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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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

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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

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[Qk- la- ,y&42012@58@1996&vkbZvkj ¼Mh;w½]

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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

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dk 14½ dh èkjk 17 ds vuqlj.k esa] dsanzh; ljdkj phQ tujy

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FkkA

[Qkñ lañ ,y&40012@33@2001&vkbZvkj ¼Mh;w½]

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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&

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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

dkñvkñ 165.—vkS|ksfxd fookn vfèfu;e] 1947 ¼1947

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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[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

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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

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[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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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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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

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[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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[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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[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

302

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

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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.)

¹Hkkx II—[k.M 3(ii)º

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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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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

¹Hkkx II—[k.M 3(ii)º

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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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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

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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,

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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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[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

dkñvkñ 180.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947

dj 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,QñlhñvkbZñ ds

izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqca/k esa

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U;k;ky;] ukxiqj ds iapkV ¼lanHkZ la[;k 275@2003½ dks izdkf'r

djrh gS] tks dsUnzh; ljdkj dks 27@12@2013 dks izkIr gqvk FkkA

[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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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

Hkkjr dk jkti=k % tuojh 18] 2014@ikS"k 28] 1935

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

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[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

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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]

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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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367

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,

378

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

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[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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[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

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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

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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

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dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj ,Qñ lhñ vkbZñ

¹Hkkx II—[k.M 3(ii)º

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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

¹Hkkx II—[k.M 3(ii)º

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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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[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

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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

¹Hkkx II—[k.M 3(ii)º

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407

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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[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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409

,Qñ lhñ vkbZñ ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa

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241@2003½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks

27-12-2013 dks izkIr gqvk FkkA

[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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[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.

¹Hkkx II—[k.M 3(ii)º

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411

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 .

414

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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)]

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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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[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

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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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[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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445

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

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[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

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dk 14½ dh èkjk 17 ds vuqlj.k esa dsUnzh; ljdkj iatkc us'kuy

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vfèdj.k@Je U;k;ky; tcyiqj ds iapkV ¼141@95½ izdkf'kr djrh

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[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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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)

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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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FkkA

[la- ,y&40012@133@2001&vkbZvkj ¼Mh;w½]

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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.