years service is justifiable or not? If
not, what relief the workman is entitled to?"
ID 54/2012
Whether the action of the management of Hindustan
Photo Films Mfg. Co. Ltd., Ooty regarding non-
employment of Sri P. Singiri in the Hindustan Photo
Films Mfg. Co. Ltd., Ooty even after putting more
than 17 years service is justifiable or not? If not,
what relief the workman is entitled to?"
ID 55/2012
Whether the action of the management of Hindustan
Photo Films Mfg. Co. Ltd., Ooty regarding non-
employment of Sri M. Vasudevan in the Hindustan
Photo Films Mfg. Co. Ltd., Ooty even after putting
more than 17 years service is justifiable or not? If
not, what relief the workman is entitled to?"
ID 56/2012
Whether the action of the management of Hindustan
Photo Films Mfg. Co. Ltd., Ooty regarding non-
employment of Sri T. Devraj in the Hindustan Photo
Films Mfg. Co. Ltd., Ooty even after putting more
than 17 years service is justifiable or not? If not,
what relief the workman is entitled to?"
ID 57/2012
Whether the action of the management of Hindustan
Photo Films Mfg. Co. Ltd., Ooty regarding non-
employment of Sri S. Gnanavaram in the Hindustan
Photo Films Mfg. Co. Ltd., Ooty even after putting
more than 17 years service is justifiable or not? If
not, what relief the workman is entitled to?'
ID 58/2012
Whether the action of the management of Hindustan
Photo Films Mfg. Co. Ltd., Ooty regarding non-
employment of Sri A. Nazeer in the Hindustan Photo
Films Mfg. Co. Ltd., Ooty even after putting more
than 17 years service is justifiable or not? If not,
what relief the workman is entitled to?"
ID 62/2012
Whether the action of the management of Hindustan
Photo Films Mfg. Co. Ltd., Ooty regarding non-
employment of Sri S. Palaniswamy in the Hindustan
Photo Films Mfg. Co. Ltd., Ooty even after putting
more than 17 years service is justifiable or not? If
not, what relief the workman is entitled to?"
ID 63/2012
Whether the action of the management of Hindustan
Photo Films Mfg. Co. Ltd., Ooty regarding non-
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
475
employment of Sri R. Pandurangan in the Hindustan
Photo Films Mfg. Co. Ltd., Ooty even after putting
more than 17 years service is justifiable or not? If
not, what relief the workman is entitled to?'
ID 64/2012
Whether the action of the management of Hindustan
Photo Films Mfg. Co. Ltd., Ooty regarding non-
employment of Sri N. Ravichandran in the Hindustan
Photo Films Mfg. Co. Ltd., Ooty even after putting
more than 17 years service is justifiable or not? If
not, what relief the workman is entitled to?"
ID 65/2012
Whether the action of the management of Hindustan
Photo Films Mfg. Co. Ltd., Ooty regarding non-
employment of Sri K. Sreenivasan in the Hindustan
Photo Films Mfg. Co. Ltd., Ooty even after putting
more than 17 years service is justifiable or not? If
not, what relief the workman is entitled to?"
ID 66/2012
Whether the action of the management of Hindustan
Photo Films Mfg. Co. Ltd., Ooty regarding non-
employment of Sri S. Shankar in the Hindustan Photo
Films Mfg. Co. Ltd., Ooty even after putting more
than 17 years service is justifiable or not? If not,
what relief the workman is entitled to?"
ID 67/2012
Whether the action of the management of Hindustan
Photo Films Mfg. Co. Ltd., Ooty regarding non-
employment of Sri J. George in the Hindustan Photo
Films Mfg. Co. Ltd., Ooty even after putting more
than 17 years service is justifiable or not? If not,
what relief the workman is entitled to?"
ID 68/2012
Whether the action of the management of Hindustan
Photo Films Mfg. Co. Ltd., Ooty regarding non-
employment of Smt. K. Vimala in the Hindustan Photo
Films Mfg. Co. Ltd., Ooty even after putting more
than 17 years service is justifiable or not? If not,
what relief the workman is entitled to?"
ID 69/2012
Whether the action of the management of Hindustan
Photo Films Mfg. Co. Ltd., Ooty regarding non-
employment of Sri T. Suresh Kumar in the Hindustan
Photo Films Mfg. Co. Ltd., Ooty even after putting
more than 17 years service is justifiable or not? If
not, what relief the workman is entitled to?"
ID 70/2012
Whether the action of the management of Hindustan
Photo Films Mfg. Co. Ltd., Ooty regarding non-
employment of Smt. Kalavathy, in the Hindustan
Photo Films Mfg. Co. Ltd., Ooty even after putting
more than 17 years service is justifiable or not? If
not, what relief the workman is entitled to?"
ID 18/2013
Whether the action of the management of Hindustan
Photo Films Mfg. Co. Ltd., Ooty regarding non-
employment of Sri R.P. Jayakumar in the Hindustan
Photo Films Mfg. Co. Ltd., Ooty even after putting
more than 17 years service is justifiable or not? If
not, what relief the workman is entitled to?"
ID 19/2013
Whether the action of the management of Hindustan
Photo Films Mfg. Co. Ltd., Ooty regarding non-
employment of Sri J. Jayakumar in the Hindustan
Photo Films Mfg. Co. Ltd., Ooty even after putting
more than 17 years service is justifiable or not? If
not, what relief the workman is entitled to?"
ID 20/2013
Whether the action of the management of Hindustan
Photo Films Mfg. Co. Ltd., Ooty regarding non-
employment of Sri N. Kirubaharan in the Hindustan
Photo Films Mfg. Co. Ltd., Ooty even after putting
more than 17 years service is justifiable or not? If
not, what relief the workman is entitled to?"
3. All the above industrial disputes are raised
challenging the action of Hindustan Photo Films
Manufacturing Co. Ltd., Ooty (who is the Respondent in
all the IDs) regarding non-employment of the respective
petitioners in the IDs. The schedule of reference in all the
IDs is whether the action of the management regarding
non- employment of the respective petitioner in the
Hindustan Photo Films Manufacturing Co. Ltd. even after
putting more than 17 years service is justified or not and if
not to what relief the concerned workmen is entitled.
4. The petitioners in all the Claim Statements have
contended that they have been employed by the Hindustan
Photo Films Manufacturing Co. Ltd. and that even though
their appointments were as Trainee/Helper, they were
discharging their work in a regular manner and not as
Trainees. The Management have terminated their service
w.e.f. 07.02.1994 by a notice put in the notice board. All the
petitioners alongwith other persons who were terminated
alongwith them have filed a Writ Petition before the High
Court of Madras challenging the termination order. A single
bench of the Madras High Court had granted an interim
order allowing them to continue in service. The
Management had filed Writ Appeal against this order. The
division bench, though found that the petitioners have no
case on merits, allowed them to continue in service on the
ground that they have been working in the Company for a
long period. The Management challenged this order of
476
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
Division Bench before the Hon'ble Supreme Court. The
Hon'ble Supreme Court had found that the termination of
the services of the petitioners is proper.
5. The Respondent had filed IA 3/2013 before this
Court contending that the matter having been finally
decided by the Apex Court of the land, the claim raised by
the petitioners by the present industrial disputes is barred
by the principle of res judicata. On considering the
contentions of either side, I have found in the IA that the
claims of the petitioners are barred in view of the principle
of res judicata since the matter has already been decided
by the Supreme Court of India. As such the petitioners are
not entitled to proceed with their respective claims.
6. The references are answered against the
respective petitions. Awards are passed accordingly.
K. P. PRASANNA KUMARI, Presiding Officer
Witnesses Examined:
For the 1st Party/Petitioner
:
None
For the 2nd Party/Management
:
None
Documents Marked :
On the petitioner's side
Ex. No.
Date
Description
N/A
On the Management's side
Ex. No.
Date
Description
N/A
ubZ fnYyh] 2 tuojh] 2014
dkñvkñ 222.—vkS|ksfxd fookn vfèfu;e 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ,rí~okjk iqjLdkj
izdkf'kr djrk gS ¼lanHkZ la[;k 135@2007½ Fks fMikVZesaV vkWQ iksLV~l
ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqcaè
esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèdj.k
,oa Je U;k;ky; cSsaxyksj ds iapkV lanHkZ la[;k 135@2007 izdkf'kr
djrh gS tks dsUnzh; ljdkj dks 31@12@2013 dks izkIr gqvk FkkA
[la- ,y&40012@13@2007&vkbZvkj ¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vfèdkjh
New Delhi, the 2nd January, 2014
S.O. 222.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Case No.135/
2007) of the Central Government Industrial Tribunal/Labour
Court, Bangalore now as shown in the Annexure in the
Industrial Dispute between the employers in relation to the
management of The Department of Posts, Bangalore and
their workman, which was received by the Central
Government on 31/12/13.
[No.L-40012/13/2007-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIUSNAL-CUM-LABOUR COURT,
BANGALORE
Dated
:
5th September 2013
PRESENT
:
SHRI S N NAVALGUND,
Presiding Officer
C R No. 135/2007
I Party
II Party
Shri Umesh Kumar H,
The Senior Superintendent
S/o Late Shri H Ramayya
of Post Offices,
R/o D No. 1-1-52/1,
Department of Posts,
Urvastore, Sunkadakatte,
Mangalore Division,
Ashoknagar,
Mangalore-575 002.
Mangalore-575 006.
Appearances
I Party
:
Shri Udayananda A,
Advocate
II Party
:
Shri G K Bhat,
Advocate
AWARD
1. The Central Government vide order No.
L-40012113/2007- IR(DU) dated 04.10.2007 in exercise of
the power conferred by clause (d) of sub-section (1) and
sub-section (2A) of Section 10 of the Industrial Disputes
Act, 1947 (14 of 1947) made this reference for adjudication
with the following schedule:
SCHEDULE
"Whether the action of the management of the Senior
Supdt. of Post Offices, Mangalore Division, in
terminating the services of their workman Shri Umesh
Kumar H w.e.f. 23.11.2004, is legal and justified? If
not, to what relief the workman is entitled to?"
2. On receipt of the reference while registering it in
C R 135/2007 notices were issued to both the sides. Though
the I Party was duly served with notice to appear on
10.06.2010 and to file claim statement on that day he did
not appear and it was posted at Mangalore Camp on
23.06.2010 for his appearance and to file claim statement
but he did not appear on that day but in the meanwhile on
07.06.2010 a claim statement sent by him through post was
received, wherein he has asserted that since 1996 he was
working as Postman/ED Agent in various post offices
including Kavoor, Kunjathbail, Panjimogaru, Kuioor,
Ashoknagar, Level and Mangaladevi Post Offices for over
¹Hkkx II—[k.M 3(ii)º
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477
a period of 10 years and that in the year 2004 he was made
to believe that his post will be regularized and made
permanent and thereafter the Inspector of Post, Mangalore
North Sub-division invited application from him and others
for the post of Gramina Dak Service, MC/DK for the regular
post but surprisingly his application was not considered
and on the other hand he is illegally terminated from the
service and as the appeal preferred by him to the Inspector
of Post Office, Mangalore North sub-division dismissed
without hearing him on the ground that he had not
completed 180 days of service and even his second appeal
to the Principle Chief Post Master General, Karnataka Circle
was not considered and the ALC(C) in the proceedings
initiated before him though suggested to reinstate him the
same was not considered hence the ll party be directed to
reinstate him with backwages and continuity of service.
The II Party opposed this claim statement contending that
the Department of Post being not an industry within the
meaning, scope and ambit of the term in ID Act, 1947 and
that it is a public utility service under Section 2 (n) (iii) of
the ID Act, 1947, the reference is not maintainable and
further the I Party who only intermittently worked in the
leave vacancy is not a workman under the act and that
such employees are called as Extra Departmental Employees
and they are governed by The Department of Posts, Gramin
Dak Sevaks (Conduct and Employment) Rules, 2001 whose
duty hours range from 3 to 5 hours a day and they cannot
be classified as workman under the definition of ID Act.
The II party further denying all other allegations made in
the claim statement regarding his appointment, asking him
to apply for the regular post etc. prayed for dismissal of the
reference.
3. Since the learned advocate appearing for the
II party, insisted to hear on the maintainability of the
reference on his contention that the II party is not an
industry and the I Party is not a workman as defined under
the ID Act, after hearing his arguments by order dated
07.12.2011 the contention of the II party is not an industry
and I party not a workman was answered in the Negative.
Thereafter, when the matter was posted for Evidence of the
II Party the learned advocate appearing for the II party
while filing the affidavit of T G Naik, Senior Superintendent
of Post Offices, Balamatta swearing to the facts stated in
counter statement examined him on oath as MW 1 and got
exhibited Attested copy of the GDS Rules, 2001 as amended
as Ex M1 and closed his side. lnspite of providing number
of adjournments neither I Party nor counsel who filed
vakalat for him on 25.08.2010 never turned up as such he
was discharged from cross-examination. After discharging
MW 1 from cross-examination several adjournments were
granted for the I Party to lead evidence and as same was
not availed the matter was posted for arguments on merits
and even when the matter was posted for arguments on
merits the I Party and his counsel since did not turn up
after hearing the arguments addressed by the II Party the
matter came to be posted for Award.
4. On appreciation of the averments made in the claim
statement, contention taken by the II Party in its counter
statement and the evidence adduced by the II Party with
the arguments addressed by the learned advocate
appearing for the II Party, I have arrived at conclusion the
I Party since failed to prove his appointment or required
period of service as well as termination the reference is
liable for rejection for the following
REASONS
5. Since it is not the case of the I Party in his claim
statement that he was appointed as Postman/ED Agent in
the postal department and in that capacity he served for 10
years and his claim appears to be that he worked as casual
worker on the need basis whenever regular employees of
the II Party proceed on leave as contended by II Party, if at
all he had served in any of the Post Offices as stated in his
claim statement. Therefore, it was incumbent upon the I
Party to adduce evidence to substantiate the claim made
by him in his claim statement. If at all the I party was able to
place on record that he continuously worked for a period
of 240 days in a calendar year he would have been entitled
for the benefit of Section 25(f) of the ID Act which
contemplates if such workman is to be terminated he has to
be given one month notice in writing indicating the reasons
or paid in lieu of such notice, wages for the period of the
notice and compensation equivalent to 15 days of average
pay for every completed year of service or any part thereon
for every six months. But as already adverted to by me
above the I Party who sent claim statement through post
received on 07.06.2010 and an advocate filed vakalat for
him on 25.08.2010 neither cross-examined MW 1, nor
adduced any positive evidence to substantiate his claim
made in the claim statement. Under the circumstances, I
arrive at the conclusion the I party has failed to substantiate
that he continuously worked for a period 240 days in a
calendar year or termination of his service by the II Party
w.e.f 23.11.2004. In the result, the reference being liable for
rejection, I pass the following
ORDER
The Reference is Rejected holding that the I Party
failed to substantiate having worked for a required period
as well as termination of his service by the II party w.e.f.
23.11.2004.
S. N. NAVALGUND, Presiding Officer
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478
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
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New Delhi, the 2nd January, 2014
S.O. 223.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Case No.54/2001)
of the Central Government Industrial Tribunal/Labour
Court, Bangalore now as shown in the Annexure in the
Industrial Dispute between the employers in relation to the
management of The Department of Posts, Bangalore and
their workman, which was received by the Central
Government on 31/12/2013.
[No.L-40012/133/2001-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT
Dated
:
10th July, 2013
Present
:
Shri S. N. Navalgund,
Presiding Offiver
C R No. 54/2001
I Party
II Party
Shri S Mallikarjuna,
The Senior Superintendent
R/ at Dasmapura,
of Post Offices,
Hagaribommanahalli,
Bellary District,
Post Damapur-583 212.
Bellary-583 101.
Bellary District.
APPEARANCES
I Party
: Shri D R Vishwanath Bhat,
Advocate
II Party
: Shri K M Janardhan Reddy
Advocate
AWARD
1. The Central Government vide order No.
L-40012/133/2001- IR(DU) dated 14.08.2001 in exercise of
the power conferred by clause (d) of sub-section (1) and
sub-section (2A) of Section 10 of the Industrial Disputes
Act, 1947 (14 of 1947) made this reference for adjudication
with the following schedule:
SCHEDULE
"Whether the action of the Sr. Superintendent of
Post Offices, Bellary Division, Bellary in terminating
the services of the workmen Sh. Mallikarjunaswaran
w.e.f. 6/5/2000 is justified? If not, to what relief is he
entitled to?"
2. After receipt of the reference while registering it in
C R No. 54/2001 when notices were issued to both the
sides they entered their appearances through their
respective advocates and I Party filed his claim statement
on 01.11.2001 and II party its counter statement on
12.03.2002.
3. The I Party in his claim statement claimed that he
was employed by the II party as ED Mail Carrier at
Dasampura Post Office w.e.f. 15.02.1999 on the Order of
Sub-Divisional Inspector (Postal), Hospet and the charge
taking was ratified by the BBM Post Office as evidenced
by the charge taken report and since then he continuously
and diligently and sincerely worked and received his
monthly salary and that he was also sanctioned an
increment on completion of one year w.e.f. 15.02.2000 and
suddenly on 06.05.2000 he was issued with a Memo bearing
No. PF/EDMC/Dasamapura/2000 dated 04.05.2000 to
relinquish his post on 06.05.2000 afternoon without
assigning any reasons. He has further stated that he having
worked continuously for a period of 445 days from
15.02.1999 to 06.05.2000 the order dated 04.05.2000 asking
him to relinquish the post from 06.05.2000 since amounts
to illegal retrenchment as defined under Section 2(00) of ID
Act without complying the mandatory provisions of
Section 25 F of ID Act, 1947 same is illegal and
unsustainable. He also stated in the claim statement the II
party ought to have prepared the list of senior employees
working in the cadre and should have followed the principle
of last come first go as per Section 25(G) of ID Act, therefore,
he is entitle for reinstatement with consequential benefits.
4. The ll party in its counter statement without
denying the I party having worked from 15.02.1999 to
06.05.2000 contended that his appointment was being
purely stop gap till regular appointment •was made after
following the prescribed procedure on regular appointment
to the post his services having been terminated he is not
entitle for any reliefs. It is also contended that as held by
the Hon'ble Supreme Court in Civil Appeal No. 3385-8611996
the department of post being not an industry the I party
cannot be a workman attracting the provisions of ID Act,
1947 and as a periodical increase in allowance (Time related
continuity allowance — TRCA) was given to the I party
after completion of one year service that cannot be made
use to say that he was a permanent employee. Thus, the
action of the ll party in terminating the services I party
workman is submitted as justified and that he is not entitled
for any relief.
5. After completion of the pleadings my learned
predecessor while teceiving the evidence of K H Hosmani,
Superintendent of Post Office, Bellary for the II party and
exhibiting Ex M-1 to Ex M-4 the detailed description of
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
479
which are narrated in the annexure and of the 1 party and
exhibiting Ex W-1 to Ex W-14 the detailed description of
which are narrated in the annexure and after hearing the
arguments addressed by both the sides through Award
Dated 27.09.2002 rejected the reference. Aggrieved by the
said order when the I party approached the Hon'ble High
Court of Karnataka in W P no. 4703/2002 (L-TER) the
Hon'ble High Court by order dated 07.02.2013 observing
that though the workman has stated that he worked for a
period of 14 months continuously, without appreciating
the same recorded a finding that there is no material to
show that the workman has worked for 240 days the said
finding is perverse allowed the Writ Petition quashed the
Award with a direction to restore the reference to the file
for the adjudication keeping in view the order of reference
and pleadings of the parties.
6. After remand by the Hon'ble High Court as directed
in its order the learned advocate appearing for the 1 Party
and Sh. K M Janardhan Reddy, Additional Standing
Government Counsel appeared for the II party and on the
same evidence adduced by both the sides earlier addressed
their arguments.
7. The learned advocate appearing for the I party
while taking me through the pleadings and the documentary
evidence produced at Ex W-4 and Ex W-5 urged that there
being no dispute I Party having worked continuously from
15.02.1999 to 06.05.2000 for a period of 445 days, abruptly
issuing letter produced at Ex W-5 directing him to relinquish
the charge on 06.05.2000 amounts to retrenchment as
contemplated under Section 2(00) of ID Act, and admittedly
there being no compliance of mandatory provisions of
Section 25(F) of ID Act, the said termination/retrenchment
being illegal he is entitle for reinstatement and full
backwages with continuity of service. He also urged that
subsequent to the decision of the Hon'ble Supreme Court
in Civil Appeal No. 3385-8611996 dated 02.02.1996 reported
in AIR 1996 SC 1271 the three judge bench of the Hon'ble
Supreme Court of India in the case of General Manager,
Telecom Vs. S Srinivas Rao and others while overruling the
decision of the Single Judge reported in AIR 1996 SC 1271
held Telecom Department of Union of India being engaged
in commercial activity and is not discharging any sovereign
functions of the state, it is an Industry, therefore, the
contention of the ll party that Post Office is not an industry
has no substance. In support of his arguments he cited the
decision reported in AIR 1998 SC 656. Interalia, the learned
Additional Standing Government Counsel appearing for
the ll party submitted that I party was being appointed as
Stop-gap arrangement to vacant post arising out of his
father's retirement after calling for applications for regular
appointment person with merit when came to be appointed
his services being discontinued asking him to relinquish
from 06.05.2000 as such no notice was required. He also
citing the decision reported in AIR 1996 SC 1271 urged that
Postal and Telecommunication being held as Not Industry
the reference is liable to be rejected.
8. In view of the facts narrated by me above the
points that arise for my consideration are :
Point No. 1 : Whether the Post Office is an Industry
as defined under Section 2 (j) of ID Act?
Point No. 2 : If yes, whether terminating the service
of I party w.e.f. 06.05.2000 asking him to relinquish the
charge as per Ex W-5 is justified?
Point No. 3 : What Order?
9. On appreciation of the pleadings, oral and
documentary evidence brought on record by both the sides
in the light of the arguments put forward by the learned
advocates appearing for them my finding on Point No. 1 is
in the Affirmative, Point No. 2 in the negative and Point No.
3 as per final order for the following reasons :
REASONS
10. The II party in its counter statement while referring
to the judgement of the Hon'bie Supreme Court dated
02.02.1996 in Civil Appeal No 3385-86/1996 contended that
the Department of Posts and Telecommunication being held
as not an Industry the reference is not maintainable and
same argument is addressed by the learned standing
counsel during the course of arguments. lnteralia the
learned advocate appearing for the I party citing the
decision of the Hon'ble Supreme Court of India in Civil
Appeal no. 7845/1997 dated 18.11.1997 reported in AIR 1998
SC 656 urged that in this subsequent decision of Three
Judges Bench along with other judgements the judgement
relied upon by the II Party reported in AIR 1996 SC 1271
being overruled and held Telecom Department of Union of
India being engaged in Commercial Activity and is not
discharging any sovereign functions of the state it is an
industry the argument put forward by the II party relying
upon a overruled decision has no merit. As urged by the
learned advocate appearing for the I Party the Three Judges
Bench of the Hon'ble Supreme Court of India in the case of
General Manager, Telecom vs. S Srinivas Rao and others
reported in AIR 1998 Sc 656 while overruling the decision
of the Hon'ble Single Judge of the Supreme Court in Civil
Appeal No. 3385- 86/1996 reported in AIR 1996 SC 1271,
held Telecom Department of Union of India being engaged
in Commercial Activity and is not discharging any
sovereign function of the state, it is an industry as defined
under Section 2(j) of ID Act, 1947, the contention of the II
party that it is not an industry as such reference is not
maintainable is bereft of any merits. In the result, I arrive at
conclusion of answering this Point No.1 in the Affirmative.
11. Point No. 2 : There being no dispute the ll Party
having availed the service of I Party from 15.02.1999 to
06.05.2000 continuously for a period of 445 days and asked
him to relinquish the charge from officiating as EDMC,
480
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
Dasampur from 06.05.2000 afternoon and there being no
material he was being engaged with that specific
understanding even if his services were temporary till the
regular appointment is made as-defined under Section 25 F
of the ID Act, 1947 the action of the II Party amounts to
illegal retrenchment. If at all as contended by the II party
his services were availed temporarily till the post is regularly
filled up and a regular recruitment was taken place his
services by the II party ought to have been retrenched by
giving one months notice in writing indicating the reasons
for retrenchment or he ought to have been paid in lieu of
such notice besides compensation equivalent to 15 days
average pay for every completed year of service and
admittedly this being not complied with asking him to
relinquish the charge held by him abruptly from 06.05.2000
through communication dated 04.05.2000 which is produced
at Ex W-5 is not justified. In the result, I arrived at conclusion
of answering this Point in the Negative.
12. Point No. 3 : In view of my finding on Point No.1
and 2 the II party is liable to restore the services of the I
party as he was holding on the date of his illegal
retrenchment i.e. 06.05.2000. Since the I Party due to the
illegal retrenchment of his service has not worked for the ll
party and his claim that he remained unemployed is not
rebutted by any cogent evidence by the II Party having
regard to the temporary nature of his service, I feel it just
and appropriate to compensate him by paying 25 % of
wages payable to him from the date of his illegal
retrenchment i.e. 06.05.2000 till he is reinstated and also to
treat this period as being in Service for the purpose of
computing compensation and other benefits in the event
of terminating or retrenching his services. In the result, I
pass the following.
ORDER
The reference is allowed holding that the action of
the Senior Superintendent of Post Offices, Bellary Division,
Bellary, in terminating the services of the workmen Sh.
Mallikarjuna w.e.f. 06.05.2000 is not justified and that he is
entitle for restoration of his Service with 25% of backwages
from the date of termination/illegal retrenchment from
service i.e. 06.05.2000 till his service is restored and
continuity of service. Under the circumstances, there is no
order as to cost.
S. N. NAVALGUND, Presiding Officer
ANNEXURE -1
List of witnesses:
MW I -
Sh. K H Hosamali, Superintendent of Post
Offices
WW I -
Sh. Mallikarjuna, I party workman
Documents exhibited on behalf of the Management:
Ex M - I -
Copy of letter addressed to Post Master,
Hospet HO dated 18.02.1999
Ex M - 2 -
Charge Report and Receipt for cash & Stamps
on transfer of charge
Ex M - 3 -
Relinquishing Letter addressed to BPM,
Dasampura dt. 04.05.2000
Ex M - 4 -
Relinquishing Letter addressed to 1 Party dated
04.05.2000
Documents exhibited on behalf of the I party :
Ex W - 1 -
Original Postal Life Insurance Policy
Ex W -2 -
Gate Pass of the Printers (Mysore) Ltd., dated
18.04.2002
Ex W -3 -
Copy of the Kannada Paper cutting dated
27.04.1994
Ex W -4 -
Original Charge Report and Receipt for cash
and stamps on transfer of charge
Ex W - 5 -
Original Relinquishing Letter addressed to I
Party dated 04.05.2000
Ex W - 6 -
Letter of the Department dated 14.01.1999
Ex W- 7 -
Original Experience Letter dated 09.03.1999
•Ex W - 8 - Objection Statement of the 11 Party before
ALC(C), Bellary
Ex W - 9 -
Photostat copy of the Recruitment Rules
Ex W - 10 - Character Certificate of the I Party issued by
Gram Panchayat
Ex W - 11 - Charge Report & Receipt for cash & stamps of
Sh. Veerabhadrappa
Ex M - 17 - Reply of I Party on findings
Ex M - 18 - Notice dated 10.03.2006 of Personal hearing
Ex M - 19 - Proceedings of the Disciplinary Authority
dated 15.03.2005
Ex M - 20 - Order dated 15.03.2006 of the Disciplinary
Authority imposing the punishment
Ex M -21 - Appeal filed by I Party
Ex M - 22 - Letter of personal hearing before the Appellate
Authority dated 12.10.2006
Ex M-23-
Orders of Appellate Authority dated 22.11.2006.
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New Delhi, the 2nd January, 2014
S.O. 224 In pursuance of Section 17 of the Industrial
Disputes Act, 1947 (14 of 1947), the Central Government
hereby publishes the award (Case No. 132/2007) of the
Central Government Industrial Tribunal/Labour Court,
Banglore now as shown in the Annexure in the Industrial
Dispute between the employers in relation to the
management of The Principal, Army Public School,
Bangalore and their workman, which was received by the
Central Government on 31/12/13.
[F. No. L-14012/20/2007-IR(DU)]
P.K.VENUGOPAL, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIUBNAL-CUM-LABOUR COURT,
BANGALORE
DATED
:
12th August 2013
PRESENT
:
Shri S.N. NAVALGUND
Presiding Officer
C.R. No. 132/2007
I Party
II Party
Shri K Nagappa,
The Principal,
S/o Shri Konda Reddy,
Army Public School,
Valepura Sorahunase Post, Abdul Hameed Barracks,
Bangalore South Taluk,
K Kamraj Road,
Bangalore - 560 087.
Bangalore - 560 012.
Appearances
I Party
:
Shri G V P Reddy
Advocate
II Party
:
Shri Ravishankar Patil
Advocate
ORDERS ON VALIDITY OF DOMESTIC ENQUIRY
1. In this reference made by the Central Government
vide Order No. L-14012/20/2007-IR(DU) dated 18.09.2007
for adjudication on the following schedule:
"Whether the action of the management of Army
Public School, Bangalore, in terminating the series
of their workman Shri K. Nagappa w.e.f. 30.6.2006 is
legal and justified? If not, to what relief the workman
is entitled to?"
In view of the assertion made by the I Party in his
claim statement that he who was appointed by the II Party
as a Driver w.e.f. 06.01.2000 though he was discharging his
duties honestly, diligently without any blemish till
01.07.2006, abruptly on the evening of 01.07.2006 the school
authorities directed him not to come to the duties without
assigning any reasons whatsoever and on the next day
02.07.2006 being Sunday holiday for the school he went to
the school on 03.07.2006 to report to the school but was
not allowed to discharge his duties and thereafter he
received the order of termination dated 30.06.2006 through
post along with copies of caveat petition filed before the
City Civil Court and Hon'ble High Court of Karnataka and
that he was neither served with any Charge Sheet nor Show
Cause Notice nor subjected to any enquiry in accordance
with the principles of natural justice before passing the
said order of termination and the II Party in its counter
statement contended that for the misconducts by the I
Party a Board of enquiry was constituted to enquire into
the charges levelled against him and as he refused to co-
operate with the Board of Enquiry and refused to give any
statement, the Presiding Officer after observing all the
principles of natural justice gave report and findings to the
management and the management considering the said
report of the enquiry passed order No. 04980/14 dated
30.06.2006 terminating the services of the I party and that
in the event this court comes to the conclusion that the
enquiry is not fair It reserves its right to adduce additional
evidence to drive home the misconduct committed by the I
party, the following issues came to be framed as Preliminary
Issue :
"Whether the Domestic Enquiry held against the I
party by the II `Party is fair and proper?"
2. After framing the above Preliminary Issue and
matter was posted for evidence of ll party on the said issue,
on 16.03.2011 the learned counsel appearing for the II Party
filed a Memo stating that II party is willing to take back the
I party to work without backwages and counsel for I Party
submits that I Party is ready to resume to duty w.e.f.
21.03.2011 subject to payment of current wages and
accordingly the matter was adjourned to 13.04.2011
observing the II party to take him back w.e.f. 21.03.2011
paying the current wages. On 13.04.2011 the I Party and his
counsel made a submission that I Party has been taken to
work from 21.03.2011 and Sh. Ramanna, Administrative
Officer who represented the II party on that day requested
to grant time and accordingly it was posted to 16.05.2011
and thereafter II party counsel after availing several
adjournments on 14.07.2011 filed the affidavit of Sh. Vijay
Kumar, Primary Teacher and taken time to examine him on
oath and examined him on oath on 02.11.2011 and through
him got exhibited four documents as Original Report and
Findings of the Enquiry into the charges leveled against
the I party; Show Cause notice issued to I party dated
03.06.2006 celling upon him to showcause why he should
482
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
not be terminated; True copy of the termination order
issued to I party dated 30.06.2006; Original Letter dated
01.07.2006 tendered to I party which bears the signatures
of the witnesses who were present when it was refused to
receive by the I party as Ex M-1 to Ex M-4. Interalia, the
learned advocate appearing for the 1 party while examining
the I Party as WW 1 did not produce any documentary
evidence.
3. With the above pleadings and evidence brought
on record the arguments addressed by both the parties
were heard.
4. The learned advocate appearing for the I party
while taking me through the records urged that it indicates
on the basis of an exparte Investigation report purported
to have been obtained through a body called Board of
Enquiry which is got exhibited as Ex M-1 the impugned
action of terminating the services having been effected as
such the same is not sustainable and as no charge sheet is
issued and enquiry conducted against the I party this court
also cannot proceed to record the evidence of II Party on
merits and as the II party has taken back the 1 Party to
services w.e.f. 21.03.2011 agreeing to pay him current wages
the II Party may be directed to pay the full backwages and
continuity of service. Interalia, it was argued by the learned
advocate appearing for the II party Ex M-2 which is styled
as Show Cause Notice can be read as Charge Sheet and as
the I party refused to receive the notice and even termination
order the enquiry was proceeded exparte as such the I
party has to blame himself for having suffered such a
termination order as such the enquiry be held fair and proper.
5. On appreciation of the pleadings, oral and
documentary evidence brought on record by both the
parties and the arguments of learned advocates my finding
on the Preliminary Issue is in the Negative and I am also of
the opinion that there is no scope to permit the II party to
lead evidence to substantiate the charges against the I
Party as no charge sheet is served on the I party or produced
before the court and in view of the I Party being taken to
service w.e.f. 21.03.2011 agreeing to pay him current wages
it is just and proper to direct the II Party to pay him 50 % of
the backwages and to treat the period from the date of
impugned termination of service till taking him back to the
services as continued service treating this order as Award
for the following.
REASONS
6. Sh. C K Vijay Kumar whose affidavit was filed on
behalf of the II party to substantiate the Preliminary Issue
though it is stated in his affidavit that he was one of the
member of the Board of Enquiry to investigate into the
reports of Sh. K Nagappa, Driver/Gardener (I Party) when
he was examined on oath In continuation of his affidavit
stated that he filed this affidavit being the primary teacher
in primary school and one of the Board of member to
investigate into the reports against the I party. In his cross-
examination when he was asked how many members the
board of enquiry consisted he stated that he is only member
of the board of enquiry and that Principal of the school has
nominated him as the member of the board of enquiry by
issuing a letter in that regard but no such letter nominating
him as the member of the board of enquiry or constituting
any board of enquiry is produced. Further he states in his
cross-examination that in the enquiry he Just acted as
translator and is not aware of any other thing regarding the
enquiry. On the other hand the file produced by the II party
as enquiry file from which Ex M-1 to Ex M-4 have been got
exhibited through MW 1 indicates that there was a exparte
report obtained from a Board of Enquiry which is got
exhibited as Ex M-4and after receiving that report issued a
show cause notice i.e. got exhibited as Ex M-2 to show
cause why his services should not be terminated on
disciplinary grounds without holding any Domestic
Enquiry. I believe having regard to this position the II Party
management has taken back to services I party w.e.f.
21.03.2011 agreeing to pay him the current wages.
Absolutely there is no indication in the file produced by
the II party as enquiry file to suggest or indicate the I party
having been subjected to the Domestic Enquiry by serving
charge sheet for any misconduct on his part. If at all after
obtaining an Ex-parte Investigation Report got exhibited
as Ex M-1, the II Party has issued the show cause notice
produced at Ex M-2 and I Party failed to give reply It would
have taken a decision to hold Domestic Enquiry, serve
charge sheet, appoint the Enquiry Officer and subjected
him to the enquiry and after receiving the enquiry report
would have taken appropriate decision to punish him. When
no charge sheet is either served on the I Party or produced
before the court as one intended to enquire into even this
court cannot proceed to take the evidence of II Party for
any misconduct against the I Party. Apart from this as
already adverted to by me above having regard to such a
position of the matter the II party having taken the I Party
into service w.e.f. 21.03.2011 the only point that remains for
the consideration is whether it can deny him the wages for
the period from date of termination of service till he is taken
back into secvices. When the I party had been terminated
from services without holding any Domestic Enquiry and
he has been reinstated into service w.e.f. 21.03.2011 there is
no reason to deny him the wages for the period from the
date of his termination of his service till he is taken back to
services. However, having regard to the nature of services
of the I party and no work is done by him during this
period, I feel it just and proper to direct the II party to pay
him 50% of the wages payable to him for this period and to
treat this period as continued service to meet the ends of
justice. In the result, I pass the following
ORDER
The Preliminary Issue is answered in the Negative
i.e. no Domestic Enquiry has been conducted as such his
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
483
termination is illegal and as he has already been reinstated
into service w.e.f. 21.03.2011 agreeing to pay him current
wages the II party shall pay him 50 % of the wages payable
from date of his termination till he has been reinstated into
service on 21.03.2011 and also to treat this period as
continued service. This order shall be treated as Award
and sent for publication in the gazette.
S. N. NAVALGUND, Presiding Officer
ubZ fnYyh] 2 tuojh] 2014
dkñvkñ 225.—vkS|ksfxd fookn vfèfu;e 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj ,rí~okjk iqjLdkj
izdkf'kr djrk gSa ¼lanHkZ la[;k CGITA 1201 @2004½ Fks fMikVZesaV
vkWQ iksLV~l ds izcaèra= ds laca) 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;] vgenkckn ds iapkV lanHkZ la[;k
CGITA 1201 @2004½ dks izdkf'r djrh gS tks dsUnzh; ljdkj dks
31@12@2013 dks izkIr gqvk FkkA
[Qkñ lañ ,y&40012@14@2002&vkbZvkj ¼Mhñ;wñ½]
ihñ dsñ os.kqxksiky] vuqHkkx vfèdkjh
New Delhi, the 2nd January, 2014
S.O. 225.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Reference
(CGITA) 1201/2004) of the Central Government Industrial
Tribunal/Labour Court, Ahmedabad now as shown in the
Annexure in the Industrial Dispute between the employers
in relation to the management of The Department of Posts,
Ahmedabad and their workman, which was received by
the Central Government on 31/12/13.
[F. No. L-40012/14/2002-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL -CUM-LABOUR COURT,
AHMEDABAD
Present :
Binay Kumar Sinha,
Presiding Officer, CGIT cum Labour Court,
Ahmedabad, Dated 21st October, 2013
Refernce: (CGITA) No-1201/2004
Reference (I.T.C) No. 16/2002 (old)
Adjudication Order No. L-40012/14/2002 [(IR (DU)] New
Delhi, Dated 03.06.2002
1. The Sub Post Master
Dept. Of Post,Head Office,
Veraval, Junagarh
2. The Post Master general, Rajkot region
3. The Superintendent of Post Offices,
Department of Post office, Gandhidham, District-Junagarh
4. The Chief Post Master General, Gujarat Circle,
Ahmedabad
......(Management) First Party
And
Their Workman,
Sh. Jayantilal Ravalal Kecha
Tagore Society No.2,
Near Karmyog, Dabhor Road,
Veraval
Dist: Junagarh
........(Workman) Second Party
For the first party:
Shri Pravinchandra M. Rami,
Asst. Govt. Pleader & Advocate
(Labour & Industrial Court)
For the second party:
None
AWARD
The Central Govermment/Ministry of Labour, New
Delhi by its adjudication order No L-40012/14/2002 (IR(DU)],
dated 03.06.2002 referred the dispute under clause (d) of
sub-section (1) and sub-section (2A) of section 10 of the
Industrial Dispute Act, 1947, for adjudication to the
Industrial Tribunal, Rajkot on the terms of reference in
Schedule:
SCHEDULE
"Whether the action of the management of Supt.
Post office, Junagadh/Sub Post Master, Veraval to
discontinue the services of Sh. Jayantilal Revalal
Kacha and not to give employment is justified and
legal? If not, what relief the workman is entitled for
and since when?"
2. Upon notices the parties appeared and filed
pleadings. The 2nd party (workman) as per statement of
claim (Ext 2) was serving at Veraval sub post office as E.D.
Packer since 1986. He rendered his service with sincerity.
But even then he was discharged from his service w.e.f.
07.01.2001 without serving any notice or notice pay in lieu
there of or without retrenchment compensation. He
requested the 1st party to reinstate him in service but all
went invain, thereafter he served demand notice on
18.04.2002. His juniors were retained at the time of his
discharge. He tried elsewhere but could not get
engagement. He is not gainfully employed. On this scores,
prayer is for his reinstatement with full back wages and for
cost.
3. As against this, the contention of the 1st party as
per w.s. Ext.3 is that the workman was engaged as substitute
in leave vacancy of regular staff and he never completed
484
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
240 days in any calendar year so he was not entitled for
notice pay and retrenchment compensation. It is untrue
that juniors were retained at the time of discharge of the
workman. The reference is not maintainable and is liable to
be rejected.
4. The 2nd party workman left doing pairvi in this
case when the case record was pending for leading
evidence by the 2nd party in the Industrial Court, Rajkot.
Thereafter case record received on transfer to this tribunal.
But even on issuance of notices, the 2nd party, remained
absent and did not attend in this case whereas the 1st
parties remained attending the court through its advocate
(A.G.P.)-on dates. On behalf of the 1st party pursis were
being filed that the case is fixed, for leading evidence of the
workman and the 1st party remains ready to cross-examine
him but no evidence adduced and the workman used to
remain absent and prayed to close the case of the workman
and to dismiss the reference.
5. The workman who raised dispute as result
reference was sent for adjudication, but workman side
appears to have lost interest.
This reference is devoid of any merit and so is
dismissed exparte.
The terms of reference is answered in favour of the
management of the 1st party that the action of the 1st party
is justified in discontinuance of service of the workman
Jayantilal Rewalal Katecha w.e.f. 07.01.2001. The workman
is not entitled to any relief.
This is my Award.
Let a copy of award sent to the appropriate
Government for publication u/s 17(1) of the I.D. Act.
BINAY KUMAR SINHA, Presiding Officer
ubZ fnYyh] 2 tuojh] 2014
dkñvkñ 226.—vkS|ksfxd fookn vfèfu;e 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k es dsUnzh; ljdkj ,rn~}kjk iqjLdkj
izdkf'kr djrk gS ¼lanHkZ la[;k 29@2005½ Fks tujy esustj] ch,l,u,y
ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqcaè
esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèdj.k
,oa Je U;k;ky;] cSaxyksj ds iapkV lanHkZ la[;k 29@2005 izdkf'kr
djrh gS tks dsUnzh; ljdkj dks 31@12@2013 dks izkIr gqvk FkkA
[Qkñ lañ ,y&40011@2@2005&vkbZ vkj ¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vfèdkjh
New Delhi, the 2nd January, 2014
S.O. 226.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Case No.29/2005)
of the Central Government Industrial Tribunal/Labour
Court, Bangalore now as shown in the Annexure in the
Industrial Dispute between the employers in relation to the
management of The General Manager, BSNL, Belgaum and
their workman, which was received by the Central
Government on 31/12/13.
[No. L-40011/2/2005-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
BANGALORE
DATED
:
26th NOVEMBER 2013
PRESENT
:
Shri S N NAVALGUND,
Presiding Officer
C R No. 29/2005
I Party
II Party
Sri C M D'souza,
The General Manager,
C/o Sri Ashok M Kambi,
O/o the General Manager,
Plot No. 2, Telecom
BSNL, Bharat Telecom
Layout, Sadashivanagar,
District, Swaroop Plaza,
BELGAUM — 590 001.
Tilakwadi,
BELGAUM --590 006.
Appearances
I Party
:
Shri A M Kambi
Authorised Representative
II Party
:
Shri Y Hari Prasad
Advocate
AWARD
1. Initially the Central Government vide Order L-
40011/2/2005-IR(DU) dated 31.05.2005 had made this
reference for adjudication inadvertently to the CGIT-cum-
Labour Court, Kokatta on the following schedule for
adjudication and later by issue of corrigendum dated
08.07.2005 made over the reference to this tribunal
SCHEDULE
"Whether the action of the management of BSNL, in
not offering re-employment to the said 23 retrenched
workmen as per Section 25 H of the Industrial Dispute
Act, 1947 is justified or not? If not, to what relief the
aggrieved workmen are entitled to?"
2. On receipt of the reference and the corrigendum
while registering it in C R 29/2005 when notices were issued
to both the sides they entered their appearance and the
Authorised Representative appearing for the I Party under
the signature of one of the workman (Sl. No. 9 of the list of
workmen annexed to the reference) filed claim statement
and the learned advocate appearing for the II Party filed
the counter statement under the signature of Assistant
General Manager (Admn.), Office of the General Manager
Telecom Belgaum.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
485
3. In the claim statement it is alleged the 23 workmen
covered in this reference who were earlier retrenched by
the employer/II Party are refused to be re-employed in the
vacancies that arose after their retrenchment which is
violative of Rule 78 of Industrial Dispute (Central) Rules
1957 and Section 25H of ID Act, 1947. It is further alleged
the II Party instead of re-employing these retrenched
workmen resorted to engagement of contract labours which
were previously occupied by regular workers which is an
unfair labour practice under the provisions of ID Act. It is
further alleged that there are about 700 vacancies of
Mazdoors in Belgaum Telecom District which are being
manned by contract and other type of labourers which is
evident from the correspondence between the management
and CGMT, Karnataka Circle, Bangalore requesting for 695
regular posts of Mazdoors vide its OM NO. E-3/ROC/RM/
K and that most of the persons is who are employed as
Security Guards are doing regular and perennial nature of
work in the establishment showing them as Security Guards
to avoid legal complications of labour laws. Hence, the ll
Party be directed to re-employ them.
4. In the counter statement it is contended the case
of these 23 workmen was in the first instance rejected by
the Ministry of Labour, GOI, New Delhi considering as not
fit for reference for belatedly raising this dispute after long
delay without justifying reasons and that there were no
vacancy existing to employ them and that the contract
tenders were assigned for work of different natures for
safe guarding the telecom installations and not for mazdoor
posts for which there is no sanction at all and some of them
were being employed after 1985 and some of them had not
even completed 240 days as such they are not entitle for
any re-employment.
5. When the matter was posted for Evidence initially
the learned advocate appearing for the lI Party had filed
the affidavit of one V Ravishankar, Assistant General
Manager (Admn.) and before examining him on oath while
filing an application on 25.02.2011 discarding the said
affidavit evidence filed the fresh affidavit of M K Waingade,
Assistant General Manager (Admn) on 25.05.2011 and
additional affidavit on 24.08.2011 swearing to the facts of
the counter statement and by examining him on oath as
MW 1 got exhibited Ex M-1 to Ex M-20 the detailed
description of which are narrated in the annexure. Inspite
of providing sufficient opportunities since MW 1 was not
cross-examined he was discharged from cross-examination
and after affording several opportunities to lead rebuttal
evidence to the I Party since the same was not availed the
matter was posted for arguments and the learned advocate
appearing for the II Party alone filed his written arguments
reiterating the contents, of counter statement.
6. As adverted to by me above the I Party except
filing a claim statement did not participate in the proceedings
and left the evidences lead by the II Party through MW 1
unchallenged either by his cross examination or leading
any rebuttal evidence. Section 25H gives preference to a
retrenched workman for being re-employed whenever the.
employer had occasion to employ another hand and this
preference is also not available to the casual labourers and
they can claim the preference in case of casual employments
only. As stated in the claim statement itself they worked as
Mazdoors whereas the subsequent availment of service of
contract workers is as Security Guards and they failed to
prove that they are actually employed to do the work of
mazdoors in the name of Security Guards to avoid the legal
complications arising out of labour law as contended by
them. The initial burden was on the I Party workmen that
they worked against the existing post as a temporary
employees/mazdoors and after their retrenchment some
others have been employed through contract labours but
they having failed to discharge this burden it cannot be
held that they were entitle for the benefit of Section 25H or
there has been violation of the mandate of Section 25H and
Rule 78 as contended by them. Under the circumstances,
the reference is liable to be rejected holding that the action
of the management of BSNL is not offering re-employment
to the said 23 retrenched workmen as per section 25-H of
the Industrial Disputes Act 1947 is justified in the result, I
pass the following.
ORDER
The reference is rejected holding that the action of
the management of BSNL is not offering re-employment to
the said 23 retrenched workmen as per Section 25-H of the
Industrial Dixputes Act, 1947 is justified and that they are
entitle for any relief.
S.N. NAVALGUND, Presiding Officer
ANNEXURE — I
Witnesses examined on behalf of Management:
MW 1 -Sh. M K Waingade, Assistant General Manager
Witnesses examined on behalf of Workman:
Nil
Documents exhibited on behalf of the Management:
Ex M-1
Letter of Sh. K V B Unny, Desk Officer addressed
to II Party in respect of FOC No. 8/30/93-AM
dated 28.03.1994
Ex M-2
Letter of Sh. K V B Unny, Desk Officer addressed
to II Party in respect of FOC No. 8/20/93-AM
dated 28.02.1994
Ex M-3
Letter of Sh. K V B Unny, Desk Officer addressed
to II Party in respect of FOC No. 8/7/94-AM
dated .02.1996
Ex M-4
Letter of Sh. K V B Unny, Desk Officer addressed
to II Party in respect of FOC No. 8/25/93-AM
dated 28.02.1994
486
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
Ex M- 5
Letter of Sh. K V B Unny, Desk Officer addressed
to II Party in respect of FOC No. 8/25/93-AM
dated 28.02.1994
Ex M-6
Letter of Sh. K V B Unny, Desk Officer addressed
to II Party in respect of FOC No. 8/54/93-AM
dated 27.08.1994
Ex M-7
Letter of Sh. K V B Unny, Desk Officer addressed
to II Party in respect of FOC No. 8/49/93-AM
dated 04.05.1994
Ex M-8
Letter of Sh. K V B Unny, Desk Officer addressed
to II Party in respect of FOC No. 8/38/95-AM
dated 27.12.1995
Ex M-9
Letter of Sh. K V B Unny, Desk Officer addressed
to II Party In respect of FOC No. 8/5/94-AM
dated 30.05.1994
Ex M-10
Letter of Sh. K V B Unny, Desk Officer addressed
to II Party in respect of FOC No. 8/3/94-AM
dated 26.05.1994
Ex M-11
Letter of Sh. K V B tunny, Desk Officer addressed
to II Party in respect of FOC No. 8/31/93-AM
dated 28.03.1994
Ex M-12
Letter of Sh. K V B tunny, Desk Officer addressed
to II Party in respect of FOC No. 8/42/93-AM
dated 02.05.1994
Ex M-13
Letter of Sh. K V B tunny, Desk Officer addressed
to II Party in respect of FOC No. 8/27/93-AM
dated 28.02.1994
Ex M-14
Letter of Sh. K V B tunny, Desk Officer addressed
to II Party in respect of FOC No. 8/51/93-AM
dated 05.05.1994
Ex M-15
Letter of Sh. K V B tunny, Desk Officer addressed
to II Party In respect of FOC No. 8/28/93-AM
dated 28.02.1994
Ex M-16
Letter of Sh. K V B tunny, Desk Officer addressed
to II Party in respect of FOC No. 8/4/94-AM
dated 03.05.1994
Ex M-17
Letter of Sh. K V B tunny, Desk Officer addressed
to ll Party in respect of FOC No. 8/6/94-AM
dated 31.05.1994
Ex M-18
Letter of Sh. K V B tunny, Desk Officer addressed
to II Party In respect of FOC No. 8/52/93-AM
dated 05.05.1994
Ex M-19
Letter of Sh. K V B tunny, Desk Officer addressed
to II Party in respect of FOC No. 8/36/93-AM
dated 31.03.1994
Ex M-20
Letter of Chief General Manager Telecom,
Bangalore addressed to Chief General Manager,
Chennal, dated 24.12.2002 regarding
regularisation of temporary status mazdoor—
Sh. S K Dinde
Documents exhibited on behalf of the I party:
Nil
ubZ fnYyh] 2 tuojh] 2014
dkñvkñ 227.—vkS|ksfxd fookn vfèfu;e 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k es dsUnzh; ljdkj ,rn~}kjk iqjLdkj
izdkf'kr djrk gS ¼lanHkZ la[;k CGIT/NGP/06/2011-12½ Fks Mk;jsDVj
uhjh] ukxiqj] eSllZ ,Xys flD;wfjVh ,aM ilZusy lfoZlst eqEcbZ ds
izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqcaè esa
fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vfèdj.k ,oa
Je U;k;ky;] ukxiqj ds iapkV lanHkZ la[;k CGIT/NGP/06/2011-
12 izdkf'kr djrh gS tks dsUnzh; ljdkj dks 31@12@2013 dks izkIr
gqvk FkkA
[Qkñlañ ,y&42011@57@2010&vkbZ vkj ¼Mh;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vfèdkjh
New Delhi, the 2nd January, 2014
S.O. 227.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Case No.CGIT/
NGP/06/2011-12) of the Central Government Industrial
Tribunal/Labour Court , Nagpur now as shown in the
Annexure in the Industrial Dispute between the employers
in relation to the management of The Director, NEERI,
Nagpur , M/s Eagle Security & Personnel Services, Mumbai
and their workman, which was received by the Central
Government on 31/12/13.
[F. No. L-42011/57/2010-IR(DU)]
P. K. VENUGOPAL, Section Officer
ANNEXURE
BEFORE SHRI J. P. CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No.CGIT/NGP/06/2011-12
Date: 20.11.2013
Party No.1(a)
:
The Director, NEERI,
Nehru Marg, Nagpur-20
(b)
:
M/ s. Eagle Security & Personnel
Services
Contractor, Rep. by Shri C.H. Sharma,
Prop., 12, Nirmala CHS Ltd., J.P.Road,
Andheri (W), Mumbai-58
Versus
Party No.2
:
President/ Secretary, NEERI Thekedari
Mazdoor Sangh, O/o. BMS, Opp. of
Apna Bhandar, Mandir Marg, Sitabuldi,
Nagpur
AWARD
(Dated: 20th November, 2013)
In exercise of the powers conferred by clause (d) of
sub-section (1) and sub-section 2(A) of section 10 of
Industrial Disputes Act, 1947 (14 of 1947) ("the Act" in
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
487
short), the Central Government has referred the industrial
dispute between the employers, in relation to the
management of NEERI and their union, NEERI Thekedari
Mazdoor Sangh, for adjudication, as per letter No.L-42011/
57/2010-IR (DU) dated 15.04.2011, with the following
schedule:-
SCHEDULE
"Whether the action of the Respondent management
of NEERI as well as contractor M/s. Eagle Security
and Personnel Services Industrial and Commercial
Service for suspending the six contract workers w.e.f.
10.08.2009 to 16.08.2009 and for non-payment of
wages for the period from 10.08.2009 to 13.08.2009 to
all the remaining contract workers who protested the
action of the management of NEERI is legal and
justified? What relief all the contract workers of
NEERI are entitled to?"
2. On receipt of the reference, the parties were noticed
to file their respective statement of claim and written
statement and accordingly, the union, "NEERI Thekedari
Mazdoor Sangh," ("the union" in short), filed the statement
of claim and the management of NEERI, ("Party No. 1" in
short) filed its written statement.
The case of the workmen as presented by the union
in the statement of claim is that there were about 174 contract
workers in the industrial establishment of party No.1(a)
and out of them, 142 workers were engaged in the office of
party No.1(a) at Nagpur and the rest of them were spread
all over the country in various zonal laboratories and at the
relevant point of time, M/s. Eagle Security & Personnel
services, Mumbai, party No.1(b) was the contractor in
charge of the Sham and Bogus contract system, being
employed by the party No.1(a) since the last 20 years to
engage workers, in work of regular and permanent nature,
so as to deny the workers the benefits of regularisation
and permanency in the establishment of party No.1(a) and
separate proceedings have been initiated by it to declare
the sham and bogus system of contract labour as illegal
and for the regularisation and permanency of the workers.
It is further pleaded by the union that the contract workers
are direct workers of party No.1 and the six workmen,
namely, Vinod Pawar, Krishna Sagarkar, Sudhir Werulkar,
Sushil Wase, Rajendra Lilare and Anand Raut though did
not commit any misconduct, were orally suspended for six
days from 10.08.2009 to 15.08.2009, without following the
principles of natural justice and therefore their suspension
is illegal ab initio and the illegal suspension of the aforesaid
six workmen created tension and there was some
disturbance and everyone silently put off the work
wondering about the action of party No.1(a) and there was
no strike as such and without following the principles of
natural justice and without giving any letter to the rest of
employees about any act of alleged illegal strike restored
by them, their wages for the period from 10.08.2009 to
13.08.2009 was deducted by Party No. 1(a) illegally and the
six workmen named above are entitled for their salary for
the period from 10.08.2009 to 15.08.2009 and the rest of the
136 employees are entitled for their salary from 10.08.2009
to 13.08.2009.
3. The party No.1(a) in the written statement has
pleaded inter-alia that it is neither an industry nor an
industrial establishment and it is a research institute and it
is one of the National RND laboratory of council of scientific
and Industrial Research (CSR), New Delhi, which is an
autonomous body and a society registered under the
Societies Registration Act, which comes in aegis of Ministry
of Science Technology, Govt. of India and it is purely a
research oriented institute and as such, it does not fall
within the definition of "industry" and as such, the dispute
as raised is not maintainable. It is further pleaded by party
No.1(a) that it is the Principal employer and is duly licenced
under the Contract Labour (Regulation and Abolition) Act
and party No.1(b) is the independent contractor to whom
the contract was awarded at the relevant time and who had
engaged the employees and hence, there was no contractual
relationship between it and the workmen and on that count
also, the reference is liable to be answered in the negative
and the reference is also not maintainable as becaue, the
workmen through the union and party No.1(b) had already
recorded a settlement on 12.08.2009 before the ALC and
the workmen had agreed to join duties on "no work no
pay" basis and the workmen are esstopped from acting
contrary to the agreed settlement and they have suppressed
these facts before the Tribunal and have not approached
the Tribunal with clean hands. The further case of the party
No.1(a) is that it had awarded contract to party No.1(b) for
a period of one year w.e.f. 01.09.2008 to 31. 08.2009 for 3
jobs, under different heads and a letter of award on agreed
terms and conditions was given to party No.1(b) by it on
21.08.2008 and on 25.07.2009, the six workmen were deployed
by party No.1(b) to work with it and all of them were found
to have consumed alcohol in its premises, which was
detected during regular inspection by security in charge at
5.PM and a written report was submitted by the security
incharge on 27.07.2009 and the party no.1(b) was summoned
by it and the party No.1(b) visited Nagpur on 31.07.2009
and in view of the misconduct committed by the said six
workmen, it directed the party No.1(b) to discontinue them
from its services at least for one month and on 10.08.2009,
the party No.1(b) did not allow those six workmen to work
in NEERI and as such, they were not allotted the respective
tokens and there was no bar to engage them by party
No.1(b) at some other places and for that, the other workmen
engaged by party No.1(b) resorted to illegal strike and did
not report for their respective jobs, even though, they were
not prevented from performing their jobs and the indefinite
strike restored by the workmen was reported to Dhantoli
Police Station and to the Collector and on 12.08.2009, the
settlement was arrived at by the workmen and party No. 1
488
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
(b) and it was agreed between them that the suspension
period of the six workmen would be reduced to 7 days and
they would be permitted to join duty with effect from
17.08.2009, provided the other workmen would withdraw
the illegal strike w.e.f. 13.08.2009 and the period of absence
of the workmen would be treated as no work no pay and
inspite of such settlement, the workmen did not report to
work on 13.08.2009 and with the intervention of the MLA,
Shri Devendra Fadnavis, the workmen reported to work
from 1.30 PM on 14.08.2009 and as such, the workmen are
not entitled to any relief.
4. It is to be mentioned here that the party No.1(b),
the contractor, Eagle Security and Personnel Services
though appeared in the case on 07.06.2011 on receipt of
notice and took time to file written statement, thereafter,
neither it appeared nor filed any written statement nor
contested the case.
5. It is also necessary to mention here that after
receipt of the copy of the written statement on 04.07.2012,
neither the union nor the workmen appeared in the case
and contested the same. Even though sufficient
opportunities were given to the union to adduce evidence
in support of its claim, no evidence was adduced. So, the
reference was closed on 23.10.2013 and the same was
posted for award.
6. In the written notes of argument, it was mentioned
by the learned advocate for the party No.1(a) that as the
union has failed to produce any evidence in support of its
claim, the reference is to be answered in the negative.
7. It is well settled that when a party challenges the
legality of an order, the burden lies upon him to prove the
illegality of the order and if no evidence is produced, the
party invoking the jurisdiction of the court must fail.
In this case, neither the union nor the workmen have
adduced any evidence in support of their claim. So applying
the settled principles as mentioned above to the case in
hand, it is found that the workmen are not entitled to any
relief and the reference cannot be answered in their favour.
Hence, it is ordered:-
ORDER
The reference is answered in the negative. The union
as well as the workmen are not entitled to any relief.
J.P. CHAND, Presiding Officer
ubZ fnYyh] 2 tuojh] 2014
dkñvkñ 228.—vkS|ksfxd fookn vfèfu;e 1947 ¼1947
dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj nh fMikVZesaV
vkWQ iksLV~l ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds
chp vuqcaè esa fufnZ"V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd
vfèdj.k ,o Je U;k;ky;] vgenkckn ds iapkV lanHkZ la[;k
CGITA 88@2005½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks
31@12@2013 dks izkIr gqvk FkkA
[Qkñ lañ ,y&40012@56@2005&vkbZ vkj ¼Mh ;w½]
ihñ dsñ os.kqxksiky] vuqHkkx vfèdkjh
New Delhi, the 2nd January, 2014
S.O. 228.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award [Reference
(CGITA)88/2005] of the Central Government Industrial
Tribunal/Labour Court , Ahmedabad now as shown in the
Annexure in the Industrial Dispute between the employers
in relation to the management of The Department of Posts,
Jamnagar and their workman, which was received by the
Central Government on 31/12/13.
[F. No. L-40012/56/2005-IR(DU)]
P.K.VENUGOPAL Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
AHMEDABAD
Present....
Binay Kumar Sinha,
Presiding Officer, CGIT cum Labour Court, Ahmedabad,
Date: 21st October, 2013
Reference (CGITA) NO.88/05
Adjudication order No. L-40012/56/2005 (IR(DU)), New
Delhi dated 26.09.2005
The Superintendent of Post offices,
Department of Post, Jamnagar Division,
Jamnagar-362001
.....(Management) First Party
And
Their Workman
Shri N.N. Chandravadia
Bharatpur, Tal: Bharivad
Jamnagar-361001
...(workman)Second Party
For the First Party
: Shri Pravinchandra M. Rami
Asst. Govt. Pleader & Advocate
(Labour & Industrial Court)
For the Second Party : None
AWARD
The Central Government /Ministry of Labour, New
Delhi by its adjudication order No. L-40012/56/2005-IR(DU))
dated 26.09.2005 referred the dispute for adjudication on
the terms of reference in Schedule:
SCHEDULE
"Whether the action of the superintendent of post
offices, Jamnagar in terminating the services of Shri
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
489
N.N. Chadravadiya w.e.f. 02.07.2003 although he has
completed more than 240 days in several years under
the same management as GDS BPM is legal and
justified? If not what relief the workman concerned
is entitled to?"
2. Upon notice for filing statement of claim and w.s.
and documents the parties appeared. The 2nd" party
workman filed statement of claim (Ext.7) stated that he was
engaged to work on the vacant post from 28.12.1998 at
Bharatpur village post office by the 1st party and was
completing 240 days of work every year, but without giving
notice or notice pay and retrenchment compensation he
was orally terminated w.e.f. 02.07.2003 prayer is to declare
the order of termination unjust, improper and illegal for his
reinstatement with back wages and continuity of services
with cost.
3. The contention of 1st party as per w.s. (Ext.10) is
that the workman under temporary order was engaged by
Extra Department Branch Post Master 18.12.1998, denying
that workman was working on vacant post is permanent
way. He was appointed purely on stop gap arrangement at
Bharatpur branch office under Bhanvad Sub Post Office.
The regular incumbent was under suspension and was put
off duty so the workman was engaged temporarily. The
provision of temporary arrangement and liability of
termination is also clearly mentioned in his initial
appointment. The claim of workman is false and so
reference is not maintainable and is liable to be dismissed.
4. The case is running on date for evidence on behalf
of the 2nd party workman but the 2nd party workman is
absent since after submitting statement of claim and so
appears to have cost interest in this case. On the other
hand, the 1st party remains in attendance through A.G.P.
P.M. Rami who filed pursis Ext.14, 15 and 16 to stop the
right to lead evidence by the 2nd party workman. By order
dated 21.10.2013 below Ext.16 the right of 2nd party to lead
evidence was closed.
5. The pleadings of 2nd party laying claim is not
substantive evidence rather a party is required to prove its
case/claim through evidences —oral and documentary. But
the 2nd party (workman) has failed to establish his claim in
this case. So the order is passed that the action of the 1 st
party in terminating the services of 2nd party is legal and
justified. The 2nd party is not entitled to any relief.
This reference is dismissed.
BINAY KUMAR SINHA, Presiding Officer
ubZ fnYyh] 3 tuojh] 2014
dkñvkñ 229.—vkS|ksfxd fookn vfèfu;e] 1947] 1947
dk ¼14 fd èkjk 17½ ds vuqlj.k esa dsanzh; ljdkj e/; fcgkj
xzkeh.k cSad ds izcaèra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds
chp vuqcaè esa fufnZ"V vkS|ksfxd fookn esa dsanzh; ljdkj vkS|ksfxd
vfèdj.k èuckn ds iapkV lanHkZ la[;k 6@2013] 7@2013] 9@2013]
10@2013] 13@2013] 14@2013] 15@2013] 16@2013] 17@2013]
18@2013] 19@2013] 21@2013] 22@2013] 23@2013] 24@2013]
25@2013] 26@2013] 27@2013] 28@2013] dks izdkf'kr djrh gS] tks
dsanzh; ljdkj dks 03@01@2014 dks izkIr gqvk FkkA
[Qkñ lañ ,y&12011@08@2013&vkbZ vkj ¼ch&I½]
Qkñ lañ ,y&12011@12@2013&vkbZ vkj ¼ch&I½]
Qkñ lañ ,y&12011@20@2013&vkbZ vkj ¼ch&I½]
Qkñ lañ ,y&12011@26@2013&vkbZ vkj ¼ch&I½]
Qkñ lañ ,y&12011@24@2013&vkbZ vkj ¼ch&I½]
Qkñ lañ ,y&12011@23@2013&vkbZ vkj ¼ch&I½]
Qkñ lañ ,y&12011@45@2013&vkbZ vkj ¼ch&I½]
Qkñ lañ ,y&12011@47@2013&vkbZ vkj ¼ch&I½]
Qkñ lañ ,y&12011@49@2013&vkbZ vkj ¼ch&I½]
Qkñ lañ ,y&12011@15@2013&vkbZ vkj ¼ch&I½]
Qkñ lañ ,y&12011@09@2013&vkbZ vkj ¼ch&I½]
Qkñ lañ ,y&12011@10@2013&vkbZ vkj ¼ch&I½]
Qkñ lañ ,y&12011@18@2013&vkbZ vkj ¼ch&I½]
Qkñ lañ ,y&12011@27@2013&vkbZ vkj ¼ch&I½]
Qkñ lañ ,y&12011@25@2013&vkbZ vkj ¼ch&I½]
Qkñ lañ ,y&12011@44@2013&vkbZ vkj ¼ch&I½]
Qkñ lañ ,y&12011@46@2013&vkbZ vkj ¼ch&I½]
Qkñ lañ ,y&12011@48@2013&vkbZ vkj ¼ch&I½]
Qkñ lañ ,y&12011@50@2013&vkbZ vkj ¼ch&I½]
lqefr ldykuh] vuqHkkx vfèdkjh
New Delhi, the 3rd January, 2014
S.O. 229.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 6/2013,
7/2013, 9/2013, 10/2013, 13/2013, 14/2013, 15/2013, 16/2013,
17/2013, 18/2013, 19/2013, 21/2013, 22/2013, 23/2013,
24/2013, 25/2013, 26/2013, 6/2013, 27/2013, 28/2013 of the
Cent. Govt. Indus. Tribunal-cum-Labour Court No. 1,
Dhanbad as shown in the Annexure in the Industrial Dispute
between the management of Madhya Bihar Gramin Bank
and their workman, received by the Central Government on
3/1/2014.
[F. No. L-12011/08/2013-IR(B-I),
F. No. L-12011/09/2013-IR(B-I),
F. No. L-12011/12/2013-IR(B-I),
F. No. L-12011/10/2013-IR(B-I),
F. No. L-12011/20/2013-IR(B-I),
F. No. L-12011/18/2013-IR(B-I),
F. No. L-12011/26/2013-IR(B-I),
F. No. L-12011/27/2013-IR(B-I),
F. No. L-12011/24/2013-IR(B-I),
F. No. L-12011/25/2013-IR(B-I),
F. No. L-12011/23/2013-IR(B-I),
F. No. L-12011/44/2013-IR(B-I),
F. No. L-12011/45/2013-IR(B-I),
490
THE GAZETTE OF INDIA : JANUARY 18, 2014/PAUSA 28, 1935
[PART II—SEC. 3(ii)]
F. No. L-12011/46/2013-IR(B-I),
F. No. L-12011/47/2013-IR(B-I),
F. No. L-12011/48/2013-IR(B-I),
F. No. L-12011/49/2013-IR(B-I),
F. No. L-12011/50/2013-IR(B-I),
F. No. L-12011/51/2013-IR(B-I)]
SUMATI SUKLANI, Section Officer
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL NO. 1, DHANBAD
In the matter of reference U/S 10 (I) (d) (2A) of 1.D.Act.
1947
Reference Nos : 6/2013, 7/2013, 9/2013, 10/2013, 13/2013,
14/2013, 15/2013, 16,2013, 17/2013, 18/2013,
19/2013, 21/2013, 22/2013, 23/2013,
24/2013, 25/2013, 26/2013, 27/2013, 28/2013
Parties:
Employer in relation to the management of
Madhya Bihar Gramin Bank, Patna
AND
Their workmen.
Presient
:
Sri R.K.Saran , Presiding Officer.
Appearances :
For the Employers
:
None
For the workman.
:
Sri Arun Kumar Singh, Rep.
State : Bihar
Industry : Banking
Dated 11/11/2013
AWARD
The central Government in the Ministry of Labour
has, in exercise of the powers conferred by clause (d) of
sub-section (1) and sub-section (2A) of section 10 of the
Industrial Disputes Act, 1947 referred the following dispute
for adjudication to this Tribunal:
Ref. No. 6/2013 [Order No. L-12011/08/2013-IR (B-I)
dated 17/5/2013]
Schedule
"Whether the action of the management of
Madhya Bihar Gramin Bank was justified in
terminating the services of the workman who
worked as part time sweeper in the branch of
the bank for more than 13 years. If not what
relief they are entitled for?"
Ref. No. 7/2013 [Order No. L-12011/09/2013-IR (B-I)
dated 17/5/2013]
Schedule
"Whether the action of the management of
Madhya Bihar Gramin Bank was justified in
terminating the services of the workman who
worked as part time sweeper in the branch of
the bank for more than 13 years. If not what
relief they are entitled for?"
Ref. No. 9/2013 [Order No. L-12011/12/2013-IR (B-I)
dated 20/5/2013]
Schedule
"Whether the action of the management of
Madhya Bihar Gramin Bank was justified in
terminating the services of the workman who
worked as part time sweeper in the branch of
the bank for more than 13 years. If not what
relief they are entitled for?"
Ref. No. 10/2013 [Order No. L-12011/10/2013-IR (B-I)
dated 28/5/2013]
Schedule Whether the action of the management of
Madhya Bihar Gramin Bank was justified in
terminating the services of the workman who
worked as part time sweeper in the branch of
the bank for more than 13 years. If not what
relief they are entitled for?"
Ref. No. 13/2013 [Order No. L-12011/20/2013-IR (B-I)
dated 4/6/2013]
Schedule
"Whether the action of the manogetntint or
Madhya Bihar Grainin Bank was justified in
terminating the services of the workman who
worked as part time sweeper in the branch of
the bank for more than 13 years. If not what
relief they are entitled for?"
Ref. No. 14/2013 ([Order No. L-12011/18/2013-IR (B-I)
dated 4/6/2013]
Schedule
"Whether the action of the management of
Madhya Bihar Gramin Bank was justified in
terminating the services of the workman who
worked as part time sweeper in the branch of
the bank for more than 13 years. If not what
relief they are entitled for?"
Ref. No. 15/2013 [Order No. L-12011/26/2013-IR (B-I)
dated 17/6/2013]
Schedule
" Whether the action of the management of
Madhya Bihar Gramin Bank was justified in
terminating the services of (1) Sri Madan
Mohan Ram (2) Sri Parmeshwar Prasad (3)
Nagendra Kumar (4) Sri Deepak Kumar who
worked as part time sweeper in the branch of
the bank for more than 13 years. If not what
relief they are entitled for?"
Ref. No.16/2013 [Order No. L-12011/27/2013-IR (B-I)
dated 17/6/2013]
Schedule
"Whether the action of the management of
Madhya Bihar Gramin Bank was justified in
terminating the services (1) Sri Ramesh Kumar
Shukla (2) Sri Arun Kumar (3) Sri Ashok
Kumar Mandal (4) Sri Santosh Tiwary (5) Sri
Biraju Kumar who worked as part time
sweeper in the branch of the Bank for more
than 13 years. If not what relief they are
entitled for?"
Ref. No. 17/2013 [Order No. L-12011/24/2013-IR (B-I)
dated 17/6/2013]
Schedule
"Whether the action of the management of
Madhya Bihar Gramin Bank was justified in
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935
491
terminating the services (1) Sri Mahabir Ram
(2) Sri Manoj Kumar Sah (3) Sri Surendra
Kumar (4) Sri Budhan Singh, who worked as
part time sweeper in the branch of the bank
for more than 13 years. If not what relief they
are entitled for?"
Ref. No. 18/2013 [Order No. L-12011/25/2013-IR (B-I)
dated 17.6.2013]
Schedule
" Whether the action of the management of
Madhya Bihar Gramin Bank was justified in
terminating the services of (1 ) Sri Pintu Kumar
Singh (2)Sri Uday Kumar Singh (3) Sri
Manajar Kumar (4) Sri Dilip Kumar Singh, who
worked as part time sweeper in the branch of
the bank for more than 13 years. If not what
relief they are entitled for?"
Ref. No. 19/2013 [Order No. L-12011/23/2013-IR (B-I)
dated 17.6.2013]
Schedule
"Whether the action of the management of
Madhya Bihar Gramin Bank was justified in
terminating the services of (I) Dilip Kumar (2)
Sri Dharmendra Kumar (3) Sri Nagdesh Ram
(4) Sri vijay Thakur, who worked as part time
sweeper in the branch of the bank for more
than 13 years. If not what relief they are
entitled for?"
Ref. No. 21/2013 [Order No. L-12011/44/2013-IR (B-I)
dated 19.7.2013]
Schedule
"Whether the action of the management of
Madhya Bihar Gramin Bank was justified in
terminating the services of the workman who
worked as part time sweeper in the branch of
the bank for more than 9 years. If not what
relief they are entitled for?"
Ref. No. 22/2013 [Order No. L-12011/45/2013-IR (B-I)
dated 19.7.2013]
Schedule
"Whether the action of the management of
Madhya Bihar Gramin Bank was justified in
terminating the services of the workman who
worked as part time sweeper in the branch of
the bank for more than 10 years. If not what
relief they are entitled for?"
Ref. No. 23/2013 [Order No. L-12011/46/2013-IR (B-I)
dated 19.7.2013]
Schedule
"Whether the action of the management of
Madhya Bihar Gramin Bank was justified in
terminating the services of the workman who
worked as part time sweeper in the branch of
the bank for more than 10 years. If not what
relief they are entitled for?"
'Ref. No. 24/2013 [Order No. L-12011/47/2013-IR (B-I)
dated 19.7.2013]
Schedule
"Whether the action of the management of
Madhya Bihar Gramin Bank was justified in
terminating the services of the workman who
worked as part time sweeper in the branch of
the bank for more than 10 years. If not what
relief they are entitled for?"
Ref. No. 25/2013 ([Order No. L-12011/48/2013-IR (B-I)
dated 19.7.2013]
Schedule
"Whether the action of the management of
Madhya Bihar Gramin Bank was justified in
terminating the services of the workman who
worked as part time sweeper in the branch of
the bank for more than 10 years. If not what
relief they are entitled for?"
Ref. No. 26/2013 [Order No. L-12011/49/2013-IR (B-I) dated
19.7.2013]
Schedule
"Whether the action of the management of
Madhya Bihar Gramin Bank was justified in
terminating the services of the workman who
worked as part time sweeper in the branch of
the bank for more than 10 years. If not what
relief they are entitled for?"
Ref. No. 27/2013 [Order No. L-12011/50/2013-IR (B-I)
dated 19.7.2013]
Schedule
" Whether the action of the management of
Madhya Bihar Gramin Bank was justified in
terminating the services of the workman who
worked as part time sweeper in the branch of
the bank for more than 10 years. If not what
relief they are entitled for?"
Ref. No. 28/2013 [Order No. L-12011/24/2013-IR (B-I)
dated 19.7.2013]
Schedule
" Whether the action of the management of
Madhya Bihar Gramin Bank was justified in
terminating the services of the workman who
worked as part time sweeper in the branch of
the bank for more than 10 years. If not what
relief they are entitled for?"
2. After receipt of the reference. The Secretary of
Sponsoring Union of all reference submitted that the same
management and same workman's dispute is pending before
the state Labour Court Patna for decision. Accordingly he
prays to withdraw the reference pending before this
Tribunal. This being the situation it is felt that presently,
there is no dispute between the parties. Hence no dispute
award is passed. Communicate.
R. K. SARAN, 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.